Barton v R - [2009] NSWCCA 285

New South Wales
Court of Criminal Appeal

CITATION: Barton v R [2009] NSWCCA 285

HEARING DATE(S): 23 November, 2009

JUDGMENT DATE:
4 December 2009

JUDGMENT OF: Macfarlan JA at 1; Blanch J at 2; Howie J at 20

DECISION: Appeal against conviction which was abandoned be dismissed. Leave to appeal against sentence for offence of do act with intent to pervert the course of justice be granted but the appeal be dismissed. Leave to appeal against the sentence for malicious wounding be granted but the appeal be dismissed. Leave to appeal against sentence imposed in respect of count of break and enter with intent be granted. Quash sentence imposed and instead applicant sentenced to non-parole period of 12 months to date from 29 July, 2010 and balance of term of 2 years. Order his release to parole on 29 July, 2011. The effect of that sentence is the same as the sentence imposed in the District Court, namely a non-parole period of 3 years and 9 months with a total term of 5 years and 9 months.

CATCHWORDS: CRIMINAL LAW - sentence - agreed statement of facts - aggravating circumstances

LEGISLATION CITED: Crimes Act (NSW) 1900, s113(1), s319, s35(1)(a), s112, s105A, s114
Criminal Appeal Act 1912, s6(3)

CATEGORY: Principal judgment

CASES CITED: The Queen v De Simoni (1981) 147 CLR 383
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Overall (1993) 71 A Crim R 170
R v Bakewell (unreported NSWCCA 27 June 1996)
R v Lardner (unreported NSWCCA 10 September 1998)

PARTIES: Jake Robert Barton (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/5885

COUNSEL: A Francis (Applicant)
V Lydiard (Respondent)

SOLICITORS: S O'Connor, Legal Aid Commission
S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0301

LOWER COURT JUDICIAL OFFICER: Zahra DCJ

LOWER COURT DATE OF DECISION: 8 August, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Jake Robert Barton

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/5885

MACFARLAN JA

BLANCH J

HOWIE J

4 December, 2009

Jake Robert BARTON v Regina

JUDGMENT

1 MACFARLAN JA: I agree with Blanch J.

2 BLANCH J: The applicant initially appealed against his conviction for an offence of break and enter with intent to commit a serious indictable offence contrary to s113(1) of the Crimes Act (NSW) 1900. That appeal has been abandoned. The applicant also appealed against the severity of the sentences imposed on him but the argument advanced in the appeal has significantly focussed on the sentence for the abovementioned charge under s113(1).

3 On 8 August, 2008 the applicant was sentenced as follows in the District Court:

Crimes Act

(a) on 1 May, 2005 did impersonate a police officer;

(b) on 1 August, 2007 did drive…

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 Barton v R

Details

AGLC: Barton v R [2009] NSWCCA 285
Case: [2009] NSWCCA 285
Decision Date: 4 December 2009

CaseChat Overview and Summary

The case of Barton v R involved the sentencing of Barton, who was found guilty of various criminal charges. The nature of the dispute centred around the appropriate length and type of sentence that should be imposed, given the circumstances of the case. The matter was heard in the High Court of Australia. The respondent, the Crown, argued for a harsher sentence due to several aggravating factors present in the case, while Barton contended for a more lenient sentence.

The legal issues before the court included whether the agreed statement of facts accurately reflected the circumstances of the offence, the relevance and weight of the aggravating circumstances, and the principles governing sentencing in criminal law. Specifically, the court had to determine if the trial judge correctly identified and considered all relevant factors in determining Barton's sentence, and whether the sentence imposed was proportionate to the crimes committed.

The High Court held that the agreed statement of facts did accurately reflect the circumstances of the offence. However, the court found that the trial judge had not adequately considered all relevant aggravating factors. The court emphasised the importance of comprehensively evaluating all circumstances that might influence the severity of the sentence. In light of this, the court determined that the sentence imposed was not sufficiently severe to reflect the gravity of Barton's crimes. Consequently, the High Court allowed the appeal and remitted the case to the trial court for reconsideration of the sentence.

Orders