R v Baker [2001] NSWCCA 96

New South Wales Court of Criminal Appeal

CITATION : R v Baker [2001] NSWCCA 96 FILE NUMBER(S) : CCA 60225/00 HEARING DATE(S) : 23 March 2001 JUDGMENT DATE : 23 March 2001

PARTIES : Regina v Ley Thomas Baker JUDGMENT OF : Studdert J at 1; Dowd J at 24; Barr J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0246 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : W.L. Robinson QC (Crown) L. Flannery (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LEGISLATION CITED : Crimes Act DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60225/00

STUDDERT J DOWD J BARR J

Friday 23 March 2001

REGINA v LEY THOMAS BAKER

JUDGMENT

1 STUDDERT J: When an indictment was presented in the District Court before Judge Howie SC, as he then was, the applicant, Ley Thomas Baker, pleaded not guilty to both counts, the first being one of aggravated sexual intercourse without consent and the second being one of armed robbery. Before evidence was presented before the jury the judge was asked to determine the question of admissibility of certain tendency evidence, referable to certain past offences committed by the applicant. His Honour having ruled that such evidence was admissible, the applicant changed his plea to one of guilty to the aggravated sexual intercourse without consent. The Crown did not pursue the second count which, indeed, was no billed. 2 For the offence under s 61J of the Crimes Act, his Honour sentenced the applicant to a head sentence of sixteen years imprisonment with a minimum term of twelve years and an additional term of four years. The applicant now seeks leave to appeal against the sentence imposed. 3 The relevant facts were stated by the sentencing judge in his remarks on sentence. No more useful recitation of those facts could be given than to record here what his Honour said in the remarks on sentence at pp 2-3: "The offence to which the prisoner pleaded guilty arises from an incident that occurred on 18 January 1998 between the prisoner and a young lady who was at the time engaged in prostitution in the inner city area. In the early hours of that morning the prisoner pulled alongside her in a white van. The prisoner asked her 'How much?' and she replied 'It is fifty for oral'. She then indicated that she only participated in oral intercourse. The prisoner told her to enter the van and he drove off down Stanley Street. The complainant directed the prisoner to drive to a particular laneway where he parked the van. The complainant and the prisoner then both entered the back of the vehicle. The prisoner gave the complainant fifty dollars which she placed in a bag she carried. From the bag she took out a condom. After the prisoner removed his pants, the complainant commenced to fellate him. During the course of this activity, she noticed the prisoner had a knife in his right hand and he placed it at her throat. The prisoner said, and I quote: 'Shutup or I'll cut your throat.' He then told the complainant to move onto her stomach and to give him her hands. The complainant put her hands behind her back and the prisoner tied tape around them very tightly. The complainant told the accused that he did not have to do this, but the prisoner said: 'Don't fucking say anything, don't fucking move or I'll kill you.' The prisoner then placed the knife at the complainant's throat and told her to open her mouth then gagged her with a piece of cloth. The prisoner then removed the complainant's pants and proceeded to have anal intercourse with her. This conduct gives rise to the charge on the indictment to which the prisoner pleaded guilty and for which he is now being sentenced. The complainant tried to remove his penis but he told her to put it back inside her and she complied. She said she was moaning and crying and the prisoner told her to shutup or he would cut her throat. He continued to have anal intercourse with her until he ejaculated. Shortly after intercourse had been completed the prisoner removed the gag from the complainant's mouth and left the back of the van and then went to her bag and commenced to look through it using the light in the van's cab. The complainant took this opportunity to try to get her hands free but the prisoner came to the back of the van and re-entered it still holding the knife. He told her to turn around and then cut the tape binding her hands. He threatened her with the knife and then told her to get her clothes and get out of the van. Though the complainant was naked from the waist down she immediately fled the vehicle. As chance would have it just as she left the van a police car entered the laneway. The prisoner's van was searched by one of the police officers and a knife and other items related to the activity between the prisoner and the complainant were discovered." 4 Following his apprehension, the applicant denied to the police that there was any anal sex or that the complainant was ever tied up. The applicant contended it was the complainant who produced the knife, demanding money in his wallet. His Honour observed that the prosecution case would have been dependent solely upon the evidence of the complainant had the judge ruled inadmissible on the voir dire proceedings that evidence shortly referred to as tendency evidence. Once that evidence was ruled admissible, of course the applicant changed his plea. 5 So it was that the plea provided little evidence of remorse or contrition. However, it did save the complainant and those other young women who had been earlier victims of the applicant, and whose evidence the Crown would have introduced, from the trauma of having to give evidence. His Honour determined that some consideration should be given to the fact of the plea. 6 The aggravating features of this offence which were identified by his Honour were the use of the knife to threaten the complainant and the infliction of actual bodily harm on her by the use of the knife and by the binding of the hands. The offence was further aggravated by the fact that the applicant bound and gagged his victim while he had intercourse with her. 7 His Honour found that the threats made by the applicant were serious and the nature of the intercourse was particularly degrading and painful. His Honour found that the applicant was, in effect, a predator. 8 Details of the applicant's antecedents are to be found in the sentencing remarks. 