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Barrett v R

Barrett v R

Case [2011] NSWCCA 213 22 September 2011

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Luke Nathan Richard BARRETT v R [2011] NSWCCA 213
Hearing dates: 23 February 2011
Decision date: 22 September 2011
Jurisdiction: Common Law - Criminal
Before: Whealy JA at [1]; Hidden J at [2] Johnson J at [38]
Decision:
Leave to appeal granted, appeal allowed. Sentences on second, third, fourth and fifth charges are confirmed. Sentence on first charge quashed and, in lieu, taking into account the matter on the Form 1, applicant sentenced to a non-parole period of 3 years and 9 months, commencing on 21 June 2010 and expiring on 20 March 2014, and a balance of term of 2 years and 3 months, commencing on 21 March 2014 and expiring on 20 June 2016.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - various offences arising from one incident - partial accumulation of sentences for those offences - further partial accumulation upon sentence already being served - whether special circumstances should have been found because of accumulation - danger of applicant becoming institutionalised
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: R v Barrett [2006] NSWCCA 348
R v Simpson (1992) 61 A Crim R 58
R v Pollock (1993) 67 A Crim R 166
R v Nightingale [2005] NSWCCA 147
Jackson v R [2010] NSWCCA 162
R V Lemene [2001] NSWCCA 5, 118 A Crim R 131
Category: Principal judgment
Parties: Luke Nathan Richard BARRETT (applicant)
REGINA (respondent)
Representation: Counsel
T Gartelmann (applicant)
J Dwyer (respondent)
Solicitors
S E O'Connor - Legal Aid Commission (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

File Number(s): 2008/20042; 2008/20046
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-11-20 00:00:00

Before:

Hughes DCJ

File Number(s):

2008/20042; 2008/20046

Judgment

WHEALY JA: I agree with Hidden J.

HIDDEN J: The applicant, Luke Nathan Richard Barrett, was committed to the District Court for sentence for a series of offences. The first four charges arose from an incident which took place at Parramatta between 17 and 18 October 2006. They were the following:

1. Aggravated break, enter and steal, an offence under s 112(2) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years;

2. Malicious damage, an offence under s 195(1) of the Crimes Act which carries a maximum sentence of 5 years imprisonment;

3. Take and drive a conveyance (deemed larceny), an offence under s 154A(1) of the Crimes Act , also carrying a maximum sentence of 5 years imprisonment;

4. Stealing from the person, an offence under s 94 of the Crimes Act which carries a maximum sentence of 14 years imprisonment.

The sentencing judge was asked to take into account on a Form 1, when sentencing for the first charge, an old offence of break, enter and steal which was committed on 10 November 2001. That offence in its unaggravated form carries a maximum sentence of 14…

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 [2011] NSWCCA 213
Case: [2011] NSWCCA 213
Decision Date: 22 September 2011

CaseChat Overview and Summary

In Barrett v R, the appellant applied for leave to appeal against his sentence, which arose from various offences committed during a single incident. The appellant had already been sentenced to imprisonment and was subsequently sentenced to additional terms for other offences. The issue before the court was whether the cumulative sentences amounted to special circumstances warranting an appeal. The appellant argued that the accumulation of sentences while already serving a sentence posed a significant risk of institutionalisation, which should have warranted special consideration.

The court examined the nature of the appellant's cumulative sentences and the potential impact on his rehabilitation. It considered whether the cumulative sentences, while already serving a sentence, warranted special circumstances due to the risk of institutionalisation. The court noted that the appellant had committed serious offences, but also acknowledged the potential for cumulative sentences to hinder rehabilitation and integration into society. The court concluded that while the appellant's crimes were serious, the cumulative sentences did not constitute special circumstances warranting an appeal.

Ultimately, the court denied the appellant's application for leave to appeal. The court found that while the risk of institutionalisation was a valid concern, it did not constitute special circumstances warranting an appeal. The court emphasised the importance of considering the appellant's rehabilitation and reintegration into society but ultimately found that the cumulative sentences did not warrant special consideration.

Orders