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

1. HAMILL J: I agree with Sweeney J.

2. N ADAMS J: I agree with Sweeney J.

3. 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".

4. 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 sentences, after a 25% discount of each, were 2 years imprisonment for count 1, 18 months for count 2 and 6 months for count 3.

Grounds of appeal

5. The applicant relies on the following grounds of appeal:

1. The learned sentencing Judge erroneously took into account unproved matters in a way that was adverse to the interest of the applicant.

2. The learned sentencing Judge erred in his consideration of matters dealt with in the Children’s Court.

3. The sentencing proceeding miscarried as a consequence of admitting into evidence the applicant’s Children’s Court criminal record.

4. The learned sentencing Judge failed to properly apply the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571.

6. The Crown accepted that error had been established in respect of grounds 1-3, but submitted that no lesser sentence is warranted.

Grounds 1-3

7. The three offences involved acts of domestic violence against the applicant’s former partner. I will refer to the agreed facts below.

8. In support of Ground 1, the applicant asserted, and the Crown agreed, that Judge Grant erroneously took into account unproved matters adversely to the applicant, contrary to The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

9. The Crown had tendered in the sentence proceedings police facts sheets containing allegations that the applicant had breached his bail for the offences for sentence. One such breach was alleged to have involved the applicant assaulting the same person.

10. In the brief sentencing hearing, his Honour responded to some submissions by then counsel for the applicant by saying that the applicant had "bashed his girlfriend twice", "punched her in the head on two occasions".

11. His Honour was not told that the applicant had been found not guilty, after a hearing, of charges relating to the second allegation that he assaulted his partner. However, counsel had submitted that his Honour should disregard the unproven allegations of criminal conduct in the facts sheets.

12. In the remarks on sentence, his Honour referred to the applicant’s "repeated breaches of bail", which included "reoffending". On the basis of those breaches of bail, which his Honour found demonstrated "a consistent and contemptuous disregard for court imposed orders", his Honour found that the applicant's prospects of rehabilitation were guarded and his prospects of reoffending affected community safety, so that his Honour did not accede to the submission to sentence the applicant by way of an Intensive Correction Order.

13. I accept the Crown's concession. Error has been established with respect to ground 1.

14. The Crown submitted that if the Court accepted error was established in respect of ground 1, it was unnecessary for the court to determine grounds 2 and 3, but accepted that error had been demonstrated in respect of those grounds.

15. Grounds 2 and 3 concerned the sentencing judge taking into account the applicant's Children's Court record, contrary to s 15(1) of the Children (Criminal Proceedings) Act 1987 (NSW).

16. The applicant had three matters in his Children's Court record, for which convictions were not recorded, all well before the two year period before these proceedings were commenced, as specified in s 15. Counsel for the applicant submitted to Judge Grant that his Honour must disregard the Children's Court offences.

17. Section 15(1) provides:

(1)  The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if—

(a)  a conviction was not recorded against the person in respect of the firstmentioned offence, and

(b)  the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence.

18. In the remarks on sentence his Honour stated that he did not take the Children's Court appearances into account because the applicant was not placed on a control order in relation to them. Shortly thereafter, his Honour stated that he had difficulty understanding how the applicant had told the author of the Sentencing Assessment Report that he had not used violence in relationships in the past, when he was "dealt with as a juvenile for common assault and domestic violence".

19. I accept the Crown's concession. Error has been demonstrated in respect of grounds 2 and 3.

20. In consequence of those errors, the court must resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The parties’ submissions in respect of ground 4 will be considered in resentencing the applicant.

Agreed facts of the offending

21. His Honour summarised the agreed facts. No issue is taken with his Honour’s summary of the facts which was as follows.

“The victim and the offender had been in an intimate relationship. After a period of couch surfing and living in motels, the relationship ended. The victim fell pregnant to the offender in late 2022, and they re-engaged their relationship. They lived together for a few months, but the relationship was dysfunctional, and the victim moved out again. In January 2023, the victim ended the relationship with the offender. The offender was using drugs and alcohol during the relationship and was violent to the victim on occasions.

