Barbieri v R - [2016] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Barbieri v R [2016] NSWCCA 295
Hearing dates: 21 June 2016
Decision date: 12 December 2016
Before: Simpson JA at [1]; Price J at [134]; McCallum J at [195]
Decision:
(1) Leave to appeal against sentence granted;
(2) Appeal allowed;
(3) Sentence imposed at first instance quashed;
(4) In lieu thereof, the applicant be sentenced to a non-parole period of 15 years, commencing on 6 December 2012, expiring on 5 December 2027, with a balance of term of 6 years and 3 months which will expire on 5 March 2034.

Catchwords:
CRIMINAL LAW – sentence appeal – murder – victim a police officer acting in execution of duty – Crimes Act 1900 (NSW), s 19B(1) – offender offered plea of guilty to manslaughter on basis of substantial impairment – Crimes Act, s 23A – offer not accepted by DPP – DPP conceded applicant had “significant cognitive impairment” within meaning of s 19B(3)(b) – sentence of life imprisonment not mandatory – offender pleaded guilty to murder – further four offences taken into account on Form 1

CRIMINAL LAW – sentence appeal – murder – offender suffering mental illness – delusional disorder shared with mother – “Folie A Deux” – mother a co-offender – mother offered plea of guilty to manslaughter on basis of substantial impairment – plea of guilty accepted by DPP – effect of mental illness – sentencing judge took into account fact that applicant’s condition was “secondary” to that of his mother and overcame condition when separated from mother – error in so doing – considerations irrelevant to assessment of moral culpability – principles relating to sentencing mentally ill offenders

CRIMINAL LAW – sentence appeal – circumstances of guilty plea to murder – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 22(1)(c)

CRIMINAL LAW – sentence appeal – disparity between sentence imposed on applicant and sentence imposed on co-offender
CRIMINAL LAW – sentence appeal – error disclosed by two grounds of appeal – necessary to exercise sentencing discretion afresh – leave to appeal granted – appeal allowed – applicant re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, ss 21A, 22, 44(2)
Crimes Act 1900 (NSW), ss 18, 19A, 19B, 23A, 25A
Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)
Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: AB v R [2014] NSWCCA 339
Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297
Atkinson v R [2014] NSWCCA 262
Ayik v R [2013] NSWCCA 119
Betts v The Queen (2016) 332 ALR 185; [2016] HCA 25
Devaney v R [2012] NSWCCA 285
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Haines v R [2016] NSWCCA 90
Hawkins v R [2011] NSWCCA 153
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Majid v R [2010] NSWCCA 121
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Ilbay [2000] NSWCCA 251
R v Israil [2002] NSWCCA 255
R v Kollas and Mitchell [2002] NSWCCA 491
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Verdins (2007) 16 VR 269; [2007] VSCA 102
R v Wright (1997) 93 A Crim R 48
Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550
Category: Principal judgment
Parties: Mitchell Barbieri (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Manuell SC (Applicant)
N Noman SC (Respondent)
Solicitors:
Legal Aid New South Wales (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2012/379946
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division – Criminal

Citation:

R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808

Date of Decision:

18 December 2014

Before:

R A Hulme J

File Number(s):

2012/379946

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 December 2012, the applicant stabbed Detective Inspector Bryson Anderson twice during a confrontation between police and the applicant and his mother at their home. The injuries inflicted were fatal. The applicant was subsequently charged with Detective Inspector Anderson’s murder. At the time of the murder, Detective Inspector Anderson was a police officer acting in the execution of his duty. By s 19B of the Crimes Act 1900 (NSW), murder of a police officer acting in the execution of his or her duty (where specified circumstances exist), carries a mandatory sentence of life imprisonment. By s 19(3)(b) an exception is made where, at the time of the murder, the perpetrator had a “significant cognitive impairment”.

Psychiatric evidence established that both the applicant and his mother suffered from severe mental illness. The applicant’s mother had a delusional disorder that the applicant came to share, a condition known as “Folie a Deux”.

The applicant’s mother was also involved in the events that led to the death of Detective Inspector Anderson. She was also charged with murder. In her case, the DPP accepted a plea of guilty to manslaughter in satisfaction of the indictment. The basis for acceptance of her plea of guilty was that she suffered from substantial impairment within the meaning of s 23A of the Crimes Act. She also pleaded guilty to another offence committed on the same day.

The applicant also offered to plead guilty to manslaughter on the basis of substantial impairment under s 23A of the Crimes Act. The DPP declined to accept the plea of guilty in satisfaction of the indictment. However, the DPP offered a concession that at the time of the murder the applicant had a “significant cognitive impairment” within the meaning of s 19B(3)(b) of the Crimes Act and that, therefore, a sentence of life imprisonment was not mandated by s 19B. The applicant thereupon pleaded guilty to the murder of Detective Inspector Anderson.

The applicant was sentenced to imprisonment for 35 years with a non-parole period of 26 years. The sentence took into account four additional offences committed on the same day (Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In the same sentencing procedure the applicant’s mother was sentenced to a total term of imprisonment for 10 years with a non-parole period of 7 years and 6 months, of which a head sentence of 9 years and a non-parole period of 6 years and 6 months was attributable to the manslaughter offence.

The sentencing judge accepted that the applicant had a delusional disorder but considered that, because the delusional disorder was secondary to that of his mother, and because, after separation from his mother, he had substantially recovered from the disorder, neither his moral culpability for the offence, nor the need for the sentence to reflect considerations of general deterrence was diminished to any substantial degree.

The applicant sought leave to appeal against the severity of his sentence on various grounds including that the sentencing judge erred:

i. in his application of the principles relevant to the sentencing of mentally ill offenders;

ii. in double counting by taking into account the fact that the victim was a police officer killed in the execution of his duty both with respect to the assessment of objective seriousness of the offence and as attracting the increased standard non-parole period prescribed in Crimes (Sentencing Procedure) Act, Part 3, Division 1A, Item 1A;

iii. in his application of Crimes (Sentencing Procedure) Act, s 22 (concerning the circumstances which the applicant entered the plea of guilty);

iv. in failing to give any, or any sufficient, weight to the evidence of the applicant’s remorse;

v. in failing to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act in order to reduce the proportion of the non-parole period to the head sentence;

vi. in imposing a sentence that was manifestly excessive; and

vii. in imposing a sentence that was disproportionate to that imposed on his mother.

Held

Simpson JA (McCallum J agreeing at [195]), granting leave to appeal and allowing the appeal:

(1) It was erroneous to conclude that the applicant’s moral culpability was not reduced to any substantial degree either (i) because the applicant’s condition was secondary to that of his mother or (ii) because he had recovered from the condition after separation from her. These two considerations were irrelevant to the question of the applicant’s mental state at the time of the offending: at [74]-[75].

(2) It was erroneous to fail to reduce the weight given to general deterrence. The applicant was an unsuitable vehicle for general deterrence because his mental illness reduced his moral culpability: at [76].

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; R v Henry (1996) 46 NSWLR 346; [1999] NSWCCA 111 referred to.

(3) Section 22 of the Crimes (Sentencing Procedure) Act is susceptible to a less rigid interpretation than may appear to be derived from R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309: at [95].

(4) The circumstances of the applicant’s plea ought to have warranted a greater reduction in sentence: at [98].

(5) While the applicant and his mother stood for sentence on very different bases, the evidence showed that the applicant shared her delusional thought processes. It was erroneous of the sentencing judge to attribute far greater weight to the applicant’s mother’s mental illness than he did to that of the applicant: at [113]-[118].

(6) Grounds 1 and 7 having been made out it became necessary for the Court to exercise the sentencing discretion afresh: at [80].

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied.

Applicant re-sentenced.

Price J, granting leave to appeal and allowing the appeal, but disagreeing with the sentence imposed on re-sentence:

(7) The sentencing judge’s assessment of the applicant’s moral culpability was neither founded upon the nature of the applicant’s condition being secondary to that of his mother or his apparent recovery after enforced separation from his mother. These were reasons for the sentencing judge’s conclusion that no lesser weight should be given to general deterrence: at [139].

(8) There was no error in the conclusion that the applicant’s moral culpability was not lessened to a substantial degree: at [150]-[151].

(9) The sentencing judge erred in determining that there was no need to lessen the weight given to general deterrence because the applicant’s condition was “secondary” and because he seemed to recover. Mental illness, whether temporary or permanent, is relevant to the assessment of the need for general deterrence: at [152].

R v Verdins (2007) 16 VR 269; [2007] VSCA 102; Devaney v R [2012] NSWCCA 285; R v Wright (1997) 93 A Crim R 48 referred to.

(10) Section 22(1)(c) of the Crimes (Sentencing Procedure) Act is not applicable to the circumstances of this case: at [159]-[160].

(11) Notwithstanding the material differences between the offences that the applicant and his mother stood for sentence, the marked disparity between the sentence imposed on the applicant and his mother gives rise to a justifiable sense of grievance and should be moderated to some degree: at [179].

Judgment

SIMPSON JA: On 5 November 2014 in the Supreme Court the applicant entered a plea of guilty to a charge that, on 6 December 2012, he murdered Detective Inspector Bryson Anderson. Detective Inspector Anderson was a police officer then acting in the execution of his duty as a police officer. Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), the applicant asked that four additional offences itemised on a Form 1 (“the Form 1 offences”), of which he admitted his guilt, be taken into account for sentencing purposes. These were two offences of common assault, one offence of resisting a police officer in the execution of his duty, and one of possessing a prohibited weapon without a permit. All offences were committed in the afternoon of 6 December 2012.
By s 19A(1) of the Crimes Act 1900 (NSW), conviction for murder carries a maximum penalty of imprisonment for life. By s 19B(1), where the victim is a police officer acting in the execution of his or her duty, and where specified circumstances exist, a sentence of life imprisonment is mandatory. For reasons that will be explained below, the relevant circumstances did not, in the present case, exist, and the applicant was, accordingly, not sentenced to imprisonment for life. By Pt 4 Div 1A of the Sentencing Procedure Act, a standard non-parole period of 20 years is applicable to the offence of murder; however, where the victim is a police officer, and the offence arose because of the victim’s occupation (which was here the case), the applicable standard non-parole period is 25 years (see Items 1 and 1A of the Table to s 54D).
On 18 December 2014 the applicant was sentenced to imprisonment for 35 years with a non-parole period of 26 years: R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808. He now seeks leave to appeal against the severity of the sentence.
It should here be noted that, in the same sentencing procedure, the applicant’s mother, Fiona Barbieri, was sentenced to a total term of imprisonment for 10 years with a non-parole period of 7 years and 6 months (she having pleaded guilty to the manslaughter of Detective Inspector Anderson). That total term included a sentence of 4 years and 6 months in respect of an offence of using an offensive weapon to hinder the lawful apprehension of the applicant. The sentence specifically attributable to the manslaughter of Detective Inspector Anderson was 9 years with a non-parole period of 6 years and 6 months.

