Spigelman CJ at 1,48; Sperling J at 66; Carruthers AJ at 2
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
99/51/0241-0245
LOWER COURT JUDICIAL OFFICER :
Hosking DCJ
COUNSEL :
G E Smith (Crown) S M Kluss (Respondent)
SOLICITORS:
S E O'Connor (Crown) J Fuggle (Respondent)
CATCHWORDS:
CRIMINAL LAW - Crown appeal against inadequacy of sentence - Whether sentencing Judge gave inadequate weight to the seriousness of the substantive offences on indictment and twenty-seven offences on a Form 1 - Strong deterrent element when sentencing for using a weapon with intent to prevent lawful apprehension - Appropriate influence on sentence of matters listed on Form 1.
Murrell v The Queen (1985) 4 FCR 168 R v Andrew Skillan Jones, NSW CCA 30 June 1994, Unreported R v Bachelor (1952) 36 CAR 64 R v De Simoni (1981) 147 CLR 383 R v Doan [2000] NSWCCA 317 R v Goddard (1999) 21 WAR 541 R v Hamilton (1993) 66 A Crim R 575 R v Hobson (1942) 29 CrAppR 30 R v J (1992) 52 SASR 145 R v JCW (22000)112 A Crim R 466 R v Letteri, NSW CCA 18 March 1992, Unreported R v Morgan (1993) 70 A Crim R 368 R v Olbrich (1999) 199 CLR 270 R v Perez, NSW CCA 11 December 1991, Unreported R v Vougdis (1989) 41 A Crim R 125 R v White (1981) 28 SASR 9
DECISION:
1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence imposed by Hosking DCJ set aside; 4. Sentenced as per judgment at paras 45-46
IN THE COURT OF
CRIMINAL APPEAL
60737/00
SPIGELMAN CJ
SPERLING J
CARRUTHERS AJ
Monday 5 March 2001
Regina v Kevin Anthony BARTON
JUDGMENT
1 SPIGELMAN CJ: I invite Carruthers AJ to deliver the first judgment.
2 CARRUTHERS AJ: This is an appeal by the Director of Public Prosecutions under s 5D of the Criminal Appeal Act 1912 against sentences imposed by his Honour Judge Hosking QC at the District Court Lismore on 3 November 2000 upon the respondent, Kevin Anthony Barton.
3 The respondent had earlier pleaded guilty to two charges on separate indictments. The first charge was that on 5 September 1999 at Ruthven in this State, the respondent did use a weapon, that is to say, a Mitsubishi motor vehicle registered number MNV-693, with intent to prevent his lawful apprehension contrary to s 33B(a) of the Crimes Act 1900 (to which I shall hereinafter refer as "the Act"). This offence carries a maximum penalty of imprisonment for twelve years.
4 The second charge was that the respondent, between 27 and 28 August…
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.
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Details
AGLC
R v Barton [2001] NSWCCA 63
Case
[2001] NSWCCA 63
Decision Date
CaseChat Overview and Summary
In the matter of R v Barton, the appellant faced criminal charges, and the Crown appealed against the adequacy of the sentence imposed by the trial judge. The appellant was convicted of multiple offences, including substantive charges on the indictment and additional offences listed on a Form 1. The Crown argued that the trial judge did not sufficiently account for the gravity of the substantive offences or the twenty-seven offences listed on the Form 1. Additionally, the Crown contended that the judge did not adequately consider the need for a strong deterrent when sentencing for the use of a weapon with intent to prevent lawful apprehension.
The legal issues before the court included whether the sentencing judge appropriately assessed the severity of the substantive offences and the additional charges listed on the Form 1. The court also needed to determine if the judge had correctly considered the deterrent effect necessary for the use of a weapon in the commission of these crimes. Furthermore, the court had to assess whether the influence of the Form 1 matters on the overall sentence was appropriately balanced.
The court found that the trial judge did not sufficiently weigh the seriousness of the substantive offences and the additional charges on the Form 1. The judge's sentence did not reflect the strong deterrent necessary to address the use of a weapon in preventing lawful apprehension. Consequently, the Crown's appeal was upheld, and the matter was remitted to the trial judge for resentencing. The court emphasised that the Form 1 matters should have had a more substantial influence on the final sentence.