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. BREACH PROCEEDINGS 1. The offender was sentenced to seven months custody suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 for common assault, imposed on 25 October 2016. The bond was due to expire on 25 May 2017. The commission of the robbery offence on 12 May 2017 breached the section 12 bond. The offender consents to the District Court dealing with the breach. 2. The relevant provision of s 98 of the Crimes (Sentencing Procedure) Act provides: "98. Proceedings for breach of good behaviour. … (3) In the case of a good behaviour bond referred to in s 12, a court must revoke the bond unless it is satisfied: (a) that the offender's failure to comply with the conditions of the bond was trivial in nature, or (b) that there are good reasons for excusing the offender's failure to comply with the conditions of the bond." 1. Section 98(3) was previously in force but continues to apply pursuant to sch 2 pt 29 cl 76(3) of the Crimes (Sentencing Procedure) Act 1999. Section 98(3) of the Act requires that a court revoke a bond under s 12 unless one of either two findings are made: 1. that the offender's failure to comply with the conditions of the bond was trivial in nature or 2. that there are good reasons for exercising the offender's failure to comply with the condition of the bond: DPP v Cooke and Anor [2007] NSWCA 2, Howie JA at [8]. The case is also reported at (2007) 168 A Crim R 379. 1. The offender concedes that the failure to comply with the bond was not trivial. "…What the Court is required to consider is whether there are good reasons to excuse the failure to comply with the conditions of the bond in circumstances where that failure is not trivial in nature. The focus must principally be upon behaviour giving rise to the failure to comply with the conditions of the bond and whether that behaviour should be excused.: [14] Clearly if there are extenuating circumstances of sufficient importance to explain the behaviour giving rise to the breach, the Court can exercise its jurisdiction to take no action on the breach … If the breach is a further offence, the failure to be of good behaviour might be excused because of extenuating circumstances leading to the offending behaviour": [16] 1. Howie J went on to say at [34]: "Hidden J in Burrows (DPP v Burrows [2004] NSWSC 433) held that the subjective circumstances of the offender are generally irrelevant in determining whether there are good reasons to excuse the breach under s 98(3)(b) except to the extent that those subjective circumstances are relevant to a consideration of the breach itself. So, for example, the fact that the offender suffers from a mental disorder that may account for the failure to comply with the conditions of the bond will be a relevant factor in determining whether to excuse the breach: see R v Maston (1993) 60 SASR 320 at [34]." 1. The Crown relies upon the following sentence at [34] "but subjective features at the time of the breach proceedings are irrelevant to the decision whether good reasons exist to excuse the breach." 2. I accept the Crown's submission that the Court drew a distinction between the offender's subjective features at the time of the breach offence as opposed to the subjective features at the time of the breach proceedings. The former may be a relevant factor in determining whether good reasons exist to excuse the breach, the latter cannot. 3. The Crown concedes that the offender's mental illness can be taken into account in determining whether there are good reasons to excuse the breach. The Crown in its sentencing submissions dated 13 September 2019 at [14.7] conceded that the offender's mental illness made him an inappropriate vehicle for general deterrence. The Crown in those submissions accepted the opinion of Dr Goodenough that there was a positive contributory relationship between Mr Baxter's offending behaviour and his mental illness: [14.8]. The Crown further conceded "that there is also a reduction in the offender's moral culpability by virtue of his mental illness" citing DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]: [14.9]. 4. On the breach proceedings the following documents have been tendered on behalf of the offender: exhibit A, a report of Dr Katy Goodenough, Forensic Psychiatry, Advanced Trainee, dated 20 February 2019; exhibit B, a copy of the Community Treatment Order made 26 August 2019; exhibit C, a letter from Abby Andrews, Occupational Therapist, Mobile Assertive Treatment Team, dated 6 September 2019. Other documents were also tendered on this hearing. Dr Goodenough says: "I am of the opinion that there is a positive contributory relationship between Mr Baxter's offending behaviour and his mental illness. At the time of this offence his treating team were changing his anti-psychotic medication which is likely to have resulted in an exacerbation of his generally poorly controlled psychotic symptoms. He was also intoxicated on alcohol at the time of the events contributing further to an acute increase in psychotic symptoms and reduced capacity to manage his responses, affect and behaviour. There is evidence that this offence was opportunistic, impulsive and poorly considered. Individuals with schizophrenia are known to have poor impulse control and affect regulation difficulties. Mr Baxter also has a generally persecutory world view increasing his vulnerability to act on his fears and delusional beliefs." 