R v Barker No. Sccrm-98-85 Judgment No. S6727

[1998] SASC 6727

R  v  BARKER

Court of Criminal Appeal:  Doyle CJ, Olsson and Bleby JJ

DOYLE CJ

This is an appeal against sentence.  The ground of appeal is that the sentence is manifestly excessive.  The case is, for reasons which will appear, a very difficult one. 

At the time of the offences the appellant was almost 37 years of age.  He had had a very disturbed childhood, due in particular to a very poor relationship with his mother.   The appellant, as a result of the circumstances of his childhood, was left with a deep sense of inferiority and insecurity.  From about the age of 14 the appellant lived away from home. 

The effects of his childhood appear to be revealed by his long record of offending.  His recorded offences began in 1977 when he was about 17 years of age.  It seems, however, that his offending actually began at a younger age.  The offences have continued since then. 

He has repeated convictions for theft, breaking and entering, driving offences, assaults, wilful damage, and there are other offences as well.  He has a conviction for arson in 1982 and for threatening to kill in 1987. 

The appellant has spent much of his adult life in prison.  He has had periods on parole but on some occasions has offended while on parole.  He was on parole when the offences in question were committed. 

According to a report provided to the sentencing judge, his response to parole on this latest occasion was acceptable until he ceased to report. 

The picture that one gets is of a sad and wasted life.   The appellant’s childhood has undoubtedly contributed to that, but he must accept some of the responsibility as well.  The position was summarised in a pre-sentence report.  The writer there said:

“Schooling was not a rewarding experience and he left at the age of 13 to work with his father.  Alcohol consumption became a problem.  This has continued to be a problem in his life and has often led to offending.  He has been assessed by psychiatrists, most recently in 1994.  Dr Raeside did not believe Mr Barker had a mental illness but identified alcohol dependency as his major problem.  He has spent a large part of the past 15 years in prison or under supervision on parole or probation.  During his last period of imprisonment he applied himself to a number of courses to improve his social skills and improve his chances of rehabilitation.  His ability to manage relationships is poor due to many years spent in prison.  This is likely to remain to be so without much work and effort aimed at helping him understand how to improve his ways of dealing with disappointments, failures, rejection and other struggles which he will face in the course of his life.”

The offences occurred as follows.  While in prison the appellant was befriended by Ms B.  The friendship flourished.  She was instrumental in the appellant being released on parole.  They began to live together.

The appellant’s counsel described the situation to the sentencing judge in words which aptly summarise the situation and which I will quote.  He said:

“To Mr Barker all of this was really just a dream come true in many respects because here, for the first time in his life, he felt as though somebody really was caring about him.”

A little later he went on to say that was an experience that he had not had in his life despite his 36 years or so.   At that time he had not had that type of relationship with a woman.  Unfortunately things did not work out.  Who was at fault does not matter.  However, the appellant’s long years in prison had left him ill equipped to deal with normal relationships, and that undoubtedly played a part. 

Ms B indicated that she did not want to remain with the appellant.  He left.  But the appellant could not accept what had happened, and probably did not understand what had happened.  The appellant began to telephone Ms B demanding explanations.  On the day of the offences the appellant telephoned Ms B.  He made what the judge called “vicious and extremely frightening threats”.  He said that he was coming to her home.  Not surprisingly, she fled to a friend’s home. 

On arrival at Ms B’s home the appellant telephoned her at her friend’s home and made further threats.  He then did a considerable amount of damage to the house and set fire to it.  Fortunately the fire did not do much damage. 

As a result of that the appellant was charged with threatening life, attracting a maximum of 10 years’ imprisonment; arson, attracting a maximum of 2 years’ imprisonment and damaging property, also attracting a maximum of 2 years’ imprisonment. 

The circumstances of the offences are sad, because here we have a man, in circumstances which might have led to better things, committing further offences.  A factor in those offences is probably the fact that his time in prison has left him unable to cope with normal domestic life.   However, the offences are very serious.  The house might have burned down.  Ms B was, not surprisingly, terrified by the threats made to her.  The victim impact statement reveals that she continues to suffer the effects of this behaviour. 

The sentencing judge had no choice but to imprison the appellant, even though one feels a sense of hopelessness in doing so.  He imposed a single sentence of 5 years 6 months’ imprisonment.  The appellant is also liable to serve the balance of a previous term of imprisonment amounting to one year 10 months 28 days.

In relation to the total head sentence of 7 years 4 months 28 days the sentencing judge fixed a non-parole period of 5 years.  The issue is whether that is excessive. 

The appellant complains that the judge made insufficient allowance for the plea of guilty that was entered.  The judge said that he would have imposed a sentence of 7 years.  He took off nine months to allow for time spent in custody, although it appears actually to have been closer to eight months, and nine months for the plea of guilty.  The judge described the plea of guilty as late, and so it was, coming on the day of trial. 

Counsel submitted to the judge that, had the appellant had detailed advice sooner than he did, the appellant would have pleaded guilty sooner.  Certain other matters were put; in particular the fact that the appellant all along denied his guilt of a further offence in relation to which the Crown ultimately entered a nolle prosequi.  No evidence was led in support of that submission. 

