BAXTER v REGINA

Notice of Appeal. 51 The Notice of Appeal was directed to the sentence imposed in respect of count 1. It relied upon a single ground expressed in these terms: "His Honour erred in having regard to an incorrect and higher maximum penalty when imposing sentence on Count One."

Misstatement of maximum penalty. 52 There can be no question this his Honour misstated the maximum penalty in respect of the offence under s25A of the Drug Misuse and Trafficking Act 1985. The maximum penalty was 20 years imprisonment and/or a fine, whereas his Honour twice referred to the maximum as 25 years imprisonment. The first reference was in the context of an identification of the offences to which the applicant had pleaded guilty (ROS 2), and was perhaps less important. However, the second reference was made in the context of his Honour's appraisal of the seriousness of Mr Baxter's offending conduct. Having referred to his criminal history and the fact that his offences could not be regarded as an uncharacteristic aberration (Veen (No 2) v The Queen (1998) 164 CLR 465 at 477), his Honour said this: (ROS 21/22) "Of course the principal offence of ongoing supply of methylamphetamine carries a maximum penalty of twenty-five years imprisonment. Allowing for the weight to be given to the significance of offences on the Form 1 as they reflect upon the prisoner's conduct over a period of time … " 53 His Honour continued by describing the applicant's "small scale yet systematic drug dealing". 54 A misstatement of the maximum penalty, in the course of sentencing, is plainly an important error. The significance of the maximum penalty was described in Markarian v The Queen ([2005] HCA 25; (2005) 79 ALJR 1048) where Gleeson CJ, Gummow, Hayne and Callinan JJ in a joint judgment said this: (at 1056) "[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance … [31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick …" 55 However, is a misstatement of the maximum penalty an error of such materiality as to justify the Court's intervention, having regard to the terms of s6(3) of the Criminal Appeal Act 1912? That section requires an applicant, not simply to satisfy the court that there has been a material error, but that "some other sentence … is warranted in law and should have been passed" (Spigelman CJ in R v Simpson (2001) 53 NSWLR 704, p721, para 79). 56 The Crown, in submissions, emphasised that unusually, in this appeal, there was no companion ground of appeal alleging that the sentence was manifestly excessive. The written submissions from the Crown said this: "14. Whether the Court intervenes depends on the significance or materiality of the error in the case at hand. In the circumstances of this matter, this Court may resolve that the issue of materiality necessarily equates to a finding that the sentence imposed is manifestly excessive. If it is not - then the error cannot be said to be material." 57 Attention was drawn to Phillip Edward Smith v R [2007] NSWCCA 138. In that case the sentencing judge misstated the maximum penalty for supplying cannabis. James J (with whom Campbell JA and Smart AJ agreed), having identified that error, said this: "[37] This first ground of appeal has been made out. However, I will reserve my consideration of the materiality of the sentencing judge's error until I deal with the third ground of appeal." 58 In that case, unlike the present appeal, there was a separate ground of appeal that the sentence was manifestly excessive. The court ultimately determined that this ground had also been made out. The sentence was therefore quashed and the offender resentenced. 59 Here, the applicant submitted that, for an error to be "material", it need not give rise to a sentence which was manifestly excessive. Manifest excess, where it exists, is a separate error. It was acknowledged that the sentence imposed was within the available range. However, the sentence was said by the applicant to be towards the top of that range. It was submitted that the offence, although serious, involved a supplier very much at the bottom end of the market. The combined weight of the drugs sold was very small because almost all sales involved 0.1 gram. 60 I accept that the applicant does not have to establish the sentence was manifestly excessive. To be a material error, it is enough that such error may, as a matter of inference, have infected the reasoning of the sentencing judge such that, absent error, some other and lesser sentence may have been imposed. Here, the applicant argued, and I accept, that there was a compounding effect in respect of the error arising from the inclusion in the Form 1 of two further charges based upon the same section (s25A of the Drug Misuse and Trafficking Act). His Honour, when dealing with the approach to be adopted in respect of the Form 1 offence, said this: (ROS 20) "The entire point of the process, as the Court pointed out, is to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the primary sentence stood alone. It is wrong to suggest the additional penalty should be small, sometimes it will be substantial, but the sentencing process is only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences." 61 The misstatement of the maximum penalty flowed through to the Form 1 offences. So I accept there was error and that it was "material". The applicant, in these circumstances, sought to tender certain additional material relying upon the following statement by Johnson J (McClellan CJ at CL and Adams J agreeing) in Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154: (at 158) "[124] … I am satisfied that, error having been established in the sentencing process at first instance, it is open to this Court to admit evidence of post-sentence conduct for the purpose of determining whether a sentence should be substituted under s6(3) of the Criminal Appeal Act ." 62 The Crown, in submissions, suggested that the decision in Douar was wrong and inconsistent with the decision of R v Simpson (supra para [36]), the latter being a five judge bench of this Court. However, the conflict between these two decisions is not obvious. No request had been made by the Crown for a five judge bench to resolve any such conflict. The decision of Douar is a recent decision of this Court and should be followed. Additional evidence. 63 An affidavit tendered by the applicant annexed copies of gaol medical records. The records demonstrated the longstanding nature of the applicant's psychiatric problems. They recorded that on 26 February 2006 he asked to see the Mental Health Team at the gaol, stating that he was depressed. There was a note that on 6 March 2006 he communicated the following to a person at the prison hospital: "… Allen is hearing voices thought this relates to drugs but is now clean for some time and is worried." 