R v Barling - [1999] QCA 16

99.16

COURT OF APPEAL

de JERSEY CJ
McMURDO P
McPHERSON JA

CA No 304 of 1998

THE QUEEN

STEVEN ALBERT BARLING (Applicant)

BRISBANE

..DATE 05/02/99

JUDGMENT

THE CHIEF JUSTICE: I will ask the President to deliver the first judgment.

THE PRESIDENT: On 5 May 1998 at the District Court at Maryborough the applicant pleaded guilty to one count of arson of a caravan on 4 October 1997. He was sentenced to five years' imprisonment with no recommendation for parole, but with a recommendation that he receive treatment whilst in prison. He was 22 years of age at the time of offence and 23 at sentence.

His criminal history consisted of one entry involving an offence of assaulting police and one of obstructing police, for which he was fined in total $150 with no conviction recorded. The penalty imposed suggests that assault was probably a relatively minor incident, but the learned trial Judge placed very considerable weight on those offences, stating:

"The offender has shown a tendency to violence in the past. Whether or not it's fashionable these days to regard assaulting police officers as a minor matter, he's got a conviction for that back in 1994, and one of obstructing police as well. Violence is not a stranger to him. I consider that he's one quite likely to lapse into acts of violence."

I must say that I am not persuaded that that conclusion reached by the learned Judge below and his view of the seriousness of those prior matters is correct.

The facts are as follows. The applicant was in a relationship with the female complainant for about 18 months. They lived

together from time to time in a caravan, which they jointly owned but which the applicant largely paid for.

After a dispute he destroyed some of the complainant's property, and in a fit of remorse told her she could have the caravan to repay her for the damage he had caused. On

3 October 1997 the complainant went to a nightclub and asked the applicant not to come. He nevertheless went to the nightclub and abused her, accusing her of having sex with some of the men with whom she was in company.

She left the nightclub for a time and then returned, finally returning home to her parents' place where her caravan was situated in the early hours of the morning. She there found the caravan and all her possessions had been destroyed by fire. It seems the applicant had left the nightclub for his mother's home, where he grabbed a can of petrol, which turned out to be empty, and went to the caravan.

He banged on the caravan, and having ascertained no one was home then lit a curtain in the van. He drove home and told his mother and brother what he had done. During the fire the complainant's mother became distraught, believing her daughter was inside the burning van. The value of the destroyed property was in excess of $10,000.

The…

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 Barling

Details

AGLC: R v Barling [1999] QCA 16
Case: [1999] QCA 16
Decision Date: 5/02/1999

CaseChat Overview and Summary

In the case of R v Barling, the applicant, Steven Albert Barling, appealed against his sentence for arson. The District Court at Maryborough had sentenced Barling to five years' imprisonment without a recommendation for parole, but with a recommendation for treatment while in prison. Barling had pleaded guilty to one count of arson of a caravan on 4 October 1997. The legal issues before the Court of Appeal were whether the learned trial Judge had erred in his application of the Penalties and Sentences Act 1992 and whether the sentence imposed was appropriate. The Court found that the learned trial Judge had erred in concluding that Barling believed or did not care whether the complainant was in the caravan when he lit the curtain. The Court held that the applicant did not believe any person was present in the caravan when he lit the caravan curtain, and therefore the provisions of section 9(3) of the Penalties and Sentences Act could not apply. The Court also found that Section 3 of the Penalties and Sentences Act did not refer to property offences which result in psychological or emotional distress to complainants. The Court exercised its discretion to re-sentence Barling and imposed a term of imprisonment for three years with a recommendation for consideration for eligibility for parole after he had served 12 months.
The final orders of the Court were that the application was granted and the appeal allowed. The sentence of five years imprisonment imposed below was set aside, and the applicant would be sentenced to three years imprisonment with a recommendation for consideration for eligibility for parole after he had served 12 months. The Court of Appeal set aside the original sentence and imposed a new sentence of three years imprisonment with a recommendation for parole after 12 months.

Orders