Barnes v R [2022] NSWCCA 140

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Barnes v R [2022] NSWCCA 140 Hearing dates: 4 April 2022 Date of orders: 24 June 2022 Decision date: 24 June 2022 Before: Gleeson JA at [1]; Hamill J at [2]; Ierace J at [80] Decision: (1) To the extent necessary, extend time in which to appeal. (2) Application for leave to appeal granted. (3) Appeal against sentence allowed. (4) Quash the sentences imposed in the District Court on 6 March 2019 and in lieu thereof: (i) for the offence of common assault, the applicant is sentenced to a fixed term of imprisonment of 6 months commencing 14 April 2018 and expiring 13 October 2018. (ii) for the offence of strangling, the applicant is sentenced to a non-parole period of 4 years commencing 14 June 2018 and expiring 13 June 2022 with a balance of term of 2 years commencing 14 June 2022 and expiring 13 June 2024. (5) The applicant became eligible for release to parole at the expiration of his non-parole period on 13 June 2022, noting that the non-parole period has expired. (6) Recommend that the NSW State Parole Authority give priority to consideration of the applicant's eligibility for release to parole. Catchwords: CRIMINAL APPEALS – fresh evidence on sentence appeal – when admissible – evidence that applicant involved in violence incidents in gaol – evidence not brought to the attention of the sentencing Judge – applicant a schizophrenic – where applicant refused to authorise his lawyers to access Justice Health records – evidence that violent incidents typical of victimisation of schizophrenic inmates – where sentencing Judge found experience in custody not more onerous by reason of mental illness CRIMINAL LAW – sentence appeal – re-sentencing – serious stalking and strangling offence – chilling facts – relevant considerations – whether less severe sentence warranted Legislation Cited: Crimes Act 1900 (NSW), ss 37(1), 61 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 45 Criminal Appeal Act 1912 (NSW), s 6(3) Cases Cited: Agnew (a pseudonym) v R [2018] NSWCCA 128 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Cabezuela v R [2020] NSWCCA 107 Cornwell v R [2015] NSWCCA 269 Hoang v R [2020] NSWCCA 324 Kaveh v R [2017] NSWCCA 52 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 Middleton v Director of Public Prosecutions [2019] ACTCA 24 Middleton v The Queen [2020] ACTCA 6 R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 R v Cartwright (1989) 17 NSWLR 243 R v Diab [2005] NSWCCA 64 R v Ehrenburg (NSWCCA, 14 December 1990, unrep) R v Goodwin (1990) 51 A Crim R 328 R v Lanham [1970] 2 NSWLR 217 R v Many (1990) 51 A Crim R 54 R v McKenna (NSWCCA, 16 October 1992, unrep) R v Munday [1981] 2 NSWLR 177 R v Smith (1987) 44 SASR 587 Rae v R [2019] NSWCCA 284 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Richardson v R [2021] NSWCCA 304 Scott v R [2020] NSWCCA 81 Scullion v R (NSWCCA, 15 July 1992, unrep) Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13 Toller v R [2021] NSWCCA 204 Tuncbilek v R [2020] NSWCCA 30 Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402 Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133 Category: Principal judgment Parties: James Barnes Regina Representation: Counsel: D Barrow (Applicant) E Wilkins SC (Respondent)