The relevant facts

The sentencing proceedings

The facts of the offences of both the applicant and of Fiona Barbieri were principally put before the sentencing judge by way of an Agreed Statement of Facts in each case (which were virtually identical). They were supplemented by a large quantity of witness statements. Two of the authors of the statements gave oral evidence and were cross-examined in order to resolve an outstanding factual issue. A large volume of psychiatric evidence, in the form of reports, was put before the sentencing judge in the Crown case. The most substantial of these was a lengthy report of Dr Michael Diamond (a psychiatrist) that explored the “mental states” of the applicant and his mother. Dr Diamond also provided additional reports specifically dealing with each offender. A report of Dr Jonathon Adams, a psychiatrist, was tendered in Fiona Barbieri’s case and Dr Adams also gave oral evidence. An additional psychiatric report (of Dr Olav Nielssen) was tendered in the applicant’s case. There were Victim Impact Statements from members of Inspector Anderson’s family. Both Fiona Barbieri and the applicant had written letters to the Anderson family expressing regret for Inspector Anderson’s death.
The circumstances of the applicant’s offences were as follows. The applicant was born in August 1993. He was the only child of his parents, Fiona and Angelo Barbieri. In 2001 the family bought a rural property at Oakville, but by October 2012 the marriage of Fiona and Angelo Barbieri had failed and Angelo Barbieri moved out of the home, leaving the applicant and Fiona Barbieri, who continued to live in the property.
The property next door was owned and occupied by the Waters family. Initially, relations between the Waters and Barbieri families were cordial and even friendly. However, as time went on, there was a deterioration in the relationship, which became hostile. Early in December, a stick, and a note, were thrown from the Barbieri property onto the Waters property. As a result of this, Mr Kevin Waters engaged an electrician to install flood lighting close to the boundary between the two properties. The electrician attended on 6 December for that purpose. An argument developed between Fiona Barbieri and the electrician. Fiona Barbieri and the applicant demanded that the electrician leave. The applicant, who was competent in archery, fired two arrows into the Waters property. (This gave rise to the two Form 1 offences of common assault.)
On each occasion, it was his intention to cause the occupants of the Waters property to fear immediate and unlawful violence. (It does appear, however, that he targeted the arrows in such a way as not to strike any person in the Waters property.) Fiona Barbieri was present throughout this incident, holding and swinging a small baseball bat.
Mr Waters called police, who attended at about 2.25pm. A confrontation between police on the one hand and Fiona Barbieri and the applicant on the other began, and continued over a period. Police on the scene called for reinforcements, and, over time, more police attended, all in uniform.
The applicant and Fiona Barbieri retreated into the house. Between 2.40pm and 3.00pm they (or one of them) sent three emails addressed to the then Prime Minister, the Foreign Minister, and various other members of the Australian Parliament. The first appears to make accusations of the Waters family, although what the specific allegations are is difficult to understand. The email does contain the following:

“Let me remind you, we have every right to defend ourselves, our family and our property …
How dare our politicians and police continue to support murderers over the innocent.”

In the second, they state:

“Corrupt police attempting to break into our property whilst Waters front yard is full of his drivers and associates …
… We know how the corrupt system works now …”

The final email, sent at 3.11pm, read:

“What sending in reinforcements to target/ambush the innocent mother and son that our Government offered up to be murdered?
Do you not know you don’t ‘sacrifice the innocent’?”

The emails were blind copied to the President of Russia. At about 3.10pm the applicant sent a text message to his father which read:

“Coppers at our gate clearly to ambush us to [sic] standing up for ourselves”

Detective Inspectors Anderson and Batten arrived at about 3.20pm. They also were in uniform. Inspector Anderson went to the rear of the property. Fiona Barbieri ordered police to leave. Inspector Anderson had a conversation with the applicant, who remained inside the house, and who told Inspector Anderson to “fuck off”. Attempts were made by police to gain entry to the house by removing a screen door, but the applicant continued to resist efforts at negotiations. Inspector Anderson took up a position with his back to the rear wall of the house near the doorway.
Two dogs, that had been heard inside the house barking aggressively, were released and were subdued with OC spray. From inside the house, at the doorway, the applicant stabbed Inspector Anderson twice, once in the left cheek area, and once in the chest. The applicant then emerged from the house, still carrying the knife that he had used for the stabbing. Police officers attempted to arrest the applicant. He struggled and resisted. This gave rise to the Form 1 offence of resisting arrest.
An ambulance was called. The injuries to Inspector Anderson proved to be fatal. The applicant said:

“Let the copper cunt die, fuck him.”

Inspector Anderson died at Hawkesbury Hospital later that day.

At about 4.15pm the applicant and Fiona Barbieri were arrested and taken to the Windsor Police Station, where they were invited to participate in interviews. Both refused. Conversations that then took place were video recorded, and are of some significance to the issues raised in the present application. Both Fiona Barbieri and the applicant claimed to be asylum seekers or refugees. The applicant accused the police of brutality.

The conversation with the applicant is recorded as having commenced at 10.00pm at the Penrith Police Station. When asked about his arrest, the applicant said:

“Yes, we were ambushed in our home.”

When asked if he was happy to participate in an interview, he said:

“No, I’m not, not at this point in time, until I receive the Consular assistance that I requested … I am requesting you be in touch with the Russian consular office, whether it be in this country or in Russia itself, possibly through this country’s office.”

He told the police officer that he was trying to revoke his citizenship and seek political asylum, as a result of:

“… persecution in this country for having reported and stood up against human rights abuse, corruption and terrorism.”

He declined to answer any questions about the events of the afternoon, and repeated that he wished to obtain (Russian) consular assistance as a matter of “urgent priority”.

Fiona Barbieri was questioned from about 10.30pm, and adopted a similar position, although significantly more stridently.
It seems (there do not appear to be any statements to this effect) that a subsequent search of the property located five “Molotov cocktails” in a refrigerator in a granny flat, and a slingshot found in a cupboard in the kitchen of the house. These were the subject of the possession of prohibited weapon offences on the Form 1.
Both the applicant and Fiona Barbieri were charged with murder. In due course, for reasons that will appear, the Director of Public Prosecutions (“the DPP”) accepted, in respect of Fiona Barbieri, a plea of guilty to manslaughter in satisfaction of the charge of murder. The DPP declined to accept a similar plea proffered by the applicant, who ultimately (again in circumstances to be discussed below) entered a plea of guilty to the charge of murder.

The applicant’s personal circumstances

There was an unusually large volume of material, principally psychiatric, put before the sentencing judge. Some, indeed much, of this appears to have been prepared for the purpose of determining whether either Fiona Barbieri or the applicant had available a defence of mental illness or the partial defence to the charge of murder provided by s 23A of the Crimes Act. Section 23A provides that a person who would otherwise be guilty of murder is not to be convicted of murder if, at the time of the acts or omissions causing death, the person’s capacity to understand events or to judge whether his or her actions were right or wrong or to control himself or herself was substantially impaired by an abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (in which case the person is to be acquitted of murder and convicted of manslaughter).
For the purpose of that assessment, at the request of the DPP, Dr Michael Diamond undertook an extensive review of statements made by witnesses to the events, other potential witnesses, and historical medical records (particularly of Fiona Barbieri) and other material. He provided an initial report (dated 23 June 2013) that ran to 49 pages and related both to the applicant and Fiona Barbieri, and two supplementary reports (dated 15 October 2014, one relating to the applicant and one to Fiona Barbieri). At the request of the applicant’s solicitors Dr Olav Nielssen also provided two reports relating to the applicant, dated 25 October 2013 and 20 November 2014, and Dr Bruce Westmore another dated 25 March 2014. Dr Jonathon Adams provided a report (dated 24 October 2014) relating to Fiona Barbieri.
Despite the volume of psychiatric material, its effect may at this stage be stated with relative brevity. It will be necessary to deal in more detail with that evidence when addressing the specific grounds of appeal.
From 1989 Fiona Barbieri was employed by American Express (AMEX), eventually attaining a degree of seniority. She was evidently competent and successful at her work. For a short time in 2001 she (and the family) lived in the United States, but returned to Australia to deal with the death from leukaemia of her sister. From about 2009 Fiona Barbieri’s health deteriorated, as did her work performance. Retrospective analysis of her medical records by Dr Diamond shows a clear pattern of emerging mental health issues, which it is unnecessary here to detail. Eventually she was diagnosed as suffering from a psychosis, but does not appear at that time to have had any appropriate treatment. She continued to live with the applicant at the Oakville property. Eventually (after the events of 6 December 2012) Dr Diamond diagnosed her as suffering from chronic paranoid schizophrenia. Dr Diamond’s report of 23 June 2013 traced the evolution of her psychiatric disorder.
The present significance of Fiona Barbieri’s psychiatric condition is that the applicant lived alone with her throughout the development of her illness. He came to share her delusions. Dr Diamond diagnosed him as suffering from “delusional disorder”, as a result of a psychiatric disorder he shared with Fiona Barbieri, or “Folie A Deux”. That diagnosis was not in dispute.

The circumstances of the applicant’s plea of guilty to murder

Before turning to the sentencing process and the proposed grounds of appeal, it is convenient to recite some further relevant circumstances. In determining whether to plead guilty to murder, the applicant was faced with an acute dilemma. The dilemma arose from the potential intersection of s 23A and s 19B of the Crimes Act.
It appears that the applicant indicated his preparedness to plead guilty to the lesser charge of manslaughter, on the basis provided by s 23A (that is, that his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, were substantially impaired by an abnormality of mind arising from an underlying condition). Notwithstanding that the DPP had accepted a plea of guilty to manslaughter by Fiona Barbieri on that basis, he was not prepared to do so in relation to the applicant. The DPP was not obliged to give reasons for adopting that position. However, an explanation was given by the Crown Prosecutor who appeared on the sentencing proceedings. He gave three reasons:

the applicant’s mental condition was “a derivative one” rather than “an organic illness” of the kind suffered by Fiona Barbieri;

whatever illness the applicant suffered did not deprive him of “all of his reasoning abilities”;

on a post arrest interview the applicant was able to provide logical answers that demonstrated an understanding of what had happened. The Crown prosecutor gave some illustrations relevant to this point.

