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Court of Criminal Appeal 6 November 2006

R v BARRETT

[2006] NSWCCA 348

Assault & violenceTheft & property

Citation: R v Barrett [2006] NSWCCA 348
Court: New South Wales Court of Criminal Appeal
Date: 6 November 2006
Judge(s): McClellan CJ at CL, Hulme J, Hall J

Background

Shortly after midnight on New Year's Eve 2004-2005, the respondent broke into a dwelling house in Wollongong, stole a money box and watch, and then violently attacked three members of the occupying family and a neighbour when they returned and attempted to restrain him. The victims suffered injuries including a broken finger, significant bruising, facial injuries, and bite wounds. One victim faced a period of uncertainty about whether he had been infected by bites.

The respondent was sentenced in the District Court on four counts: breaking and entering with larceny while maliciously inflicting actual bodily harm (Count 1), and three counts of assault occasioning actual bodily harm (Counts 2, 3 and 4). The sentencing judge imposed a term of two and a half years with a non-parole period of 15 months on Count 1, and concurrent terms of eight months with six-month non-parole periods on the remaining counts.

The Crown appealed all four sentences, arguing they were inadequate. Count 1 carried a standard non-parole period of five years under the relevant sentencing legislation, and the maximum penalty was 20 years imprisonment.

  • Whether the sentences imposed on all four counts were manifestly inadequate
  • Whether the sentencing judge adequately identified reasons for departing from the standard non-parole period on Count 1, as required by s 54B(4) of the Crimes (Sentencing Procedure) Act
  • What level of specificity s 54B(4) requires from a sentencing judge when departing below a standard non-parole period
  • Whether the sentencing judge's reference to s 21A factors and other considerations satisfied the legislative requirements

Decision

Hulme J (with whom McClellan CJ at CL and Hall J agreed) allowed the Crown appeal on Count 1 and dismissed the appeals on Counts 2, 3 and 4. The Court concluded that the sentence on Count 1 was infected by error because the sentencing judge had not adequately complied with the obligation under s 54B(4) to identify reasons for imposing a non-parole period below the standard.

On the question of what s 54B(4) requires, Hulme J expressed some disagreement with the approach in R v Mills, which had been read as requiring identification of the specific weight given to each factor. Hulme J preferred a more measured reading: the section requires identification of factors arising in the particular circumstances of the case, but does not necessarily demand reference to general sentencing principles or the factors listed in s 3A. This approach was consistent with the view Hulme J had expressed in R v Sciberras.

Despite quashing the sentence on Count 1, the Court ultimately re-imposed the same non-parole period of 15 months, with a balance of term of three years. This reflected the Court's assessment that, while the sentencing judge's reasons were deficient in form, the non-parole period itself was not shown to be wrong in outcome given the respondent's personal circumstances, including a severely disadvantaged upbringing, drug-affected state at the time of the offences, and the nature of his criminal history.

The appeals on Counts 2, 3 and 4 were dismissed, the Court finding no sufficient basis to intervene in those sentences.

Orders Made

  • Count 1: Appeal allowed; sentence imposed by Judge Phelan quashed; in lieu, the respondent sentenced to imprisonment with a non-parole period of 15 months commencing 1 May 2005, and a balance of term of 3 years commencing 1 August 2006
  • Counts 2, 3 and 4: Appeals dismissed

Key Takeaways

  • A sentencing judge departing below a standard non-parole period under s 54B of the Crimes (Sentencing Procedure) Act must identify the relevant factors from the particular circumstances of the case, not merely make a conclusory statement that those factors have been considered.
  • The Court of Criminal Appeal confirmed that a bare assertion of having taken matters into account does not constitute adequate compliance with s 54B(4), consistent with the principle in R v Mills, though Hulme J expressed reservations about reading that authority as requiring exhaustive identification of the weight given to every factor.
  • Allowing a Crown appeal on sentencing does not necessarily result in a heavier sentence. Where the original non-parole period was ultimately defensible on the facts, the Court may re-impose the same term even while quashing the original sentence for inadequate reasons.
  • Under s 112(2) of the Crimes Act 1900, breaking and entering a dwelling house and committing a serious indictable offence carries a maximum of 20 years imprisonment, with a standard non-parole period of five years, underscoring the seriousness with which such offences are treated at law.
  • A respondent's personal background, including childhood deprivation, exposure to violence, ward of state status, and substance use issues, remained relevant mitigating factors in the re-sentencing exercise, even where the offending itself was serious and involved violence against multiple victims.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59 (assault occasioning actual bodily harm), s 112(2) (breaking and entering with commission of serious indictable offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A, s 54B(4), s 54D and associated standard non-parole period table

Cases:
- R v Mills [2005] NSWCCA 175
- R v Zegura [2006] NSWCCA 230
- R v Sciberras [2006] NSWCCA 268
- R v Walker [2005] NSWCCA 109