Baker v The King
[2024] NZHC 3074
•22 October 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-000093
[2024] NZHC 3074
BETWEEN JAYDEN ANTHONY BAKER
Appellant
AND
THE KING
Respondent
Hearing: 17 October 2024 Appearances:
J A G Moroney for Appellant
B M Bosomworth for Respondent
Judgment:
22 October 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 22 October 2024 at 2.15 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ……………………………
BAKER v R [2024] NZHC 3074 [22 October 2024]
Introduction
[1] This is an appeal against sentence. In the District Court, the appellant was sentenced to five years’ imprisonment in respect of the following charges:
(a)Three charges of strangulation;1
(b)Injuring with intent to injure;2
(c)Assault with intent to injure;3
(d)Sexual violation by unlawful sexual connection;4 and
(e)Indecent assault.5
[2] The appellant pleaded guilty to the charges following a sentence indication. He has a very limited prior history.
[3] The appellant contends that the end sentence of five years’ imprisonment was manifestly excessive. In particular, it is contended that insufficient credit was given to the appellant’s background and upbringing, remorse and rehabilitation, and time spent on electronically monitored (EM) bail. The Crown opposes the appeal.
Factual background
[4] The appellant and the victim, X, had been in a relationship. It ended in June 2021 after an argument. Mr Baker was aggressive and threatening. X resides with her father, the other victim, Y.
[5] On 12 June 2021, Mr Baker arrived at X’s place of work, uninvited. They talked about their relationship which had ended the night before. The conversation became heated and Mr Baker accused X of cheating and lying. X asked Mr Baker to
1 Crimes Act 1961, s 189A(b): maximum penalty seven years’ imprisonment.
2 Crimes Act 1961, s 189(2): maximum penalty five years’ imprisonment.
3 Crimes Act 1961, s 193: maximum penalty three years’ imprisonment.
4 Crimes Act 1961, s 128(1)(b): maximum penalty 20 years’ imprisonment.
5 Crimes Act 1961, s 135: maximum penalty seven years’ imprisonment.
leave the workplace. He then grabbed her by the arm, pulled her into him, holding her tightly against his body. He then forcibly kissed her on the lips, inserting his tongue into her mouth for about ten seconds. The victim pulled away and asked Mr Baker to leave. He did so. Arrangements were made to later meet at the victim’s house to enable Mr Baker to collect his belongings.
[6] That same evening, Mr Baker arrived at victim X’s home to collect his belongings, as agreed. Y was home at the time. Mr Baker was late in arriving. While standing in X’s bedroom, an argument began. Mr Baker became enraged. He used one hand to pin X to her bed by her throat. X had trouble breathing. X attempted to cry out for help but could not speak due to the force of the grasp around her throat. Mr Baker then grabbed X by the hair with one hand and ripped out a large clump of hair extensions which were glued to her scalp. This pinned her down. Mr Baker then began forcefully pulling X’s pants down and placing his hands inside her underwear. He then leaned down and spat on her genitals. He then rubbed his hands over her genitals, having sexual connection between his fingers and X’s genitals.
[7] X then managed to push Mr Baker off her, causing both to fall on the floor. X fractured her toe. X then got up off the bed and there was a struggle for her phone. Mr Baker then picked up the phone from the floor and threw it back on to the bed, by her, again applying pressure to X’s neck with one hand. X had trouble breathing. X then attempted to cry out for help but could not do so due to the force of the grip around her throat. Her ears were ringing from the pressure on her throat.
[8] Y was then alerted to the struggle. He entered the room and interrupted the attack. Y attempted to get Mr Baker to leave the address. This resulted in an argument in the lounge. Mr Baker then lifted Y off the ground and threw him on to a football table, causing the table to break. Mr Baker picked up a wooden stool from the ground and raised it above his head as if the was going to strike Y with it. He then threw it to the ground, causing it to break. Mr Baker then attempted to go back to X’s room, but Y intervened and stopped him. Mr Baker then pushed Y against the wall with his forearm against his chest and neck, resulting in pressure to Y’s chest and neck. Y’s face began to change colour. Y then pushed Mr Baker off. Mr Baker then left the address and the Police were then called.
[9] X sustained pain and redness to her head and neck. A large clump of her hair had been ripped out. She also had a fractured toe. Y suffered bruising to his ribs from being thrown on to the table and bruising to his chest.
