R v Baxter

[2019] NSWDC 535

District Court

New South Wales

Medium Neutral Citation:	R v Baxter [2019] NSWDC 535
Hearing dates:	13 September 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Mr Baxter is convicted and he is placed on a Community Correction Order for 12 months, subject to the following conditions: a) The offender must not commit any offence. b) The offender must appear before a court, if called upon. c) The offender must submit to supervision by a Community Corrections officer. d) The offender is to participate in a rehabilitation program or to receive treatment.
Catchwords:	CRIME — Property offences — Aggravated Robbery SENTENCING — Relevant factors on sentence — Mental Health
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health Act 2007
Cases Cited:	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
Category:	Sentence
Parties:	Regina (Crown) Bradley Martin Baxter
Representation:	Solicitors: M Dickinson (Crown) S Rees (Offender)
File Number(s):	2017/0020376

Judgment

1. Bradley Martin Baxter is a proud indigenous man. Proud though he may be, he hears voices and talks back to them. He believes that the Comancheros Outlaw Motorcycle Club are out to get him. He has “a chip in his brain that was placed there by the bikies and is being used to take all his memories”. He was diagnosed with schizophrenia in 2014. On 26 August 2019 the Mental Health Review Tribunal, pursuant to s 51 of the Mental Health Act 2007 placed him on a Community Treatment Order which expires on 25 February 2020.

2. He now comes before me for sentence having pleaded guilty to one count of aggravated robbery contrary to s 95(1) of the Crimes Act. The maximum penalty is 20 years imprisonment. It is an important guidepost in the assessment of sentence. He has spent two months and 22 days in pre-sentence detention.

THE PLEA OF GUILTY

3. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. The guilty plea was indicated and entered at the early stage in the Local Court. The Crown concedes that the plea was entered at the earliest reasonable opportunity, and accordingly the full 25% discount is applicable.

AGGRAVATING FEATURE

4. On 25 October 2016 at the Downing Centre Local Court the offender was sentenced to seven months imprisonment for a common assault which occurred on 11 December 2015. The sentence was suspended and concluded on 24 May 2017. Twelve days before the sentence expired this offence was committed. It was an offence of violence, as this one was.

THE FACTS

5. There is an agreed facts document at tab 2 of exhibit 1. I do not intend to repeat them verbatim, but provide a short summary.

6. On Friday, 12 May 2017 at 11.00pm the victim arrived at the Glasgow Arms Hotel. He went to the gaming room and played the poker machines. He then had interaction with the offender. He gave the offender $20.00 to play the machines. There was further interaction and the offender asked to borrow money. The victim refused. The victim removed two $50.00 notes from his wallet intending to play the machines while on his mobile phone. The offender rushed up to him and grabbed him by the throat and pushed him off his chair against the wall. The offender said, “Fucking give me all your money”. The offender then punched Mr Benjamin three times, hitting him in the lip, nose and cheek. Mr Benjamin told the offender he was not giving him any money. The offender then pushed his body against Mr Benjamin’s body pinning him to the wall and tried to take the money from Mr Benjamin’s hand. Mr Benjamin held onto the money and the offender said, “Give me your money or I’ll stab you.” The offender then tried to grab Mr Benjamin’s mobile phone and as Mr Benjamin went to stop him from doing this the offender snatched the money from Mr Benjamin’s hand. The offender turned around and began to walk towards the exit door. Mr Benjamin reported what had happened to the manager and the police were called. Mr Benjamin sustained swelling to his lip, left cheek and eye, a cut to his lip and bruising to his neck.

7. On 5 July 2017 the offender was arrested. He participated in an electronically recorded interview with police in the course of which he identified himself in stills from the CCTV and admitted to punching Mr Benjamin. The offender said that he did not remember very much about the offence. He said that he took money from Mr Benjamin because he was down on money...and wanted to drink more alcohol. The offender said he attended another pub afterwards where he used the money he stole in the pokies.

OBJECTIVE SERIOUSNESS

8. The victim was unknown to the offender. The victim had been charitable to the offender giving him $20.00 as they both played the poker machines. The act of the Good Samaritan was repaid with violence. The offender rushed to the victim after he had completed a telephone call, he grabbed him by the throat and hurled him and pushed him off his chair against the wall. He aggressively demanded money and then punched the victim three times, hitting him in the lip, nose and cheek. It was thuggish behaviour interrupting the victim’s enjoyment of playing the poker machines.

