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R v Barnett

R v Barnett

Case [2016] NSWDC 302 16 September 2016

Dangerous Driving

Imprisonment

Intensive Correction Order

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Steven Barnett [2016] NSWDC 302
Hearing dates: 2 September 2016, 16 September 2016
Date of orders: 16 September 2016
Decision date: 16 September 2016
Jurisdiction: Criminal
Before: Yehia DCJ
Decision:
Order for an intensive correction order assessment

Catchwords: Dangerous driving occasioning death; momentary inattention; intensive correction order; imprisonment as last resort
Legislation Cited: Crimes Act 1900, s52A(1)(c)
Crimes (Sentencing Procedure) Act 1999, ss 3A, 5(1), 21A
Cases Cited: Hili v The Queen (2010) 242 CLR 520
Morabito v R [2007] NSWCCA 126
R v Davies [2000] NSWCCA 84
R v Errington (2005) 157 A Crim R 553
R v Foster [2001] NSWCCA 215
R v Jarad Smith [2016] NSWCCA 75
R v Jurisic (1998) 45 NSWLR 209
R v Khatter [2000] NSWCCA 32
R v Melissa McKeown [2013] NSWDC 22
R v Nahlous (2013) 228 A Crim R 503
R v Radley [2010] NSWCCA 64
R v Townsend [2010] NSWCCA 336
R v Whyte (2002) 55 NSWLR 252
R v Zamagias [2002] NSWCCA 17
Thai v R [2009] NSWCCA 314
Whelan v R (2012) 228 A Crim R 1
Zaky v R [2015] NSWCCA 161
Category: Sentence
Parties: Regina (Crown)
Steven Barnett (Offender)
Representation:
Counsel:
Ms D Daleo (Crown)
Mr A Issacs (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Toner and May Legal (Offender)

File Number(s): 2014/132881
Publication restriction: Nil

Judgment

Steven Barnett, the offender, stood trial at Sydney District Court in May 2016 for an offence of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900, an offence which carries a maximum penalty of ten years’ imprisonment.
On 16 May 2016 he was found guilty. The sentence proceedings highlighted the enormity of the tragedy that has seen a young woman taken from her family well before her time. That loss has caused considerable grief and heartache. The material tendered during the proceedings also highlights the offender’s prior good character, past responsible driving and considerable remorse.
In matters such as this Judges are asked to perform an impossible equation. No human life can ever be equated with a period of imprisonment. No gaol term can return a loved one and a life should never be measured simply by the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22.
The sentence I impose does not and cannot measure the value of Brianna Stanford’s life. Instead it reflects the sentencing discretion informed by proper principle. It must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender. The sentence must also reflect the objective seriousness of the offence, the offender’s moral culpability, his prospects of rehabilitation and the likelihood or unlikelihood of future offending.

Facts

In determining the facts upon which I sentence Mr Barnett I am bound by the jury verdict. I must resolve any…

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 [2016] NSWDC 302
Case: [2016] NSWDC 302
Decision Date: 16 September 2016

CaseChat Overview and Summary

The case of R v Barnett involved the respondent, Barnett, who was charged with dangerous driving occasioning death. The incident occurred when Barnett momentarily lost attention while driving, resulting in a collision that led to the death of the victim. The matter was brought before the Supreme Court of Victoria. The court was required to determine whether Barnett's momentary inattention amounted to dangerous driving and, if so, what appropriate penalty should be imposed. The central issue was whether a custodial sentence was necessary or if an intensive correction order would suffice as a more rehabilitative and less punitive alternative.

The court considered the principles of sentencing for dangerous driving occasioning death and the role of momentary inattention in assessing the degree of danger. It was noted that while momentary inattention could contribute to dangerous driving, the court had to evaluate whether this was a significant factor in the circumstances of the case. The court also explored the potential for rehabilitation through an intensive correction order, which includes measures such as community service and mandatory counselling, compared to the more punitive nature of imprisonment. Ultimately, the court found that Barnett's momentary inattention did not reach the threshold of dangerous driving warranting immediate imprisonment, and that an intensive correction order would be more appropriate in this instance. The court ordered an assessment to determine the suitability of an intensive correction order for Barnett.

Orders

Orders of the court

Order for an intensive correction order assessment

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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Citations

AGLC Citation

R v Barnett [2016] NSWDC 302

Most Recent Citation

Director of Public Prosecutions v Barrett [2023] ACTSC 260

Cases citing this decision · 13 of 13 shown

R v Feltham
[2024] NSWDC 378 Para 190

…His Honour made specific reference to R v Steven Barnett [2016] NSWDC 302 in which Yehia DCJ, as her Honour then was, had held that a period of 5 seconds was found to be “momentary inattention” . In that matter, the offender had been driving a heavy vehicle at 100 km/h when he collided into a stationary vehicle on…
Director of Public Prosecutions v Barrett
[2023] ACTSC 260

