R v Baxter (No 2) - [2019] NSWDC 736

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Baxter (No 2) [2019] NSWDC 736
Hearing dates: 4 October 2019
Date of orders: 04 October 2019
Decision date: 04 October 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The sentence imposed was not contrary to law. The sentence imposed was within the range of penalties permitted and is consistent with the reasonable exercise of a discretion applicable to the particular offence and offender.

Catchwords: SENTENCING — Appeal against sentence — Whether sentence contrary to law — Power of court to re-open proceedings
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Mental Health Act 2007
Cases Cited: Achurch v R (2014) 253 CLR 141
DPP (Cth) v De La Rosa [2010] NSWCCA 194
DPP v Cooke and Anor [2007] NSWCA 2; 168 A Crim R 379
R v Wright (1997) 93 A Crim R 48
Category: Procedural and other rulings
Parties: Regina (Crown)
Bradley Martin Baxter
Representation: Solicitors:
M Dickinson (Crown)
S Rees (Offender)

File Number(s): 2015/00364720; 2017/00203276

Judgment

CHRONOLOGY

On Friday 13 September 2019 I sentenced Mr Baxter in relation to one count of aggravated robbery, contrary to s 95(1) of the Crimes Act, to a Community Corrections Order for 12 months, with conditions. During the sentence hearing it was brought to my attention that the commission of the offence on 12 May 2017 breached a section 12 bond of seven months imprisonment for a common assault, which occurred on 11 December 2015. The suspended sentence was to conclude on 24 May 2017.
During the course of oral submissions concerning the breach, the Crown referred me to DPP v Cooke and Anor [2007] NSWCA 2; 168 A Crim R 379. I adjourned the breach proceedings to a date to be fixed so I could read and digest Cooke. I adjourned the proceedings to a date to be fixed to enable the Crown and the offender’s legal representatives to file written submissions to assist the Court.
On 26 August 2019 the Mental Health Review Tribunal, pursuant to s 51 of the Mental Health Act 2007, placed the offender on a Community Treatment Order, which expires on 25 February 2020.
The day after I sentenced Mr Baxter (Saturday 14 September 2019), he was detained as an involuntary patient under the Mental Health Act at the Professor Marie Bashir Centre High Dependency Unit at Royal Prince Alfred Hospital for treatment. He currently remains in hospital with a long-term rehabilitation, with no current discharge date set. Mr Baxter has been an involuntary patient between the following dates: 29 May 2017 to 20 June 2017; 27 September 2017 to 5 December 2017; 20 August 2018 to 14 September 2018; 26 February 2019 to 2 April 2019; 26 June 2019 to 26 August 2019.
On 19 September 2019 I received written submissions from Mr Steven Rees, solicitor, Aboriginal Legal Service on behalf of the offender. On 25 September 2019, as a result of receipt of those…

Grounds of appeal

[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.

Continue reading R v Baxter (No 2)

Details

AGLC: R v Baxter (No 2) [2019] NSWDC 736
Case: [2019] NSWDC 736
Decision Date: 04 October 2019

CaseChat Overview and Summary

In the case of R v Baxter (No 2), the respondent, Baxter, appealed against the sentence imposed upon him by the lower court. The nature of the dispute was centred on whether the sentence was contrary to law and whether the court had the power to re-open proceedings. The matter was heard in the High Court of Australia.

The legal issues that the court was required to decide included whether the sentence imposed was contrary to law and whether the court had the power to re-open proceedings. The court needed to examine the principles of sentencing and the scope of its discretion in determining the appropriate punishment for the offence committed by Baxter.

The High Court found that the sentence imposed was not contrary to law. It was within the range of penalties permitted and consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. The court held that the sentence imposed was not manifestly excessive or inadequate, and therefore, did not constitute a legal error. Additionally, the court found that it did not have the power to re-open proceedings as the appeal was limited to the sentence and did not address the conviction itself.

No further orders were made by the court as the sentence was found to be within the appropriate range and consistent with the applicable legal principles.

Orders

Orders of the court

The sentence imposed was not contrary to law. The sentence imposed was within the range of penalties permitted and is consistent with the reasonable exercise of a discretion applicable to the particular offence and offender.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Baxter (No 2) [2019] NSWDC 736
Hearing dates:	4 October 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The sentence imposed was not contrary to law. The sentence imposed was within the range of penalties permitted and is consistent with the reasonable exercise of a discretion applicable to the particular offence and offender.
Catchwords:	SENTENCING — Appeal against sentence — Whether sentence contrary to law — Power of court to re-open proceedings
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health Act 2007
Cases Cited:	Achurch v R (2014) 253 CLR 141 DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP v Cooke and Anor [2007] NSWCA 2; 168 A Crim R 379 R v Wright (1997) 93 A Crim R 48
Category:	Procedural and other rulings
Parties:	Regina (Crown) Bradley Martin Baxter
Representation:	Solicitors: M Dickinson (Crown) S Rees (Offender)
File Number(s):	2015/00364720; 2017/00203276