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R v Barmby

R v Barmby

Case [2007] SASC 354 2 October 2007

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SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BARMBY
[2007] SASC 354
Judgment of The Honourable Justice Gray
2 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Application for permission to appeal against conviction and sentence - application for extension of time for permission to appeal against sentence - applicant found guilty by jury trial of causing grievous bodily harm with intent to do grievous bodily harm - applicant sentenced by District Court Judge to a period of imprisonment comprising head sentence of five years and seven months and non-parole period of two years and nine months - appeal on grounds that verdict was unsafe and unsatisfactory and sentence was manifestly excessive in all the circumstances - consideration of circumstances of delay in filing notice of appeal against sentence - delay was not substantial - explanation for delay was reasonable and not due to fault of applicant - consideration of matters raised by counsel for the applicant concerning evidence relevant to causation and intent - material before court gave rise to a reasonable possibility of an unsafe or unsatisfactory verdict - consideration of sentencing discretion - sentencing Judge had regard to all relevant matters in exercising sentencing discretion - not reasonably arguable that the sentence imposed was manifestly excessive.
Held: application for permission to appeal against conviction allowed - application for extension of time for permission to appeal against sentence granted - application for permission to appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 21, s 352, s 357 and s 367; Supreme Court Criminal Appeal Rules 1996 (SA) rule 4A, referred to.
Modra v Police [2006] SASC 52; R v Raad (2006) 15 VR 338; R v Blick (1999) 108 A Crim R 525; R v Collie [2007] SASC 293; R v Lennon (2003) 86 SASR 295; R v Shannon (1979) 21 SASR 442; R v Makevits [2006] SASC 73; R v Malesvic (1999) 204 LSJS 32; Kells v Police [2007] SASC 224; R v Christiansen [2006] SASC 274; R v Allen [1999] SASC 346, considered.

R v BARMBY
[2007] SASC 354
Criminal
GRAY J.

This is an application for permission to appeal against conviction and sentence. The applicant also seeks an order extending the time for making the application to appeal against sentence.
Introduction
On 10 July 2007, the applicant, Mark Andrew Barmby, was convicted after trial by jury in the District Court of South Australia, of causing grievous bodily harm with intent to do grievous bodily harm, contrary to section 21 of the Criminal Law Consolidation Act 1935 (SA). On 17 August 2007, the applicant was sentenced by a District Court judge to a period of imprisonment comprising a head sentence of five years and seven months and a non-parole period of two years…

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 Barmby

Details

AGLC: R v Barmby [2007] SASC 354
Case: [2007] SASC 354
Decision Date: 2 October 2007

CaseChat Overview and Summary

The case of R v Barmby involved an applicant who was convicted by a jury of causing grievous bodily harm with intent, and subsequently sentenced by a District Court Judge to imprisonment. The applicant sought permission to appeal against both the conviction and the sentence, arguing that the verdict was unsafe and unsatisfactory and that the sentence was manifestly excessive. The applicant also sought an extension of time for filing the notice of appeal against the sentence.

The court had to determine whether the delay in filing the notice of appeal against the sentence was substantial and whether the explanation provided for the delay was reasonable and not due to the applicant's fault. The court also needed to consider the arguments raised by counsel concerning the evidence relevant to causation and intent, and whether the sentence imposed was manifestly excessive. The court examined the circumstances under which the sentencing judge exercised his discretion, including whether he had regard to all relevant matters.

The court found that the delay in filing the notice of appeal against the sentence was not substantial, and the explanation provided for the delay was reasonable and not due to the applicant's fault. The court also found that the material before it gave rise to a reasonable possibility of an unsafe or unsatisfactory verdict. However, the court held that the sentencing judge had regard to all relevant matters in exercising his sentencing discretion, and it was not reasonably arguable that the sentence imposed was manifestly excessive.

Accordingly, the court allowed the application for permission to appeal against the conviction, granted the application for an extension of time within which to bring an application for permission to appeal, and dismissed the application for permission to appeal against the sentence. The court's decision was based on a careful consideration of the circumstances of the case, the arguments raised by the applicant, and the relevant legal principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

As earlier observed, although the applicant had no relevant prior convictions, and no history of violence toward the victim, the applicant’s conduct was violent and brutal. He intentionally caused very serious injuries to the victim. Given the maximum penalty for this offence, the head sentence and non-parole period were well within the Judge’s discretion. As outlined above, the Judge had regard to all relevant matters in exercising his sentencing discretion. I do not consider that it is reasonably arguable that the sentence imposed is manifestly excessive. Accordingly permission to appeal against sentence is not granted.Conclusion I make the following orders:-Application for permission to appeal against conviction is allowed.-Application for an extension of time within which to bring an application for permission to appeal is allowed.-Application for permission to appeal against sentence is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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Citations

