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Court of Criminal Appeal 6 December 2024

Barker v R

[2024] NSWCCA 227

Assault & violenceFirearms & weaponsDomestic & family violence

Citation: Barker v R [2024] NSWCCA 227
Court: Court of Criminal Appeal, New South Wales
Date: 6 December 2024
Judge(s): Hamill J, N Adams J, Sweeney J (Sweeney J delivering the principal judgment)

Background

The applicant pleaded guilty to three offences arising from a domestic violence incident in February 2023: using an offensive weapon with intent to intimidate, assault occasioning actual bodily harm, and intentionally damaging property. The offending involved threatening his former partner with a knife, punching her to the head and face, and smashing her mobile phone. In the District Court, Judge Grant sentenced the applicant to an aggregate term of 2 years and 6 months imprisonment with a non-parole period of 1 year and 3 months.

The applicant sought leave to appeal on the basis that the sentencing judge had made a series of legal errors. The Crown conceded errors had been established on three of the four grounds argued.

  • Whether the sentencing judge impermissibly relied on unproved allegations contained in police fact sheets (specifically, an allegation that the applicant had assaulted his partner while on bail, of which he had in fact been acquitted)
  • Whether the sentencing judge erred by taking into account the applicant's Children's Court criminal record in circumstances where its use was prohibited by s 15(1) of the Children (Criminal Proceedings) Act 1987 (NSW)
  • Whether the Children's Court record was admissible in the sentencing proceedings at all
  • Whether the sentencing judge properly applied the principles from Bugmy v The Queen (2013) 249 CLR 571 regarding the relevance of background and disadvantage to sentence

Decision

The Court upheld the appeal on grounds 1 to 3. On the first ground, the sentencing judge had before him police fact sheets alleging the applicant re-offended against the same victim while on bail. During the hearing, the judge remarked that the applicant had "bashed his girlfriend twice" and "punched her in the head on two occasions." In fact, the applicant had been found not guilty of that second allegation after a hearing. The judge then relied on the alleged pattern of reoffending to reject a submission for an Intensive Correction Order (ICO) and to find that prospects of rehabilitation were guarded. This constituted error under the rule in The Queen v Olbrich (1999) 199 CLR 270, which prohibits a sentencing court from acting adversely on unproved allegations of criminal conduct.

On grounds 2 and 3, the applicant had three entries on his Children's Court record for which no convictions were recorded, all predating the two-year window specified in s 15(1) of the Children (Criminal Proceedings) Act 1987. Section 15(1) renders such matters inadmissible in subsequent criminal proceedings where no conviction was recorded and the person has not been punished for any other offence within the preceding two years. The sentencing judge purported to disregard the record because no control order had been imposed, but then expressly referred to it when questioning the applicant's credibility about his history of violence. The Crown conceded, and the Court accepted, that this too constituted legal error.

Because error was established, the Court was required to resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601. On resentencing, Sweeney J assessed the objective seriousness of the counts consistently with the original sentencing judge's findings and applied a 25 per cent discount for the guilty pleas. Indicative sentences were 18 months for count 1, 15 months for count 2, and 6 months for count 3, producing an aggregate of 2 years imprisonment. Absent the errors concerning unproved allegations and the juvenile record, the Court was satisfied that an ICO was appropriate. By the time of the appeal hearing, the applicant had already served approximately 10 months in custody since the sentence commenced. To avoid unfairness, Sweeney J deducted that period from the two-year aggregate, arriving at a sentence of 14 months to be served by way of ICO, following the approach in Mandranis v R [2021] NSWCCA 97.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant resentenced to an aggregate sentence of 14 months imprisonment, to be served by way of Intensive Correction Order commencing 6 December 2024
  • ICO conditions: no further offences; supervision by a Community Corrections Officer; attendance at rehabilitation programs directed at anger management, drug or alcohol abuse, domestic violence, or impulse control as reasonably practicable

Key Takeaways

  • A sentencing court cannot act adversely on unproved allegations of criminal conduct, including allegations contained in police fact sheets. Where an offender has been acquitted of an allegation, reliance on that allegation at sentence constitutes error under The Queen v Olbrich.
  • Under s 15(1) of the Children (Criminal Proceedings) Act 1987 (NSW), Children's Court matters are inadmissible at a later sentencing proceeding if no conviction was recorded and the person has not been punished for another offence within the two years preceding the current proceedings. The threshold for admissibility is not simply whether a control order was imposed.
  • Purporting to disregard inadmissible material while nonetheless referring to it expressly in reasons remains an error capable of vitiating a sentence.
  • Where established sentencing errors require resentencing and the offender has already served part of the original term, the Court of Criminal Appeal may deduct time served from the fresh sentence to avoid unfairness, consistent with Mandranis v R.
  • The presence of two or more concurrent errors at first instance does not automatically result in a lesser sentence on appeal; the Court separately assessed whether a reduced sentence was in fact warranted before making orders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 195(1)(a)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4B(1), 66, 71

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mandranis v R [2021] NSWCCA 97
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54