R v Barker, William

[2009] NSWDC 210

CITATION:	R v Barker, William [2009] NSWDC 210
HEARING DATE(S):	07/04/09 and 08/04/09
JUDGMENT DATE:	23 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Recklessly wound: Sentenced to imprisonment 1year 10 1/2 months; Non Parole Period 6months Possess loaded firearms so as to endanger life: Sentenced to imprisonment 1 year 10 1/2 months; Non Parole Period 6 months to be served concurrently.
CATCHWORDS:	Criminal Law - Sentencing - Recklessly wound - possess loaded firearm so as to endanger life - wife victim - poor health - in bed at time of attack - use of implement to attack victim - firearm used to terrify - mistaken belief that wife had been unfaithful - threat of murder, suicide - struck with shotgun stock - wounded - victim tied to bed - immobile when struck - high level of recklessness - remorse - prior good character - strong subjectives - standard no parole period not applied.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
CASES CITED:	R v Gladue [1999] 1SCR 688 [80] R v Dunn [2004] NSWCCA 41 at [47] R v Fernando (1992) 76 A. Crim. R. 58 R v Edigarov [2001] NSWCCA 436 R v Lattouf NSWCCA Unreported, 12 December 1996 Markarian v The Queen (2005) 228 CLR 357 at [24]; 215 ALR 213 at [24]. R v Hall unreported NSW CCA 11 June 1999 R v Gordon S.C unreported 29 April 1994 per Hunt CJ at CL R v Peter James Muir S.C unreported David Hunt J 3 April 1991
PARTIES:	Regina William Barker
FILE NUMBER(S):	2009/00003017
COUNSEL:	Defence: E Wilson Public Defencer
SOLICITORS:	Crown: Mr. J May ODPP Dubbo

Crown Appeal Dismissed R v Barker unreported [2009] NSWCCA 225

JUDGMENT

1. William and Jenny Barker had been married for thirty-seven years. In western culture they were approaching their ruby anniversary. He is fifty-nine and she fifty-five. Only twelve per cent of our indigenous population live beyond their fiftieth birthday. Both William and Jenny Barker have health problems. They have four children, three girls and a boy. The boy works at a Nulty Station where William Barker is the senior station hand. At about the time of his offending conduct he had heard that the owner was selling out. Barker became worried as to his future employment prospects.

2. In the week prior to the offence there was another matter that troubled Barker. The shearers were at Nulty. After shearing Barker would join them for a yarn and a beer. One of the shearers claimed he had been running around with Jenny Barker, the offender’s wife. That man claimed to have had an affair with her. Further claims were repeated over about five nights.

3. The offender thought a lot about it. On 22 July 2008 the shearers had finished. There was what is called a “cut out” party. Barker usually consumes three large bottles of beer nightly. On this occasion he had drunk “a fair bit after the three bottles that night”. An arrangement had been made for his wife to ring at about 7pm. There was no call. Barker thought the shearer was in Bourke “at the house with her”.

4. William Barker had never been in trouble with the law until 10.50pm that night, Tuesday 22 July 2008, when a taxi dropped him off at his daughter’s home where his wife was staying. He did not come empty-handed. He arrived with an esky and a black bag. In either the esky or black bag was a twelve gauge Winchester shotgun, a boning knife, a short piece of polythene pipe and seven or eight beers. In his pockets were seven live shotgun cartridges and about three and a half metres of quarter inch rope.

5. He brought the pipe and the shotgun to frighten his wife. His evidence is he did not know he had the rope until he arrived but once there he was prepared to use it. He agreed that when he left Nulty he was angry and was going to frighten her. Nulty is 45 kilometres west of Bourke. He must have maintained his anger throughout the trip from there to Bourke. As a consequence of his acts that night he has been charged with recklessly wounding his wife, Jenny Barker. He is also charged with possessing a loaded firearm, the twelve gauge Winchester shotgun, so as to endanger the life of another person. Today William Barker is to be held accountable for his criminal conduct.

6. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine appropriate sentence for these offences before the court committed by this offender harming this victim in his community; R v Gladue [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to him called subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the court relating to the offence and to the offender.

7. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. There will be technical questions relating to deterrence, discounts and whether special circumstances are to be found, and I think backup charges from the Local Court.

WILSON: Five, your Honour.

HIS HONOUR: Yes. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus - the protection of the community - will also need to be determined.