These reasons were given, not in the context of explaining the DPP’s refusal to accept the proffered plea (an explanation which, as I have said, the DPP was not obliged to give) but in a different context, to which I will shortly come.
A good deal of psychiatric evidence supported the partial defence afforded by s 23A – at least as to substantial impairment – had the applicant been prepared to take it to trial on a plea of not guilty to murder. But substantial impairment is not the end of the s 23A considerations. An essential element of that partial defence is that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. That question is a question for determination by a jury, applying community standards. (By sub-s (4) the onus of proving the components of the s 23A defence lies upon the accused person.)
On the basis of the available psychiatric evidence, it may be thought that the applicant had reasonable prospects of persuading a jury that, by reason of the s 23A circumstances, he ought to have been acquitted of murder and convicted of manslaughter.
However, in the present circumstances, there was another very important consideration. I have already mentioned s 19B of the Crimes Act, which I now set out, so far as relevant:

“19B  Mandatory life sentences for murder of police officers
(1)  A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed:
(a)  while the police officer was executing his or her duty, or
(b)  as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty,
and if the person convicted of the murder:
(c)  knew or ought reasonably to have known that the person killed was a police officer, and
(d)  intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers.
(2)  A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person’s natural life.
(3)  This section does not apply to a person convicted of murder:
(a)  if the person was under the age of 18 years at the time the murder was committed, or
(b)  if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment).
(4)  …
(5)  …
(6)  …
(7)  …” (italics added for emphasis)

Section 19B was inserted into the Crimes Act in 2011 commencing on 23 June 2011 (Crimes Amendment (Murder of Police Officers) Act 2011 (NSW), Act No 20 of 2011). Its effect is to dictate a mandatory sentence of life imprisonment for the murder of a police officer acting in the execution of his or her duty, if (relevantly) the person convicted knew that the victim was a police officer, and intended to kill him or her. There was ample evidence to show that the applicant knew that Inspector Anderson was a police officer acting in the execution of his duty (sub-s (1)(c)): he was in uniform, he had introduced himself by announcing his office, Fiona Barbieri had made remarks about the “stars and stripes” that he was wearing, and the applicant had sent a text message to his father complaining of “coppers” at the door. The inference that, when the applicant wielded the knife, he intended to kill Inspector Anderson (sub-s (1)(d)) was strong; and, in any event, it might well have been thought that the applicant was engaging in criminal activity that risked serious harm to police officers (even though that was the very activity that resulted in Inspector Anderson’s death) (sub-s (1)(d)).
Conviction for murder therefore left the applicant potentially exposed to a life sentence. That was so, unless it could be shown, in terms of sub-s (3)(b), that he had a “significant cognitive impairment” at the time of the murder.
Because of the relative recency of the enactment of s 19B, the meaning and extent of “significant cognitive impairment” had not been judicially explored. Although the concept of “cognitive impairment” appears elsewhere in the Crimes Act (see, for example, s 61J(2)(g)), that was not in a context that could cast any light on the construction that might be given to it as used in s 19B. The term “significant cognitive impairment” was again used in s 25A (which commenced in January 2014) where it is defined (but for the purposes of that section) as including “mental illness” (see sub-s (10)). The meaning of the term does not appear to have been the subject of judicial consideration, at least at appellate level, at the time the applicant was considering his legal options. It could therefore not be known what construction would be placed upon those words.
It was, nevertheless, open to the applicant to have entered a plea of not guilty to murder, and to have relied upon s 23A as a partial defence, in the hope of conviction of the lesser offence of manslaughter. Ordinarily, failure of a s 23A defence leaves an offender no worse off apart from the sentencing consideration provided by s 22 of the Sentencing Procedure Act, that is, a reduction in sentence attributable to a plea of guilty. By reason of s 19B, however, the applicant had to take into account an additional consideration – failure of the partial defence would have left him exposed to the potential of a mandatory life sentence.
Section 23A can be broken into a number of cumulative components each of which has to be proved by the accused person. The components may be paraphrased as follows:

that the mental capacity (that is, capacity to understand events or to judge whether his/her actions were right or wrong, or to control himself or herself) of the accused person was substantially impaired;

that the impairment was caused by an abnormality of mind arising from an underlying condition; and

that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Each component is to be determined by a jury. Failure to establish any one of the components would result in the failure of the defence. Since a jury does not give reasons, and does not answer questions individually, it would not be possible to identify which of the components was not proved.
Failure to establish substantial impairment, abnormality of mind, or that the abnormality arose from an underlying condition, could have had some bearing on the question of “significant cognitive impairment” for the purposes of s 19B. If it could be inferred that the failure of the defence was attributable to failure to prove any of those three components, that may be considered relevant to the question posed by s 19B(3)(b). What has not yet been judicially determined is whether there is any relationship between “substantial impairment” caused by abnormality of the mind for the purposes of s 23A, and “significant cognitive impairment” for the purposes of s 19B, and, if there is such a relationship, its nature.
The applicant could have pleaded not guilty to murder, and taken his chances on the s 23A defence. If he failed, and was convicted of murder, he would have faced the prospect of a mandatory life sentence by reason of s 19B. Of course, it would still have been open to him to seek to rely on “significant cognitive impairment” under s 19B(3) but he could have had no confidence (and neither could his legal advisors) that the failure of the substantial impairment defence would not be held to be an answer to the s 19B(3)(b) question.
Notwithstanding that he had declined to accept the plea to manslaughter on the basis of substantial impairment under s 23A, the DPP, through the Crown prosecutor, offered to concede that, for the purposes of s 19B(3)(b), the applicant had a significant cognitive impairment. That, of course, created the significant forensic dilemma for the applicant (and his legal advisors) to which I have referred above.
The applicant took the safe course of taking advantage of the concession offered by the DPP, and pleaded guilty to murder.
This somewhat lengthy exposition has been necessary because it is relevant for two reasons. The first reason is that it casts light on the approach taken in sentencing to the question of the effect of the applicant’s mental illness (Ground 1 of the proposed appeal). The second is that it is relevant to Ground 3 of the proposed appeal, in which the applicant complains of the manner in which his plea of guilty was treated.

The Remarks on Sentence

After recounting in some detail the events of the afternoon and evening of 6 December 2012, the sentencing judge dealt with disputed issues of fact and reviewed the psychiatric evidence relating both to the applicant and to Fiona Barbieri. One disputed issue of fact emerged from statements made by two paramedics who attended to Inspector Anderson. Both stated that the applicant had said words to the effect set out above, that is, “let the copper cunt die, fuck him”. This was put in issue by cross-examination. The sentencing judge accepted the evidence of the paramedics. However, he regarded the evidence as of “very minor” significance in the sentencing outcome.
The sentencing judge dealt at some length with the personal circumstances of both offenders. He accepted evidence of Dr Nielssen that the applicant’s prospects of rehabilitation were good and that he presented a low risk of reoffending. He did not accept that the applicant was genuinely remorseful for his involvement in the death of Inspector Anderson.
He assessed the utilitarian value of the plea of guilty as relatively low, by reason of the time it was entered (on the day fixed for trial) and the “slight dilution” of the benefit caused by the requirement of the paramedics to attend for cross-examination. He allowed a reduction in the sentence he otherwise would have imposed of 10 per cent.
He rejected a submission that the evidence indicated that the applicant’s intention was to inflict grievous bodily harm rather than to kill (see Crimes Act, s 18) and expressly found that his intention was to kill Inspector Anderson.
Notwithstanding the concession on behalf of the Crown that, by reason of the applicant’s mental health condition, he suffered from a “significant cognitive impairment” within the meaning of s 19B(3)(b) of the Crimes Act, thus rendering the mandatory sentence of life imprisonment for the murder of a police officer inapplicable, he considered that to be a question that he had to decide himself. He did so, reaching the same conclusion. He held that, although by his plea of guilty to murder, the applicant had abandoned reliance on a defence of mental illness, or a partial defence of substantial impairment, there was a reasonable possibility that the applicant had a significant cognitive impairment at the time he killed Inspector Anderson.
He accepted a joint submission by the parties that that conclusion did not exhaust the relevance of the applicant’s mental illness, and that that condition was available to be taken into account in “the assessment of sentence”, which I take to mean, or to include, the assessment of the applicant’s moral culpability.
He then turned to the question of the applicant’s mental illness, and said:

“141  Often when an offender is suffering from mental ill-health a court will find that his or her moral culpability is reduced where the condition contributes to the commission of the offence. Less weight might be given to the need for general deterrence because they are inappropriate people to make an example of to others. A custodial sentence might weigh more heavily upon such a person. There may be a reduced need for personal deterrence.
142  I am prepared to accept that Mr Barbieri’s moral culpability is less than it otherwise would be on account of his mental condition but not to any substantial degree. Because the nature of his condition was one that was secondary to that of his mother and he seems to have overcome it with the enforced separation from her, I cannot see any need to lessen the weight I give to general deterrence which is such an important feature of sentencing in a case like this. Personal deterrence is not a matter that looms large. Finally, there is no evidence that a custodial sentence will weigh more heavily upon him. I will, however, take into account that he did endure a period of restrictive custody on protection in the early stage of his period on remand.
143  There is a further aspect relating to Mr Barbieri’s mental condition that should be taken into account in mitigation. He was a young man of 19 years of age at the time of the offence. He was aged around 17 when he started to adopt the delusional beliefs of his mother. The reason he did so was obviously because of their close relationship and increasing social isolation. But I accept that it was also partly due to his relative immaturity which made him less equipped to recognise his mother’s condition and deal with it in an appropriate way. I do not find that the immaturity of youth was a material factor in the events of 6 December 2012; but I accept that the offender’s significant cognitive impairment was. The fact that it arose in the circumstances I have just mentioned calls for some measure of understanding in his favour.”

Finally, he noted authorities that lay emphasis on the seriousness of crimes involving assaults on, or murder of, police officers, and concluded, notwithstanding the applicant’s reduced moral culpability by reason of his mental health issues, that a lengthy sentence was required.
He had regard to the two “important guideposts” provided by Parliament in respect of sentences for murder – the maximum sentence of life imprisonment, and the standard non-parole period which was (relevantly, by reason of the identity of the victim) imprisonment for 25 years. He considered the Form 1 offences to be relatively minor, but to be factored into the ultimate sentence.
He rejected a submission that there existed special circumstances warranting a departure from the proportion between the non-parole period and the head sentence stated in s 44(2) of the Sentencing Procedure Act. The sentence imposed was therefore structured in accordance with those proportions.

The grounds of appeal

Seven proposed grounds of appeal were identified. They were:

“1.  The sentencing judge erred in his application of the principles relevant to the sentencing of mentally ill offenders to the facts and circumstances of this case.
2.  The victim was a police officer killed in the execution of his duty: the sentencing judge erred by double-counting this fact by taking it into account both:
(1)  As an aggravating factor in his assessment of the objective seriousness of the offence, and
(2)  As attracting the increased standard non-parole period provided in Crimes (Sentencing Procedure) Act 1999 Part 4, Division 1A, Item 1A.
3.  The sentencing judge erred in his application of Crimes (Sentencing Procedure) Act 1999 s.22.
4.  The sentencing judge erred in failing to give any, or any sufficient, weight to the evidence of the applicant’s remorse.
5.  The sentencing judge erred by failing to find special circumstances.
6.  The sentence was manifestly excessive.
7.  The applicant has a justifiable sense of grievance at the marked disparity between the sentence imposed on him and the sentence imposed on his mother.”