AGLC Citation

R v Barmby [2007] SASC 354

Most Recent Citation

Nadler v Police [2008] SASC 242

Cases citing this decision · 2 of 2 shown

Snodgrass v The Queen
[2021] SASCFC 20 Para 9

…would dismiss the appeal. [43] R v Parenzee [2007] SASC 316; (2007) 101 SASR 456 at [22] (Doyle CJ, with Anderson and Kelly JJ agreeing); R v Barmby [2007] SASC 354 at [12] (Gray J).…
Nadler v Police
[2008] SASC 242 Para 31

…nces I consider that it is appropriate to grant an extension of time to appeal. [3] Police v Warren [2000] SASC 285 at [16]-[17]. See also R v Barmby [2007] SASC 354 at [10]-[11]; Modra v Police [2006] SASC 52 at [32]. Grounds of Appeal…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Shannon
[2019] NSWDC 942 Para 1

…ry according to the circumstances of the case such as the wounding, the use of a weapon, the type of weapon and the injury sustained. [9] R v Shannon (1979) 21 SASR 442 at 446. [10] R v Makevits [2006] SASC 73. [11] R v Makevits [2006] SASC 73 at [44].…
R v Collie
[2007] SASC 293 Para 28

…our years with a non-parole period of 20 months was imposed. It is relevant in Lennon that the defendant pleaded guilty to the charge. [7] R v Collie [2007] SASC 293. [8] R v Lennon (2003) 86 SASR 295.…
Kells v Police
[2007] SASC 224 Para 3

…may be discounted where it was imposed after a defendant had breached other bail conditions.[13] [12] R v Malesvic (1999) 204 LSJS 32; Kells v Police [2007] SASC 224. [13] R v Christiansen [2006] SASC 274. See also R v Allen [1999] SASC 346.…
R v Christiansen
[2006] SASC 274 Para 3

…after a defendant had breached other bail conditions.[13] [12] R v Malesvic (1999) 204 LSJS 32; Kells v Police [2007] SASC 224. [13] R v Christiansen [2006] SASC 274. See also R v Allen [1999] SASC 346.…
R v RAAD
[2006] VSCA 67 Para 12

…. That would be to pre-empt the appeal and to deny the applicant due process. This is the approach that I respectfully propose to adopt. [2] R v Raad (2006) 15 VR 338 at [21]. [3] R v Raad (2006) 15 VR 338. [4] R v Raad (2006) 15 VR 338 at [1], [21] to [23], [46] per Maxwell P, Callaway and Eames JJA. [5] R v Blick…
R v Makevits
[2006] SASC 73 Para 1

…such as the wounding, the use of a weapon, the type of weapon and the injury sustained. [9] R v Shannon (1979) 21 SASR 442 at 446. [10] R v Makevits [2006] SASC 73. [11] R v Makevits [2006] SASC 73 at [44].…
Modra v Police
[2006] SASC 52 Para 10

…time can point to the real possibility that a miscarriage of justice might occur by the failure to extend time. [emphasis added] [1] Modra v Police [2006] SASC 52 at [32].…
R v Lennon
[2003] SASC 337 Para 28

…od of 20 months was imposed. It is relevant in Lennon that the defendant pleaded guilty to the charge. [7] R v Collie [2007] SASC 293. [8] R v Lennon (2003) 86 SASR 295.…
R v Allen
[1999] SASC 346 Para 3

…bail conditions.[13] [12] R v Malesvic (1999) 204 LSJS 32; Kells v Police [2007] SASC 224. [13] R v Christiansen [2006] SASC 274. See also R v Allen [1999] SASC 346.…
Gikas v Police
[1999] SASC 139 Para 10

…application for an extension of time have been discussed in a number of cases. It is sufficient to refer to Jackamarra v Krakouer (1998) 195 CLR 516; Gikas v Police (1999) 202 LSJS 301. In Gikas v Police (above) Lander J said (at 306): In summary, any application for an extension of time within which to appeal must be s…
Jackamarra v Krakouer
[1998] HCA 27 Para 10

…les which govern an application for an extension of time have been discussed in a number of cases. It is sufficient to refer to Jackamarra v Krakouer (1998) 195 CLR 516; Gikas v Police (1999) 202 LSJS 301. In Gikas v Police (above) Lander J said (at 306): In summary, any application for an extension of time within wh…

Legislation cited in this decision · 2

Criminal Law Consolidation Act 1935 (SA)
21 2 mentions (from Para 2)
Supreme Court Criminal Appeal Rules 1996 (SA)
1 mention (from Para 8)