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District Court 13 September 2019

R v Baxter

[2019] NSWDC 535

Assault & violenceTheft & property

Citation: R v Baxter [2019] NSWDC 535
Court: District Court of New South Wales
Date: 13 September 2019
Judge(s): Grant DCJ

Background

The offender, an Aboriginal man in his early thirties diagnosed with schizophrenia, pleaded guilty to one count of aggravated robbery under s 95(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment. He had spent approximately two months and three weeks in pre-sentence custody by the time of sentencing.

The offence occurred on 12 May 2017 at a hotel gaming room. The offender, who had already received $20 from the victim to play poker machines, demanded more money when the victim refused to lend him additional funds. He grabbed the victim by the throat, pushed him off his chair, punched him three times in the face, and ultimately snatched approximately $100 from the victim's hand while threatening to stab him. The victim suffered swelling, bruising, and a cut to the lip.

Psychiatric evidence established that the offender had treatment-resistant schizophrenia, was non-compliant with his antipsychotic medication at the time of the offence, and had a history of substance use. At the time of sentencing, he was subject to a Community Treatment Order made by the Mental Health Review Tribunal.

  • Whether the offender's mental illness materially contributed to the commission of the offence, and if so, what weight to give general deterrence, specific deterrence, retribution, and denunciation
  • Whether the sentencing threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (requiring that imprisonment only be imposed where no other penalty is appropriate) was crossed
  • What discount applied for the guilty plea, given it was entered at the earliest reasonable opportunity in the Local Court
  • How to weigh the aggravating factor of the prior offence of violence committed while still subject to a suspended sentence

Decision

Grant DCJ accepted that the offender's chronic mental illness materially contributed to the commission of the offence. Relying on R v Anderson (1981) VR 155 and Muldrock v The Queen (2011) 244 CLR 120, his Honour held that mental disorder can reduce moral culpability and diminish the weight of general deterrence, retribution, and denunciation. That reduction was particularly pronounced here given the nexus between the offender's untreated psychosis and the offending behaviour.

The Crown sought a term of imprisonment, but his Honour disagreed. Applying the Markarian approach of weighing all relevant factors holistically rather than mathematically, the court concluded that the sentencing threshold in s 5 had not been crossed. The offender's mental illness, combined with the fact that he had spent 217 days as an involuntary patient since the offence, meant that a non-custodial sentence was appropriate.

A full 25% discount was applied to reflect the guilty plea, which the Crown conceded was entered at the earliest reasonable opportunity. The prior conviction for common assault, committed while subject to a suspended sentence only 12 days before expiry, was noted as an aggravating feature. Despite that, the overall sentencing calculus favoured a Community Correction Order.

Orders Made

  • The offender was convicted of aggravated robbery.
  • A Community Correction Order was imposed for 12 months, subject to the following conditions:
  • The offender must not commit any offence
  • The offender must appear before a court if called upon
  • The offender must submit to supervision by a Community Corrections officer
  • The offender must participate in a rehabilitation program or receive treatment

Key Takeaways

  • Where a diagnosed mental illness materially contributes to the commission of an offence, a sentencing court may substantially reduce the weight given to general deterrence, specific deterrence, retribution, and denunciation.
  • The District Court confirmed that chronic, treatment-resistant schizophrenia, particularly where the offender was non-compliant with medication at the time of the offence, can bring a case below the s 5 imprisonment threshold even for a serious offence of violence.
  • Under the Markarian principle, sentencing requires a holistic weighing of all factors rather than a mechanical or mathematical calculation, especially where mental health and other personal circumstances are in tension with objective seriousness and criminal history.
  • Time spent as an involuntary psychiatric patient following the commission of an offence is a relevant consideration at sentencing, and the court took into account the offender's 217 days of involuntary detention in that context.
  • A guilty plea entered at the earliest reasonable opportunity in the Local Court attracted the maximum 25% discount, even where aggravating features such as a prior violence offence were present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(3)(k), 22
- Mental Health Act 2007 (NSW), s 51

Cases
- DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1
- Markarian v The Queen (2005) 215 ALR 213
- Muldrock v The Queen (2011) 244 CLR 120
- R v Anderson (1981) VR 155