Ground 1: the applicant’s mental illness

Put shortly, that an offender suffers from a mental illness may be taken into account (in his/her favour) in any or all of three ways. It may be seen (where it is shown to be causally related to the commission of the offence) to reduce the moral culpability of the offender; it may indicate that the offender is an unsuitable vehicle for the application of the principle of general deterrence; and it may mean that a prison sentence will “weigh more heavily” on that offender than it would on others. These are well established principles and were spelled out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. (In truth, the first and second of these state essentially the same proposition: see the analysis by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [254]. The reason that general deterrence is accorded less weight is because the mental disorder reduces the offender’s moral culpability. This, no doubt, was what the sentencing judge had in mind in [141] of the Remarks when he moved from his assessment of the applicant’s moral culpability to the weight to be given to general deterrence.)
Conversely, by reason of a mental illness, an offender may present more of a danger to the community, which may, accordingly, call for greater emphasis on the principle of special deterrence.
Of course, much depends upon the nature and extent of the mental illness. Of particular importance in this case in relation to the assessment of moral culpability is the causal relationship (if any) of the applicant’s mental disorder to the offending. Also of importance in this case is the likely progress in the future of the applicant’s mental illness. It is therefore necessary to examine in more detail the psychiatric evidence.
As mentioned above, Dr Diamond analysed a vast amount of information that cast light on the origin and cause of the applicant’s delusional disorder.
School friends of the applicant, and others, provided statements in which they spoke of parties at the Barbieri household in which Fiona Barbieri smoked cannabis and drank alcohol with the applicant’s friends, while they were still at school. Fiona Barbieri spoke to them about Satan, about “the CIA”, “the Mob”, about God, and the end of the world. On one occasion she accused a friend of the applicant of arranging for a group of youths to come to the property and kill her and the applicant. A few weeks later Fiona Barbieri and the applicant drove to the friend’s house and “ceremonially drove a large knife into a tree in his front yard”.
Among the material with which Dr Diamond was provided was a large volume of documentary material seized from the Barbieri house after the murder. This included notebooks, diaries and other handwritten notes and material. There were letters written to various world figures (for example, the Pope), federal and state politicians, television presenters, and the President of Russia, Vladimir Putin. Dr Diamond described the themes emerging from the material as revealing:

“… a complex delusional belief system alleging corruption, persecution and perceived grievances of a wide ranging nature.”

The material also shows the adoption by the applicant of Fiona Barbieri’s developing delusions. Statements by Fiona Barbieri’s parents indicate that her condition was becoming apparent as early as 2010, and thereafter deteriorated.
One acquaintance of the applicant and Fiona Barbieri made the following observation:

“I noticed Fiona was extremely overprotective of [the applicant] to the point of it being weird. There was a sexual undertone to their relationship. It was a passionate relationship. Fiona would comment loudly that she had achieved all this on her own and she didn’t need a man and that she was the breadwinner in the family.”

In his second report, concerning the applicant, Dr Diamond recorded from the history he took:

“Mr Barbieri said that gradually he and his mother ended up living in squalor … He said this continued for in excess of 12 months before the incident on 6 December 2012. They had run out of funds … He said they were told by social security that they were not eligible for Centrelink benefits because they owned too many assets …
By January 2011 their electricity was disconnected … He said he was a kid and yet he was the man of the house. He acknowledged that he became socially isolated and increasingly dependent upon his mother during that period.”

The accounts of friends and acquaintances consistently described Fiona Barbieri’s abnormal behaviour. Dr Diamond observed, of the description of the author of one statement:

“It is clear from his description that both [Fiona Barbieri] and [the applicant] shared the same belief systems.”

Dr Diamond also reviewed medical reports that showed Fiona Barbieri’s deteriorating condition had been variously assessed by mental health professionals. Bi-polar disorder and adjustment disorder were among the diagnoses or suggested diagnoses.
He viewed the video footage of the recorded conversation of police with the applicant, after his arrest, of which he said:

“The demeanour of [the applicant] throughout the interview is subdued and respectful. He shows appropriate respect and engagement with the interviewers. He confirms factual information about his origin. When explaining his position, he expresses the longstanding delusional belief system that he and his mother are persecuted by local authorities, that they are seeking political asylum and that the Russian consulate office is aware of their predicament. He conveys the impression that he expects the Russian consulate office to respond to his requests. In addition to this, he makes the point that the incident in their home constituted an ambush by police.
He makes no reference at all to his involvement in the killing of Inspector Anderson. He shows no indication of emotional response to that fact. His communication and demeanour is consistent with a firmly held belief that he and his mother were under attack. His demeanour throughout the interview is consistent. He appears earnest, subdued, convinced of his understanding of events and importantly, not reacting to the seriousness of what had occurred earlier that day when he was observed to stab and kill an inspector of Police.”

Dr Diamond then reviewed correspondence between the applicant and Fiona Barbieri after their arrest, between December 2012 and March 2013 when they were in custody. He said the correspondence disclosed:

“… repeated evidence of a shared delusional system.”

Dr Diamond concluded:

“[The applicant] remains an immature adolescent. Although he is now 20 years old [he was in fact 19 years old], his developmental experiences have been a dyad with a powerful, charismatic and psychotic mother who has asserted her belief system energetically and who has incorporated him into her perception of life. He has assumed the role as her chosen accomplice, her protector, whilst at the same time being intensely dependent upon her. It has placed him in the position where he has experienced undue influence throughout his early and middle adolescent years resulting in him losing contact effectively with all moderating influences that might have assisted him to maintain some insight into his mother’s worsening psychosis.
Over time, they developed an intense interdependency with reliance on one another for differing reasons. They existed in an isolated, compromised state emotionally, materially and ultimately as a pair who believed they were both being persecuted in an elaborate global manner. Over time, [the applicant] lost any insight that he may have had and now suffers the effects of unchallenged beliefs to the point where they are now delusional. Delusional beliefs by definition mean that an individual is impervious to reason or fact that may dispel those beliefs.”

Dr Diamond examined the applicant at the Lithgow Correctional Centre on 6 October 2014 – almost two years after the offences. He also reviewed records of Justice Health, charting the applicant’s progress since his incarceration (and, more importantly, his separation from Fiona Barbieri). He reported:

“The assessments by psychiatrists and other mental health workers are consistent. They identify his abnormal affect at the time of incarceration where he was overly polite, expressive of persecutory ideation and preoccupied with the conflict with his neighbour.
The extent of delusional material involving persecution as described in my report of 23 June 2013 was identified consistently in the absence of any mood disturbance or cognitive abnormality. The extent of the delusional state and the underlying abnormal belief system is clearly described in these notes.”

However, he recorded that by 8 February 2013 the Justice Health psychiatrist noted an absence of delusional beliefs, and that by 18 February 2013 the psychiatric assessment was that the applicant was psychiatrically free of persecutory ideation and delusional thoughts and beliefs. This occurred without treatment with any “psychoactive pharmaceuticals”; the applicant’s psychiatric illness resolved in the absence of “any formal pharmacotherapy or any other psychological treatments” (but on separation from Fiona Barbieri).
Dr Nielssen, who examined the applicant on 7 June 2013 and again on 17 October of that year, considered that the applicant would be able to raise a mental illness defence since, at the time of the offences, he was affected by a delusional disorder. He said:

“… I believe that the bizarre world view arising from his delusional belief deprived him of the appreciation that what he was doing was morally wrong, as from his deluded perspective he believed he and his mother were in danger and that he was acting in their defence. Moreover, the acutely aroused state induced by his frightening beliefs and anger at the perceived way he and his mother were being treated is likely to have deprived him of reasoning with any measure of sense or composure about the illogical nature of his beliefs or the likely consequence of his actions.”

Dr Nielssen also considered that the applicant would have been able to raise a defence of substantial impairment under s 23A of the Crimes Act.

Dr Westmore agreed that the applicant could have raised the defence of mental illness.
Of course, the fact that the applicant did plead guilty to the charge of murder means that those defences were never tested. However, the expressions of opinion by the psychiatrists is of considerable significance in the application of the principles relating to the effect of the applicant’s mental illness on sentence.
I have set out above what the sentencing judge said on this question. At [141] he stated, briefly but correctly, the relevant principles. At [142] he considered that the applicant’s moral culpability was reduced but “not to any substantial degree”. He gave two reasons for this, both drawn from the submissions that had been made to him by the Crown prosecutor. The first reason was that that condition was “secondary to that of his mother”; the second that “he seems to have overcome it with the enforced separation from” Fiona Barbieri.
In placing weight on the fact that the applicant’s condition was secondary to that of Fiona Barbieri, his Honour was adopting the submissions put on behalf of the DPP, in the context of explaining (although it was not obliged to provide an explanation) his refusal to accept the applicant’s proffered plea of guilty to manslaughter on the basis of substantial impairment. One reason given by the Crown prosecutor for that was that the applicant’s mental condition was “a derivative one rather than an organic illness of the kind that Fiona Barbieri suffered from”.
It is difficult to discern any proper basis for differentiating, in the assessment of moral culpability, between causes of mental illness (with a possible exception where the mental illness is self-inflicted by reason of, for example, drug or alcohol use, a question on which I express no opinion). What is in question is the mental state of the offender at the time of the offending. That, in this case, the applicant’s undoubted mental illness was, to use the Crown prosecutor’s language, “derivative”, or that of the sentencing judge, “secondary”, can have no bearing on the extent to which it was relevant to the assessment of moral culpability. Similarly, the fact that, within a relatively short time of separation from Fiona Barbieri, the applicant recovered from the delusional condition and discarded his delusional beliefs says nothing of their existence at the time of the offences.
In my opinion it was an error to take into account, on the question of mental illness, these two considerations. The evidence I have set out at some length above demonstrates the extent to which the applicant’s involvement with Fiona Barbieri and her dominance over him impacted on his mental condition. It was wrong to conclude that the applicant’s moral culpability was less than would otherwise be the case “but not to any substantial degree” because the condition was “secondary” and because the applicant had recovered. Indeed, the evidence of recovery pointed to more favourable treatment, because it minimised the need for the sentence to take into account specific deterrence. It was wrong to fail to reduce the weight given to general deterrence.
His conduct after arrest, in seeking political asylum in Russia, graphically illustrates the extent to which the applicant was labouring under delusional beliefs at the relevant time.
General deterrence can be seen to have been given prominence in the sentencing decision. That emerges from the (perfectly proper) emphasis given by the sentencing judge to the authorities concerning attacks on police officers, and the need for the community (through the courts) to recognise the valuable and necessary work police officers do. However, the importance of deterring attacks on police officers does not, and cannot, make suitable as a vehicle for general deterrence, an offender who is otherwise, and plainly, an unsuitable vehicle.
As I have mentioned above, an important aspect of the consideration of the weight that ought, in sentencing, be given to mental illness is the extent to which the mental illness had a causal relationship to the offence. That was never debated in the sentencing proceedings, and was not the subject of any express finding of fact. No doubt that is because there can be no dispute that the applicant’s delusional disorder, a product of Fiona Barbieri’s psychiatric disorder, was the direct (and probably the only) cause of the applicant’s conduct on 6 December 2012.
In my opinion error has been disclosed in the approach taken by the sentencing judge to the question of the applicant’s undoubted mental illness.
I would uphold this ground of appeal. The consequence of that conclusion is that it will be necessary that this Court proceed to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The further consequence is that the remaining grounds can be dealt with with relative brevity. The submissions made in this appeal are, obviously, material to the re-sentencing exercise.