9. The injuries sustained by the victim were at the low end of the scale; swelling to his lip, left cheek and eye, a cut to his lip and bruising to his neck.

SUBJECT OF CIRCUMSTANCES

10. The following documents have been tendered on behalf of the offender:

• Exhibit A, a report of Dr Katie Goodenough, forensic psychiatry, advanced trainee, dated 20 February 2019.

• Exhibit B, a copy of the Community Treatment Order made 26 August 2019, and

• Exhibit C, a letter from Abbie Andrews, who is the care co-ordinator of the offender, dated 6 September 2019.

11. The psychiatrist’s report informs me of the following.

“Mr Baxter is a 31-year-old single male. He identifies as Aboriginal. He lives with his mother in her Department of Housing Unit in Leichhardt. Mr Baxter’s mother reports that he requires prompting to attend to basic daily living skills such as managing his money and medication, meal preparation and shopping. He and his mother report that he spends his day alone at his mother’s home. Mr Baxter said he had been diagnosed with schizophrenia in 2014.

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 Comancheros Outlaw Motorcycle 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 antipsychotic medication regime. These changes included swapping his previously prescribed Aripiprazole Depo to his current antipsychotic Depo medication, Paliperidone. Mr Baxter said that 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 (CMHT) 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 judgement. 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 antipsychotic medication. He could not identify a period of time where he was free of some psychotic symptoms since history diagnosis.

His treating team on review on 18 February 2019 are considering trialling the oral psychotic medication, Clozapine, given Mr Baxter’s limited symptom response to other medications. Mr Baxter is currently prescribed the LAI Depo antipsychotic medication, Paliperidone 75 mgs, which he receives on a monthly basis. This has been gradually reduced from the initial dose of 150 mgs monthly, due to concern about physical side effects. His case manager reports he is currently compliant with his Depo medication.

He does not independently attend the Community Mental Health Centre to be given his Depo, so the CMHC visit his mother’s house and administer it there. He is not currently on a Community Treatment Order, but has been managed on them in the past.

Substance Use History

Mr Baxter has a documentary history of methamphetamine use. Mr Baxter also has a history of Heroin use. He has been prescribed and managed an opioid substitution treatments in the past including Methadone and Suboxone. He reports that he is not currently on any OST and explained that he has had just stopped himself.

Medical History

Mr Baxter was diagnosed with thyroid carcinoma and had a total thyroidectomy (surgical removal of his thyroid gland) in 2011. He has been prescribed various doses of the oral thyroid replacement medication, Thyroxin, since that time. This medication requires daily dosing, at least one hour prior to eating. He and his mother report that he has difficulty remembering to take his medication and is often non-compliant.

Account of the Offence

Mr Baxter reported that he was intoxicated on 12 May 2017 having drunk ten schooners earlier that night and he could not account for why he drank so much and stated there was no reason. He did not identify any particular stressors at the time. When asked about other details of the offence Mr Baxter said, ‘I don’t remember hitting him...I don’t remember much of that evening’. He was unable to provide any other information about the offence and his actions that night. Mr Baxter explained to me that he thinks he was not compliant with his LAI antipsychotic medication at the time of the offence. Mr Baxter reports that he regrets everything about the event, but there is not much I can do about what has happened now.

Mr Baxter has a supportive extended family. He is currently living with his mother and has regular contact with all of his older siblings. Mr Baxter is otherwise significantly socially isolated. He reports having few to no friends and engaging in almost no social activities. Mr Baxter’s CMHC case manager and treating team have noticed a marked decline in his social and functional capacity over the past two years.

In a functional assessment undertaken on 13 September 2018 he demonstrated limitations in his ability to undertake tasks such as telephone use, travel and transport, meal preparation, washing and laundry and housework. He also presented as being dependent in the areas of money and medication management and shopping. This social and functional decline is consistent with the progressive cognitive impairments secondary to treatment resistant schizophrenia.

