Barnes v R [2008] NSWCCA 136 | Case summary

12 JUNE 2008 Richard Frederick BARNES v REGINA Judgment 1 Spigelman CJ: I agree with McCallum J. 2 Price J: I agree with McCallum J. 3 McCallum J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 20 March 2007 after he pleaded guilty to an offence of breaking and entering a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation contrary to s 113(3) of the Crimes Act 1900 and an offence of robbery with an offensive weapon contrary to s 97(1) of the Crimes Act. Each of those offences carries a statutory maximum penalty of imprisonment for twenty years. There is no standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 for either offence. 4 In respect of the offence against s 113(3), the court attendance notice purportedly identified three circumstances of special aggravation, namely that he was in company with other persons, that he used corporal violence and that he was armed with a dangerous weapon being a replica pistol. The last of those matters is identified as a circumstance of special aggravation in s 105A. 5 The sentencing judge made a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act. In respect of the offence of breaking and entering with intent his Honour imposed a sentence of four years imprisonment with a non parole period of two years. In respect of the offence of armed robbery the sentencing judge imposed a term of imprisonment of four and a half years with a non parole period of two years. The sentences were accumulated by one year so that their combined effect was a total term of five and a half years with a non parole period of three years. 6 The sentencing judge had also dealt with the co offender in the offence of breaking and entering. The co offender had been sentenced to a non parole period of eighteen months with a total term of three years to be served by way of periodic detention. The circumstances pertaining to the co offender were different in a number of ways from those in respect of the present applicant. In particular the co offender was sentenced on the basis that he played a subsidiary role and that the present applicant was the principal offender. The co offender had also provided substantial assistance to authorities for which he received a 20% reduction in penalty. No complaint as to a lack of parity between the sentences has been made. 7 The circumstances of the offences were not in dispute. In respect of each offence the sentencing judge relied on a statement of agreed facts prepared on behalf of the Crown. As to the offence of breaking and entering the victim was a person who had previously shared a house with the applicant and the co offender. He had moved out of the house during the month before the commission of the offence to live with his girlfriend's family. The applicant gave unchallenged evidence at the sentence hearing that when he did so the victim took money and property belonging to the co offender leaving them in a difficult situation. 8 On the afternoon of Saturday 21 January 2006, the applicant and the co-offender, together with several other people, went to the victim's new house apparently in order to collect what they claimed was theirs. The applicant was in possession of a metal replica hand gun. The applicant knocked on the front door of the house and it was answered by the victim's girlfriend. The victim came to the door shortly afterwards and the applicant demanded money and property. The victim refused and closed the door. The applicant then climbed through a window. Once inside he grabbed the victim by the front of the neck and squeezed his throat. He then held the replica pistol at the side of the victim's head and made further demands for money and property. The victim told the applicant that he had no money. 9 The pistol had a mechanism that replicated the sound of cocking the firing mechanism on a real pistol. The applicant used that device causing the victim to fear that he was about to be shot. Eventually another member of the household persuaded the applicant and the co offender to leave. They attempted to take some personal possessions belonging to the victim's girlfriend and her family but other people at the house prevented them from doing so. 10 The co offender voluntarily handed himself into police several days later and made full admissions in which he implicated himself and the victim as suppliers of small amounts of cannabis in the Charlestown area. There was no suggestion that the applicant was involved in that undertaking. The applicant voluntarily handed himself in a few weeks later and also made full admissions. He stated that he had only intended to scare the victim and was fully aware that the pistol was a replica which could not have been fired. He stated that he was only acting to support the co offender by helping to threaten the victim in an attempt to recover the co offender's property. The applicant also provided assistance to the police officers who investigated the offence. Apart from the admissions made he assisted police to recover the replica pistol which by then was in the possession of another person. 11 The circumstances of the armed robbery were that the applicant walked out into the street in front of a boy who was riding his bicycle with a friend. The boy was fifteen. The applicant demanded that the boy get off the bike but he refused to do so. The boy then noticed that the applicant was holding a knife. The co offender grabbed the boy by the shirt and forced him to the ground. The applicant then jumped onto him and demanded that he let go of the bike. He again refused. The applicant then placed the blade of the knife against the boy's throat and moved it around causing a number of small grazes across the boy's neck. Fearing for his welfare the boy released the bike and the co offender rode it away. When first approached in relation to this matter the applicant denied any involvement in it and said that he had been with his family all day. However, a number of witnesses to the incident identified him. As already indicated the applicant entered an early plea of guilty to that offence. 12 At the hearing on sentence the applicant said that he had taken twelve or thirteen tablets of Valium and drunk about half a bottle of rum shortly before that incident. He said that he was trying to kill himself. His memory of the incident was very vague but he did recall that his friend had formed the view that the bike was one that had belonged to his younger brother and had recently been stolen. The applicant explained that he had thought he was helping his friend to recover the stolen bike, but he did not suggest that was any excuse and took full responsibility for the offence before the sentencing judge. 13 The principal issue raised in the present appeal is whether the sentencing judge erred in his consideration of the applicant's psychiatric condition. The first ground of appeal identified in the notice of appeal is "his Honour failed to apply sufficient weight to psychiatric issues as they affected the offender." That ground was recast in the written submissions in the following terms, "that his Honour in light of the psychiatric illness suffered by the appellant gave too much weight to the aspect of general and specific deterrence." 14 The evidence before the sentencing judge as to the applicant's psychiatric condition was a report from Dr Rosalie Wilcox, a general and forensic psychiatrist. She reported a diagnosis of paranoid schizophrenia coupled with poly substance abuse. The sentencing judge referred to Dr Wilcox's report at great length in his remarks on sentence. His Honour noted the history given by the applicant to Dr Wilcox of having suffered from auditory hallucinations and paranoia from the time when he was about eighteen years old. At the time of sentence he was twenty-three. Dr Wilcox's report recited the applicant's family and personal history in considerable detail and much of that material is set out in his Honour's reasons for sentence. It tells the story of a very sad upbringing. The applicant's father was a life member of the Rebel Motorbike Club and supported the family through crime. The applicant told Dr Wilcox that his father was very strict and had been both physically and emotionally abusive towards the applicant, his mother and his sister. The applicant had witnessed repeated acts of domestic violence and said that both he and his mother had had weapons held at their head. Equally troubling in the applicant's personal history was the fact that his father rather than fostering his education had actively impeded it. The applicant was classified as a gifted child and had obtained the Young Australian of the Year Achievement Award in year 10 for performing well in agriculture but had not been permitted by his father to take up a scholarship associated with that award. He was also a gifted runner and had been offered a scholarship to the Australian Institute of Sport which his father also did not let him pursue. Unsurprisingly he stated to Dr Wilcox that after year 10 he gave up on study as he knew that his father would not permit him to pursue any worthwhile scholarly path. Even so he completed year 12. He later resumed his studies in an attempt to obtain admission to university but his father pulled him away from those studies when the applicant's mother ended the marriage. Dr Wilcox's report also recorded a significant history of drug abuse by the applicant commencing with the use of cannabis when he was ten and ice, a concentrated form of amphetamine, when he was fifteen. 15 In that context Dr Wilcox specifically addressed the issue of the likely contribution of the applicant's psychiatric illness to the commission of the offences. She said: "although Mr Barnes' offending behaviour was not directly the result of his mental illness it is probable that due to the presence of auditory hallucinations and paranoia he was more suspicious and his capacity to control his behaviour was reduced. It is probable that his judgment and ability to consider the consequences of his actions was further impaired by his substance abuse at the time of the alleged offence."

