R v Barber - [2019] SASC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BARBER
[2019] SASC 96
Judgment of The Honourable Justice Hinton
7 June 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
Application for a non-parole period to be fixed pursuant to s 47(3) of the Sentencing Act 2017 (SA).
On 15 March 2005, the applicant was convicted by a jury of causing grievous bodily harm with intent to cause grievous bodily harm. On 21 June 2005, the applicant was sentenced to imprisonment for a term of 15 years with a non-parole period of nine years. In 2015 the applicant was first released on parole. Subsequently, the applicant was returned to custody on a number of occasions. On the last occasion, at his request, the Parole Board cancelled his parole.
The applicant now seeks to have a new non-parole period fixed. His sentence is due to expire in December 2019 and he wishes to have the benefit of supervision by the Parole Board in transitioning to life in the community. The application is not opposed by the Director of Public Prosecutions (SA).
Held, granting the application, a non-parole period of nine months is fixed commencing on 12 May 2018.
Sentencing Act 2017 (SA) s 47(3), referred to.
R v Brady (2015) 123 SASR 294; R v Earley [2014] SASC 202; R v Edwards [2016] SASCFC 145; R v Fricker [2017] SASC 107; R v Roberts (2016) 125 SASR 40; R v Shrestha (1991) 173 CLR 48; R v Wilson (1999) 203 LSJS 459, considered.

R v BARBER
[2019] SASC 96
Application
Hinton J:
Introduction

On 21 June 2005 the applicant, Christopher Michael Barber, was sentenced to imprisonment for 15 years after he was found guilty by a jury of causing grievous bodily harm with intent to cause grievous bodily harm. The sentencing Judge fixed a non-parole period of nine years. The head sentence and non-parole period were ordered to commence on 31 March 2004, the day Mr Barber was first taken into custody. The effect of the sentence imposed was that Mr Barber was eligible for release on parole as of 30 March 2013. In fact Mr Barber was first released on parole on 5 May 2015. Since then he has been returned to custody on a number of occasions. On the last occasion, at his request, his parole was cancelled.
By an application dated 6 May 2019 Mr Barber now seeks an order under s 47(3) of the Sentencing Act 2017 (SA) fixing a fresh non-parole period in relation to the sentence imposed on 21 June 2005. Mr Barber is motivated to make this application in the hope that he will be granted release on parole before his sentence expires on 1 December 2019 so that he will have the benefit of the assistance of the authorities in transitioning to life in the community.
The application is…

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 [2019] SASC 96
Case: [2019] SASC 96
Decision Date: 7 June 2019

CaseChat Overview and Summary

In the matter of R v Barber, the Court was tasked with reviewing a sentence handed down in 2005, in which the defendant, Barber, was convicted of causing grievous bodily harm with intent. The Court was called upon to determine whether the non-parole period should be reduced, considering Barber's behaviour and rehabilitation efforts since his initial sentencing. The legal issues before the Court involved assessing whether a reduction in the non-parole period was justified, given Barber's demonstrated remorse, cultural engagement, and efforts towards rehabilitation, while also taking into account the severity of his initial crime and his history of parole violations.

The Court examined the principles guiding the sentencing process, with particular emphasis on the purpose of sentencing, including punishment, deterrence, and rehabilitation. The Court considered the sentencing judge's observations regarding the gravity of the offence and its impact on the victim and her family. It also weighed the Parole Board's opinion on Barber's prospects for rehabilitation and his engagement with his Aboriginal culture, as evidenced by his artistic pursuits. The Court noted Barber's remorse, his improved insight into his actions, and his commitment to rehabilitation since returning to custody in 2017. In light of these factors, the Court concluded that a fresh non-parole period was warranted, reflecting a balance between punishment and the potential for rehabilitation.

