Barnes v R [2022] NSWCCA 40

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Barnes v R [2022] NSWCCA 40 Hearing dates: 12 November 2021 Date of orders: 2 March 2022 Decision date: 02 March 2022 Before: Macfarlan JA at [1]; Rothman J at [2]; Dhanji J at [3]. Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the sentences imposed in the District Court by her Honour Judge Hock. (4) In lieu thereof, (a) sentence the applicant, to an aggregate term of imprisonment of 8 years commencing 8 August 2019 and concluding 7 August 2027; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 5 years expiring on 7 August 2024; (c) Specify that the earliest date the applicant will be eligible to be released to parole is 7 August 2024; (d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence had an aggregate sentence not been imposed are: (i) Sequence 1: imprisonment for 3 years and 9 months; (ii) Sequence 2: imprisonment for 6 years; (iii) Sequence 3: imprisonment for 18 months; (iv) the offence on the certificate under s 166 of the Criminal Procedure Act 1986 (NSW): imprisonment for 6 months. Catchwords: CRIME — Appeals — Appeal against sentence — Whether sentencing judge erred in the assessment of the objective seriousness of the firearm offence — Sentencing judge appeared to treat the presence of ammunition as an aggravating factor — Unfair to have regard to ammunition as an aggravating factor where there was no evidence that the ammunition could be used with the firearm — The relevance of the ammunition required closer scrutiny — House v The King error established CRIME — Appeals — Appeal against sentence — Whether sentence manifestly excessive — Circumstances of this case departed from the circumstances contemplated in the armed robbery guideline judgment — Starting point in excess of that contemplated in the guideline was warranted CRIME — Appeals — Appeal against sentence — Whether the court proceeded on an erroneous view of the facts — Fresh evidence of child sexual abuse disclosed post-sentence — Unnecessary to determine CRIME — Appeals — Appeal against sentence — Appeal allowed — Resentence — Child sexual abuse — Post-traumatic stress disorder leading to substance abuse — Mental health conditions were present at time of offending — Willingness to seek assistance for mental health and substance use issues — Lesser sentence imposed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW) Inclosed Lands Protection Act 1901 (NSW) Road Transport (Vehicle Registration) Regulation 2017 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Greentree v R [2018] NSWCCA 227 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Legge v R [2007] NSWCCA 244 Lloyd v R [2022] NSWCCA 18 Mulato v R [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v Farrell (2014) 239 A Crim R 212; [2014] NSWCCA 30 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Sullivan v R [2016] NSWCCA 172 Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 ; [2001] HCA 12 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Category: Principal judgment Parties: Reece George Barnes (Applicant) Regina (Respondent) Representation: Counsel: A Evers (Applicant) C Dodds (Respondent)