64 A psychiatrist saw Mr Baxter on 11 March 2006. The record of that consultation included the following note: "In custody since September 2005 C/O hearing voices telling him that others are after him/talking about him. Sometimes feels as if TV is talking directly to him and others can hear this thought. Has never seen before and Polysubstance abuse: ? …" 65 The anti-psychotic drug, Zyprexa, was prescribed. A week later, Dr Tran, psychiatrist, saw Mr Baxter again. The prison hospital records included the following note in respect of that consultation: " … feels slightly improved still hearing voices no active side effects of Zyprexa appears tense …" 66 Mr Baxter was seen on 25 March 2006 by the same psychiatrist, who noted that the voices were not as frequent as before. Mr Baxter was then seen by Dr Kipling Walker on 4 July 2006. The note of that consultation included the following: " HPC: Voices ever since he could remember, Zyprexa commenced few/12 ago, ceased taking them in May 06 because they made him lazy, lethargic, & caused aches. Initially stopped the voices, then voices returned. Nil anti-psychotics before few/12 ago, Premorbid personality - impulsive, angry, shocking temper, distrustful, sensitive to criticism. Imp: Likely schizophrenia against background polysubstance dependence, personality disorder and strong family history mental illness …" 67 On 13 October 2006, the notes recorded the following: "He continues to improve, with better sleep and slowly ameliorating paranoia, and can laugh today. His compliance is excellent, so to try for a Webster pack for him. See 3 months. 4 yrs to go." 68 The entry for 16 January 2007 describes Mr Baxter in terms of "incomplete remission of paranoia and voices admitted, but showing no other signs of psychosis". On 30 January 2007, he was said to be "likely schizophrenic (definitely psychotic) but difficult to separate these conditions" from his alcohol and other drug abuse. 69 Arrangements were made, for the purposes of this appeal, to qualify a forensic psychiatrist, Dr Olav Nielssen. He saw the applicant on 9 February 2007. Dr Nielssen recorded the following history: "Mr Baxter said that he had experienced hallucinations of voices within his head for most of his adult life and dated the symptoms from soon after he first began using amphetamine and hallucinogenic 'trips' at the age of fifteen or sixteen. He attributed the voices to drug abuse but said that they continued at times he was not using drugs. He said that 'sometimes the voices became so loud that I could not hear myself think'. Mr Baxter said that he had been asked about the presence of hallucinations of voices on many occasions over the years, particularly during mental health assessments during previous receptions to prison but said he always denied experiencing the symptom because he said 'I was too ashamed to mention them.'" 70 The applicant told Dr Nielssen that, after taking Zyprexa for a number of weeks, the voices "just weren't there any more … I could think more clearly". 71 Dr Nielssen noted the strong family history of mental illness and a long history of severe substance abuse. He made an examination of his mental state and recorded the following: "… His speech was normal in rate and flow, with no abnormal patterns of speech suggesting an underlying mental illness. He reported fairly typical symptoms of mental illness but did not offer a delusional explanation for the experiences." 72 Dr Nielssen made the following diagnoses: "1. Substance dependence and abuse. 2. Low grade psychotic illness, either secondary to drug use or an underlying schizophrenic condition." 73 Dr Nielssen elaborated as follows: "Mr Baxter's psychotic illness was thought to be responsive to treatment as his symptoms were controlled by a relatively low dose of anti-psychotic medication and there were no objective features of psychotic illness during the recent interview." 74 Dr Nielssen added: "Mr Baxter should probably have indefinite treatment with anti-psychotic medication under the supervision of a psychiatrist. Consistent treatment with anti-psychotic medication could improve his chances of keeping out of trouble. He should also consider a long term drug rehabilitation, as abstinence from illicit drugs would certainly reduce his risk of further offences." 75 The applicant provided an affidavit in which he affirmed aspects of his history and said this: "8. Since being on the medication prescribed by the gaol psychiatrist the voices have become duller and I find it easier to switch them off because I know that they are not real." 76 The Crown relied upon an affidavit from the Deputy Operations Manager of the Junee Gaol, where Mr Baxter is housed. It described his behaviour in these terms: "4. The appellant has been working for a company (which has sourced out its work to the gaol) doing steel welding and machine-type work since 21 May 2007; he first arrived at Junee on 11 May 2005. The appellant is one of the higher graded workers and is considered to be a top worker; his mental health does not appear to be affecting his ability to meet his work commitments. The work programs at Junee are there to provide skills to inmates. 5. The appellant is out of his cell for 11 hours a day and has the same access as all other inmates to all activities and recreation facilities. The appellant has been observed to be knowledgeable about where to access all facilities in the gaol and appears to have had no difficulties in doing so." 77 Mental illness, where present, is relevant to the sentencing discretion in a number of ways (R v Hemsley [2004] NSWCCA 228, para [33]; R v Lauritsen (2000) 114 A Crim R 333, para 48; R v Israil [2002] NSWCCA 255). Before the sentencing Judge, Mr Baxter presented as a person addicted to a variety of drugs for more than two decades. He had spent a significant part of his life in gaol. It was apparent that where the Court had extended leniency or the applicant had been granted parole, he had quickly re-offended and had again been incarcerated. For the past decade or so he had not worked. It is unsurprising in these circumstances that his Honour should have regarded his prospects of rehabilitation as bleak and that he had not made a finding of special circumstances. 78 The additional material provided insight into his offending behaviour. It also gave some reason for hope. Mr Baxter had experienced psychotic episodes for more than two decades, possibly induced initially by drugs. During that time he had neither reported his symptoms nor sought treatment. Rather, he had sought escape in yet more drugs. 79 In July 2005, at the age of 36, Mr Baxter had been arrested on the present charges. Once incarcerated, he had ceased taking drugs. He had expected his psychotic symptoms (which were voices in his head) to cease. When they did not cease he became concerned and for the first time sought treatment. Anti-psychotic medication had been prescribed and he had responded favourably. He was able to work within the gaol system and was regarded highly. It is reasonable to suppose that, provided he continues to abstain from drugs and takes his medication, he has reasonable prospects of rehabilitation. Upon the basis of this material, this Court should intervene and re-sentence.

