R v Barnes - [2018] QCA 93

[2018] QCA 93

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
ATKINSON J

CA No 47 of 2018
DC No 2552 of 2017

THE QUEEN

BARNES, Korry James Applicant

BRISBANE

TUESDAY, 22 MAY 2018

JUDGMENT

SOFRONOFF P: The applicant is 30 years old. He was raised by his mother. He completed year 10 and then qualified as a chef. He has a history of severe anxiety and depression and had been placed on medication for some time. A short while before the offence the subject of this application was committed he ceased taking his medications. The main feature in his life and the main feature on this application is the situation of the applicant’s mother. There was material before the learned sentencing judge about her condition. It can be summarised in this way: she has suffered cancer of the larynx and has undergone a tracheotomy. She has peripheral vascular disease. She suffers from hypertension, depression and diabetes. She has difficulty making herself understood. By reason of these conditions and many others she is liable to suffer from illnesses that healthy people would not suffer.

As a consequence of her many illnesses, in a statement that she prepared herself and that was tendered at the sentencing, she explained that the applicant helps her in many ways. This includes helping her with showering, her personal grooming, the administration of her medication, cleaning of the house, cooking and driving his mother to her many medical appointments. In short, he has been her full-time carer. According to a reference that was furnished by Mr Peter Gritt, the applicant also has been caring for his nephew who suffers from low level autism. He does this up to three times a week and on most weekends. Mr Gritt has observed that the applicant faces very stressful days in performing his various duties towards his family members. It seems that he has little time or opportunity for work or for social relations.

However, on the 8th of April 2017, he was able to get away from his duties. As was explained at the sentencing, on that day he began drinking early in the morning and then travelled to see a concert in the Valley. He was on a train on his way to see a friend in Ipswich when he saw the complainant. By that stage he had consumed four VB schooners, six cans of premixed Wild Turkey bourbon and cola, and there was evidence that he had smoked some marijuana as well. In her sentencing remarks, her Honour described the offence as follows:

“It just happens to be the complainant who was also on the train watching a movie on his mobile phone. He observed you walking past him to the toilet and again a short time later, about five minutes later, you again walked towards him. You stopped two feet away. You pulled a pair of scissors out of your pants pocket, and you said to him, “If you get up, I will stab you”.…

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 [2018] QCA 93
Case: [2018] QCA 93
Decision Date: 22 MAY 2018

CaseChat Overview and Summary

Korry James Barnes applied for leave to appeal against his sentence for robbery, which was a suspended two-year imprisonment term, after serving four months. The applicant argued that the sentence was manifestly excessive due to his role as his mother's full-time carer, who suffered from various debilitating conditions. The court needed to determine whether the applicant's carer responsibilities for his mother could be considered a mitigating factor in the sentencing. The court also needed to decide whether the effect of the applicant's imprisonment on his mother justified a reduction in the custodial part of the sentence.

The court considered the aggravating factors, such as the seriousness of the offence and the effect on the victim, as well as the mitigating factors, such as the applicant's carer responsibilities and his out-of-character conduct. The court noted that while the applicant's mother had applied for and received approval for a home care package and residential respite care, she had declined those offers. The court held that the availability of alternative care arrangements meant that the applicant's carer responsibilities did not justify a departure from the usual approach of imposing a custodial sentence for a serious offence such as robbery. The court found that the sentencing judge had not erred in exercising her discretion, and the application for leave to appeal was refused.

Orders