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R v Barnes

R v Barnes

Case [2003] VSCA 156 2 October 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 317 of 2001

THE QUEEN
	v.
JOHN EDWARD BARNES

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2003
DATE OF JUDGMENT:	2 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 156

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Criminal Law – Indecent act with child under 16 and other offences – Application for leave to appeal against conviction following plea of guilty – R. v. Coffey [2003] VSCA 155 applied – Leave to appeal against conviction refused – Serious sexual offender – Whether disproportionate sentence should be imposed – Non-parole period where protection of community is principal purpose for which sentence is imposed – Crimes Act 1958, s.19 – Sentencing Act 1991, ss.5(2AA)(a), 6D, 6E, 16(3B), 18B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. and Ms K. Judd	K. Robertson, Solicitor for Public Prosecutions
For the Applicant/Appellant	Mr M.J. Croucher and Ms M.S.K. Ingleton	Leanne Warren & Assoc.

CALLAWAY, J.A.:

John Edward Barnes, who is now aged almost 71, comes before the Court as an appellant against sentence, leave to appeal having been granted by a single judge on 10^th May 2002, and as an applicant for leave to appeal against conviction. For convenience I shall call him "the appellant".

He pleaded guilty in the County Court to five counts of committing an indecent act with a child under 16 (counts 1, 2, 3, 4 and 6), one count of possession of methylamphetamine (count 5), one count of administering a substance, specified as amphetamines, capable of interfering substantially with bodily functions (count 7) and one count of obtaining a financial advantage by deception (count 8). He admitted 128 previous convictions from 58 court appearances between December 1958 and December 1994. On the last occasion he had been convicted on one count of attempted rape, three counts of taking part in an act of sexual penetration with a child aged between 10 and 16, two counts of attempting to take part in such an act, three counts of committing an indecent act with a child under 16, two counts of indecent assault, one count of administering a drug for the purpose of sexual penetration, one count of possession of amphetamines and one count of possession of cannabis. He was sentenced to seven years' imprisonment with a non-parole period of five years, a sentence later affirmed by the Court of Criminal Appeal.[1] The present offences were committed while the appellant was released on parole pursuant to the eligibility granted in 1994.[2]
[1]Phillips, C.J., Crockett and Hampel, JJ., unreported, 20^th March 1995.
[2]Parole was originally granted on 2^nd June 1999 but it was cancelled when the appellant failed to comply with one of the conditions. Parole was again granted on 7^th October 2000 and would have expired on 12^th May 2001. The offences were committed on 20^th and 21^st December 2000.

After hearing a plea for leniency on his behalf and considering a…

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 [2003] VSCA 156
Case: [2003] VSCA 156
Decision Date: 2 October 2003

CaseChat Overview and Summary

In the matter of R v Barnes, the defendant was convicted of engaging in an indecent act with a child under the age of 16 and other related offences. The case was heard in the Victorian Court of Appeal, where the defendant sought leave to appeal against his conviction, following a plea of guilty. The central issue before the court was whether the defendant's appeal against conviction should be granted, and if the sentence imposed was appropriate in the circumstances.

The court considered the principles outlined in R. v. Coffey [2003] VSCA 155, which established that leave to appeal against conviction should only be granted in exceptional circumstances. The defendant argued that his case warranted such an appeal, but the court found that the criteria were not met. The court also examined the sentencing principles under the Crimes Act 1958 and the Sentencing Act 1991, focusing on the appropriateness of the sentence and the non-parole period imposed, where the protection of the community was the primary purpose for the sentence. The court concluded that the sentence was proportionate and did not warrant an appeal.

The Victorian Court of Appeal found that the defendant's application for leave to appeal against his conviction should be dismissed, as the criteria for such an appeal were not satisfied. The court further held that the sentence imposed was appropriate and did not warrant any adjustment. As a result, the defendant's conviction and sentence were upheld.

Orders