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District Court 17 April 2015

R v Barlow, Charles Cameron

[2015] NSWDC 422

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL LAW SENTENCE RELEVANT FACTORS OFFENCES AGAINST THE PERSON NATURE & CIRCUMSTANCE OF OFFENDER DOMESTIC VIOLENCE

Citation: R v Barlow, Charles Cameron [2015] NSWDC 422
Court: District Court of New South Wales
Date: 17 April 2015
Judge: King DCJ

Background

The offender was a young man with a prior criminal history, including a recent conviction for reckless wounding and multiple contraventions of an Apprehended Domestic Violence Order (ADVO). At the time of the offences, he was serving s 9 bonds and was on bail for the reckless wounding matter. An ADVO was in force protecting his former partner, Ms TW, and prohibited him from entering the Punchbowl home where she and her mother, Mrs TW, lived with his autistic son.

On 18 August 2013, the offender entered the property in breach of the ADVO. He assaulted Mrs TW in the backyard, then later returned to the home while a family friend, GS, was present. He resumed his attack on Mrs TW, armed himself with a barbeque fork, and assaulted GS when he intervened.

When police arrived following a Triple-0 call, the offender barricaded himself inside, held a knife close to the child's throat, and threatened to kill the occupants. He also inflicted grievous bodily harm on Mrs TW during the siege, which lasted several hours before police were able to take him into custody. He was later separately sentenced for damage to property at Campsie Police Station.

  • What sentences were appropriate for each of the four offences: assault occasioning actual bodily harm (s 59(1)), use of an offensive weapon to prevent lawful detention (s 33B(1)(a)), aggravated detention for advantage with actual bodily harm (s 86(2)(b)), and cause grievous bodily harm with intent (s 33(1))?
  • What weight should the court give to the offender's early guilty pleas?
  • Whether the offender's background, including his Aboriginal heritage and difficult upbringing, warranted consideration under the principles in R v Fernando
  • Whether special circumstances existed to justify a departure from the statutory ratio between the non-parole period and the total sentence
  • How the sentences imposed for these offences should be structured alongside the existing sentence for reckless wounding

Decision

King DCJ accepted that the offender entered his guilty pleas at the earliest opportunity and applied a 25 per cent discount to each sentence in accordance with R v Thomson; R v Houlton. The court also noted the offender's youth (he was 24 at sentencing), a difficult personal history, and a psychologist's assessment that identified significant disadvantage in his background, including factors relevant to the Fernando principles applicable to Aboriginal offenders.

However, the court found the offending was extremely serious. The offender acted with sustained violence against a vulnerable elderly woman, endangered a child by holding a knife to his throat, threatened police, and committed multiple offences while already on conditional liberty and in breach of an ADVO. His statements during the offending, including "The bitch is dead" and "She fucked my life," demonstrated a marked degree of hatred toward Mrs TW. The court rejected the submission that his attendance at the premises was primarily motivated by a desire to retrieve his son, finding that his conduct quickly became retributive in nature.

The court found that the seriousness of the offending, particularly the main offence of grievous bodily harm with intent (which carries a standard non-parole period of seven years), required a substantial sentence. The standard non-parole period was treated as a guidepost rather than a starting point, consistent with R v Mitchell; R v Gallagher. The court considered the totality of the offending and structured the sentences to run partly concurrently and partly cumulatively on one another and on the pre-existing sentence for reckless wounding. An aggregate non-parole period was set, adjusted to account for the time already being served and to align the overall sentence with the statutory relationship between the non-parole period and the head sentence.

King DCJ declined to find special circumstances beyond those already reflected in the aggregate sentence structure, noting that a parole period of approximately two years and three months was already substantial. The court expressed hope that the period of custody might assist the offender to engage with rehabilitative programs and move toward what the psychologist described as "a more functional life."

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where an offender commits serious domestic violence offences while already subject to an ADVO and on conditional liberty, those factors weigh heavily in aggravation at sentencing.
  • A 25 per cent discount for the utilitarian value of an early guilty plea applies even where the offending is serious, provided the plea was entered at the earliest opportunity, consistent with R v Thomson; R v Houlton.
  • Under the R v Fernando principles, evidence of an offender's Aboriginal heritage and associated disadvantage is a relevant mitigating consideration, but it does not automatically reduce an otherwise serious sentence where the gravity of the offending is high.
  • The standard non-parole period for causing grievous bodily harm with intent (seven years under s 33(1) of the Crimes Act 1900) functions as a legislative guidepost rather than a mandatory starting point, and the court retains the discretion to depart from it in light of all relevant circumstances.
  • In structuring multiple sentences involving prior custodial terms, the District Court applied the totality principle by adjusting the aggregate non-parole period so that the overall sentencing package reflected the statutory relationship between the non-parole period and the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1), 33B(1)(a), 59(1), 86(2)(b), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 166

Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Mitchell; R v Gallagher [2007] NSWCCA 296
- AM v R [2012] NSWCCA 203
- Ashe v R [2010] VSCA 119
- R v Tuta [2014] NSWCCA 40
- R v Allen [2010] NSWCCA 47
- Mendez v R [2012] NSWCCA 103
- R v Richards (1981) 2 NSWLR 464
- Callaghan v The Queen [2006] NSWCCA 58
- R v Fernando (1992) 76 A Crim R 58