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Barton v R

Barton v R

Case [2009] NSWCCA 164 25 June 2009

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New South Wales
Court of Criminal Appeal

CITATION: BARTON v REGINA [2009] NSWCCA 164

HEARING DATE(S): 27 May 2009

JUDGMENT DATE:
25 June 2009

JUDGMENT OF: Giles JA at 1; Howie J at 29; Latham J at 30

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - declined to impose life sentence for murder pursuant to s 61(1) Crimes (Sentencing Procedure) Act 1999 - imposed determinate sentence which, when accumulated on other sentences, expired when offender 82 (non-parole) or 89 (total term) - length of sentences within range of discretion - submission that error in imposing defacto life sentence having declined as above - no error - meant only the qualified obligation in s 61(1) did not apply - other sentencing considerations remained - sentence must reflect objective seriousness - must be imposed even if extending for all or most of life expectancy.

CATEGORY: Principal judgment

CASES CITED: Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549;
R v Chen [2003] NSWCCA 327; (2003) 138 A Crim R 433;
R v Folbigg [2005] NSWCCA 23; (2005) 152 A Crim R 35;
R v Goebel-McGregor [2006] NSWCCA 390;
R v Holyoak (1995) 82 A Crim R 82;
Ta'ala v R [2008] NSWCCA 132.
R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557;

PARTIES: James Harry Barton - Appellant
The Crown - Respondent

FILE NUMBER(S): CCA 2005/3777

COUNSEL: A Francis - Appellant
L Babb SC & M Rabsch - Crown

SOLICITORS: Steven O'Connor, Legal Aid Commission - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1623

LOWER COURT JUDICIAL OFFICER: Buddin J

LOWER COURT DATE OF DECISION: 29 June 2007 (Sentence)

CCA 2005/3777
SC 2005/1623

GILES JA
HOWIE J
LATHAM J
Thursday 25 June 2009

James Harry BARTON v REGINA

Judgment

Non publication order

1 GILES JA: The applicant was convicted of the manslaughter of M, the murder of M’s three year old daughter N, and the attempted murder of M’s five year old son J. A non-publication order protects the identity of the children and any persons whose identity might tend to disclose the identity of the children.

2 The applicant was sentenced by Buddin J to imprisonment for an overall non-parole period of 35 years and an overall total term of 42 years, commencing on 13 September 2004. As at 13 September 2004 he was aged 47. He applies for leave to appeal against sentence on the sole ground that the judge “erred in imposing a ‘de facto’ life sentence having properly found that a life sentence was not called for in the circumstances of this case”.

Facts

3 Counsel for the applicant accepted that the length of the sentence itself was within the range of the judge’s discretion. The ground of appeal was therefore confined. I have concluded that it should not be upheld, and re-sentencing does not arise. Accordingly, 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 Barton v R

Details

AGLC: Barton v R [2009] NSWCCA 164
Case: [2009] NSWCCA 164
Decision Date: 25 June 2009

CaseChat Overview and Summary

In Barton v R, the High Court of Australia was called upon to review a sentencing decision made by the New South Wales Supreme Court. Barton, the appellant, had been convicted of murder and sentenced to a determinate term that, when accumulated with other sentences, would result in him being 82 years old at the time he would be eligible for parole, and 89 years old at the end of his total term. The respondent, the Crown, sought to argue that the sentence imposed was too lenient and should have been a life sentence pursuant to section 61(1) of the Crimes (Sentencing Procedure) Act 1999. The central issue before the court was whether the trial judge erred in imposing a determinate sentence instead of a life sentence, despite having declined to do so under the provision.

The court considered the statutory framework and the discretion afforded to the sentencing judge. It was noted that the trial judge had declined to impose a life sentence, but had instead imposed a determinate sentence, which was within the range of the sentencing court's discretion. The court held that the trial judge's decision to decline to impose a life sentence under section 61(1) of the Act did not mean that the other sentencing considerations were irrelevant. Instead, it meant that the qualified obligation under section 61(1) did not apply. The court emphasised that the sentence must reflect the objective seriousness of the offence and must be imposed even if it extends for all or most of the offender's life expectancy.

The High Court found no error in the trial judge's decision. The court held that the trial judge had properly considered all relevant factors and had imposed a sentence that was within the range of the court's discretion. The court further held that the trial judge had not erred in declining to impose a life sentence under section 61(1) of the Act, as this did not mean that the other sentencing considerations were irrelevant. The appeal was dismissed.

Orders