HIS HONOUR: ‑ ‑ ‑ we done that? Did you hand up the amended notice?

HIS HONOUR: Okay. To the extent I have not done it already, I will give the appellant leave to amend the notice of appeal and add further grounds. The subsequent grounds are that the magistrate erred in failing to have regard to a relevant consideration, namely, the appellant's mental health diagnosis in imposing sentence; and further, that there was a denial of procedural fairness, causing the sentencing discretion to miscarry.

The broader landscape of this matter is that QBQ sadly suffered a significant injury in a motor vehicle accident in early childhood, at age 5, which left him with an acquired diffuse brain injury. That has left him under the care of the adult guardian, because as the material demonstrates, he is incapable of making appropriate decisions for himself. He is also under a treatment authority under the Mental Health Act for paranoid schizophrenia, a serious and ongoing mental health condition.

The magistrate was not aware, it seems, of at least the details of those features, although there were clues. He said, amongst other things, "I've got a public trust put onto me", which prompted no inquiry from the magistrate. Ms Robertson tells me, and I accept, that when one speaks to him, some degree of mental impairment is obvious. And he did utter quite a few sentences in court; and yet, there was no inquiry about any of this.

The police prosecutor put up the idea of two and a-half years' imprisonment, and QBQ, who had said he did not want to be in prison for a long time, was not otherwise asked to make any submissions about the period of imprisonment. The prosecutor's submission was supported by them handing up copies of some decided cases, which were not given to QBQ. That is, frankly, an extraordinary denial of procedural fairness. The idea that this could be conducted in this one-sided fashion with a man who is obviously suffering mental disabilities is extraordinary. In any case, that is what has happened, amongst many other appropriate things.

Ms Robertson submits that the magistrate should have been more cautious after what had been said and upon receipt of the further evidence attached to an affidavit which demonstrates the mental health issues that I have mentioned. The well-known Verdins factors are agitated in this particular case. His mental health diagnoses both impact his culpability and his ability to bear time in custody compared to someone without those mental health diagnoses. We do not know whether he is receiving treatment for his schizophrenia and other problems in custody at the moment; one would hope that he is.

In any case, in all the circumstances it is clear that, on all of the material before the court now, the sentence was both manifestly excessive and contaminated by the legal errors referred to by Ms Robertson. I should say that Ms Hayes, for the respondent, helpfully does not resist any of these conclusions.

So the orders will be that the appeal is allowed, and the appellant then falls to be re-sentenced by this court. Considering the circumstances of the offending, which are not the most serious end of the scale, and the fact that he has now served precisely six months' imprisonment, and the further factor that any further sentence of imprisonment would see him having to serve his previous sentence for which he was on parole at the time, the conclusion is that he should be offered the opportunity of probation.

So I take into account all of the circumstances of the offending and the six months' imprisonment that has already been served by QBQ, and he is re-sentenced to two years' probation with the normal requirements, together with the additional requirements described in section 94 of the Penalties and Sentences Act, that he submit to medical, psychiatric and psychological treatment, and comply during the period of the order with conditions necessary to cause him to behave in a way acceptable to the community to stop him from again committing these offences, and to stop him from committing other offences.

The purpose and effect of the order is to continue QBQ's supervision and rehabilitation in the community rather than in prison. If he contravenes the requirements, it is an offence to do so; and as well as that, he can be re-sentenced for these offences and the order can be amended or revoked on an application by him, Corrective Services or the DPP if it is considered to be no longer suitable. QBQ is not here, so I have not been able to explain the requirements to him personally, but in a moment, I will ask Ms Robertson to confirm that she is able to arrange for that to happen.

HIS HONOUR: Okay. So there will be a probation order in those terms imposed for all of the offences the subject of the appeal. In reaching that conclusion, I have of course taken into account the six months' imprisonment he has served; but that is not the subject of any declaration, because there is no custodial component of the re-sentencing order that I have made. Convictions are, however, recorded. Is this right, Ms Robertson: Corrective Services probably should get some or all of your affidavit material ‑ ‑ ‑

HIS HONOUR: ‑ ‑ ‑ that sets out - because there is psychological report and an OT report, I think, isn't there?

HIS HONOUR: Okay. Between all of them and the adult guardian, one would hope things could be better for QBQ. So I direct that a copy of Ms Robertson's affidavit, which is court file document number 4, be forwarded to Community Corrections with the intention that it assists in the supervision of QBQ. Okay. Is there anything else for that matter?

HIS HONOUR: Okay. Thanks for your help with that. I will just stand down until I am told that the people are here for Mr Hunt.