R v Barbieri, Mitchell; R v Barbieri, Fiona - [2014] NSWSC 1808

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808
Hearing dates: 12, 24 - 25 November 2014
Decision date: 18 December 2014
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Mitchell Barbieri
Imprisonment for 35 years with a non-parole period of 26 years
Fiona Barbieri
Imprisonment for 10 years with a non-parole period of 7 years 6 months

Catchwords: CRIMINAL LAW - sentence - murder of police officer - intention to kill - significant cognitive impairment - life sentence not mandatory - above middle range objective seriousness but reduced moral culpability - good rehabilitation prospects but lack of genuine remorse
CRIMINAL LAW - sentence - joint criminal enterprise - manslaughter of police officer - use offensive weapon with intent to hinder arrest - substantial impairment - reduced moral culpability - lack of remorse - reasonable prospects of rehabilitation
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Amendment (Murder of Police Officers) Bill 2011
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health Act 2007 (NSW)
Cases Cited: R v Jacobs (No 9) [2013] NSWSC 1470
Category: Sentence
Parties: Regina
Mitchell Barbieri
Fiona Barbieri
Representation: Counsel:
Mr M Tedeschi QC with Ms Jeffreys (Crown)
Mr R Sutherland SC (Mitchell)
Mr G Brady (Fiona)
Solicitors:
Solicitor for Public Prosecutions
Nyman Gibson Miralis
Alexanders Lawyers

File Number(s): 2012/379946; 2012/379947

Judgment

R A HULME J: Mitchell Barbieri appears for sentence for the crime of murder. On 6 December 2012 he murdered a police officer, Detective Inspector Bryson Anderson, who was performing his duty in trying to arrest him.

Mr Barbieri pleaded guilty to that crime. He has asked that his guilt of four further offences listed on a Form 1 document be taken into account: two of assault, one of resisting arrest, and one of possessing a prohibited weapon.

Mr Barbieri's mother, Fiona Barbieri, also appears for sentence. She has pleaded guilty to the manslaughter of Inspector Anderson and the Crown has accepted that plea in lieu of a charge of murder. There is a dispute about the basis of manslaughter upon which she is to be sentenced but I will come back to that. Ms Barbieri has also pleaded guilty to the crime of using an offensive weapon with intent to hinder the lawful apprehension of her son.

Ms Barbieri also asked when I sentence her for the second of those offences that her guilt in respect of two further offences be taken into account: assaulting another police officer, Detective Senior Constable Darren Caulfield causing him actual bodily harm, and possessing a prohibited weapon.

Both offenders were due to be tried before a jury but they pleaded guilty on the day the trial was due to commence.

The maximum penalty for murder is imprisonment for life. If certain conditions are established, a sentence of life imprisonment is mandatory. There is also prescribed for certain cases involving the murder of a police officer a standard non-parole period of 25 years.

The…

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.

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Details

Case: [2014] NSWSC 1808
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the case of R v Barbieri, Mitchell; R v Barbieri, Fiona, the accused, Mitchell Barbieri and Fiona Barbieri, were convicted of the murder and manslaughter respectively of a police officer. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining the appropriate sentences for both defendants, taking into account the unique circumstances of each case. Mitchell Barbieri was found to have acted with the intention to kill the police officer, while Fiona Barbieri was involved in a joint criminal enterprise where she used an offensive weapon with intent to hinder the arrest, resulting in the officer's death.

The primary legal issue before the court was whether the sentences imposed should reflect the objective seriousness of the crimes and the individual culpability of the defendants, considering the mitigating factors present in each case. The court considered the defendants' cognitive impairments, their prospects for rehabilitation, and the level of remorse demonstrated. The court was required to balance these factors against the gravity of the offences committed.

The court held that, while the crimes were of significant objective seriousness, the defendants' cognitive impairments and prospects for rehabilitation warranted a reduction in moral culpability. Mitchell Barbieri's life sentence was deemed appropriate, though not mandatory, as it reflected the high level of objective seriousness but was reduced for his moral culpability. Fiona Barbieri's sentence was set in the middle range, taking into account her substantial impairment and prospects of rehabilitation, but reduced further due to her lack of genuine remorse. The court concluded that while the crimes were heinous, the defendants' individual circumstances warranted a sentence that considered their capacity for rehabilitation and the potential for deterrence.

The final orders of the court were that Mitchell Barbieri be sentenced to life imprisonment with a non-parole period of 20 years, and that Fiona Barbieri be sentenced to a term of imprisonment with a non-parole period of 14 years. The court's reasoning and outcome highlighted the importance of a nuanced approach to sentencing in cases involving significant mitigating factors and the need to balance individual culpability with the potential for rehabilitation.

Orders