Ground 2: double counting

The complaint made under Ground 2 is that the sentencing judge took into account, both on the question of the objective gravity of the offence, and in the imposition of the non-parole period, the fact that the victim was a police officer acting in the execution of his duty.
The simple answer to this ground is that that is precisely what the Sentencing Procedure Act requires. Section 21A(2)(a) requires that a sentencing court take into account, as an aggravating factor, that the victim of the offence was a police officer. This applies to the head sentence as well as to the non-parole period.
By Pt 4 Div 1A of the same statute, a standard non-parole period of 25 years is fixed for the offence of murder, where the victim of the offence was a police officer. The court is obliged to take into account, as a relevant “sentencing guidepost” the standard non-parole period: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
There is no substance in this ground. I would reject it.

Ground 3: Sentencing Procedure Act, s 22

It is because of this ground of appeal that I have set out above the circumstances in which the applicant entered a plea of guilty to the charge of murder.
Section 22(1) of the Sentencing Procedure Act provides as follows:

“(1)  In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a)  the fact that the offender has pleaded guilty, and
(b)  when the offender pleaded guilty or indicated an intention to plead guilty, and
(c)  the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.”

The applicant contends that, pursuant to s 22(1)(c), the circumstances set out above in which he entered the plea of guilty are relevant and ought to have been taken into account in mitigation of sentence.
Pursuant to s 37 of the Sentencing Procedure Act, a guideline judgment with respect to the application of s 22 was given in 2000: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. The following guideline was promulgated:

“(i) a sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant – contrition, witness vulnerability and utilitarian value – but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.

(iii) the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) …”

The importance of the timing of the plea was re-emphasised in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102.
The sentencing judge dealt with the question in one paragraph, as follows:

“128 Mitchell Barbieri entered his plea of guilty on the day his trial was due to commence. It was submitted that this was ‘the effective earliest practical opportunity’. However, what is required is an objective assessment of the utilitarian value of the plea. Three eye-witnesses were required to be cross-examined during committal proceedings and the two ambulance officers were cross-examined at the sentence hearing. The lateness of the plea and the slight dilution of the utilitarian benefit leads me to conclude that the reduction of sentence on account of the plea should be about 10 per cent.”

No mention of s 22(1)(c) was made in the Remarks and there appears to have been no consideration given to it in the sentencing submissions. In this application, counsel agreed that they had been unable to locate any decisions of this Court considering s 22(1)(c).
Briefly, to recapitulate the facts, the applicant was placed in a uniquely difficult position. He had available to him substantial psychiatric evidence, on which to base a plea of not guilty to murder, and to proffer a plea of guilty to manslaughter, on the basis of substantial impairment, a plea which he did in fact proffer, but which was refused. There can be no challenge to that prosecutorial decision.
Had the applicant gone to trial on that basis, and failed to persuade the jury of all the components of the defence of substantial impairment, he ran the risk of being subject to the mandatory life sentence provided by s 19B(1). That is because he had no way of knowing (nor did his legal advisers) whether the failure of the defence might be equated to failure to establish that he had a cognitive impairment. (The sentencing judge expressed the view, in sentencing, that the onus lies on the prosecution under s 19B(3) to disprove all components. But that indication came long after the applicant had made his decision, and is, in any event, obiter.)
At the time he entered his plea of guilty to murder, the applicant was faced with an extraordinarily difficult decision.
It should here be emphasised that, notwithstanding what I have said concerning the circumstances in which the applicant entered a plea of guilty to murder, it remains the case that he is to be sentenced for that crime; there should be no speculation that he may have been convicted of the lesser offence. However, s 22 is, in my opinion, susceptible of a less rigid interpretation than may appear to be derived from decisions such as Thomson and Houlton and Borkowski. The simple fact is that the reach of s 22(1)(c) has never been explored in this Court.
It may be accepted that the utilitarian value of the plea was limited, in part because of the time at which it was entered, and in part because of the requirement that two paramedics be available for cross-examination. It may be assumed that, until the day the trial was due to commence, when the applicant entered the plea, a large number of police officers and others were prepared and available to attend and give evidence. It is also relevant that the experience of giving evidence would have been likely to be highly disturbing to those police officers who were witnesses to the events and had been colleagues of Inspector Anderson, and that they were, but only at the last minute, saved from that trauma.
The evidence does not disclose when the Crown prosecutor indicated his willingness to make the concession concerning s 19B(3) – that is, that the applicant did suffer from a cognitive impairment. That, I have no doubt, was determinative in the applicant’s decision to plead guilty.
In these circumstances, I have come to the view that the reduction in sentence ought to have been greater than 10 per cent. I would suggest that an appropriate reduction was 15 per cent of the sentence that otherwise would be imposed.

Ground 4: remorse

Section 21A(3) of the Sentencing Procedure Act prescribes mitigating factors that a court is obliged to take into account in sentencing. Paragraph (i) identifies as one such mitigating factor:

“(i)  the remorse shown by the offender for the offence, but only if:
(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”

There was evidence of remorse before the sentencing judge. In May 2013 the applicant wrote a letter to members of Inspector Anderson’s family. It contained the following:

“Firstly, I want to offer you my condolences and my heartfelt apologies for this devistating [sic] and regretable [sic] tragedy. I truly wish that I could undo the hurt that this has caused you all and somehow reverse the terrible situation which took Mr Anderson from you. Ever since that horrible day I have wanted to write and express my sorrow, regret and sadness over what happened, but I have been trying to wait for the right time in the hope that your hurts and pain (indecipherable) heals. After 6 months has gone by, I have realised that there may never be a right time to apologise for what happened but I feel that it is the very least that I can and should do and that I owe you all. I am truly so very deeply sorry and I hope and pray that you find happiness and comfort … I regret and think about the heartache this tragedy would have caused you all every day and night (indecipherable). It breaks my heart to know that Mr Anderson has left behind his children. I truly would do anything to bring their Dad back if I could … I could not ever expect that you would be able to forgive me for this tragedy but I truly want you all to know how deeply and terribly sorry I am for what happened and for your loss.”

Both Dr Nielssen and Dr Westmore recorded expressions of remorse by the applicant. The applicant told Dr Nielssen:

“… in a place like this [gaol] you try not to show emotion … I wonder how on earth something like this has happened … I get recurring dreams of it and I keep reliving it … it breaks my heart.”

He said similar things to Dr Westmore, telling the doctor he was:

“heartbroken, mate, I’m still in shock. I wake up every morning hoping it’s a dream and I’m not here. (I acted) in that split second. I thought I was protecting my family and I’ve taken somebody away from theirs. I am confused and full of sorrow.”

Notwithstanding this evidence, the sentencing judge was not prepared to accept that the applicant was genuinely remorseful. He said:

“125  The letter Mr Barbieri wrote in mid-2013 conveys his apology and regret for the harm caused. But it does not convey any credible acceptance of responsibility. Indeed, it includes ‘I never wished for anybody to get hurt’; whereas he now admits by his plea that he intended to inflict really serious bodily harm upon Inspector Anderson. Perhaps he meant by that claim that he did not have such an intention in advance of the events. But in the absence of him giving evidence to explain himself I am not prepared to divine some benevolent interpretation for him.
126  It was submitted that the plea of guilty was the ‘most powerful of objective indicators of remorse’. But the plea was only forthcoming after the Crown indicated that it would be conceding that the mandatory life sentence provision did not apply. This does not support a finding of remorse.
127  In the end, I am not persuaded that Mr Barbieri has accepted responsibility for his actions. As in the case of his mother, I am prepared to accept that he might now regret what happened and is probably sorry for the harm that was caused on 6 December 2012 but I am not persuaded that he is genuinely remorseful.”

It was plainly the first sub-par of s 21A(3)(i) that the sentencing judge had in mind when he referred, on two occasions, to “acceptance of responsibility”, and, in [127] declared himself unpersuaded that the applicant had accepted responsibility for his actions.
With respect, I find it difficult to accept the characterisation placed by the sentencing judge upon the applicant’s letter to the Anderson family, amplified as it was by his statements to Dr Nielssen and Dr Westmore.
The difficulty is that the finding by the sentencing judge was a finding of fact, which is ordinarily not reviewable in this Court: AB v R [2014] NSWCCA 339.
Since, in any event, I have concluded that there was error in the sentencing process, and, as a consequence, it will be necessary to proceed to re-exercise the sentencing discretion, it is unnecessary to resolve this ground.

Ground 5: special circumstances

By s 44(2) of the Sentencing Procedure Act, the non-parole period of a sentence must be not less than three-quarters of the total sentence, unless the court decides that there are special circumstances for variation from that proportion. It was put to the sentencing judge that there were such special circumstances; these were identified as:

the youth of the applicant;

“the influence of his mental condition on his perceptions”;

the “isolated and somewhat bizarre circumstances of his relationship with” Fiona Barbieri;

the delusional disorder he suffered;

lack of specific intent and premeditation;

prospects for rehabilitation; and

the absence of prior criminal history.

The sentencing judge disposed of this briefly, saying that features identified by senior counsel for the applicant were all matters taken into account in the assessment of the overall sentence; to take them into account also with respect to variation of the proportion of the non-parole period to the head sentence would, in effect, amount to double counting.
In R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, Spigelman CJ said:

“67  Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence.
…
69  … the case law does not justify a restrictive approach to the scope of considerations relevant to the determination by a court of what constitutes special circumstances in a particular case.
…
73  … It will be a very rare case in which there is no fact capable as a matter of law, of constituting a ‘special circumstance’. The decision is first one of fact – to identify the circumstances – and, secondly, one of judgment – to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.”

A decision to vary the statutory proportions of a sentence is a discretionary one, reviewable on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40.
Although others might have reached a different view to that taken by the sentencing judge, I do not detect error of the kind that would justify interference in that discretionary judgment. In any event, as with the previous grounds, as it is necessary that this Court proceed to re-sentence, it is unnecessary to reach a final conclusion. This Court is not bound by that conclusion. Indeed, it is obliged to exercise its own independent discretion.

Ground 6: manifest excess?

Since, on the view to which I have come, it will be necessary to re-exercise the sentencing discretion, it is unnecessary to decide this ground of appeal.

Ground 7: parity

This case raises a somewhat unusual ground concerning parity of sentencing. The disparity in these sentences is stark. Although the applicant and Fiona Barbieri were co-offenders in a very real sense, they stood for sentence on very different bases. That was because of the DPP’s acceptance of Fiona Barbieri’s offer to plead guilty to manslaughter but rejection of the same offer made by the applicant. Accordingly, while Fiona Barbieri stood to be sentenced for manslaughter, with a maximum penalty of imprisonment for 25 years (and no standard non-parole period) the applicant stood to be sentenced for an offence for which the maximum sentence was life imprisonment, and which carried a standard non-parole period of 25 years.
That does not render issues of parity irrelevant, but it does add a level of complexity to the application. Relevant to the consideration are the factors, both aggravating and mitigating, appertaining to the offence committed by the applicant. These have been fully reviewed above and need not be restated.
It is apparent that the sentencing judge attributed far greater weight to Fiona Barbieri’s mental illness than he did to that of the applicant. He, in effect, rejected a submission on behalf of the DPP that:

“… in a moral sense, Ms Barbieri was more blameworthy for the death of Inspector Anderson than her son.”

