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R v Bartlett

R v Bartlett

Case [2016] ACTSC 390 23 December 2016

Intensive Corrections Order

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Bartlett
Citation:	[2016] ACTSC 390
Hearing Date:	20 December 2016
DecisionDate:	23 December 2016
Before:	Refshauge ACJ
Decision:	1. David Ian Bartlett be convicted of recklessly inflicting grievous bodily harm on another person on 22 May 2015. 2. The sentence be adjourned until 2 March 2017 at 9:30am for the Director-General to assess David Ian Bartlett’s suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order. 3. Bail for David Ian Bartlett be continued with the following additional conditions: a. that he report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City by 4:00pm today and make arrangements for an assessment of his suitability for an Intensive Correction Order; b. that he co-operate with ACT Corrective Services in the assessment for an Intensive Correction Order and obey all reasonable requirements made of him for that assessment; and c. that he not travel outside of Australia between 23 December 2016 and 2 March 2017. 4. The back-up charge of culpable driving of a motor vehicle be dismissed.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trial by jury – guilty of recklessly inflicting grievous bodily – assessment of the objective seriousness of the offence – recognition of the harm done to the victim – consideration of previous good character of offender – general deterrence – assessment for an Intensive Corrections Order
Legislation Cited:	Crimes Act 1900 (ACT), s 20 Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 7, 78 Sentencing Act 1991 (Vic)
Cases Cited:	Cheung v The Queen [2001] HCA 67; 209 CLR 1 Fusimalohi v The Queen [2012] ACTCA 49 Goundar v Goddard (2010) 240 FLR 176 Oliver (1980) 7 A Crim R 174 R v Aniezue [2016] ACTSC 82 R v Amosa [2015] ACTSC 34 R v Bilal [2014] ACTSC 74 R v Booth [2004] ACTCA 21 R v Campbell [2010] ACTCA 20 R v Carmody [2016] ACTSC 382 R v EL [2016] ACTSC 241 R v Martin [2013] ACTSC 280 R v Ngerengere (No 3) [2016] ACTSC 299 R v Shevlin [2013] ACTSC 88 R v Thawer [2009] NSWCCA 158 R v Torbett [2015] ACTSC 331 R v Wagle (No 2) [2014] ACTSC 160 R v Williams [2015] ACTSC 406 R v Wolter(No 3) [2015] ACTSC 321 Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 The Queen v Kilic [2016] HCA 48
Parties:	The Queen (Crown) David Ian Bartlett (Defendant)
Representation:	Counsel Ms R Christiansen (Crown) Mr P Bevan (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Bevan & Co (Defendant)
File Numbers:	SCC 8 of 2016 SCC 9 of 2016

REFSHAUGE ACJ:

In R v Aniezue [2016] ACTSC 82, I mentioned that the Internet has brought great benefits and prosperity to society but also has the capacity for the creation of other problems. So with the motor vehicle. The motor vehicle has significantly…

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 Bartlett

Details

AGLC: R v Bartlett [2016] ACTSC 390
Case: [2016] ACTSC 390
Decision Date: 23 December 2016

CaseChat Overview and Summary

David Ian Bartlett was charged with recklessly inflicting grievous bodily harm on another person on 22 May 2015 and culpable driving of a motor vehicle. The matter was heard in the Magistrates Court of the Australian Capital Territory. Bartlett was found guilty of the first offence but not guilty of the second. The primary legal issues for the court were to determine the appropriate sentence for Bartlett’s conviction and to consider the possibility of an Intensive Corrections Order.

The court had to assess the objective seriousness of Bartlett’s offence, taking into account the harm caused to the victim. The court also had to consider Bartlett’s previous good character and the need for general deterrence. The court acknowledged the mitigating factors presented, including Bartlett’s cooperation with authorities and his remorse. The court also noted that Bartlett’s actions were impulsive rather than premeditated. The court determined that an Intensive Corrections Order could be an appropriate form of punishment, considering the potential for rehabilitation and the need for deterrence.

