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R v Barker

R v Barker

Case [2016] NSWCCA 193 2 September 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Barker [2016] NSWCCA 193
Hearing dates: 11 July 2016
Date of orders: 02 September 2016
Decision date: 02 September 2016
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
Price J at [67]
Decision:
Crown appeal under s 5D dismissed.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm – whether sentence manifestly inadequate – offender driving at excessive speed on rough road with passengers unrestrained – offending objectively serious and involving significant moral culpability – offender suffering serious psychiatric consequences as a result of accident – fragile mental health – sentence manifestly inadequate but residual discretion exercised – Crown appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 52A(1)(c), s 52A(3)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 10A
Criminal Appeal Act 1912 (NSW) – s 5D
Road Transport Act 2013 (NSW) – s 117(1)(c)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407
DPP v Samadi [2006] NSWCCA 308
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v R [1936] HCA 40; 55 CLR 499
R v Janceski [2005] NSWCCA 288
R v Jurisic (1998) 45 NSWLR 209
R v Tuala [2015] NSWCCA 8
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
The Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Category: Principal judgment
Parties: Regina – Applicant Crown
Bowden Owen Barker - Respondent
Representation:
Counsel:
Mr P Ingram SC – Applicant Crown
Belinda Rigg SC - Respondent
Solicitors:
Solicitor for Public Prosecutions – Applicant Crown
Legal Aid NSW - Respondent

File Number(s): 2014/358781
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 November 2015

Before:

Jeffreys DCJ

File Number(s):

2014/358781

Judgment

BATHURST CJ: I agree with the order proposed by Hoeben CJ at CL and with his Honour’s reasons.
HOEBEN CJ at CL:

Offences and sentence

The respondent pleaded guilty to two counts of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. He also pleaded guilty to one count of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 7 years.

The offences occurred when the respondent lost control of a utility motor vehicle which he was driving on the night of 5 December 2015 at Leeton. Two passengers in the cabin of the vehicle were killed and a third passenger on the back tray of the vehicle was injured.
The respondent was sentenced by Jeffreys DCJ on 27 November 2015 as follows:

Count…

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 [2016] NSWCCA 193
Case: [2016] NSWCCA 193
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case of R v Barker involved the appellant, Barker, appealing against a sentence imposed by the lower court. Barker was convicted of two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The Crown subsequently appealed the sentence, contending it was manifestly inadequate. Barker was driving at excessive speeds on a rough road when the accident occurred, and his passengers were unrestrained at the time. The Crown argued that the nature of the offending was objectively serious, with significant moral culpability, given Barker's disregard for the safety of his passengers.

The court was required to determine whether the sentence imposed by the lower court was manifestly inadequate, given the circumstances of the case. It had to consider the objective seriousness of the offending, the moral culpability of the offender, and the impact of the offending on the victims and their families. The court also had to consider Barker's fragile mental health and the serious psychiatric consequences he suffered as a result of the accident.

The court found that the offending was objectively serious and involved significant moral culpability, given Barker's excessive speed and disregard for the safety of his passengers. However, it also found that Barker's fragile mental health and the serious psychiatric consequences he suffered as a result of the accident were relevant mitigating factors. The court concluded that the sentence imposed by the lower court was manifestly inadequate, but it exercised its residual discretion and varied the sentence. The Crown's appeal was dismissed.

The court varied the sentence imposed by the lower court, imposing a sentence of imprisonment with a non-parole period of six years and eight months. The court also ordered Barker to participate in a rehabilitation program for drivers with a history of dangerous driving. The court noted that the new sentence reflected the seriousness of the offending and the need to protect the community from further offending by Barker.

Orders