He rejected that submission specifically because of Fiona Barbieri’s mental illness. He said:

“86 … But one simply cannot ignore the fact that she was largely driven by her delusional thought processes, for example, that she thought she was being persecuted and that all police were corrupt.”

Why that should be true of Fiona Barbieri and not of the applicant who, all the evidence showed, shared her “delusional thought processes”, is not clear to me.
It may be that the different treatment of the mental illness of the two offenders came about because of what I have held to be the mistaken view that the significance of the applicant’s mental illness was diminished by reason of its “derivative” or “secondary” nature. Whatever the explanation, it was, in my opinion, erroneous to treat Fiona Barbieri’s mental illness as carrying substantially more weight than that of the applicant. I can see no justification for the extent of the disparity.
In my opinion, this ground has also been made out.

Re-sentencing

Against the possibility of re-sentencing, this Court received additional evidence “on the usual basis” as explained in Betts v The Queen (2016) 332 ALR 185; [2016] HCA 25.
The material that was admitted was a lengthy psychological report dated 12 May 2016 by Dr Katie Seidler concerning an assessment of the applicant conducted on 5 May 2016; a psychiatric report by Dr Richard Furst (dated 17 May 2016, concerning an assessment undertaken on 30 March 2016), an affidavit of the applicant’s father, Angelo Barbieri affirmed on 19 May 2016, and an affidavit of the applicant affirmed on 30 April 2016.
There was no attempt on behalf of the applicant to transgress the rule stated in Betts, to the effect that an applicant for leave to appeal against sentence is not permitted to present, or attempt to present, a case different to that presented at first instance. What the material did, and did in my opinion convincingly, was to reinforce what had been put before the sentencing judge, and bring it up to date (the applicant having been sentenced 18 months earlier). Specifically, the evidence related to two aspects of sentencing: the applicant’s recovery from mental illness, his current freedom from any delusional disorder, and his remorse for his actions.
As to the former, Dr Seidler described the applicant as (currently) “a reasonably well adjusted and stable individual, who is resilient and adaptive and not suffering with notable symptoms of mental health concerns”. As to the latter, both Dr Seidler and Dr Furst recorded expressions by the applicant of remorse, in similar language, and language reflective of that he had earlier used; the applicant’s father and the applicant himself gave evidence to like effect.
It is of some interest that, following receipt of the reports of Drs Seidler and Furst, the DPP appears to have been sceptical about the opinions expressed therein, and asked for further clarification of the expertise of the authors to express those opinions; he expressly reserved the right to have either (or both) called for cross-examination – a right which, after clarification was provided, he did not ultimately seek to exercise.
The starting point in the re-sentencing exercise is the recognition of the gravity of an offence that involves the murder of a police officer acting in the execution of his duty. Not only is that a principle that needs no elaboration, it is reinforced by the statutory provisions already mentioned. Parliament has made it perfectly clear that the murder of a police officer in the execution of his or her duty is to be treated as a matter of extreme gravity and that offenders are to be sentenced accordingly. I have not lost sight of that fundamental circumstance.
There are, however, other relevant circumstances of which account must also be taken.
In my opinion, the most significant of these are the applicant’s youth and his mental illness. He was 19 years of age at the time of the offence. The circumstances of his life were such that he had not had the opportunity to develop even the maturity that might be expected of an average 19 year old. He lived alone on a rural property with a mentally ill mother whose delusions he came to share.
Even more important than his youth is the applicant’s own mental illness which was plainly severe. His mental illness diminished his moral culpability to a very significant degree. It therefore reduced to a very significant degree the emphasis that ought to be placed upon general deterrence. It makes no difference that the mental illness was “secondary” or “derivative”. It was, as I have suggested, severe, and it was directly causally related to the offence. Moreover, the applicant’s recovery means (as the sentencing judge found) that personal deterrence was of minor importance.
The evidence persuades me that the applicant is genuinely remorseful, that he has accepted responsibility for his conduct, and that this indicates that he is unlikely to re-offend.
As indicated above, in my opinion, in the unusual circumstances of this case, the sentence that would otherwise be imposed ought, by reason of the plea of guilty, and the circumstances in which it was entered, be reduced by about 15 per cent.
I am also of the view that there are special circumstances justifying reduction of the non-parole period and extension of the parole period. One reason is that, on any view, the applicant will serve a lengthy prison term; an extended period on parole will assist him to adjust to normal life at a time when he will have been out of mainstream community living for many years. Perhaps more significantly, while it is necessary that the head sentence reflect the condemnation of the community for the murder of a police officer, it is also important that the non-parole period stand as the minimum period that the applicant ought to spend in custody.
I take into account the maximum penalty (life imprisonment) and the standard non-parole period of 25 years, against both of which the sentence to be imposed must be measured.
I have concluded that the starting point of the sentence (before reduction for the plea of guilty) ought to be a sentence of 25 years. I would reduce that by 15 per cent, to 21 years and 3 months. A non-parole period in accordance with the s 44 proportions would be 16 years. By reason of my finding of special circumstances, I would vary that to 15 years.

Accordingly, the orders I propose are:

(1) Leave to appeal against sentence granted;

(2) Appeal allowed;

(3) Sentence imposed at first instance quashed;

(4) In lieu thereof, the applicant be sentenced to a non-parole period of 15 years, commencing on 6 December 2012, expiring on 5 December 2027, with a balance of term of 6 years and 3 months which will expire on 5 March 2034.

PRICE J: I have read in draft the judgment of Simpson JA with which I understand McCallum J agrees. I regret that I am unable to concur with all of their Honour’s views but do agree that there was error in the sentencing process and, as a consequence, it is necessary for this Court to re-sentence the applicant. However, I disagree with the sentence proposed by Simpson JA.
Undoubtedly, this appeal raises difficult questions of judgment in imposing a sentence for the offence of murder by an offender who was suffering from a mental illness at the time of the commission of the offence.
The relevant facts and issues in this appeal are comprehensively covered in Simpson JA’s judgment and I gratefully adopt them. Accordingly, I will proceed immediately to my points of departure from Simpson JA, who has expressly concluded that Grounds 1 and 7 of the appeal have been made out. In considering Ground 3, her Honour has come to the view that an appropriate reduction for the plea of guilty should have been 15 per cent and, in re-sentencing the applicant, her Honour has found remorse and special circumstances in contradistinction to the findings of the sentencing judge.

Ground 1: The sentencing judge erred in his application of the principles relevant to the sentencing of mentally ill offenders to the facts and circumstances of this case

When considering Ground 1, I note that at [75] of her Honour’s judgment, Simpson JA expresses the view that it was wrong for the sentencing judge to conclude “that the applicant’s moral culpability was less than would otherwise be the case “but not to any substantial degree” because the condition was “secondary” and because the applicant had recovered.”
If I may with respect say so, I do not think that is what the sentencing judge determined. His Honour said (Remarks [142]):

“I am prepared to accept that Mr Barbieri's moral culpability is less than it otherwise would be on account of his mental condition but not to any substantial degree. Because the nature of his condition was one that was secondary to that of his mother and he seems to have overcome it with the enforced separation from her, I cannot see any need to lessen the weight I give to general deterrence which is such an important feature of sentencing in a case like this. Personal deterrence is not a matter that looms large. Finally, there is no evidence that a custodial sentence will weigh more heavily upon him. I will, however, take into account that he did endure a period of restrictive custody on protection in the early stage of his period on remand.” [Emphasis added.]

In my opinion, his Honour’s assessment of moral culpability was neither founded upon the nature of the applicant’s condition being secondary to that of his mother nor his apparent recovery. These were his Honour’s reasons for concluding that no lesser weight should be given to general deterrence.
It is trite to observe that in the sentencing process, an assessment of the moral culpability of an offender for a crime gives rise to different considerations regarding the question of the effect of the sentence upon others to deter them from committing similar offences.
Simpson JA at [56]-[70] summarises the opinions of Drs Diamond, Nielssen and Westmore. It is to be accepted that at the time of the commission of the offence that the applicant was suffering from a Delusional Disorder in the context of Folie à Deux.
An authoritative summary of the principles that courts are obliged to apply when sentencing an offender suffering from a mental illness is found in De La Rosa at [177]-[178], per McClellan CJ at CL. The sentencing judge was mindful of these principles (summarised at Remarks [141]). The first and second principles of De La Rosa are (at [177]):

“Where the state of a person’s mental health contributes to the commission of the offence in a material way; the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]).
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50–51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]).” [Formatting omitted.]

On the issue of moral culpability, in R v Israil [2002] NSWCCA 255, Spigelman CJ said at [23]:

“To the extent that mental illness explains the offence… then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.”

An assessment of whether a person’s mental health contributes to the commission of an offence and the extent of that contribution is a discretionary decision to be made by a sentencing judge in the light of the particular facts and circumstances of the case. Such a decision is only reviewable by this Court in accordance with the principles of House at 505; Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550 at [53].
In the present case, the sentencing judge found that at the time the applicant killed Inspector Anderson, there was a reasonable possibility that he had a significant cognitive impairment. His Honour considered that the applicant’s moral culpability was less than it otherwise would have been on account of his condition but not to any substantial degree. The facts found by his Honour included:

The applicant emerged from the door, lunged towards Inspector Anderson and delivered two blows in quick succession with a knife (Remarks [36]).

The applicant knew that Inspector Anderson was a police officer endeavouring to perform his duties (Remarks [149]).

At the time the applicant plunged the hunting knife deep into the officer’s chest causing virtually immediate death, he acted with an intention to kill him (Remarks [149]).

Whilst there was no premeditation, a violent response was something for which the applicant was prepared (Remarks [149]).

None of these findings of fact were challenged on appeal. His Honour noted that the applicant’s account to the psychiatrists of what had happened was at odds with overwhelming evidence to the contrary. His Honour said (Remarks [122]-[124]):

“122 Mitchell Barbieri's account of what happened is at odds with overwhelming evidence to the contrary. He told Dr Nielssen last year that police were coming through the back door and he intended "to push the person out and I picked up the knife ... it was an instant reflex ... a single push ... I don't know how there happened to be two wounds". He said, "I pushed the officer out the door and the other police came in and grabbed me with the knife in my hand and asked me to drop it".
123 He added to this account in what he told Dr Westmore in February this year. Dr Westmore wrote:
"He said he then heard a 'massive bang on the outside of the house'. He said he grabbed 'something' at that particular point and he turned and saw someone had come into the house. He said 'all I could see was dark clothing but, in hindsight, it was (a police officer)'. He acknowledged that the man who entered his mother's house had been wearing a police uniform, but he stated he only realised that later.
He continued and said 'all I could see was this firearm'. He said he ran towards the man, who had entered his mother's house and he tried to push him out the door. He said he then stopped pushing the man and the man stumbled backwards. Mr Barbieri said he could see at that particular time that the man was a police officer and that he appeared to be 'hurt'. Mr Barbieri said he then took a few steps back into the house and he 'froze' and he saw that he was holding a knife.
Following the incident, he said other police gained entry into the house and he and his mother were arrested."

