R v Baxter (No 2) [2019] NSWDC 736

District Court New South Wales

Medium Neutral Citation: R v Baxter (No 2) [2019] NSWDC 736 Hearing dates: 4 October 2019 Date of orders: 04 October 2019 Decision date: 04 October 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: The sentence imposed was not contrary to law. The sentence imposed was within the range of penalties permitted and is consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. Catchwords: SENTENCING — Appeal against sentence — Whether sentence contrary to law — Power of court to re-open proceedings Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health Act 2007 Cases Cited: Achurch v R (2014) 253 CLR 141 DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP v Cooke and Anor [2007] NSWCA 2; 168 A Crim R 379 R v Wright (1997) 93 A Crim R 48 Category: Procedural and other rulings Parties: Regina (Crown) Bradley Martin Baxter Representation: Solicitors: M Dickinson (Crown) S Rees (Offender) File Number(s): 2015/00364720; 2017/00203276

Judgment

CHRONOLOGY 1. On Friday 13 September 2019 I sentenced Mr Baxter in relation to one count of aggravated robbery, contrary to s 95(1) of the Crimes Act, to a Community Corrections Order for 12 months, with conditions. During the sentence hearing it was brought to my attention that the commission of the offence on 12 May 2017 breached a section 12 bond of seven months imprisonment for a common assault, which occurred on 11 December 2015. The suspended sentence was to conclude on 24 May 2017. 2. During the course of oral submissions concerning the breach, the Crown referred me to DPP v Cooke and Anor [2007] NSWCA 2; 168 A Crim R 379. I adjourned the breach proceedings to a date to be fixed so I could read and digest Cooke. I adjourned the proceedings to a date to be fixed to enable the Crown and the offender's legal representatives to file written submissions to assist the Court. 3. On 26 August 2019 the Mental Health Review Tribunal, pursuant to s 51 of the Mental Health Act 2007, placed the offender on a Community Treatment Order, which expires on 25 February 2020. 4. The day after I sentenced Mr Baxter (Saturday 14 September 2019), he was detained as an involuntary patient under the Mental Health Act at the Professor Marie Bashir Centre High Dependency Unit at Royal Prince Alfred Hospital for treatment. He currently remains in hospital with a long-term rehabilitation, with no current discharge date set. Mr Baxter has been an involuntary patient between the following dates: 29 May 2017 to 20 June 2017; 27 September 2017 to 5 December 2017; 20 August 2018 to 14 September 2018; 26 February 2019 to 2 April 2019; 26 June 2019 to 26 August 2019. 5. On 19 September 2019 I received written submissions from Mr Steven Rees, solicitor, Aboriginal Legal Service on behalf of the offender. On 25 September 2019, as a result of receipt of those submissions, my Associate wrote to the parties indicating that the matter would be listed for 4 October 2019. At that stage no written submissions had been received by the Crown. On 26 September 2019 my Associate received correspondence from Mr Rees requesting that the breach proceedings be dealt with in the absence of his client because he was an involuntary patient. 6. On Friday 27 September 2019 my Associate received an email from Matthew Dickinson, solicitor, Office of Director of Public Prosecutions New South Wales, which read in part: "The Crown's view is that it would be unorthodox for call-up proceedings to take place in the offender's absence since they are effectively a resentencing exercise. In particular, it is the Crown's submission that repealed s 98 of the Crimes (Sentencing Procedure) Act 1999 (which continues to apply to breaches of suspended sentences) clearly contemplates that an offender should be before the Court and makes provision for a warrant to be issued for the offender's arrest if they fail to appear. In the Crown's submission s 36 Criminal Procedure Act does not operate to excuse all accused persons from appearing at any criminal proceedings providing they are legally represented. Such a reading clearly cannot be correct." 1. It was unclear from the email whether the Crown was seeking that I issue a warrant for the arrest of Mr Baxter and have him brought from the High Dependency Unit at the Royal Prince Alfred Hospital and brought to this Court. Mr Dickinson finished his email by saying: "However in the circumstances if both his Honour and Mr Rees are prepared to proceed with the call-up in Mr Baxter's absence, I will not stand in the way of that occurring." 1. On 2 October 2019 my Associate received written submissions from the Crown. They were dated 13 September 2019. I have assumed that that was a simple template error on the part of Mr Dickinson, who appears for the Crown. 2. I shall deal with the breach proceedings in the absence of Mr Baxter. After having read and digested Cooke, it is clear that I should not have dealt with the breach proceedings first in time and understand the reasoning for this approach: at [28]. I now deal with the breach proceedings and I am not influenced in any way by the sentence I imposed on Mr Baxter.