R v Baker

[2022] NSWDC 462

District Court

New South Wales

Medium Neutral Citation:

R v Baker [2022] NSWDC 462

Hearing dates:

24 May 2022

Date of orders:

24 May 2022

Decision date:

24 May 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 6 years with a non-parole period of 3 years, 6 months.

Catchwords:

CRIME – Aggravated enter dwelling with intent - knowing people there - Contravene prohibition/restriction in AVO (Domestic) - Assault occasioning actual bodily harm (DV) - Stalk/intimidate intend fear physical harm (domestic)

SENTENCING - Relevant factors on sentence – early guilty plea - objectively serious offending offence involved gratuitous cruelty - breach of AVO - victim impact - mentally ill offender- offender needs continuing and detailed mental health supports – offender would best be treated in a mental hospital

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

DPP v De La Rosa [2010] NSWCCA 194

Engert v R (1995) 84 A Crim R 67

Mapp v R [2010] NSWCCA 269

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Patterson v R [2021] NSWCCA 273

R v Ponfield [1999] NSWCCA 435

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Stephen Warwick Baker (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Mr N Ashby, Solicitor Advocate, Legal Aid NSW (for the offender)
Ms A Cabrera (for Director of Public Prosecutions)

File Number(s):

2021/00140213

SENTENCE – EX TEMPORE REVISED

Introduction

1. When Stephen Warwick Baker was before Local Court he said that he would plead guilty to three matters that were then committed to this court: aggravated enter dwelling with intent to intimidate s 111 (2) Crimes Act 1900, maximum penalty 14 years; assault occasioning actual bodily harm s 59 (1) Crimes Act 1900, maximum penalty of five years; intimidation, s 13 (1) Crimes (Domestic and Personal Violence) Act 2007, maximum penalty five years and/or a substantial fine.

2. He also asked that I sentence him for a related offence on a section 166 Criminal Procedure Act 1986 certificate of knowingly contravening a prohibition or restriction in an Apprehended Domestic Violence Order s 14 (1) Crimes (Domestic and Personal Violence) Act 2007.

3. When I sentence him for the aggravated enter with intent offence he asked that I take into account an offence of common assault. It is appropriate and proper that I do so. That assault relates to an event in mid-January 2021. The other offences all occurred on 9 May 2021.

4. Baker entered early guilty pleas in the Local Court. When I formulate appropriate sentences, I will reduce each indicated sentence by 25 per cent to reflect the utilitarian value of those guilty pleas. I will take care that the process of accumulation of sentences, which is necessary in this matter, not erode the benefit of that plea.

5. I have the benefit of comprehensive submissions from Mr Ashby, solicitor advocate, Legal Aid for the offender and Ms Cabrera solicitor for the Director of Public Prosecutions.

Agreed Facts

6. There are agreed facts before the Court but before I review them, I note that Mr Baker and the complainant had been in a relationship. There may be some dispute as to whether it was a personal relationship, or he was just her carer or both. But at various points in their life, they have lived together, and he has been her carer.

7. On 2 November 2018 Baker was sentenced by Hunt J to a period of imprisonment of three years for an offence of detaining the complainant causing her actual bodily harm: s 86 (2) (b) Crimes Act 1900. That offence occurred in September 2017. He was released to parole on 6 March 2019. His parole ended on 6 September 2020.

8. In mid-January 2021 he committed the assault offence, which is on the Form 1, to which I will refer later. In February 2021 he was arrested and bailed, and an Apprehended Domestic Violence Order was put in place. That order was designed to protect the complainant . The offences before the court occurred on 9 May 2021.

9. On 17 May 2021, Baker’s mental health care team visited him and gave him his depot medication for his schizophrenia. The following day he was arrested.

10. The agreed facts of this matter, indicate that the complainant was aged about 65 years old. She lived in a unit at Avondale She has complex health problems, including paraplegia and osteoporosis. She is primarily bed-bound but can mobilise with the use of a wheelchair.