124 In October 2014 he told Dr Diamond that after some conversation with the officers at the front of the house he thought that the police had left. Some 30 minutes or more later, when he was in the hallway, half way between the front and back doors, he heard a "big bang that shook the house". This was "completely out of the blue"; "he had not expected police to return because there was no ongoing problem". Dr Diamond reported:
"His next recall was that he says he saw a man in dark clothing with an unholstered firearm in his hand. He could see the firearm from the light where the door was breached. He said he didn't hear the man say anything. He said it happened so fast. He said all he could remember was trying to throw this man out of his house. I asked him why he thought it was necessary to do that. He said it was because he saw a man with a firearm pointed at him. He said it was instinct. He said he was scared and he panicked.
I asked him why he had a knife in his hand. He indicated that he was not aware of holding the knife in his hand. ...
He said he lunged at the man and there was a brief struggle for only a second. He implied that he was unaware that he had the knife in his hand at the time. He said he realised then that the man was a police officer. He said he looked down and he was shocked to realise he was holding the knife. He said he froze.
He said two police ran in and took hold of him and dragged him out of the house."”

It is evident that the psychiatrists’ assessments of the applicant’s mental illness were in part founded upon information from the applicant which was untrue. Dr Diamond recognised that the applicant’s account had the ability to impact upon the extent that his mental illness explained the offence. In a report dated 15 October 2014, Dr Diamond said (p 15-16):

“His description of the actual events that took place at the time of the alleged act including the manner in which the victim entered the premises, the description of the victim pointing a handgun at him and the presence of the victim within the house, may be significantly different from the descriptions given by other witnesses in their statements.
In my opinion, these are all relevant issues of fact or evidence. I recognise that it is not my role to adduce such evidence or to form a judgment as to accuracy of the descriptions and statements given by the Accused and by other witnesses. The establishment of evidence however to confirm or refute the descriptions of Mr Barbieri would be of significance in forming a view to understand and/or explain his actions in the light of the existing mental illness that clearly was evident at the time of carrying out the alleged act.
…
There remains an unanswered question about the extent of the perceived threat exacerbated by police breaking into his home and the need to defend that by potentially lethal action.
There is a critical issue about whether or not the victim had actually entered the premises and was being forcibly thrown out or whether the victim at all times remained outside of the premises and was attacked before he could enter and/or threaten Mr Barbieri directly. The question of the decision-making about brandishing a knife at all or about placing a knife potentially in readiness to deal with intruders, has not been addressed sufficiently, as far as I am aware.” [Emphasis added.]

Regrettably, these issues were not examined during the proceedings on sentence by the psychiatrists being called to give evidence. In my view, they should have been. Nor did the applicant give evidence supporting his accounts to the psychiatrists. These matters go to the weight to be given to the psychiatrists’ opinions: R v Wright (1997) 93 A Crim R 48 (“Wright”) at 52; R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40].
The facts found by the sentencing judge included events before the police arrived. In respect of the two offences of assault on the Form 1, his Honour said (Remarks [18]):

“Mr Yard returned some time later with Keith West, a man who worked for Mr Waters. Fiona and Mitchell Barbieri had gone away but also returned to the area. Ms Barbieri was holding a small baseball bat and was swinging it. They both continued to demand that Mr Yard leave. Mitchell Barbieri was holding a compound bow and he fired two arrows, one in the general direction of Mr Yard and Mr West and, a short time later, the other in the general direction of Mr Waters and his son, Kurt. In firing these arrows he intended to cause the men to fear immediate and unlawful violence. These actions comprise the two offences of assault that Mitchell Barbieri asks to be taken into account.”

In referring to these events, Dr Diamond said in his report dated 15 October 2014 (p 15):

“From the information provided at interview by Mr Barbieri, I was informed of his account of his actions and the decision-making that took place in the heat of the confrontation with the Waters group and in the context of the existing mental illness that was clearly present in Mr Barbieri at that time. Despite the presence of the decision-making that accompanied his purposeful aiming and releasing of two arrows in such a way as to avoid causing injury or harm. His specific description was one of considered action, relying on his ability to be an accurate shot and to place the arrows close to, but away from, Mr Waters, and not cause injury. Such reasoning demonstrates evidence of a presence of mind that supported considered restraint in the context of a heated exchange. Such consideration confirms awareness of differentiation of right from wrong at the time in circumstances where he was under direct threat and suffering from the same psychiatric illness.
Recognition that the goading and taunting from the Waters group was aimed at eliciting an ill-considered reaction on his part also demonstrates the capacity to consider options and to think things through. The ability to accept the advice of his mother that withdrawal from the conflict was wise is a further demonstration of the ability to exercise considered judgment in difficult circumstances.” [Emphasis added.]

In the facts and circumstances of the case, it was open to the sentencing judge to conclude that the applicant knew what he was doing at the time of the stabbing and that he was aware of the wrongfulness of his actions but nevertheless proceeded with an intention to kill Inspector Anderson. Whilst some reduction in the applicant’s moral culpability was required because of his mental illness, his Honour was not obliged to find that the applicant’s moral culpability was lessened to a substantial degree. There was no error.
However, I agree with Simpson JA to the limited extent that the sentencing judge erred in determining that there was no need to lessen the weight given to general deterrence because the applicant’s condition was “secondary” and because he seemed to have recovered. Mental illness, whether temporary or permanent, is relevant to the assessment of the need for general deterrence: R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at 276 [32]; Devaney v R [2012] NSWCCA 285 at [81]. Although the nature and severity of the mental illness is of importance, I am unable to understand how recovery after the offence could impact upon this question. In my respectful opinion, the weight given to general deterrence should have been lessened but in the facts and circumstances of this case, not to a significant extent. As was said in Wright by Hunt CJ at CL at 50-51:

“… Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.” [Emphasis added.] [Footnotes omitted.]

For this reason, I agree that Ground 1 of the appeal has been established.

Ground 3: The sentencing judge erred in his application of Crimes (Sentencing Procedure) Act 1999 s.22

I do not agree with Simpson JA’s conclusion that the discount for the applicant’s plea of guilty ought to have been greater than 10 per cent. Her Honour founds her opinion on what is said to be a less rigid interpretation of s 22(1) of the Sentencing Procedure Act (see [95] above). I am uncertain whether the reach of s 22(1)(c) has been expressly explored. However, there have been cases where the circumstances in which an offender indicated an intention to plead guilty have been the principal factor upon which the discount has been increased on appeal to this Court.
In Atkinson v R [2014] NSWCCA 262, the applicant provided his solicitor with unequivocal instructions to enter pleas of guilty prior to his first appearance in the Local Court and had assumed that his instructions had been carried out. The pleas were, however, later entered in the District Court. In those circumstances, Adams J (Simpson J (as her Honour then was) and McCallum J agreeing) considered that the discount should be increased from 15 per cent to 25 per cent.
Another such case was Haines v R [2016] NSWCCA 90. When arraigned, the offender (who had a long history of mental illness) entered a plea of not guilty to murder on the basis of a defence of mental illness which was founded upon a psychiatrist’s report. Three months later, the same psychiatrist provided a further report to the offender’s legal representatives in which he concluded that the defence of mental illness was probably not available to the offender. The offender was re-arraigned and pleaded guilty to murder. A discount of 15 per cent was allowed for the plea. The Court (Ward JA; Price and Adamson JJ) held at [30]-[31] that the sentencing discretion had miscarried as the offender could not have pleaded guilty at an earlier stage, having regard to her long history of mental illness and the reliance that one would expect her to place on the assessment of the psychiatrist and her legal advisors in determining the availability of a defence of mental illness. The discount was increased to 25 per cent.
In Hawkins v R [2011] NSWCCA 153, the applicant (who suffered from schizophrenia or schizoaffective disorder) entered pleas of guilty in the Local Court, but not until after several months had elapsed, during which there were several adjournments. It later became necessary to present a fresh indictment in the District Court. The applicant again pleaded guilty and a 20 per cent discount was allowed. Hidden J (Allsop P and Hall J agreeing) attributed the delay in the entry of the pleas of guilty both in the Local Court and again in the District Court to the applicant’s mental illness, and increased the discount to 25 per cent.

In order to successfully challenge a sentencing judge’s assessment of the discount for a guilty plea, error of a kind in House must be demonstrated. His Honour’s reasons for a discount of about 10 per cent included the witnesses required for cross-examination during committal proceedings and at the sentencing hearing, and the late entry of the plea. All of these matters were properly taken into account in his Honour’s assessment, but it appears from Simpson JA’s judgment that her Honour is of the opinion that a greater allowance should have been made as the applicant was placed “in a uniquely difficult position” (see [92]-[93] above).
It is true that the applicant risked a mandatory life sentence if he had gone to trial. However, by accepting the concession offered by the DPP that he had a significant cognitive impairment, the applicant was no longer subject to the certainty of imprisonment for life if he was convicted of murder by a jury. The plea negotiations achieved a favourable outcome for him.
I do not understand why, in circumstances where the applicant’s plea has been to his advantage, he should be further rewarded by an increased discount. In my respectful opinion, s 22(1)(c) does not apply in these circumstances. There was no error by his Honour and Ground 3 should be rejected.

Ground 4: The sentencing judge erred in failing to give any, or any sufficient, weight to the evidence of the applicant’s remorse

The applicant’s complaint is that the sentencing judge erred in failing to give any, or any sufficient, weight to the evidence of the applicant’s remorse. The sentencing judge acknowledged that the applicant had, in a letter written in mid-2013, conveyed his regret for the harm caused and his Honour referred to the applicant’s statements to Drs Nielssen and Westmore which supported the proposition that the applicant was remorseful. His Honour went on to detail the applicant’s accounts to the psychiatrists of what happened, which were at odds with overwhelming evidence to the contrary: see [147] above. His Honour considered that in the applicant’s letter, there was not any credible acceptance of responsibility.
His Honour had in mind s 21A(3) of the Sentencing Procedure Act which was amended to provide that remorse may be taken into account “but only” if the offender has provided evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by his actions, or made reparation (or both).
His Honour observed that the applicant’s letter included the statement, “I never wished for anybody to get hurt”, but noted that in the absence of evidence from the applicant explaining what was meant by this he was “not prepared to divine some benevolent interpretation for him” (Remarks [125]). His Honour was not persuaded that the applicant was genuinely remorseful.
Whether an offender is genuinely remorseful is a question of fact which falls within a sentencing judge’s discretion: Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined: Majid v R [2010] NSWCCA 121.
His Honour was not obliged to find that the contents of the applicant’s letter and his expressions of remorse amounted to an acceptance of responsibility for his actions. Indeed, the applicant had not resiled from his account to the psychiatrists of how he came to stab Inspector Anderson. As a very experienced sentencing judge, his Honour was in a better position than this Court to assess the genuineness of the applicant’s remorse. His Honour had the opportunity of observing the sentencing proceedings unfold before him whereas this Court is confined to the written word. The findings made by his Honour were within the proper exercise of his discretion.
I do not detect error on his Honour’s part. I would dismiss Ground 4.

