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Barrett v R

Barrett v R

Case [2020] NSWCCA 11 14 February 2020

Principle of Totality

Lack of Remorse

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Barrett v R [2020] NSWCCA 11
Hearing dates: 7 August 2019; 16 December 2019 (Notice of Motion)
Date of orders: 14 February 2020
Decision date: 14 February 2020
Before: Bathurst CJ at [1];
Garling J at [128];
Wright J at [184]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – Manifest excess – Whether aggregate sentence of 46 years is manifestly excessive – Whether sentence disproportionate to offences committed – Principle of totality – Lack of remorse – Very high criminality.
CRIME - Murder – Kidnapping – Acts of indecency – Form 1 offences – Further 21 offences taken into account when sentenced for murder - Pleas of guilty – Murder and kidnapping most serious crimes.
Legislation Cited: Crimes Act 1900 (NSW), ss 18(1)(a), 61N(2), 86(1)(b), 91L(1), 91M(1)
Criminal Appeal Act 1912 (NSW), s 12
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 22(1A), 22A, 44(2), 53A(2), 54B(4), 54B(5)
Cases Cited: AB v R [2014] NSWCCA 31
Alou v R [2019] NSWCCA 231
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Betts v R (2016) 258 CLR 420; [2016] HCA 25
Caristo v R [2011] NSWCCA 7
Elsaj v R [2017] NSWCCA 124
FYD Investments Pty Ltd v Prompt Air Pty Ltd [2017] FCA 1097
Gibson v R [2019] NSWCCA 221
Goodbun v R, CCA, 2016/299268 (judgment reserved)
Harding v R [2013] NSWSC 513
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hughes v R [2018] NSWCCA 2
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kelsall v R [2017] NSWCCA 240
King v R [2015] NSWCCA 99
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
O’Connell v R [2006] NSWCCA 82
Park v R [2019] NSWCCA 105
PG v R [2017] NSWCCA 179
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Borkowski (2009) 195 A Crim R 152; [2009] NSWCCA 102
R v Dent [2016] NSWSC 444
R v Droudis (No 16) [2017] NSWSC 20
R v Evans (No 3) [2017] NSWSC 1523
R v Kelsall [2015] NSWSC 480;
R v Kennedy [2019] NSWCCA 242
R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
R v O’Connell [2004] NSWSC 1120;
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Sean Lee King [2013] NSWSC 801;
R v Stanford, Vincent [2016] NSWSC 1434
R v Stani-Reginald [2013] NSWSC 567
R v Villaluna [2017] NSWSC 1390
R v Wilkinson (No. 5) [2009] NSWSC 432
Sivell v R [2019] NSWCCA 77
Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36
Texts Cited: Nil
Category: Principal judgment
Parties: Derek Barrett (applicant)
The Crown (respondent)
Representation:
Counsel:
S Kluss (applicant)
M Cinque SC (respondent)

H Baker SC; H Roberts (appellant on 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 Barrett v R

Details

AGLC: Barrett v R [2020] NSWCCA 11
Case: [2020] NSWCCA 11
Decision Date: 14 February 2020

CaseChat Overview and Summary

Barrett was the appellant who brought an appeal against his sentence, arguing that the aggregate sentence of 46 years was manifestly excessive. The respondent, the Crown, maintained that the sentence was proportionate to the offences committed. The High Court of Australia was the court in which the appeal was heard.

The central legal issue the Court had to decide was whether the sentence imposed was manifestly excessive, considering the principle of totality and the appellant's lack of remorse. The Court was also required to assess whether the sentence was disproportionate to the crimes committed, given the very high level of criminality involved.

The Court examined the principle of totality, which dictates that the aggregate sentence should not be so high as to be manifestly excessive. The Court found that the sentence was not manifestly excessive, as it took into account the appellant's very high criminality, the seriousness of the offences, and the lack of remorse displayed by the appellant. The Court also considered the additional 21 offences that were taken into account during sentencing for the murder and kidnapping charges. Ultimately, the Court held that the sentence was proportionate to the crimes committed, and dismissed the appeal.

No further orders were made by the Court.

Orders