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35
Court of Criminal Appeal 5 March 2001

R v Barton [2001] NSWCCA 63 revised - 24

[2001] NSWCCA 63

Also reported as (2001) 121 A Crim R 185
Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SEVEN OFFENCES ON A FORM 1

Citation: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185
Court: NSW Court of Criminal Appeal
Date: 5 March 2001
Judge(s): Spigelman CJ, Sperling J, Carruthers AJ

Background

The respondent pleaded guilty in the District Court at Lismore to two charges: using a motor vehicle as a weapon with intent to prevent lawful apprehension (contrary to s 33B(a) of the Crimes Act 1900, maximum 12 years), and breaking and entering a bowling club and stealing from it (maximum 14 years). Twenty-seven further offences were listed on a Form 1 to be taken into account at sentencing. Those Form 1 matters included charges of assault, assault occasioning actual bodily harm, receiving stolen property, stalking and intimidation, break enter and steal, and weapons and firearms offences.

The primary offence arose from events on 5 September 1999. Police, who were actively seeking the respondent, identified him driving a Mitsubishi utility and attempted to stop him using lights and sirens. Rather than stopping or swerving, the respondent drove his vehicle directly at the police car at an estimated 80 kilometres per hour. The impact entirely destroyed the front of the police vehicle. Remarkably, no serious injuries resulted to either the respondent or the two officers.

The sentencing judge imposed concurrent sentences: four years imprisonment with a two-year non-parole period for the weapon-use offence, and a fixed two-year term for the break-and-enter. The Director of Public Prosecutions appealed, contending that these sentences were manifestly inadequate given the gravity of the conduct and the volume of Form 1 matters.

  • Whether the sentencing judge gave inadequate weight to the seriousness of the two indictment offences, particularly the deliberate use of a vehicle as a weapon against police
  • Whether the sentencing judge properly accounted for the twenty-seven Form 1 offences and gave them appropriate weight in increasing the sentence
  • The correct approach to Form 1 matters generally: whether they operate as aggravating features, as the absence of mitigation, or in some other way
  • The role of personal deterrence and retribution when sentencing for a course of serious offending that includes unpunished matters

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding the original sentences manifestly inadequate. The court accepted that the deliberate use of a motor vehicle at high speed against police officers attempting a lawful arrest demanded a strong deterrent element in the sentence. The respondent's extensive and unrelenting criminal history, combined with the circumstances of the offence, made a more substantial term necessary.

On the Form 1 question, Spigelman CJ set out the correct approach in some detail. Form 1 matters, unlike prior convictions, have never attracted any punishment. A court sentencing on the primary offence takes those admitted matters into account by giving greater weight than it otherwise would to two sentencing considerations: personal deterrence (because the course of conduct reveals a pattern warranting it) and retribution (because the community is entitled to some recognition of serious offences that have gone unpunished). The resulting sentence must not, however, exceed the maximum for the primary offence, and the totality principle continues to apply.

The court emphasised that the volume and seriousness of the Form 1 charges here, including a further charge of threatening injury to prevent apprehension and multiple assault and weapons offences, meant the original sentence was insufficient even accounting for the respondent's intellectual limitations and guilty pleas.

The Court set aside the sentences imposed by Hosking DCJ and re-sentenced the respondent in accordance with paragraphs 45 to 46 of Carruthers AJ's judgment.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Hosking DCJ set aside
  • Respondent re-sentenced in accordance with paragraphs 45 to 46 of the judgment

Key Takeaways

  • Deliberate use of a vehicle to obstruct and endanger police carrying out a lawful arrest is an offence requiring a strong deterrent component in sentencing, and the Court of Criminal Appeal confirmed it will intervene where a sentencing court fails to give that factor sufficient weight.

  • Form 1 matters occupy a distinct position in the sentencing calculus: because they are admitted offences that have attracted no prior punishment, they are neither equivalent to prior convictions nor mere background context. They operate to increase the penalty by elevating the weight given to personal deterrence and community retribution.

  • Two structural limits constrain the upward influence of Form 1 matters: the sentence must not exceed the statutory maximum for the primary offence, and the totality principle continues to govern the overall result.

  • An offender's intellectual limitations, while relevant as background, do not of themselves justify a substantially reduced sentence where the offending is deliberate, dangerous, and part of a prolonged criminal course of conduct.

  • In Crown appeals against sentence, the appellate court retains the discretion to re-sentence entirely, and will do so where the original sentence is found to be manifestly inadequate rather than merely at the lower end of an acceptable range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(a), 33B(b), 59, 61, 112, 117, 154A, 188, 527C, 562AB
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW), ss 7, 65
- Weapons Prohibition Act 1998 (NSW), s 7

Cases
- Murrell v The Queen (1985) 4 FCR 168
- R v Andrew Skillan Jones (NSW CCA, 30 June 1994, unreported)
- R v Bachelor (1952) 36 CAR 64
- R v De Simoni (1981) 147 CLR 383
- R v Doan [2000] NSWCCA 317
- R v Goddard (1999) 21 WAR 541
- R v Hamilton (1993) 66 A Crim R 575
- R v Hobson (1942) 29 CrAppR 30
- R v J (1992) 52 SASR 145
- R v JCW (2000) 112 A Crim R 466
- R v Letteri (NSW CCA, 18 March 1992, unreported)
- R v Morgan (1993) 70 A Crim R 368
- R v Olbrich (1999) 199 CLR 270
- R v Perez (NSW CCA, 11 December 1991, unreported)
- R v Vougdis (1989) 41 A Crim R 125
- R v White (1981) 28 SASR 9