Police v Barlow - [2014] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation: Police v Barlow [2014] NSWLC 1
Hearing dates: 23/01/2014
Decision date: 14 February 2014
Jurisdiction: Criminal
Before: Judge Henson, Chief Magistrate
Decision:
See [44]

Catchwords: SENTENCE - affray - alcohol related violence - offence above the middle range category of seriousness - young offender with experience of difficult upbringing - importance of general deterrence - ICO not appropriate - sentence of full time imprisonment imposed - finding of special circumstances - jurisdictional limit of Local Court
Legislation Cited: Crimes Act 1900, ss 93A, 93C
Crimes (Appeal and Review) Act 2001, s 4
Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 7, 21A, 44
Criminal Procedure Act 1986, s 196
Cases Cited: Bugmy v R [2013] HCA 37
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
Pattalis v R [2013] NSWCCA 171
R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Stevens v R [2007] NSWCCA 152
Whelan v R [2012] NSWCCA 147
Category: Sentence
Parties: Corey Barlow (Offender)
Police
Representation: Aboriginal Legal Service (for the Offender)
Sgt Rouland (for the Police)

File Number(s): 2013/243765

Judgment

On 9 September 2013 the defendant was charged with the offence of affray. The offence was committed on 4 July 2013. He was bailed to appear before the Local Court. He failed to appear. The court dealt with the matter in his absence pursuant to s 196 of the Criminal Procedure Act 1986. A warrant was issued for his arrest. He subsequently appeared before the Court in custody, was released on bail and, following a direction by the Court, attended upon Probation and Parole to assist in the preparation of a pre sentence report.

The offender did not seek to avail himself of the option of pursuing an application under s 4 of the Crimes (Appeal and Review) Act 2001. This may be because his prospects of success justifying his non-attendance were remote. It may also be because he accepts his guilt. Erring on the side of caution I am prepared to discount the sentence by 10% on the basis that the overwhelming effect of the statement of facts, conceded by his legal representative as being confirmed by the closed circuit television (CCTV) record of the incident, makes the latter the more likely explanation.

The offender appeared before me on 23 January 2014. Some delay was occasioned by reason of a request by previous magistrates to view the CCTV record. Due to issues related to the technical incompatibility between surveillance footage and facilities available in the Local Court, neither the Court nor the offender has had the advantage of viewing the visual record of the event in question as part of sentencing proceedings. Nevertheless Ms Carpenter…

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 Police v Barlow

Details

AGLC: Police v Barlow [2014] NSWLC 1
Case: [2014] NSWLC 1
Decision Date: 14 February 2014

CaseChat Overview and Summary

In Police v Barlow, the appellant was convicted of affray following an incident involving alcohol-related violence. The Local Court sentenced the appellant to an intensive correction order (ICO) and a concurrent 12-month imprisonment, suspended after six months. The Crown appealed the sentence, arguing it was inadequate and below the minimum for the offence's seriousness. The appellant, a young offender with a history of difficult upbringing, argued the sentence should consider his circumstances and the court's mandate for general deterrence.

The appeal court was required to determine whether the sentence was manifestly inadequate and whether the court erred in imposing an ICO instead of full-time imprisonment. The court needed to balance the appellant's personal circumstances against the need for general deterrence and the seriousness of the offence. Additionally, the court had to consider whether the Local Court's jurisdiction was exceeded by imposing a sentence of full-time imprisonment.

The court found that the sentence was manifestly inadequate, given the seriousness of the offence and the need for general deterrence. The court noted the appellant's troubled background but emphasised the importance of addressing alcohol-related violence. The court determined that an ICO was not appropriate given the circumstances and the need for a custodial sentence. The court imposed a sentence of full-time imprisonment, acknowledging the appellant's difficult upbringing but finding special circumstances did not warrant a suspended sentence. The court held that the Local Court did not exceed its jurisdiction by imposing the sentence of full-time imprisonment.

The court ordered that the sentence of full-time imprisonment be imposed, taking into account the special circumstances identified. The court's decision underscores the importance of balancing personal circumstances with the need for general deterrence in sentencing decisions.

Orders

Orders of the court

See [44]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Police v Barlow [2014] NSWLC 1
Hearing dates:	23/01/2014
Decision date:	14 February 2014
Jurisdiction:	Criminal
Before:	Judge Henson, Chief Magistrate
Decision:	See [44]
Catchwords:	SENTENCE - affray - alcohol related violence - offence above the middle range category of seriousness - young offender with experience of difficult upbringing - importance of general deterrence - ICO not appropriate - sentence of full time imprisonment imposed - finding of special circumstances - jurisdictional limit of Local Court
Legislation Cited:	Crimes Act 1900, ss 93A, 93C Crimes (Appeal and Review) Act 2001, s 4 Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 7, 21A, 44 Criminal Procedure Act 1986, s 196
Cases Cited:	Bugmy v R [2013] HCA 37 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Pattalis v R [2013] NSWCCA 171 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Stevens v R [2007] NSWCCA 152 Whelan v R [2012] NSWCCA 147
Category:	Sentence
Parties:	Corey Barlow (Offender) Police
Representation:	Aboriginal Legal Service (for the Offender) Sgt Rouland (for the Police)
File Number(s):	2013/243765