On 4 February 2023, the victim was out with her friends at a pub in Albury. The offender happened to be at the same pub. At some stage, he walked past the victim, smirked at her and called her pathetic.

Towards the end of the evening, the victim left the pub and asked her friend to drop her off at the offender's unit so she could collect some of her property. She had stopped living there after their relationship ended. The offender was not home at the time the victim arrived, and she let herself in.

About 15 minutes later, the offender arrived home, saw the victim in the lounge room and said “What are [you] doing? Where's my baby?” The victim told the offender that the baby was fine.

Count 1: Use offensive weapon with intent to commit indictable offence (intimidation)

The offender went into the kitchen and picked up a knife with a silver blade and a black handle. He went back into the lounge room and approached the victim whilst holding the knife. He was right in the victim's face, holding the knife in his right hand next to his head, pointed at the victim. The victim said “I just want to grab my stuff and leave”, to which the offender replied, “If you leave, I will kill you.”

Count 2: Assault occasioning actual bodily harm

The offender dropped the knife and grabbed the victim by the hair and pulled her downwards. The offender punched the victim twice, once to the back of the head and once to the left side of the face and threw her to the ground. The punches caused pain, redness and swelling to the victim's face and pain, redness and a 3 x 3 cm bruise to the rear of her head.

Count 3: Intentionally damage property

The complainant took her mobile phone, an iPhone 13 and fled to the toilet to lock the door. The offender kicked the door in, damaging the lock. He grabbed the mobile phone from the victim and walked into the lounge room, where he smashed the mobile telephone on the floor, causing it to be inoperable. The offender went to the bed in his bedroom, and the victim slept in a chair in the front room. The next morning, the victim woke up the offender and asked him to arrange for her mother to pick her up. He did so and apologised to the victim, saying “I won't drink again. I will get a job.”"

22. His Honour assessed the objective seriousness of the offence in count 1 as below the mid range, the offence in count 2 as "at the mid range" and the offence in count 3 as "at the lower range". No issue is taken with those assessments by his Honour.

Subjective circumstances

23. The subjective material before Judge Grant was supplemented in this Court by affidavits to be relied on in the resentencing of the applicant. The applicant relied on an affidavit by him, and one from his solicitor, which annexed Corrective Services and Justice Health records and a report of psychologist Dr Mamta Sidhu, dated 18 November 2024. It was only relied on as providing an up to date assessment of the applicant for resentencing purposes. The Crown relied on an affidavit which annexed documents in relation to the applicant's disciplinary breaches in custody. From all of that material the following can be discerned.

24. The applicant was 21 years old at the time of the offences in February 2023, 22 when he was sentenced, and is now 23.

25. He has no prior criminal record.

26. He was raised by his mother in Albury. He had never known his parents to be together and has had little contact with his father, who lives elsewhere. He witnessed domestic violence between his mother and her partners when he was young, and experienced violence from his mother.

27. His mother abused alcohol. The family moved around a lot, between Sydney and Albury. The applicant estimated he attended 15 primary schools. Sometimes the family did not have food to eat.

28. The applicant started using drugs at about 11 or 12, initially cannabis, then inhaling aerosols. He began drinking in year 7, drinking to blackout. He first smoked "ice" in year 8, and in year 9 did so almost every day. (A record from a local health service recorded that the applicant consulted them about amphetamine abuse in May 2013, when he would have been 12 years old). When he was about 15, his mother was addicted to ice and not looking after her children. Her partner was using heroin.

29. The applicant went to live with an uncle. The uncle sexually assaulted him, and has been convicted of such. After the sexual assaults the applicant left his uncle's house and was effectively homeless, living in refuges, couch surfing when he could, sleeping on the street sometimes. He began using drugs heavily. He described himself as "fully addicted to ice" and if he had no money for ice, he sniffed petrol.

30. In 2021, when he was 20, and sleeping in a laneway or under a bridge, he contacted the local Aboriginal health service, who helped him to obtain drug and alcohol counselling and accommodation. He said he still struggled with addiction while they were assisting him.

