Barber v The Queen - [2017] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Barber v R [2017] NSWCCA 111
Hearing dates: 31 March 2017
Date of orders: 26 May 2017
Decision date: 26 May 2017
Before: Beazley P at [1]
Walton J at [2]
R A Hulme J at [60]
Decision:
Leave to appeal against sentence is refused.

Catchwords: CRIMINAL LAW – sentence appeal – offence of s 154(1)(a) of the Crimes Act 1900 (NSW) – offence of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) – offence of s 112(2) of the Crimes Act 1900 (NSW) – whether the sentencing judge erred in failing to take into account the applicant’s mental condition in assessing the moral culpability of his offending or in moderating the weight to be given in general deterrence – principles relevant to leave to appeal – substance of ground not raised before the sentencing judge by applicant – lack of merit as to ground of appeal – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug (Misuse and Trafficking) Act 1985 (NSW)
Inclosed Lands Protection Act 1901 (NSW)
Road Transport Act 2013 (NSW)
Cases Cited: Aslan v R [2014] NSWCCA 114
Bailey v Director of Public Prosecutions (1988) 78 ALR 116; [1988] HCA 19
Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
House v King (1936) 55 CLR 499; [1936] HCA 40
King v R [2015] NSWCCA 99
Laspina v R [2016] NSWCCA 181
R v Engert (1995) 84 A Crim R 67
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: John Barber (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Applicant)
S Hughes (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/359741
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Criminal

Date of Decision:

6 May 2016

Before:

Mahony SC DCJ

File Number(s):

2015/359741

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Walton J. I agree with his Honour’s reasons and proposed order.
WALTON J: This matter concerns an application by Mr John Barber (“the applicant”) for leave to appeal, filed on 1 March 2017, against the sentence imposed on him on 6 May 2016 by Mahony SC DCJ (“the sentencing judge”) in the Sydney District Court. The applicant pleaded guilty to the following offences:

Take and drive conveyance without consent of the owner of a conveyance pursuant to s 154A(1)(a) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 5 years imprisonment.

Stalk/intimidate with intention of causing a person to fear physical harm pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). This offence carries…

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 Barber v The Queen

Details

AGLC: Barber v The Queen [2017] NSWCCA 111
Case: [2017] NSWCCA 111
Decision Date: 26 May 2017

CaseChat Overview and Summary

The case of Barber v The Queen involved the appellant who had been convicted of multiple criminal offences, including assaulting his partner, and sentenced by the District Court of New South Wales. The appellant sought leave to appeal against the severity of his sentence, arguing that the sentencing judge failed to adequately consider his mental condition and its impact on his moral culpability, as well as in moderating the weight given to general deterrence. The central issue before the court was whether the sentencing judge erred in not taking into account the appellant’s mental condition in assessing his moral culpability or in moderating the weight of general deterrence.

The court examined the principles relevant to leave to appeal, including the requirement that the grounds of appeal must have been raised before the sentencing judge. The court found that the substance of the grounds for appeal, particularly concerning the appellant’s mental condition, had not been sufficiently raised during the sentencing proceedings. Furthermore, the court assessed the merits of the appeal and concluded that the grounds lacked sufficient merit to warrant an appeal. The court determined that the sentencing judge had appropriately considered the relevant factors, including the appellant's mental condition, in determining the appropriate sentence.

In light of the above, the court refused the appellant's application for leave to appeal. The court emphasised the importance of properly raising issues before the sentencing court and the need for grounds of appeal to demonstrate a substantial miscarriage of justice. The court found that the appeal did not meet these criteria, and thus, the application for leave to appeal was dismissed.

Orders