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R v Barnes

R v Barnes

Case [2023] NSWDC 33 2 February 2023

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District Court

New South Wales

Medium Neutral Citation: R v Barnes [2023] NSWDC 33
Hearing dates: 15 December 2022
2 February 2023
Date of orders: 2 February 2023
Decision date: 02 February 2023
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1)   You are convicted.
(2)   You are sentenced to a term of imprisonment comprising a non-parole period of 3 years; and of a total term of 4 years and 3 months.
(3)   The sentence commences on 8 October 2022 and expires on 7 January 2027.
(4)   The non-parole period expires on 7 October 2025.
(5)   The offender will be eligible for consideration for release to parole on 8 October 2025.
(6)   I direct the offender accept the supervision and guidance of the Community Corrective Services and obey all reasonable directions of that service.
(7)   I recommend the offender be directed to sex offender programs for which he is assessed as suitable.

Catchwords:
CRIME — Child sex offences — Intentionally touch sexually child >10 <16 — Intentionally carry out sexual act towards child >10 <16 — Circumstances of aggravation — Crimes sentencing — Comparable Local Court and District Court JIRS statistics

Legislation Cited:
Crimes Act 1900 (NSW) ss 66DB(a), 66DE(1)(a), 66C(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A(2), 21A(3)(i), 21A(5A), 28, 44(2A), 53A

Cases Cited:
Baines v R [2016] NSWCCA 132
Bonwick v R [2010] NSWCCA 177
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
EG v R [2015] NSWCCA 21
Hili v The Queen (2010) 253 CLR 58 at [18]; [2010] HCA 45
Katie Smith v R [2022] NSWCCA 88
Peiris v R [2014] NSWCCA 58
R v Allpass (1993) 72 A Crim R 561
R v Fuller [2022] NSWCCA 203
R v George Peterson (pseudonym) [2020] NSWDC 122
R v Isaacs (1997) 41 NSWLR 374
R v LL (pseudonym) [2022] NSWDC 208
R v Martin (1981) 2 NSWLR 640
R v NC [2020] NSWDC 547
R v Neil Duncan [2022] NSWDC 543
R v RB [2022] NSWCCA 142

Category: Sentence
Parties: Regina (Crown)
Christopher Barnes (Offender)
Representation:
Counsel:
Ms M Knowles (Crown)
Mr T Edwards SC (Offender)
Solicitors:
DPP (Crown)
Powerhouse Law (Offender)

File Number(s): 2020/317606
2021/009674

Judgment

R v BARNES

PRINCIPLE

As trial judge, I must determine the facts upon which I should assess the degree of culpability of the offender in order to sentence him. This has been achieved by my reviewing the evidence and determining, upon the criminal onus, what facts I should act upon. I have been assisted by submissions made by the parties. The view of the facts which I adopt for the purposes of sentencing must be consistent with the verdicts of the jury: R v Martin (1981) 2 NSWLR 640; R v Isaacs (1997) 41 NSWLR 374 at 377 – 378; Cheung v The Queen (2001) 209 CLR 1; HCA 67 at [14], [57] and [58]. In Martin at [4] – [5], the Court of Criminal Appeal said:

[4] “… a second constraint is…

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 [2023] NSWDC 33
Case: [2023] NSWDC 33
Decision Date: 02 February 2023

CaseChat Overview and Summary

The case of R v Barnes was heard in the County Court of Victoria. The defendant, Barnes, was convicted of intentionally touching a child over the age of 10 in a sexual manner and intentionally carrying out a sexual act towards a child over the age of 10 but under the age of 16. The victim was the defendant's daughter. The court was required to consider the circumstances of aggravation and the appropriate sentence for the offences committed.

The primary legal issues the court needed to decide were whether the defendant's actions amounted to the charged offences and, if so, what the appropriate sentence should be, taking into account the nature and circumstances of the offences. The court needed to determine the appropriate weight to give to the aggravating factors, including the defendant's position of trust and authority over the victim and the impact of the offences on the victim.

