PARTIES: Allan John BAXTER (Applicant) REGINA (Respondent)
JUDGMENT OF: Spigelman CJ Kirby J Latham J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 06/71/0010
LOWER COURT JUDICIAL OFFICER: Norrish DCJ
LOWER COURT DATE OF DECISION: 28 April 2006
COUNSEL: M Johnson (Applicant) Ms J Girdham (Crown)
SOLICITORS: S O'Connor - LAC (Applicant) S Kavanagh - DPP (Crown)
CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE misstatement of maximum penalty whether material error whether fresh evidence then admissible re whether some other sentence warranted in law (s6(3)) suggested inconsistency in decisiions of this Court no inconsistency evidence admissible re-sentence.
DECISION: (1) The applicant be given leave to appeal (2) The appeal be allowed (3) The sentence imposed by Norrish DCJ on 28 April 2006 in respect of Count 1, including the accompanying Form 1, be quashed and, in lieu thereof, the applicant be sentenced as follows. On Count 1, taking account of the charges on the Form 1, to a non parole period of imprisonment for 3 years commencing on 27.2.2007 and expiring on 26.2.2010, the balance of the term being 3 years expiring on 26.2.2013 (4) The sentence imposed by Norrish DCJ on 28 April 2006 in respect of Count 2, including the accompanying Form 1, be confirmed.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2007/841
SPIGELMAN CJ KIRBY J LATHAM J
Friday 10 August 2007
Allan John BAXTER v REGINA
Judgment
SPIGELMAN CJ: I have read the judgment of Kirby J in draft. Subject to the following observations I agree with his Honour’s reasons and the orders he proposes. With respect to the application of s6(3) of the Criminal Appeal Act1912 I have the following additional comments.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Baxter v R [2007] NSWCCA 237
Case
[2007] NSWCCA 237
Decision Date
CaseChat Overview and Summary
Baxter v R was a criminal case before the Supreme Court of New South Wales. The appellant, Mr Baxter, appealed his sentence on the grounds that the maximum penalty misstated in court was a material error. The Crown argued against the admissibility of fresh evidence and contended that the sentence was warranted in law. The court was required to decide whether the error in the maximum penalty was material and whether fresh evidence could be admitted. Additionally, the court needed to determine if the sentence was warranted in law and if there was any inconsistency in the court's previous decisions.
The court considered the misstatement of the maximum penalty and found it to be material, as it could have influenced the sentence. Regarding the admissibility of fresh evidence, the court held that it could be admitted if it was relevant to the sentence. The court further examined the sentence and concluded that it was warranted in law, as the appellant had a history of drug dependence and had taken some steps towards rehabilitation. The court also noted that there was no inconsistency in its previous decisions.
Based on the above findings, the court allowed the appeal and ordered a re-sentencing of the appellant. The court acknowledged that the error in the maximum penalty was material and that the fresh evidence was relevant to the sentence. The court also found that the sentence was warranted in law and that there was no inconsistency in its previous decisions.
In conclusion, the court allowed the appeal and ordered a re-sentencing of the appellant. The court found that the error in the maximum penalty was material, and the fresh evidence was admissible. The court also held that the sentence was warranted in law and that there was no inconsistency in its previous decisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
His Honour later made the following comments upon the Probation and Parole Service report: (T18)"HIS HONOUR: … You see, when I read the Probation and Parole Service Report, there's some reference, somewhat oblique, but some reference to what I call psychotic episodes, which I assume are relevant to drug intake, whether they are truly psychotic episodes or merely manifestations of the affects of particular drugs, is a matter that I'm not able to judge obviously on the material, but there's absolutely, as I understand the report, and I'm quickly rereading it. There's no evidence of a history of a psychiatric illness. There's no reference in the material to treatment for an existing psychiatric illness.There's no reference to any report or reports relating to your client's health in that respect beyond what I've just identified."(emphasis added) Mr Baxter's solicitor reaffirmed that, notwithstanding the absence of material from the Prison Medical Service, his client sought to have the matter finalised (T19). The submissions on sentence therefore proceeded. There was evidence that, during previous periods of incarceration, Mr Baxter had taken drugs, procured from within the gaol system. However, on this occasion, once his bail had been revoked, he refrained from doing so. As set out in his note, he said that he saw a psychiatrist and the anti-psychotic drug, Zyprexa, was prescribed (T24). He had been taking that drug for about two months and felt "a lot clearer" (T25). When asked for his thoughts on undertaking rehabilitation once released on parole, Mr Baxter said this: "Yeah, I am all for it." (T26). His Honour, on this aspect, made the following comments in his sentencing remarks: (ROS 18/19)"I note that he has been placed on some medication whilst in custody, which might assist him, although there is no evidence before me that he suffers from a mental illness, notwithstanding a claim in his handwritten note that he suffers from what he describes as paranoid schizophrenia." His Honour also said that, although Mr Baxter was to be given credit for attempting to pursue rehabilitation when he was briefly on bail, what he did "was far too little, far too late" (ROS 19). His Honour found special circumstances arising from the partial accumulation of the sentences on the first and second counts, but made no finding of special circumstances "in a general sense" (ROS 26). He noted that, in the past, Mr Baxter had twice committed offences whilst on parole, including one occasion where he had the benefit of a finding of special circumstances. On each occasion his parole had been revoked. His Honour expressed his conclusion on this issue in these terms: (ROS 26/27)"That having been said and noting everything that has been put on behalf of the prisoner … I am of the view that notwithstanding his background of drug dependence, notwithstanding some steps, tentative though they may be of seeking assistance, particularly whilst on bail, notwithstanding the need of the prisoner to have professional assistance to assist him to adjust to community living and obviously the need for him to get some professional guidance to avoid drug usage in the future, I do not believe the various circumstances I have identified and were identified … are circumstances that are special and warrant the exercise of the discretion available under s44(2) of the Crimes (Sentencing Procedure)Act. As I said ultimately the parole period I have provided for will be sufficient to enable the prisoner to get the benefit of that parole supervision."