BARNES v The Queen - [2007] NSWCCA 69

New South Wales
Court of Criminal Appeal

CITATION: BARNES v R [2007] NSWCCA 69

HEARING DATE(S): 14 March 2007

JUDGMENT OF: McClellan CJ at CL at 27; Hulme J at 1; Hislop J at 28

EX TEMPORE JUDGMENT DATE: 14 March 2007

DECISION: Leave to appeal granted; Appeal dismissed

PARTIES: Martin Stuart BARNES
Regina

FILE NUMBER(S): CCA 2007/6

COUNSEL: Crown: W Dawe QC
Applicant: A Francis SC

SOLICITORS: Crown: S Kavanagh
Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0171

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 02/06/2006

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2007/6

McCLELLAN CJ AT CL
HULME J
HISLOP J

Martin Stuart BARNES v R

Judgment

1 HULME J: In these proceedings the Applicant seeks leave to appeal against sentences imposed on him by Judge McLoughlin on 2 June 2006 following pleas of guilty to two charges. The charges were that the Applicant had supplied 55.1 grams of methylamphetamine and, secondly that he had supplied 4.6 grams of methelenedioxy-methylamphetamine (hereinafter referred to as ecstasy or MDMA).

2 The offences arose under the Drug (Misuse and Trafficking) Act which provides a maximum penalty for offences involving less than 250 grams of methylamphetamine and 125 grams of MDMA of 15 years. In the case of quantities that are “small” – less than 1 gram in the case of methylamphetamine and less than ¼ gram in the case of MDMA, and the offences are prosecuted summarily as they inevitably would be, the maximum penalty of imprisonment provided is 2 years.

3 Adopting starting points of, respectively, 3 years and 4 months and 2 years imprisonment and reducing these periods by 25% because the Applicant had pleaded guilty, his Honour imposed for the first offence a sentence of imprisonment involving a non-parole period of 15 months commencing on 2 June 2006 and a further term of another 15 months and, for the second offence, a sentence of imprisonment involving a non-parole period of 10 months commencing on 2 June 2006 and a further period of 8 months. Two further matters were dealt with pursuant to Section 166 of the Criminal Procedure Act but for present purposes these can be ignored.

4 His Honour found special circumstances in the needs of the Applicant’s children, aged about 10 and 11 and for whom the Applicant was the primary carer, and in the Applicant’s prospects of rehabilitation. The Crown does not challenge these matters and it is accordingly unnecessary to further consider them except in so far as they clearly have a bearing on the appropriateness of the sentences imposed.

5 In the case of each offence, the “supply” was a deemed supply pursuant to the expanded definition in Section 3 and Section 29 of the Drug Misuse and Trafficking Act. The drugs were found in a vehicle stopped by the police on its way from Sydney to the Central Coast. The Applicant and other people were in the vehicle at the time but 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 The Queen

Details

AGLC: BARNES v The Queen [2007] NSWCCA 69
Case: [2007] NSWCCA 69
Decision Date: 14 March 2007

CaseChat Overview and Summary

In the Court of Criminal Appeal of New South Wales, Martin Stuart Barnes sought leave to appeal against sentences imposed on him by Judge McLoughlin. Barnes had pleaded guilty to two charges of drug supply under the Drug (Misuse and Trafficking) Act. The first charge involved the supply of 55.1 grams of methylamphetamine, and the second charge involved the supply of 4.6 grams of MDMA (ecstasy). Judge McLoughlin imposed a sentence of imprisonment for the first offence with a non-parole period of 15 months and for the second offence with a non-parole period of 10 months, both sentences running concurrently.

The legal issues before the Court were whether the sentencing judge erred in assessing the objective gravity of the offences and whether the overall sentence was manifestly excessive. Barnes argued that the quantity of drugs was relatively small and that the sentence was excessive compared to other cases. The Crown argued that the sentence was appropriate given the nature of the offences and Barnes' criminal history.

The Court found that the quantity of drugs was not de minimis and that Judge McLoughlin was entitled to consider the breach of conditional liberty as a serious aggravating circumstance. The Court noted that Barnes had a significant criminal history and had been given multiple opportunities to reform. The Court held that the sentence imposed was within the legitimate exercise of the sentencing judge's discretion and did not amount to an error in the assessment of the objective gravity of the offences or manifest excessiveness.

The Court granted leave to appeal but dismissed the appeal, affirming the sentences imposed by Judge McLoughlin.

Orders