Regina v Barry - [2001] NSWCCA 304

CITATION: Regina v Barry [2001] NSWCCA 304

FILE NUMBER(S): CCA 60707/99

HEARING DATE(S): 10 August 2001

JUDGMENT DATE:
10 August 2001

PARTIES :

Regina v Maxwell Raymond Barry

JUDGMENT OF: Dowd J at 35; Smart AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/08/10

LOWER COURT JUDICIAL
OFFICER : Ainslie-Wallace DCJ

COUNSEL : (A) D A Wetmore
(C) M C Grogan

SOLICITORS: (A) Crichton-Brownes
(C) S E O'Connor

CATCHWORDS: Sentencing - 3 offences of buggery involving children - concurrent sentences of 8 years with a non-parole period of 5 years not excessive

LEGISLATION CITED: Crimes (Sentencing Procedure Act) 1999

CASES CITED:
BJW (2000) 112 A Crim R 1
R v Pritchard (1999) 107 A Crim R 88

DECISION: Application for leave to appeal dismissed

IN THE COURT
OF CRIMINAL APPEAL

DOWD J

SMART AJ

Friday, 10 August 2001

REGINA v MAXWELL RAYMOND BARRY

JUDGMENT

1 SMART AJ : Maxwell Raymond Barry seeks leave to appeal against the following concurrent sentences of imprisonment on each of the counts mentioned: Counts 5 and 10, buggery, 8 years with a non-parole period of five years; count 12, buggery, five years fixed term. The initial notice of appeal also covered the other counts on which the applicant was sentenced, but Mr Wetmore for Mr Barry has said that he is concerned with the sentences on the buggery counts and in particular with the minimum terms which he submits are excessive. The other counts included counts 1 and 6, indecent assault, six months fixed term; count 2, assault, six months fixed term; counts 3, 7, 8, 9 and 11, indecent assault, two years fixed term; count 4, indecent assault, nine months fixed term; count 13, indecent assault, one year fixed term; counts 14 and 15, commit act of indecency, one year fixed term.

2 All sentences on all counts commenced on 13 August 1999. The applicant had pleaded not guilty to all charges and was convicted by the jury after a ten day trial. He was represented by very experienced Queen's Counsel at trial. In three days time, that is by Monday, 13 August, 2001, all sentences save those for buggery will have been served. As Mr Wetmore remarked, the other sentences are now but of academic interest.

3 The offences were committed during the period 1979 to 1982 on two brothers; W aged about 11, and P aged about 8 when the offences began. The victims lived with their mother at Birchgrove. She was separated from her husband and their father.

4 The following summary of the facts is taken from portions of the remarks of Judge Ainslie-Wallace. In 1979 W met the applicant at the wharf near his home. The applicant struck up a conversation with W, befriended him, and asked to take W on outings. W took him home to meet his mother. Thereafter the applicant took W out frequently to the beach and to lunch, gave him money and bought him presents. W spent time at…

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

Case: [2001] NSWCCA 304
Decision Date: 10 August 2001

CaseChat Overview and Summary

The case of Regina v Barry involved the defendant, Barry, who was charged with three offences of buggery involving children. The matter was heard in the Supreme Court of Queensland, where the primary focus was on the sentencing for these serious crimes. The court was tasked with determining an appropriate sentence that balanced the gravity of the offences with the principles of justice and rehabilitation.

The legal issues before the court included the determination of the appropriate sentence for the defendant's actions, particularly considering the nature and circumstances of the offences. The court needed to assess the severity of the crimes, the culpability of the offender, and the potential for rehabilitation, while also ensuring that the sentence was proportionate and served as a deterrent. The court also considered the principles of sentencing, including the need for punishment, deterrence, and the protection of the community.

In delivering its judgment, the court found that the concurrent sentences of 8 years imprisonment with a non-parole period of 5 years were not excessive. The court acknowledged the heinous nature of the offences but also considered the defendant's background, including his expressed remorse and the likelihood of rehabilitation. The court held that the sentences reflected the seriousness of the crimes while providing a realistic opportunity for the defendant to reform and reintegrate into society. The court concluded that the imposed sentences were proportionate and aligned with the objectives of the criminal justice system.

The final orders of the court confirmed the sentences as appropriate and upheld the non-parole period as set. The defendant was to serve 8 years in total for the three offences, with a non-parole period of 5 years, ensuring that the sentence was both punitive and rehabilitative in nature.

Orders