District Court decision
[10] On the lead charge of sexual violation by unlawful sexual connection (and strangulation while committing this offence), the Judge adopted a starting point of five-and-a-half years’ imprisonment.6 This was on the basis that it was a display of serious sexual violence, a particularly vulnerable victim, and breach of trust. The Judge was satisfied that there was no premeditation and that this was a case of opportunistic offending.
[11] The Judge increased the starting point by an additional 12 months to recognise the indecent assault the day before, and the strangulation and assault on the day in question.7 The Judge then increased the starting point further by an additional 18 months to recognise the strangulation of X’s father and injuring with intent to injure.8
[12] On a totality basis, the Judge then reduced the starting point from eight years to seven years’ imprisonment.
[13] The Judge allowed a 15 per cent discount (12.6 months) for guilty plea, five per cent discount (4.2 months) for the causal nexus between Mr Baker’s upbringing and offending, and a five per cent discount (4.2 months) for rehabilitative efforts, family support and remorse.
[14] The Judge then allowed a reduction of 20 per cent (three months) for Mr Baker’s 15 months spent on EM bail.9 This was on the basis that his EM bail conditions were not as restrictive as many cases and Mr Baker was able to complete
6 R v Baker DC Whangārei CRI-2021-088-001453, 10 May 2024 at [17].
7 R v Baker, above n 6, at [18].
8 R v Baker, above n 6, at [20].
9 R v Baker [2024] NZDC 20986 at [28].
programmes and rehabilitation that resulted in further discounts. This resulted in an end sentence of five years’ imprisonment.
Relevant legal principles
[15] The appeal is governed by s 250 of the Criminal Procedure Act 2011, which provides that the Court must allow the appeal if satisfied there is an error in the sentence and a different sentence should be imposed.
[16] The relevant principles on appeals against sentence were summarised by the Court of Appeal in Tutakangahau v R:10
(a)a successful appeal requires identification of an error and the appellate court to be satisfied a different sentence should be imposed;11
(b)the appellate court does not start afresh nor simply substitute its own opinion for that of the sentencing judge – error must be shown, “whether intrinsically, or as a result of additional material submitted on appeal”;12
(c)if there is a material error, the appellant court will form its own view of the appropriate sentence;13
(d)although not referred to in s 250(2), whether a sentence is “manifestly excessive” provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed;14 and
(e)the focus is on whether the end sentence was within range, not the process by which that sentence was reached.15
Analysis and decision
[17] Mr Baker does not challenge the starting point adopted by the Judge, namely seven years’ imprisonment. The critical issue to address is whether the discounts applied for mitigating factors and, in particular, the five per cent for s 27 background factors, was inadequate, resulting in a manifestly excessive sentence. I also need to
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Tutakangahau v R, above n 10, at [27].
12 Tutakangahau v R, above n 10, at [30].
13 Tutakangahau v R, above n 10, at [30].
14 Tutakangahau v R, above n 10, at [32]-[33] and [35].
15 Tutakangahau v R, above n 10, at [36] and [40].
address a second issue of whether the discount applied for time spent on EM bail, namely 20 per cent of that time, was a material error.
Section 27 personal and whānau background factors
[18] Counsel for the appellant contends that Mr Baker’s background and upbringing display almost all of the adverse childhood experiences outlined in the leading case Berkland v R.16 This includes pre-natal maternal alcohol and drug use, exposure to serious violence or other trauma, lack of pre-social familial support and connection and abandonment.
[19] There was no s 27 report before the District Court Judge. However, his Honour did have the benefit of an expert psychological report from Dr Kettner dated 24 August 2024, a letter of apology from Mr Baker and character references from whānau and friends. This included Mr Baker’s mother and grandmother.
[20]The report of Dr Kettner notes as follows:
Mr Baker experienced quite a traumatic, violent and chaotic childhood. He was exposed to unremitting domestic violence and unstable parenting beginning at a very early age. This resulted in Mr Baker experiencing suicidality, feelings of abandonment, poor resilience and inability to cope with stress and frustration.
Given the above analysis, it appears there is a clear nexus between Mr Baker’s chaotic and violent family environment, childhood abuse and his current offending.
