R v Barlow - [2010] NSWCCA 215

Reported Decision: 204 A Crim R 111

New South Wales

Court of Criminal Appeal

CITATION: R v Barlow [2010] NSWCCA 215

HEARING DATE(S): 27 July 2010

JUDGMENT DATE:
22 September 2010

JUDGMENT OF: Allsop P at 1; Price J at 4; McCallum J at 8

DECISION: i. Appeal allowed in part;
ii. Sentence imposed on 23 April 2010 quashed;
iii. In lieu, sentenced to a non-parole period of 13 months 2 weeks to date from 8 May 2010 and expire 21 June 2011, with a balance of term of 15 months to date from 22 June 2011 and expire 21 September 2012, to be served by way of periodic detention.

CATCHWORDS: CRIME – sentencing – crown appeal – whether judge gave inadequate weight as to objective seriousness of offence – whether erred in taking into account the need not to deter parents from reporting unlawful conduct of their children – whether sentence manifestly inadequate – sentencing discretion properly exercised

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v MacDonnell [2002] NSWCCA 34
R v Ellis (1986) 6 NSWLR 603
Ryan v R [2001] HCA 21; (2001) 206 CLR 267
R v Knight, R v Biuvanua [2007] NSWCCA 283
R v Cheh [2009] NSWCCA 134
R v McEvoy [2010] NSWCCA 110
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575

PARTIES: Regina
Gregory Peter Barlow

FILE NUMBER(S): CCA 2009/12010

COUNSEL: P. Miller (Crown)
A. Francis (Respondent)

SOLICITORS: Solicitor for Public Prosecutions
Legal Aid Commission

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/12010

LOWER COURT JUDICIAL OFFICER: Charteris J

LOWER COURT DATE OF DECISION: 23 April 2010

- 19 -

2009/12010

ALLSOP P
PRICE J
McCALLUM J

22 September 2010

GREGORY PETER BARLOW v R

Judgment

1 ALLSOP P

: I have read the reasons in draft of McCallum J and the additional reasons of Price J. Subject to one comment, more by way of addition than qualification, I agree with both. I also agree with the orders proposed by McCallum J.

2 The comment relates to ground seven, concerning the use made by the sentencing judge of the fact that Mr Barlow’s parents alerted the police to their suspicions about their son. I particularly agree with [46] of the reasons of McCallum J in this regard. The decision taken by Mr Barlow’s parents could not have been easy. Realistically, it was a decision that many parents would baulk at. Even more would they baulk if they thought that the law would take it as a matter of no account in the sentencing process. Section 3A of Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the statutory purposes of sentencing. It finds its place in the judicial task. That task is informed by common sense, the protection of the public, fairness and humanity,…

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 Barlow

Details

AGLC: R v Barlow [2010] NSWCCA 215
Case: [2010] NSWCCA 215
Decision Date: 22 September 2010

CaseChat Overview and Summary

The case of R v Barlow came before the court as an appeal by the Crown against a sentence imposed by a lower court. The defendant, Barlow, was found guilty of certain criminal offences and sentenced to a term of imprisonment. The Crown appealed the sentence, arguing that the sentencing judge had not adequately considered the objective seriousness of the offence, had improperly taken into account the need to encourage parents to report unlawful conduct by their children, and had imposed a sentence that was manifestly inadequate. The court was required to determine whether the sentencing judge had exercised his discretion properly and whether the sentence was appropriate in all the circumstances.

The legal issues before the court centred on the principles of sentencing and the extent to which the sentencing judge had properly exercised his discretion. The Crown contended that the judge had failed to give sufficient weight to the gravity of the offence and had erred in considering the need to promote parental reporting of criminal conduct. The court needed to assess whether the sentence imposed was manifestly inadequate and whether the judge's approach to sentencing was flawed. The defence argued that the sentence was appropriate given the circumstances of the case and the judge's consideration of relevant mitigating factors.

In delivering its judgment, the court considered the principles of sentencing and the factors that a sentencing judge should take into account. The court held that the sentencing judge had not given adequate weight to the objective seriousness of the offence and had erred in considering the need to encourage parental reporting. However, the court found that the sentence imposed was not manifestly inadequate when considered in the context of the particular circumstances of the case. The court concluded that the sentencing judge had exercised his discretion properly and dismissed the Crown's appeal.

The court's final orders were that the appeal by the Crown against the sentence imposed on Barlow be dismissed. The original sentence was upheld as appropriate and not manifestly inadequate.

Orders