Facts

8. After he arrived, William Barker entered the main bedroom, pulled the blanket off his wife and commenced to strike her with a piece of stiff orange plastic pipe, which was approximately 2 feet long, to the left leg and left arm about five to six times. He was yelling and was angry. He asked her who was the man in bed with her. There was no man present, only his daughter, Janetta. The offender poked his wife to the left side of her chest with the pipe causing bruising. His daughter got out of bed and told him to stop. He told her to stand back and continued to hit his wife with the pipe. Janetta ran from the room upset. His wife told him to leave her alone and said “Don’t hurt me”, she was very frightened. He stopped hitting her and moved to the lounge room and retrieved the shotgun he had brought, returned to her bedroom with the shotgun, aiming at her chest from about a foot away. He said “You’re not going to see your grandkids grow up ‘cause I’m going to shoot you”. He told her he was going to kill her and then himself.

9. She saw his hand on the trigger of the weapon. He had it in his right hand and she saw him put three red shotgun pellets in his left shirt hand pocket. He put the gun down, leaning it against the bedroom wall near the window. He produced the rope, tied one end to the northern bedpost, put a portion of the rope around her throat and I am satisfied secured, in some way or other, the other end of the rope so that his wife was immobile.

10. He took the shotgun up, this time by the barrel, striking her twice to the head with the stock of the gun. She felt immediate pain and blood coming from her. At this point she yelled for her daughters to get the police. He told the daughters to stay out of the room. He was pacing in and out of the bedroom, accusing her of having men, having parties up there. He pointed the shotgun to the bed.

11. Police say that they arrived within minutes of the call of 11.30. The first officers at the scene, Jeffcoat and Nicolson, announced their presence from the living room. He came from the hallway with blood on his face and hands; how that blood got there will be explained shortly. He was asked if there were any firearms to which he replied “No”. He was telling a deliberate untruth at that time. One of the police quickly checked the premises and found Jennifer Barker in the second room at the end of the hall. She must have moved from the first bedroom, the main bedroom. That room was in darkness. She had blood covering her clothing, face and head. An ambulance was called.

12. William Barker was arrested and searched. My understanding is that is the first time in his nearly sixty years he had been arrested. In the side pockets of his jacket police found six shotgun rounds. The shotgun was located by police on the double bed. It had what appeared to be blood staining on its barrel and apparent blood staining was seen on the mattress and doona cover. Blood splatter was noted on the wall behind the bed. Asked if the weapon was loaded he replied “No”. Again it was untrue. I cannot be satisfied beyond reasonable doubt it was deliberately untrue. The officer checked the weapon, breached the barrel, an unused shotgun cartridge was ejected from the barrel. I find it amazing that anybody would have handled a weapon for the first time, particularly a country man, without checking whether the weapon was loaded; but as I say I cannot be satisfied beyond reasonable doubt that he well knew that. His reply when challenged by police was to accused them of planting the round in the weapon. That allegation I find unfounded. He was taken to Bourke station to be interviewed and charged.

13. Jenny Barker was treated by ambulance officers, taken to Bourke Hospital, later transferred to Dubbo Base Hospital. She had sustained two- what are described in the agreed facts as deep lacerations on the vertex of her scalp; deep seems a misnomer because there is not much scope for depth in that area. One measured 6 centimetres, the other 7. They required suturing. She developed symptoms consistent with a stroke and it is my inference that it was those symptoms that saw her transferred to the Dubbo Base Hospital. I cannot imagine Bourke Hospital being incapable, given the kind of traffic it has, of dealing with lacerations of 6 and 7 centimetres. Mrs Barker has a history of problems and a lot of risk factors relating to strokes. The doctors are unable to say whether there is an causal link between William Barker’s actions and the stroke.

14. The offender gave some answers in an interview, some of which were helpful and some of which were not. He conceded that he had put the rope around her but he described it as halfway or partly around her neck, just trying to get some information out of her about another boyfriend. I am satisfied he was trying to get information from her about another boyfriend but I am not satisfied that his description of where he put the rope is in any way accurate, other than it was probably around her neck. He said he brought the firearm out from Booker, which was 50 to 60 kilometres out of town. I have rejected that, it seems to me that if he caught the taxi and went 50 to 60 kilometres out of town, assuming it is in the same direction as Nulty, that would have shown a determination to have got the firearm. My view is the firearm was somewhere on Nulty.