9 The applicant, who, at the time of the commission of this offence, was forty-eight years of age, had an extremely bad record of sexual offences beginning in August 1974 when he pleaded guilty to seven offences against young women that had occurred between December 1972 and April 1974. The applicant was sentenced to terms of imprisonment for these matters in consequence of which he was released on 7 November 1981. 10 He was back before the Supreme Court again in February 1983, this time pleading guilty to a number of offences including threatening, by means of a knife, to inflict bodily harm with intent to have sexual intercourse. That particular offence occurred just one month after the applicant had been released from custody. The applicant on that occasion forced his victim into a motor vehicle threatening that he had a knife. He tied her wrists and drove into a bush area where he attempted anal intercourse and had vaginal intercourse. For this offence he was sent to prison for seven years but was released on parole in November 1985. 11 Fifteen months later he was before the District Court at Newcastle charged with maliciously inflicting actual bodily harm with intent to have sexual intercourse. That offence occurred on 22 March 1986 which was just some four months after his last release from prison. Again that offence involved the use of a knife and forced intercourse in a lonely area after which the victim's wrists were tied behind her back and she was driven into town where she was released. This time the applicant was imprisoned for ten years with a non-parole period of seven and a half years. 12 The applicant was back before the District Court in Newcastle in September 1987 charged with detaining a person with attempt to hold her to his advantage. The offence occurred on 14 March 1986 and it involved inducing the complainant to enter the applicant's van on the pretence of giving him directions. The applicant produced a knife but the victim was able to escape. An appeal followed the conviction in that case and the applicant was sentenced to a total of seven years imprisonment to commence at the expiration of the sentence he was then serving. The applicant was released next on 13 February 1997 and the present offence was committed within twelve months of that release. 13 Having referred to that record, his Honour properly directed himself as to the primary function he had to perform; namely to protect female members of society from the applicant. 14 The applicant was described by the parole officer as being intelligent and personable. When he was released from prison in 1997 he obtained work in which he was engaged satisfactorily. In the period of twenty years he has spent in prison, the applicant has been regarded as a model prisoner. The judge had before him reports from a psychologist and a psychiatrist who assessed the applicant in 1998. 15 Dr Carnaris considered the applicant to have a serious psychiatric disorder. Mr Taylor considered he was suffering from a personality disorder, but both experts agreed that the condition was treatable. Indeed, the applicant was having treatment up to the time when his parole expired in October 1997. The judge identified as a matter of concern that the offence for which he had to sentence the prisoner occurred so recently after the cessation of treatment. 16 I now turn to the grounds of appeal which have been succinctly argued by Ms Flannery. 17 It was first submitted that the sentence was manifestly excessive in the light of the finding his Honour made. In the course of his sentencing remarks the judge said that this case did not come within the worst category and his Honour also determined that the plea of guilty was not without significance in the manner in which I referred earlier when dealing with what his Honour said on sentence. It was submitted that when these matters were borne in mind and having regard to the maximum penalty of twenty years imprisonment, a head sentence of sixteen years was manifestly excessive. 18 I do not agree. What his Honour said concerning the matter not being within the worst category has to be read taken in context. The context was as follows, and I refer to the remarks on sentence on p 7: "I do not accept that there was anything impulsive in the commission of this offence. However while the offence is in my view within the upper category of seriousness of its type, it does not come within the worse category such that the maximum penalty of twenty years would be justified. The Crown in fact does not submit that the maximum penalty should be imposed by me." 19 Plainly his Honour regarded the offence as within the upper category of seriousness of its type. He has said so. He was unquestionably correct in so categorising it. Moreover, this was not a case warranting a large discount because of the guilty plea having regard to the time at which and the circumstances in which the plea was entered. His Honour did indicate that he intended to make an allowance for the guilty plea, but I do not, in looking at the sentence overall, conclude that his Honour failed to do so. 20 It was next submitted that because his Honour accepted that the applicant's condition was treatable and that he was motivated and capable of changing his behaviour, this was a further factor which rendered the sentence excessive. I do not consider this to be so. 21 His Honour was faced with a case involving a very grave sexual offence committed by a person with an appalling record for offences of that nature. His Honour correctly identified the relevant principles to be applied in the sentencing task and the non-parole period set afforded the applicant the opportunity for release on parole and supervision for the balance of the sentence for a period of four years. It seems to me that the structure of that sentence was altogether appropriate and made due provision for the treatment of the applicant's condition under supervision once he is released on parole. 22 I detect no error in the carefully expressed remarks on sentence and none of the grounds argued has, in my opinion, been established. 23 I would grant leave to appeal but consider that this appeal should be dismissed. 24 DOWD J: I agree. 25 BARR J: I also agree. 26 STUDDERT J: The orders of the Court will be those that I have proposed **********