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Court of Criminal Appeal 11 September 2009

R v Barker

[2009] NSWCCA 225

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL LAW CROWN APPEAL OBJECTIVE SERIOUSNESS SENTENCE MANIFESTLY INADEQUATE

Citation: R v Barker [2009] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 11 September 2009
Judge(s): McClellan CJ at CL, RA Hulme J, Davies J

Background

The respondent, a rural station worker in his late middle age, pleaded guilty to reckless wounding and possessing a loaded firearm so as to endanger life. The offences arose from a drunken attack on his wife of approximately 37 years at her Bourke home in July 2007. The respondent had been told by a shearer that his wife was being unfaithful. After consuming significantly more alcohol than usual, he took a taxi to her home carrying a loaded shortened shotgun, rope, an orange pipe, and a knife.

At the home, the respondent struck his wife repeatedly with the pipe, aimed the loaded shotgun at her chest and threatened to kill her and then himself, wrapped rope around her throat, and struck her twice on the head with the shotgun stock. She suffered two deep lacerations to the scalp requiring stitches and later developed stroke-like symptoms. Five related firearms offences were also dealt with at sentencing.

In the District Court, Nicholson DCJ sentenced the respondent to a total term of 1 year, 10 months and 15 days with a non-parole period of 6 months for each of the two substantive offences, to be served concurrently. The Crown appealed to the Court of Criminal Appeal, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed for reckless wounding and possessing a loaded firearm so as to endanger life were manifestly inadequate, having regard to the objective seriousness of the offences.
  • Whether, even if the sentences were manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal rather than resentence the respondent.

Decision

The Court of Criminal Appeal accepted the Crown's primary submission that the sentences were excessively lenient. McClellan CJ at CL indicated that a total sentence of 4 years with a 2-year non-parole period would have been more appropriate, given the objective seriousness of the offending. The attack involved sustained domestic violence, a loaded firearm, explicit death threats, and rope placed around the victim's throat, in her own home, while she was resting.

Despite finding the sentences manifestly inadequate, the Court unanimously exercised its residual discretion to dismiss the appeal. The residual discretion allows an appellate court to decline to intervene even where error is established, in circumstances where resentencing would produce an unjust outcome having regard to all the relevant considerations.

Several factors weighed in favour of exercising the discretion. The offences were entirely out of character. The sentencing judge found the respondent to be genuinely remorseful with a low risk of reoffending. The respondent had suffered greatly during his incarceration: removed from the rural environment he was accustomed to, transferred to a Sydney metropolitan facility, and had attempted suicide. His long-term employer, who gave him significant managerial responsibility, continued to support him and intended to re-employ him on release.

The Court concluded that imposing a further term of imprisonment would likely worsen the respondent's adverse response to custody and undermine his prospects for effective rehabilitation. All three judges agreed that the residual discretion should be exercised and the appeal dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that even where a sentence is found to be manifestly inadequate, the court retains a residual discretion to decline to intervene and resentence the offender.
  • The existence of the residual discretion means that a successful challenge to the adequacy of a sentence does not automatically result in a heavier sentence being imposed on appeal.
  • Factors such as genuine remorse, offending entirely out of character, adverse response to incarceration (including a suicide attempt), and strong prospects for rehabilitation were collectively sufficient to enliven the residual discretion in this case.
  • A total sentence of approximately 4 years with a 2-year non-parole period was indicated as the more appropriate range for this combination of offending, notwithstanding the ultimate exercise of discretion in the respondent's favour.
  • Under s 35(4) of the Crimes Act 1900, reckless wounding carries a maximum of 7 years imprisonment with a standard non-parole period of 3 years; possessing a loaded firearm so as to endanger life under s 93G carries a maximum of 10 years with no standard non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 93G(1)(a)(ii)
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 36(1), 39(1)(a), 65(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- MLP v R (2006) 164 A Crim R 93
- Pearce v The Queen (1998) 194 CLR 610
- R v Deng Mading Deng (2007) 176 A Crim R 1
- R v Hansel [2004] NSWCCA 436
- R v Jenkins [2006] NSWCCA 412
- R v Tory and Tory [2006] NSWCCA 18
- R v Todorovic [2008] NSWCCA 49
- R v Way (2004) 60 NSWLR 168
- R v Yang [2002] NSWCCA 464; 135 A Crim R 237