R v Barker - [2001] NSWSC 295

CITATION: R v Barker [2001] NSWSC 295

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC L13/96

HEARING DATE(S): 30 March 2001

JUDGMENT DATE:
24 April 2001

PARTIES :

Regina v Leonard Samuel Barker

JUDGMENT OF: Studdert J

COUNSEL : L. Lamprati (Crown)
C.B. Craigie/Mr Benson (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Sentencing Act, 1989

CASES CITED: R v Ellis (1986) 6 NSWLR 603
R v Thomson (2000) 49 NSWLR 383
R v Dodd (1991) 52 A Crim R 349
R v Kalache [2000] NSWCCA 2
R v Purdey (1993) 65 A Crim R 441; (1993) 31 NSWLR 668
R v Fenech (unreported, Barr J, 4 September 1997)
R v Salameh [1999] NSWCCA 300
R v Maiden [2000] NSWCCA 519
R v Pearce (1998) 156 A Crim R 684

DECISION: See para 48

IN THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

STUDDERT J

Tuesday 24 April 2001

L13/96 REGINA v LEONARD SAMUEL BARKER

JUDGMENT

1 HIS HONOUR: On 18 November 1988 the applicant, Leonard Samuel Barker, was sentenced to penal servitude for life for the murder of Terrence Trevor Rose. The sentence was expressed to date from the time that the applicant was taken into custody in February 1988. The applicant now seeks the determination of a term and a non parole period for that sentence, and although the application bears a date before its commencement, it is common ground between the applicant and the Crown that this application is governed by Sch 1 to the Crimes (Sentencing Procedure) Act 1999.

2 The evidence placed before the Court on this application has been in part in documentary form and in part by way of oral testimony. The following documents were tendered:

By the Crown:

Statement of facts and annexures identified in that report - Exhibit A

Report of Serious Offenders’ Review Council - Exhibit B

Supplementary report of Serious Offenders’ Review Council - Exhibit C

Custodial history - Exhibit D

Record of interview, Queensland, 15 February 1988 - Exhibit E

Subsequent record of interview with police at Glen Innes - Exhibit F

Record of conviction in South Australia - Exhibit G

Further custodial history - Exhibit H.

By the applicant

Notice of reply to statement of facts - Exhibit 1

3 Oral evidence was given by Mr McConnell, who is the acting secretary of the Serious Offenders’ Review Council, by the applicant, and by two witnesses called by the applicant, Mr Kearns and Mrs Swarbrick.

4 I am required by cl 3 of Sch 1 to the Crimes (Sentencing Procedure) Act to have regard to

“(a) all of the circumstances surrounding the offence for which the sentence was imposed, and

(b) all offences, wherever and whenever committed, of which the offender has been convicted…”

The circumstances surrounding the offence

5 These were referred to in my remarks on sentence dated 18 November 1988 and in the statement of facts, Exhibit A.

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 Barker

Details

AGLC: R v Barker [2001] NSWSC 295
Case: [2001] NSWSC 295
Decision Date: 24 April 2001

CaseChat Overview and Summary

Leonard Samuel Barker was convicted of murder and sentenced to life imprisonment in 1988. Barker now seeks to have a term and a non-parole period set for that sentence. The court must consider all the circumstances surrounding the offence, including the premeditated nature of the crime, the objective gravity of the offence, and the other offences committed by Barker. The court must also consider Barker's age at the time of the offence, the reports of the Serious Offenders’ Review Council, and the need to preserve the safety of the community. The court must consider the contrition expressed by Barker, his plea of guilty, and his cooperation with the police. The court must also consider the later sentences imposed for other crimes committed by Barker. The court has determined that Barker's conduct since imprisonment has been favourable, and he has become a sincere Jehovah’s Witness with support from the religious community. The court has accepted that Barker's contrition is genuine and that the risk of him reoffending if released from custody is minimal.

The court has decided to set a specified term for Barker's sentence for the crime of murder, taking into account the principles of proportionality, totality, and the need for sufficient opportunity for supervision upon release to parole. The court has re-sentenced Barker to a term of twenty-one years imprisonment, commencing on 24 February 1988 and expiring on 23 February 2009, with a non-parole period of sixteen years six months, making Barker eligible for release upon parole on 24 August 2004.

Orders