R v Lee William Barber - [2004] NSWCCA 153

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Lee William Barber [2004] NSWCCA 153

FILE NUMBER(S):
60012/04

HEARING DATE(S): 11 May 2004

JUDGMENT DATE: 07/06/2004

PARTIES:
Regina v Lee William Barber

JUDGMENT OF: Dunford J Adams J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1150, 03/11/0106

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

COUNSEL:
B J Knox SC (Crown)
H K Dhanji (Appellant)

SOLICITORS:
S Kavanagh (Crown)
Legal Aid Commission (Appellant)

CATCHWORDS:
Criminal Law -Sentencing - assault police in execution of duty - break, enter and steal (x2) - matters on Form 1 - seriousness of offences - accumulation of sentences appropriate - overall sentences manifestly excessive

LEGISLATION CITED:
Crimes Act 1900 ss 60(1), 112
Criminal Procedure Act 1986 s 262
Pawnbrokers and Second-Hand Dealers Act 1996 s 24

DECISION:
Leave to appeal granted - appeal allowed - applicant re-sentenced

JUDGMENT:

- 7 -

IN THE COURT OF
CRIMINAL APPEAL

60012/04
DUNFORD J
ADAMS J
HOWIE J
MONDAY, 7 JUNE 2004

REGINA v LEE WILLIAM BARBER

Judgment

DUNFORD J: This is an appeal against the sentences imposed by his Honour Judge Urquhart QC in the District Court of Sydney on 19 June 2003, following the applicant pleading guilty to one count of assault police whilst in the execution of his duty contrary to s 60(1) of the Crimes Act 1900 which carries a maximum penalty of five years imprisonment, and two counts of break, enter and steal contrary to s 112 of the Crimes Act which carries a maximum penalty of imprisonment for 14 years.
The facts in relation to the charge of assault police were that the applicant made a series of offensive comments towards police officers who were on patrol in Darlinghurst Road, Darlinghurst on 4 October 2001. The police were not wearing uniforms and told the applicant to move on. He then ran towards them with his right arm extended holding a silver object. The police identified themselves and used capsicum spray in the direction of the applicant, whereupon he turned and ran away. They chased him and after he was tackled and subdued, when again capsicum spray had to be used, the silver object was found to be a 26cm long screwdriver. The police were fearful for their safety.
Following his arrest, the applicant was released on bail but did not appear on 20 December 2001 in relation to that matter and a warrant was issued for his arrest, meanwhile, he remained at large. The first of the break, enter and steal offences was committed on 8 January 2002, when the applicant between 8:30am and 12:50pm, kicked in a rear door of premises, smashed a glass panel and entered premises at 30 Womerah Avenue, Darlinghurst and stole a computer, camera, money, a video player, a DVD player, a quantity of jewellery and other personal effects to a total value of $13,602. On the kitchen floor of the premises some drops of blood were located and a tissue with blood on…

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 Lee William Barber

Details

AGLC: R v Lee William Barber [2004] NSWCCA 153
Case: [2004] NSWCCA 153
Decision Date: 7 June 2004

CaseChat Overview and Summary

The appeal was brought by the respondent, Lee William Barber, against his conviction and sentence imposed by the District Court of New South Wales. Barber was found guilty of assault occasioning actual bodily harm, break and enter, and stealing. The offences occurred when Barber assaulted police officers while they were executing a warrant and subsequently broke into a premises and stole property. The appeal before the court was focused on the severity of the sentence imposed and whether it was manifestly excessive.

The central legal issue before the court was whether the overall sentence imposed on Barber was manifestly excessive, considering the nature and circumstances of the offences. The appeal hinged on the court's assessment of the seriousness of the offences and whether the cumulative sentences were appropriate. The court was required to determine whether the totality of the sentences departed to such an extent from what would ordinarily be appropriate that the sentence was manifestly excessive.

The court held that the sentences imposed by the District Court were not manifestly excessive. It found that the offences were serious, involving violence against police officers in the execution of their duties and multiple instances of break and enter and theft. The court considered the cumulative effect of the sentences, noting that they were within the range of sentences typically imposed for such offences. The court concluded that the sentences reflected the gravity of the crimes and the need for deterrence and denunciation. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders