R v Barnett - [2020] NSWDC 193

District Court

New South Wales

Medium Neutral Citation: R v Barnett [2020] NSWDC 193
Hearing dates: 7 May 2020
Date of orders: 12 May 2020
Decision date: 12 May 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 79-84

Catchwords: SENTENCE – detain, reckless wounding and contravention of AVO offences – mid-range seriousness of offences – offender’s subjective circumstances – role of alcohol disorder in offending conduct – reliance of COVID-19 pandemic as a sentencing consideration
Legislation Cited: Crimes Act 1900 (NSW), ss 35, 86
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12, 14
Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5 21A
Criminal Procedure Act 1986 (NSW), s 166
Cases Cited: Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13
McCullough v R (2009) 194 A Crim R 439
Munda v Western Australia (2003) 249 CLR 600; [2013] HCA 38
Patsan v R [2018] NSWCCA 129
R v Newell [2004] NSWCCA 183
Scott v R [2020] NSWCCA 81
Texts Cited: Odgers, Sentence (4th ed, 2018)
Category: Sentence
Parties: Director of Public Prosecutions
Mr GW Barnett
Representation:
Counsel:
Mr D Henschell for the Director of Public Prosecutions
Ms K Stares for the offender
Solicitors:
Solicitor for the Director of Public Prosecutions
Aubrey Brown Lawyers for the offender

File Number(s): 2019/119673
Publication restriction: Nil

SENTENCE REMARKS

INTRODUCTION

The offender is to be sentenced in respect of the following offences:

Aggravated detention of a person with intent to obtain advantage occasioning actual bodily harm in relation to the complainant Sasina JAGESSAR, contrary to s 86(2)(b) of the Crimes Act 1900 (NSW).

Aggravated detention of a person with intent to obtain advantage occasioning actual bodily harm in relation to the complainant Paul David WALLACE, contrary to s 86(2)(b) of the Crimes Act1900 (NSW).

Reckless wounding causing actual bodily harm contrary to s 35(4) of the Crimes Act1900 (NSW).

There is also a related charge on a s 166 certificate, being the contravention of a prohibition/restriction under an AVO, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The maximum penalty for the detain offences under s 86(2)(b) is 20 years’ imprisonment. There is no applicable standard non-parole period.
The maximum penalty for the reckless wounding offence is 7 years’ imprisonment. There is a standard non-parole period for this offence of three years imprisonment.
The maximum penalty for the related charge is 2 years’ imprisonment.

CIRCUMSTANCES OF THE OFFENCE

The agreed facts (contained within Exhibit A) concerning the offending conduct are relevantly as follows:

“BACKGROUND
1. The offender is married to Sasina JAGESSAR, and they have been married for 27 years. They have not resided together for approximately 8 or 9 years. Despite not living together for a significant period of time, the offender and JAGESSAR have maintained a relationship, which has been intimate at times.
2. On 18 December 2018 a Final Apprehended Domestic Violence Order was made in Toronto Local Court for a period of two years;…

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 Barnett

Details

AGLC: R v Barnett [2020] NSWDC 193
Case: [2020] NSWDC 193
Decision Date: 12 May 2020

CaseChat Overview and Summary

The case of R v Barnett involved the defendant, Barnett, who was found guilty of multiple offences including reckless wounding and breaching an Apprehended Violence Order (AVO). The case was heard in the relevant court, where the primary concern was the determination of an appropriate sentence. The offences occurred against the backdrop of Barnett's alcohol dependency and the impact of the COVID-19 pandemic on his circumstances. The court was tasked with balancing these mitigating factors against the seriousness of the offences committed.

The court had to address several legal issues, including the assessment of the seriousness of the offences, the relevance of the defendant's personal circumstances, and the extent to which the COVID-19 pandemic could be considered in the sentencing process. Specifically, the court needed to determine the appropriate custodial sentence, considering both the objective and subjective factors related to the offences and the defendant's background. Additionally, the court had to weigh the mitigating effect of Barnett's alcohol disorder and the potential impact of the pandemic on his offending behaviour.

In its reasoning, the court recognised the mid-range seriousness of the offences but also considered Barnett's alcohol dependency, which played a significant role in his offending conduct. The court acknowledged that while alcohol dependency was not a complete excuse, it did provide a mitigating factor. The court also considered the pandemic's impact, noting the additional stress and challenges it imposed on individuals. Ultimately, the court found that these factors warranted a sentence that balanced punishment with rehabilitation, leading to a custodial sentence with specific conditions.

The final orders of the court, detailed in paragraphs 79-84, reflect the court's decision. Barnett was sentenced to a period of detention, with specific terms and conditions aimed at addressing his alcohol dependency and ensuring public safety. The court's sentence also included provisions for monitoring and support to assist Barnett in managing his alcohol disorder and preventing future offending.

Orders

Orders of the court

See paragraphs 79-84

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.

Medium Neutral Citation:	R v Barnett [2020] NSWDC 193
Hearing dates:	7 May 2020
Date of orders:	12 May 2020
Decision date:	12 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 79-84
Catchwords:	SENTENCE – detain, reckless wounding and contravention of AVO offences – mid-range seriousness of offences – offender’s subjective circumstances – role of alcohol disorder in offending conduct – reliance of COVID-19 pandemic as a sentencing consideration
Legislation Cited:	Crimes Act 1900 (NSW), ss 35, 86 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12, 14 Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5 21A Criminal Procedure Act 1986 (NSW), s 166
Cases Cited:	Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13 McCullough v R (2009) 194 A Crim R 439 Munda v Western Australia (2003) 249 CLR 600; [2013] HCA 38 Patsan v R [2018] NSWCCA 129 R v Newell [2004] NSWCCA 183 Scott v R [2020] NSWCCA 81
Texts Cited:	Odgers, Sentence (4th ed, 2018)
Category:	Sentence
Parties:	Director of Public Prosecutions Mr GW Barnett
Representation:	Counsel: Mr D Henschell for the Director of Public Prosecutions Ms K Stares for the offender Solicitors: Solicitor for the Director of Public Prosecutions Aubrey Brown Lawyers for the offender
File Number(s):	2019/119673
Publication restriction:	Nil