The court found that Bartlett’s actions were of significant seriousness due to the grievous bodily harm inflicted on the victim. However, the court recognised that Bartlett had no prior convictions and had shown remorse. The court also considered the potential for rehabilitation through an Intensive Corrections Order. The court adjourned the sentencing to allow for an assessment of Bartlett’s suitability for such an order. The court also imposed additional conditions on Bartlett’s bail, including reporting to ACT Corrective Services for the assessment and refraining from travelling outside Australia during the assessment period.

The court ordered that Bartlett be convicted of recklessly inflicting grievous bodily harm and dismissed the charge of culpable driving. The sentence was adjourned until 2 March 2017 for the Director-General to assess Bartlett’s suitability for an Intensive Corrections Order. The court also continued Bartlett’s bail with additional conditions, including reporting to ACT Corrective Services and not travelling outside Australia between 23 December 2016 and 2 March 2017.

Orders

Orders of the court

1. David Ian Bartlett be convicted of recklessly inflicting grievous bodily harm on another person on 22 May 2015.

2. The sentence be adjourned until 2 March 2017 at 9:30am for the Director-General to assess David Ian Bartlett’s suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order.

3. Bail for David Ian Bartlett be continued with the following additional conditions:

a. that he report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City by 4:00pm today and make arrangements for an assessment of his suitability for an Intensive Correction Order;

b. that he co-operate with ACT Corrective Services in the assessment for an Intensive Correction Order and obey all reasonable requirements made of him for that assessment; and

c. that he not travel outside of Australia between 23 December 2016 and 2 March 2017.

4. The back-up charge of culpable driving of a motor vehicle be dismissed.

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

R v Bartlett [2016] ACTSC 390

Most Recent Citation

R v Beniamini (No 2) [2017] ACTSC 32

Cases Citing This Decision

R v Naing [2023] ACTSC 210
Citation 1

…’Brien v The Queen [2015] ACTCA 47 Power v The Queen (1974) 131 CLR 623 R v Anderson (No 2) [2020] ACTSC 98 R v Ardron [2021] ACTSC 91 R v Bartlett [2016] ACTSC 390 R v BC (No 4) [2021[ ACTSC 119 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Cole [2017] ACTSC 404 R v Coleman (1990) 47 A Crim R 306 R v Dent (Unreport…
R v Butters [2019] ACTSC 143
Citation 2 (Para 1)

…nt was ordered; R v Cranfield [2017] ACTSC 171, in which a sentence of three years, seven months and five days imprisonment was ordered; R v Bartlett [2016] ACTSC 390, in which a sentence of three years and six months imprisonment to be served by way of ICO was ordered; and R v Rheinberger (No 2) [2016] ACTSC 307 (…
R v KB [2019] ACTSC 136
Citation 3

…arian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Naizmand v R [2018] NSWCCA 25 R v Arthur [2017] ACTSC 23 R v Bartlett [2016] ACTSC 390 R v De Leeuw [2015] NSWCCA 183 R v Dummett (Unreported, Supreme Court of the ACT, Burns J, 30 October 2013) R v Ferguson [2015] ACTSC 363 R v Harring…
R v Bailey [2019] ACTSC 102
Citation 4

…Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Pattalis v R [2013] NSWCCA 171 R v Bandy [2018] ACTSC 261 R v Bartlett [2016] ACTSC 390 R v Beniamini (No 2) [2017] ACTSC 32 R v Burgess [2017] ACTSC 249 R v Carmody (No 3) [2017] ACTSC 60 R v Cranfield [2017] ACTSC 171 R v Gillett [2019…
R v Waghorn [2019] ACTSC 72
Citation 5

…v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Amosa [2015] ACTSC 34 R v Bandy [2018] ACTSC 261 R v Bartlett [2016] ACTSC 390 R v Beniamini (No 2) [2017] ACTSC 32 R v Burgess [2017] ACTSC 249 R v Carmody (No 3) [2017] ACTSC 60 R v Chapman [2018] ACTSC 57 R v Cranfield [2017]…
R v Yuen [2019] ACTSC 70
Citation 6

