Barton v R [2009] NSWCCA 285

Barton v R [2009] NSWCCA 285

Although the District Court judge knew the s113(1) offence carried a maximum penalty of 10 years, the sentencing remarks and agreed facts risked taking into account facts beyond those necessary to establish the charge and inconsistent with the De Simoni principle. The Court therefore resentenced the applicant on the break and enter with intent count to make clear that only the facts necessary to establish that offence were considered. However, the sentences for the other counts were appropriate, the offences required general deterrence, the totality of criminality was correctly assessed, and no less severe effective sentence was warranted in law.

Jurisdiction
Australia
Judgment Date
04 December 2009
Procedural Posture
Criminal Appeal / Appeal Against Conviction Abandoned; Applications for Leave to Appeal Against Sentence
Outcome
Appeal against conviction dismissed as abandoned. Leave to appeal against the sentences for perverting the course of justice and malicious wounding granted but those appeals dismissed. Leave to appeal against the sentence for break and enter with intent granted; that sentence quashed and resentenced, with the same...
Legal Topics
['sentencing' 'aggravating Circumstances' 'agreed Statement of Facts' 'de Simoni Principle' 'break and Enter With Intent' 'malicious Wounding' 'perverting the Course of Justice']
['criminal Law'] ['sentencing' 'aggravating Circumstances' 'agreed Statement of Facts' 'de Simoni Principle' 'break and Enter With Intent' 'malicious Wounding' 'perverting the Course of Justice']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal / Appeal Against Conviction Abandoned; Applications for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge for the break and enter with intent count took into account aggravating facts that would render the applicant liable to a greater punishment, contrary to The Queen v De Simoni (1981) 147 CLR 383.' 'Whether the sentences imposed were manifestly excessive or whether any less severe sentence was warranted in law.' "Whether the totality of the applicant's criminality justified the effective sentence imposed."]

Ratio Decidendi

Although the District Court judge knew the s113(1) offence carried a maximum penalty of 10 years, the sentencing remarks and agreed facts risked taking into account facts beyond those necessary to establish the charge and inconsistent with the De Simoni principle. The Court therefore resentenced the applicant on the break and enter with intent count to make clear that only the facts necessary to establish that offence were considered. However, the sentences for the other counts were appropriate, the offences required general deterrence, the totality of criminality was correctly assessed, and no less severe effective sentence was warranted in law.

Court Disposition

Appeal against conviction dismissed as abandoned. Leave to appeal against the sentences for perverting the course of justice and malicious wounding granted but those appeals dismissed. Leave to appeal against the sentence for break and enter with intent granted; that sentence quashed and resentenced, with the same...

Orders

  • ['The appeal against conviction which was abandoned be dismissed.' 'Leave to appeal against the sentence for the offence of do act with intent to pervert the course of justice be granted but the appeal be dismissed.' 'Leave to appeal against the sentence for malicious wounding be granted but the appeal be...