The sentencing judge set out the history given to Dr Wilcox together with her conclusions in considerable detail in his remarks on sentence. His Honour concluded that the applicant was not a totally ideal vehicle for the demonstration of general deterrence because he was satisfied that the applicant's condition of paranoid schizophrenia is independent of his drug use and because of the indirect connection between that condition and the commission of the offences described in Dr Wilcox's report. However, his Honour declined to proceed on the basis that general deterrence should play no part in the sentencing process. He noted that the offences were largely committed because of the offender's abuse of drugs and alcohol which in turn exacerbated the symptoms of his psychiatric illness. He concluded that there should be "some amelioration only" of the consideration of general deterrence. Separately his Honour relied on the psychiatric diagnosis in the context of his finding of special circumstances which resulted in an adjustment of the usual ratio. 16 In his written submissions Mr Riviere, who appeared for the applicant, relied on the decisions of this court in Regina v Jarman [2001] NSWCCA 178, Regina v Letteri (NSWCCA) (unreported, 18 March 1992) and R v Hemsley [2004] NSWCCA 228. The principles established in those authorities are not in dispute and Mr Riviere did not suggest that the sentencing judge was under any misconception as the applicable law. He expressly acknowledged that the sentencing judge gave the psychiatric issues appropriate weight on the issue of special circumstances. However, he submitted that it could be inferred from the total sentence imposed that the weight given to general deterrence must have been more than was required in this case. Accordingly, this may be seen as a matter where the applicant identifies no specific error but relies on the ultimate sentence reached as the basis for a conclusion that some error must have occurred. 17 The judgment of the weight to be given to general and specific deterrence was one that involved the exercise of a broad discretion with which this court should be reluctant to interfere. In my view the conclusion that there should be some amelioration only of the consideration of general deterrence was plainly open in the exercise of judicial discretion. It was sustained by careful reasoning on undisputed facts. 18 The second ground of appeal is that his Honour erred in accumulating the sentences. The submission made in support of that ground was that there is a possibility that his Honour did not give sufficient weight to the authorities referred to above when determining the total sentence and issues of accumulation. It was submitted that his Honour would not have been in error in exercising the discretion to refrain from accumulation in this case having regard to the psychiatric evidence. That of course is not the test. This court should not interfere with the sentence imposed unless it is satisfied that the sentencing judge was in error in exercising the discretion in the way in which he did. 19 In her written submissions Ms Noman, who appeared for the Crown, noted that the applicant was sentenced for two entirely separate offences each with a maximum penalty of twenty years, each different in character and separated in time by three months. She also noted that the second offence was committed while the applicant was on bail for the first offence. She submitted that each offence required a significant penalty even allowing for moderation relating to the applicant's psychiatric condition. She also submitted that in the present case to fail to accumulate the sentences to some extent would not have provided sufficient compliance with the requirements of totality stated by the High Court in Pearce v the Queen (1998) 194 CLR 610. I agree. 20 I note that the sentencing judge recorded in his remarks on sentence the concession made by counsel for the applicant at the sentence hearing that some accumulation was appropriate. In my view that concession was properly made. Ground 2 is not made out. 21 In written submissions the applicant advanced a further ground, which was not identified in the notice of appeal, that the sentence imposed was manifestly excessive. However, the development of that ground effectively repeated the submissions put as to the contention that the sentencing judge did not give appropriate weight to the psychiatric evidence when determining the sentences imposed and the issue of accumulation. 22 This is a sad case because the applicant appears to be a man of considerable ability and intelligence whose determination to achieve a good education and a stable family life has been defeated by the acts of his father and a series of misfortunes including his psychiatric condition. In my view however the sentences imposed were within the appropriate range. The orders I propose are that leave to appeal be granted but that the appeal be dismissed. **********

Barnes v R

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