By Paul Gregoire and Ugur Nedim
In early 2018, Sydney man James Barnes spotted a woman walking alone through Sydney University at around 8 pm. After having finished work for the day, she was making her way towards Parramatta Road in order to catch a bus to Ashfield, where she lived.
Barnes followed her, catching the same bus, getting off at the same stop and stalking her for over half an hour as she made her way through public places until arriving out the front of the apartment block.
The pursuer then moved in behind his victim, hooked a bike chain around her neck and pulled her to the ground. The woman struggled, trying to fight Barnes off as he continued to throttle her to the point that she lost consciousness for a short period.
Two other people were also on the street at the time. A woman sitting in her parked car had noticed the soon-to-be victim walking by with Barnes tailing her and she called out after hearing a scream, and as the offender walked back passed her vehicle, he told her he hadn’t done anything wrong.
On having spied the bike chain in Barnes’ hand, the witness’ ex-husband appeared and approached the attacker, attempting to take his bag. However, Barnes punched the other man in the face and took off.
Guilty on all counts
Barnes pleaded guilty to the charges laid against him. The first count involved intentionally strangling another person and being reckless as to whether they were rendered unconscious, contrary to section 37 of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years inside.
The second crime Barnes pled guilty to was one count of common assault, contrary to section 61 of the Crimes Act. An individual convicted of this offence is liable to up to 2 years imprisonment and/or a fine of $5,500.
One count of stalking or intimidation with intent to cause physical or mental harm, contrary to section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), was also taken into account on a Form 1. This crime carries up to 5 years gaol time and/or a fine of $5,500.
Form 1 offences are charges laid against an accused, of which they haven’t been convicted. But, on their request, these are taken into consideration on sentencing alongside a primary offence, in accordance with the provisions of section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
In sentencing, Parramatta District Court Judge Siobhan Herbert found that the strangulation offence was within the high range of objective seriousness, due to the level of planning involved, which included being equipped with a bike chain, and she noted the significant harm caused to the victim.
On 6 March 2019, her Honour sentenced the offender to 6 years and 11 months imprisonment, with non-parole set at 4 years and 10 months. This sentence reflected a 25 percent discount, which was applied due to the utilitarian value of the early guilty plea.
Evidence withheld
Barnes appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 4 April last year. He did so based on one ground, asserting that there had been a miscarriage of justice because Barnes’ Justice Health records were not considered in sentencing.
So, the offender sought to adduce extra evidence on appeal, and in doing so, three categories of evidence were involved: that Barnes was assaulted whilst on remand, the opinions of psychiatrist Dr Furst in regard to the prison assaults, and details of why this was not tendered in the first place.
The Justice Health records in question set out the details of five separate assaults perpetrated upon Barnes whilst he was on remand, including one incident where he was set upon by 20 other inmates in the shower.
Dr Furst asserted in a new report informed by the records that Barnes was attacked by other prisoners at various times during his year on remand, which is “consistent with the victimisation often seen amongst people with schizophrenia and/or cognitive impairment in custody”.
Having represented Barnes during sentencing, solicitor Natalija Cavar stated that her client wouldn’t let her access his Justice Health records, whilst he outlined in his affidavit that this was because he was concerned about ending up in a forensic hospital if he did.
Evidence on appeal
The general rule regarding evidence in intermediate Australian appeals courts is that challenges to sentences should be determined on the evidence tendered at sentencing, except for that in relation to “an offender’s ‘progress toward rehabilitation in the period since the sentencing hearing’”.
The rationale behind this is that the inmate appealing their sentence is “not permitted to run a new and different case”, as was established by the High Court in its 2016 ruling Betts versus The Queen, although there is a flexibility to receive additional material in order to avoid a miscarriage of justice.
“While the authorities throw up many cases where evidence has been admitted on appeal, the general rule prevails in most cases. Additional evidence is only received where proper grounds have been established,” NSWCCA Justice Peter Hamill explained.
“The Court has been ‘at pains’ for decades to ensure that the rule against admission of this evidence will only yield in ‘rare and exceptional cases’ or, put another way, for ‘substantial reasons [where there is] a grave risk of injustice’,”.
Case law makes a distinction between “fresh” and “new” evidence, the justice continued, with fresh evidence being that which was not available to the court during earlier proceedings, whilst new evidence is that which was available but not used.
The various authorities further maintain that allowing extra evidence is a discretionary matter, which hinges upon whether the material would have had bearing on the earlier decision, that the accused knew of it but didn’t understand its implications, and that their lawyers weren’t aware of it.
Fresh evidence admissible
Justice Hamill pointed out that Judge Herbert’s remarks reveal that the additional evidence Barnes was seeking to tender on appeal would have been of relevance to her determination as she clearly stated that no available evidence showed that custody “would weigh more heavily on him”.
His Honour further found that the Justice Health records and a third report by Dr Furst were fresh evidence due to the “unique psychological factors” which led to the refusal to allow the evidence and further, it was clear that Barnes didn’t appreciate the significance of it.
For these reasons, Justice Hamill permitted the fresh evidence, and in considering the Justice Health records, he found that Barnes had been victimised in prison due to his mental health condition, which was consistent with the third psychiatric report specifically written for the appeal.
“The inevitable conclusion is that the applicant’s experience of gaol is more onerous, and harsher, than that of the average inmate or, put slightly differently, to that of inmates who do not suffer from a mental illness of the kind suffered by Mr Barnes,” his Honour stated, on allowing the appeal.
So, on 24 June last year, Justice Hamill quashed the original District Court sentence and imposed a new one consisting of 6 years and 2 months prison time, with a non-parole period of 4 years and 2 months.
This sentence incorporates a 25 percent sentencing discount and a finding of special circumstances.
Under the provisions of section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances, in this case due to the offender’s mental health issues, permits a parole period to be set for longer than the statutorily required 25 percent of the head sentence.
And NSWCCA Justices Fabian Gleeson and Mark Ierace agreed with their colleague’s orders.
