R v Barnes (No 2) - [2014] SASCFC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARNES (No 2)
[2014] SASCFC 123
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Parker)
13 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
Application for permission to appeal against sentence. The defendant and appellant pleaded guilty to two counts of theft and one count of driving dangerously to escape police pursuit. The two counts of theft related to the defendant’s purchase of a motor vehicle believing that it was likely to have been stolen and his theft of a caravan. After being called upon by police to stop driving the vehicle, the defendant continued driving for a period of about 30 minutes. In the course of the subsequent police pursuit, the defendant drove on the wrong side of the road, reached speeds of up to 140 kilometres per hour and collided with a police vehicle. The offending was in breach of the terms of a good behaviour bond and the Judge revoked a suspended sentence of six months’ imprisonment attaching to that bond. The Judge imposed an additional three years’ imprisonment in respect of the subject offending and ordered that this be served cumulatively upon an existing term of imprisonment imposed in the Court of Criminal Appeal in relation to prior unrelated offending. Accordingly, the defendant faced a total term of imprisonment of six years. The Judge fixed a non-parole period of four years.
Whether the sentence imposed by the Judge was manifestly excessive. Whether the sentence imposed by the Judge failed to have regard to the defendant’s existing sentence imposed in the Court of Criminal Appeal.
Held per Gray J (Vanstone and Parker JJ concurring)(refusing permission to appeal):
1. There is no conflict between the approach of the sentencing Judge in this case and the earlier decision of the Court of Criminal Appeal.
2. The sentence imposed was well within the sentencing discretion of the Judge.
3. The sentence imposed had proper regard to the personal antecedents of the defendant and his prospects for rehabilitation.

R v BARNES (No 2)
[2014] SASCFC 123
Court of Criminal Appeal Gray, Vanstone and Parker JJ
GRAY J.

This is an application for permission to appeal against sentence.
Introduction
The defendant and applicant, Kym Derwyn Barnes, pleaded guilty in the District Court to two counts of theft and one count of driving dangerously to escape police pursuit. The defendant admitted breaching the terms of a suspended sentence bond by committing these offences. A suspended sentence of six months attached to that bond. The pleas of guilty were entered on 10 June 2014, the date on which the matter was listed for trial.
The Judge revoked the suspension of the defendant’s sentence of imprisonment of six months and ordered that this sentence was…

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 (No 2)

Details

AGLC: R v Barnes (No 2) [2014] SASCFC 123
Case: [2014] SASCFC 123
Decision Date: 13 November 2014

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the defendant, R, for a dangerous driving offence. The appeal was heard by Gray, Vanstone, and Parker JJ in the Supreme Court of [Jurisdiction - implied, as not specified in text].

The primary legal issue before the Court was whether the sentence imposed by the sentencing judge was manifestly excessive, thereby warranting appellate intervention.

The Court considered the personal antecedents of the defendant and his prospects for rehabilitation. Applying the principles of sentencing discretion, the Court found that the sentencing judge had properly taken these factors into account. Consequently, the Court concluded that no basis had been shown to support the contention that the sentence was manifestly excessive, holding that it fell well within the proper exercise of the sentencing judge's discretion.

Accordingly, the Court refused the defendant permission to appeal against his sentence.

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, the sentence of the Judge had proper regard to the personal antecedents of the defendant and his prospect for rehabilitation. No basis has been shown to support the contention that the sentence imposed was manifestly excessive. I consider that the sentence imposed was well within the sentencing discretion of the Judge.Conclusion I would refuse permission to appeal against sentence. VANSTONE J: I agree that permission to appeal should be refused for the reasons written by Gray J. PARKER J: I agree with Gray J and would refuse permission to appeal against sentence.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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