R v Barton - [2007] NSWSC 651

No judgment structure available for this case.

CITATION: R v Barton [2007] NSWSC 651

HEARING DATE(S): 01/09/2006, 29/9/2006, 26/10/2006, 23/3/2007, 11/05/2007

JUDGMENT DATE :
29 June 2007

JUDGMENT OF: Buddin J

DECISION: In respect of count 1, the manslaughter of M., sentenced to a fixed term of 5 years imprisonment to commence on 13 September 2004 and to expire on 12 September 2009. In respect of count 3, the attempted murder of J., sentenced to a fixed term of 13 years imprisonment to commence on 13 March 2006 and to expire on 12 March 2017. In respect of count 2, the murder of N., sentenced to a non-parole period of 30 years to commence on 13 September 2009 and to expire on 12 September 2039 with the total term being one of 37 years which will expire on 12 September 2046. The overall effective non-parole period is thus one of 35 years and the effective total term is one of 42 years. The first date on which you will be eligible for parole will be 12 September 2039.

CATCHWORDS: Sentencing - offences of murder, attempted murder and manslaughter - Manslaughter by way of provocation - offender subjected to blackmail and threats by deceased over many years - offender sets fire to premises in which deceased's young children are asleep - one child dies - offender rescues other child - Murder - whether it falls within "worst category of offence" - whether maximum penalty should be imposed

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Adanguidi v R [2006] NSWCCA 404
Johnson v R (2004) 205 ALR 346
Knight v R (2006) 164 A Crim R 126
MAH v R [2006] NSWCCA 226
Pearce v The Queen (1998) 194 CLR 610
R v AJP (2004) 150 A Crim R 575
R v Alexander (1994) 78 A Crim R 141
R v Andrews (2006) 160 A Crim R 505
R v Apps [2006] NSWCCA 290
R v Aslett [2006] NSWCCA 360
R v Cheatham [2002] NSWCCA 360
R v Durocher-Yvon (2003) 58 NSWLR 581
R v FD & JD (2006) 160 A Crim R 392
R v Folbigg (2005) 152 A Crim R 35
R v Fraser [2004] NSWSC 53
R v Harris (2000) 50 NSWLR 409
R v Hill (1981) 3 A Crim R 397
R v MA (2004) 145 A Crim R 434
R v McDonald (unreported, NSWCCA, 12 December 1995)
R v Merritt (2004) 59 NSWLR 557
R v Miles [2002] NSWCCA 276
R v Mostyn (2004) 145 A Crim R 304
R v Park [2003] NSWCCA 142
R v Previtera (1997) 94 A Crim R 76
R v Sievers (2004) 151 A Crim R 426
R v Simpson (2001) 53 NSWLR 704
R v SLD (2003) 58 NSWLR 589
R v Tiwary [2006] NSWSC 1156
R v Trevenna (2004) 149 A Crim R 505
R v Troja (unreported, NSWCCA, 16 July 1991)
R v Velevski NSWSC unreported 26 September 1997
R v Villa [2005] NSWCCA 4
R v Wallace [2007] NSWCCA 63
R v Way (2004) 60 NSWLR 168
R v Yildiz (2006) 160 A Crim R 218

PARTIES: Regina
James Harry Barton

FILE NUMBER(S): SC 2005/1623

COUNSEL: D Howard SC (Crown)
A Webb (Offender)

SOLICITORS: S Kavanagh (Solicitor for Director of Pubic Prosecutions)
Legal Aid Commission (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 29 JUNE 2007

REGINA v JAMES HARRY BARTON

REMARKS ON SENTENCE
Introduction

1 HIS HONOUR: James Harry Barton (whom I shall refer to as the offender) was arraigned upon an indictment containing three counts. The first count charged him with having murdered a man whom I shall refer to as M. The second count charged him with having murdered M’s 3 year old daughter whom I shall refer to as N. The final count charged him with having attempted to murder M’s 5 year old son whom I shall refer to as J. (Because those latter two victims are children it is necessary to protect their identity and accordingly the identity of other family members). In the alternative to that count, he was charged with having maliciously destroyed property intending by the destruction of that property to endanger the life of J.

2 The offender was found not guilty of the murder of M. but guilty of manslaughter, an offence which attracts a maximum penalty of 25 years imprisonment. He was also found guilty of the murder of N, an offence which attracts a maximum penalty of life imprisonment. Finally, he was found guilty of the attempted murder of J, an offence which, by reason of s 30 of the Crimes Act 1900, attracts a maximum penalty of 25 years imprisonment.

The factual background

3 In respect of the first count, the offender admitted having shot the deceased in the back of his head with a bullet fired from an unregistered rifle. The shooting took place in the deceased’s house on 3 September 2004. His body remained in the house for the following 24 hours. The offender claimed to have acted in self-defence. Because of the evidence which emerged during the course of the trial, the parties agreed that the issue of provocation should be left to the jury for its consideration. Given the jury’s verdict, it will be necessary in due course to determine whether the offender is to be sentenced in respect of that count upon the basis of “excessive self-defence” or provocation.

4 At the time of his death, M. was living in Housing Commission premises in Albury with his two children, J. and N. He had been their sole carer following the break-up of his relationship with the children’s mother, whom I shall refer to as K. K. had left the family home in 2001 following a violent altercation with the deceased, and had gone to live in Queensland.

5 The jury, by its verdicts in respect of counts 2 and 3, clearly accepted that the offender deliberately set fire to M’s residence the following evening (that is on 4 September). The Crown case was that he did so in an endeavour to conceal the fact that he had killed M. Asleep in the premises at the time were the deceased’s two children. The offender, who admitted having been at the premises for at least a number of hours prior to the fire, was caring for the children and knew that they were asleep inside the premises at the time of the fire.

6 The Crown case was that the offender intended that the children should perish in the fire along with their father in order to ensure that they did not say anything that may implicate him in their father’s death (they having been in the house the previous evening when he was shot and killed). N. died in the fire but J. was rescued from the house by the offender.

7 Although there is no dispute as to much of the relevant factual material, there are some matters that are in contest. Where there are matters of that kind which are capable of aggravating the objective criminality of the offender’s conduct, I am aware that I must find that such matters are established to the criminal standard.

