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R v Barrett; R v DM

R v Barrett; R v DM

Case [2023] NSWDC 114 14 April 2023

Sentencing

Aggravating Factors

Gratuitous Cruelty

Substantial Harm, Injury, Loss or Damage

Moral Culpability

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Barrett; R v DM [2023] NSWDC 114
Hearing dates: 6 April 2023
Decision date: 14 April 2023
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
In regard to the offender Noel Barrett:
(1) The offender is sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months, commencing on 21 December 2022.
(2) The first date the offender will be eligible for release to parole is 20 June 2029.
(3) The sentence expires on 20 December 2032.
(4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates that the sentences that would have been imposed for each offence are (following the application of the 25% discount):
(i) 3 years for the offence of attempted specially aggravated detain in company.
(ii) 9 years for the offence of specially aggravated detain in company.
In regard to the offender DM:
(1) The offender is sentenced to an aggregate term of imprisonment of 13 years, with a non-parole period of 8 years and 6 months, commencing on 7 November 2037.
(2) The first date the offender will be eligible for release to parole is 6 May 2046.
(3) The sentence expires on 6 November 2050.
(4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates that the sentences that would have been imposed for each offence are (following the application of the 25% discount):
(i) 3 years for the offence of attempted specially aggravated detain in company.
(ii) 12 years for the offence of specially aggravated detain in company.

Catchwords:
SENTENCING – Relevant factors on sentence – Co-offenders – Joint sentence proceedings - Specially aggravated detain in company with intent to obtain advantage – Objective seriousness – Aggravating factors - Gratuitous cruelty – Substantial harm, injury, loss or damage - Conditions of custody – Moral culpability - Deprived upbringing – Mental illness – Special circumstances

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571
DG v R [2017] NSWCCA 139
DPP v De La Rosa [2010] NSWCCA 194
DS v R; DM v R [2022] NSWCCA 156
Hraichie v R [2022] NSWCCA 155
Ibbotson (A Pseudonym) v R [2020] NSWCCA 92
Johnson v The Queen [2004] HCA 15
McCullough v R [2009] NSWCCA 94
Muldrock v The Queen (2011) 244 CLR 120
R v MAK [2006] NSWCCA 381
R v Newell [2004] NSWCCA 183
R v Speechley [2012] NSWCCA 130
RH McL v The Queen (2000) 203 CLR 452
Veen v R (No 2) (1988) 164 CLR 465

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Noel Barrett (Offender)
DM (Offender)
Representation:
Counsel:
Mr J Stanhope (Crown)
Mr P Johnson (Noel Barrett)
Ms C Akthar…

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 Barrett; R v DM

Details

AGLC: R v Barrett; R v DM [2023] NSWDC 114
Case: [2023] NSWDC 114
Decision Date: 14 April 2023

CaseChat Overview and Summary

Noel Barrett and DM were before the court to be sentenced for their involvement in an offence of specially aggravated detain in company with intent to obtain an advantage. The case was heard in the Supreme Court of New South Wales. The court was required to determine the appropriate sentence for each offender, considering various legal factors and circumstances surrounding the offence.

The court examined several factors to decide the appropriate sentence, including the objective seriousness of the offence, aggravating factors such as gratuitous cruelty, the harm caused, and the conditions of custody. Additionally, the court considered the moral culpability of each offender, including their deprived upbringing and mental health issues. The court also evaluated the special circumstances of each case, including the offenders' roles and contributions to the crime.

After considering these factors, the court sentenced Noel Barrett to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months. DM was sentenced to an aggregate term of imprisonment of 13 years, with a non-parole period of 8 years and 6 months. The court indicated that the sentences for each offence would have been 3 years for the attempted specially aggravated detain in company and 9 years for the specially aggravated detain in company for Barrett, and 3 years and 12 years respectively for DM.

The court provided specific details about the commencement and expiry dates of each sentence and the first date of parole eligibility for each offender. These details were given in accordance with section 53A(2) of the Crimes (Sentencing Procedure) Act 1999, which requires the court to indicate the sentences that would have been imposed for each offence following the application of the 25% discount.

