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19
Court of Criminal Appeal 6 May 2008

BARLOW v REGINA

[2008] NSWCCA 96

Also reported as (2008) 184 A Crim R 187
Assault & violence
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Barlow v Regina [2008] NSWCCA 96
Court: NSW Court of Criminal Appeal
Date: 6 May 2008
Judges: McClellan CJ at CL, Hall J, Price J

Background

The appellant pleaded guilty to detaining a person without consent with intent to obtain an advantage, contrary to s 86(3) of the Crimes Act 1900. The offence carried a maximum penalty of 25 years' imprisonment. The victim was the appellant's cousin.

The appellant, accompanied by an unidentified male, attended the victim's caravan in the early hours of the morning. Over approximately two hours, the victim was punched, dragged, struck with kitchen tongs, threatened with death, and generally terrorised. He sustained lacerations requiring stitches, a suspected head injury, and ongoing psychological harm. The appellant's stated motivation was revenge for an alleged earlier sexual assault committed against her by the victim.

In the District Court, the sentencing judge imposed a term of imprisonment with a non-parole period of five months and two weeks, followed by a balance of term of ten months. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive and that the sentencing judge had erred in several respects.

  • Whether the sentencing judge correctly assessed the objective gravity of the offence, including the relevance of the alleged prior sexual assault by the victim
  • Whether the sentencing judge properly considered and applied the law on suspended sentences as a sentencing alternative
  • Whether the sentencing judge adequately took into account the appellant's youth and prospects for rehabilitation
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hall J (with McClellan CJ at CL and Price J agreeing) found no error in the sentencing judge's approach across any of the grounds relied upon.

On objective seriousness, the Court accepted that the alleged prior sexual assault by the victim was a relevant contextual factor, but it did not reduce the objective gravity of the offence to a level that would justify a non-custodial sentence. A sustained two-hour ordeal involving physical assault, restraint, and death threats remained a serious offence regardless of the appellant's motivation. McClellan CJ at CL observed that a civilised society cannot condone self-help justice, however genuine the grievance underlying it.

On the question of a suspended sentence, the Court found that the sentencing judge had genuinely and properly turned his mind to that option. He acknowledged the submissions made on the appellant's behalf and the psychological evidence of Dr Wilcox regarding the impact of the alleged prior assault on the appellant. He ultimately concluded, correctly in the Court's view, that the objective seriousness of the offence and the need for general deterrence required full-time custody. The Court noted that the non-parole period was, if anything, at the lower end of the available range.

Given that the appeal was dismissed and the appellant had a very young child, the Court made a procedural order deferring entry of the orders by ten days. This was intended to allow the appellant a short period to make interim care arrangements for her child before being taken into custody.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Orders to be entered by the Registrar by signing and sealing a minute of the proposed orders on and not before 15 May 2008 (pursuant to Rule 50B(3) of the Criminal Appeal Rules)

Key Takeaways

  • A revenge motive, including a genuine belief that the victim had previously committed a serious offence against the offender, does not reduce the objective seriousness of a sustained, violent detention offence to a level that demands a non-custodial outcome.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is required to genuinely turn their mind to the availability of a suspended sentence, but that requirement does not compel the judge to impose one where objective seriousness and deterrence weigh against it.
  • Under s 86(3) of the Crimes Act 1900, the maximum penalty is 25 years' imprisonment and no standard non-parole period applies, leaving the sentencing discretion to be exercised on established sentencing principles.
  • No error was established in the sentencing judge's treatment of the appellant's youth, psychological evidence, or rehabilitation prospects, where those matters were expressly considered in the remarks on sentence.
  • Procedural mechanisms exist, specifically Rule 50B of the Criminal Appeal Rules, that permit a court to defer the formal entry of orders so as to allow a short period for practical arrangements, such as infant care, before a person is taken into custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Rules, Rules 50A and 50B

Cases
- Dinsdale v R (2000) 202 CLR 321
- Kutchera v R [2007] NSWCCA 121
- Markarian v The Queen (2005) 228 CLR 357
- R v AEM Snr & Ors [2002] NSWCCA 58
- R v Blackman & Walters [2001] NSWCCA 121
- R v Causby [1984] Tas R 54
- R v Collett (CCA, unreported, 1 June 1979)
- R v Davis [2004] NSWCCA 310
- R v Foster [2001] NSWCCA 215
- R v GDP (1991) 53 A Crim R 122
- R v JCE [2000] NSWCCA 498
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- R v Newell [2004] NSWCCA 183
- R v Percy [1975] Tas SR 62
- R v Pham (1991) 55 A Crim R 128
- R v Swan [2006] NSWCCA 47
- R v Way (2004) 60 NSWLR 168
- R v Zamagias [2002] NSWCCA 17
- Wood v Samuels [1974] 8 SASR 465