[21] Counsel for the appellant relies upon a number of recent decisions to support his submission that the Court routinely allows reductions in sentences of around 15 per cent for defendants with similar background factors. This includes Solicitor- General v Heta (30 per cent),17 Carr v R (15 per cent),18 Moses v R (17 per cent),19 Davidson v R (14 per cent)20 and Waho v R (15 per cent).21
16 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
17 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
18 Carr v R [2020] NZCA 357.
19 Moses v R [2024] NZCA 121.
20 Davidson v R [2020] NZCA 230.
21 Waho v R [2020] NZCA 526.
[22] I find that there is some clear merit to the submissions on this point. The five per cent discount applied for personal and family background is, in my view, on the light side. However, as the Crown submitted, while there is violence in the appellant’s background, there is no real evidence of sexual abuse or childhood experiences that could have amounted to a causative contribution to the serious sexual offending in this case. The lead charge was, of course, sexual violation by unlawful sexual connection. Furthermore, as the courts have repeatedly made clear, the seriousness of the offending can reduce the scale of any discount for personal mitigating factors.22
[23] Ultimately, the issue I must address is whether the end sentence was within the range that could properly be justified by accepted sentencing principles. The focus is, of course, on the end sentence imposed rather than the process by which it was reached.
[24] Before addressing that issue, the ultimate and determinative one, I turn to consider the issue of discount for time spent on EM bail.
Time spent on EM bail
[25] In assessing the discount for time on EM bail, s 9(3A) of the Sentencing Act 2002 requires the Court to take into account:
(3A) In taking into account that the offender spent time on bail with an EM condition under subsection (2)(h), the court must consider—
(a)the period of time that the offender spent on bail with an EM condition; and
(b)the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and
(c)the offender’s compliance with the bail conditions during the period of bail with an EM condition; and
(d)any other relevant matter.
[26] Mr Baker spent 15 months on EM bail. He had a 24-hour curfew, but he was able to work on weekdays with the employment exception widened to also allow for
22 Solicitor-General v Heta, above n 17, at [59]; and Moses v R, above n 19, at [48].
work on Saturday morning. He was also allowed absences to attend banking, medical, legal and government agency appointments as approved by the EM bail team.
[27] Mr Baker contends that the reduction of 20 per cent (3 months) for the 15 months spent on EM bail was inadequate. He relies upon the Court of Appeal decision Shramka v R, which notes that discounts allowed for time spent on EM bail commonly range between 30 and 50 per cent and “discounts of up to 50 per cent are not uncommon”.23
[28] The District Court Judge correctly took into account that while the EM bail was restrictive, Mr Baker was able to work during that time. However, as the Crown fairly acknowledged, the discount of 20 per cent in the circumstances here was on the light side. The EM bail conditions here were onerous. Mr Baker’s partner, who was pregnant at the time, suffered a miscarriage and he was unable to support her at that time. I note also that he was fully compliant with the EM bail conditions.
[29] Again, it is necessary for me to address (as discussed below) whether any error by the Judge was material, resulting in a manifestly excessive sentence.
Remorse and rehabilitation
[30] Mr Baker also challenges the five per cent discount applied for rehabilitative efforts and remorse.
[31] I find there is no merit to this ground of appeal. The discount applied was within range.
[32] I also note that Mr Baker did not plead or accept responsibility or otherwise express remorse until almost three years after the offending had occurred on 12 June 2021. He did not offer to engage in restorative justice or otherwise make amends. Rehabilitative attempts were modest.
23 Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [62], citing Paora v R [2021] NZCA 599 at [53].
The end sentence – Was it within range?
[33] While I have concluded that the discount applied for background factors and for time spent on EM bail may have been on the light side, I am ultimately not persuaded that there was any material error in the approach adopted by the Judge. I find that the end sentence was within range and there is no basis for disturbing it.
[34] Here, the Judge gave a generous discount for the guilty plea, namely 15 per cent. As his Honour noted, the appellant was charged in June 2021 and over the next two years and 11 months, until 24 May 2022, maintained the not guilty plea. During those two years and 11 months there were 23 judicial interventions, hearings or notes on the file. For that whole time the victim lived, of course, with the anticipation of a trial. In the circumstances, I agree with the District Court Judge’s conclusion that the 15 per cent discount was generous.
[35] I also note that the District Court Judge applied the totality principle to reduce his initial starting point of eight years’ imprisonment to one of seven years’ imprisonment. This was a case, as the Judge noted, of serious sexual violence coupled with strangulation.
[36] In weighing all these factors and allowing some off-set for the generous guilty plea discount, I find there was no material error in the end sentence ultimately reached by the District Court Judge.
Result
[37]The appeal is dismissed.
Andrew J
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