In my opinion the court must be cautious about accepting such a submission and the judge was not obliged to accept it.  Nevertheless, I must say that the discount seems to me to be low and, in my opinion, it was too low.   I will return to this issue in due course. 

A complaint was also made that judge should have treated as a mitigating circumstance the factor that the offences were committed as a result of the collapse of a relationship that had constituted one of the few glimmers of hope in the appellant’s life.  Indeed, it was submitted that the judge had regarded the circumstances as a matter of aggravation, rather than of mitigation. 

In my opinion the circumstances of the offence did, to some extent, go in mitigation, but the offences remain very serious, and they show tragically that the appellant is a man who does not understand, or cannot act within, the limits that society sets upon individuals and the demands that they may make of others.  Unfortunately the favourable and unfavourable aspects of the circumstances tend to be about the same.  Moreover, it is not uncommon for men in our society tend to use violence against women when relationships between them are under stress.  The law must do what it can to protect women from this.  I find no error in the judge’s approach on that particular aspect. 

A complaint was made that the judge erred in saying that the prospects of rehabilitation were “extremely remote”.  There was some material that suggests a change of attitude on the appellant’s part.  On the other hand, the appellant’s poor record speaks for itself, as does the pre-sentence report.  However, I consider that to describe the prospects of rehabilitation as “extremely remote” was too strong, although the prospects of rehabilitation are not particularly good.  I consider that the sentencing judge was too pessimistic in that respect.  Whether that amounts to error in itself does not matter for reasons which will appear. 

Finally, counsel drew attention to the totality principle, and referred both to the head sentence and the sentence yet to be served.  I mention in passing that, as well the sentence to which I have referred, there is the prospect of the appellant having to serve the balance of a sentence in the Northern Territory of 12 months. 

In my opinion the sentence imposed cannot be regarded, in itself, as so crushing that it should be reduced on that score.  However, when one bears in mind the period yet to be served in South Australia, and the risk of the appellant having to serve a further period in the Northern Territory, it seems to me that there were grounds upon which his Honour might well have started from a lower starting point than a sentence of 7 years’ imprisonment. 

In the light of those comments, I return to the ultimate question of whether the sentence was manifestly excessive. 

I consider the cumulative impact of all of the matters adverted to, both those where I consider that the judge erred and those where I found no error.  These were serious offences, although in the end nothing came of the threats.   At the time they must have been terrifying.  The victim must have feared that they would be carried out. 

The appellant has a dreadful record.  The offences cannot be regarded as an aberration unlikely to be repeated.  The offences call for significant punishment because of their seriousness and because of the need to deter others.

One can only speculate about the effect upon the appellant of the deterrent aspect of the sentence.  I suspect that the appellant’s best interests lie in him returning to society as soon as possible under close supervision.  Only in that way is he likely to learn how to live in society.  Unfortunately, the sentence cannot be fixed by reference to his interests alone.  The reality is that when released there is a risk that he will reoffend.    The protection of society, and the need for personal deterrence even now, remain factors.  They remain factors even though the appellant’s record suggests that imprisonment has lost any significant deterrent effect upon him, and is likely to add to his institutionalisation and his difficulty in adjusting in society. 

As I said at the outset, the case is both sad and difficult.  Many factors point towards a heavy sentence, although, on the other hand, there are factors that incline one to be merciful.  But, weighing up all the circumstances, I consider that the sentence imposed was too high.  Having given the matter careful thought, I consider that that starting point of 7 years’ imprisonment was too high.  Although the offences are serious, a sentence of 7 years before reduction on account of the matters to which the judge referred, was, as I have said, too high a starting point. 

I also consider that the circumstances of the offences, by which I mean the stress under which the appellant acted, required a somewhat lesser starting point.  I consider that a lower starting point is also supported by reference to the impact of the sentences yet to be served.  As well the plea of guilty does suggest remorse and contrition.  Under the special circumstances I consider that the appellant should have been shown more leniency on that score than the judge showed. 

I, therefore, take as a starting point a sentence of 5 years’ imprisonment.  On account of the period of imprisonment served, which is closer to eight months, as I said earlier, than nine months, I will reduce the sentence to 4 years and 4 months. 

For the plea of guilty I will deduct a further nine months which results in a head sentence of 3 years 7 months.  To that I would add the unexpired period to be served of one year, 10 months, 28 days.  The effective head sentence then becomes 5 years 5 months 28 days.  In relation to the combined head sentence I would fix a non-parole period of 3 years and 3 months, which is a relatively low proportion of the head sentence for a person with the appellant’s record.  I would, therefore, allow the appeal and substitute the sentences that I have indicated. 

OLSSON J:               I agree. 

BLEBY J:                  I agree with the order proposed by the learned Chief Justice and the reasons that he has given. 

DOYLE CJ:               Accordingly, the order of the court is as follows:

(1)... Appeal allowed;

(2)... Set aside the sentence imposed by the District Court;

(3)... Substitute a sentence of 3 years 7 months’ imprisonment;

(4)... Order that the appellant also serve the unexpired period of imprisonment being one year 10 months 28 days;

(5)... In relation to the combined head sentences of 5 years 5 months, 28 days, fix a non-parole period of 3 years, 3 months.