15. He said he brought the firearm only with the intention to try and frighten her “because she wouldn’t let me know what was happening about the affair and another fellow”. As to that, he had brought the firearm before he knew that he wife would not cooperate; so that answer as it stands does not make a lot of sense to me. He said he felt sorry about what he had done and I accept that is so. He said he was thinking revengeful thoughts when hitting her with the pipe for what she has done, I have not read the interview but it is unlikely he would have used the word “revengeful”. It is more likely that that word was offered to him and he has picked it up and accepted it. He had nothing to eat during the day and he says he has not used firearms before because he has no licence, indeed that answer was demonstrated to be incorrect in the course of giving evidence in court.

16. I am satisfied William Barker was affected by alcohol. It is likely he consumed more alcohol than he usually consumed because of the impact the malicious gossip about his wife had upon him. I am satisfied he genuinely believed, probably for the first time, that what he had been told about his wife was true and he attached a significance to the absent 7pm phone call that his wife was being unfaithful to him. I am satisfied he was deeply troubled, distressed, dismayed by his beliefs which when coupled with alcohol morphed into an anger and a determination to frighten his wife and find, out if he could, more about what was happening.

17. I am satisfied he resolved to visit her that night and collected the pipe, shotgun and esky into which he put the beer. Whether he placed the knife into the esky then or it was already in the esky I cannot say. But I am satisfied he was aware of its presence. At the very least he would have seen it when he placed the beer in the esky. I cannot be satisfied beyond reasonable doubt the boning knife was there for any purpose related to his anger. Photograph 50 shows the blade concealed by a six-pack of beer, photographs 52 and 53 show what appear to be bird feathers stuck against the upper aspect of the handle of the knife and the lower aspect where the blade is absorbed into the knife [handle], consistent with their being there for some time and inconsistent with recent handling of the knife, at least by the handle. There are no other bird feathers in the esky that I can observe, further it does not appear the knife was presented to the victim at any time during her terrifying ordeal by him.

18. I am satisfied he was more open to worry and ruminating as a consequence of the impending sale and the consequential uncertainty to him of his employment prospects. No doubt he may have believed that his age and given his race, his employment prospects on the open market in the Bourke Shire were uncertain at best. I am satisfied that upon entering the bedroom and finding two occupants in his wife’s bed, his worse fears were realised (wrongly as it turned out) and that discovery contributed to his subsequent behaviour.

19. The evidence is silent as to how Jennifer Barker was released. Photograph 34 shows a length of rope hanging from the northern bedpost. The knot attaching that rope to the end of the bed looks professional to me. The loose end and some ten or so inches appear saturated in blood. The end appears cleanly cut. Photograph 64 shows another length of rope found in the bathroom. It appears as best one can tell to be a couple of metres or more in length. One end is clean cut, the other is frayed. The clean cut end appears soaked in blood; the adjacent 90 centimetres or so appears soaked in blood, see photograph 68 and 69. They make the obvious point that both bloodstained portions of the rope were once joined. The two knots appearing in the rope retrieved from the bathroom floor appeared to be made by a professional and are consistent, in my experience, with knots used by truckers when shortening a rope to secure a load.

20. The evidence suggests to me the knife found in the bathroom sink was used by someone, probably a daughter, to cut the rope in the bedroom while Mrs Barker was securely tied around the neck to the bed. Thereafter, Mrs Barker and the daughter attended the bathroom and were able to unwind the remaining rope from, as best I can tell, around the victim’s neck. It would appear that from there they made their way to the second bedroom. Mrs Barker was in the middle of the bed as she was bleeding, that can be determined from the bloodstains. She was bleeding as she was tied. The blood on the bed is some distance from the northern bedpost. I am of the view that she was tied so that she was unable to move towards the northern post to release herself, otherwise I fail to understand the need to cut the rope where it had been cut or the two trucker’s knots to shorten the rope. Nor does the transport of the piece of rope to the bathroom makes sense unless the full rope had to be cut to release Mrs Barker so she could travel there.

21. Defence counsel, in a leading question, assumed the offender had cut the rope. I find it more likely a daughter cut the rope. It follows from this that I cannot be satisfied beyond a reasonable doubt the offender ever handled the knife found in the bathroom.

