R v Barlow - [2013] NSWSC 217

Supreme Court

New South Wales

Medium Neutral Citation: R v Douglas Elwin Barlow [2013] NSWSC 217
Hearing dates: 18 - 20 March 2013
Decision date: 21 March 2013
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
The offender is sentenced to a term of imprisonment of 23 years consisting of a non-parole period of 17 years commencing on 17 July 2011 expiring on 16 July 2028 with a balance of term of 6 years commencing on 17 July 2028 expiring on 16 July 2034. The first day upon which the offender will become eligible for release on parole is 17 July 2028.

Catchwords: CRIMINAL LAW - sentence - murder - stabbing at a hotel - prior physical confrontation and racial abuse involving the offender and the deceased earlier in the day - Aboriginal offender with history of alcohol and substance abuse since early teens - violent upbringing in deprived circumstances - prior criminal record including personal violence offences - whether provocation or intoxication mitigating features - plea of guilty on first day of trial
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: JM v R [2012] NSWCCA 83
Kennedy v R [2010] NSWCCA 260
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v Bollen (1998) 99 A Crim R 510
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Fernando (1992) 76 A Crim R 58
R v Previtera (1997) 94 A Crim R 76
R v Thomson & Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383
Zaro v R [2009] NSWCCA 219
Category: Sentence
Parties: Crown
Douglas Elwin Barlow
Representation: Counsel:
J Baly (Crown)
S Hanley (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Jack Rigg Solicitors (Offender)

File Number(s): 2011/230824
Publication restriction: Nil

Judgment

HIS HONOUR: On the first day of a trial scheduled to commence in Lismore on 18 March 2013 the offender pleaded guilty to a single count in an indictment alleging that on 17 July 2011 at Ballina in the State of New South Wales he did murder David Newport.

The offence of murder carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period of 20 years. Similarly, I am not required to make an assessment of whether or not the offence is within the mid range of objective seriousness (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions generally, and the provisions of ss 55B(2), 54B(3) and 21A of the Crimes (Sentencing Procedure) Act 1999 in particular, require an approach to sentencing in which all of the relevant factors are identified, and a judgment is reached as to the appropriate sentence…

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 Barlow

Details

AGLC: R v Barlow [2013] NSWSC 217
Case: [2013] NSWSC 217
Decision Date: 21 March 2013

CaseChat Overview and Summary

In the case of R v Barlow, the defendant faced the court on charges of murder, arising from a stabbing incident at a hotel. The deceased and the defendant had earlier engaged in a physical confrontation and exchange of racial abuse, leading to the fatal altercation. The offender, an Aboriginal man, had a history of alcohol and substance abuse since his early teens, coupled with a violent upbringing in deprived circumstances. His prior criminal record included offences of personal violence. The legal issues before the court were whether provocation or intoxication could be considered mitigating factors in the sentencing of the defendant, who entered a guilty plea on the first day of the trial.

The court considered the significant mitigating factors presented by the defendant's background, including his troubled upbringing and history of substance abuse. It was noted that the defendant's actions were influenced by both his intoxication and the provocative conduct of the deceased. However, the court also had to weigh these factors against the gravity of the offence, which involved a fatal stabbing. The court acknowledged the defendant's guilty plea as an indication of remorse, but also recognised the necessity of deterrence and denunciation in the context of such a serious crime.

After careful deliberation, the court determined that while the mitigating factors were substantial, they did not sufficiently reduce the culpability of the defendant to warrant a lenient sentence. The court concluded that the provocation and intoxication did play a role in the commission of the offence, but these did not absolve the defendant of the seriousness of his actions. The court imposed a sentence that reflected both the mitigating circumstances and the need to uphold the rule of law, ensuring public confidence in the justice system.

The final orders of the court included the imposition of a custodial sentence, with specific consideration given to the defendant's background and the mitigating factors presented. The court mandated that the defendant serve a term of imprisonment, with provisions for parole eligibility after serving a significant portion of the sentence. This decision balanced the need for punishment with the recognition of the defendant's challenging life circumstances and the mitigating role of provocation and intoxication.

Orders