Ultimately, the Court determined that an appropriate non-parole period of 11 years and six months, commencing from the date of the original sentence in 2004, was necessary to adequately punish Barber while also allowing for the possibility of his rehabilitation. The Court recognised the importance of cultural connection in Barber's rehabilitation efforts and the potential for his reintegration into society. However, the Court also acknowledged the need to consider the severity of the original offence and Barber's history of parole violations. The Court's decision was influenced by the Parole Board's positive assessment of Barber's rehabilitation prospects and the absence of any suggestion that he re-offended while on parole.

The final orders of the Court fixed a non-parole period of nine months, commencing from 12 May 2018, to allow Barber to apply for parole immediately. This decision was made in the context of an ongoing debate in the law regarding the authority to impose a fresh non-parole period. The Court opted for a pragmatic approach, aiming to ensure that Barber would not be further delayed by the proceedings and could apply for parole without additional complications.

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

I have been advised that should I grant Mr Barber’s application the Parole Board will do its best to expedite the process of his application for release on parole.Consideration It is unnecessary for me to repeat the observations made by the sentencing Judge regarding the gravity of Mr Barber’s offending, the damage it wrought upon his and Ms McIntosh’s families and the pain, suffering and loss of quality of life it has meant for Ms McIntosh. Clearly, any non-parole period had and has to punish Mr Barber adequately for the consequences of what he did. Here too it must be recalled that not only did he cause Ms McIntosh grievous bodily harm, but he intended to do so. I bear in mind the sentencing Judge’s acceptance that Mr Barber was remorseful and contrite. Mr Barber is now in his early forties. Where at the time of sentencing he did not possess broad insight into the consequences of his actions nor accept total responsibility, it appears that now he has a greater understanding that he is responsible for his actions. It is this greater understanding and knowledge of self that, I infer, led him to invite the Parole Board to cancel his parole in order that he could further his rehabilitation in the custodial environment, which he has done, and now motivates him to make this application. I am influenced by the insight that this application demonstrates and his commitment to his rehabilitation since being returned to custody in 2017. I also note the absence of any suggestion that whilst in the community Mr Barber re-offended. I bear in mind Mr Barber’s past failures when released on parole. I also place great weight upon the opinion of the Parole Board. I was provided with a photograph of the painting to which the Aboriginal Liaison Officer quoted in the Parole Board report refers. It is impressive and, importantly, demonstrates a sense of cultural connection and identity. Before me Mr Barber indicated a desire to return to Darwin to pursue his art. His engagement and connection with his Aboriginal culture is most important. I consider that this Court can now be cautiously optimistic at Mr Barber’s prospects of rehabilitation. In all the circumstances I consider that it would be appropriate to fix a fresh non-parole period. In my view a non-parole period of 11 years and six months commencing 31 March 2004 is the minimum period necessary to achieve the purposes of the head sentence imposed on 21 June 2005.Addendum Within two hours of my having pronounced the above orders the Department for Correctional Services contacted my chambers advising me that the orders were defective. The orders were yet to be perfected. I recalled the orders and called the matter back on for further submissions. Correctional Services was of the opinion that I could not impose a fresh non-parole period for the sentence being served but could only impose a non-parole period in relation to the balance of the sentence yet to be served. Counsel drew my attention to authorities supporting this approach,[4] equally there were authorities that had adopted the same approach as I had.[5] The question has not been conclusively determined by the Full Court. In the end I adopted a pragmatic approach for the reason that it seemed to me that any non-parole period I imposed in the present case should be one that allowed Mr Barber to apply for parole immediately and in that regard he should not be delayed further by these proceedings. I fixed a non-parole period of nine months commencing 12 May 2018.[4] R v Wilson (1999) 203 LSJS 459; R v Brady (2015) 123 SASR 294; R v Fricker [2017] SASC 107, R v Marshal (unreported, SCCRM 252/2008).[5] R v Earley [2014] SASC 202. R v Roberts (2016) 125 SASR 40 appears to approve R v Earley [2014] SASC 202 but not adopt the same approach.