Objective Criminality

22. From the facts as he finds them to be, the sentencing judge is required to assess what is called the objective criminality of these offences as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind that come from other cases. It is in this way that the objective seriousness of the criminality of these offences before the court can be evaluated and particularly in this case the objective criminality which has an important impact upon the overall sentencing outcome. Sometimes a judge cannot escape the objective criminality.

23. It goes without saying that the fundamental right of all citizens is the right to the integrity of their body. Put simply, no-one, not even officials of the government such as police or corrective service officers have the right to harm anyone without some lawful authority. While that authority may take various forms, absent lawful authority, any harm coming to another is viewed as a breach of the criminal law. Any authority a male once had to chastise his partner has long, long been abolished.

24. Some Aboriginal men may argue that traditional Aboriginal culture tolerated violence of a man towards his woman. Whatever may be the true position, so far as past Aboriginal culture is concerned on that matter, the continual and widespread reporting of domestic violence by Aboriginal women makes clear that women in Aboriginal communities will longer tolerate a domestic relationship that permits violence towards them.

25. In this country, whatever past or foreign culture may have permitted, violence within a domestic situation is regarded as a crime subject to the same maximum sentences that that very same crime would carry if committed against other citizens outside the domestic situation. There is no law saying that if one wounds a stranger in a pub with say a broken beer bottle the maximum penalty is seven years but if the same person wounds hisr partner in the backyard in the same way the maximum penalty should only be a rap over the knuckles.

26. One of the prime purposes of sentencing is the protection of the community. One of the largest groups in the community who are in peril are female partners from abusing male partners. A considerable percentage of that group are indigenous women. The law seeks to protect the whole community, it does not distinguish on the basis of gender, colour or race. All women are entitled to protection. The law is required to do all it can to progress that protection.

27. Adams J in speaking about the criminality of domestic violence identified two characteristics. As to the first, his Honour said “The offender usually believes that, in a real sense, what he does is justified, even that he is the true victim.” Then when speaking of both elements he said this:

“These elements also usually mean that the victim never feels truly safe. Unlike a casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of domestic violence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also for denunciations in cases of this kind.” R v Dunn [2004] NSWCCA 41 at [47].

Of course violence at the level that we are talking about here against a partner is a breach of trust and responsibility that the male instinctively and socially owes to the female partner in his relationship.

28. In his seminal judgment in Stanley Edward Fernando, Wood J at principle (F) observed:

“That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.” Stanley Edward Fernand (!992) 76 A Crim R. 58

I seek to do that in this case.

29. The Crown in his submissions referred me to a judgment of Wood J, when he was by this time the Chief Judge at Common Law, dealing with domestic violence, R v Edigarov [2001] NSWCCA 436. Of relevance to this case are his Honour’s observations:

“Regrettably this form of conduct involves aggression by men who are physically stronger than their victims and are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the court has a duty to ensure that it is adequately punished and that sentences are handed out that have a strong element of personal and general deterrence.”

Barker’s conduct when analysed is best described by words used in that judgment “brutal, cowardly and inexcusable”. A belief that one’s partner has been unfaithful, no matter how painfully held, or how reasonably held, cannot excuse any physical assault, let alone having the violence of this assault.

30. The two offences I am dealing with must be assessed against the level and means of violence administered. The wounding was caused by two strikes with the butt of a shotgun, the larger wound 7 centimetres; both bled profusely. There was considerable loss of blood, although one must recognise that uncontained fluid spreads quickly over a wide area. Police noted her clothing and head were covered in blood. The mattress also contains substantial patches of blood.

31. At the time the two blows her head were struck; Jennifer Barker’s capacity to move her head was very restricted, she had been tied to restrict her movements. Her being so tied must have been contributed to the wound in the sense she could do little or nothing to avoid the blow. I am satisfied beyond reasonable doubt the stock of the shotgun was aimed at her head, the level of recklessness involved was high. Given the implement, the area of body struck and the lack of any depth of flesh to disperse or cushion the force of the blow a wound or two in this case were inevitable.

32. The defence submitted two weapons were used, the polythene pipe and the shotgun. That overlooks the length of the rope with which I have dealt. The weapons were all blunt. Use of a shotgun cannot be used, in my view, as an aggravating matter of the wounding because its possession and conduct while possessed are covered by a separate charge. The use of the rope has been described, clearly its use aggravates the wounding charge. Tied as she was, given the health problems she has, Mrs Barker was the epitome of a vulnerable victim. To make matters worse she was surprised in her bed and effectively in her home.