Mental State Examination

Mr Baxter’s affect (observed emotional responses) was profoundly blunted. He presented as perplexed and distressed at times. He described feeling good. He demonstrated almost no spontaneous speech and had marked paucity of conversation throughout the assessment. He was overall superficially logical and coherent, however, his conversation was so brief that it was difficult to assess for evidence of marked thought disorder. Mr Baxter described persistent persecutory beliefs associated with derogatory auditory hallucinations. He also described fear for his life, anxiety and a low mood in response to his beliefs. He isolated himself secondary to these concerns and fears. Mr Baxter also referenced the belief that he has a chip in his brain.

Mr Baxter has limited insight into his mental illness. He understands that he has a mental illness and has felt that mental health unit admissions have been beneficial in the past, however, he does not believe that his antipsychotic medication improves his symptoms or mental state. He also identifies the use of illicit substances as improving his symptoms.

Diagnosis

Mr Baxter has a diagnosis of schizophrenia. This illness is treatment resistant.

Opinion

Relationship between mental illness and offending.

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 antipsychotic 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 offence 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. Mr Baxter would be a vulnerable individual in a correctional environment due to his pre-existing mental and physical health concerns.”

12. There is a Community Treatment Order plan. Its goals of treatment are to better control experience of psychotic symptoms to optimise mental state and overall wellbeing, to increase autonomy in managing symptoms with long term view to cease need for CTO, to utilise psycho-education to assist Mr Baxter to promote insight into his illness and facilitate adherence with ongoing care, to maintain integration into the wider local community, to minimise the need for hospital admission.

13. The Treatment Order plan informs me that Abbie Andrews, or delegate, will provide support monitoring and education to Mr Baxter about his mental illness. Mr Baxter will be required to meet with Abbie Andrews, or delegate, nightly at his residence at an agreed upon time. The purpose of the visit will be to monitor Mr Baxter’s mental state and to supervise and administer medication when due. Mr Baxter will also be required to meet with his care co-ordinator, Abbie Andrews, at least fortnight at the Camperdown Community Mental Health Centre or an agreed community location. The purpose of this contact will be to review Mr Baxter’s mental state, provide support and assistance regarding his treatment goals and to ensure adherence with medication. It will also be an opportunity for Mr Baxter to raise any issues regarding his wellbeing or above treatment goals.”

14. Under the heading of “Frequency and Timing of Appointments with his Treating Doctor”, the plan tells me that Mr Baxter must attend and meet with Dr Andrew McDonald or his delegate. These medical reviews will be at least every three months or as required due to clinical needs.

15. Mr Baxter is required to follow-up with blood tests and other medical testing deemed necessary by the treating doctor. The frequency of the tests will be for the purposes of Clozapine medication and monitoring of protocols. It is a comprehensive treatment plan.

CONSIDERATION

16. At the time of the offending the offender was experiencing poor mental health. The fact that an offender was or is suffering from a mental disorder or disability either at the time of the commission of the offence or at the time of sentencing may be taken into account in sentencing: R v Anderson (1981) VR 155.

17. An offender’s mental condition can have the effect of reducing a person’s moral culpability and matters such a general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]. This is especially so where the mental condition contributes to the commission of the offence in a material way: DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1 at [177].

18. I am satisfied that the offender’s mental condition contributed to the commission of the offence in a material way.    His criminal history is indicative of his mental health issues.

19. The proper approach to sentencing involves the weighting of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. The Court should avoid taking a mathematical approach as this would depart from principle because it does not take into account that there are many conflicting and contradictory elements which bear upon sentencing an offender: Markarian v The Queen (2005) 215 ALR 213.

20. I have taken into account s3A of the Crimes (Sentencing Procedure) Act. Matters of general deterrence, specific deterrence, retribution and denunciation have little weight in the sentencing of this offender by reason of his chronic mental illness. I note also that since the commission of this offence he has been an involuntary patient for 217 days.

21. Contrary to the submission by the Crown, I take the view that the threshold in s 5 has not been crossed. I have considered possible alternatives, as I am required to do, and I do not believe that no penalty other than imprisonment is appropriate.

SENTENCE

22. Mr Baxter is convicted and he is placed on a Community Correction Order for 12 months. The Community Correction Order is subject to the following conditions:

1. The offender must not commit any offence.

2. The offender must appear before a court, if called upon.

3. The offender must submit to supervision by a Community Corrections officer.

4. The offender is to participate in a rehabilitation program or to receive treatment.

**********

Decision last updated: 03 October 2019