Barlow v R

Case [2008] NSWCCA 96


Reported Decision: 184 A Crim R 187

New South Wales


Court of Criminal Appeal

CITATION: BARLOW v REGINA [2008] NSWCCA 96
HEARING DATE(S): Wednesday 21 November 2007
 
JUDGMENT DATE: 

6 May 2008
JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 8; Price J at 107
DECISION: Leave to appeal granted. Appeal dismissed. These orders pursuant to Rule 50B(3) are to be entered by the Registrar by signing and sealing a minute of the proposed orders on and not before 15 May 2008.
CATCHWORDS: CRIMINAL LAW – detaining a person with intent to obtain an advantage - SENTENCING – appeal against severity of sentence – applicant’s offence motivated by revenge – alleged earlier sexual assault by victim upon applicant – assessment of objective seriousness of the offence – availability of a suspended sentence as an alternative – sentence not manifestly excessive
LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
CATEGORY: Principal judgment
CASES CITED: Dinsdale v R (2000) 202 CLR 321
Kutchera v R [2007] NSWCCA 121
Markarian v The Queen (2005) 228 CRL 357
R v AEM Snr & Ors [2002] NSWCCA 58
R v Blackman & Walters [2001] NSWCCA 121
R v Causby [1984] Tas R 54
R v Collett (CCA, unreported 1 June 1979)
R v Davis [2004] NSWCCA 310
R v Foster [2001] NSWCCA 215
R v GDP (1991) 53 A Crim R 122
R v JCE [2000] NSWCCA 498
R v Mitchell; R v Gallagher [2007] NSWCCA 296
R v Newell [2004] NSWCCA 183
R v Percy [1975] Tas SR 62
R v Pham (1991) 55 A Crim R 128
R v Swan [2006] NSWCCA 47
R v Way (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Wood v Samuels [1974] 8 SASR 465
PARTIES: Melanie BARLOW
v REGINA
FILE NUMBER(S): CCA 2007/2834
COUNSEL: Crown: Ms N Adams
App: Ms H Cox
SOLICITORS: Crown: S Kavanagh
App: Aboriginal Legal Service
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/21/3160
LOWER COURT JUDICIAL OFFICER: Bell DCJ
LOWER COURT DATE OF DECISION: 6 March 2007




                          2007/2834

                          McCLELLAN CJ at CL
                          HALL J
                          PRICE J

                          TUESDAY 6 MAY 2008
MELANIE BARLOW v REGINA

Judgment


1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Hall J. I agree with his Honour’s reasons.

2 The offence committed by the applicant was serious. Motivated by the wrong she believed was previously done to her and accompanied by a male friend, she took the law into her own hands. The victim was punched, dragged, hit with kitchen tongs and threatened with death and generally put in terror for at least two hours. Whatever be the crime committed by the victim, a civilised society cannot condone such conduct. The rule of law requires that offenders be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the courts.

3 As Hall J has recognised the…

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Barlow v R [2008] NSWCCA 96
Case
[2008] NSWCCA 96
Decision Date

CaseChat Overview and Summary

In this case, Barlow appealed against the severity of his sentence for detaining a person with intent to obtain an advantage. The respondent, the Crown, prosecuted Barlow for his actions motivated by revenge, which Barlow claimed was due to an alleged earlier sexual assault by the victim upon him. The Court of Appeal was tasked with assessing the objective seriousness of the offence, determining the availability of a suspended sentence, and evaluating whether the sentence imposed was manifestly excessive. The court found that the sentence was not manifestly excessive, and therefore dismissed the appeal.

The legal issues that the Court of Appeal needed to address included the objective seriousness of the offence committed by Barlow, the consideration of whether a suspended sentence was an appropriate alternative, and whether the sentence imposed was manifestly excessive. The court was also required to consider the motive behind Barlow's actions, specifically his claim of revenge due to an alleged earlier sexual assault by the victim. These issues were pivotal in determining the appropriate sentence and whether it was necessary to impose a custodial term.

In examining these issues, the Court of Appeal held that the objective seriousness of the offence warranted a custodial sentence. While the court acknowledged the motive of revenge, it found that this did not negate the seriousness of the offence. The court further considered the availability of a suspended sentence but determined that it was not an appropriate alternative in this case. Ultimately, the Court of Appeal concluded that the sentence imposed was not manifestly excessive, taking into account all relevant factors, including the objective seriousness of the offence and the mitigating circumstances. Consequently, the appeal was dismissed.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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