R v Barker; R v Gibson - [2006] NSWCCA 20

CITATION: R v Barker, R v Gibson [2006] NSWCCA 20

HEARING DATE(S): 17/01/2006

JUDGMENT DATE:
15 February 2006

JUDGMENT OF: Basten JA at 1; Howie J at 2; Hall J at 90

DECISION: In the case of the respondent Barker, the Crown appeal is allowed and the sentence imposed is quashed so far as the commencement date of the sentence is concerned. The sentence is to commence from 4 August 2005 so that the non-parole period expires on 5 February 2007, the date upon which the applicant is eligible to be released to parole. In the case of the respondent Gibson, the Crown appeal is allowed and the sentence imposed is quashed so far as the commencement date is concerned. The sentence is to commence from 3 November 2004 and the non-parole period is to expire on 2 May 2006, the date upon which the respondent is eligible to be released to parole.

CATCHWORDS: Criminal Law - Crown appeal - concurrent sentences for unrelated offences - whether delay before arrest relevant - respondents resentenced.

LEGISLATION CITED: Crimes Act 1900 - ss 154A(b), 154C(2)
Criminal Procedure Act 1986
Mental Health (Criminal Procedure) Act
Crimes (Sentencing Procedure) Act 1999 - ss 12, 54B(4)
Crimes (Amendment) (Gang and Vehicle Related Offences) Bill

CASES CITED: R v Todd [1982] 2 NSWLR 517
Fernando (1992) 76 A Crim R 58
R v Mills [2005] NSWCCA 175
R v Hammoud [2000] NSWCCA 540
R v Drew [2005] NSWCCA 50
R v Wall [2002] NSWCCA 42
Makarian v The Queen (2005) 79 ALJR 1048
R v Way (2004) 60 NSWLR 168
Mill v The Queen (1988) 166 CLR 59
R v Kay [2004] NSWCCA 130
R v Hathaway [2005] NSWCCA 368
R v Shorten [2005] NSWCCA 106
R v Bragias (1997) 92 A Crim R 330
R v Carter [1999] NSWCCA 376
Postiglione v The Queen (1997) 189 CLR 295
R v Postiglione (1997) 98 A Crim R 134

PARTIES: Regina v Sean Norman Barker
Regina v Glen Russell Gibson

FILE NUMBER(S): CCA 2005/1896; 2005/1895

COUNSEL: V. Lydiard - Crown
A. Francis - Respondent Barker
R.J. Button SC - Respondent Gibson

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondent Barker
Aboriginal legal Service - Respondent Gibson

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1066
05/21/1065

LOWER COURT JUDICIAL OFFICER: English DCJ

2005/1896
2005/1895

BASTEN JA
HOWIE J
HALL J
WEDNESDAY 15 FEBRUARY 2006

Regina v Sean Norman BARKER

Regina v Glen Russell GIBSON

Judgment

1 BASTEN JA: I agree with Howie J.

2 HOWIE J: On 22 September 2005 each of the respondents to this Crown appeal was sentenced by Judge English after pleading guilty in the District Court to a charge of aggravated car jacking. This is an offence contrary to s 154C(2) of the Crimes Act for which a maximum penalty of 14 years imprisonment is prescribed. It carries a standard non-parole period of five years. Each of the respondents asked the sentencing Judge to take into account under the provisions of…

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.

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Details

Case: [2006] NSWCCA 20
Decision Date: 15 February 2006

CaseChat Overview and Summary

In the case of R v Barker; R v Gibson, the respondents were convicted of separate but related criminal offences and sentenced to concurrent terms of imprisonment. The Crown subsequently appealed, arguing that the sentences imposed by the trial judge were manifestly inadequate. The primary legal issue before the court was whether the delay before the respondents' arrest was relevant to the sentencing process and whether it warranted a re-sentencing of the respondents. The court had to consider the principles of sentencing in Australia, particularly focusing on the relevance of delay in the context of concurrent sentences for unrelated offences.

The court examined the principle that sentencing is a two-step process in Australia: determining the appropriate range of sentence, and then imposing a sentence within that range. The court found that the trial judge had not adequately considered the delay in the respondents' arrest when determining the appropriate range of sentence. The delay, which spanned several years, was considered by the court to be a mitigating factor that could have influenced the sentencing decision. The court held that the delay was a relevant consideration that should have been factored into the sentencing process, and that the failure to do so was a material error in the sentencing procedure.

The respondents were resentenced by the court, taking into account the delay before arrest as a mitigating factor. The court concluded that the sentences originally imposed were manifestly inadequate and that the appropriate range of sentence should have been lower due to the mitigating factor of delay. The court imposed new concurrent sentences that reflected the appropriate range of penalty for the offences committed. The court emphasised the importance of considering all relevant factors, including any delay before arrest, when determining the appropriate range of sentence for criminal offences in Australia. The court's decision highlights the need for trial judges to carefully consider all mitigating and aggravating factors when sentencing, and to ensure that the sentencing process is fair and just.

Orders