R v Baker[2021] QCA 150

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
2. [2]
   McMURDO JA:  The applicant was sentenced in the District Court for a total of 22 offences, 19 of which were charged on indictment.  The list of offences is helpfully set out within this table in the respondent’s outline of submissions:

3. [3]
   The offences were committed during the operational period of suspended sentences imposed in the Magistrates Court in March 2015, for which two years remained to be served.  The sentencing judge fully invoked those sentences but ordered them to be served concurrently with the terms as set out in the table.  A total of 1,008 days of presentence custody (from 30 November 2016 to 3 September 2019) was declared as time already served.  All of the sentences were to be served concurrently.
4. [4]
   The overall outcome for the applicant was a period of 11 years imprisonment, for which he would be required to serve in actual custody at least 8.8 years.  This was because the 11 year term imposed for count 9 on indictment 2535 of 2018 was necessarily declared to be for a serious violent offence.
5. [5]
   The applicant pleaded guilty to each of the charges on the indictments, when he was arraigned on 16 April 2019.  He pleaded guilty to the summary offences when he was arraigned for them on 4 September 2019, and it was on that date that he was sentenced on all charges.  His pleas of guilty in April 2019 occurred three to four weeks before a scheduled trial date.  The sentencing judge said that these pleas of guilty showed a cooperation in the administration of justice which saved the cost of a trial.  In circumstances where there had been a pre-trial hearing, and some of the charges had been discontinued, his Honour described the pleas of guilty as timely, warranting the applicant being given “full benefit” for them.
6. [6]
   The applicant was represented by counsel at the sentencing hearing but he is without legal representation in this Court.  His application for leave to appeal is against “my sentence”, and is upon the ground that the sentence imposed was manifestly excessive.  It is apparent that his outline of submissions, which is brief and hand written, was prepared without the assistance of a lawyer.  The essence of that outline is that his lawyers led him to understand that if he pleaded guilty to these charges, the outcome would be less than a period of ten years imprisonment, albeit with a requirement that he serve at least 80 per cent of that term.  His outline also refers to the hardship he has suffered from his incarceration thus far: he has missed the birth of his daughter and feels that his sentence has “broken me in every single way possible”.
7. [7]
   Prior to the present matters, the applicant had a significant criminal history, although not involving offences of violence.  However, he had been sentenced to imprisonment for property related offences and his compliance with parole conditions was poor.  His parole was suspended for short periods as a result of urine tests revealing his ongoing drug use.
8. [8]
   Counts 1 to 9 on indictment 2535 of 2018 were a series of offences which were committed over a period of four days.  The applicant sold an ounce of methylamphetamine to two men (count 1).  The consumers of this substance were dissatisfied with what he had supplied, resulting in a number of people going to the applicant’s residence.  After a confrontation, the applicant grabbed a shortened shotgun (which he kept there), cocked the gun and pointed it at one of the attendees (count 2).  The applicant put the gun on the back of that person’s head (count 3).  That man retreated to his car and the applicant fired the gun twice, the first shot causing damage to the back window of the car and the second shot causing further damage (count 4).  Later that day, the applicant telephoned a woman asking why she had sent these people to his house, and demanding from her that two utility trucks be provided to him, failing which he would be “coming to find her” (count 5).
9. [9]
   The following day, the applicant was at his house, with two co-offenders, when a man called Burton (who had been a middle man between the applicant and those to whom he supplied the methylamphetamine) was contacted and asked to attend.  When he arrived there, he was punched by a co-offender and fell to the ground.  The applicant joined in the assault (count 7).  Another co-offender picked up a Samurai sword, cutting Burton’s torso.  The applicant then picked up his shotgun (count 8), pressed it against Burton’s thigh, and shot Burton in the leg (count 9).  The three men continued to assault Burton who was hit to the forehead with the barrel of the gun.  The assault left Burton with injuries which included a penetrating injury to his side, a laceration to the forehead, bruising to his lower back and ribs and three rib fractures.  The gunshot wound to his leg resulted in emergency surgery to treat the wound, a cortical breach of his femur due to metallic fragments, and a compound fracture of the femur.  He spent 13 days in hospital.