8 Although I will in due course refer to the offender’s subjective features in a little more detail, it is necessary to say something briefly at this stage about his background and the circumstances giving rise to his relationship with M. The offender is now aged 50 having been born on 27 January 1957. He had known M. for approximately 30 years. He first met the deceased, who was a few years younger than him, when he (the offender) was aged about 18 or 19. As I understand the evidence, they met through a Citizen’s Band Radio Club.

9 Their relationship was, to say the least, highly unusual. Although it appears that they became friends, it is not altogether clear what sustained the friendship. The deceased had a significant criminal record and readily resorted both to violence and to intimidating behaviour. Moreover, he was actively involved in the drug milieu, both as a user and supplier of illicit drugs. There is little to suggest that he was ever in regular employment.

10 By way of contrast, the offender has had only one previous encounter with the criminal law, which occurred as far back as 1977. It involved the lighting of fires and I will refer to it in greater detail in due course. The evidence indicated that he had been in full-time employment for all his adult life and that he had had no association with drugs. At the time of his arrest, the offender had been employed as a chemical handler at a textile plant for a period of 16 years. There is nothing to suggest that he was anything other than a loyal and conscientious employee. He had lived with his mother until her death in April 2004. He used to assist with boxing training at the Police Citizens Youth Club. In short, he appeared to have lived a law abiding existence. As I have implied, it is not easy to see what the offender and deceased had in common. An appreciation of the nature of their relationship is nonetheless central to understanding the context in which the offences in respect of which the offender stands for sentence, occurred.

11 The evidence conclusively demonstrates that on a regular basis from 1994 onwards the deceased had been blackmailing the offender. Evidence concerning the nature and extent to which the deceased had been blackmailing the offender was before the jury. However, I excluded from the jury’s consideration evidence of the reason for the blackmail. The material which I excluded nevertheless formed part of the evidence adduced during the course of the proceedings on sentence. Additional material pertaining to that issue was also admitted into evidence in those proceedings.

12 The material related to the offender's inappropriate sexual behaviour towards an 11 year old boy and included admissions made by the offender to police that during the course of a camping trip he had “attempted to touch this young kid”. The deceased was present at the time of the incident and it was his knowledge of it that enabled him to blackmail the offender.

13 The offender produced a large amount of written material to police which established that he had been blackmailed. Not only did he produce documentary evidence of the blackmail, but he also handed over tape recordings of conversations between himself and the deceased which provided support for his version of events. As I understand the evidence, the conversations were recorded by him over a period of 5 or 6 years. In all, more than 20 such conversations were played to the jury.

14 Although it is not possible to ascertain the precise dates on which the various conversations occurred, the flavour of them can be gleaned from the following exchanges which are extracted from some of those conversations:

V1 You ever had your fingers broken before? One at a time?

V1 I’ll be there.

V2 You made a promise to the guy and a promise to a person like that is very ???

15 There was other evidence before the jury concerning violent threats which had been made against the offender. A witness named Brent Clarke gave evidence that the deceased told him that he had “contacted some big fella” who had put a gun to the offender’s head and had thereby extracted money from him. The deceased told another man, Bobbie-Joe Williams, that he had got a man to “stand over” the offender for money. A witness named Mark Warford told police that the deceased was “one of those guys who can be very overpowering especially to people with a good nature or heart”.

16 What a bare reading of the transcripts of the conversations does not reveal however is the chilling and menacing tone which the deceased adopted in them. I have no difficulty in concluding that the deceased found it easy to intimidate the offender. Nor am I in any doubt that the offender had genuine fears for his safety if he did not comply with the deceased’s demands.

17 In addition to that material, a number of witnesses called by the Crown gave evidence that the deceased had bragged to them that he had been blackmailing the offender. It is not possible to quantify precisely how much money and other items of value the offender had given to the deceased over the years, but I am satisfied that the total value of what was provided amounted to many thousands of dollars. It consisted not only of cash payments, but also involved the purchase and/or financing of motor vehicles and other items. On several occasions, the offender provided the finance for business ventures upon which the deceased wished to embark. None of those ventures proved to be successful. One witness, Denise Butler, gave evidence which graphically but accurately portrays the situation. She said that the deceased described the offender as a “money tree”.

18 Furthermore, it would appear that the offender was not the deceased’s only blackmail victim. One of his neighbours, a mildly intellectually disabled woman, told police that she had paid the deceased $2500 because he had been blackmailing her as well.

19 Some indication of what impact the blackmail and the other threats had upon the offender can be gleaned from the following extract which is taken from his third interview with police.

20 One of the items which the offender provided to police was the syringe with which he said that he had been attacked by M.

21 The offender was asked by police why he had made the recordings of conversations with the deceased. He replied:

Well, at the time, up until I started to make those recordings, well, the amounts of money he wanted weren’t that considerable, and they were reasonably well-spaced, and he didn’t actually threaten my life. It was only when he started to threaten my life and get his mates there, there were a couple of times I’ve had shotguns pointed at me, I’ve had pistols pointed at me, and I thought, well, if he kills me he could do anything, and he can get away with it.

22 In cross-examination at the trial the offender agreed that as a result of the deceased’s conduct, he “had had enough”. He also agreed that the deceased had been increasing the pressure on him for more money in the aftermath of his mother’s death which, as I have said, occurred in April 2004. The deceased knew that the offender was due to inherit his mother’s house and clearly saw that as providing an additional source of finance of which he could take advantage. There was also evidence that further pressure was being applied by the deceased upon the offender in the period just prior to his death for him to finance the purchase of a new vehicle. The offender described himself as being “stuck in a circle” because he felt unable to tell anyone why he was being blackmailed. The Crown described the deceased’s conduct as being “persistent and pernicious”.

23 Somewhat ironically the young boy in question at no stage made a complaint about the incident. Indeed, in a statement to police made many years later (by which time he was an adult) he denied having been “touched in an inappropriate way” by the offender. He described thinking that what had happened “was a massage sort of thing”. Nevertheless it is quite apparent that the offender was concerned that he may well go to gaol should the deceased decide to disclose details of the incident to the police. He was also concerned to ensure that his mother did not become aware of the situation.

24 The Crown described the deceased as being an “awful man”. It is convenient to now refer to some other evidence which reveals a little more about him. His criminal record included a conviction for an armed robbery committed in 1990 when he and a co-offender forced entry to a flat in St Kilda in Melbourne. The deceased was armed with a .22 rifle which he pointed at the head of the female occupant of the flat who was forced to remove her clothing. The deceased’s companion was armed at the time with a tyre lever. A quantity of heroin and a wallet were taken from the occupants of the flat.

25 There was other evidence that the deceased had been, at various times, in possession of firearms. Indeed he had convictions for such offences. K., for example, gave evidence that she had left the deceased after he had let off what she believed was a rifle “at the side of my head”. She also said that he “bashed her all the time”. K’s sister, whom I shall refer to as P., gave evidence that the deceased had threatened to burn down her house. He also, she said, had shown her a bullet and had told her “this one is for you”.

26 Furthermore, the evidence reveals that the deceased kept a number of post-mortem photographs of an extremely gruesome nature. They included photographs of both men and women who had been killed, and even of young girls who, according to one witness, “looked like they had been raped”. The deceased told a young woman who worked for him, that he had obtained the photographs from a police officer and that he was keeping them for the purpose of intimidating people. The offender gave evidence that he had been given the photographs by the deceased “to look after”. He said that he kept them as proof of the deceased’s “standover nature”.

27 I have already made reference to the deceased’s involvement in the drug milieu. He had been a habitual user of drugs since his teenage years. He also had a number of convictions for drug related offences and had served prison sentences for supplying drugs. Tests performed upon the deceased revealed that he had alcohol, cannabis, methylamphetamine and morphine in his blood at the time of his death. His lifestyle as a drug user and supplier undoubtedly adversely affected his capacity to care for his children.

28 It is now necessary to return to the events of Friday 3 September and Saturday 4 September. Because the offender is the only person who can provide a complete version of what occurred during that period of time, it will be necessary to refer in a little detail to the evidence which he gave at the trial. He gave evidence that he went to the deceased’s house during the course of the Friday. He went there, he said, with a view to making preparations for the markets which he and the deceased used to attend on Sundays. The markets were but one of the business ventures in which they were, from time to time, involved. He said that they operated a stall at the markets at which they sold items of bric-a-brac. The offender gave evidence that the deceased informed him that he had selected a new vehicle which he was due to collect the following day. The offender said that the deceased told him that the transaction had been arranged and that he (the offender) was to provide the finance for the purchase of the vehicle and that he was also to meet the repayments (other evidence confirmed that the deceased had indeed selected a vehicle and that he had informed the salesman at the caryard that the offender would be making the repayments). The offender gave evidence that he told the deceased that he was unable to proceed with the purchase because he could not afford it.

29 The offender gave evidence that after the deceased had put the children to bed, he produced a rifle with which he threatened the offender. The offender said that the deceased pointed the rifle at him and said “You’re fucking dead now”. The offender said that he was able to grab the rifle because the deceased was distracted by the sound of his dog which was barking. The offender said that he then shot the deceased in the back of the head but claimed, as I have said, that he had acted in self-defence.

30 The offender gave evidence that after killing the deceased he remained sitting on the lounge in the deceased’s premises for about an hour. He said that he expected that a neighbour would have heard the sound of the gunshot and alerted police. When no one arrived, he said that he decided to return to his home which was in Wodonga. He said that before leaving the deceased’s premises he got out of his clothes, which were blood-stained, and changed into a pair of the deceased’s trousers. He said that he then placed a doona over the deceased’s body. He then collected the rifle and went home.

31 According to the offender, he left the two children asleep in the house. That meant that they remained there, together with their father’s corpse, until the following morning. The offender said that he returned to the house the following morning just as the children were getting up. It is unnecessary to record in detail what occurred during the course of the Saturday. Suffice it to say that the offender admitted that he had the children in his exclusive care for the entire day. Indeed several witnesses gave evidence of having seen him with the children at various stages during the course of the day. Shortly after 6 pm that evening the offender was recorded on CCTV footage, maintained by a petrol station, purchasing 10 litres of petrol, some of which he admitted placing into a 1.5 litre milk container. He said in evidence that he did so because his vehicle had run out of petrol. That explanation cannot however be reconciled with other parts of his evidence in which he claimed that the occasion on which his vehicle had run out of petrol had occurred much earlier in the day. Other evidence reveals that the offender drove his vehicle back to Wodonga and left it there. He then returned to the deceased’s house with the children by bus and then taxi. It is common ground that he did so in order to ensure that his vehicle was not at the scene when the fire was lit. His motivation for doing so was clearly to avoid suspicion descending upon him.

32 After some time away from the house, the offender took the children back to their house arriving there at some stage in the early evening. He gave evidence that they all watched a movie together which ran from 7.30 pm until 11 pm. According to the offender, J. went to bed immediately after the movie finished. He said that N. had gone to bed at some earlier point in time.

33 The offender gave evidence that he had been outside the premises endeavouring to retrieve the family dog which had got out of the yard, when the fire had spontaneously erupted. A neighbour, Peter Burgess, first raised the alarm by ringing the emergency services number at 11.36 pm. The fire was, by then, well alight. I infer that the fire was lit a relatively short time beforehand and that it spread rapidly. The fire caused very extensive damage to the house which had to be demolished.

34 The offender called the emergency number at 11.37 pm but there was no great urgency in his voice. Nor did he say anything about there being children in the house. I am satisfied to the requisite standard that the offender’s primary reason for making the call was to “cover his tracks”.

35 The offender suggested both in the course of giving evidence, and to various people including police, a number of ways in which the fire may have occurred accidentally. However, a fire investigator, Gary Malpass, gave evidence that in his expert opinion it had been deliberately lit. The jury clearly rejected any suggestion that the fire was not lit deliberately. I am satisfied to the requisite standard that the offender poured a flammable substance, in all likelihood the petrol which he had purchased that evening, at various locations in the loungeroom including in the area where M’s remains were found. The deceased’s boxer shorts and the doona which covered him, as well as the offender’s shoes, were found to have petrol upon them. That evidence strongly suggested that the offender had endeavoured to destroy any indication that the deceased’s body had been there. The evidence also revealed that the back door was locked, and that the front door was closed, which meant that any avenue of escape for the children was significantly reduced. It must be observed however that there was no evidence of there being any petrol in their bedrooms .

36 Mr Webb who appeared for the offender, whilst not conceding that the fire had been deliberately lit, sought nonetheless to place reliance upon material adduced through a witness named Kelvin McElhenny. That witness had had a conversation with Queensland police who had arrested him pursuant to a bench warrant which had been issued to secure his attendance at the trial. During the course of that conversation, which was recorded, Mr McElhenny appeared to suggest that a “bikie gang” had been responsible for the crimes with which the offender had been charged. When he gave his evidence, however, Mr McElhenny professed to have no recollection of the conversation. Indeed he denied that it was his voice on the recording. Mr McElhenny said in evidence that all he knew of the matter was what he had read in the newspaper. Moreover aspects of his evidence were at odds with the objective evidence. He said, for example, that “they [the bikies] shot the deceased and lit the fire” whereas the offender admitted that he alone was responsible for shooting M. I have little difficulty in concluding, as I am sure the jury concluded, that the account which Mr McElhenny gave to police was utterly unreliable.

37 The Crown case that the offender deliberately lit the fire intending that the two children should perish in it, was irresistible. The offender’s evidence in response to it was utterly implausible. There is little doubt in those circumstances, and indeed it is common ground, that the offender intended to kill both children. Furthermore, the jury was directed that it could only convict the offender of attempting to murder J. if it found that he had intended to kill him. The jury was specifically directed that an intention to inflict grievous bodily harm would not be sufficient to establish the offence charged in count 3. It is thus reasonable to infer that it reached the same conclusion about his state of mind in relation to count 2.

38 Mercifully, the young boy, J., was saved from the inferno by the offender. I am satisfied to the requisite standard however that the offender smashed his bedroom window and rescued him only after neighbours had arrived at the scene of the fire and had expressed concerns about the children. For example, one neighbour, Patricia Cottle, having ascertained from the offender that the children were still in the house, gave evidence that she had specifically instructed him to “go and get them”. It may be that the offender’s conscience was also operating upon him, but I am satisfied that his primary motivation in rescuing J. was to deflect suspicion away from himself. Nor do other aspects of the offender’s conduct, such as moving his vehicle rather than seeking to rescue the children, suggest that his major concern was for the children. Indeed when he was asked by one neighbour why “he had moved the car instead of getting the kids out first”, the offender had replied “that he was worried that the car was going to burn”. His conduct may be contrasted with the actions of various neighbours who placed themselves in considerable danger by entering the house in an endeavour to save N. at a time when the offender was maintaining to people at the scene that it was not possible to save her. Furthermore, it is common ground that the offender had removed a number of items from the house, to which he said that he was entitled, before the fire began. He said that he had done so in an attempt to recoup some of the blackmail money which he had paid to the deceased. None of that behaviour, or indeed his subsequent actions, suggest that the offender’s conscience had suddenly got the better of him. I am unable however, given the state of the evidence, to accept the Crown’s submission that the offender was endeavouring to leave the scene in the deceased’s car at the time when the neighbours arrived. Nor am I prepared to find to the requisite standard that the offender “secreted” the children away from other adults during the course of the Saturday.

39 J. was taken to Albury Base Hospital and then to the Royal Children’s Hospital in Melbourne. He had burns to 10% of his body, the worst affected areas being his face and his hands. His injuries were however described as being superficial. Fortunately they have all healed. The only remaining physical evidence of his ordeal is some slight scarring to his forehead. Nevertheless the trauma which he experienced must have been quite horrific for anyone, let alone someone so young, to have endured. Somewhat tellingly, he told a witness at the scene, that “I woke up and my blanket was on fire”.

40 J. is now living with his father’s sister, whom I shall refer to as C., and her family. That has required a considerable adjustment for her family since C. is in her fifties and has adult children of her own. She said that she had to resign from her job to “take on the parental duties of a very emotionally disturbed young child”. She read out in court a victim impact statement which she had prepared on her own account concerning, inter alia, the impact upon her of the loss of her brother, together with one which she had prepared on J’s behalf. In the latter statement she sets out the psychological impact which the offence had had upon him.

The major incapacity is the emotional and psychological damage as a result of his father and sister being murdered by “his Uncle” Jamie, the trauma of the house fire and his hospitalisation. J. continues to become very upset and misses his father and sister dearly. He was horrified when he saw photos of his burnt house and also broke down crying when he went through the salvaged photos. J. knows exactly what happened to his father and sister and he often asks why. He becomes very angry and emotionally upset and in particular, with the fact that he will never see his daddy and sister again. Whenever J. sees a house fire on the television, he remembers all too clearly his house being burnt.

41 N. was, of course, not so fortunate. It is common ground that she also awoke during the course of the fire. Neighbours who attempted to rescue her heard her screaming out for help. Indeed the evidence indicates that the offender heard her screams as well. Mr Malpass gave evidence that the position of her body suggested that the door into the loungeroom from the hallway which led to her bedroom had been opened which indicated, he said, that she had left her bedroom but had been met with a “rush of flames”. She died of burns and smoke inhalation. It is reasonable to assume that she experienced an excruciating death.

42 The Crown adduced evidence that each of the children had methadone in their blood at the time of their death. Dr Capelhorn gave evidence that, in his expert opinion, J. consumed his dose no more than 12 hours prior to the fire. Indeed the doctor appeared to favour the view that it was within a much shorter period of time than that. Because N. died, Dr Capelhorn was unable to be quite as specific as to when she had consumed the drug. The Crown contended that, as the offender was the only person who had had access to the children during that timeframe, he must have administered the methadone to both children. The offender denied having done so, or at least having done so wittingly. I am satisfied that the circumstances allow of no reasonable possibility other than that the offender provided the methadone to the children. It defies credulity that each of the children could, on this day of all days, have coincidentally chosen to consume methadone of their own accord. By way of explanation, the offender gave evidence that that evening he gave the children what he thought was cordial from a bottle which the deceased kept in the fridge. I accept that given his connection with the drug milieu, it is highly likely that it was the deceased, rather than the offender, who obtained the methadone. Although I am satisfied that the offender administered the methadone to the children, I accept that it is possible that the offender may not have known precisely what the substance was. I am left in no doubt however, that he knew that consuming it would have had the effect of sedating the children. I am satisfied to the requisite standard that he administered it to them with the intention that it would render them drowsy. I am satisfied that he also wanted to ensure they would not wake up during the course of the fire. After pointing to the substantial levels of methadone in the children’s blood, Mr Webb submitted that:

[i]t may have been intended that the methadone would so impair their mental capacity that they would not be aware of the fire at all.

43 I am disposed to accept that submission.

Subjective features

44 Tendered on the offender’s behalf was a psychiatric report from Dr Nielssen, a psychological report prepared by Ms Anna Robilliard, a neuropsychological assessment report prepared by Dr Susan Pulman and a report from Mr Keith Lethlean, a neurologist. I was also provided with a report by Mr Eric Lippey, who is a vascular surgeon. Finally, a letter provided by Ms Crilly, a solicitor employed by the NSW Department of Corrective Services, setting out information concerning the offender’s “protective custody status” was admitted into evidence.

45 The offender has spent most of his life in Wodonga having moved there with his parents and his adopted brother, to whom he remains close, during his childhood. His formative years were apparently unremarkable. All indications are that he had the benefit of a nurturing and stable family and that he participated in sporting and other activities as he was growing up. He left school after having completed the School Certificate and then entered the workforce. Since then he has worked in various positions and it is to his credit that, as I have said, he had been until his incarceration in constant employment.

46 The offender, as I have said, lived with his mother and was, to a large extent, dependent upon her. He was understandably devastated by her death. He has never married. Nor apparently has he formed any close intimate relationship with anyone.

47 Dr Nielssen, a forensic psychiatrist, examined the offender at the request of his solicitors. He reported in the following terms, about a medical condition which has impacted significantly upon the offender’s life:

[The offender] had an inherited neurological condition, neurofibromatosis type 1, also known as von Recklinghausen’s Disease. [The offender] said that the condition manifested with numerous benign tumours of nerve cells in the skin, but as far as he was aware he did not have any growing in his brain or affecting any aspect of neurological function. [The offender] did not report any mental or neurological complications of the disease and his only treatment was a stool softening medication because of the affects [sic] of tumours on bowel function.

[The offender] said that he was teased as a child because of the condition and as he grew up had very few opportunities for relationships. [The offender] said that having children was “out of the question” because of the risk that one of his children might inherit the disorder.

48 The offender is said to be self-conscious about the manner in which the condition has affected his appearance. Over the years he has had “large tumours removed because of their unsightly appearance”. Dr Nielssen concluded that the offender:

carries a risk of developing a benign tumour obstructing other organs and of developing an untreatable form of malignancy as a result of his inherited condition.

49 As I have indicated, I was provided with a report by Eric Lippey who attended the offender when he was admitted to Concord Hospital on 24 March this year “with a history of a syncopal episode (fainting) and lower abdominal pain”. His report continues in the following terms:

On admission he was found to be mildly shocked. Physical examination showed some tenderness and guarding in the lower abdomen. A CT scan revealed a large left-sided pelvic haematoma. Subsequent iliac angiography showed a ruptured pseudoaneurysm of the left internal pudendal artery, which is a branch of the left internal iliac. This was successfully embolised with three coils and two units of packed cells were given.

His subsequent progress was marked by a spiking fever, and a subsequent CT scan of the abdomen performed on about the seventh postoperative day showed a large pelvic collection with some gas.

It was felt that he had an infected haematoma of the pelvis and Dr Norman Janu, General Surgeon, was consulted. Dr Janu’s suggestion was that the collection be treated conservatively with antibiotics, and indeed he settled on this regime, finally being discharged on 12 April.

In answer to your questions:

(iv) In terms of prognosis, his prognosis from the coiling of this vessel is reasonably good. He may, of course, develop further unusual aneurysms due to his neurofibromatosis. It is safe to say that as he has had an otherwise normal CT scan of the abdomen in that no such aneurysms are currently present in the abdomen.

50 The net effect of that evidence is that the offender remains susceptible to complications arising from his inherited disease which may well continue to plague him for the remainder of his life.

51 Dr Nielssen did not however “elicit signs of a major mental disorder”. Indeed he expressed the opinion that “no psychiatric treatment is recommended”. He concluded that there was no basis for a:

diagnosis of any psychiatric disorder. In particular, there was no evidence from the history or examination of neuropsychiatric complications of Von Recklinghausen’s Disease, which include deafness, hydrocephalus, epilepsy and mental retardation.

52 He also observed that:

[t]here is no history of conduct disorder in adolescence, any history of symptoms of mental illness…or any history of substance abuse.

53 Dr Pulman described in the following terms the neuropsychological significance of the condition from which the offender suffers:

Neurofibromatoses are a set of inherited disorders that tend to result in the development of benign tumours of the nerve sheath. Neurofibromatosis type 1 (“NF1”) is the most common type of the disorders, affecting approximately 1 in 3500 individuals. Half of people with NF1 inherit the condition from a parent, and half have a new occurrence of the condition. The manifestation of NF1 is highly variable and multiple organ systems are typically affected. Some of the more common symptoms include benign neurofibromas, café au lait spots and Lisch nodules (tan spots on the iris of the eye). Some individuals with NF1 also exhibit more severe associated conditions such as optic pathway tumors (gliomas) or bones bending or curving. Neurocognitive deficits and special learning disabilities occur in approximately 30-50% of individuals with NF1. While most research has focused on children, NF1 results in global cognitive impairment among adults as well. Adults with NF1 may have deficits in visuoperceptual ability, motor coordination, expressive and receptive language, executive functioning, memory and mental flexibility (Theo et al, 2006; Zoller et al, 1997). Patients with NF1 also show a slight depression in mean IQ scores compared to healthy adults without the disorder.

54 Having conducted various tests she arrived at the following conclusions:

The results of current assessment revealed some evidence of cognitive impairment. On tests of recent memory, executive functioning and information processing speed [the offender] returned scores that were reduced relative to his IQ. Whereas his Full Scale IQ was measured as falling in the average range, his scores on tests of learning and retention of unstructured verbal information, mental flexibility, verbal fluency, information processing speed and some aspects of attention fell within the borderline range. In view of these deficits, it is recommended [that the offender] be referred to a neurologist for further review .

Although there was no evidence to indicate he was purposefully attempting to achieve poorly during the assessment, he was noted to display fluctuating levels of attention and variable performance which could impact on the overall results. Difficulties with attention and concentration are frequently observed in individuals suffering from NF1. It is likely that at least some of [the offender’s] cognitive deficits observed during this assessment are a result of NF1. However, despite the presence of these deficits, his overall cognitive functioning is not at the level of severity which would impact on his fitness or capacity to stand trial.

55 (Although Dr Pulman referred to the offender’s fitness to stand trial, it is nevertheless clear that she understood that she was being asked to provide a report for sentencing purposes. Accordingly her report should be considered in that light).

56 Dr Pulman also concluded that the offender’s “thought processes appeared clear and well organised. There was no evidence of any mental illness.”

57 In view of Dr Pulman’s recommendation, the proceedings were adjourned to enable the offender to be examined by a neurologist. The neurologist, Mr Lethlean concluded however that:

“there is no evidence for cognitive or other change in [the offender] which would be important in considering his offences and his sentencing from a neurological/medical point of view”.

58 In her report (to which Mr Lethlean made reference), Ms Robilliard concluded that:

[a]cross the Clinical Personality Pattern scales, which are enduring personality attributes that combine to characterise the individual, only two scores fall into the significant range: Avoidant and Schizoid in that order. At the more severe end of these measures of psychopathology there is no evidence of any severe dysfunctional processes that would attract a diagnosis of personality disorder.

[The offender’s] resultant profile on the personality test (MCM III) described predominant avoidant and schizoid personality attributes. At a reactive level his scores demonstrated elevated Anxiety and symptoms of Post Traumatic Stress Disorder. On questioning, [the offender] acknowledged he is still deeply disturbed by intrusive memories associated with the fire he has been found guilty of lighting, particularly the sounds of the children screaming. On disclosing this information [the offender] was tearful and obviously distressed. …

It seems reasonable to hypothesise that [the offender’s] personality development has been influenced and shaped by his genetic skin condition. It effects [sic] his appearance and has serious genetic implications. [The offender] has chosen to remain single because of it, nor did he allow himself to form any close interpersonal attachments to women. …

59 Ms Robilliard went on to describe the offender as:

…a solitary and lonely man. His skin disease, its genetic implications and consequent impact on his choices in life, have contributed to that character. It is a disfiguring, genetic condition, which can have neurological implications, however, his performance on the intelligence and neurological screening tests administered did not evidence any significant cognitive impairment at this stage. The impact of his condition appears to be on his psychological and emotional health and wellbeing and his life choices.

60 She also observed that “[b]ecause his self-esteem and feelings of self worth were fragile [he] was probably vulnerable to apparent offers of friendship”. I take that reference to be an explanation as to how the offender allowed himself to be exploited by M.

61 Ms Robilliard observed that the offender is “extremely distressed” by the death of N. and the injuries to J. and that he is haunted by the sounds of the children screaming. From this material, Ms Robilliard concluded that the offender appeared “sincerely remorseful for the death of N. and the serious injuries suffered by J.” However the offender continues to deny that he is responsible, in the legal sense, for what occurred to the children. I am inclined to the view that he is simply incapable of accepting that he could have been responsible for having committed such horrendous crimes. Be that as it may, it is difficult to see how in those circumstances, the offender could legitimately expect any reduction in sentence for having displayed contrition.

62 Dr Nielssen also gave oral evidence. He did so at the request of the Crown. He was cross-examined at considerable length upon the issue of future dangerousness, a matter to which I shall return in due course. In that context Dr Nielssen gave the following evidence:

Q. How do those factors I have just taken you to impact on your assessment of his personality and his dangerousness?
A. With regards to the personality structure, I mean that's an area and the whole scenario of his relationship with [the deceased], it's consistent with being a quite immature personality and part of that immaturity is a limited capacity for empathy, and also limited problem solving in that. It seems to me that he could have dealt with the situation in a better way if his problem solving ability was a little more resourceful.

Q. So this was just poor problem solving on his part, was it?
A. It's both. But it seems that the 24 hour delay you would assume of course he cannot think of what to do and that's what I mean by problem solving. With a dead body there, you know, you have got to do something now, call the police or dispose of the body and yet he's gone 24 hours not being able to work out what to do.

Q. Although he subsequently sets petrol about the house and sets it on fire. I want you also - before I ask the next question, having set the petrol and set fire to the house, that suggests having come to some decision about what to do, doesn't it?
A. Yes.

Q. And that solution to his problem displayed a complete coldness, I would suggest, and a lack of empathy towards the infant children?
A. Yes, it does. But there is an ambivalent quality in that he then rescues one of them so.

Q. The existence of those characteristics; of being deliberate and calculating in the sense that you use calculating and deliberate being unfeeling and lacking in empathy towards the three year-old and five year-old child, in those circumstances does that, in your mind and in your opinion, give rise to concerns about his dangerousness?
A. Yes, well, it does raise some concern, and I reiterate what I said before; his personality assessment is perhaps one part of some estimate of future dangerousness, along with past behaviour and future circumstances.

63 In re-examination he said:

Q. In consideration of his personality, are there other matters that you can add to the factors - in rounding out a description of his personality are there other matters that you have observed but not referred to? … A. I mean, you have to bear in mind I only did interview him the once and I was focussing a lot on the subject before the court. I mean, I think the factor of his inherent condition is important in his psychological make up; that it does, it did affect his view of his own future, that he carried a risk of developing a terminal illness and also a risk of passing on a condition to any children he might have, and there's chronic embarrassment owing to the physical manifestations of the condition, with lots of small tumours of the skin and so forth, so I think that's an important, important part of the kind of person that he has become.

64 In a supplementary report Dr Nielssen provided the following opinion:

That [the offender] could be blackmailed for many years over the allegation of a homosexual encounter, mainly because he was concerned his mother would find out, indicates the very limited nature of his problem solving skills. It also indicates the nature of his relationship with his mother and the effect his mother’s recent death is likely to have had on his state of mind.

In response to your specific questions, the circumstances listed in your further letter of instruction and the way in which [the offender] allowed himself to be blackmailed over a period of ten years support the view that he had significant impairment in his capacity for logical problem solving.

65 As I already indicated, there is evidence before me concerning the offender’s custodial circumstances. A letter, dated 28 July 2006, indicates that the offender was then classified as being a “protection non-association” [PRNA] inmate and was being held in protective custody at his own request. Although it is not a factor which is expressly mentioned in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, (hereinafter referred to as the Act) the fact that an offender is serving his or her sentence in protective custody is a matter which can be taken into account in mitigation of sentence. The authorities make it plain however that the circumstances in which an offender who is on protection is serving, and is likely to serve, his or her sentence should be carefully scrutinised by a sentencing court: see R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168 at 199-200; R v Wallace [2007] NSWCCA 63.

66 The offender told Dr Nielssen that he had sought protection following threats and an assault from an associate of M. I was provided with a document, prepared by the Department of Corrective Services, which sets out the type of restrictions which operate in respect of inmates with a PRNA classification. Of particular relevance are the conditions applying in the MRRC, which is where the offender was then housed. Those inmates, unlike “normal” discipline inmates, do not have access to the oval and can only exercise in the yard for a period of half an hour to an hour each day. They are only permitted to associate with inmates in the same category as their own. Unlike “normal discipline” inmates, PRNA inmates do not have access to education or other such programs. They do however have access to the same contact and legal visits and welfare services as “normal discipline” inmates. When I enquired as to what the future held for the offender, so far as his custodial arrangements were concerned, I was provided with a handwritten statement in which the offender stated that he was on “limited association” but that he anticipated being returned to his earlier status once he is sentenced. He also indicated that he intended remaining in protection for the duration of his sentence. Notwithstanding the lack of precision in that material, I am prepared to accept that the offender is likely, as best one can tell, to remain in protective custody for the duration of his sentence. I am not in a position however to determine the full extent of the restrictions which will operate upon him.

67 I referred earlier to the fact that the offender had a prior conviction dating back to 1977. I have been provided with some background material in relation to that matter which resulted in him being placed on probation for a period of 3 years by the County Court of Victoria in respect of two offences of malicious damage. It was a condition of the probation order that the offender attend and undergo such treatment as the Superintendent of the Beechworth Mental Hospital directed. Unfortunately the offender’s representatives were unable to obtain any information as to whether he had received any treatment of that kind. The offender told Dr Pulman however that he had been subjected to psychiatric review at Beechworth Mental Hospital but that “he was not diagnosed with any mental condition and [that he] has not suffered any depression”.

68 I have been provided with some details about those offences. Much of that information emerges from a recorded interview which was conducted with him by police. In short, the offender admitted having deliberately lit two separate series of fires on trains on which he was employed as the conductor. In all a total of five fires were lit. As I understand the situation, the offender lit the first series of fires in carriages of a train which was then standing at Albury Station and from which the passengers had alighted. Those fires were then extinguished with the offender’s assistance. The offender was unable to explain to police why he had lit the fires although he did observe that he “must be a firebug”. A little later the same day he lit further fires on a passenger train as it was travelling from Wodonga to Melbourne. He lit one such fire in the air-conditioning unit. The offender told police that he had previously made complaints, which had been ignored, about the state of the air-conditioning in a particular carriage. The offender sought to explain his conduct by saying that if the carriage was damaged by fire then the authorities would be obliged “to [fix] it up”. In relation to another fire, he maintained that he had lit it because the carriage had lurched causing him to hit his shoulder. The value of the property damaged was estimated to be $60,000.

69 Dr Nielssen, Ms Robilliard and Dr Pulman all questioned the offender about those earlier offences. Ms Robilliard records that he told her that “it was not his intention to cause damage, that he and some others were throwing lighted matches at each other”. Dr Pulman says that the offender told her that “he got into a bit of trouble clowning around with fire…I was flicking a match stick which caught fire”. These explanations, it may be observed, are at odds with what the offender told police at the time. Dr Nielssen said that the offender “denied having any kind of fascination with fire and said that if he had wanted to light a fire he would have known how to do it better because of his experience with chemical handling”.

70 In addition to the victim impact statement which, as I have said, was read to the court by C., I have also received a victim impact statement from the children’s mother, K. She of course was not living with the children at the time. She found out about the fate of her children when she saw a report about the fire on the television news. At the time she only knew that one of her children had died and she had to endure the anguish of not knowing which one it was. She also found it particularly difficult to accept that the person responsible for these offences was a person whom she not only regarded as a friend, but was someone who had often looked after her children. She is understandably suffering from “severe depression”, and thus far the medication, which she has been prescribed, has not alleviated her condition.

71 The feelings which the two women have so eloquently expressed and the grief which they have each suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased persons my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.

Relevant sentencing considerations

72 It is necessary to make some brief observations of a general nature before going on to consider the issues that are of particular relevance to the individual offences.

73 I am required to have regard to the relevant statutory framework that pertains to the sentencing of offenders, and to the principles enunciated in the authorities which bear upon that issue. In that context I must have regard to the purposes of sentencing which are set out in s 3A of the Act. See also R v MA (2004) 145 A Crim R 434.

74 In determining the appropriate sentence for the various offences, I must also have regard to the various aggravating factors set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: R v Andrews (2006) 160 A Crim R 505. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element, or if it is an “inherent characteristic”, of the offence charged: R v Yildiz (2006) 160 A Crim R 218.

