Barlow v The Queen - [2012] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0270

DARREN MICHAEL BARLOW
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ and HARPER JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 February 2012
DATE OF JUDGMENT:	29 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 37
JUDGMENT APPEALED FROM:	DPP v Barlow (Unreported, County Court of Victoria, Judge Dean, 3 October 2011)

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CRIMINAL LAW – Appeal against sentence – Appellant punched victim in face fracturing eye socket and cheek bone – Appellant kicked feet of second victim from under him, causing victim to fall – Appellant pleaded guilty to one count of recklessly causing serious injury with respect to first victim and one count of assault with respect to second victim – Appellant sentenced to total effective sentence of 2 years and 3 months with a non-parole period of 12 months – Whether sentence of 6 months’ imprisonment with 3 months cumulation in respect of assault count manifestly excessive – Whether sentencing judge erred in failing to consider remorse at time of sentence rather than during period immediately following commission of offence – Appeal allowed – Appellant resentenced to 2 years’ imprisonment with a non-parole period of 9 months – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Haines & Polites
For the Respondent	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

The appellant pleaded guilty in the County Court at Melbourne to one charge of recklessly causing serious injury and one charge of common assault. He was sentenced as follows:

Count Maximum Penalty Sentence Cumulation

1. Recklessly causing serious injury 15 years 2 years Base

2. Assault 5 years 6 months 3 months

Total effective sentence:	2 years and 3 months
Non-parole period:	12 months
6AAA declaration:	TES of 3 years with NPP of 18 months

The facts may be briefly stated. On 23 December 2009, the appellant, then aged 25, attended the Mordialloc Sporting Club. The two victims of his offending had been drinking at that location for some time. One of them, Tristan Rowe, had been ejected from the premises because he was intoxicated and had been racially abusing a member of staff.

Mr Rowe and the other victim, Simon Lodge, were standing on the footpath outside the premises when they made some comment about the appellant’s girlfriend which he regarded as insulting.

It is unclear to us as to what was said, indeed the same prevailed before his Honour, the sentencing judge.

The appellant was unable to recall what was said and there was no other evidence, for example, from the appellant's girlfriend, if indeed she had heard what was said.

In any event, the appellant then attacked Mr Rowe, punching him to the face with his right hand causing him to fall to the ground and lose consciousness. The attack was a savage attack.

The appellant then turned to Mr Lodge and asked him if he ‘wanted a go’. Mr Lodge adopted…

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 Barlow v The Queen

Details

AGLC: Barlow v The Queen [2012] VSCA 37
Case: [2012] VSCA 37
Decision Date: 29 February 2012

CaseChat Overview and Summary

The appellant, Barlow, appealed against his sentence in the High Court of Australia. Barlow had pleaded guilty to charges stemming from an altercation where he punched one victim, fracturing their eye socket and cheek bone, and kicked another victim, causing them to fall. Barlow was sentenced to a total effective sentence of 2 years and 3 months with a non-parole period of 12 months. The primary legal issues before the court were whether the sentence imposed for the assault charge was manifestly excessive and whether the sentencing judge had erred by considering Barlow's remorse at a time other than when the sentence was imposed.

The court found that the sentence for the assault charge was manifestly excessive, as it was disproportionate to the seriousness of the offence. The court held that the sentencing judge should have considered Barlow's remorse at the time of sentencing, rather than during the period immediately following the commission of the offence. This consideration was critical in determining an appropriate sentence. The court also noted that the sentencing judge had failed to adequately consider the totality principle, which requires that the aggregate sentence should not be greater than the sum of the appropriate sentences for each offence.

As a result of the appeal, Barlow was resentenced to 2 years' imprisonment with a non-parole period of 9 months. The court determined that no point of principle arose from the appeal, and thus, no further action was required beyond the resentencing. The final orders reflected the court's decision to reduce the severity of the sentence and adjust the non-parole period accordingly.

Orders