Citation: R v Baker [2019] NSWCCA 58
Court: Court of Criminal Appeal, New South Wales
Date: 29 March 2019
Judges: Hoeben CJ at CL (majority); Adamson J (agreeing with majority); Button J (dissenting on disposition)
Background
The respondent pleaded guilty in the Local Court to offences across two indictments. The first involved three counts of sexual intercourse with a 14-year-old girl, committed over a period of approximately three months. The respondent, then aged 35 to 36, cultivated a manipulative pseudo-romantic relationship with the victim, who was a friend of his son.
After his arrest for the sexual offences in January 2015, the respondent was remanded in custody. While at Long Bay Gaol, he initiated a plan to have the victim and his own son killed, in order to prevent the prosecution from proceeding. He recruited a fellow inmate, who then reported the matter to police. The respondent subsequently engaged his estranged wife as an intermediary; she made arrangements with an undercover operative, provided photographs of the intended victims, and paid $5,000 for one murder and $1,000 for the other. The respondent was found to be the instigator throughout.
The respondent was also convicted of firearms offences arising from possession of an unauthorised rifle that had been buried near the family home. He was sentenced in the District Court at Wollongong in July 2018, receiving an aggregate head sentence with a non-parole period of 9 years and 9 months. The Director of Public Prosecutions appealed that sentence as manifestly inadequate.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the two soliciting to murder offences
- Whether the aggregate sentence was manifestly inadequate
- Whether, if error were established, the Court of Criminal Appeal should exercise its residual discretion to intervene and resentence
Decision
The majority (Hoeben CJ at CL, with Adamson J agreeing) held that the sentencing judge had erred in his assessment of the objective seriousness of the soliciting to murder offences, and that the Crown appeal was accordingly made out on Ground 1. The majority also found the aggregate sentence to be manifestly inadequate.
Notwithstanding those findings, the majority exercised the Court's residual discretion to decline to intervene. Several factors informed that exercise. The respondent was entitled to a further 5% discount on indicative head sentences, reflecting modest assistance to authorities that had not been adequately reflected in the original sentence. The delay in resolution of the matter was also a relevant consideration, as was the Court's view that, while the sentence was lenient, it did not fall outside the available range to such a gross degree as to compel intervention. The majority resentenced the respondent, increasing the aggregate sentence, but having regard to all relevant matters.
Button J dissented on the question of disposition. His Honour expressed that the aggregate sentence was remarkably lenient and that his own assessment had wavered. He ultimately concluded, however, that it had not been affirmatively established to his satisfaction that the sentence was manifestly inadequate, and that he would not be affirmatively satisfied the Court should exercise its discretion to intervene even if error were established. Button J proposed that the Crown appeal be dismissed.
Orders Made
• Crown appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that even where a Crown appeal against sentence is made out on both the specific error and manifest inadequacy grounds, the court retains a residual discretion to decline to resentence, which may be exercised where the sentence, though lenient, does not fall outside the available range to a gross degree.
- Where a respondent's assistance to authorities was not adequately reflected in the original sentence, a further discount to indicative head sentences may be warranted on resentencing, even when that assistance is characterised as "modest."
- Delay in the resolution of proceedings, where it is not the fault of the respondent, remains a relevant consideration when the Court of Criminal Appeal weighs whether to exercise its discretion to intervene on a Crown appeal.
- Button J's dissent illustrates that the threshold for establishing manifest inadequacy requires affirmative satisfaction that the sentence falls outside the proper range; mere lenience or personal reservations about the outcome are insufficient to establish the ground.
- Soliciting to murder offences committed from custody, where the offender was the instigator and the victims included the complainant in an existing serious criminal matter and the offender's own child, are treated as falling at a high level of objective seriousness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 26, 66C(3)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7A(1), 36(1), 39(1)(c)
Cases:
- Bou-Antoun v Regina [2008] NSWCCA 1
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Efthimiadis v R [2013] NSWCCA 276
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Louizos v R; R v Louizos [2009] NSWCCA 71; 194 A Crim R 223
- Louizos v R [2014] NSWCCA 242
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mulato v Regina [2006] NSWCCA 282
- R v Barker [2016] NSWCCA 193
- R v Brown [2012] NSWCCA 199
- R v Lewis (1998) 100 A Crim R 361
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- Ramos v R [2015] NSWCCA 313
- Regina v Baker [2017] NSWCCA 233
- Regina v Potier [2004] NSWCCA 136
- Sabongi v R [2015] NSWCCA 25