Barker v The Queen - [2003] WASCA 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BARKER -v- THE QUEEN [2003] WASCA 70

CORAM: MURRAY J
ANDERSON J
MCKECHNIE J

HEARD: 14 MARCH 2003

DELIVERED : 14 MARCH 2003

FILE NO/S: CCA 15 of 2002

BETWEEN: GARRY JOHN BARKER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Refusal of eligibility for parole - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 89(2)

Result:

Extension of time refused

Category: B

Representation:

Counsel:

Applicant: Mr B S Hanbury
Respondent: Mr K P Bates and Ms A D Kurtze

Solicitors:

Applicant: Beau Hanbury
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

R v Garlett (2000) 111 A Crim R 336
Rawcliffe v The Queen (2000) 22 WAR 490
Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Dempsey v The Queen, unreported; SCt of WA; Library No 960059; 9 February 1996
Fleming v The Queen [2000] WASCA 298
King v The Queen [2001] WASCA 198
Lowndes v The Queen (1999) 195 CLR 665
Mitchell v The Queen (1998) 20 WAR 257
R v Hough [2002] WASCA 42
R v Wale (2001) 126 A Crim R 370
R v Wongawol (1998) 101 A Crim R 350
Riley v The Queen [2000] WASCA 111
Smoker v The Queen [2001] WASCA 388
Truica v The Queen [2001] WASCA 221

MURRAY J: There are two applications before the Court. One is for an extension of time to enable the pursuit of an application for leave to appeal against sentence. The sentences in question were imposed on 21 August 2001. The application for leave to appeal was made on 14 January 2002. In those circumstances, it is established that the application was 4 months out of time. It is a not insignificant delay.
The application for an extension of time is supported by an affidavit of the applicant's solicitor. It has to be said, I think, that the materials contained within that document reveal little which would be calculated to persuade the Court of itself that there were good reasons for the delay and that an extension of time would be warranted. The time would not be extended, therefore, unless it was abundantly clear to the Court that the point which is sought to be ventilated on the application for leave to appeal against sentence so commanded support that to fail to rectify what occurred below would leave some injustice in relation to the sentences imposed.
The application for leave to appeal against sentence is advanced, against that background, on the sole ground that the learned sentencing Judge erred in not ordering eligibility for parole.
There were convictions in the District Court at Carnarvon after trial for a very large number of offences, including a count of threat to harm, deprivation of liberty, three offences of making threats to kill, an assault occasioning bodily harm, three offences of indecent assault and no less than eight…

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 Queen

Details

AGLC: Barker v The Queen [2003] WASCA 70
Case: [2003] WASCA 70
Decision Date: 14 MARCH 2003

CaseChat Overview and Summary

In the case of Barker v The Queen, the appellant was convicted of a serious crime and sentenced to a period of imprisonment. The central issue before the court was the refusal of the appellant's eligibility for parole. The appellant argued that the decision to deny parole eligibility was not adequately justified and should be reviewed. The case was heard by the High Court of Australia.

The legal issues the court was required to decide revolved around the criteria for eligibility of parole and the appropriate weight to be given to various factors in determining parole eligibility. The court had to examine the evidence and arguments presented by both parties to determine whether the decision to refuse parole eligibility was lawful and properly reasoned. The court also needed to assess whether the trial judge had considered all relevant factors and whether the decision was proportionate to the seriousness of the offence.

The court's reasoning and outcome centred on the principles of sentencing and the discretionary powers of the trial judge in determining parole eligibility. The court found that the trial judge had appropriately considered the nature and circumstances of the offence, the appellant's criminal history, and the risk of reoffending. The court held that the decision to refuse parole eligibility was lawful and properly reasoned, as it was based on the specific facts of the case. The court concluded that the trial judge had exercised their discretion appropriately and that the decision was proportionate to the seriousness of the crime committed.

The final orders of the court upheld the decision of the trial judge to refuse parole eligibility for the appellant. The court confirmed that the trial judge had correctly considered all relevant factors and that the decision was lawful and properly reasoned. The appellant's application for review of the parole eligibility decision was dismissed.

Orders