Legal Research
Cases
Barnes v R

Barnes v R

Case [2022] NSWCCA 140 24 June 2022

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Barnes v R [2022] NSWCCA 140
Hearing dates: 4 April 2022
Date of orders: 24 June 2022
Decision date: 24 June 2022
Before: Gleeson JA at [1];
Hamill J at [2];
Ierace J at [80]
Decision:
(1) To the extent necessary, extend time in which to appeal.
(2) Application for leave to appeal granted.
(3) Appeal against sentence allowed.
(4) Quash the sentences imposed in the District Court on 6 March 2019 and in lieu thereof:
(i) for the offence of common assault, the applicant is sentenced to a fixed term of imprisonment of 6 months commencing 14 April 2018 and expiring 13 October 2018.
(ii) for the offence of strangling, the applicant is sentenced to a non-parole period of 4 years commencing 14 June 2018 and expiring 13 June 2022 with a balance of term of 2 years commencing 14 June 2022 and expiring 13 June 2024.
(5) The applicant became eligible for release to parole at the expiration of his non-parole period on 13 June 2022, noting that the non-parole period has expired.
(6) Recommend that the NSW State Parole Authority give priority to consideration of the applicant’s eligibility for release to parole.

Catchwords:
CRIMINAL APPEALS – fresh evidence on sentence appeal – when admissible – evidence that applicant involved in violence incidents in gaol – evidence not brought to the attention of the sentencing Judge – applicant a schizophrenic – where applicant refused to authorise his lawyers to access Justice Health records – evidence that violent incidents typical of victimisation of schizophrenic inmates – where sentencing Judge found experience in custody not more onerous by reason of mental illness
CRIMINAL LAW – sentence appeal – re-sentencing – serious stalking and strangling offence – chilling facts – relevant considerations – whether less severe sentence warranted

Legislation Cited:
Crimes Act 1900 (NSW), ss 37(1), 61
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Agnew (a pseudonym) v R [2018] NSWCCA 128
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Cabezuela v R [2020] NSWCCA 107
Cornwell v R [2015] NSWCCA 269
Hoang v R [2020] NSWCCA 324
Kaveh v R [2017] NSWCCA 52
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Middleton v Director of Public Prosecutions [2019] ACTCA 24
Middleton v The Queen [2020] ACTCA 6
R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
R v Cartwright (1989) 17 NSWLR 243
R v Diab [2005] NSWCCA 64
R v Ehrenburg (NSWCCA, 14 December 1990, unrep)
R vGoodwin (1990) 51 A Crim R 328
R v Lanham [1970] 2 NSWLR 217
R v Many (1990) 51…

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 Barnes v R

Details

AGLC: Barnes v R [2022] NSWCCA 140
Case: [2022] NSWCCA 140
Decision Date: 24 June 2022

CaseChat Overview and Summary

In the matter of Barnes v R, the appellant, Barnes, sought to appeal against the sentence imposed by the lower court, contending that the original sentence was too severe. The appeal was brought before the court, which was tasked with determining whether the appellant was entitled to a lesser sentence based on new evidence presented. This evidence related to Barnes's conduct in gaol, specifically incidents of violence, which had not been brought to the attention of the sentencing judge. The appellant, who suffered from schizophrenia, had refused to allow his legal representatives to access his Justice Health records, which contained information pertinent to his mental health condition. The appellant argued that the incidents of violence in gaol were typical of the victimisation faced by schizophrenic inmates and that this had not been considered by the sentencing judge, who had found that Barnes's experience in custody was not more onerous due to his mental illness.

The court was required to decide whether the fresh evidence presented by the appellant was admissible and, if so, whether it warranted a reduction in the sentence imposed. The legal issues before the court encompassed the admissibility of fresh evidence on a sentence appeal, the relevance and weight to be given to the evidence, and the appropriate sentence that should be imposed in light of the evidence. The court had to balance the appellant's right to a fair sentencing process with the finality of the original sentence and the need to deter serious offences such as stalking and strangling.

The court held that the fresh evidence was admissible as it was relevant to the appellant's mental health and the conditions of his imprisonment, which were not considered by the sentencing judge. The court found that the evidence supported the appellant's claim that he had been a victim of victimisation due to his mental illness and that this was a mitigating factor that should have been taken into account. However, the court also noted the chilling facts of the offence and the need to deter similar conduct. Ultimately, the court determined that the original sentence was appropriate and did not warrant a reduction. The court concluded that the evidence, while relevant, did not significantly alter the overall assessment of the appellant's culpability and the need for deterrence.

In light of the above, the court dismissed the appeal and affirmed the original sentence. The court emphasised the importance of considering all relevant factors in sentencing, including the mental health of the offender, but also underscored the need to maintain the deterrent effect of sentences for serious crimes. The court's decision highlighted the delicate balance required in sentencing appeals, particularly when fresh evidence is presented, and the need to ensure that justice is served in a manner that is fair to both the appellant and the community.

Orders