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Court of Criminal Appeal 14 June 2002

REGINA v BARTON

[2002] NSWCCA 233

Public order & justice offences

Citation: Regina v Barton [2002] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 14 June 2002
Judge(s): Adams J, Blanch AJ

Background

The applicant was serving a three-year sentence imposed by the Court of Criminal Appeal in March 2001 for breaking and entering with intent to commit a felony. On 17 March 2001, he escaped from custody, apparently for reasons connected to his domestic circumstances. He was subsequently charged with and sentenced for the escape.

In the District Court, Gibson DCJ sentenced the applicant to 12 months imprisonment for the escape, effectively extending his non-parole period by that amount. The sentencing judge characterised the applicant as the author of his own misfortune and noted an extensive criminal record, without apparently being aware of a significant psychological report that had been before the Court of Criminal Appeal in the earlier proceedings.

The applicant sought leave to appeal against that 12-month sentence.

  • Whether the District Court's 12-month sentence for escape was appropriate in all the circumstances
  • Whether the sentencing judge's failure to take into account the applicant's intellectual disability constituted a basis for reducing the sentence on appeal

Decision

Central to the appeal was a psychological report by Mr Andreasen, which had been before the Court of Criminal Appeal in the earlier Crown appeal but was not before Gibson DCJ at sentencing. That report showed the applicant scored below the first percentile on tests of verbal reasoning, abstract thinking and logical capacity, placing him in the intellectually handicapped range. On tests of social comprehension and use of past experience, he scored at the second percentile. There were no indications of psychosis or thought disorder.

Adams J found that had the sentencing judge been aware of this material, a sentence of 12 months would not have been imposed. The Court acknowledged that some punishment remained appropriate, noting the applicant would have understood that escaping was unlawful, even if the extent of that understanding was limited. However, the severity of strict custody conditions was itself identified as a particularly harsh circumstance for a person with intellectual disability.

Adams J also observed more broadly that persons with intellectual disability are overrepresented in the prison system, and that their disabilities are frequently unrecognised or inadequately accommodated, including within the prison system itself. The Court drew on the NSW Law Reform Commission's Report No 80 (December 1996) on persons with intellectual disability in the criminal justice system in making this observation.

The Court quashed the 12-month sentence and substituted a term of three months. Adams J also made non-binding recommendations to prison authorities regarding the applicant's placement and welfare.

Orders Made

  • The 12-month sentence imposed in the District Court was quashed
  • A substitute sentence of three months imprisonment was imposed, commencing 4 September 2002 and expiring 3 December 2002
  • The Court recommended that Mr Andreasen's reports be forwarded to prison authorities and placed on the applicant's prison file
  • The Court further recommended that serious consideration be given to moving the applicant to less onerous custody as soon as practicable

Key Takeaways

  • A sentencing court's failure to take into account an applicant's intellectual disability, where that material was available and relevant, can constitute a basis for intervention on appeal.
  • Where significant psychological evidence was before a higher court in earlier proceedings but not placed before the sentencing judge, that gap may support a finding that the sentence miscarried.
  • The harshness of strict custody conditions for a person with intellectual disability is a relevant consideration when assessing the overall weight of a custodial sentence.
  • Under the approach confirmed here, some punitive element remains appropriate even for offenders with significant cognitive impairment, provided the court is satisfied the offender understood the unlawfulness of their conduct, even to a limited degree.
  • The NSW Court of Criminal Appeal referenced the Law Reform Commission's Report No 80 (1996) to reinforce that systemic failures in identifying intellectual disability within the criminal justice system are a known and ongoing concern.

Legislation and Cases Referenced

Cases:
- Barton (2000-2001) 121 A Crim R 785 (the earlier Crown appeal concerning the same applicant)

Reports and Other Sources:
- NSW Law Reform Commission, Report No 80: People with an Intellectual Disability and the Criminal Justice System (December 1996)