Barber v DPP (No 2) [2021] NSWDC 8

Barber v DPP (No 2) [2021] NSWDC 8

The appellant's conduct involved significant violence in a domestic violence context, including forcing the victim to the ground and choking her for at least 5 seconds. Although the victim's conduct amounted to slight provocation and the appellant's subjective apprehension of further harm reduced culpability to a small degree, those matters did not make the offending trivial or insignificant. General deterrence, community protection, denunciation, and holding the offender to account outweighed the mitigating factors, so a conditional release order was not appropriate and the community corrections order was not shown to be too severe.

Jurisdiction
Australia
Judgment Date
03 February 2021
Procedural Posture
Criminal Severity Appeal / Appeal to the District Court of New South Wales From a Local Court Sentence After the Conviction Appeal Was Dismissed
Outcome
Appeal against severity dismissed.
Legal Topics
['common Assault' 'domestic Violence Offence' 'severity Appeal' 'provocation in Sentencing' 'conditional Release Order' 'community Corrections Order' 'general Deterrence']
['criminal Law' 'sentencing'] ['common Assault' 'domestic Violence Offence' 'severity Appeal' 'provocation in Sentencing' 'conditional Release Order' 'community Corrections Order' 'general Deterrence']

Case Brief

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Procedural Posture

Criminal Severity Appeal / Appeal to the District Court of New South Wales From a Local Court Sentence After the Conviction Appeal Was Dismissed

Legal Issues

  1. 1 ['Whether the sentence of a 9 month community corrections order for common assault was too severe.' 'Whether a conditional release order under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be imposed.' "Whether the victim's conduct and the appellant's subjective apprehension of further harm reduced the appellant's culpability or the need for deterrence."]

Ratio Decidendi

The appellant's conduct involved significant violence in a domestic violence context, including forcing the victim to the ground and choking her for at least 5 seconds. Although the victim's conduct amounted to slight provocation and the appellant's subjective apprehension of further harm reduced culpability to a small degree, those matters did not make the offending trivial or insignificant. General deterrence, community protection, denunciation, and holding the offender to account outweighed the mitigating factors, so a conditional release order was not appropriate and the community corrections order was not shown to be too severe.

Court Disposition

Appeal against severity dismissed.

Orders

  • ["The appeal against the severity of the learned Magistrate's sentence is dismissed."]