11. In mid-January 20121 Baker was at the complainant 's unit. He verbally abused her, telling her he hated her. He took hold of her and pulled her off the bed to the floor, and then he left her. He was charged for that offence. This matter is now on the Form 1. An interim Apprehended violence Order (AVO) was made.

12. But despite that order, on 9 May 2021 at about 3 am, when the complainant was asleep in her unit, Baker entered her bedroom through an open window. He was wearing motor bike leathers, gloves and a motorcycle helmet. He punched the complainant to the head causing her pain. He had with him a small fruit knife. He used it to inflict a number of cuts to the complainant ’s thigh, right buttock, right hip, right shin and lower back. He then removed a syringe and poured liquid into the cuts. She experienced a burning sensation in the cut areas causing her to scream. Baker said, "I will be back to finish you off." He hit her to the head. She said she lost consciousness.

13. When she awoke the offender had left. He had left an axe in her cupboard. Later that day her carers attended on her and eventually she told them what had happened. She was initially too fearful, reluctant to disclose what had occurred.

14. The matter was reported to the police. Photographs of the injuries were provided to the Court.

Assessing Objective Seriousness

15. Care needs to be taken in assessing the objective seriousness. Of these offences. Matters in aggravation should not be double counting. Apart from his plea of guilty and his mental health state there is not much that can be said in mitigation. But I will address those matters later.

16. The matter on the Form 1 relates to a separate incident. It does require some increase in penalty for the matter to which it relates, the aggravated break and enter. But I do not in any way sentence for that matter. I take it into account in accordance with the guideline judgment, as greater weight being needed for deterrence and community protection factors.

17. When I come to assess objective seriousness of the offence that assessment must be objective and take into account all matters causally related to it. Each offence has to be individually assessed. The following matters are relevant to my consideration; the time the offences occurred, the fact that they occurred in her home and in her bedroom, where she is entitled to feel safe. She was very vulnerable and that extreme vulnerability was exploited. His intention was to intimidate, but while in the premises he assaulted her occasioning actual bodily harm. The injuries with the knife were exacerbated by whatever liquid he used. It is clear from what he said and what he did that he was intending to cause her harm beyond that, which would ordinarily be inflicted with the small knife that he was carrying. His actions were gratuitous and deliberate and designed to cause her maximum distress. I have seen photographs of the injuries and they conform with that conclusion. There was gratuitous cruelty.

18. There is an offence of intimidation. The statement he would come back to finish her off in context was a serious example of its type. He had previously been in a position of trust but he was not her carer at the time. An AVO was ignored.

19. There is a guideline judgment for break and enter matters which must as a matter of law be taken into account: R v Ponfield [1999] NSWCCA 435 - section 48 (a) Crimes (Sentencing Procedure) Act 1999. But as Mr Ashby points out by reference to what fell from Simpson J in Mapp v R [2010] NSWCCA 269, Ponfield has been largely overtaken by events.

20. Just returning to a matter I neglected to mention earlier. The contravention of an Apprehended Violence Order is treated as particularly serious by the courts. They are there to protect people. Where a person ignores those orders, punishment must be exacted upon them. It is not entirely clear whether Mr Baker fully comprehends how serious his crime is. He appears to lack any insight into his offending. It is not entirely clear that any period in custody will deter him from future offences. Particularly if his obsession continues with the complainant .

21. I have taken into account the statutory factors in s3A and s 21A Crimes (Sentencing Procedure) Act 1999 and common law factors. I can also take into account factors personal to the offender that are causally connected with or material contributed to the commission of the offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, Tepania v R [2018] NSWCCA 247 at [112]; Patterson v R [2021] NSWCCA 273 at [29]. His mental health state, at the time is a relevant consideration.

22. As I also have to take his mental state then and now into account generally when I synthesise an appropriate penalty. His mental health problems continue to this day. I need to take particular care not to double-count a matter either in aggravation or in mitigation of penalty.

Victim Impact

23. Another relevant matter is the complainant's Victim Impact Statement. That statement provides a practical way by which the complainant can inform the court of the consequences of the crimes that were committed against her. And I think it is appropriate that I refer to a portion of that statement in this judgment.