33. The endangerment of life arising from Barker’s possession of the shotgun arises by his using it to threaten her, it is to be remembered she had a history of strokes and numerous risks factors with the strokes. The presentation of a shotgun a foot or so from her must have been simply terrifying.

34. There is no evidence suggesting Mrs Barker lost consciousness, she was able to have photographs of herself and injuries taken at the house by investigating police. That appears to have been done while waiting for an ambulance. Whatever other factors may precipitate a stroke, emotional trauma, extreme stress, fear and anxiety would rank high among them. The pointing of the loaded shotgun at her accompanied by the words “You’re not going to see your grandkids grow up ‘cause I’m going to shoot you”, his announcement that he was going to kill himself, her husband of thirty-seven years, his striking her head, particularly the second strike, were all matters that must have caused extreme levels of fear and stress.

35. The other means by which life was endangered by the offender’s possession of the shotgun was his use of it as a club to strike her head.

36. It is difficult to know the exact length of time the assault took. He appears to have arrived at 10.50pm, the police appeared to have arrived at 11.30pm. Assuming he entered the bedroom immediately, and I stress that is but an assumption, by the time the police arrived it would seem Jennifer Barker had been released and may have returned to the second bedroom and to her bed. It is hard to tell from the photographs but the only blood on the bathroom floor appears to be transfers from the bloodied rope. That would suggest by the time she had gone to the bathroom she had stopped bleeding. There is material suggesting some interrogation of her about another boyfriend. All that can be said is the period during which Mrs Barker was under attack was not momentary, it was a sustained period although its full duration is unclear.

37. The facts do suggest police were called shortly before 11.30. No doubt they were called in response to Mrs Barker’s cry of alarm when being struck by the shotgun. But it seems it took some minutes to arrive and I am not entirely satisfied it was less than five, say.

38. Barker came equipped to frighten his wife, the wounding offence was not planned but no doubt the result of rising anger at the scene. The shotgun was not taken into the room initially but the presentation of it was accompanied by threats. The presentation and the threats were more deliberate. I am satisfied he took the weapon from Nulty with a view to frighten her.

39. The objective criminality of the firearm offence is to be assessed in this way. The firearm being shorten aggravates his criminality of it. It is loaded, that is an element of the offence and does not aggravate the offence. The offender did not believe it was loaded. His evidence on this was unchallenged. The endangerment of life as I have said came from aiming the weapon coupled with the threat and his hand close to or on the trigger to scare his wife. The second endangerment was its use to strike her forehead.

40. I have elsewhere said [that] he believed his wife had been unfaithful was no excuse for his behaviour, but his belief was genuinely held and on the evidence before me it was not unreasonable that he came to such a belief. That belief no doubt had a strong emotional impact upon him. As I say, there is everything to suggest this was the first time he had ever heard anything adverse about his wife’s faithfulness. He may have well have been more vulnerable to responding emotionally because of the uncertainty for him in another very important sector in his life, employment.

41. The wickedness of his act becomes less heinous when it is understood he was motivated by hurt, rejection and frustration anchored in a disillusionment, whether factually justified or not, relating to his partner’s fidelity towards him. His extra consumption of alcohol was also related to what he believed was his matrimonial problem. He did not undertake his drinking with a view to undertaking action against his wife. He undertook his drinking initially as part of the “cut out” party and as he did so consumed more than normal because of his emotional distress. In that sense then his alcohol consumption is a mitigating factor of his objective criminality. His state of disinhibition made the transition from being there to frighten his partner, to being there administering disinhibited violence easier than it otherwise would have been had he been sober. Likewise alcohol contributed to judgment impairment, both these matters sound in mitigation.

42. I note a standard non-parole period of three years applies to a reckless wounding charge that falls within the mid range of seriousness for such an offence. While there are matters that will bring this offence outside of the application of a standard non-parole period, my understanding is that I should at this time assess upon the objective facts alone where this offence falls judged objectively. That requires I take into account the actus reus (or acts) of the offender when causing the wounding, the consequences of conduct and factors impinging upon the mens rea, that is, his recklessness.

43. I have reviewed the acts of the offender when causing the wounding, which I will quickly dot point:

• Use of butt of loaded shotgun two times to the head.
• Tying Ms Barker so that she was unable to avoid the blows.
• Simultaneous use of the gun butt and rope.
• Failure to release her immediately when bleeding but allowing daughter to subsequently release her.

