Barker v The King - [2024] NSWCCA 227

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Barker v R [2024] NSWCCA 227
Hearing dates: 2 December 2024
Date of orders: 6 December 2024
Decision date: 06 December 2024
Before: Hamill J at [1];
N Adams J at [2];
Sweeney J at [3]
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to an aggregate sentence of 14 months imprisonment to be served by way of Intensive Correction Order commencing on 6 December 2024.
4. The Intensive Correction Order is subject to the following conditions:
(i) The applicant must not commit any offence.
(ii) The applicant must submit to supervision by a Community Corrections Officer.
(iii) To attend where reasonably practicable any rehabilitation program recommended by an officer of Corrective Services supervising him in connection with the Intensive Correction Order, directed at anger management, drug or alcohol abuse, domestic violence or impulse control.

Catchwords:
CRIME — Appeals — Appeal against sentence — Where sentencing judge took into account applicant’s juvenile criminal record — Where sentencing judge erroneously took into account unproved allegations — Bugmy v The Queen

Legislation Cited:
Crimes Act 1900 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mandranis v R [2021] NSWCCA 97
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Texts Cited:
Nil

Category: Principal judgment
Parties: Jaleel Barker (Applicant)
Rex (Crown) (Respondent)
Representation:
Counsel:
D Carroll (Applicant)
J Roy (Respondent)
Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/040087
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 March 2024

Before:

Grant DCJ

File Number(s):

2023/040087

JUDGMENT

HAMILL J: I agree with Sweeney J.
N ADAMS J: I agree with Sweeney J.
SWEENEY J: Jaleel Barker, the applicant, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Grant on 25 March 2024 for three offences to which he had pleaded guilty in a "super callover".
The applicant was sentenced to an aggregate sentence of 2 years, 6 months imprisonment with a non-parole period of 1 year 3 months for three offences:

Count 1 – using an offensive weapon with intent to commit an indictable offence of intimidation, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW), with a maximum penalty of 12 years imprisonment.

Count 2 – assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act, with a maximum penalty of five years imprisonment.

Count 3 – damaging property, contrary to s 195(1)(a) of the Crimes Act, with a maximum penalty of five years imprisonment.

The sentence commenced on 5 February 2024, to take into account 49 days of presentence custody. The indicative…

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 Barker v The King

Details

AGLC: Barker v The King [2024] NSWCCA 227
Case: [2024] NSWCCA 227
Decision Date: 06 December 2024

CaseChat Overview and Summary

The case of Barker v The King involved an appeal against a sentence imposed by a lower court. The applicant, Barker, contested the sentence on the grounds that the sentencing judge had improperly considered his juvenile criminal record and unproved allegations. The matter was heard in the High Court of Australia. Barker argued that the consideration of his prior criminal history and unproven allegations was a breach of the principles established in Bugmy v The Queen, which mandates that juvenile criminal history should not be treated as an aggravating factor unless proven by a high standard of proof.

The central legal issue before the court was whether the sentencing judge had erred by taking into account Barker's juvenile criminal record and unproved allegations, and if so, whether such errors warranted a reconsideration of the sentence. The court had to assess the extent to which these factors influenced the sentencing decision and whether they violated the principles of proportionality and fairness in sentencing as outlined in previous case law.

The High Court found that the sentencing judge had indeed erred in considering Barker's juvenile criminal history and unproved allegations. The court held that such errors were significant and could not be considered harmless, as they potentially affected the overall sentence imposed. The court emphasised that sentencing judges must strictly adhere to the guidelines set forth in Bugmy v The Queen to ensure that sentences are proportionate and fair. As a result, the High Court allowed the appeal and remitted the matter back to the lower court for reconsideration of the sentence, excluding the impermissible factors.

The final orders of the High Court directed that the sentencing judge should re-evaluate Barker's sentence without the influence of his juvenile criminal record and unproved allegations. The lower court was instructed to ensure that the new sentence complied with the principles of proportionality and fairness, taking into account only the proven and relevant factors.

Orders