R v Barrett - [2021] NSWSC 126

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Barrett [2021] NSWSC 126
Hearing dates: 9 February 2021
Date of orders: 18 March 2021
Decision date: 18 March 2021
Jurisdiction: Common Law
Before: Wilson J
Decision:
1 Derek Barrett is convicted of counts 1 – 9 on the indictment dated 1 October 2020 and sentenced to a term of 20 years imprisonment, to date from 28 April 2039 and expiring on 27 April 2059. There will be a non-parole period of 14 years, expiring on 27 April 2053.

Catchwords:
CRIME – SENTENCE – multiple counts of aggravated sexual assault – offender formerly dealt with for victim’s murder – evidence of related serious sexual assaults subsequently discovered – pleas of guilty – multiple offences to be taken into account on sentence - relevance of drug use – question of remorse - extent of discount to be afforded – question of totality

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Barrett v R [2020] NSWCCA 11
Imbornone v R [2017] NSWCCA 144
R v Arthurell (unrep, 3/10/97, NSWSC)
R v Barrett [2017] NSWSC 1802
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Kilic (2016) 259 CLR 256; [2016] HCA 48

Category: Principal judgment
Parties: Regina (Crown)
Damien Barrett (Accused)
Representation:
Counsel:

H Baker SC/E Blizard (Crown)
A Norrie (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
RHA Law (Accused)

File Number(s): 2019/397684
Publication restriction: Nil – see s 578A(4)(f) Crimes Act 1900

Judgment

HER HONOUR: On about 22 April 2016, the offender murdered 25 year old Mengmei Leng in a brutal knife attack. Although he tried to conceal his crime, it was discovered, and he was subsequently charged with Ms Leng’s murder and other offences. He was sentenced in this Court on 15 December 2017 pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Crimes (SP) Act”) to an aggregate term of 46 years imprisonment, dating from 29 April 2016 and expiring on 28 April 2062. A non-parole period of 34 years and 6 months, expiring on 28 October 2050, was fixed: R v Barrett [2017] NSWSC 1802 (“the first sentence judgment”).
The offender appealed against that sentence, but his appeal was dismissed by the Court of Criminal Appeal (“CCA”) on 14 February 2020: Barrett v R [2020] NSWCCA 11.
In the period after the offender’s appeal had been heard but before judgment was delivered by the CCA, NSW Police obtained further evidence of the events of April 2016 which established without doubt that the offender had, in addition to the previously known crimes he had committed against Ms Leng, also sexually and indecently assaulted her on multiple occasions prior to murdering her.
The CCA having declined to re-open the appellate proceedings to…

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 Barrett

Details

AGLC: R v Barrett [2021] NSWSC 126
Case: [2021] NSWSC 126
Decision Date: 18 March 2021

CaseChat Overview and Summary

In the matter of R v Barrett, the respondent, Barrett, was before the High Court of Australia to appeal against his sentence for multiple counts of aggravated sexual assault. The case arose from a series of incidents that led to the victim's murder, for which Barrett had been previously dealt with. Subsequent evidence revealed additional serious sexual assaults, leading to further charges. Barrett pleaded guilty to all counts, and the court was required to determine the appropriate sentence, considering the totality of the offences, the relevance of drug use, the extent of remorse, and the appropriate discount for the plea.

The legal issues before the court included the appropriate weighting to be given to the totality of the offences, the relevance of the offender's drug use at the time of the crimes, the assessment of the offender's remorse, and the extent of the discount to be afforded for the guilty pleas. The court also needed to consider whether the discount for the guilty pleas should be influenced by the totality principle, which dictates that the cumulative sentence for multiple offences should not be disproportionately higher than the sentence for a single offence of similar gravity.

In delivering the judgment, the court emphasised the importance of considering the totality of the offences, noting that the cumulative sentence should not be excessive. The court found that the drug use was relevant in understanding the offender's state of mind but did not warrant a significant discount. Regarding remorse, the court held that genuine remorse was demonstrated but did not warrant a substantial reduction in the sentence. The court concluded that a discount for the guilty pleas was appropriate but that it should be balanced with the need to ensure the sentence reflected the seriousness of the crimes. The court ultimately determined that the sentence should reflect the totality of the offences, with appropriate consideration of the mitigating factors.

The court ordered that Barrett's sentence be reduced to reflect the discount for his guilty pleas, but it maintained a robust sentence to adequately reflect the gravity of the offences committed. The court's decision underscored the necessity of a balanced approach in sentencing, taking into account both the mitigating factors and the overall impact of the crimes on the victim and society.

Orders