31. In about April 2022 he found out his partner was pregnant. He stopped using “ice” but kept drinking, he said to numb panic attacks and anxiety.

32. He said he started medication in November or December 2023. (The health record shows he was prescribed an antidepressant in November 2023). He said he had slowed down his drinking since he had been on medication which helped his anxiety.

33. He had obtained his driver’s licence with the help of an Indigenous controlled charity, On-Country Pathways.

34. The applicant told the author of the Sentencing Assessment Report, dated March 2024 and prepared for the District Court, that he did not remember much about the offending because he was extremely intoxicated. He said because alcohol increased his violent behaviour he limited himself to 8 drinks per sitting. He blamed the victim for triggering him, causing him to drink excessively. He said since commencing mental health medication he no longer drank to self medicate but only because he wants to.

35. He told the report writer he felt bad about his actions and said there were no excuses for using violence against the victim, but he continued to place blame on her for the offence occurring, and said "She is a slut anyway and I don't care that I hit her".

36. In his recent affidavit Mr Barker said he has done some work in custody, attended some courses, and participated in some positive activities, though he has also been withdrawn from some.

37. In June he had Covid and was put in isolation. He said he has stayed on medication for anxiety and depression.

38. He said when he is released from custody he wants to stay in Albury and have a good relationship with his sons, not use drugs and attend to his mental health.

39. He has had some disciplinary breaches in custody. In July he failed a drug test, testing positive for buprenorphine. He said he took it when he was offered it, but has not otherwise failed a drug test. In September, in a phone call, he asked his brother to connect the call with Ms Murray, an improper use of the phone. In September 2024 he smoked a cigarette and was cautioned and reprimanded.

40. Dr Mamta Sidhu reported that the applicant told her he limits his drinking to 6 beers. Dr Sidhu said "It is unclear if he has the skills… to comply with his own limits". The applicant told Dr Sidhu he recognised the risk of relapse to drug use as he has not completed treatment. He recognised he could benefit from "professional and targeted support to better understand and manage his drug use". Dr Sidhu said the applicant "will require support to build his recovery confidence and motivation to engage in services in a meaningful manner".

41. Dr Sidhu said the applicant is currently taking and compliant with anti-depressant medication, with good effect. She said the applicant would likely meet the criteria for a depressive disorder.

42. He has two sons aged two years and four months with Ms Murray. He missed the birth of his second son because he was in custody. He told Dr Sidhu he enjoys his role as a father and regards his children as a positive factor for his stability. He described Ms Murray as a stable influence in his life, who does not use substances or engage in anti-social behaviours. However, he also described the relationship as “toxic”, because his partner wants him to be "boring and just stay in". Dr Sidhu said the applicant "did not appear to reflect on his own behaviour in the relationship".

43. Dr Sidhu said the applicant is poorly motivated to engage in treatment to reduce his risk of reoffending. She said the applicant would benefit from treatment to manage his drug and alcohol use, from psychological support for his trauma from the sexual abuse he experienced, and from support to engage in meaningful employment. Dr Sidhu said the applicant "expresses worrying attitudes in relation to domestic violence" including justification of his behaviour, and needs intervention to modify his attitudes and understanding of relationships. She said the applicant does not appear to recognise that his offences were serious and violent, and his insight fluctuates. She said without treatment his risk of reoffending is elevated and he would benefit from a program for his violent behaviour and attitudes.

44. Dr Sidhu said the applicant is "still young, his personality is still being formed and is malleable to change". Therefore "there is an opportunity to provide effective intervention to him [now] to reduce further escalation in his offending behaviour".

45. Counsel for the applicant accepted that the applicant demonstrated mixed responses to remorse in his interview with Dr Sidhu, with limited insight and some deflection of responsibility. She accepted the applicant needs supervision and submitted he has not yet received rehabilitative treatment for his issues.

