BARTON v REGINA [2009] NSWCCA 164

BARTON v REGINA [2009] NSWCCA 164

The sentence was not erroneous merely because it would expire when the applicant was in old age. A determinate sentence expiring at an advanced age is fundamentally different from a life sentence because the offender may live beyond its expiry. Once the judge declined to impose life imprisonment under s 61(1), that decision only meant the statutory obligation to impose life did not apply; it did not prevent imposition of a determinate sentence reflecting objective seriousness, totality and other sentencing considerations. The sentence and accumulation were within the sentencing discretion, and the judge was conscious of their consequences.

Jurisdiction
Australia
Judgment Date
25 June 2009
Procedural Posture
Criminal Law Sentencing Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted. Appeal dismissed.
Legal Topics
['murder' 'manslaughter' 'attempted Murder' 'mandatory Life Sentence' 'determinate Sentence' 'de Facto Life Sentence' 'totality' 'cumulation of Sentences']
['criminal Law' 'sentencing'] ['murder' 'manslaughter' 'attempted Murder' 'mandatory Life Sentence' 'determinate Sentence' 'de Facto Life Sentence' 'totality' 'cumulation of Sentences']

Case Brief

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Procedural Posture

Criminal Law Sentencing Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by imposing a determinate sentence said to be a de facto life sentence after declining to impose a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999.' 'Whether a sentence otherwise within the range of discretion can be disturbed because it expires when the offender is in old age.' 'Whether the sentence and cumulation adequately reflected objective seriousness and totality.']

Ratio Decidendi

The sentence was not erroneous merely because it would expire when the applicant was in old age. A determinate sentence expiring at an advanced age is fundamentally different from a life sentence because the offender may live beyond its expiry. Once the judge declined to impose life imprisonment under s 61(1), that decision only meant the statutory obligation to impose life did not apply; it did not prevent imposition of a determinate sentence reflecting objective seriousness, totality and other sentencing considerations. The sentence and accumulation were within the sentencing discretion, and the judge was conscious of their consequences.

Court Disposition

Leave to appeal granted. Appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']