…; 245 A Crim R 80 R v Ainsworth [2003] QCA 468;1 Qd R 679 R v Amosa [2015] ACTSC 34 R v Azar [2004] NSWSC 797 R v Bandy [2018] ACTSC 261 R v Bartlett [2016] ACTSC 390 R v Beniamini (No 2) [2017] ACTSC 32 R v Burgess [2017] ACTSC 249 R v Carmody (No 3) [2017] ACTSC 60 R v Cranfield [2017] ACTSC 171 R v Daetz [2003]…
R v Merritt [2019] ACTSC 23
Citation 7

…R 357 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Amosa [2015] ACTSC 34 R v Ang [2014] ACTCA 17 R v Bandy [2018] ACTSC 261 R v Bartlett [2016] ACTSC 390 R v Beniamini (No 2) [2017] ACTSC 32 R v Burgess [2017] ACTSC 249 R v Carmody (No 3) [2017] ACTSC 60 R v Cranfield [2017] ACTSC 171 R v Hidic [2017]…
R v Bandy [2018] ACTSC 261
Citation 8

…57 Monfries v The Queen [2014] ACTCA 6 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Amosa [2015] ACTSC 34 R v Ang [2014] ACTCA 17 R v Bartlett [2016] ACTSC 390 R v Bartlett (No 2) [2017] ACTSC 51 R v Beniamini (No 2) [2017] ACTSC 32 R v Burgess [2017] ACTSC 249 R v Carmody (No 3) [2017] ACTSC 60 R v Chapman…
R v Al-Harazi (No 7) [2017] ACTSC 350
Citation 9 (Para 1)

…I explained in R v Bartlett [2016] ACTSC 390 at [6]-[7], the approach to be followed in making these necessary findings:…
R v Myles [2017] ACTSC 194
Citation 10 (Para 1)

…On the other hand, ICOs were imposed in the not dissimilar cases of R v Bartlett [2016] ACTSC 390 (see also R v Bartlett (No 2) [2017] ACTSC 390) and EL . Other cases that are somewhat similar are Amosa, Smith and R v Seretin [2016] ACTSC 45.…
R v Bartlett (No 2) [2017] ACTSC 51
Citation 11 (Para 1)

…General might assess Mr Bartlett for suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order: R v Bartlett [2016] ACTSC 390.…
R v Beniamini (No 2) [2017] ACTSC 32
Citation 12 (Para 1)

…There was no premeditation involved here. The degree of recklessness is also important, as explained in R v Bartlett [2016] ACTSC 390 at [29]. The attack was serious and sustained, though it did not continue, it would appear, for any prolonged period.…

See all citing cases →

Cases Cited

R v Torbert [2015] ACTSC 331
Citation 1 (Para 1)

…s also important to have regard to the circumstances of the offending and the behaviour involved. See R v EL [2016] ACTSC 241 at [21] and R v Torbett [2015] ACTSC 331 at [37].…
R v Carmody [2016] ACTSC 382
Citation 2 (Para 1)

…ot as serious as many injuries that have been the subject of this charge. See, for example, the analysis of some cases I have made in the R v Carmody [2016] ACTSC 382 at [123].…
R v Kilic [2016] HCA 48
Citation 3 (Para 1)

…ntencing practice. The High Court has recently commented on this obligation so far as the Sentencing Act 1991 (Vic) is concerned in The Queen v Kilic [2016] HCA 48.…
R v Ngerengere (No 3) [2016] ACTSC 299
Citation 4 (Para 1)

…that he should be considered for service of the sentence by an Intensive Correction Order. I have described that sentence in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]-[27]. It is, as I pointed out, in R v Carmody at [160], a sentence with deterrent effect.…
R v EL [2016] ACTSC 241
Citation 5 (Para 1)

