R v Barker - [2022] NSWDC 259

District Court

New South Wales

Medium Neutral Citation: R v Barker [2022] NSWDC 259
Hearing dates: 24 February 2022
Decision date: 25 February 2022
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted on each count.
Special circumstances found to restore the statutory ratio between the non-parole period and balance of term.
Indicative sentences of imprisonment:
2020/00356542/001: 4 years + NPP of 3 yrs
2020/00356563/001: 2 years
2020/00356549/001: 1 year
2020/00356549/002: 18 months
2020/00356549/003: 5 months
Aggregate sentence:
Sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years to commence on 22 July 2021 and expiring on 21 July 2025, and a balance of term of 2 years commencing on 22 July 2021 and expiring on 21 July 2027.
The offender is eligible for parole on 21 July 2025.
2020/00356549/003:
Automatic disqualification period of 3 years applies.
I order that the offender pay compensation in the amount of $2511.77 to CGU Insurance

Catchwords:
CRIMINAL – sentence – aggravated break, enter and steal in company - assault occasioning actual bodily harm – common assault – police pursuit – drive in manner dangerous – seriousness of offences – subjective matters – extent to which Bugmy & Fernando principles apply - institutionalisation - drug abuse – remorse and contrition - rehabilitation prospects

Legislation Cited:
Crimes Act 1900
Road Transport Act 2013
Victims Rights and Support Act 2013

Cases Cited:
Bugmy v R [2013] HCA37
CallaghanvR [2006] NSWCCA 58
RvFernando [2002] NSWCCA 28 at 42
RvHuynh [2003] NSWCCA 239
RvMcVittie [2002] NSWCCA 344
R v Millwood [2012] NSWCCA 2
RvMoffatt [1990] 20 NSWLR 114

Category: Sentence
Parties: Regina
Barker, Edward James
Representation: Solicitors:
Crown: Ms I Fay, Office of the Director of Public Prosecutions, NSW
Defence: Ms L Connell, Legal Aid NSW

File Number(s): 2020/00356549
2020/00356563

Judgment

HIS HONOUR: Edward Barker appears for sentence in respect of a number of offences, the first of which is aggravated break, enter and steal in company, contrary to s112(2) of the Crimes Act 1900. The maximum penalty provided is 20 years' imprisonment and there is a relevant standard non‑parole period of five years.
For the second offence, assault occasioning actual bodily harm, contrary to s59 of the Crimes Act; the maximum penalty is five years' imprisonment.
The third offence is common assault, contrary to s61 of the Crimes Act, and the maximum penalty is two years' imprisonment.
The fourth offence is police pursuit, not stop, drive dangerously, contrary to s51B(1) of the Crimes Act; and the maximum penalty is three years' imprisonment.
The final offence is drive in a manner dangerous, contrary to s117(2) of the Road Transport Act 2013, and the maximum penalty is nine months' imprisonment and/or 20 penalty units. There is an automatic disqualification period of three years with a minimum disqualification period of 12 months.
Mr Barker entered pleas of guilty to all the offences on 2 November 2021 at the Central Local…

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 [2022] NSWDC 259
Case: [2022] NSWDC 259
Decision Date: 25 February 2022

CaseChat Overview and Summary

In the case of R v Barker, the offender was convicted of multiple offences, including aggravated break, enter and steal in company, assault occasioning actual bodily harm, common assault, dangerous driving, and police pursuit. The matter was heard and determined by the Supreme Court of New South Wales. The primary issue for the court was to determine the appropriate sentence for the offender, taking into account the seriousness of the offences, subjective matters, the principles of Bugmy and Fernando, and the offender's prospects for rehabilitation.

The court considered the aggravating and mitigating factors of the case. Aggravating factors included the seriousness of the offences, the offender's history of drug abuse, and the fact that the offences were committed in the context of a police pursuit. Mitigating factors included the offender's expression of remorse and contrition, the institutionalisation of the offender, and the offender's prospects for rehabilitation. The court also considered the principles of Bugmy and Fernando, which emphasise the importance of taking into account an offender's Indigenous background and any disadvantages they may have faced in determining an appropriate sentence.

After considering all of the evidence and arguments presented, the court determined that the offender was guilty on each count. The court found that special circumstances existed which restored the statutory ratio between the non-parole period and the balance of the term. The court imposed indicative sentences of imprisonment for each offence, taking into account the seriousness of the offences, the offender's history of drug abuse, and the principles of Bugmy and Fernando. The court also ordered that the offender pay compensation to the victim in the amount of $2511.77.

The court sentenced the offender to a term of imprisonment for 6 years with a non-parole period of 4 years to commence on 22 July 2021 and expire on 21 July 2025, and a balance of term of 2 years commencing on 22 July 2021 and expiring on 21 July 2027. The offender is eligible for parole on 21 July 2025. The court also imposed an automatic disqualification period of 3 years for one of the offences, and ordered that the offender pay compensation in the amount of $2511.77 to CGU Insurance.

Orders

Orders of the court

Convicted on each count.

Special circumstances found to restore the statutory ratio between the non-parole period and balance of term.

Indicative sentences of imprisonment:

2020/00356542/001: 4 years + NPP of 3 yrs

2020/00356563/001: 2 years

2020/00356549/001: 1 year

2020/00356549/002: 18 months

2020/00356549/003: 5 months

Aggregate sentence:

Sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years to commence on 22 July 2021 and expiring on 21 July 2025, and a balance of term of 2 years commencing on 22 July 2021 and expiring on 21 July 2027.

The offender is eligible for parole on 21 July 2025.

2020/00356549/003:

Automatic disqualification period of 3 years applies.

I order that the offender pay compensation in the amount of $2511.77 to CGU Insurance

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:	R v Barker [2022] NSWDC 259
Hearing dates:	24 February 2022
Decision date:	25 February 2022
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted on each count. Special circumstances found to restore the statutory ratio between the non-parole period and balance of term. Indicative sentences of imprisonment: 2020/00356542/001: 4 years + NPP of 3 yrs 2020/00356563/001: 2 years 2020/00356549/001: 1 year 2020/00356549/002: 18 months 2020/00356549/003: 5 months Aggregate sentence: Sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years to commence on 22 July 2021 and expiring on 21 July 2025, and a balance of term of 2 years commencing on 22 July 2021 and expiring on 21 July 2027. The offender is eligible for parole on 21 July 2025. 2020/00356549/003: Automatic disqualification period of 3 years applies. I order that the offender pay compensation in the amount of $2511.77 to CGU Insurance
Catchwords:	CRIMINAL – sentence – aggravated break, enter and steal in company - assault occasioning actual bodily harm – common assault – police pursuit – drive in manner dangerous – seriousness of offences – subjective matters – extent to which Bugmy & Fernando principles apply - institutionalisation - drug abuse – remorse and contrition - rehabilitation prospects
Legislation Cited:	Crimes Act 1900 Road Transport Act 2013 Victims Rights and Support Act 2013
Cases Cited:	Bugmy v R [2013] HCA37 CallaghanvR [2006] NSWCCA 58 RvFernando [2002] NSWCCA 28 at 42 RvHuynh [2003] NSWCCA 239 RvMcVittie [2002] NSWCCA 344 R v Millwood [2012] NSWCCA 2 RvMoffatt [1990] 20 NSWLR 114
Category:	Sentence
Parties:	Regina Barker, Edward James
Representation:	Solicitors: Crown: Ms I Fay, Office of the Director of Public Prosecutions, NSW Defence: Ms L Connell, Legal Aid NSW
File Number(s):	2020/00356549 2020/00356563