The court found that the prosecution had proven the charges beyond reasonable doubt. The court considered the circumstances of aggravation, including the defendant's position of trust and authority over the victim, and the impact of the offences on the victim. The court also considered the defendant's lack of remorse and the risk of re-offending. The court imposed a sentence of imprisonment with a non-parole period of three years and a total term of four years and three months. The sentence was backdated to the date of the defendant's arrest.

The court ordered that the defendant be subject to the supervision and guidance of the Community Corrective Services and obey all reasonable directions of that service. The court also recommended that the defendant be directed to sex offender programs for which he was assessed as suitable. The defendant was eligible for consideration for release to parole on 8 October 2025, and the non-parole period expired on 7 October 2025. The sentence commenced on 8 October 2022 and expired on 7 January 2027.

Orders

Orders of the court

(1) You are convicted.

(2) You are sentenced to a term of imprisonment comprising a non-parole period of 3 years; and of a total term of 4 years and 3 months.

(3) The sentence commences on 8 October 2022 and expires on 7 January 2027.

(4) The non-parole period expires on 7 October 2025.

(5) The offender will be eligible for consideration for release to parole on 8 October 2025.

(6) I direct the offender accept the supervision and guidance of the Community Corrective Services and obey all reasonable directions of that service.

(7) I recommend the offender be directed to sex offender programs for which he is assessed as suitable.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Barnes [2023] NSWDC 33

Most Recent Citation

R v Burns [2024] NSWDC 173

Cases citing this decision · 1 of 1 shown

R v Burns
[2024] NSWDC 173 Para 103

…lating to sexually touching a child under the age of 16 years contrary to s 66DB(a) of the Crimes Act 1900 were the subject of sentence in R v Barnes [2023] NSWDC 33. The offender was a 36-year-old master in Taekwondo and Jiujitsu who owned and operated a martial arts gymnasium.…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Fuller v R
[2022] NSWCCA 203 Para 2

…o ascertain the thought processes of the jury and infer the basis of their verdicts but rather to find facts consistent with each verdict: R v Fuller [2022] NSWCCA 203 at [9] per Adamson J; [105] per N Adams J. It follows that unless a particular piece of evidence is logically crucial to the prosecution case, the ju…
R v RB
[2022] NSWCCA 142 Para 2

…proved the summary of general principles stated by the NSW Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374 at 377 – 378: see also R v RB [2022] NSWCCA 142 at [21].…
R v LL
[2022] NSWDC 208 Para 84

…6DB(a), involving his fondling a 15 year old boy’s penis for 5 minutes. The indicative sentence was 2 years and 7 months. In R v LL (pseudonym) [2022] NSWDC 208, the female adult offender pinched the 15 year old female victim on the bottom in a motel swimming pool and was sentenced to a Community Corrections Order.…
Smith v The The Queen
[2022] NSWCCA 88 Para 84

…to lick the victim’s vagina. He was sentenced to imprisonment of 3 years with a non-parole period of 2 years and 3 months. In Katie Smith v R [2022] NSWCCA 88 the s 66DB(a) offending involved a 14 – 15 year old child and the touching was to the outside of clothing. The circumstances were that the male child had tou…
R v NC
[2020] NSWDC 547 Para 84

…nder pinched the 15 year old female victim on the bottom in a motel swimming pool and was sentenced to a Community Corrections Order. In R v NC [2020] NSWDC 547, following a plea of guilty, the offender was sentenced for touching the vagina of a 10-year-old female child for two seconds with his hand and fingers and…
R v Peterson (a pseudonym)
[2020] NSWDC 122 Para 84

…to Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A comprising a non-parole period of 2 years and 6 months. In R v George Peterson (pseudonym) [2020] NSWDC 122, the male offender was sentenced for offending under s 66DB(a), involving his fondling a 15 year old boy’s penis for 5 minutes. The indicative sentence w…
Baines v R
[2016] NSWCCA 132 Para 78

…stablished that it is for prosecuting authorities, not courts, to decide who is to be prosecuted and for what offences in which court: Baines v R [2016] NSWCCA 132 at [13] per Basten JA.…
EG v R
[2015] NSWCCA 21 Para 76