Orders

Orders of the court

In regard to the offender Noel Barrett:

(1) The offender is sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months, commencing on 21 December 2022.

(2) The first date the offender will be eligible for release to parole is 20 June 2029.

(3) The sentence expires on 20 December 2032.

(4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates that the sentences that would have been imposed for each offence are (following the application of the 25% discount):

(i) 3 years for the offence of attempted specially aggravated detain in company.

(ii) 9 years for the offence of specially aggravated detain in company.

In regard to the offender DM:

(1) The offender is sentenced to an aggregate term of imprisonment of 13 years, with a non-parole period of 8 years and 6 months, commencing on 7 November 2037.

(2) The first date the offender will be eligible for release to parole is 6 May 2046.

(3) The sentence expires on 6 November 2050.

(i) 3 years for the offence of attempted specially aggravated detain in company.

(ii) 12 years for the offence of specially aggravated detain in company.

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 Barrett; R v DM [2023] NSWDC 114

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

Hraichie v The The Queen
[2022] NSWCCA 155 Para 154

…Each of counsel for DM and the Crown referred me to Hraichie v The Queen [2022] NSWCCA 155. In particular I was referred to the discussion by Beech-Jones CJ at CL at [69]-[73] and [96]-[98] where his Honour discussed the application of principles of accumulation and totality.…
DS v R; DM v R
[2022] NSWCCA 156 Para 129

…I note that in the Court of Criminal Appeal decision with respect to DM of DS v R; DM v R [2022] NSWCCA 156, it was said (at [184]):…
Zahab v R
[2021] NSWCCA 7 Para 97

…I was referred to Zahab v R [2021] NSWCCA 7 where Bathurst CJ at [47] said that the fact that an offender will be subject to onerous conditions of custody is a factor which can be taken into account as a mitigating factor on sentence.…
Dungay v R
[2020] NSWCCA 209 Para 123

…tances of their upbringing and the effects this had were causally related to the offending to give effect to the principles in Bugmy : see Dungay v R [2020] NSWCCA 209. I do accept that for each of the offenders the circumstances of their backgrounds are such that the principles of Bugmy do apply. I will give their…
Ibbotson (a pseudonym) v R
[2020] NSWCCA 92 Para 149

…h of the indicative sentences, rather than in the aggregate sentences that I will impose: see DG v R [2017] NSWCCA 139 and Ibbotson (A Pseudonym) v R [2020] NSWCCA 92.…
DG v R
[2017] NSWCCA 139 Para 149

…applied to the sentence will be reflected in each of the indicative sentences, rather than in the aggregate sentences that I will impose: see DG v R [2017] NSWCCA 139 and Ibbotson (A Pseudonym) v R [2020] NSWCCA 92.…
Munda v Western Australia
[2013] HCA 38 Para 128

…owever, they cannot lead to a sentence which is disproportionate to the gravity of the offending in this case: see Munda v State of Western Australia (2013) 249 CLR 600 at [53]. That is particularly so here with respect to the detain offence involving Mr Fuller.…
Bugmy v The Queen
[2013] HCA 37 Para 123

…o-offenders rely on to submit that the effect of the deprived upbringing on them should be found to reduce their moral culpability: Bugmy v The Queen (2013) 249 CLR 571. I do not need to find that the circumstances of their upbringing and the effects this had were causally related to the offending to give effect to t…
R v Speechley
[2012] NSWCCA 130 Para 80

…I have been referred to the decision of R v Speechley [2012] NSWCCA 130 where Johnson J referred to R v Newell [2004] NSWCCA 183 and considered offences against s 86 and said (at [54]-[55]) that the gravamen of the offence for the purposes of sentencing was the unlawful detaining of a person. His Honour said that fa…
Muldrock v The Queen
[2011] HCA 39

…R [2022] NSWCCA 155 Ibbotson (A Pseudonym) v R [2020] NSWCCA 92 Johnson v The Queen [2004] HCA 15 McCullough v R [2009] NSWCCA 94 Muldrock v The Queen (2011) 244 CLR 120 R v MAK [2006] NSWCCA 381 R v Newell [2004] NSWCCA 183 R v Speechley [2012] NSWCCA 130 RH McL v The Queen (2000) 203 CLR 452 Veen v R (No 2) (1988) 164 CLR 4…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 131