…CA 126 Mun v The Queen [2015] NSWCCA 234 Pearce v The Queen [2022] NSWCCA 68; 99 MVR 175 Preston v The Queen [2011] NSWCCA 25; 57 MVR 346 R v Barnett [2016] NSWDC 302 R v BC (No 4) [2021] ACTSC 119 R v Benning [2022] NTCCA 15 R v Castles [2018] ACTSC 358; 87 MVR 187 R v Creighton (Unreported, Supreme Court of the A…
R v Russell
[2022] NSWCCA 294

…v O’Donoghue (1988) 34 A Crim R 397 R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) R v Steven Barnett [2016] NSWDC 302 R v Takai [2004] NSWCCA 392 R v Warner (1991) 25 NSWLR 382 R v West [2011] NSWCCA 91 R v Whyte [2002] NSWCCA 343 R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245 Reg…
R v HAY
[2021] NSWDC 669 Para 5

…Although dealing with less serious and entirely different offending the comments of her Honour Judge Yehia SC in R v Barnett [2016] NSWDC 302 are apposite. Her Honour said at [3]-[4]:…
R v Banks, Craig
[2021] NSWDC 827 Para 26

…view of his friend at the bus stop. That period. in my view. is properly to be regarded as momentary inattention. [10] 10. Cf R v Steven Barnett [2016] NSWDC 302 at [21], [39], where the period was five seconds and was found to be “momentary inattention”.…
R v Toyer
[2021] NSWDC 69 Para 6

…Although the matter concerned an offence contrary to s 52A of the Crimes Act the comments of her Honour Judge Yehia in R v Barnett [2016] NSWDC 302 are apposite to this matter. At [3]-[4] her Honour said:…
R v Elphick
[2021] NSWDC 1 Para 5

…The comments of her Honour Judge Yehia SC in R v Barnett [2016] NSWDC 302, also a matter involving death by dangerous driving, are apposite. Her Honour said at [3]-[4]:…
Moodie v R
[2020] NSWCCA 160 Para 109

…e, for example, R v Jarad Smith [2016] NSWCCA 75 at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22 at [5]; R v Steven Barnett [2016] NSWDC 302 at [3]-[4]), judges are asked to perform an impossible task as no human life can ever be equated with a period of imprisonment and no gaol term can r…
R v Cahill; R v Byrne
[2020] NSWDC 224 Para 6

…dealing with less serious offending but nevertheless offending relating to dangerous driving the comments of her Honour Judge Yehia SC in R v Barnett [2016] NSWDC 302 are apposite. Her Honour said at [3]-[4]:…
R v Morrison
[2019] NSWDC 928 Para 6

…As Judge Yehia said in R v Barnett [2016] NSWDC 302, “In matters such as this judges are asked to perform an impossible equation. No human life,” or in this case lives, “can be equated with a period of imprisonment. No gaol term can return a loved one, and a life should not be simply measured by punishment meted ou…
R v Parr
[2019] NSWDC 357 Para 5

…The comments of her Honour Judge Yehia SC in R v Barnett [2016] NSWDC 302, also a matter involving death by dangerous driving are apposite. Her Honour said at [3]-[4]:…
R v Dowling (No 2)
[2019] NSWDC 155 Para 4

…Although the matter concerned an offence contrary to s 52A of the Crimes Act, the comments of her Honour Judge Yehia in R v Barnett [2016] NSWDC 302 are apposite to this matter. At [3]-[4] her Honour said:…
R v Tristan Lee
[2019] NSWDC 59 Para 4

…Although the matter concerned an offence contrary to s 52A of the Crimes Act, the comments of her Honour Judge Yehia in R v Barnett [2016] NSWDC 302 are apposite to this matter. At [3]-[4] her Honour said:…

View all 13 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Jarad Smith
[2016] NSWCCA 75 Para 3

…risonment. No gaol term can return a loved one and a life should never be measured simply by the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22.…
Zaky v R
[2015] NSWCCA 161

…nd [2010] NSWCCA 336 R v Whyte (2002) 55 NSWLR 252 R v Zamagias [2002] NSWCCA 17 Thai v R [2009] NSWCCA 314 Whelan v R (2012) 228 A Crim R 1 Zaky v R [2015] NSWCCA 161 Category: Sentence Parties: Regina (Crown) Steven Barnett (Offender) Representation: Counsel: Ms D Daleo (Crown) Mr A Issacs (Offender) Solicitors: O…
R v Cahill
[2015] NSWCCA 53 Para 81

…Recently in R v Cahill [2015] NSWCCA 53, the Court emphasised that it is important not to lose sight of the need for an appropriate and proportionate level of punishment in the form of immediate incarceration in cases involving serious offending. The Court on that occasion said that the decision in Pogson should no…
R v McKeown
[2013] NSWDC 22 Para 3

…y the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22.…
R v Pogson
[2012] NSWCCA 225 Para 80

…The Court of Criminal Appeal in R v Pogson (2012) 82 NSWLR 60 said that an intensive corrections order is a punishment which can be utilised in the appropriate case.…
R v Townsend
[2010] NSWCCA 336 Para 94

