R v Barlow

[2017] ACTSC 90

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Barlow

Citation:

[2017] ACTSC 90

Hearing Dates:

13 December 2016; 3 March 2017

DecisionDate:

11 April 2017

Before:

Penfold J

Decision:

[77] – [82]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – kidnapping – forcible confinement – assault occasioning actual bodily harm – hinder police – possess prohibited weapon – drive while disqualified – drive an unregistered vehicle – drive an uninsured vehicle – assault during confinement charged separately so not an aggravating factor – offences committed to enforce offender’s “rights” through violence and deprivation of liberty – parity of sentences when co-offenders sentenced for different aspects of same incident – whether offences arising out of single incident necessarily justify entirely concurrent sentences – need to ensure total sentence imposed appropriately reflects total criminality of actions – general deterrence important for offences involving considered actions – intensive correction order not available – no requirement for offender to be sentenced or partly sentenced before intensive correction assessment can be ordered.

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 11, 29(1)(b), pt 5.4

Crimes Act 1900 (ACT), ss 24, 32(2)(c), 34, 38(b)

Magistrates Court Act 1930 (ACT), s 90B

Prohibited Weapons Act 1996 (ACT), s 5

Road Transport (Driver Licensing) Act1999 (ACT), s 32(1)

Road Transport (Third-Party Insurance) Act 2008 (ACT), s 17(1)

Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1)

Cases Cited:

Barlow v The Queen [2008] NSWCCA 96; 184 A Crim R 187

Mill v The Queen [1988] HCA 70; 166 CLR 59
R v Eimerl [2015] ACTSC 72
R v Zamagias [2002] NSWCCA 17
The Queen v Hatzis (unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012)

Wronski v Raue [2012] ACTSC 87

Parties:

The Queen (Crown)

Nigel Barlow (Offender)

Representation:

Counsel

Mr T Hickey (Crown)

Mr R Livingston (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 25 of 2016; SCC 37 of 2017; SCC 38 of 2017

The offences

1. On 20 October 2016, Nigel Barlow was found guilty by a jury of four offences, as follows: 

(a)one count of kidnapping, contrary to s 38(b) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 15 years;

(b)one count of forcible confinement, contrary to s 34 of the Crimes Act and carrying a maximum penalty including imprisonment for 10 years; and

(c)two counts of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act and carrying a maximum penalty including imprisonment for five years.

1. Mr Barlow pleaded not guilty in the Magistrates Court, and his trial finally began in the Supreme Court, on 23 September 2016, after several delays not caused by Mr Barlow; on 20 October 2016, the jury returned its verdicts. 

1. In the same trial, the jury acquitted Mr Barlow:

(a)of an aggravated burglary alleged to have been committed, immediately before the other offences, when Mr…