Barbour v the Queen - [2013] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0192

RIAD BARBOUR
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, HARPER and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2013
DATE OF JUDGMENT:	3 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 94
JUDGMENT APPEALED FROM:	DPP v Barbour [2012] VSC 335 (Macaulay J)

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CRIMINAL LAW – Sentence – Application for leave to appeal – One charge of murder and one charge of theft – Pleas of guilty – Offences committed while on parole for armed robbery – Prior convictions – Total effective sentence of 23 years’ imprisonment with a non-parole period of 19 years and six months – Whether sentencing judge erred in finding that the offender intended to steal and then murder when he entered the premises – Leave granted and appeal allowed – Appellant re-sentenced to a total effective sentence of 20 years’ imprisonment with a non-parole period of 18 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	C Marshall & Associates
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have had the advantage of reading in draft the reasons of Harper JA. I respectfully agree with his Honour that Ground 1 should succeed, and agree with his Honour’s explanation why that should be so. I agree also that the applicant should be re-sentenced as his Honour proposes. I add the following.

First, the sentencing facts, so far as they are presently relevant, were not agreed. In this case, this Court is as well-equipped as the sentencing judge to determine those facts; and, if a particular fact found by the judge below was not available, then so to conclude.

Second, although the judge did not specifically make a finding as to what the applicant intended to steal, the import of the sentencing remarks appears to be that the applicant’s intent was to steal the money which he eventually did. The analysis of that hypothesis by Harper JA shows why such a finding could not have been made to the criminal standard.

Third, in my opinion the judge was not sufficiently assisted by the prosecutor with respect to the issue of formation of intent. As Harper JA has pointed out, the Crown summary baldly asserted that ‘this was a planned murder done with the intention to kill or do really serious harm’. Only in reply did the prosecutor, in a broad-brush submission, contend that ‘he knew he couldn’t get away with this’ and ‘he wanted to dispose of the witness who would be able to reveal who he was’. The prosecutor did not identify what ‘this’ referred to. He indiscriminately mentioned both the cigarettes and the cash in the safe. It was not satisfactory that this elaboration of the Crown case should have been late-made, and incomplete.

Fourth, to conclude that the impugned finding could not have been made to the criminal standard leaves unresolved the question when the applicant formed…

Grounds of appeal

[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.

Continue reading Barbour v the Queen

Details

AGLC: Barbour v The Queen [2013] VSCA 94
Case: [2013] VSCA 94
Decision Date: 3 May 2013

CaseChat Overview and Summary

The appellant, Barbour, was convicted of one count of murder and one count of theft. He was granted parole for a prior armed robbery offence at the time of the current offences. Barbour entered a guilty plea for both charges. The central issue before the court was whether the sentencing judge had erred in concluding that the appellant intended to steal and then murder when he entered the premises. The appeal was about the sentence imposed, specifically whether the length of the non-parole period was appropriate.

The court considered whether the sentencing judge had made an error in concluding that the appellant intended to commit theft followed by murder. The court found that the sentencing judge had erred in this regard and concluded that the appellant's intention was to commit theft, not murder. The court found that the intention to commit murder was not formed until after the theft had commenced. The court noted that the appellant's prior convictions and the nature of the offences committed while on parole were relevant factors in determining the sentence. The court also noted that the appellant had pleaded guilty, which is a mitigating factor.

The court allowed the appeal and granted leave to appeal. The appellant was re-sentenced to a total effective sentence of 20 years' imprisonment with a non-parole period of 18 years. The court found that the original sentence was too severe given the circumstances of the case. The court also noted that the appellant's guilty plea was a mitigating factor that should have been given more weight by the sentencing judge. The court found that the appellant's intention to commit theft, not murder, should have been taken into account when determining the sentence.

Orders