BARNES v R [2007] NSWCCA 69

New South Wales Court of Criminal Appeal

CITATION: BARNES v R [2007] NSWCCA 69

HEARING DATE(S): 14 March 2007 JUDGMENT OF: McClellan CJ at CL at 27; Hulme J at 1; Hislop J at 28

EX TEMPORE JUDGMENT DATE: 14 March 2007

DECISION: Leave to appeal granted; Appeal dismissed

PARTIES: Martin Stuart BARNES Regina

FILE NUMBER(S): CCA 2007/6

COUNSEL: Crown: W Dawe QC Applicant: A Francis SC

SOLICITORS: Crown: S Kavanagh Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0171

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 02/06/2006

- 8 - IN THE COURT OF CRIMINAL APPEAL 2007/6

McCLELLAN CJ AT CL HULME J HISLOP J

Wednesday 14 March 2007 Martin Stuart BARNES v R Judgment 1 HULME J: In these proceedings the Applicant seeks leave to appeal against sentences imposed on him by Judge McLoughlin on 2 June 2006 following pleas of guilty to two charges. The charges were that the Applicant had supplied 55.1 grams of methylamphetamine and, secondly that he had supplied 4.6 grams of methelenedioxy-methylamphetamine (hereinafter referred to as ecstasy or MDMA). 2 The offences arose under the Drug (Misuse and Trafficking) Act which provides a maximum penalty for offences involving less than 250 grams of methylamphetamine and 125 grams of MDMA of 15 years. In the case of quantities that are "small" – less than 1 gram in the case of methylamphetamine and less than ¼ gram in the case of MDMA, and the offences are prosecuted summarily as they inevitably would be, the maximum penalty of imprisonment provided is 2 years. 3 Adopting starting points of, respectively, 3 years and 4 months and 2 years imprisonment and reducing these periods by 25% because the Applicant had pleaded guilty, his Honour imposed for the first offence a sentence of imprisonment involving a non-parole period of 15 months commencing on 2 June 2006 and a further term of another 15 months and, for the second offence, a sentence of imprisonment involving a non-parole period of 10 months commencing on 2 June 2006 and a further period of 8 months. Two further matters were dealt with pursuant to Section 166 of the Criminal Procedure Act but for present purposes these can be ignored. 4 His Honour found special circumstances in the needs of the Applicant's children, aged about 10 and 11 and for whom the Applicant was the primary carer, and in the Applicant's prospects of rehabilitation. The Crown does not challenge these matters and it is accordingly unnecessary to further consider them except in so far as they clearly have a bearing on the appropriateness of the sentences imposed. 5 In the case of each offence, the "supply" was a deemed supply pursuant to the expanded definition in Section 3 and Section 29 of the Drug Misuse and Trafficking Act. The drugs were found in a vehicle stopped by the police on its way from Sydney to the Central Coast. The Applicant and other people were in the vehicle at the time but the Applicant admitted that the drugs were his. He was an addict and his Honour accepted that at least one half of the drugs were for the Applicant's own use, some would have gone to the Applicant's then partner but the destination of the balance his Honour felt unable to determine. His Honour observed:- "The offender had in his possession a large quantity of methylamphetamine, some ten times greater than the minimum amount that constitutes the offence of deemed supply and a little over three times the minimum amount that constitutes the offence of deemed supply of MDMA. … I regard the offences as being little less than the middle of any scale constructed for such offences. …" 6 The Applicant's subjective circumstances were not generally such as to inspire leniency. He was born in 1963. He had a long record of offending from 1975 until about January 2005, a record which included something over 20 occasions when he had been sentenced by courts for one or more offences. The record included offences of dishonesty, illegal use of a motor vehicle and four offences of driving with an excess concentration of alcohol in his blood or under the influence of that drug. He had been sentenced to full time custody on three occasions prior to the commission the subject offences and, in January 2005, again for a period of 3 months. The longest individual sentence had been imposed in 1987 and was of 3½ years including a non-parole period of 2 years. At the time of the commission of the offences with which this Court is concerned, the Applicant was on a s9 bond imposed in September 2003 for driving with a middle range PCA. 7 When apprehended by the police, the Applicant gave one explanation as to his possession of the drugs and then to a psychologist and his Honour another explanation. For reasons which are apparent on a reading of the transcript of the Applicant's evidence, his Honour did not believe much of what the Applicant had to say. 8 There was evidence, which his Honour appears to have accepted that the Applicant had had a difficult, perhaps very difficult, childhood, and in consequence suffered from dysthymic disorder, that his adult life had also involved many trials and tribulations, that the Applicant had some work history and, since the commission of the subject offences, had taken significant steps to improve. Judge McLoughlin found that the Applicant was a committed father to his two children and concluded that "the offender was remorseful for what he has put his children through and (had) made a determined effort to change". His Honour accepted that during the period when the matter first came before his Honour in February 2006, and at the time of sentencing at the beginning of June, the Applicant had been subjected to urinalysis which had tested negative to illegal substances. 9 As part of the written submissions advanced by counsel for the applicant she has listed a very substantial number of features which are referred to by his Honour or in the psychological report which was before his Honour and there can be no doubt that they argued in his favour down below, as they do here. 10 Nevertheless his Honour concluded that only a sentence of imprisonment would satisfy the requirements for general and specific deterrence. 11 The grounds of appeal are:-