24. She tells me that her physical and mental health has suffered immensely. She has anxiety and depression all the time. She gets angry at herself because Mr Baker, "has always made me feel that it's my fault." The emotional impact on her has been great. Her body has been disfigured. She still says there are problems with her nose. She says while screaming in agony, "he delivered me two last punches to the side of the head" rendering her unconscious. She says she's taking various medications.

25. She fears that he will find her when he gets out and again harm her and use a substance on her. She says, "He has taken a part of my life away from me and I don't know that I can ever get over it." The memory of the incident causes nightmares constantly. She can see herself in agony. She can feel, "that knife cutting my skin. I see his face, perfectly calm." She attempts to cope, but the nightmares continue. She still cares how she looks, but she finds she cannot look in the mirror, because of the injuries to her face. The crime has brought her great grief. She says, "I'm confident in my faith in God Almighty and His help" using us as tools to achieve the justice that everybody deserves. And I will take those matters into account.

26. But I cannot extend the sentence more than the objective facts require.

Criminal History

27. I also have to take into account the offender's criminal history, when I come to consider aggravating circumstances not relating to objective seriousness. I have before me the earlier judgment of Judge Hunt and the facts in relation to that matter.

Maximum Penalties

28. I will take into account the maximum penalties; they are guides to the exercise of my sentencing discretion. But as the High Court noted in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, I cannot engage in a staged approach to sentencing. Any guidance must be synthesised along with all other relevant matters.

Mental Illness

29. Baker's personal history was set out in a report that was before Hunt J from Mr Bembrick, a Social Worker from Legal Aid. Born in 1964 he is now in his fifties. He has a family history of schizophrenia. As a young man he was able to finish the school certificate. He was able to get an apprenticeship, and he worked until he was in his late twenties. Thereafter the emergence of his schizophrenic illness has blighted his life. He has been admitted to mental health institutions regularly. He had been on medication - sometimes depot medication – since those symptoms emerged.

30. He has served the last year of his sentence subject to the COVID pandemic and the restrictions that apply to all prisoners, and they will continue for some time.

31. It is also important to note at this stage the conclusion of Dr Furst, forensic psychiatrist, who has had a chance to examine Baker and his health records. He concludes that Mr Baker has a substance use disorder, but more importantly a schizoaffective disorder. Given the history - mental health and criminal - before Dr Furst he concludes that:

"Mr Baker's chronic psychotic illness has progressed to the point that he now incorporates the complainant into his delusional system. In particular, when he is mentally unstable and paranoid: his lack of insight into being mentally unwell and therefore moral wrongfulness of his actions; his impaired judgement; his lack of capacity to control himself in relation to the complainant , when driven by his delusional thinking; are salient mitigating factors on sentence."

32. I do have to take into account his mental illness, which has been well documented. Baker really should not be sentenced as an example to others. While he is in prison hospital at the moment, he will while in custody suffer more than a prisoner without his disability.

33. As Mr Ashby notes, where a person's mental state is relevant to sentencing proceedings, it can present intractable problems. For while they are salient mitigating factors, they also raise questions of community protection; in particular the protection of the complainant.

34. He is an ill man who has no social supports. When he was in the community, he had the benefit of a Community Treatment Order and some support from a mental health team. And it would appear that when they last saw him, he was not to their knowledge and belief exhibiting signs of psychosis. They were doing their job, but they were unaware of what he had done.

35. When he is released into the community at the very minimum, he will need monitoring by, and assistance from, a mental health care team and a Community Treatment Order. Dr Furst in his principal report also notes that he might benefit from doing EQUIPS programs. He recommends ongoing assertive psychiatric treatment, initially in custody under the care of Justice Health and then through a local community health team, mental health team and hospital.