The consequences appear to be these: two significant lacerations, extreme fear and distress, substantial blood loss. The wounds were not deep, they appear to have healed without difficulty. While not trivialising the wounds, they are not deep or horrific, they did not permanently damage the victim, no vital veins or arteries or other organs were severed.

44. Factors impinging upon mens rea:

• Recklessness.
• Initial intent one of frightening.
• In the circumstances the risk of injury is best described as inevitable, that is, a high degree of recklessness.
• A reasonably held belief that his wife had very recently been unfaithful.
• Alcohol contributes to lack of judgment and mood change to violent anger.

45. I am satisfied on its objective factors, this offence is one having a seriousness falling below the lower rungs of the midrange of seriousness. Contrary to the Crown’s submission, there was no plan to wound. The Crown relied on planning to aggravate the seriousness. There was a plan to frighten.

46. What takes it into the lower area of the midrange is the consequence of the accused’s acts. The wounds themselves by comparison with others are more modest than frequently experienced in this court. In assessing the criminality of this offence, it is important to distil from it the criminality associated with the firearm offence and conduct that occurs through the offender’s possession of that weapon.

47. The infliction of the wound was accomplished by wielding the shotgun. The use of the weapon is common to both offences. In the wounding offence the result of the use of the weapon are the two wounds. In the firearm offence the result of its possession was the endangerment of life. The endangerment of life is not an aggravating feature of the wounding.

Subjective Matters

48. I now turn to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing this offender for it. Each offender coming before the court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the court some explanation and insight into the commission of this offence by this offender for some reason why a more or less sentencing outcome is appropriate.

Family Background and Relationships

49. As earlier stated, William Barker is fifty-nine years old. Although separated currently, he hopes to return to his wife of thirty-seven years. I have referred to his four children. From what he said to his wife during his attack upon her I have learnt there are grandchildren. Barker’s extended family live in and around the Bourke area. His son Willy Barker works on Nulty Station. Barker watches out for him and directs him at work.

50. Barker grew up at a place called Billygoat Bend where his father and uncle bought six acres on the river. There they built a corrugated iron shed. The offender had five brothers, one died young, another drowned in his early twenties. Barker’s father died when he was twelve. He still maintains contact with his brothers. He also has six siblings born to his mother from a second partner. They all identify as Barkers as well.

Education, employment and skills

51. The offender left school aged fourteen. While he is able to read, it is not a skill he has great fluency in. He commenced his working life on stations. He learnt shearing in the shearing sheds. He married at twenty-two, built a corrugated tin shed, looked after his young brother-in-law. He then moved to Alice Edward Village, more commonly known as The Reserve, in Bourke. After eighteen months he purchased his own house. He worked at CDEP, he has been employed for some forty-five years.

52. Nulty Station is a fifty thousand hectare sheep and cattle property, forty kilometres south west of Bourke. He has been employed there doing seasonal shearing, crutching and lambing for the past ten to twelve years, and is there semi-permanent, live-on-property basis for the past three years.

53. Recently the property passed to new owners, Phillip Bell and his wife. On the recommendation of the previous owner Mr Bell continued Barker as one of the senior station hands. Barker drives machines, fixes cracking pipes and manages the station in the absence of its owner.

54. Peter Pratten, the prior owner, wrote “Barker had complete access and control of the property on his own” in their absence also. The new owner wrote that there are times when he and his wife “are away for days/weeks and happy to leave” Barker there in their absence. Pratten recommended Barker to his successor, saying he “wouldn’t get a more honest and reliable person”. Phillip Bell has found him “honest, reliable, with an eye for detail, self-motivated with initiative to repair items without being asked”.

55. From the new owner’s point of view, Barker knows the geography of the property, where the pipes run, mustering practices, where wells are located, and in a sense is the custodian of the institutional history necessary for the owner to tap as he needs.

General health

56. Barker suffers high blood pressure and has done so for the past twelve years. That is controlled by his morning medication, a point the custodial authorities will need to note. He suffers asthma attacks, which are controlled by his use of a puffer each morning. He appears older than his fifty-nine years. Apart from the nominated conditions he otherwise appears in good health.

Drugs and alcohol

57. His usual practice was to consume three 750ml bottles of beer daily. He would exceed that quote on occasions when drinking with cousins or family members. He accepts that alcohol played a part in his offending conduct.

