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Court of Criminal Appeal 27 September 2017

Regina v Baker*

[2017] NSWCCA 233

Public order & justice offences
CRIME CROWN APPEALS SENTENCE MANIFEST INADEQUACY TWO COUNTS OF SOLICITING TO MURDER CHILD VICTIMS

Citation: Regina v Baker [2017] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 27 September 2017
Judges: Hoeben CJ at CL, McCallum J, Bellew J

Background

The respondent (referred to by the pseudonym Sally Baker) pleaded guilty in the District Court to two counts of soliciting a person to commit murder, contrary to s 26 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 10 years. Both victims were children aged 14 years at the time of the offending.

The offending arose after Sally Baker's husband was arrested and remanded in custody on serious sexual offence charges. The two victims, referred to in the judgment as Kathy and Daniel, were witnesses against him: Kathy was the alleged victim of the sexual offences, and Daniel was the husband's own son, who had provided information to police. Sally Baker made contact with an undercover operative posing as a hitman and, across multiple meetings, instructed him to kill both children.

In the District Court, Sally Baker received a 25% discount on her sentence for her early guilty plea. The sentencing judge imposed an aggregate sentence of 7 years and 6 months, with a non-parole period of 4 years and 6 months, reflecting a starting point of 9 years for each individual offence. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the aggregate sentence imposed in the District Court was manifestly inadequate for two counts of soliciting to murder, where both victims were children.
  • Whether the starting point of 9 years for each offence sufficiently reflected the objective seriousness of the offending.
  • Whether, on resentencing, the two individual sentences ought to run concurrently or with some accumulation to reflect the separate offending against two distinct victims.

Decision

The Court of Criminal Appeal unanimously found that the sentence was manifestly inadequate. McCallum J, with whom the other judges agreed on this point, held that the appropriate individual sentences ought to have started at 12 years before the 25% guilty plea discount, producing sentences of approximately 9 years each. The sentencing judge's starting point of 9 years (pre-discount) was too low given the objective gravity of the conduct.

McCallum J observed that most of the specific errors alleged by the Crown were no more than different formulations of the single proposition that the sentence was inadequate, rather than explanations of how or why the inadequacy arose. Nonetheless, one identifiable error was established, and the manifest inadequacy of the sentence warranted intervention.

On resentencing, the judges divided on whether the two sentences should run concurrently or with partial accumulation. McCallum J favoured concurrent sentences, drawing on the approach taken in Benitez v R in circumstances where the offending arose from the same facts. Hoeben CJ at CL and Bellew J disagreed. They considered that partial accumulation was necessary because there were two separate victims, the respondent provided the undercover operative with different details in relation to each child, and the instruction to kill Daniel represented a significant escalation of the respondent's overall criminality, occurring at a later meeting than the instruction concerning Kathy.

The majority position of Hoeben CJ at CL and Bellew J therefore prevailed, resulting in sentences with partial accumulation rather than full concurrency.

Orders Made

The majority (Hoeben CJ at CL and Bellew J) made the following orders:

  • The Crown appeal be allowed.
  • The sentence imposed in the District Court be quashed.
  • In substitution, the respondent be sentenced to a term of imprisonment with a non-parole period of 5 years and 10 months, commencing 24 April 2015 and expiring 23 February 2021, and a balance of term of 3 years and 10 months expiring 23 December 2024.
  • The first date on which the respondent is eligible for release to parole is 23 February 2021.

(McCallum J proposed a slightly different resentence, with a non-parole period of 5 years and 4 months and a balance of 3 years and 8 months, reflecting concurrent rather than partially accumulated sentences. The majority orders set out above prevailed.)

Key Takeaways

  • A starting point of 9 years for each count of soliciting to murder, where both victims were children and the offending involved repeated, deliberate steps to engage a hitman, was held to be manifestly inadequate by the Court of Criminal Appeal.
  • The Court confirmed that a Crown appeal will not be dismissed merely because the correct sentence is difficult to identify with precision; where manifest inadequacy is established and general deterrence is a significant consideration, resentencing is appropriate.
  • Where two separate victims are involved in soliciting-to-murder offences, and the offender took distinct steps in relation to each victim at different points in time, the Court held that some accumulation of sentences was warranted to reflect the separate criminality.
  • In dismissing the concurrent-sentence approach on the facts, Bellew J emphasised that the second instruction to kill Daniel represented a significant escalation of the respondent's overall criminality, even though both offences arose from the same general circumstances.
  • Under s 26 of the Crimes Act 1900 (NSW), the standard non-parole period for soliciting to murder is 10 years, and the Court's analysis treated this as a meaningful reference point in assessing whether the original sentence fell below an acceptable range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 26 (soliciting to murder; maximum 25 years; standard non-parole period 10 years)

Cases
- Benitez v R [2006] NSWCCA 21
- Carroll v The Queen [2009] HCA 13
- CMB v Attorney General for New South Wales [2015] HCA 9
- Efthimiadis [2013] NSWCCA 276
- Lewis (1998) 100 A Crim R 361
- Lindstrom v R [2008] NSWSC 198
- Louizos v R [2014] NSWCCA 242
- Louizos v R; R v Louizos [2009] NSWCCA 71
- Muldrock v R [2011] HCA 39
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Harris [2015] NSWCCA 81
- R v Potier [2004] NSWCCA 136