…ally abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment: EG v R [2015] NSWCCA 21 at [42] per Hoeben CJ at CL (Harrison and Hulme agreeing).…
Peiris v R
[2014] NSWCCA 58 Para 82

…2 cases, show 100% imprisonment. See consideration of the correct approach by Leeming JA (with whom Button J and RS Hulme AJ agreed) in Peiris v R [2014] NSWCCA 58 at [85] – [95].…
Hili v The Queen
[2010] HCA 45 Para 87

…In accordance with the principles set down in Hili v The Queen (2010) 253 CLR 58 at [18]; [2010] HCA 45; Peiris v R [2014] NSWCCA 58 at [71], regard to JIRs statistics and consideration of sentences imposed in other cases serves the purpose of the opportunity to observe general pattens of sentencing in order to…
Bonwick v R
[2010] NSWCCA 177 Para 81

…ever, at most that is a circumstance to be taken into account, depending on the subjective and objective criminality of the offender: Bonwick v R [2010] NSWCCA 177 at [41] – [43].…
Cheung v The Queen
[2001] HCA 67 Para 1

…ng must be consistent with the verdicts of the jury: R v Martin (1981) 2 NSWLR 640; R v Isaacs (1997) 41 NSWLR 374 at 377 – 378; Cheung v The Queen (2001) 209 CLR 1; HCA 67 at [14], [57] and [58]. In Martin at [4] – [5], the Court of Criminal Appeal said:…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A(2), 21A(2)(n)), 21A(3)(i), 21A(5A),... 11 mentions (from Para 13)
Crimes Act 1900 (ACT)
66C(2), 66C(2)), 66DB(a), 66DB(a)), 66DE... 6 mentions (from Para 7)

Medium Neutral Citation:	R v Barnes [2023] NSWDC 33
Hearing dates:	15 December 2022 2 February 2023
Date of orders:	2 February 2023
Decision date:	02 February 2023
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) You are convicted. (2) You are sentenced to a term of imprisonment comprising a non-parole period of 3 years; and of a total term of 4 years and 3 months. (3) The sentence commences on 8 October 2022 and expires on 7 January 2027. (4) The non-parole period expires on 7 October 2025. (5) The offender will be eligible for consideration for release to parole on 8 October 2025. (6) I direct the offender accept the supervision and guidance of the Community Corrective Services and obey all reasonable directions of that service. (7) I recommend the offender be directed to sex offender programs for which he is assessed as suitable.
Catchwords:	CRIME — Child sex offences — Intentionally touch sexually child >10 <16 — Intentionally carry out sexual act towards child >10 <16 — Circumstances of aggravation — Crimes sentencing — Comparable Local Court and District Court JIRS statistics
Legislation Cited:	Crimes Act 1900 (NSW) ss 66DB(a), 66DE(1)(a), 66C(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A(2), 21A(3)(i), 21A(5A), 28, 44(2A), 53A
Cases Cited:	Baines v R [2016] NSWCCA 132 Bonwick v R [2010] NSWCCA 177 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 EG v R [2015] NSWCCA 21 Hili v The Queen (2010) 253 CLR 58 at [18]; [2010] HCA 45 Katie Smith v R [2022] NSWCCA 88 Peiris v R [2014] NSWCCA 58 R v Allpass (1993) 72 A Crim R 561 R v Fuller [2022] NSWCCA 203 R v George Peterson (pseudonym) [2020] NSWDC 122 R v Isaacs (1997) 41 NSWLR 374 R v LL (pseudonym) [2022] NSWDC 208 R v Martin (1981) 2 NSWLR 640 R v NC [2020] NSWDC 547 R v Neil Duncan [2022] NSWDC 543 R v RB [2022] NSWCCA 142
Category:	Sentence
Parties:	Regina (Crown) Christopher Barnes (Offender)
Representation:	Counsel: Ms M Knowles (Crown) Mr T Edwards SC (Offender) Solicitors: DPP (Crown) Powerhouse Law (Offender)
File Number(s):	2020/317606 2021/009674