R v John Barber - [2016] NSWDC 68

District Court

New South Wales

Medium Neutral Citation: R v John Barber [2016] NSWDC 68
Hearing dates: 27 April 2016
Decision date: 06 May 2016
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence
For orders see [48]

Catchwords: Sentencing; aggregate sentence; aggravated break, enter and steal and other offences
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Drug (Misuse and Trafficking) Act 1985
Inclosed Lands Protection Act 1901
Road Transport Act 2013
Cases Cited: JM v R [2014] NSWCCA 297
McIntosh v R [2015] NSWCCA 184
Pearce v R (1998) 194 CLR 610
R v Cahyadi (2007) 168 ACrimR 41
R v Caldwell [2016] NSWCCA 55
R v Rae [2009] NSWCCA 9
Zreika v R [2012] NSWCCA 44
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
John Barber (Offender)
Representation:
Counsel:
L Hanshaw (Crown)
S Bouveng (Offender)
Solicitors:

File Number(s): 15/359741
Publication restriction: Nil

REMARKS ON SENTENCE

The offender was committed for sentence on 24 February 2016 from Wagga Wagga Local Court. He had pleaded guilty to three offences, namely:

Take and drive conveyance pursuant to s 154A(1)(a) of the Crimes Act 1900. This offence carries a maximum penalty of five years imprisonment.

Stalk/intimidate pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (“C(DPV)A”). This offence carries a maximum penalty of 5 years imprisonment.

Aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.

In addition, the offender had pleaded guilty to the following matters on a s 166 Certificate:

Drive manner dangerous pursuant to s 117(2) of the Road Transport Act 2013. The maximum penalty is 9 months imprisonment; automatic disqualification for 3 years, with minimum disqualification of 12 months.

Drive whilst disqualified (2nd subsequent offence) pursuant to s 54(1)(a) of the Road Transport Act 2013. Maximum penalty 2 years imprisonment; automatic disqualification of 2 years.

Enter enclosed lands (x 2) pursuant to s 4(1)(b) of the Inclosed Lands Protection Act 1901. Maximum penalty 5 penalty units.

Possess prohibited drug pursuant to s 10(1) of the Drug (Misuse and Trafficking) Act 1985. Maximum penalty of 2 years imprisonment.

Background to the offending

Offence 1; Take and drive conveyance without consent of owner

On 10 November 2015, the offender was given permission to borrow a motor vehicle registered number ZFW 501 from the owner, on proviso that he return the vehicle the next morning. He did not return the vehicle despite several requests to do so, and eventually the car was reported to the police as stolen on 3 December 2015. On 6 December 2015, the offender drove the vehicle from Wollongong to Wagga Wagga. At the time of this offence the accused was a disqualified driver, having been disqualified at Port Kembla Local Court on 26 August 2014 until 5 March 2022.

Offence 2;…

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 John Barber

Details

AGLC: R v John Barber [2016] NSWDC 68
Case: [2016] NSWDC 68
Decision Date: 06 May 2016

CaseChat Overview and Summary

The case of R v John Barber involved the defendant, John Barber, who faced a court in Australia to determine his sentence for a series of offences including aggravated break, enter, and steal. The court was required to consider the totality of the defendant's criminal behaviour and the circumstances surrounding the offences to arrive at an appropriate punishment. The legal issues that the court had to address involved the aggregation of sentences for multiple offences and the appropriate weight to be given to each offence in the context of the defendant's criminal history and the nature of the crimes committed.

The court considered the seriousness of the offences, the defendant's criminal history, and the need for deterrence and rehabilitation. It was noted that the offences were not only serious in their individual nature but also demonstrated a pattern of criminal behaviour. The court placed particular emphasis on the aggravated nature of the break, enter, and steal offence, which involved significant breach of security and potential harm to victims. The defendant's previous convictions were taken into account, reflecting a persistent pattern of criminal activity. After careful deliberation, the court concluded that an aggregate sentence was necessary to adequately address the cumulative impact of the defendant's offending and to serve the interests of justice.

In its reasoning, the court balanced the need for punishment with the potential for rehabilitation. The final determination was that a full-time custodial sentence was appropriate. The court ordered the defendant to serve a specified term in prison, with the exact details of the sentence outlined in the court's written reasons. The court's decision aimed to reflect the gravity of the offences, provide deterrence, and contribute to the defendant's rehabilitation.

Orders

Orders of the court

Full time custodial sentence

For orders see [48]

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 John Barber [2016] NSWDC 68
Hearing dates:	27 April 2016
Decision date:	06 May 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence For orders see [48]
Catchwords:	Sentencing; aggregate sentence; aggravated break, enter and steal and other offences
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985 Inclosed Lands Protection Act 1901 Road Transport Act 2013
Cases Cited:	JM v R [2014] NSWCCA 297 McIntosh v R [2015] NSWCCA 184 Pearce v R (1998) 194 CLR 610 R v Cahyadi (2007) 168 ACrimR 41 R v Caldwell [2016] NSWCCA 55 R v Rae [2009] NSWCCA 9 Zreika v R [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) John Barber (Offender)
Representation:	Counsel: L Hanshaw (Crown) S Bouveng (Offender) Solicitors:
File Number(s):	15/359741
Publication restriction:	Nil