1. Dr Goodenough also said "Mr Baxter reports that when he is unwell he hears voices and 'I talk back to them'. He last had this happen two weeks before the assessment. He believes that the Comanchero Outlaw Motor Cycle Club are out to get him and is scared and petrified about this. He rarely leaves his mother's house because he is so fearful and said this makes him feel a bit down. He described having 'a chip in my brain that was placed there by bikies and has been used to take all my memories'. He said that he also can't think straight but was unable to describe in any other detail what he meant by this. Mr Baxter's CHMT case manager reported that at the time of his offence clinical notes indicated that his treating team were making changes to his anti-psychotic medication regime. These changes included swapping his previously prescribed aripiprazole depo to his current anti-psychotic depo medication paliperidone. Mr Baxter said he did not think he was compliant with his depo medication at the time he committed the offence. Mr Baxter has a formal diagnosis of schizophrenia, he has been case managed by the Camperdown Community Mental Treatment Team for two years. When he is unwell his symptoms include paranoid and persecutory delusional beliefs particularly related to bikie gangs. He experiences derogatory command auditory hallucinations that he responds to, thought disorder, disorganisation, suspiciousness and being guarded, agitation, aggression and irritability as well as poor insight and impaired judgment. Both the clinical assessment and the collateral information indicate that Mr Baxter has a treatment resistance schizophrenia. He has continued psychotic symptoms despite compliance with his anti-psychotic medication. He could not identify a period of time where he was free of some psychotic symptoms since history diagnosis." 1. The offender submits that the offender's social and functional capacity is declining in a manner consistent with aggressive cognitive impairments secondary to treatment resistant schizophrenia. 2. The fact that the offender is now subject to a community treatment order and that since being charged for the conduct breaching a bond he has spent seven months and six days in five separate admissions as an involuntary patient due to his mental health supports the inference that the offender's mental health was a significant operating factor in the offence. The first of those admissions were 17 days after the breach. It is further submitted that the conduct of the offender was that of a mentally ill man with chronic and persisting psychotic symptoms with his medication being changed and a capacity to manage himself further limited by his intoxication. 3. I am satisfied that the offender was operating under a significant mental illness when he failed to comply with the conditions of his bond. As Howie J said at [34] "...the fact that the offender suffers from a mental disorder that may account for a failure to comply with the conditions of the bond will be a relevant factor in determining whether to excuse the breach." 4. It was submitted by the Crown that the deterioration of the offender's mental illness and his recent involuntary admissions to mental health facilities are irrelevant to the determination of the question of good reason exist to excuse the breach. I do not accept that submission. Exhibit C informs me that 17 days after the commission of the offence Mr Baxter was an involuntary patient at a mental health facility and he remained there for almost a month. That admission is consistent with the expert evidence of Dr Goodenough "that there is a positive contributory relationship between Mr Baxter's offending behaviour and his mental illness". 5. Subsequent involuntary admissions of which there are numerous and total seven months and six days, are indicative and consistent with the offender having a significant mental illness at the time of the offence. They cannot be labelled as subjective features at the time of the breach proceedings as the Crown seeks to do. It must be borne in mind that the offender was diagnosed with schizophrenia in 2014, it is an ongoing mental illness that he will carry for the rest of his life. It was operative at the time of the offence and goes directly to the question of good reason to excuse the breach. 6. The Crown relied upon R v Wright (1997) 93 A Crim R 48 for the proposition that the mitigation an offender would otherwise receive for their mental condition is reduced where their psychotic state is brought about by their own deliberate drug taking and failure to take their medication. The facts of Wright are very different to this case, Wright suffered from a psychiatric illness with features of schizophrenia, he had not taken his medication for three days and was intoxicated with marijuana and amphetamines which led to a psychotic state, one in which two voices told him that it was a good idea to rob the person who delivered the pizza. 7. It was held that although Wright may have been encouraged by the voices which he had heard to commit the armed robbery he knew very well what he was doing was gravely wrong. Moreover, he had deliberately left home and his pills behind him and had either deliberately or recklessly become intoxicated by drugs, thereby bringing on the psychotic state. He had been addicted to drugs for years. The judge was in error in including the psychotic state and the intoxication at the time of the offence in mitigation. 