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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Barbieri v The Queen [2016] NSWCCA 295
Case
[2016] NSWCCA 295
Decision Date
CaseChat Overview and Summary
The case of Barbieri v R involved the appellant, Barbieri, who was convicted of murder for killing a police officer acting in the execution of his duty. Barbieri appealed the sentence of life imprisonment imposed upon him, arguing that it was excessive and should be reduced. The legal issues at the heart of the appeal were the proper assessment of the offender's mental state and the appropriate sentence for the crime committed. The court was tasked with determining whether the sentencing judge correctly took into account Barbieri's mental health issues, specifically his shared delusional disorder, and whether the disparity in sentences between Barbieri and his co-offender warranted a reduction in his sentence.
The court examined whether the sentencing judge correctly assessed Barbieri's mental condition and its impact on his culpability. It was noted that the judge had considered the fact that Barbieri's condition was secondary to that of his mother, who was also a co-offender, and that he overcame his condition when separated from her. The court held that these considerations were irrelevant to the assessment of moral culpability. The principles relating to the sentencing of mentally ill offenders were also discussed, with the court emphasising that the focus should be on the offender's state of mind at the time of the offence rather than any subsequent improvement in their condition.
The court found that the sentencing judge had erred in taking into account factors that were irrelevant to the assessment of Barbieri's moral culpability. The court also considered the disparity between the sentence imposed on Barbieri and that imposed on his co-offender, who had pleaded guilty to manslaughter and had her sentence accepted by the Director of Public Prosecutions. The court concluded that the two grounds of appeal disclosed errors that necessitated the exercise of the sentencing discretion afresh. Consequently, leave to appeal was granted, and the appeal was allowed. Barbieri was re-sentenced, with the court taking into account the correct principles and factors relevant to the assessment of his mental state and culpability at the time of the offence.