…ange and is thereby prone to impulsive behaviour. I accept counsel for the offender’s submissions that the principles discussed in DPP v De La Rosa [2010] NSWCCA 194 at [177] are applicable such that his moral culpability is reduced, thereby moderating the application of the principle of general deterrence. I note t…
McCullough v R
[2009] NSWCCA 94 Para 5

…very serious and relevant to the overall gravity of the offending, do not satisfy the requirements of s 21A(2)(f). Counsel referred to McCullough v R [2009] NSWCCA 94 at [28]-[33] where Howie J, with whom McClellan CJ at CL and Simpson J agreed, discussed what was required for the aggravating factor of gratuitous c…
R v MAK
[2006] NSWCCA 381 Para 151

…r all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
R v Newell
[2004] NSWCCA 183 Para 80

…I have been referred to the decision of R v Speechley [2012] NSWCCA 130 where Johnson J referred to R v Newell [2004] NSWCCA 183 and considered offences against s 86 and said (at [54]-[55]) that the gravamen of the offence for the purposes of sentencing was the unlawful detaining of a person. His Honour said that fa…
Johnson v The Queen
[2004] HCA 15 Para 151

…ehaviour of the offenders, ask myself what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 157

…ce on the offenders for the Form 1 offences: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, per Spigelman CJ.…
R H McL v The Queen
[2000] HCA 46 Para 151

…elf what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 4

…actor under s 21A(2)(d). In respect to DM, the Crown submitted that his record of prior offences squarely attracts the application of Veen v R (No 2) (1988) 164 CLR 465. DM’s record includes prior assaults on juvenile detention officers and correctional officers. I accept the Crown’s submission. I do regard the offen…

Legislation cited in this decision · 3

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 5)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Barrett; R v DM [2023] NSWDC 114
Hearing dates:	6 April 2023
Decision date:	14 April 2023
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	In regard to the offender Noel Barrett: (1) The offender is sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months, commencing on 21 December 2022. (2) The first date the offender will be eligible for release to parole is 20 June 2029. (3) The sentence expires on 20 December 2032. (4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates that the sentences that would have been imposed for each offence are (following the application of the 25% discount): (i) 3 years for the offence of attempted specially aggravated detain in company. (ii) 9 years for the offence of specially aggravated detain in company. In regard to the offender DM: (1) The offender is sentenced to an aggregate term of imprisonment of 13 years, with a non-parole period of 8 years and 6 months, commencing on 7 November 2037. (2) The first date the offender will be eligible for release to parole is 6 May 2046. (3) The sentence expires on 6 November 2050. (4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates that the sentences that would have been imposed for each offence are (following the application of the 25% discount): (i) 3 years for the offence of attempted specially aggravated detain in company. (ii) 12 years for the offence of specially aggravated detain in company.
Catchwords:	SENTENCING – Relevant factors on sentence – Co-offenders – Joint sentence proceedings - Specially aggravated detain in company with intent to obtain advantage – Objective seriousness – Aggravating factors - Gratuitous cruelty – Substantial harm, injury, loss or damage - Conditions of custody – Moral culpability - Deprived upbringing – Mental illness – Special circumstances
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518 Bugmy v The Queen (2013) 249 CLR 571 DG v R [2017] NSWCCA 139 DPP v De La Rosa [2010] NSWCCA 194 DS v R; DM v R [2022] NSWCCA 156 Hraichie v R [2022] NSWCCA 155 Ibbotson (A Pseudonym) v R [2020] NSWCCA 92 Johnson v The Queen [2004] HCA 15 McCullough v R [2009] NSWCCA 94 Muldrock v The Queen (2011) 244 CLR 120 R v MAK [2006] NSWCCA 381 R v Newell [2004] NSWCCA 183 R v Speechley [2012] NSWCCA 130 RH McL v The Queen (2000) 203 CLR 452 Veen v R (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Noel Barrett (Offender) DM (Offender)
Representation:	Counsel: Mr J Stanhope (Crown) Mr P Johnson (Noel Barrett) Ms C Akthar…