1 ADAMS J: This is an application for leave to appeal from a sentence imposed in the District Court for an escape.
2 The circumstances were unremarkable. The applicant, at the time, was serving a term of imprisonment that had been imposed by this Court in March 2001, in respect of an offence of breaking and entering with intent to commit a felony, of three years commencing on 5 September 1999 and concluding on 4 September 2002. The applicant had escaped on 17 March 2001. The reasons for his escape are somewhat confused, relating to his domestic circumstances.
3 The sentence being served had been imposed by the Court of Criminal Appeal following a successful appeal by the Crown (Barton (2000-2001) 121 A Crim R 785).
4 The applicant was sentenced to a term of 12 months imprisonment, effectively increasing his non-parole period by that time. The nature of the case as it then appeared is perhaps sufficiently described by the commencing words of his Honour in giving reasons for sentence, which were,
“Mr Barton, you are the author of your own misfortune. You have got an impressive criminal record. You were treated with amazing leniency by the Court originally, in view of the number of matters that were taken into consideration".
5 In its Report (No 80) on people with an intellectual disability in the criminal justice system of December 1996, the New South Wales Law Reform Commission noted that persons with an intellectual disability are frequently not recognised by those involved in the criminal justice system. Regrettably, this occurred in this applicant's case, although in unusual circumstances, because the Court of Criminal Appeal in considering the matter to which I have adverted, referred extensively to the report of Mr Andreasen concerning the applicant's problems. That material may be summarised as follows.
6 Mr Andreasen found that on a test of intellectual capacity in terms of verbal reasoning, verbal concept formation and capacity for logical and abstract thinking, the respondent scored in the intellectually handicapped range at less than percentile one, that is to say, he did worse than more than 99 per cent of his age peers. He scored slightly higher in the borderline intellectually handicapped range at percentile 2 on a test of comprehension of social realities, understanding of cause effect relationships, commonsense and the capacity for the evaluation and use of past experience. There were, however, no indications of psychosis or thought disorder. There was little anxiety identity and no indication of distress or depression.
7 The Law Reform Commission Report notes that persons with intellectual disability, of which this applicant is plainly an unfortunate example, are not only disproportionately represented in the gaol system, their problems are often not identified and, if identified, not appropriately catered for. I regret to say that I think this is true within the gaol system, even for those who have been identified as persons with disability of this kind.
8 I have no doubt that, had the learned sentencing judge been aware of Mr Andreasen's report, which has since been brought up to date and shows no substantial change, his Honour would not have passed the sentence which he did.
9 A significant aspect of punishment in the applicant's situation is that he will serve, if not all, a substantial part of the balance of his sentence in strict custody, a regime which, for someone in his position, is particularly harsh.
10 I would recommend to the authorities that serious consideration be given to moving the applicant to less onerous custody as soon as it is practicable and for this purpose, I would recommend that Mr Andreasen's reports be forwarded to the gaol authorities and form part of his prison file. Even so, I am satisfied that some punishment should be imposed. I have no doubt that the applicant was aware that, in escaping, he was acting unlawfully, although the extent of his understanding was undoubtedly limited. I would, therefore, propose that the sentence below be quashed and that there be substituted there for a sentence of three months imprisonment, commencing on 4 September 2002 and expiring on 3 December 2002 and that the recommendations that I have made be communicated to those responsible for the applicant's welfare.
11 BLANCH J: I agree.
12 ADAMS J: The orders of the Court are as I have already declared.
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Details
AGLC
Regina v Barton [2002] NSWCCA 233
Case
[2002] NSWCCA 233
Decision Date
CaseChat Overview and Summary
The case of Regina v Barton involves the applicant, Kevin Barton, seeking leave to appeal against a sentence imposed for his escape from lawful custody while serving a sentence for breaking and entering with intent to commit a felony. The appeal was heard in the Court of Criminal Appeal of New South Wales on 14 June 2002. The lower court jurisdiction was the District Court, with the case presided over by Gibson DCJ. The applicant's legal representation was provided by D Humphreys, and the Crown was represented by S E O'Connor. The primary legal issue before the Court was whether the sentence imposed on the applicant, who has an intellectual disability, was appropriate given his circumstances and the need for appropriate consideration of his disability in sentencing.
The Court had to determine whether the District Court adequately considered the applicant's intellectual disability when imposing the sentence, and whether the sentence was proportionate to the offence committed. The Court found that the District Court had not been aware of the applicant's intellectual disability, which significantly impacted his understanding and capacity for logical and abstract thinking. The Court concluded that the sentence was too harsh given the applicant's limited understanding and recommended that the sentence be reduced. Adams J proposed a sentence of three months imprisonment, to commence on 4 September 2002 and expire on 3 December 2002, and recommended that the applicant be moved to less onerous custody. Blanch J agreed with the proposal.
In light of the findings, the Court quashed the original sentence and substituted it with a sentence of three months imprisonment, effective from 4 September 2002 until 3 December 2002. The Court also recommended that the applicant's intellectual disability reports be forwarded to the gaol authorities and form part of his prison file, to ensure appropriate consideration of his disability in future. The Court emphasized the importance of recognizing and addressing the needs of individuals with intellectual disabilities within the criminal justice system to ensure fair and appropriate sentencing.