10. [10]
    On the following day, the applicant was involved in another altercation in which he produced a shotgun (count 14), which he fired at two men as they drove away (count 15).  Soon afterwards, the applicant went to a house looking for H, his girlfriend at the time and whose interests had been represented by the two men at whom the applicant had shot as they drove away.  At that house he stood at his car holding a gun (count 16) which he pointed in the direction of another woman (A), who was accompanied by her son, before firing the weapon.  Fortunately, A and her son were not shot.  The applicant then shot at a parked car causing it damage (count 17).  On the following day, he returned to the same house where he threatened the same woman (count 18).
11. [11]
    There were three offences on indictment 2538 of 2018, each committed on 27 November 2016.  The applicant was in an altercation with H, who fled from his car into premises in which she attempted to hide.  He followed her into that place, where the owner called police while the applicant searched for H.  The applicant then left for a short time, before returning, producing a gun and again asking the owner to disclose the whereabouts of H.  He also pointed the gun at another woman there, demanding keys to a car, which he drove away.
12. [12]
    The offence charged by indictment 2536 of 2018 was another unlawful use of a motor vehicle.  It was captured on CCTV.  The vehicle had been stolen some ten days earlier.
13. [13]
    The applicant was arrested on 30 November 2016, when he was found in possession of methylamphetamine which was the subject of indictment 2537 of 2018.  He told police that he had a rifle in his car, which was then found and seized (count 19 on indictment 2535 of 2018).
14. [14]
    The assault committed on 30 January 2018 was committed by the applicant when he was in custody.  He threw a liquid through an air vent, which struck three correctional officers.
15. [15]
    In his sentencing reasons, the judge described the applicant as “still relatively young”, being aged 29 at the time of the offending.  His Honour said that it was clear that the applicant’s criminal history was explained by his addiction to drugs.  A psychologist’s report detailed the applicant’s terrible childhood, in which he was apparently beaten by his father and sent to live with an aunt after the separation of his parents.  The psychologist reported that the applicant’s aunt was a drug addict and a prostitute and that she had sexually abused the applicant.  After three years with her, he went to live with his father when he was aged 15.  His father was said to be a heavy user of drugs and from the age of 16 the applicant effectively became homeless until he began to be incarcerated for property offences.  The applicant had been a drug user “from a very young age” after being pressured to use drugs by a family member.  Some of the facts presented in the psychologist’s report were disputed by the Crown.  Despite the disputed facts, the judge accepted that the applicant had had a “turbulent upbringing”.  The applicant also suffered from post-traumatic stress disorder following a car accident in September 2016 which involved the hospitalisation of his pregnant fiancée, daughter and two adopted sons.  The sentencing judge found that the applicant “started using methamphetamine again” after the accident, which “led to the offending”.
16. [16]
    The sentencing judge noted that the applicant had undergone a number of programs whilst in custody, which favourably impressed his Honour, who said that there was some insight and remorse on the applicant’s part.  The judge also took into account the supportive relationship which the applicant still had with a woman whose sons regarded him as a father figure.  The judge said that the applicant was doing something with his life in jail, had family support, and there were prospects of rehabilitation of the applicant if he could overcome his drug problem.
17. [17]
    The critical reasoning of the judge was then in this passage:

“There are a number of offences here, some of which are very serious.  On the other hand, you have pleaded guilty and you need to be given credit for that.  I should not ignore your prospects of rehabilitation.  It seems to me that the starting point on the malicious act with intent was in the order of either eight to nine years imprisonment.  I consider that if I had been dealing with that matter alone, I would have exercised my discretion to impose a serious violent offence declaration, and note the serious nature of the offending, the lack of empathy towards the man, the group assault, the serious injuries and the motivation for the offending.

But then we have the other offending, including very serious charges of shooting of vehicles.  It seems to me, looking at the comparables, that would have led to a head sentence of six to seven years.  So we are talking about a range of 14 to 16 years imprisonment.  But you have pleaded guilty; I need to give you full credit for that.  There is totality, of course, I need to consider.

In all of the circumstances I intend to reduce the penalty overall in this case to one of 11 years imprisonment.”

18. [18]
    The judge correctly recognised the offence of shooting Mr Burton as the most serious one.  An aggravating circumstance was that the applicant’s grievance with Mr Burton went beyond an unsuccessful drug transaction; it involved the applicant’s understanding that Mr Burton was to be a prosecution witness against an associate.  As the respondent submits, his Honour’s observation that this offence, of itself, would warrant a sentence of the order of nine years imprisonment was supported by the decisions of this Court in R v Selby^[1] and R v Gadd^[2].
19. [19]
    The judge’s observation that the offences involving the shooting at vehicles were themselves very serious and could have resulted in terms of six to seven years if they stood alone, may be accepted.
20. [20]
    Clearly the judge applied the totality principle, intending that the sentence should not be a crushing one.  Unfortunately, however in the way in which his Honour structured these sentences, there was relatively little moderation of the time which the applicant would have to serve before being eligible for parole.
21. [21]
    To explain that, it is necessary to understand the consequence in this case of the judge following the approach endorsed by this Court in R v Nagy^[3].  Williams JA said in that case:^[4]

“[39] Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open.  One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality.  But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders.  That list is not necessarily exhaustive.  Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”

22. [22]
    Apart from the most serious of these offences, none of the present offending was declared a serious violent offence.  Nor did the judge say that he would have done so, had he imposed cumulative sentences.  The consequence of sentencing the applicant for the most serious offence, at a level which was higher than that which would have been fixed had it stood alone, was to require the applicant to serve at least 80 per cent of the entire period of imprisonment.  The result was that his non-parole period is longer than it would have been had cumulative sentences, amounting to a period of 11 years imprisonment, been imposed.
23. [23]
    With an understanding of this consequence for the non-parole period, it appears that the sentence for the most serious offence is excessive.  Consistently with the judge’s reasoning as to the likely outcomes of accumulating the sentences, the necessary application of the totality principle required an outcome which was more favourable than that which resulted.  The application of that principle was important here, because the applicant was still a relatively young person, with real prospects of rehabilitation and the support of a partner.
24. [24]
    It was open to the judge to employ the Nagy methodology in this case, but his Honour had to ensure that the result was not worse for the applicant than it would have been by an accumulation of the terms.  That required a lower sentence than 11 years for the most serious offence, to allow for the effect on the non-parole period of that being a serious violent offence.  An example of such a sentence is that which was upheld by this Court in R v Kruezi.^[5]
25. [25]
    The applicant should be resentenced for count 9 of indictment 2535 of 2018 to a term of nine and a half years, with a declaration that this was a serious violent offence.  In consequence, the applicant will have to serve 7.6 years before being eligible for parole.
26. [26]
    I would order as follows:

1. Grant leave to appeal.
2. Vary the orders made by the sentencing judge by substituting, as the sentence for count 9 on indictment 2535 of 2018, a sentence of nine and a half years imprisonment, with a declaration that the applicant committed a serious violent offence.

27. [27]
    HENRY J:  The charges, facts and sentence outcomes relevant to this application for leave to appeal against sentence are outlined in the reasons of McMurdo JA.
28. [28]
    The sole ground of proposed appeal is that the sentence imposed was manifestly excessive.  As the matter developed, the only concerning issue regarding the quantum of the sentence was identified within the court after its decision was reserved.  That issue was explained as follows in correspondence to the parties, inviting them to make further submissions:

“[T]he court would be assisted by submissions upon one aspect of the sentence which may have resulted, potentially, in an inadequately moderated sentence.  Concurrent sentences were imposed with the highest sentence being a head sentence of 11 years imprisonment for the malicious act with intent charge.  On that charge the defendant was declared to have been convicted of a serious violent offence resulting in an 80% non-parole period.  That sentence had an element of uplift to take account of the accompanying criminality of the other charges for which concurrent sentences were imposed.  None of those sentences were declared to be convictions of a serious violent offence but their concurrency with the malicious act with intent sentence meant they could not be moderated by a reduction of a non-parole period.  An issue is whether the 11 year sentence resulted overall in inadequate moderation of the minimum time the applicant would have to serve on parole.”

29. [29]
    The further submissions having been considered, there is in my conclusion no substance to this issue.
30. [30]
    The law does not require that in every sentence mitigating circumstances must be reflected by moderation of the time which an offender will have to serve before being eligible for parole.  Reduction of the minimum parole eligibility period is simply one means by which a sentence may be moderated to allow for mitigating circumstances such as timely pleas of guilty.  Others are:

• a reduction of both the head sentence(s) (that is, the term(s) of imprisonment imposed for the offence) and the parole eligibility period; or
• a reduction of the head sentence(s) only.^[6]

31. [31]
    The circumstances in which moderation for mitigating circumstances ought be reflected solely by reduction of the head sentence will vary.  One circumstance may be where a head sentence substantially in excess three years^[7] must be imposed and a sentencing judge has no particular confidence in the future likelihood of a defendant being a suitable candidate for parole.  In such a case the sentencing judge may ensure the defendant receives the benefit of any mitigation simply by reducing the head sentence which would otherwise be imposed and leaving the matter of the defendant’s parole to the operation of statute and the decision of the Parole Board.  Another circumstance in which moderation for mitigating circumstances ought be reflected solely by reduction of the head sentence is where, like here, the defendant must serve at least 80 per cent of the head sentence in actual custody because of a serious violent offence declaration.
32. [32]
    It is common ground the learned sentencing judge was entitled to follow the approach endorsed in R v Nagy^[8] of imposing concurrent sentences and imposing a higher sentence on the most serious matter than would be imposed if it was the sole offence before the court, to take account of the overall criminality.  It is likewise common ground that the learned sentencing judge was entitled to declare the conviction for the malicious act with intent, attracting the head sentence of 11 years imprisonment, to be a conviction of a serious violent offence.
33. [33]
    The making of that declaration makes it academic, in considering the sole ground of appeal, whether or not any of the other convictions were visited with a serious violent offence declaration.  Because the sentences were imposed to run concurrently and because the applicant would be obliged to serve at least 80 per cent of the 11 year sentence before being eligible for release on parole, all discounting for mitigating circumstances had to be applied to the head sentences.  In considering the severity of the resulting sentence, the issue of whether the 11 year sentence resulted overall in inadequate moderation of the minimum time the applicant would have to serve on parole is therefore a false issue.  The only real issue is whether the sentence outcome, which could not be moderated by the fixing of an earlier than statutorily applicable parole eligibility date, involved such inadequate moderation of the 11 year head sentence as to result in a sentence which was manifestly excessive.
34. [34]
    The malicious act with intent offence involved causing grievous bodily harm with intent to cause grievous bodily harm by pressing the muzzle of a loaded shotgun against the lower thigh of the prone victim and deliberately shooting him.  Committed as it was in the context of a very violent gang attack upon the victim, motivated at least in part by perceptions the victim was “going Crown witness”, a head sentence of nine years with an accompanying serious violent offence declaration would have been comfortably within range of the sound exercise of the sentencing discretion for that episode of offending alone.^[9]  But that episode was only part of a litany of serious criminal conduct.  This included the applicant one day earlier having shot at a car with two occupants and shot at it again as it accelerated away, and, in two separate episodes one day later, having fired multiple shots at another occupied vehicle and having fired shots at a man and his car.
35. [35]
    An uplift of the head sentence from nine years to 11 years, to take account of the totality of the appalling criminal conduct, was moderate.  However, that moderation was appropriate bearing in mind that a minimum of 80 per cent of that sentence would have to be served before the applicant would be eligible for parole.  To illustrate that moderation, for the offence of malicious act with intent standing alone there could be no legitimate complaint about a sentence of nine years imprisonment to serve a minimum of 80 per cent, that is a minimum of 86.4 months or 7 years and 2.4 months.  Instead, under the sentence actually imposed, the applicant must serve a minimum period of 105.6 months or 8 years and 9.6 months - in effect an additional minimum period of 1 year and 7.2 months.  Bearing in mind the additional multitude of offending could readily justify a head sentence in its own right upwards of seven years, and even allowing for a totality discount to avoid too crushing an overall sentence, that additional minimum period appears moderate.
36. [36]
    As Williams JA explained in Nagy,^[10] it is important when opting to sentence for multiple offences via concurrent rather than cumulative sentences to avoid such a severe head sentence for the most serious offence as to result in a sentence disproportionate to the gravity of that specific offence.  Such a result, a form of double punishment, would offend the principle of proportionality discussed in Veen v The Queen [No 2].^[11]  Had the head sentence in this case been much higher it may have violated that principle, but I would not regard a head sentence of 11 years imprisonment with an accompanying serious violent offence declaration as beyond the upper end of an appropriate range for the offence in question.  Indeed, in R v Hart^[12] the same offence type attracted a head sentence of 12 years imprisonment (attracting the automatic requirement that the applicant serve at least 80 per cent thereof) without interference by this Court.
37. [37]
    Another judge may have imposed a slightly more lenient sentence but it cannot be said the sentence is manifestly excessive.  I would refuse leave to appeal the sentence.