New South Wales Court of Criminal Appeal CITATION : REGINA v BARTON [2002] NSWCCA 233 FILE NUMBER(S) : CCA 60596/01 HEARING DATE(S) : 14 June 2002 JUDGMENT DATE : 14 June 2002 Regina PARTIES : v Kevin Barton JUDGMENT OF : Adams J at 1; Blanch AJ at 11 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0064 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : D C Frearson (Crown) C J Lyons (Applicant) SOLICITORS : S E O'Connor (Crown) D Humphreys (Applicant) CASES CITED: Barton (2000-2001) 21 A Crim R 785 DECISION : See paragraph 10 IN THE COURT OF CRIMINAL APPEAL 60596/01 ADAMS J BLANCH J FRIDAY 14 JUNE 2002 REGINA v KEVIN BARTON JUDGMENT 1 ADAMS J: This is an application for leave to appeal from a sentence imposed in the District Court for an escape. 2 The circumstances were unremarkable. The applicant, at the time, was serving a term of imprisonment that had been imposed by this Court in March 2001, in respect of an offence of breaking and entering with intent to commit a felony, of three years commencing on 5 September 1999 and concluding on 4 September 2002. The applicant had escaped on 17 March 2001. The reasons for his escape are somewhat confused, relating to his domestic circumstances. 3 The sentence being served had been imposed by the Court of Criminal Appeal following a successful appeal by the Crown (Barton (2000-2001) 121 A Crim R 785). 4 The applicant was sentenced to a term of 12 months imprisonment, effectively increasing his non-parole period by that time. The nature of the case as it then appeared is perhaps sufficiently described by the commencing words of his Honour in giving reasons for sentence, which were, "Mr Barton, you are the author of your own misfortune. You have got an impressive criminal record. You were treated with amazing leniency by the Court originally, in view of the number of matters that were taken into consideration". 5 In its Report (No 80) on people with an intellectual disability in the criminal justice system of December 1996, the New South Wales Law Reform Commission noted that persons with an intellectual disability are frequently not recognised by those involved in the criminal justice system. Regrettably, this occurred in this applicant's case, although in unusual circumstances, because the Court of Criminal Appeal in considering the matter to which I have adverted, referred extensively to the report of Mr Andreasen concerning the applicant's problems. That material may be summarised as follows. 6 Mr Andreasen found that on a test of intellectual capacity in terms of verbal reasoning, verbal concept formation and capacity for logical and abstract thinking, the respondent scored in the intellectually handicapped range at less than percentile one, that is to say, he did worse than more than 99 per cent of his age peers. He scored slightly higher in the borderline intellectually handicapped range at percentile 2 on a test of comprehension of social realities, understanding of cause effect relationships, commonsense and the capacity for the evaluation and use of past experience. There were, however, no indications of psychosis or thought disorder. There was little anxiety identity and no indication of distress or depression. 7 The Law Reform Commission Report notes that persons with intellectual disability, of which this applicant is plainly an unfortunate example, are not only disproportionately represented in the gaol system, their problems are often not identified and, if identified, not appropriately catered for. I regret to say that I think this is true within the gaol system, even for those who have been identified as persons with disability of this kind. 8 I have no doubt that, had the learned sentencing judge been aware of Mr Andreasen's report, which has since been brought up to date and shows no substantial change, his Honour would not have passed the sentence which he did. 9 A significant aspect of punishment in the applicant's situation is that he will serve, if not all, a substantial part of the balance of his sentence in strict custody, a regime which, for someone in his position, is particularly harsh. 10 I would recommend to the authorities that serious consideration be given to moving the applicant to less onerous custody as soon as it is practicable and for this purpose, I would recommend that Mr Andreasen's reports be forwarded to the gaol authorities and form part of his prison file. Even so, I am satisfied that some punishment should be imposed. I have no doubt that the applicant was aware that, in escaping, he was acting unlawfully, although the extent of his understanding was undoubtedly limited. I would, therefore, propose that the sentence below be quashed and that there be substituted there for a sentence of three months imprisonment, commencing on 4 September 2002 and expiring on 3 December 2002 and that the recommendations that I have made be communicated to those responsible for the applicant's welfare. 11 BLANCH J: I agree. 12 ADAMS J: The orders of the Court are as I have already declared. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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