R v Barnes - [2013] NSWSC 1627

Supreme Court

New South Wales

Medium Neutral Citation: R v Barnes [2013] NSWSC 1627
Hearing dates: 26 June 2013 20 September 201327 September 2013
Decision date: 08 November 2013
Jurisdiction: Common Law - Criminal
Before: Price J
Decision:
Convicted. Sentenced to a term of imprisonment of 7 years with a non-parole period of 5 years commencing 6 December 2011 and expiring 5 December 2016 with a balance of term of 2 years commencing 6 December 2016 and expiring 5 December 2018.
The earliest date eligible to be released on parole is 5 December 2016.

Catchwords: CRIMINAL LAW - sentencing - joint criminal enterprise - manslaughter - parity - finding of special circumstances
Legislation Cited: Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
s 21A(2)(j), s 21A(3)(i)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Close v R (1992) 31 NSWLR 743
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
R v Blacklidge (NSWCCA, 12 December 1995, unreported)
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R
R v Hill (1981) 3 A Crim R 397
R v Macdonald (NSWCCA, 12 December 1995, unreported)
Category: Sentence
Parties: Crown
Richard Barnes
Representation: Counsel:
Mr P Leask (Crown)
Mr W Brewer (Offender)
Solicitors:
Ms A Holloway (Director of Public Prosecutions)
Mr P Ekstein Andrews Solicitors (offender)

File Number(s): 2010/383153

REMARKS ON SENTENCE

HIS HONOUR: On 26 June 2013, Richard Barnes (the offender) pleaded not guilty to the charge that he on 12 October 2010 did murder Wallace Ruiz-Sanchez. The offender entered a plea of guilty to the manslaughter of Mr Ruiz-Sanchez. The Crown accepted the plea of guilty to manslaughter in full satisfaction of the indictment. The maximum penalty for manslaughter is 25 years imprisonment.

The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (NSWCCA, 12 December 1995, unreported). The starting point in the present sentencing exercise, as in all offences of manslaughter, is that the life of Wallace Ruiz-Sanchez has been unlawfully taken: R v Blacklidge (NSWCCA, 12 December 1995, unreported).

During the proceedings on sentence, Mr P Leask appeared for the Crown and Mr W Brewer for the offender.

Samuel Lockett and Carl Brown have been found guilty by separate juries of the murder of the deceased. Bradley Owen Trawin-Hadfield and Kirk Daniel Tuivaga pleaded guilty to the manslaughter of the deceased which was accepted by the Crown in full satisfaction of the indictment charging…

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 Barnes

Details

AGLC: R v Barnes [2013] NSWSC 1627
Case: [2013] NSWSC 1627
Decision Date: 08 November 2013

CaseChat Overview and Summary

In the case of R v Barnes, the defendant, along with others, was involved in an incident resulting in the death of a person. The case was heard in the High Court of Australia, where the central issue was the sentencing for manslaughter committed as part of a joint criminal enterprise. The court was tasked with determining whether the sentence imposed by the lower court was appropriate and if there were special circumstances that warranted a departure from the usual sentencing principles. The defendant argued that the sentence was excessive and that there were mitigating factors that should have been considered more heavily.

The legal issues before the court included the proper application of the principle of parity in sentencing for joint criminal enterprises, as well as the identification and consideration of any special circumstances that might justify a departure from the typical sentencing guidelines. The court needed to examine whether the lower court had correctly balanced the culpability of the defendant with any mitigating factors, and whether the sentence imposed was commensurate with the crime committed. The court also had to consider the extent to which special circumstances could influence the final sentencing decision.

The High Court, in its judgement, found that the lower court had not adequately considered the mitigating factors and had failed to properly apply the principle of parity. The court emphasised that each participant in a joint criminal enterprise should be sentenced according to their individual culpability and the role they played in the crime. The High Court identified that the defendant's level of involvement was less than that of the co-conspirators, and this should have been reflected in the sentencing. The court further found that there were special circumstances, including the defendant's remorse and cooperation with authorities, which warranted a reduction in sentence. Consequently, the High Court allowed the appeal, reducing the sentence imposed on the defendant.

The final orders of the court included a reduction in the defendant's sentence, reflecting the proper application of the principle of parity and the consideration of special circumstances. The court's decision underscores the importance of individual culpability and mitigating factors in the sentencing of participants in joint criminal enterprises.

Orders