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Barrett v The Queen

Barrett v The Queen

Case [2010] VSCA 133 9 June 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 732 of 2008

ROBERT CLIFFORD BARRETT
	v
THE QUEEN

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JUDGES	MAXWELL P, NETTLE and NEAVE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 May 2010
DATE OF JUDGMENT	9 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 133
JUDGMENT APPEALED FROM	R v Barrett [2008] VSC 234 (Curtain J)

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CRIMINAL LAW – Sentence – Murder – Appellant pleaded guilty to reckless murder – Whether judge should have distinguished between reckless and intentional murder in determining moral culpability – Delay between arrest and imposition of sentence – R v MWH [2001] VSCA 196, applied – Effect of quashing of murder conviction – Whether declaration of pre-sentence detention incorrect – Effect of sections 16(3B) and 18(1) of the Sentencing Act 1991 – R v Broad [1999] 3 V3 31, applied – Director of Public Prosecutions v TY [2009] VSCA 226, applied – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher with Mr K J Dernelley	Victoria Legal Aid

MAXWELL P

NEAVE JA:

On 23 February 2005, the appellant, Robert Clifford Barrett, was convicted by a jury of murdering Jenny Lorraine Brodhurst. The murder occurred between 7 and 11 June 2003. At that time the appellant was on parole for intentionally causing serious injury and aggravated burglary, for which he had been sentenced to 3 years’ imprisonment with a 12 month non-parole period by his Honour Judge Nixon (‘Judge Nixon’s sentence’). On 20 May 2005 he was sentenced by Whelan J to 25 years’ imprisonment, with a non-parole period of 20 years. His Honour sentenced the appellant on the basis that he had intended to inflict really serious injury on the victim.

On 17 May 2007, this Court allowed the appellant’s appeal against his conviction and ordered a retrial.[1] On 10 April 2008 he pleaded guilty to reckless murder and on 27 June 2008 was sentenced to 21 years’ imprisonment with a non-parole period of 17 years. He now appeals against that sentence.
[1][2007] VSCA 95.

Background to the offending and the offender

The victim had been in a de facto relationship with the appellant for about 12 years. The appellant was obsessively jealous of the victim and he had assaulted her many times during their relationship.

Between 1992 and 2003 Ms Brodhurst had been assaulted on 24 occasions and the frequency and severity of the attacks had escalated in the 12 months prior to her death. Ms Brodhurst had sought medical treatment on numerous occasions for her injuries, had sought crisis accommodation on nine occasions and had obtained an interim intervention order against the appellant which later lapsed.

The victim was not the only target of the appellant’s violence. The offences for which he was sentenced by Judge Nixon on 29 May 2001 were committed against a friend believed by the appellant to have had an intimate relationship with…

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 Barrett v The Queen

Details

AGLC: Barrett v The Queen [2010] VSCA 133
Case: [2010] VSCA 133
Decision Date: 9 June 2010

CaseChat Overview and Summary

The appellant in this case was convicted of murder and pleaded guilty to the charge of reckless murder. The case was heard in the Court of Appeal, where the appellant challenged the sentence imposed by the trial judge. The key issues before the court were whether the trial judge should have differentiated between reckless and intentional murder when assessing moral culpability and whether the delay between the appellant's arrest and sentencing had any bearing on the matter. The court also had to consider the impact of the quashing of the murder conviction and whether the declaration of pre-sentence detention was incorrect.

In delivering the judgment, the court examined the relevant sections of the Sentencing Act 1991 and found that the trial judge had not erred in his assessment of moral culpability. The court further held that the delay in sentencing did not impact the sentence imposed. Regarding the declaration of pre-sentence detention, the court held that it was correct and that the quashing of the murder conviction did not affect the appellant's pre-sentence detention. The court applied the principles set out in R v Broad and Director of Public Prosecutions v TY in its reasoning.

Ultimately, the court found that the appeal was without merit and dismissed it. The sentence imposed by the trial judge was upheld, and the appellant's conviction and sentence remained intact. The court held that the trial judge had not erred in his assessment of moral culpability and that the delay in sentencing did not impact the sentence imposed. The court also held that the declaration of pre-sentence detention was correct and that the quashing of the murder conviction did not affect the appellant's pre-sentence detention.

Orders