BAXTER v REGINA

Court of Criminal Appeal (NSW)|2007-08-10|Before: Spigelman CJ, Kirby J, Latham J, Ms J, As Kirby J, Johnson J, McClellan CJ, Adams J

The applicant's subjective case. 35 Unquestionably Mr Baxter had a harsh early life. He was the child of a single mother. There was no contact with his father. His mother later married and the applicant was brought up in a blended family. His stepfather, however, was verbally and physically abusive. Mr Baxter described himself as "rebellious". At the age of 10 he began drinking. By the age of 13 he was taking drugs. The headmaster at his school asked him to leave before he had completed the School Certificate. 36 During his early years he was repeatedly brought before the Children's Court. He was charged with a number of offences. He was punished in various ways, including periods where he was detained in a children's institution. 37 Having left school, Mr Baxter worked in a number of different jobs. His drug taking increased. He graduated, to use his words, from marijuana to cocaine, LSD, heroin and later, amphetamines. Unsurprisingly, he accumulated a significant criminal history. 38 The first custodial sentence as an adult was imposed in June 1992 by the Wagga Wagga District Court. Although his record is somewhat difficult to interpret, it appears that he was dealt with for a total of 10 charges of break, enter and steal. He was sentenced to concurrent terms, which resulted in a sentence with a minimum term of 1 year and 4 months imprisonment, with an additional term of 3 years and 6 months. 39 Having been released on parole, Mr Baxter again offended. His parole was revoked. He was charged with various offences which were dealt with in the Local Court, including a conviction at the Cootamundra Local Court for possession of property stolen outside the State. He was sentenced to 6 months imprisonment. 40 In October 1997, the applicant was again brought before the Wagga Wagga District Court. He was convicted of supplying heroin. He was sentenced to a minimum term of 3 years, with an additional term of 1 year. An offence of receiving was taken into account. He next came before the Wagga Wagga Local Court on 15 March 2000, on a charge of break, enter and steal. He was sentenced to 12 months imprisonment with an additional term of 4 months. He appealed and the sentence of imprisonment was suspended upon entering into a bond. In February 2003, he was again sentenced for a number of offences, including assault an officer in the execution of his duty, and offences of dishonesty. He was sentenced to 12 months imprisonment from 3 February 2003, with a non parole period of 9 months. 41 The Probation and Parole Report stated that, during periods when Mr Baxter was not in gaol in recent years, he had not worked. He had found it difficult to secure employment in Wagga Wagga because of his criminal record and his reputation arising from that record. 42 After his arrest on 26 July 2005, Mr Baxter was granted bail on 3 August 2005. The Crown immediately sought a review of that decision. Within a short time his bail was revoked. He returned to custody. Before his return, however, he approached a drug rehabilitation centre. He was later offered a place at that centre. This was the first occasion in his long association with drugs that he had sought drug rehabilitation. 43 Mr Baxter wrote a letter to the sentencing Judge shortly before the hearing. The letter included these words: (Ex 1) "Since being incarcerated I have been seeing a psychiatrist and found that I have paranoid schizophrenia and am on medication to treat this illness. I will now have to take Zyprexa for the rest of my life. I realise that I have not set a good example for my son, whom I have full custody of, and I hope that one day he will be able to forgive me for what I have done in the past. I am not asking the court for leniency, but I am asking the court for a chance to rehabilitate myself so that I can stay drug and crime free. I have deeply shamed my family and myself and have wasted the court's time and money by constantly coming back before the courts time and time again, and for this I am deeply sorry." 44 When giving evidence Mr Baxter acknowledged, in answer to a question from his Honour, that he had not been ashamed of his conduct in supplying drugs when he boasted to the undercover police agent that he had been operating for some time without being caught (T31). 45 During the sentencing proceedings, Mr Baxter was represented by a solicitor of Wagga. It was a private retainer, that is, not procured through the Legal Aid Commission, at least initially. Norrish DCJ enquired whether medical evidence would be presented in support of the applicant's note (T16). The following exchange then took place: (T16) "HIS HONOUR: … A claim that 'I have paranoid schizophrenia' is valueless without some medical evidence to support it. Is there going to be any medical evidence in relation to this matter? (SOLICITOR): Your Honour, my client tells me he actually signed a release form to obtain that material but it hasn't been forthcoming. I was actually going to ask him to give evidence of that in the witness box." 46 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) 47 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). 48 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." 49 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." 50 His Honour added these comments, indicating that he was less than optimistic concerning the applicant's prospects of rehabilitation: (ROS 27/28) "So far as the submission that if the prisoner is drug free he will not be a burden on society, that may be so, but of course given his background and given the circumstances of these offences, notwithstanding anything that he has done in the last seven or eight months, one would have to be very, very circumspect about the prognosis for the prisoner's ability to avoid offending in the future."

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.

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.

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.