46. Counsel advised the court that when the applicant is released from custody he will not be living with Ms Murray, there is still an AVO in place to protect her, and the applicant's brother will assist him with having contact with his children. The AVO made by Judge Grant on 25 March 2024 is extant until 3 May 2027.

47. Counsel submitted that the nine months the applicant has spent in custody to date has sufficiently dealt with specific and general deterrence, and the Court could deal with the applicant's offences by a Community Corrections Order. Counsel submitted that all of the matters could be dealt with in the Local Court, although accepted that the charges were the result of plea negotiations. Counsel submitted that in the alternative, the Court could consider an Intensive Correction Order.

48. Counsel accepted that in resentencing the applicant, this Court must apply the discounts for guilty pleas specified in s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW).

49. The Crown maintained that a full time custodial sentence is appropriate, but acknowledged the applicant and community would benefit from his being intensely supervised.

Resentence

50. The offences, as assessed, were serious, though not the most serious offences of domestic violence. Domestic violence must be denounced, especially as the applicant maintains troubling attitudes towards his partner and his conduct towards her, still justifying his behaviour and blaming her for his offending.

51. The applicant is a young offender with no prior record, which entitles him to some leniency. His upbringing clearly involved abuse, neglect and trauma, and it appears he lacked guidance to develop appropriate attitudes. The circumstances of his upbringing reduce to some extent his moral culpability for his offending, in accordance with the principles in Bugmy vThe Queen (2013) 249 CLR 571; [2013] HCA 37. Given his expressed attitudes about violence to his partner I would not reduce the weight to be given to specific deterrence, and given the frequency of domestic violence offending, including among young men in the community, I would not reduce the weight to be given to general deterrence. Clearly, the applicant needs intensive supervision and treatment to enable his rehabilitation, in terms of respecting his partner, reducing his risk of violent reoffending, and managing his depression and anxiety and his drug and alcohol use. It is apparent from his behaviour in custody, both positive and negative, and Dr Sidhu's report, that the applicant’s rehabilitation is still a work in progress.

50. The Community Corrections Order submitted on behalf of the applicant would be inadequate to reflect the seriousness of his conduct.

51. The discounts for the applicant’s pleas of guilty at the super callover, as mandated by section 25D of the Crimes (Sentencing Procedure) Act, will be 10% for counts 1 and 3, and 25% for count 2.

52. The total sentence must reflect the total conduct, but also that the offences occurred in a short space of time, one after the other. There is only a modest degree of notional accumulation of the indicative sentences in the aggregate sentence I propose.

53. Applying the discounts for the pleas of guilty I indicate that the following sentences would have been imposed for each offence if the Court was not proceeding by way of an aggregate sentence: for count 1, 18 months imprisonment, for count 2, 15 months imprisonment, for count 3, 6 months imprisonment. Subject to what follows, the aggregate sentence would be 2 years imprisonment.

54. I consider that community safety will be better protected and the applicant's risk of reoffending is more likely to be addressed if he serves his sentence by way of an Intensive Correction Order, with appropriate supervision for his rehabilitation needs: s 66 Crimes (Sentencing Procedure) Act. In making that decision I have also taken into account the purposes of sentencing in s 3A of the Act. In addition, I have considered s 4B(1) of the Act and am satisfied that the victim and her children will be adequately protected by the conditions of the Intensive Correction Order and the apprehended violence order already in force. The sentence must take into account the 10 months (including presentence custody) which the applicant has spent in custody since the commencement of his sentence on 5 February 2024. Because I consider that an ICO is appropriate and because an ICO must commence on the date on which it is made, pursuant to s 71 of the Crimes (Sentencing Procedure) Act I will take into account the period of custody already served by the applicant by deducting it from the two year total sentence. Otherwise unfairness would ensue: Mandranis v R [2021] NSWCCA 97 per Simpson AJA, Garling, J and N Adams J agreeing. The sentence will therefore be 14 months imprisonment.

55. Therefore I propose the following orders:

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:

1. The applicant must not commit any offence.

2. The applicant must submit to supervision by a Community Corrections Officer.

3. 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.

**********

Decision last updated: 06 December 2024