8. The following must be borne in mind: * Mr Baxter's CHMT case manager reported that at the time of his offence clinical notes indicated that his treating team were making changes to his anti-psychotic medication regime; * Although Mr Baxter said he did not think that he was compliant with his depo medication at the time he committed the offences as reported to Dr Goodenough this must be treated with a great deal of scepticism. It was a report well after the events and the offender may have been trying to explain his conduct by looking back at the offending and not at the time of the offending; * It was not a case of deliberately leaving the home and leaving his medication behind; * There is no reliable evidence as to the non-compliance, if any, of taking the medication. I am satisfied beyond reasonable doubt that his treating team were making changes to his medication. * There is no evidence to suggest that Mr Baxter had ingested illegal drugs, unlike Mr Wright. 1. I am satisfied beyond reasonable doubt that there is a positive contributory relationship between Mr Baxter's offending behaviour and his mental illness. It is the opinion of Dr Goodenough which I accept that "at the time of this offence his treating team were changing his anti-psychotic medication which is likely to have resulted in an exacerbation of his generally poor controlled psychotic symptoms". Dr Goodenough says that Mr Baxter was "intoxicated on alcohol at the time of the offence, contributing further to an acute increase in psychotic symptoms and reduced capacity to manage his responses affect and behaviour". Although there was a degree of self intoxication the overriding causal connection to the offending was his long entrenched mental illness. I am not satisfied beyond reasonable doubt that at the time the offender committed the offence "he knew very well what he was doing was gravely wrong". 2. The offender's significant mental illness was an operative cause of his failure to comply with the bond. It is relevant in determining whether to excuse the breach. Pursuant to s 98(3)(b) of the Crimes (Sentencing Procedure) Act I am satisfied that there are good reasons for excusing the offender's failure to comply with the conditions of the bond. Reopening of Sentence Proceedings 1. It was submitted on behalf of the offender that as I had failed to deal with the breach of bond matters first I could address this issue by reopening the sentence proceedings for the robbery offence pursuant to s 43(1) Crimes (Sentencing Procedure) Act 1999. It was further submitted that the Court may then deal with the breach proceedings and then impose the sentence for the robbery offence. 2. Section 43 provides: "(1) This section applies to criminal proceedings (including proceedings on appeal) in which a Court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The Court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law." 1. The construction of s 43 was considered in Achurch v R (2014) 253 CLR 141 at [32] the plurality said: "Section 43 confers upon Courts exercising jurisdiction in criminal proceedings a power to reopen those proceedings and to impose a penalty that is in accordance with law. The section only applies to criminal proceedings in which one of two conditions is fulfilled; the condition directly relevant to this appeal is that 'a Court has...imposed a penalty that is contrary to law." 1. On the ordinary reading of that collocation, what must be contrary to law is the "penalty". That condition is not satisfied merely by demonstrating that the Court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law, it may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. Examples of circumstances in which a penalty may be said to be contrary to law include: * a penalty which exceeds the maximum penalty prescribed for the offence; * a penalty which is beyond the power of the Court to impose because some precondition for its imposition is not satisfied - for example, the existence of an aggravating factor or the existence of prior convictions for the same kind of offence. 1. The sentence I imposed was not contrary to law. Although I fell into error in not dealing with the breach proceedings first 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. 2. The Court went on to say at [35]: "Correction of legal and factual errors in sentencing may be effected in more than one way. There are no doubt classes of sentencing error which would not fall within the scope of s 43 as construed by the Court of Criminal Appeal, but would fall within the scope of inherent power or the slip rule or statutory extension thereof. Such corrective powers do not require, as a condition of their application, that the penalty imposed be 'contrary to law'. Correction of legal and factual errors is principally available by way of appeal. If an error is obvious and conceded, the appeal may be disposed of by consent order." 1. The text of s 43 is clear. The relevant power is conditioned upon the penalty being "contrary to law": [36]. The penalty I imposed was not contrary to law nor did I fail to impose a penalty that is required to be imposed by law. 2. Section 43 of the Crimes (Sentencing Procedure) Act does not allow me to follow the course as advocated by the offender and I decline to do so. 3. I direct that a copy of Dr Goodenough's report, the Community Treatment Order and also the notations dealing with the involuntary inpatient entries and the letter from Brad Phipps be provided to Corrections. ********** Amendments 10 December 2019 - changed title to R v Baxter (No 2) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2019