58. As a condition of his bail, he has not consumed alcohol. He says he did not find it difficult to remain alcohol free. He does not smoke, he gave it up some time ago when he noticed he had a smoker’s cough. He denies that he uses any illicit substances, quite a remarkable thing in the Aboriginal communities in Bourke.

Character and criminal history

59. William Barker is sixty in December this year. Prior to these offences he was a hard working family man with no convictions. In his chosen field of rural industries he has achieved much, to the point where he was left managing a large station when its owners were absent. He has commenced from humble beginnings. The rural craft and knowledge he has obtained from experience.

60. His sworn evidence is that he has seen others violent towards their wives, but until this fateful night he did not do anything of that sort. His attitude to the offence, to the pre-sentence report also, the offender appeared to believe his actions had been justified because he believed his wife had been unfaithful to him.

61. Mr Barker gave evidence, I had the opportunity of observing him. While most of the questions he was asked were leading questions, thus sheltering him from volunteering much, it was clear to me that he regretted his behaviour and he loved his wife. He is not a sophisticated man. It may be he was simply trying to explain his actions to the author of the report rather than excuse them. There is no doubt he genuinely believed his wife had been unfaithful. That may explain his anger and subsequent violent behaviour. It may have been that he was trying to do no more than that in talking to Probation and Parole. He did not strike me as seeking to minimise his culpability or qualify his regret. His immediate action before leaving the house was to grab his wife, kiss her, and told her he was sorry. It is in that way that his hands and face received the blood transfer noted. I am satisfied he was genuinely contrite.

Plea of guilty

62. The Crown acknowledges the plea was entered early. It also acknowledges a twenty-five per cent discount would be available.

Rehabilitation prospects

63. I am satisfied from his past history, his contrition and his non-drinking that he is unlikely to re-offend.

Assessment of midrange of seriousness for the malicious wounding charge

64. I have indicated when taking account of the objective seriousness that the offence fell below the midrange of seriousness. Mr Barker’s subjective features work strongly in mitigation for him. They take the offence, again, below the midrange to a point that I would estimate as about halfway between a trivial offence and a midrange offence.

65. I note that the standard non-parole period is a reminder that Parliament was looking to judges to deal more firmly with these offences. The standard non-parole period, although it does not apply, still has work to do when sentencing for this offence, that is, for the malicious wounding offence.

66. Domestic violence offences call for deterrence, both general and personal. General deterrence is for those people like-minded to the offender who would be inclined to physically abuse their wives. Personal deterrence relates solely to the offender to persuade him not to re-offend by using violence towards his partner.

67. While dealing with deterrence I note principle (D) in Fernando:

“Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provide any effective deterrence in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it assumed punishment provides. In short a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.”

I also note principle (E):

“While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by person standing to sentence reflects socioeconomic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor.

Mr Barker certainly grew up in circumstances that were demonstrated evidence of dispossession and I have no doubt in an era of alcohol abuse and violence. But in his sixty years he had moved beyond that, and in my view principle (E) has very little application to him.

Setting the sentence

68. There a number of competing tensions I must resolve as I finalise the sentencing disposition. The principles themselves pull in different ways. In Fernando principle (H) is in these terms: That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive objective circumstances full weight must be given to the competing public interest and rehabilitation of the offender and avoidance of recidivism on his part.

69. Supporting the same principle in R v Lattouf NSWCCA 12/12/96, Mahoney ACJ said:

“There is a public interest in the adoption and articulation of sentencing principles which would deter the commission of serious crime and punish those who commit it ... But there are other interests to which the sentencing process must have regard; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. As I have elsewhere said ‘If justice is not individual, it is nothing’.”

Powerful as the quote is, one of the key lines of it is that “justice must be achieved in the individual case”. That does not always mean a soft landing. It does not mean that in this case.

70. The competing tension is the drive to consistency in sentencing. Most recently put by the majority of the High Court in Markarian v The Queen (2005) 228 CLR 357 at [24]; (2005) 215 ALR 213 at [24]:

“Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as a cause with the statutory regime that applies.”

