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Court of Criminal Appeal 2 March 2022

Barnes v R

[2022] NSWCCA 40

Assault & violenceTraffic & drivingFirearms & weapons

Citation: Barnes v R [2022] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 2 March 2022
Judge(s): Macfarlan JA, Rothman J, Dhanji J (judgment delivered by Dhanji J)

Background

The appellant pleaded guilty in the Local Court to three principal offences: possessing a shortened firearm without authority, robbery while armed with a dangerous weapon (a firearm), and dangerous driving while knowing police were in pursuit. A number of related offences were taken into account on two Form 1 schedules. The District Court imposed an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years and 6 months.

The firearm offence arose from police finding a sawn-off .22 bolt action rifle concealed in PVC piping in the backyard of a residential premises, along with ammunition and other firearm components. The robbery involved the appellant pointing what appeared to be a silver pistol at a victim during a staged test drive, demanding the victim leave the car. The Crown conceded it could not prove beyond reasonable doubt that the weapon used in the robbery was a genuine firearm.

The appellant sought leave to appeal on three grounds: that the sentencing judge erred in assessing the objective seriousness of the firearm offence, that the overall sentence was manifestly excessive, and that the court had proceeded on an erroneous view of the facts because the appellant's post-traumatic stress disorder and the sequelae of childhood sexual abuse had not been diagnosed or disclosed at sentencing.

  • Whether the sentencing judge erred by treating the presence of ammunition as an aggravating factor in the firearms offence, in circumstances where there was no evidence the ammunition was compatible with that firearm
  • Whether the aggregate sentence of 10 years was manifestly excessive
  • Whether post-sentence disclosure of childhood sexual abuse and associated PTSD constituted a basis for appellate intervention or, alternatively, for resentencing if error was otherwise established

Decision

Ground 1: Aggravating factor error

The Court found that the sentencing judge appeared to treat the presence of ammunition as an aggravating factor when assessing the objective seriousness of the firearm possession offence. However, no evidence established that the .22 rounds found at the premises could actually be used with the shortened firearm. The Court held it was unfair to treat ammunition as aggravating in the absence of such evidence, and that the relevance of the ammunition required closer scrutiny before it could be used in that way. This established a House v The King error in the exercise of the sentencing discretion.

Ground 2: Manifest excess

The Court acknowledged that the armed robbery guideline judgment (R v Henry) contemplated a starting point of around 7 to 8 years for offences at a mid-range of seriousness. The sentencing judge had adopted a starting point of 8 years for the robbery, which the Court accepted was at the upper end but not unjustified given the circumstances, including that the offence departed in certain respects from the typical scenario contemplated by the guideline. The Court ultimately concluded that, having found error on Ground 1, it was unnecessary to separately resolve manifest excess, and proceeded to resentence.

Ground 3: Fresh evidence of child sexual abuse

Because error was established on Ground 1, the Court resentenced the appellant and admitted the fresh evidence of childhood sexual abuse on the resentencing. The evidence showed that the appellant had suffered childhood sexual abuse leading to PTSD, which contributed to substance abuse, and that his mental health conditions were present at the time of offending. The Court accepted his willingness to seek assistance for mental health and substance use issues as a mitigating factor. It was unnecessary to determine whether the fresh evidence ground would have independently justified intervention.

On resentencing, the Court imposed an aggregate term of 8 years imprisonment with a non-parole period of 5 years, with special circumstances found.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Hock DCJ in the District Court quashed
  • Appellant resentenced to an aggregate term of 8 years imprisonment commencing 8 August 2019 and concluding 7 August 2027
  • Non-parole period of 5 years set, expiring 7 August 2024, being the earliest date of eligibility for parole
  • Indicative sentences specified: Sequence 1 (possess shortened firearm): 3 years 9 months; Sequence 2 (armed robbery): 6 years; Sequence 3 (police pursuit): 18 months; s 166 certificate offence (unlawful possession of motor vehicle): 6 months

Key Takeaways

  • Where a sentencing judge treats the presence of ammunition as an aggravating factor for a firearm possession offence, there must be evidence that the ammunition is compatible with or usable in that firearm before such treatment is appropriate; absent that evidence, reliance on the ammunition as an aggravating factor may constitute House v The King error.
  • A starting point for armed robbery that exceeds the range contemplated in the guideline judgment is not necessarily in error where the particular circumstances of the offence depart from the typical scenario the guideline addresses.
  • Fresh evidence of childhood sexual abuse and consequent PTSD, disclosed only after sentencing, may properly be received and considered on a resentencing that flows from error established on another ground.
  • The Court of Criminal Appeal confirmed that mental health conditions present at the time of offending, and a demonstrated willingness to address those conditions, are relevant mitigating considerations on sentence.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court imposing an aggregate sentence must still indicate to the offender the individual sentences that would have been imposed for each offence had an aggregate not been used.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 117, 195(1)(a), 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44(2A), 44(2B), 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 62(1)(b)
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
- Road Transport (Vehicle Registration) Regulation 2017 (NSW), cl 129(1)

Cases
- House v The King (1936) 55 CLR 499 (the test for appellate interference with discretionary decisions)
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (the armed robbery guideline judgment)
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline)
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Greentree v R [2018] NSWCCA 227
- JM v R (2014) 246 A Crim R 528
- Lloyd v R [2022] NSWCCA 18
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155
- R v Whyte (2002) 55 NSWLR 252