Macfarlan JA at [1]; Rothman J at [2]; Dhanji J at [3].
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentences imposed in the District Court by her Honour Judge Hock.
(4) In lieu thereof,
(a) sentence the applicant, to an aggregate term of imprisonment of 8 years commencing 8 August 2019 and concluding 7 August 2027;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 5 years expiring on 7 August 2024;
(c) Specify that the earliest date the applicant will be eligible to be released to parole is 7 August 2024;
(d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence had an aggregate sentence not been imposed are:
(i) Sequence 1: imprisonment for 3 years and 9 months;
(ii) Sequence 2: imprisonment for 6 years;
(iii) Sequence 3: imprisonment for 18 months;
(iv) the offence on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW): imprisonment for 6 months.
Catchwords:
CRIME — Appeals — Appeal against sentence — Whether sentencing judge erred in the assessment of the objective seriousness of the firearm offence — Sentencing judge appeared to treat the presence of ammunition as an aggravating factor — Unfair to have regard to ammunition as an aggravating factor where there was no evidence that the ammunition could be used with the firearm — The relevance of the ammunition required closer scrutiny — House v The King error established
CRIME — Appeals — Appeal against sentence — Whether sentence manifestly excessive — Circumstances of this case departed from the circumstances contemplated in the armed robbery guideline judgment — Starting point in excess of that contemplated in the guideline was warranted
CRIME — Appeals — Appeal against sentence — Whether the court proceeded on an erroneous view of the facts — Fresh evidence of child sexual abuse disclosed post-sentence — Unnecessary to determine
CRIME — Appeals — Appeal against sentence — Appeal allowed — Resentence — Child sexual abuse — Post-traumatic stress disorder leading to substance abuse — Mental health conditions were present at time of offending — Willingness to seek assistance for mental health and substance use issues — Lesser sentence imposed
[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.
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AGLC
Barnes v The The Queen [2022] NSWCCA 40
Case
[2022] NSWCCA 40
Decision Date
CaseChat Overview and Summary
The appellant, Barnes, appealed against the sentence imposed on him for a firearm offence. The matter was heard in the High Court of Australia. Barnes argued that the sentencing judge erred in the assessment of the objective seriousness of the offence, particularly in treating the presence of ammunition as an aggravating factor. He contended that it was unfair to consider the ammunition as an aggravating factor when there was no evidence that it could be used with the firearm. The appellant also claimed that the sentence was manifestly excessive, as the circumstances of his case departed from those contemplated in the armed robbery guideline judgment. Additionally, Barnes argued that the court proceeded on an erroneous view of the facts due to fresh evidence of child sexual abuse that came to light post-sentence.
The court found that the sentencing judge did indeed appear to treat the presence of ammunition as an aggravating factor without sufficient evidence to support such a conclusion, which constituted a House v The King error. The court held that the relevance of the ammunition required closer scrutiny and that it was not appropriate to consider it as an aggravating factor without concrete evidence linking it to the firearm in question. Furthermore, the court determined that the circumstances of Barnes' case warranted a starting point in excess of that contemplated in the armed robbery guideline judgment. Although the court noted the fresh evidence of child sexual abuse, it deemed it unnecessary to determine whether this constituted an erroneous view of the facts, as the appeal was allowed on other grounds.
The appeal was allowed, and Barnes was resentenced. The court took into account the child sexual abuse and the resulting post-traumatic stress disorder that led to substance abuse. It was noted that Barnes had mental health conditions present at the time of the offending and that he had shown a willingness to seek assistance for these issues. Considering these factors, the court imposed a lesser sentence on Barnes, reflecting the appropriate adjustments and considerations made in light of the appeal's findings.