…It is also important to have regard to the circumstances of the offending and the behaviour involved. See R v EL [2016] ACTSC 241 at [21] and R v Torbett [2015] ACTSC 331 at [37].…
R v Aniezue [2016] ACTSC 82
Citation 6 (Para 1)

…In R v Aniezue [2016] ACTSC 82, I mentioned that the Internet has brought great benefits and prosperity to society but also has the capacity for the creation of other problems. So with the motor vehicle. The motor vehicle has significantly improved the economic and social life of the community. Motor vehicle colli…
R v Williams [2015] ACTSC 406
Citation 7 (Para 1)

…This is sometimes described as “the conduct and moral culpability” as in R v Amosa [2015] ACTSC 34 at [21] and R v Williams [2015] ACTSC 406 at [13]. While culpability is important, I reject the suggestion that it should be described as “moral culpability”. The criminal courts are not courts of morality but courts…
R v Amosa [2015] ACTSC 34
Citation 8 (Para 1)

…This is sometimes described as “the conduct and moral culpability” as in R v Amosa [2015] ACTSC 34 at [21] and R v Williams [2015] ACTSC 406 at [13]. While culpability is important, I reject the suggestion that it should be described as “moral culpability”. The criminal courts are not courts of morality but courts…
The Queen v Saurav Wagle (No 2) [2014] ACTSC 160
Citation 9 (Para 1)

…As I observed in R v Wagle (No 2) [2014] ACTSC 160 at [22], offences of personal violence require the Court to have particular regard to general and specific deterrence.…
R v Bilal [2014] ACTSC 74
Citation 10 (Para 1)

…Further, the degree of recklessness is also relevant. See R v Booth [2004] ACTCA 21 at [10] and R v Bilal [2014] ACTSC 74 at [15]. This is, perhaps, related to the conduct and the degree of culpability of the offence.…
R v Martin [2013] ACTSC 280
Citation 11 (Para 1)

…e offence of recklessly inflicting grievous bodily harm requires that it be regarded as a serious offence. Indeed, as I pointed out in the R v Martin [2013] ACTSC 280, there is a need to protect the community from violent conduct.…
R v Shevlin [2013] ACTSC 88
Citation 12 (Para 1)

…needed to constitute really serious harm which, of course, is the test for grievous bodily harm – an element of the offence itself. See R v Shevlin [2013] ACTSC 88 at [30]-[31].…
Fusimalohi v The Queen [2012] ACTCA 49
Citation 13 (Para 1)

…Mr Bartlett “was genuinely worried about [the victim]”. While the value of that as remorse (which I have discussed in Fusimalohi v The Queen [2012] ACTCA 49 at [27]-[44]), is perhaps questionable in all the circumstances, it is consistent with Mr Bartlett’s character as described in the references I had.…
Goundar v Goddard [2010] ACTSC 56
Citation 14 (Para 1)

…I have regard to Mr Bartlett’s good character and, indeed, his positive good character, the nature of which I have described in Goundar v Goddard (2010) 240 FLR 176 at 184; [45]-[47].…
R v Thawer [2009] NSWCCA 158
Citation 15 (Para 1)

…f the harm done. The Court of Appeal in the R v Campbell at [37] adopted what Howie J, with whom Giles JA and Latham J agreed, said in the R v Thawer [2009] NSWCCA 158 at [43]:…
R v Booth [2004] ACTCA 21
Citation 16 (Para 1)

…Further, the degree of recklessness is also relevant. See R v Booth [2004] ACTCA 21 at [10] and R v Bilal [2014] ACTSC 74 at [15]. This is, perhaps, related to the conduct and the degree of culpability of the offence.…
Cheung v The Queen [2001] HCA 67
Citation 17 (Para 1)

…These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; 209 CLR 1 at 12-14; [13]-[16]. I shall approach my task in this way.…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33(1)(za), 7, 78
4 mentions (from Para 1)
Crimes Act 1900 (ACT) 20
2 mentions (from Para 1)
Sentencing Act 1991 (Vic)
1 mention (from Para 1)