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District Court 4 October 2019

R v Baxter (No 2)

[2019] NSWDC 736

Assault & violenceTheft & property
OPEN PROCEEDINGS

Citation: R v Baxter (No 2) [2019] NSWDC 736
Court: District Court of New South Wales
Date: 4 October 2019
Judge: Grant DCJ

Background

The offender had been convicted of aggravated robbery under s 95(1) of the Crimes Act 1900. On 13 September 2019, the sentencing judge imposed a Community Corrections Order for 12 months. During the sentencing hearing, it emerged that the robbery, committed on 12 May 2017, had breached a suspended sentence (a seven-month term under s 12 of the Crimes (Sentencing Procedure) Act 1999) that had been imposed for a separate common assault conviction.

The breach proceedings were adjourned so the Court could consider the Court of Appeal decision in DPP v Cooke and Anor, which establishes that breach proceedings should be dealt with before, not after, the sentence for the new offence. The day after sentencing, the offender was involuntarily admitted to a psychiatric high dependency unit, where he remained at the time of this judgment.

Two further questions then arose: how to handle the breach proceedings in the offender's absence, and whether the Court could re-open the original sentence under s 43 of the Crimes (Sentencing Procedure) Act to correct the procedural sequencing error.

  • Whether the Court should proceed with the breach proceedings in the offender's absence, given his involuntary hospitalisation.
  • Whether, under s 98(3) of the Crimes (Sentencing Procedure) Act, there were "good reasons" to excuse the breach of the suspended sentence, so as to avoid mandatory revocation.
  • Whether the offender's mental illness at the time of the breach offence was a relevant consideration in excusing the breach.
  • Whether the Court could re-open the original sentence under s 43 of the Crimes (Sentencing Procedure) Act on the basis that it failed to deal with the breach proceedings first.

Decision

Breach proceedings in absence: The Court proceeded to deal with the breach in the offender's absence. Both parties ultimately consented to or did not oppose this course, given the offender's involuntary psychiatric detention. The Crown had initially flagged concerns about proceeding without the offender present, noting that breach proceedings are effectively a resentencing exercise, but ultimately indicated it would not stand in the way.

The mandatory revocation question: Under s 98(3), a court must revoke a suspended sentence bond unless it is satisfied that the failure to comply was trivial or that there are good reasons to excuse the failure. The offender conceded the breach was not trivial. The Court therefore turned to whether good reasons existed to excuse it. Drawing on DPP v Cooke, the Court confirmed that the focus is on the circumstances giving rise to the breach itself, not the offender's subjective circumstances at the time of the breach proceedings. The Crown accepted that the offender's mental illness bore a positive contributory relationship to the offending, reduced his moral culpability, and made him an inappropriate vehicle for general deterrence.

Mental illness as a relevant factor: The Court accepted that the offender's psychiatric condition at the time of the robbery was a relevant factor in assessing whether good reasons existed to excuse the breach. The expert evidence of Dr Goodenough established a direct link between the offender's mental illness and the offending, including that his medication had been changed around the time of the offence, likely causing an exacerbation of his symptoms.

Re-opening under s 43: The offender sought to have the original sentence re-opened under s 43, which permits a court to re-open proceedings where a penalty was "contrary to law." The Court declined. Relying on the High Court's analysis in Achurch v R, Grant DCJ held that failing to deal with breach proceedings first was an error of law, but the sentence actually imposed was not itself contrary to law. It fell within the range of available penalties and reflected a reasonable exercise of discretion. Section 43 was not available to correct this category of procedural error.

Orders Made

• A copy of Dr Goodenough's report, the Community Treatment Order and the notations dealing with involuntary inpatient entries and the letter from Brad Phipps be provided to Corrections

Key Takeaways

  • Under s 98(3) of the Crimes (Sentencing Procedure) Act, revocation of a suspended sentence is mandatory unless the breach was trivial or there are good reasons to excuse it. The relevant inquiry focuses on the circumstances at the time of the breach offence, not the offender's situation at the time of the later breach proceedings.

  • A positive contributory relationship between an offender's mental illness and the breach offending is a relevant factor in assessing whether good reasons exist to excuse non-compliance with a suspended sentence bond.

  • The District Court confirmed the sequencing rule from DPP v Cooke: breach proceedings under a suspended sentence should be resolved before the court sentences for the new offence. Departing from this sequence constitutes an error of law.

  • However, a sentencing error of law does not automatically render the penalty "contrary to law" for the purposes of s 43 of the Crimes (Sentencing Procedure) Act. Where the sentence imposed falls within the available range and reflects a reasonable exercise of discretion, s 43 does not provide a vehicle for correction.

  • Correction of procedural sentencing errors of this kind is available through appeal, not through the re-opening power in s 43, which is conditioned on the penalty itself being contrary to law.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 43, 98; sch 2 pt 29 cl 76(3)
- Crimes Act 1900 (NSW), s 95(1)
- Mental Health Act 2007 (NSW), s 51
- Criminal Procedure Act 1986 (NSW), s 36

Cases:
- Achurch v R (2014) 253 CLR 141
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- DPP v Cooke and Anor [2007] NSWCA 2; (2007) 168 A Crim R 379
- R v Wright (1997) 93 A Crim R 48
- DPP v Burrows [2004] NSWSC 433
- R v Maston (1993) 60 SASR 320