36. Dr Furst concludes that available studies indicate there are better long-term outcomes and reduced rates of offending when people with schizophrenia have active and assertive management. So far as the complainant future risk is concerned, he says it can be mitigated with such active and assertive treatment, but vigilance will be required over the long term. And it is necessary he be screened for any signs of relapse or for any delusional ideation involving the complainant in particular. Consideration should be given to long-term placement in a psychiatric hospital, such as Bloomfield, as an involuntary patient for treatment and rehabilitation, if community treatment under a Community Treatment Order in public housing is not viable. Clearly medical compliance and Community Treatment Orders will be the mainstay of treatment to mitigate and manage identified clinical needs and risks.

Synthesis

37. I will indicate individual sentences. A sentence for one of the offences could not incorporate the other. There needs to be some partial accumulation of sentences, because there were a number of offences and there was also the breach. Baker's future will depend upon how his mental illness is managed. It seems likely at this stage that there will need to be a transition from jail to a mental health facility as an involuntary patient, and then a Community Treatment Order. That of course may change if there is assertive treatment while he is in custody. It is a matter I can confidently leave with the State Parole Authority.

38. I will structure the sentence so that transfer to a mental health facility or strict supervision under a Community Treatment Order can be facilitated. Like many mentally ill offenders, simply warehousing him - that is keeping him in a jail with minimal support and treatment - will do little to enhance his rehabilitation and their treatment. Gaol may in fact delay necessary treatment thus entrenching fixed psychotic beliefs such as the one he has in relation to the complainant . It is a sad indictment of our system that sometimes custody is seen as necessary, before proper treatment can be administered. It seems from the material before me that the sooner Baker can get to a mental health facility, where full resources can be devoted to him, the better.

39. At the same time, because I am dealing with Baker at law, the sentence must reflect all relevant factors and the minimum term must reflect all relevant factors, including the objective seriousness of the crimes he committed, matters of aggravation and mitigation I have mentioned.

40. Synthesising all those matters requires questions of judgement and assessment; considerations that made even more complex when serious crimes are committed by mentally ill offenders. Particularly so, when as here, serious crimes are committed against a victim, who he has earlier been offended against. A sensitive discretionary decision is required, but I have to sentence according to law and the relevant principles.

41. As McClellan J pointed in DPP v De La Rosa [2010] NSWCCA 194 and as was pointed out the Chief Justice in Engert v R (1995) 84 A Crim R 67, those considerations can point in different directions. Where a person's mental health contributes to the commission of the offence in a material way as here, their moral culpability is reduced. There is also less need to denounce the crime, and the person might be less of a vehicle for deterrence. But while the Court cannot extend a sentence beyond what is proportionate and required, a court also has to take into account in fixing a sentence protection of the community and the danger posed by a particular offender.

42. The sooner Baker becomes a Correctional patient the better his condition can be treated. And that , more than anything else, will be fundamental to whether he is granted parole and where he is granted parole to. As I said, in my view it would be better he be treated in a mental health facility; noting that he is presently in the jail hospital.

43. Taking all those matters into account. I note the plea of guilty and the reduction for the plea of guilty. I note my finding of special circumstances to give the State Parole Authority as many options as is possible. If possible, it may be necessary to send him to a mental health facility before his non-parole period expires. The State Parole Authority cannot make an order for parole, unless the safety of the community requirement in section 135 of Crimes (Administration of Sentences) Act 1999 is met.

Orders

44. In relation to each of the matters for sentence you are convicted.

1. In relation to the s 111 (1) aggravated enter, taking into account the form 1, I indicate a sentence of four years and six months.

2. In relation to the offence assault occasioning actual bodily harm, I indicate a sentence of two years and three months.

3. In relation to the intimidation offence, I indicate a sentence of one year and one month.

4. In relation to the s 14 (1) matter on the s166 certificate, I indicate a sentence of four months.

45. There will be an aggregate sentence in this matter of six years. The non-parole period will be three years and six months. The sentence will commence on 18 May 2021. You will be eligible for consideration for release to parole on 17 November 2024. The balance of the sentence is two years and six months, commencing on 18 November 2024 and expiring on 17 May 2027. There is a back-up offence of assault that is withdrawn and dismissed.

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Decision last updated: 10 October 2022