R v Barber - [2023] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v BARBER
[2023] SASC 57
Judgment of the Honourable Justice McDonald
12 April 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
Mr Barber was remanded to the Supreme Court from the District Court pursuant to s 57 of the Sentencing Act 2017 (SA) due to an application made by the Director of Public Prosecutions that Mr Barber be detained in custody until further order on the basis that he is either incapable or unwilling to control his sexual instincts. Mr Barber first appeared in the Supreme Court on 4 April 2022. On that occasion the Court ordered two legally qualified medical practitioners prepare a report in relation to whether Mr Barber is incapable of or unwilling to control his sexual instincts.
The matter first came on for submissions on 29 November 2022. I determined that the most appropriate course of action was to first sentence Mr Barber and then give consideration to the s 57 application.
Mr Barber was sentenced to 9 years imprisonment with a non-parole period of eight years and six months. That was backdated to when he was first taken into custody on 18 March 2020. I reached the view that given the length of the sentence imposed, it is premature to determine whether an order should be made pursuant to s 57 of the Sentencing Act. Mr Barber will remain in prison for at least a further four years and six months before being eligible for parole – potentially longer should he not be granted parole.
In all of the circumstances, I decline to make an order pursuant to s 57. It remains open to the Director or the Attorney‑General to make a further s 57 application once Mr Barber approaches his release date, when it will be appropriate for the Court to make an assessment of the risk that Mr Barber poses to the community.
Criminal Law Consolidation Act 1935 (SA) s 19 and s 56; Sentencing Act 2017 (SA) s 57; Summary Offences Act 1953 (SA) s 23, referred to.
R v Hoare [2017] SASC 7, considered.

R v BARBER
[2023] SASC 57
Criminal: Application
McDONALD J:

The Director of Public Prosecutions (‘the Director’) has made an application pursuant to s 57 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) that Mr Barber be detained in custody until further order of the Court on the basis that he is either incapable or unwilling to control his sexual instincts.
I have determined to dismiss the application. These are the reasons for arriving at that decision.
The circumstances in which the application was made
On 31 August 2021 Mr Barber was arraigned in the District Court on an information containing one count of indecent behaviour in a public place,[1] aggravated threatening to cause harm,[2] and aggravated indecent assault.[3] Mr…

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 R v Barber

Details

AGLC: R v Barber [2023] SASC 57
Case: [2023] SASC 57
Decision Date: 12 April 2023

CaseChat Overview and Summary

The case of R v Barber was heard in the Supreme Court of New South Wales. The defendant, Mr Barber, was convicted of serious offences and faced sentencing. The legal issues before the court involved determining the appropriate sentence, considering Mr Barber's history of criminal activity, his diagnosis of antisocial personality disorder, and his substance use disorder. The court had to decide whether Mr Barber should be declared a serious repeat offender and the implications of such a declaration on the non-parole period and proportionality of the sentence.

The court examined Mr Barber's extensive criminal history, which included multiple serious offences committed on separate occasions. This led to the conclusion that Mr Barber met the criteria for being declared a serious repeat offender. The court noted that the seriousness of Mr Barber's offending warranted an immediate custodial sentence and considered the appropriate non-parole period. Given the absence of exceptional circumstances, the court fixed a non-parole period of at least four fifths of the head sentence. The court also assessed the benefit of Mr Barber's guilty pleas, determining that while they warranted a discount, the limited insight and remorse demonstrated by Mr Barber meant he should not receive the maximum benefit. The court sentenced Mr Barber to nine years imprisonment, reduced by six months for his guilty pleas, resulting in a head sentence of eight years and six months, with a non-parole period of seven years and six months.

In summary, the court sentenced Mr Barber to imprisonment with a non-parole period of seven years and six months, reflecting the seriousness of his offending and his history as a repeat offender. The sentence was backdated to the date of Mr Barber's first custody.

Orders

Orders of the court

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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

In his report Dr Jayawant said that Mr Barber fulfils the criteria for an antisocial personality disorder, having had a conduct disorder in childhood and a juvenile offending history extending into adult offending. He has a pattern of disregard for rules and social norms, a lack of concern for the feelings of others and a strong external locus of control. He also has a diagnosis of a polysubstance use disorder, which is in remission while he has been in prison and unable to access illicit substances. Mr Barber continues to attempt to attribute his offending to his substance use. Consideration Given the seriousness of the offending there was no suggestion that any sentence other than immediate custodial sentence was appropriate. Given Mr Barber’s history of offending he was liable to be declared a serious repeat offender. That is because he had committed and been convicted of at least three serious offences committed on separate occasions. There was no dispute that Mr Barber is a serious repeat offender. Two consequences flowed from that. The first is that it was necessary to fix a non-parole period which was at least four fifths the length of the head sentence, unless it was established by evidence on oath that exceptional circumstances existed and I determined that in all of the circumstances it was not appropriate that Mr Barber be sentenced as a serious repeat offender. It was conceded by Mr Barber’s counsel that there were no special circumstances that would warrant a deviation from the normal approach of fixing a non-parole period that was at least four fifths of the head sentence. The second consequence of making the declaration was that I was not bound to ensure that the sentence imposed was proportionate to Mr Barber’s offending. In the circumstances of this case however, I was not satisfied that a disproportionate sentence was needed for the proper protection of the community. The seriousness of Mr Barber’s offending is such that a sentence that is proportionate to his offending will reflect his criminal culpability and provide the community with sufficient protection. Mr Barber was entitled to some benefit for his pleas of guilty. Given the timing of the pleas, the maximum discount that he could be given was 15 per cent for counts 1 and 2, and 10 per cent for count 3. There were reasons why in my view he should not receive the maximum benefit for those pleas. That was because those pleas were entered in the face of a very strong prosecution case and, further, the guilty plea did not appear to be a reflection of any true remorse or contrition on his part given the limited insight Mr Barber had and continues to demonstrate towards his offending. I sentenced Mr Barber to nine years imprisonment. That sentence was reduced by six months to take into account his guilty pleas. That resulted in a head sentence of eight years and six months. I fixed a non-parole period of seven years and six months. The head sentence and non-parole period were backdated to 18 March 2020, when Mr Barber was first taken into custody. The Director’s s 57 application