R v Barbetta - [2008] NSWSC 688

CITATION: R v Michael Barbetta [2008] NSWSC 688

HEARING DATE(S): 27/06/2008

JUDGMENT DATE :
11 July 2008

JUDGMENT OF: Howie J at 1

DECISION: The offender is sentenced to a term of imprisonment made up of a non-parole period of 13 years 9 months and a balance of term of 4 years 10 months. The sentence is to date from 17 March 2007 and the non-parole period is to expire on 16 December 2020, the date upon which the offender will be eligible to be considered for release to parole. The whole of the sentence expires on 16 October 2025.

CATCHWORDS: Criminal Law - Sentence - Murder - Plea of guilty - offence below mid range seriousness.

CATEGORY: Principal judgment

CASES CITED: R v Apps [2006] NSWCCA 290

PARTIES: Regina v Michael Barbetta

FILE NUMBER(S): SC 2007/00005214001

COUNSEL: T Hoyle SC - Crown
A Haesler SC with J Hallion - Offender

SOLICITORS: S Kavanagh - Crown
S O'Connor - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

FRIDAY 11 JULY 2008

2007/00005214001 R v MICHAEL BARBETTA
REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Michael Barbetta, was committed to this Court on 7 November 2007 for trial on a charge that he did on 11 March 2007 murder the deceased, David Smedley. On 7 December 2007 a trial date was fixed for 7 July 2008. On 2 May 2008 he was arraigned and pleaded guilty. He was remanded to 27 June 2008 for sentence and on that date came before me.

2 The Crown tended a folder of material including a document setting out the facts, a number of photographs and a copy of the recorded interview with the offender by police. Two victim impact statements were read to the Court. The offender gave evidence and some reports were tendered on his behalf. He was then remanded until today for sentence to be imposed.

3 The facts can be briefly stated and are not in dispute. The deceased was aged 65 years and suffered from Parkinson’s disease. The offender later described him to police as a very fragile man. He lived by himself in a unit. On 11 March another resident of the unit block, Kenneth Hodge, found the body of the deceased and contacted police. The deceased was dressed in pyjamas lying on the floor of the lounge room. He had blunt force injuries to his head. There was a bucket near him in which was bloody water and a cloth was located on the deceased’s shoulder. The lounge room appeared to have been ransacked with items broken and scattered about. The bedroom was in a similar state with the contents of drawers and cupboards turned out. One of the walls of the bedroom had been smeared with a tomato. Broken pieces of the deceased’s dentures were scattered around the floor of the bathroom. Police investigators located the fingerprints of the offender in various places throughout the unit.

4 Mr…

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 R v Barbetta

Details

AGLC: R v Barbetta [2008] NSWSC 688
Case: [2008] NSWSC 688
Decision Date: 11 July 2008

CaseChat Overview and Summary

Barbetta was convicted of murder and appealed against the severity of the sentence imposed. The court of appeal reviewed the case to determine if the original sentence was appropriate. The primary legal issue was whether the sentence imposed by the trial judge was manifestly excessive, given that the offence was below the mid-range of seriousness. Barbetta argued that the trial judge had not given sufficient weight to the fact that the murder occurred in a domestic setting and that there were mitigating factors such as his early guilty plea.

The appeal court considered the principles of sentencing in murder cases and the need to balance the culpability of the offender with the circumstances of the offence. The court examined the factors that the trial judge had considered, such as the brutality of the crime and the impact on the victim's family, alongside the mitigating factors presented. The appeal court found that while the crime was serious, the trial judge had appropriately balanced the aggravating and mitigating factors. The court held that the sentence was not manifestly excessive and affirmed the trial judge's decision.

In affirming the sentence, the court emphasised the importance of ensuring that sentences for murder reflect the gravity of the crime while also considering the specific circumstances of each case. The appeal court concluded that the sentence imposed was proportionate to the seriousness of the offence and the relevant mitigating factors. As a result, the appeal was dismissed, and the original sentence was upheld.

Orders