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CITATION: BAXTER v REGINA [2007] NSWCCA 237

Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 R v Simpson (2001) 53 NSWLR 704 R v Johnson [2005] NSWCCA 186 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 R v Way (2004) 60 NSWLR 168 Veen (No 2) v The Queen (1998) 164 CLR 465 CASES CITED: Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048 Phillip Edward Smith v R [2007] NSWCCA 138 R v Hemsley [2004] NSWCCA 228 R v Lauritsen (2000) 114 A Crim R 333 R v Israil [2002] NSWCCA 255 R v Bottin [2005] NSWCCA 254 R v Jeremy Paul Price [2005] NSWCCA 285 R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 R v Burke [2002] NSWCCA 353

Friday 10 August 2007 Allan John BAXTER v REGINA Judgment 1 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 Act 1912 I have the following additional comments. 2 As Kirby J notes, the judgment in Douar v R (2005) 159 A Crim R 154 determines the issue before the Court. The Crown relied on the following passage in the reasoning in R v Simpson (2001) 53 NSWLR 704 as being in some manner inconsistent with the reasoning of this Court in Douar: "[79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied." 3 I can see no relevant inconsistency. Nor can I see any error in the closely reasoned judgment of Johnson J, with whom McClellan CJ at CL and Adams J agreed in Douar. 4 Section 6(3) provides: "(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." 5 The proposition at [79] of Simpson quoted above, focused attention on the statutory requirement that the Court form the positive opinion for which s6(3) provides. Nothing in par [79] suggests that, in the course of forming that opinion, the Court is confined to the evidence before the sentencing judge. 6 The only support for the Crown's contention in Douar, and in this Court, that additional evidence, including evidence of post-sentence conduct, is not admissible for purposes of formulating the opinion required by s6(3) is the admixture of the present and past tenses in that subsection: i.e. the contrast between "is warranted in law", on the one hand, and "should have been passed", on the other hand. 7 In Douar at [119]-[121] Johnson J resolved this tension by stating that the text was ambiguous and the ambiguity should be resolved in favour of the practice of the Court to receive evidence of post-sentence conduct. In my opinion, his Honour's conclusion is correct. 8 The dominant and active verbs in s6(3) are both in the present tense, i.e. if the Court of Criminal Appeal "is of opinion" and "some other sentence … is warranted in law". The employment of the past tense in the phrase "should have been passed" is distinctly subsidiary. It is employed in order to reflect the fact that, when the Court of Criminal Appeal intervenes, it does so with effect from the date of the original sentence. 9 This interpretation is consistent with the reference in s6(3) to s5(1). That section permits an appeal "against the sentence passed on the person's conviction". The appeal is from the sentence that has been passed by the sentencing judge. However, the reference in s6(3) should not be understood as saying "should have been passed by the sentencing judge". It should be understood as an institutional reference, i.e. "should have been passed by the Court". 10 When the Court of Criminal Appeal turns its mind to forming the opinion which s6(3) requires, it must do so by reference to the facts as they exist at that time, insofar as the Court permits evidence of those facts to be placed before the Court. 11 The construction for which the Crown contends in this respect does receive support from the approach to s6(3) in the judgment of this Court in R v Johnson [2005] NSWCCA 186. Hunt AJA concluded at [33]-[34] that the words in s6(3) "is warranted in law" require the Court to determine whether the sentence that had actually been imposed is "outside the appropriate range for the circumstances of the particular case". 12 It has been suggested that the substantive effect of this reasoning would be, if correct, that this Court would, even if it found error in some other respect, only intervene if it was also of the view that the sentence was manifestly excessive. It does not appear to me that his Honour intended such a consequence. His Honour expressly stated at [29]: "The applicant argued that, according to the Simpson case, this Court would not intervene unless it formed the view that the sentence imposed was 'manifestly excessive'. That is not the correct approach." 13 In contrast pars [33]-[34] of Johnson appear to be inconsistent with the practice of courts of criminal appeal when re-exercising the sentencing discretion pursuant to the provisions such as s6(3). Specifically, they appear to be inconsistent with the reasoning of the High Court in Dinsdale v The Queen (2000) 202 CLR 321 and of this Court in Simpson supra. 14 In Dinsdale the High Court was concerned with the terminology of the equivalent provision in Western Australia to s6(3). The judgments indicated that a court of criminal appeal is concerned with the full range of error of the character which, in Australian jurisprudence, is generally associated with the judgment in House v The King (1936) 55 CLR 499 at 505. (See at [3] per Gleeson CJ and Hayne J, at [21] per Gaudron and Gummow JJ and at [58] per Kirby J.) It is clear from the reasoning that an error identified in terms of a sentence being "manifestly excessive" is only one kind of error that satisfies the provisions of s6(3). (See at [6], [22] and [59]-[60].) Dinsdale affirmed that a Court of Criminal Appeal must re-exercise the sentencing discretion. 15 Further, as the very next paragraph of Simpson, to that upon which the Crown relies, stated: "[80] In the present case I do not believe there is any proper basis for the formation of an opinion in the statutory terms; the objective and subjective circumstances do not lead me to the conclusion that 'some other sentence … is warranted in law and should have been passed'." [Emphasis added]

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