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Barnes v R

Barnes v R

Case [2014] NSWCCA 224 17 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Barnes v R [2014] NSWCCA 224
Hearing dates: 03.10.2014
Decision date: 17 October 2014
Before: Hoeben CJ at CL at [1]
Rothman J at [50]
R A Hulme J at [51]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - manslaughter - applicant on parole for armed robbery when manslaughter offence occurred - parole revoked requiring applicant to serve remaining 12 months and 20 days of armed robbery sentence - whether sentence for manslaughter should have been partially concurrent with revocation of parole period - whether reduction in non-parole period for manslaughter offence properly reflected finding of special circumstances - appeal dismissed.
Legislation Cited: Crimes (Administration of Sentences) Act 1999 - s171
Crimes (Sentencing Procedure) Act 1999 - s21A(2)(j)
Cases Cited: Callaghan v R [2006] NSWCCA 58
Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Fitzpatrick, Sharon Lee v R [2010] NSWCCA 26
House v King [1936] HCA 40; 55 CLR 499
Ith v R [2013] NSWCCA 280
R v David Webb (NSWCCA, unreported 9 November 1998)
R v DW [2012] NSWCCA 66
R v Kaiva, NSWCCA, unreported, 9 November 1998
Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Category: Principal judgment
Parties: Richard Barnes - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr R Jankowski - Applicant
Ms T Smith - Respondent Crown
Solicitors:
CBD Criminal Defence Lawyers - Applicant
J Pheils - Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2010/383153
Decision under appeal

Citation:

R v Barnes [2013] NSWSC 1627

Date of Decision:

2013-09-27 00:00:00

Before:

Price J

File Number(s):

2010/383153

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant pleaded guilty to manslaughter on the day fixed for his trial for the murder of Wallace Ruiz-Sanchez. The Crown accepted the plea to manslaughter in full satisfaction of the indictment. The maximum penalty for this offence is imprisonment for 25 years. There is no standard non-parole period.

On 8 November 2013 Price J sentenced the applicant to imprisonment with a non-parole period of 5 years to date from 6 December 2011 and to expire on 5 December 2016 with an additional term of 2 years to expire on 5 December 2018.

The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 - The sentencing judge erred in fixing the commencement date of the sentence on 6 December 2011.

Ground 2 - The sentencing judge erred in imposing a sentence which gives the appearance of double punishment.

Ground 3 - The sentencing judge erred in inadequately reducing the non-parole period given the basis of his Honour's finding of special circumstance.

Factual Background

On 12 October 2010 the applicant was present with four co-offenders at premises in Marlborough Street, Smithfield. The applicant agreed to be the driver of a motor vehicle to convey himself and the four other offenders to Russell Street, Mount Pritchard for the…

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 [2014] NSWCCA 224
Case: [2014] NSWCCA 224
Decision Date: 17 October 2014

CaseChat Overview and Summary

Barnes appealed against his sentence, following a conviction for manslaughter, arguing that the sentence imposed was excessive. The applicant was on parole for an armed robbery offence when he committed the manslaughter. The sentence imposed was a non-parole period of 8 years and 6 months, to be served consecutively to the remaining term of the armed robbery sentence, which amounted to 12 months and 20 days. The trial judge found special circumstances, reducing the non-parole period for the manslaughter offence by 18 months, but did not consider these circumstances to warrant a concurrent sentence. The applicant argued that the sentence should have been partially concurrent with the period for which his parole was revoked. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentence for manslaughter should have been partially concurrent with the revocation of parole period, and whether the reduction in the non-parole period for the manslaughter offence properly reflected the finding of special circumstances. The applicant submitted that the parole revocation period should have been taken into account when determining the sentence for manslaughter. The respondent argued that the trial judge was correct in imposing a consecutive sentence, and that the reduction in the non-parole period properly reflected the special circumstances.

The court held that the sentence for manslaughter should not have been partially concurrent with the parole revocation period. The court found that the parole revocation was a consequence of the manslaughter offence and not a punishment for it. Therefore, the parole revocation period should not have been taken into account when determining the sentence for manslaughter. The court also held that the reduction in the non-parole period properly reflected the finding of special circumstances. The court found that the trial judge had considered the special circumstances and had reduced the non-parole period by 18 months, which was an appropriate reflection of those circumstances.

The appeal was dismissed. The court found that the sentence imposed was not excessive, and that the trial judge had properly considered the special circumstances when determining the sentence for manslaughter. The court also found that the parole revocation period should not have been taken into account when determining the sentence for manslaughter, and that the sentence imposed was appropriate in the circumstances.

Orders