R v Barnes - [2014] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARNES
[2014] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)
18 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - OTHER PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
Appeal against sentence. The defendant was convicted following his pleas of guilty to two counts of aggravated assault causing harm. The complainant in relation to both offences was the defendant’s domestic partner. The offences occurred over a period of two days. Both offences occurred in the presence of the three year old son of the complainant and the defendant. The defendant was sentenced to separate terms of imprisonment of 18 months in relation to each offence. A non-parole period of 18 months was fixed in relation to this total head sentence. The Judge declined to suspend the total term of imprisonment.
Whether the sentences imposed were manifestly excessive. Whether the Judge erred in failing to incorporate an element of concurrency in the sentences relating to the two offences. Whether the Judge erred in failing to suspend the term of imprisonment.
Held per Gray J (Peek and Stanley JJ agreeing) (allowing the appeal):
1. The approach taken by the Judge in fixing a head sentence of 18 months imprisonment in respect of each offence was open and the terms imposed were within his sentencing discretion, subject to the issue of concurrency.
2. It was appropriate in this case to incorporate at least an element of partial concurrency having regard to what was an ongoing course of conduct, albeit separated by a short period of time. Partial concurrency of six months ordered.
3. It was within the discretion of the Judge to decline to suspend the terms of imprisonment. In the circumstances, this was an appropriate exercise of discretion.

R v BARNES
[2014] SASCFC 79
Court of Criminal Appeal: Gray, Peek and Stanley JJ
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Kym Derwyn Barnes, was convicted following his pleas of guilty to two counts of aggravated assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation in respect of each offence was that the victim was the defendant’s domestic partner. The defendant faced a maximum term of imprisonment on each count of four years.
On 24 October 2013, the defendant was sentenced in the District Court to a term of imprisonment in respect of each offence of 18 months. The Judge ordered the sentences to be served cumulatively, leading…

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 Barnes

Details

AGLC: R v Barnes [2014] SASCFC 79
Case: [2014] SASCFC 79
Decision Date: 18 July 2014

CaseChat Overview and Summary

The appeal concerned the sentencing of the defendant, Barnes, who had been convicted of aggravated assault causing harm. The dispute before the Court of Appeal of Queensland, constituted by Gray, Peek, and Stanley JJ, was whether the sentencing judge had erred in declining to suspend the terms of imprisonment imposed.

The primary legal issue before the court was whether the sentencing judge had exercised their discretion appropriately in refusing to suspend the sentences of imprisonment. This involved considering the seriousness of the offending, the circumstances in which it occurred, and whether the sentence imposed was manifestly excessive or inadequate.

The court reasoned that the offending was serious, involving a cowardly and brutal attack on the defendant's de facto partner, who was described as being little able to defend herself. The assault also occurred in the presence of a child. Given these factors, the court found that it was well within the sentencing judge's discretion to decline to suspend the terms of imprisonment, and indeed, that this was an appropriate exercise of that discretion.

The appeal was allowed for the limited purpose of ordering that the sentence imposed on the second count of aggravated assault causing harm be served partially concurrently with the sentence imposed on the first count, for a period of six months. This resulted in a total effective sentence of two years and six months imprisonment, with a non-parole period of one year and three months, to take effect from the date of first custody.

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

In my view, it was well within the discretion of the Judge to decline to suspend the terms of imprisonment that he intended to impose. The offending was serious. The defendant attacked his de facto partner, causing personal injury. The offending took place in part in the presence of a child. The defendant’s offending was both cowardly and brutal, and directed toward a person little able to defend herself. I consider that, not only was it open to the Judge to decline to suspend the sentences, but, in the circumstances, this was an appropriate exercise of discretion. Conclusion I would allow the appeal for the limited purpose of ordering that the sentence of 18 months imposed on the second count of aggravated assault causing harm be served partially concurrent on the sentence imposed in respect of the first count. That partial concurrency is to be for a period of six months. As consequence, the defendant faces a total time in prison of two years and six months. I would fix a non-parole period of one year and three months. The sentence should take effect from the day when the defendant first went into custody, namely 14 May 2013. PEEK J: I agree with the orders proposed by Gray J and substantially with his reasons. STANLEY J: I would allow the appeal. I agree with the reasons of Gray J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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