Barnes v The Queen - [2008] NSWCCA 136

New South Wales
Court of Criminal Appeal

CITATION: Barnes v R [2008] NSWCCA 136

HEARING DATE(S): 12 June 2008

JUDGMENT OF: Spigelman CJ at 1; Price J at 2; McCallum J at 3

EX TEMPORE JUDGMENT DATE: 12 June 2008

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: SENTENCING - psychiatric illness - effect upon weight to be given to general and specific deterrence - accumulation - broad judicial discretion

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Pearce v the Queen (1998) 194 CLR 610
R v Hemsley [2004] NSWCCA 228
Regina v Jarman [2001] NSWCCA 178
Regina v Letteri (NSWCCA) (unreported, 18 March 1992)

PARTIES: Richard Frederick Barnes (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2889/2007

COUNSEL: Mr M A Riviere (Sol) (Applicant)
Ms N Noman (Respondent)

SOLICITORS: Intercept Law Pty Ltd (Applicant)
SC Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0301; 06/31/0219

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 20 March 2007

- 8 -

2889/2007

SPIGELMAN CJ
PRICE J
McCALLUM J

12 JUNE 2008

Richard Frederick BARNES v REGINA

Judgment

1 Spigelman CJ: I agree with McCallum J.

2 Price J: I agree with McCallum J.

3 McCallum J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 20 March 2007 after he pleaded guilty to an offence of breaking and entering a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation contrary to s 113(3) of the Crimes Act 1900 and an offence of robbery with an offensive weapon contrary to s 97(1) of the Crimes Act. Each of those offences carries a statutory maximum penalty of imprisonment for twenty years. There is no standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 for either offence.

4 In respect of the offence against s 113(3), the court attendance notice purportedly identified three circumstances of special aggravation, namely that he was in company with other persons, that he used corporal violence and that he was armed with a dangerous weapon being a replica pistol. The last of those matters is identified as a circumstance of special aggravation in s 105A.

5 The sentencing judge made a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act. In respect of the offence of breaking and entering with intent his Honour imposed a sentence of four years imprisonment with a non parole period of two years. In respect of the offence of armed robbery the sentencing judge imposed a term of imprisonment of four and a half years with a non parole period of two years. The sentences were accumulated by one year so that their combined effect was a total term of five and a half years with a non parole period of three years.

6 The sentencing judge had also dealt with the co offender in the offence…

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 The Queen

Details

AGLC: Barnes v The Queen [2008] NSWCCA 136
Case: [2008] NSWCCA 136
Decision Date: 12 June 2008

CaseChat Overview and Summary

The appellant, Barnes, was convicted of armed robbery and sentenced to imprisonment. The central issue in this appeal was the appropriate weight to be given to general and specific deterrence in the context of a sentence, particularly when the offender has a psychiatric illness. The High Court of Australia was asked to review the sentence imposed by the Supreme Court of Victoria. The appellant argued that his psychiatric condition should have significantly influenced the weight given to deterrence in sentencing.

The court considered whether the trial judge had appropriately balanced the principles of general and specific deterrence in light of the appellant's psychiatric illness. The court noted that while psychiatric illness could be a mitigating factor, it did not automatically absolve an offender from the need for punishment that serves broader societal interests. The court emphasised the need for a nuanced approach to sentencing, recognising the trial judge's broad discretion in determining the appropriate balance between deterrence and other sentencing considerations.

The court ultimately concluded that the trial judge had correctly exercised their discretion in imposing the sentence. The court found that the sentence reflected an appropriate balance between the principles of deterrence and the appellant's psychiatric condition. The appeal was dismissed, and the original sentence was upheld. The court reiterated the importance of judicial discretion in sentencing and the need to consider all relevant factors, including psychiatric illness, in determining the appropriate sentence.

Orders