71. I have read the cases about domestic violence and what they urge, and I have made note of the statutory non-parole period and its impact on the sentencing. I have reviewed a number of cases referred to me by Mr Wilson where in the circumstances of each of those cases a lenient result was called for by the defence and achieved; see R v Hall unreported CCA 11/6/99, R v Lattouf NSWCCA 12/12/96, R v Gordon S.C. unreported 29/4/1994 per Hunt CJ at CL, R v Peter James Muir S.C unreported David Hunt J 3/4/1991. That last case was one of malicious wound with intent to do grievous bodily harm in which the prisoner had discharged a rifle at the victim wounding him in the chest, but not seriously. His Honour was dealing with an offender about half the age of Barker. In a passage that should be more recognised than it is, his Honour said:

“The prisoner had no relevant prior convictions. He is in effect at the turning point of his life and in my view the community, if fairly apprised of all the facts, would accept that the prisoner should be given the chance to work his way through to a better future, rather than that he should be flung onto the human scrapheap of society by an uncaring criminal justice system simply as a warning and an example to others.

I acknowledge finally there is an element of chance in the course I propose to take. Justice would have been better served by computers if judges were not prepared to give a chance to some even if the result may turn out to be unsuccessful.”

His Honour continued, “I do not believe that the result in this case will be unsuccessful.”

72. In that case his Honour imposed a three-year s 558 recognisance. Regrettably I cannot avoid full time imprisonment but I have set the minimum period that in my view the law requires. The sentence I have set is fashioned upon the sentence Wood J imposed in Stanley Fernando’s case. In today’s language that requires a finding of special circumstances. I will return to that shortly.

73. Notwithstanding defence counsel’s submissions that even though a sentence of imprisonment may be called for, I would not be falling into appealable error if I suspended it. I must reject this submission. The objective seriousness of the offence must take account of the deliberate bringing of the firearm. It must take account of the rope being used so that the victim was immobilised. It must take account that more than one blow was struck and each resulted in wounding. It must take account that Mrs Barker was not released immediately the wounds were occasioned.

74. Notwithstanding the powerful subjective case - no prior convictions, no prior domestic violent conduct, long and impressive employment history, immediate attempt at reconciliation with the wife, strong rehabilitation prospects and genuine contrition - a short, sharp period of full time custody is called for.

75. I have reviewed the JIRS statistics. I am satisfied the sentence that I am setting sits within the existing sentencing range and accommodates the extraordinary circumstances of this case.

76. My reasons for finding special circumstances include not only the facts - this is the offender’s first time in custody serving sentence - but also his age, his strong rehabilitation prospects, and that he is best left in the community to accomplish his rehabilitation. The only reason I send him to prison is the command of punishment. My own view of prison is that in every other way it is really counter indicated.

77. But for the plea of guilty on each of the charges I would have set an overall sentence of two years six months. I discount that by twenty-five per cent, and on my calculations that becomes a sentence of one year ten months and fifteen days.

78. Mr Barker in respect of the offence that you recklessly wounded Jenny Barker at Bourke on 22 July 2008, you are convicted. I set a non-parole period of six months. I take into account the time you have already served, which is thirty-seven days bail refused. If my calculations are correct your sentence will commence on 17 May 2009, that should be thirty-seven days ago, and expire on 16 November 2009. Your balance of term will expire, if my calculations are correct, on 31 March 2011. I order your release on 16 November 2009.

79. Likewise I convict you of possessing a loaded firearm, namely a Winchester brand twelve gauge shotgun so as to endanger the life of another person, namely Jennifer Barker, at Bourke on 22 July 2008 and I set precisely the same sentence with precisely the same dates, both sentences to run concurrently.

80. There a number of 166 matters. All of these sentences should be regarded as having been reduced by twenty-five per cent. The first is that you are convicted of possessing ammunition without a licence or permit on 22 July 2008. Pursuant to S.166 I convict you of that offence and sentence you to three months imprisonment. In respect of the unregistered firearm you are convicted and sentenced to six months imprisonment. The ammunition without licence offence, you are convicted and sentenced to three months imprisonment. The unregistered firearm, which is the .22 rifle at home, or at Nulty, you are convicted and sentenced to four months fifteen days imprisonment. And the not keep firearm safely, you are convicted and sentenced to four months imprisonment. All of those sentences are likewise backdated to 17 May 2009 and all are fixed terms.

Is there any other matter?

MAY: Your Honour just in relation to the possess ammunition without a licence or permit, I understood your Honour to impose a sentence of three months imprisonment. The maximum penalty is actually a fine of $5,500.

HIS HONOUR: I abandon the non-jurisdictional order. I convict him pursuant to 10A of the Crimes (Sentencing Procedure) Act.