DPP v Barnwell - [2002] VSC 280

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1404 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

PETER RICHARD BARNWELL

---

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF SENTENCE:	5 July 2002
CASE MAY BE CITED AS:	DPP v Peter Richard Barnwell
MEDIUM NEUTRAL CITATION:	[2002] VSC 280

---

Criminal law – sentencing – manslaughter by criminal negligence – shooting in home by accident – considerations applicable.

---

APPEARANCES:	Counsel	Solicitors
For the Director	Mr J.W. Rapke QC	OPP
For the Accused	Mr J. Kemp	Jonathan Kemp & Associates

HIS HONOUR:

Mr Barnwell, you have pleaded guilty before this court to the manslaughter at Port Melbourne on Wednesday 28 March 2001 of Luke O'Keefe.

Luke O'Keefe was the beloved son of Mrs Gayle O'Keefe and Mr Leon Kalaitzis, the grandson of Mrs Dorothy O'Keefe, the elder brother of Joshua and the father of a nine year old daughter. They have all now lost their loved one. Luke was also your friend. You did not intend to harm him; you did not intend to kill him; you did not intend the gun which killed him to discharge.

The reason you are before this court to be sentenced is your gross negligence in playing with, and play-acting with, a firearm - a firearm which could be seen to be loaded, which you did not know how to operate, and which was handled by you in a room where another person could be harmed and who tragically was, in fact, shot dead.

The deceased, Luke, was born on 31 August 1975. He grew up in the Port Melbourne area and spent much of his life there, as well as a short period in Brunswick. He was an excellent sportsman. He played for the Victorian Junior Australian Football Squad for a short time and was, indeed, sought by a league club. Back injury problems prevented him playing at that level. He had a daughter, as I have said, who is now nine years of age. He did a horticultural course and worked part-time as a landscape gardener and in various other jobs, but at the time of his death was not working.

You and the deceased first met in 1999 and by chance met again on 11 March 2001 at a party. You, in circumstances I shall come to in a moment, admitted yourself to the Alfred Hospital Psychiatric Unit on 13 March 2001 because of mood fluctuations and were visited there by the deceased. You had invited him to stay with you in Port Melbourne, which he then did.

You, Mr Barnwell, were born in South Africa on 16 March 1977. Your family migrated to Australia when you were three years of age. You were the older of two children. You were educated in the Brandon Park area and had significant difficulties in socialisation at schools in that area, through no fault of your own. Unfortunately, you commenced substance abuse at the age of 13 years, and up…

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 DPP v Barnwell

Details

AGLC: DPP v Barnwell [2002] VSC 280
Case: [2002] VSC 280
Decision Date: 5 July 2002

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Barnwell was heard in the Supreme Court of Victoria. The defendant, Barnwell, was convicted of manslaughter by criminal negligence for accidentally shooting a woman in her home. The central issue in the case was the appropriate sentence for the defendant, given the unintentional nature of the incident. The court had to balance the gravity of the offence, which resulted in the victim's death, with the fact that the shooting was accidental and did not involve any malice or intent to harm.

The legal issues revolved around the principles of sentencing for manslaughter by criminal negligence and the specific factors that the court should consider in this context. The court had to determine the weight to be given to the defendant’s lack of intent, his remorse, the circumstances of the shooting, and the impact on the victim's family. The defence argued for a lenient sentence, highlighting the defendant's genuine remorse and the entirely accidental nature of the incident. Conversely, the prosecution emphasised the severe consequences of the defendant's actions, which led to the death of the victim.

The Supreme Court acknowledged the tragic and unintentional nature of the incident but underscored the importance of the defendant's responsibility in handling firearms safely. The court considered the defendant's background, his lack of criminal history, and his expression of remorse. However, it also highlighted the significant breach of duty of care and the devastating impact on the victim’s family. Ultimately, the court decided that while the incident was not premeditated, the consequences were severe, and a custodial sentence was necessary to reflect the seriousness of the offence. The defendant was sentenced to a term of imprisonment, with specific consideration given to his remorse and the accidental nature of the crime.

Orders