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Court of Criminal Appeal 17 October 2014

Barnes v R

[2014] NSWCCA 224

Homicide
CRIMINAL LAW SENTENCE APPEAL MANSLAUGHTER WHETHER REDUCTION IN NON APPEAL DISMISSED.

Citation: Barnes v R [2014] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 17 October 2014
Judges: Hoeben CJ at CL, Rothman J, R A Hulme J

Background

The applicant pleaded guilty to manslaughter on the day fixed for his murder trial. The offence arose from a joint criminal enterprise to assault a neighbour over a debt dispute, during which a co-offender struck the deceased with a firearm that discharged and killed him. The applicant participated as a driver and remained present throughout the attack, ready to assist, but did not physically assault the deceased and did not foresee that death or grievous bodily harm might result.

At the time of the offence, the applicant was on parole for an earlier armed robbery conviction. The parole authority revoked that parole, and the applicant remained in custody on the revoked parole sentence until 6 December 2011, approximately 26 days beyond the original expiry date because he had been at liberty for 26 days after the formal revocation date.

On 8 November 2013, Price J sentenced the applicant to 7 years' imprisonment for manslaughter, with a non-parole period of 5 years, commencing from 6 December 2011. The sentence was therefore fully cumulative on the revoked parole period. The applicant sought leave to appeal on three grounds.

  • Whether the sentencing judge erred in setting the commencement date for the manslaughter sentence as 6 December 2011, the date the revoked parole period expired, rather than allowing partial concurrency with the period served under the revoked parole
  • Whether that approach gave rise to an appearance of double punishment
  • Whether the reduction in the non-parole period adequately reflected the finding of special circumstances

Decision

Grounds 1 and 2: Commencement date and double punishment

The Court found no error in the sentencing judge's decision to commence the manslaughter sentence on 6 December 2011. The period in custody from the revocation date until that date was served in consequence of the applicant's breach of parole for armed robbery, not as punishment for the manslaughter. Making the sentences partially concurrent would have failed to reflect adequately the criminality of either the armed robbery or the manslaughter, which were discrete and independent acts.

The Court also rejected the double punishment argument. The applicant served the revoked parole period because he had breached the conditions of his parole, not because of the manslaughter. There was no true overlap: the two periods of custody answered different criminal conduct.

Ground 3: Special circumstances and the non-parole period

The Court concluded that the sentencing judge's finding of special circumstances and the resulting adjustment to the non-parole period were soundly reasoned. The judge had already determined that 5 years was the minimum non-parole period necessary to reflect the criminality of the manslaughter. Because the manslaughter sentence was fully cumulative on the revoked parole period, some adjustment to the statutory non-parole ratio was necessary to prevent the combined effect of both periods producing a total custodial structure that exceeded the standard ratio without justification.

When the revoked parole balance (approximately 1 year and 20 days) was added to the 5-year non-parole period for manslaughter, the custodial component represented roughly 75 percent of the total period. The sentencing judge's adjustment maintained the statutory ratio when the two periods were viewed together. The Court found the approach was consistent with established authority, including the constraint identified in Regina v Simpson that the non-parole period must itself appropriately reflect the criminality of the offence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A period of custody served following parole revocation is served as a consequence of a breach of parole, not as punishment for a subsequent offence; commencing a new sentence after that period expires does not constitute double punishment.
  • Where a manslaughter sentence is made fully cumulative on a revoked parole period, a finding of special circumstances may be warranted specifically to adjust the non-parole ratio so that the combined custodial effect does not exceed what is appropriate in totality.
  • Under the principle confirmed in Regina v Simpson [2001] NSWCCA 534, the non-parole period must still independently reflect the criminality of the offence, regardless of any special circumstances adjustment.
  • The Court of Criminal Appeal confirmed that the sentencing court retains a discretion, guided by totality principles, to impose a new sentence consecutively or partially concurrently with a revoked parole period, even where the offences are discrete and independent.
  • No error was established in the sentencing judge's exercise of discretion; the Court applied the House v King standard and found the sentence within the range appropriate to the objective and subjective features of the case.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 171
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)

Cases:
- Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- House v King [1936] HCA 40; 55 CLR 499
- Callaghan v R [2006] NSWCCA 58
- Fitzpatrick, Sharon Lee v R [2010] NSWCCA 26
- Ith v R [2013] NSWCCA 280
- R v DW [2012] NSWCCA 66
- R v David Webb (NSWCCA, unreported, 9 November 1998)
- R v Kaiva (NSWCCA, unreported, 9 November 1998)