R v Barnes

Case [2023] NSWDC 33


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

  1. 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…

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Details
AGLC
R v Barnes [2023] NSWDC 33
Case
[2023] NSWDC 33
Decision Date

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

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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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