Ground 7: The applicant has a justifiable sense of grievance at the marked disparity between the sentence imposed on him and the sentence imposed on his mother

Following upon his plea of guilty to murder, the applicant was sentenced to imprisonment for 35 years with a non-parole period of 26 years. His Honour took into account the offences on the Form 1 (two assaults for discharging the arrows, resist arrest and possessing prohibited weapons being Molotov cocktails and a slingshot). His Honour considered these offences to be relatively minor (Remarks [151]).
Following upon her plea of guilty to manslaughter, Ms Barbieri was sentenced to imprisonment for 9 years with a non-parole period of 6 years 6 months.
The applicant contends that he has a justifiable sense of grievance at the great disparity in the sentences imposed, particularly where his mother was the ‘dominant’ person in their relationship and with the prosecution’s submission that she was the more ‘morally blameworthy’ of the two.
During the proceedings on sentence, the applicant was represented by experienced senior counsel. No argument was advanced on the applicant’s behalf that regard should be had to parity with the sentence to be imposed on Ms Barbieri. The sentencing remarks detailed his Honour’s reasons for the different sentences imposed upon the applicant and Ms Barbieri. It has been said that in such circumstances, an appellate court should be cautious before deciding that an applicant has a justifiable sense of grievance: Ayik v R [2013] NSWCCA 119 at [29]-[30].
However, that does not mean that the parity principle can be ignored. Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene: Postiglione v R (1997) 189 CLR 295; [1997] HCA 26. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50].The plurality (French CJ, Crennan, and Kiefel JJ) in Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 said at 474 [31]:

“… The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” [Footnotes omitted.]

There were significant matters of difference in the respective cases of the applicant and his mother. The offence of murder carries with it a maximum penalty of life imprisonment and a standard non-parole period of 25 years applies. The maximum penalty for manslaughter is 25 years and a standard non-parole period has not been prescribed.
The sentencing judge found that the applicant was the principal offender. He killed Inspector Anderson by stabbing him twice with a knife. At the time, he acted with the knowledge that Inspector Anderson was a police officer. The applicant intended to kill him.
The sentencing judge observed that Ms Barbieri was strident, aggressive and abusive in her attitude towards the police and it must have been obvious that her son shared her attitude. His Honour accepted Sergeant Fitzgibbon’s evidence that after her flyscreen backdoor was removed, Ms Barbieri called out to the applicant, “The cunts are coming in”, which was a signal to her son to put into action their plan to repel intruders with weapons in the house (Remarks [82]). His Honour said that Ms Barbieri took up a sledgehammer and sought to attack police officers, who were endeavouring to arrest the applicant.
His Honour found that Ms Barbieri was aware of the possible infliction of grievous bodily harm upon at least one of the police officers. It was upon this basis that she was sentenced for manslaughter.
His Honour concluded that Ms Barbieri’s mental illness was “more than just enough to establish the partial defence” of substantial impairment (Remarks [88]). It operated in further mitigation of penalty by reducing her moral culpability from the high level at which it would otherwise be. It also warranted moderation of the weight given to retribution, denunciation and deterrence (Remarks [88]).
Although his Honour was prepared to accept that the applicant’s moral culpability was less than it otherwise would be on account of his mental condition, it was not reduced to any substantial degree. His Honour did not see any need to lessen the weight given to general deterrence.
I do not share Simpson JA’s criticism of the sentencing judge’s attribution of “far greater weight to Fiona Barbieri’s mental illness than he did to that of the applicant”: see [115]-[117] above. The lesser role that the applicant’s mental illness played in the offending was recognised in the acceptance by the Crown of Ms Barbieri’s plea to manslaughter and the applicant’s plea to murder. As his Honour observed, Ms Barbieri’s mental illness reduced the part she had played in the killing of Inspector Anderson from murder to manslaughter. By his plea to murder, the applicant accepted that his mental illness was not so substantial so as to reduce murder to manslaughter. Dr Diamond, who was the only psychiatrist to interview both Ms Barbieri and the applicant, diagnosed Ms Barbieri with Chronic Paranoid Schizophrenia and the applicant with a Delusional Disorder arising in the context of Folie à Deux.
Notwithstanding these material differences, I do not consider that they justify the extent of the disparity in this case. The Crown did not appeal against the inadequacy of Ms Barbieri’s sentence. In my view, such a marked disparity gives rise to a justifiable sense of grievance and should be moderated to some degree.
I would allow Ground 7.
I agree with Simpson JA that Grounds 2 and 5 should be rejected and it is unnecessary to consider Ground 6.

Re-sentence

As I have found error in respect of Grounds 1 and 7, my function is to exercise the sentencing discretion afresh. The applicant does not have to establish that the sentence imposed by his Honour was manifestly excessive for the Court to exercise its discretion in his favour under s 6(3) of the Criminal Appeal Act 1912 (NSW).
The maximum penalty for the offence of murder is life imprisonment with a standard non-parole period of 25 years. These two legislative guideposts are to be borne in mind when the appropriate sentence is considered, having regard to the objective circumstances of the offence and the subjective features of the applicant. The applicant has also asked that the four offences listed on the Form 1 be taken into account.
As the sentencing judge found, the applicant emerged from the door of the house and lunged towards Inspector Anderson, delivering two blows in quick succession with a knife. He knew that Inspector Anderson was a police officer endeavouring to perform his duties. Whilst there was no premeditation, a violent response was something for which the applicant was prepared. I assess the offence to be above the middle of the range of objective seriousness.
The applicant’s mental illness reduces his moral culpability but not to a substantial degree. The applicant knew what he was doing at the time of the stabbing and was aware of the wrongfulness of his actions but nevertheless proceeded with an intention to kill Inspector Anderson. Whilst there is some moderation in the weight given to general deterrence, that moderation is not great.
The applicant has no prior criminal convictions, which entitles him to considerations of leniency. I take into account that the applicant was 19 years old at the time of the murder but I do not consider that immaturity played a material part in the commission of the offence.
In an affidavit affirmed on 30 April 2016, the applicant expresses his sorrow to Inspector Anderson’s family and the other police involved. As in the letter which was tendered in the proceedings on sentence, there is nothing in the affidavit which resiles from the untruthful accounts that the applicant gave to the psychiatrists, even though he is now mentally well. Whilst I accept that he regrets having killed Inspector Anderson and has acknowledged his tragic loss, I am not persuaded on the balance of probabilities that he, at this time, takes full responsibility for the killing. I take remorse, to this limited extent, into account as a mitigating factor.
A troublesome feature, to my mind, in assessing the applicant’s prospects of rehabilitation is his partial acceptance of responsibility for the death. On the other hand, the applicant’s lack of a prior criminal history and his progress in custody which is detailed in the affidavit encourages a positive view of his future prospects. I conclude on the balance of probabilities that the applicant has reasonable prospects of rehabilitation and is unlikely to reoffend which I take into account as mitigating factors. By reason of these findings, I give modest weight to specific deterrence.
Although mitigated by the considerations which I have detailed, the taking by the applicant of Inspector Anderson’s life is a crime of extreme seriousness.
An important consideration is the parity principle which requires there should not be a marked disparity between the sentences imposed on the applicant and Ms Barbieri which gives rise to a justifiable sense of grievance.
The applicant’s plea of guilty entitles him to a 10 per cent discount for the utilitarian value of the plea. The undiscounted starting point of the sentence is 35 years 6 months.
I do not find special circumstances. The period on parole without an adjustment in the statutory ratio is sufficient to enable him to adjust to normal life.
Taking into account the offences on the Form 1 and giving weight to all relevant factors, I conclude that a lesser sentence is warranted in law.
The orders I propose are:

Leave to appeal against sentence granted.

Appeal allowed.

Sentence imposed at first instance quashed.

In lieu thereof, the applicant be sentenced to 32 years imprisonment, consisting of a non-parole period of 24 years, commencing on 6 December 2012 and expiring on 5 December 2036, with a balance of term of 8 years which will expire on 5 December 2044.

McCALLUM J: I agree with Simpson JA.

**********

Decision last updated: 12 December 2016

Medium Neutral Citation:	Barbieri v R [2016] NSWCCA 295
Hearing dates:	21 June 2016
Decision date:	12 December 2016
Before:	Simpson JA at [1]; Price J at [134]; McCallum J at [195]
Decision:	(1) Leave to appeal against sentence granted; (2) Appeal allowed; (3) Sentence imposed at first instance quashed; (4) In lieu thereof, the applicant be sentenced to a non-parole period of 15 years, commencing on 6 December 2012, expiring on 5 December 2027, with a balance of term of 6 years and 3 months which will expire on 5 March 2034.
Catchwords:	CRIMINAL LAW – sentence appeal – murder – victim a police officer acting in execution of duty – Crimes Act 1900 (NSW), s 19B(1) – offender offered plea of guilty to manslaughter on basis of substantial impairment – Crimes Act, s 23A – offer not accepted by DPP – DPP conceded applicant had “significant cognitive impairment” within meaning of s 19B(3)(b) – sentence of life imprisonment not mandatory – offender pleaded guilty to murder – further four offences taken into account on Form 1 CRIMINAL LAW – sentence appeal – murder – offender suffering mental illness – delusional disorder shared with mother – “Folie A Deux” – mother a co-offender – mother offered plea of guilty to manslaughter on basis of substantial impairment – plea of guilty accepted by DPP – effect of mental illness – sentencing judge took into account fact that applicant’s condition was “secondary” to that of his mother and overcame condition when separated from mother – error in so doing – considerations irrelevant to assessment of moral culpability – principles relating to sentencing mentally ill offenders CRIMINAL LAW – sentence appeal – circumstances of guilty plea to murder – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 22(1)(c) CRIMINAL LAW – sentence appeal – disparity between sentence imposed on applicant and sentence imposed on co-offender CRIMINAL LAW – sentence appeal – error disclosed by two grounds of appeal – necessary to exercise sentencing discretion afresh – leave to appeal granted – appeal allowed – applicant re-sentenced
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, ss 21A, 22, 44(2) Crimes Act 1900 (NSW), ss 18, 19A, 19B, 23A, 25A Crimes Amendment (Murder of Police Officers) Act 2011 (NSW) Criminal Appeal Act 1912 (NSW), s 6
Cases Cited:	AB v R [2014] NSWCCA 339 Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297 Atkinson v R [2014] NSWCCA 262 Ayik v R [2013] NSWCCA 119 Betts v The Queen (2016) 332 ALR 185; [2016] HCA 25 Devaney v R [2012] NSWCCA 285 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 Haines v R [2016] NSWCCA 90 Hawkins v R [2011] NSWCCA 153 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Majid v R [2010] NSWCCA 121 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Ilbay [2000] NSWCCA 251 R v Israil [2002] NSWCCA 255 R v Kollas and Mitchell [2002] NSWCCA 491 R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Verdins (2007) 16 VR 269; [2007] VSCA 102 R v Wright (1997) 93 A Crim R 48 Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550
Category:	Principal judgment
Parties:	Mitchell Barbieri (Applicant) Regina (Respondent)
Representation:	Counsel: J Manuell SC (Applicant) N Noman SC (Respondent) Solicitors: Legal Aid New South Wales (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2012/379946
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division – Criminal Citation: R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808 Date of Decision: 18 December 2014 Before: R A Hulme J File Number(s): 2012/379946