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 |
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
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.
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.
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…
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- AGLC
- R v Barlow [2017] ACTSC 90
- Case
- [2017] ACTSC 90
- Decision Date
CaseChat Overview and Summary
The court examined whether the offences, though arising out of a single incident, necessitated entirely concurrent sentences when co-offenders are sentenced for different aspects of the same incident. It was acknowledged that offences committed to enforce the offender’s “rights” through violence and deprivation of liberty warranted a comprehensive evaluation. The court highlighted the importance of parity in sentencing among co-offenders and the necessity of the total sentence reflecting the total criminality of the actions taken. Additionally, the court noted the significance of general deterrence for offences involving considered actions.
After thorough deliberation, the court determined that while the offences were interconnected, they did not necessarily require entirely concurrent sentences. Instead, the total sentence imposed had to reflect the gravity of Barlow’s actions. The court concluded that an intensive correction order was not appropriate in this case, as it was not a prerequisite for the offender to be sentenced or partly sentenced before such an assessment could be ordered. The final orders detailed the specific sentences to be imposed, ensuring they aligned with the assessed criminality and the need for deterrence.
Orders
Orders of the court
[77] – [82]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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