Re-sentence. 80 The applicant pleaded guilty. I adopt the discount (25 percent) allowed for that plea by the sentencing Judge. Even taking account of the additional evidence, the offences are obviously serious. There is a strong need for personal deterrence to ensure that Mr Baxter remains drug free. There was no appeal against the sentence on Count 2 and there appears to me no occasion to restructure the sentence (cf s7(1)(a) Criminal Appeal Act 1912; R v Bottin [2005] NSWCCA 254). Nor would I disturb the overall term of the sentence imposed by the trial Judge in respect of Count 1. I would, however, find special circumstances in what Norrish DCJ termed "the general sense", arising from the need for Mr Baxter to have extended supervision to assist in his rehabilitation from drugs.

3. That 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. That the sentence imposed by Norrish DCJ on 28 April 2006 in respect of Count 2, including the accompanying Form 1, be confirmed. 82 LATHAM J : I have read the judgment of Kirby J in draft and I agree with his Honour's reasons and the orders he proposes. I also agree with the observations of the Chief Justice. I wish to add some brief comments concerning the nature of the error identified in this case by Kirby J. 83 An error is a "material error" if it has the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the sentencing outcome. It is an error in the House v The King sense because the sentencing judge has taken into account an erroneous or irrelevant consideration. However, the error must be more than "trivial or immaterial" : R v Jeremy Paul Price [2005] NSWCCA 285 at [56] ; see also Phillip Edward Smith v R [2007] NSWCCA 138 at [30] to [34]. 84 There may be errors in the sentencing process that are of such a technical nature that the error could not have affected the sentencing discretion, for example, where the error relates solely to an individual sentence which is wholly subsumed by sentences imposed for a number of offences : Regina v Tadrosse (2005) 65 NSWLR 740 ; [2005] NSWCCA 145 at [30]. Similarly, where an incorrect maximum penalty is applied in respect of only one offence among many offences carrying significantly higher maximum penalties, it is unlikely that such an error could be regarded as material. 85 It is only where the error can be seen to be material that s 6(3) is enlivened and the evidence of post-sentence conduct, if any, falls to be considered by this Court in determining whether some lesser sentence is warranted in law. In R v Burke [2002] NSWCCA 353, Sperling J (with whom Giles JA and Levine J agreed) set out his understanding of s6(3), consistent with this approach (at [83] - [86]) :- Where the sentence is not manifestly excessive, the appellate court must quash the sentence and re-sentence the offender if - and only if - (a) the sentence imposed below is vitiated by error, and (b) the sentence is more severe than the appellate court would have imposed and, necessarily, would now impose on re-sentencing the offender. ……………………………………………………………………. However, … some refinement is necessary. For example, if there were error in the sentencing process below which cannot have made any material difference to the result, the appellate court would not intervene, even if it would have imposed a less severe sentence were it re-sentencing the appellant.

This aspect of Burke was cited with approval in Douar by Johnson J at 177; [123].

86 Of course, the materiality of the error says nothing about whether the error has in fact operated upon the sentencing discretion. Ultimately, this Court may determine that the error did not have that effect and that the additional material placed before the Court does not warrant a lesser sentence than was imposed below. Simpson J (with whom Johnson J and Rothman J agreed) in Price said as much at [55] :- It may be that in order to form an opinion that "some other sentence … should be passed" the Court must form the opinion that the identified error was, or the identified errors were, such as to lead to the conclusion that they in fact infected or affected the end result, that is, the sentence selected.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.