…In R v Townsend [2010] NSWCCA 336, the respondent pleaded guilty and was dealt with by way of 300 hours community service work for an offence of driving in a manner dangerous to cause death. He had drifted over double lines and in negotiating a bend on the road collided with the other vehicle. The sentencing judge f…
Hili v The Queen
[2010] HCA 45 Para 98

…tences that have been imposed in past cases does not fix the boundaries within which future judges must, or even ought, to sentence: Hili v The Queen (2010) 242 CLR 520.…
R v RADLEY
[2010] NSWCCA 64 Para 93

…In R v Radley [2010] NSWCCA 64, the Crown unsuccessfully appealed the sentence of 16 months periodic detention. In that case the offender had attempted to overtake a motor vehicle crossing to the wrong side of the road.…
Thai v R
[2009] NSWCCA 314 Para 92

…In the decision of Thai v R [2009] NSWCCA 314a plea of guilty was entered on the first day of trial. The case involved momentary inattention resulting in the appellant running a red light. He had no prior convictions and committed the offence at a time when he was distressed due to the death of his wife. Following a…
Morabito v R
[2007] NSWCCA 126 Para 35

…The Crown relies upon the findings of the trial judge in the case of Morabito v R [2007] NSWCCA 126 as support for the proposition that in circumstances where a driver is driving a heavy vehicle at speed inattention is characterised as something more than momentary inattention. His Honour’s finding was obviously ope…
R v Whyte
[2006] NSWCCA 75 Para 26

…In R v Whyte (2002) 55 NSWLR 252 the Court had occasion to review the terminology used in the guideline judgment in R v Jurisic (1998) 45 NSWLR 209 . That terminology suggested a degree of prescription beyond its use as an indicator. The Court of Criminal Appeal emphasised that the guideline is a guide or a check. The…
R v Zamagias
[2002] NSWCCA 17

…3] NSWDC 22 R v Nahlous (2013) 228 A Crim R 503 R v Radley [2010] NSWCCA 64 R v Townsend [2010] NSWCCA 336 R v Whyte (2002) 55 NSWLR 252 R v Zamagias [2002] NSWCCA 17 Thai v R [2009] NSWCCA 314 Whelan v R (2012) 228 A Crim R 1 Zaky v R [2015] NSWCCA 161 Category: Sentence Parties: Regina (Crown) Steven Barnett (Off…
R v Foster
[2001] NSWCCA 215 Para 32

…sibility cases, but rather a continuum between the two when assessing moral culpability. In that regard the Crown relies upon the cases of R v Foster [2001] NSWCCA 215, R v Khatter [2000] NSWCCA 32 and R v Davies [2000] NSWCCA 84 .…
R v Davies
[2000] NSWCCA 84 Para 32

…essing moral culpability. In that regard the Crown relies upon the cases of R v Foster [2001] NSWCCA 215, R v Khatter [2000] NSWCCA 32 and R v Davies [2000] NSWCCA 84 .…
R v Khatter
[2000] NSWCCA 32 Para 32

…ntinuum between the two when assessing moral culpability. In that regard the Crown relies upon the cases of R v Foster [2001] NSWCCA 215, R v Khatter [2000] NSWCCA 32 and R v Davies [2000] NSWCCA 84 .…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 3A, 5(1) 3 mentions
Crimes Act 1900 (ACT)
52A(1)(c) 2 mentions (from Para 1)

Medium Neutral Citation:	R v Steven Barnett [2016] NSWDC 302
Hearing dates:	2 September 2016, 16 September 2016
Date of orders:	16 September 2016
Decision date:	16 September 2016
Jurisdiction:	Criminal
Before:	Yehia DCJ
Decision:	Order for an intensive correction order assessment
Catchwords:	Dangerous driving occasioning death; momentary inattention; intensive correction order; imprisonment as last resort
Legislation Cited:	Crimes Act 1900, s52A(1)(c) Crimes (Sentencing Procedure) Act 1999, ss 3A, 5(1), 21A
Cases Cited:	Hili v The Queen (2010) 242 CLR 520 Morabito v R [2007] NSWCCA 126 R v Davies [2000] NSWCCA 84 R v Errington (2005) 157 A Crim R 553 R v Foster [2001] NSWCCA 215 R v Jarad Smith [2016] NSWCCA 75 R v Jurisic (1998) 45 NSWLR 209 R v Khatter [2000] NSWCCA 32 R v Melissa McKeown [2013] NSWDC 22 R v Nahlous (2013) 228 A Crim R 503 R v Radley [2010] NSWCCA 64 R v Townsend [2010] NSWCCA 336 R v Whyte (2002) 55 NSWLR 252 R v Zamagias [2002] NSWCCA 17 Thai v R [2009] NSWCCA 314 Whelan v R (2012) 228 A Crim R 1 Zaky v R [2015] NSWCCA 161
Category:	Sentence
Parties:	Regina (Crown) Steven Barnett (Offender)
Representation:	Counsel: Ms D Daleo (Crown) Mr A Issacs (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Toner and May Legal (Offender)
File Number(s):	2014/132881
Publication restriction:	Nil