Barnes v The The Queen

Case [2022] NSWCCA 40


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Barnes v R [2022] NSWCCA 40
Hearing dates: 12 November 2021
Date of orders: 2 March 2022
Decision date: 02 March 2022
Before: 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

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (NSW)

Inclosed Lands Protection Act 1901 (NSW)

Road Transport (Vehicle Registration) Regulation 2017 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

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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.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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