75 I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Act.

Count 1 - Manslaughter

76 Although, as I have said, the jury rejected the offender’s claim that he had acted in self-defence, Mr Webb nonetheless contended that it was open to me to find that the offender’s actions constituted excessive self-defence. Accordingly it falls to me to determine the appropriate basis upon which the offender is to be sentenced for this offence. I am not disposed to accept Mr Webb’s submission. The finding which he urges I should make would entail the rather surprising conclusion that, although the offender personally believed that his action in shooting the deceased was necessary in defending himself, his conduct was not however a reasonable response in the circumstances as he perceived them (ie that his response was excessive). If the deceased had really been the aggressor, as the offender maintained that he was, it is difficult to see how in the circumstances as he described them, his claim of self-defence (which would have entitled him to an acquittal), could have been rejected. The only reasonable inference to draw is that the jury rejected the offender’s claim, as would I, with the consequence that the issue of self-defence was eliminated by the Crown beyond reasonable doubt. Accordingly, no question of the reasonableness or otherwise of his response arises.

77 There are a number of other reasons why, in my view, the offender’s submissions concerning excessive self-defence should be rejected. First, the offender did not raise the issue of self-defence in either of the first two interviews which were conducted with him by police on the day following the fire. Secondly, the offender was forced to admit that he had repeatedly lied to the police when he had denied knowing (either directly or impliedly), of the deceased’s whereabouts. Furthermore, he feigned surprise when he was informed that the body of an adult male (the deceased) had been located in the premises. The offender also admitted having lied to a number of other persons about the circumstances in which the deceased had died. Thirdly, even when the offender eventually admitted to police (some days later) that he had killed the deceased there were inconsistencies in the accounts which he gave as to how his death had occurred. Fourthly, the offender gave evidence of an extended fight which had occurred after the deceased had been shot. That fact alone suggested that the offender’s account was implausible. Moreover, he had made no reference to an altercation of that kind when he had been interviewed by police. (Although I do not think that anything turns upon the issue I observe that I am unable to determine whether the shot to the deceased’s head rendered him immediately unconscious). Fifthly, the offender shot the deceased in the back of the head. He also inflicted a number of other injuries upon the deceased’s body and to his head which were consistent with having been caused by a blunt object. Although I am unable to determine at precisely what point in time the blows which caused those injuries were inflicted, I am satisfied that they were caused by the offender using the blunt part of the rifle. It is apparent that the blows must have been struck with some force because they caused the rifle to break into two pieces. The offender was unable to satisfactorily explain how the rifle had broken but, it is accepted on his behalf, that it must have occurred during the course of the fatal incident. The offender was also unable to satisfactorily explain why the weapon, which he contended had been produced by the deceased, was found by police at his premises. His evidence that he had taken it back to his place intending to repair it and then sell it simply defies belief.

78 Sixthly, police discovered not only the rifle but also ammunition which was capable of being used in the rifle at the offender’s premises. Moreover, ammunition of an identical kind was located in the offender’s possession when he was first spoken to by police. The offender admitted lying to police as to his reasons for having had possession of that ammunition. Somewhat tellingly, the accused admitted in cross-examination that the reason that he had not originally told police about his claim of self-defence was because “I didn’t think they’d believe me”. The offender’s possession of the rifle and ammunition provides very strong support for the conclusion that it was he and not the deceased, whom it may be observed was wearing nothing but a pair of boxer shorts when he died, who produced the gun. In reaching that conclusion I have not overlooked the deceased’s association with firearms.

79 On the other hand there was, as I have suggested, an overwhelming body of evidence pointing to the conclusion that the offender had been acting under provocation. The Crown relied heavily upon the evidence concerning the relationship between the offender and the deceased, including the evidence as to the deceased’s persistent efforts in blackmailing the offender, in order to establish motive on the part of the offender. The pressure on the offender in all probability increased significantly in the period leading up to the fateful weekend on which M. was killed. In view of the evidence I have little doubt that the offender had reached the end of his tether. He was in a state of paralysis and was simply unable to resist the deceased’s continuing demands and the violent threats which, on occasions, accompanied them. Those efforts which the offender made to resist the deceased were readily overcome by the deceased. Given his fear of going to the police about his situation, the offender saw himself as having no means of ever disentangling himself from the clutches of the deceased and lacked the personal resources to enable him to do so. In the circumstances I find to the requisite standard that the offender killed the deceased whilst acting under provocation, a significant feature of which was the fact that the offender had, for many years, been blackmailed by the deceased. Finally, I note that the only issue upon which the jury requested redirections was in relation to the issue of provocation. None of this is to suggest, of course that the offender did not remain in fear of the deceased.

80 In R v Alexander (1994) 78 A Crim R 141 Hunt CJ at CL set out the following principles as being relevant to an assessment of an offender’s culpability when he or she is found to have been acting under provocation:

81 It is convenient to consider each of these matters in turn. As to the first matter, I have already indicated that the degree of provocation offered was of very considerable significance especially as it continued over such an extended period of time. The second matter is a little more difficult to resolve. I am satisfied to the requisite standard that the offender owned both the rifle and the ammunition. His explanation for having possession of those items was, as he conceded, riddled with lies and inconsistencies. I have little hesitation in rejecting his evidence upon this aspect of the matter.

82 That does not however require me to accept the proposition which the Crown advanced, namely that the offender determined upon a course of action which involved his setting out from his premises that evening with the intention of killing the deceased in cold blood and arming himself for the purpose of doing so. I am not prepared to make such a finding beyond reasonable doubt particularly given that the offender would undoubtedly have anticipated that the deceased’s children would be at the premises. There are a number of factors which need to be brought into account in the present context. I am inclined to the view that the offender’s decision to kill the deceased is most likely to have arisen as a result of a dispute having occurred between them at some stage during the course of the Friday evening. It is very likely to have been precipitated by an argument about the purchase of the vehicle which the deceased had arranged to collect the following day. It is also highly likely that threats were made by the deceased during the course of the argument. In my view it is a reasonable possibility that it was only at that point that the offender decided to kill the deceased and that it was only then that he went to retrieve the rifle and the ammunition. I am inclined, in those circumstances, to the view that although there was certainly some period of time between the provocation and the loss of self-control, it was not of the duration contended for by the Crown.

83 So far as the final matter is concerned, it is clear that by striking the blows to the deceased as well as shooting him (albeit once), the offender exhibited a greater degree of violence than was necessary in order to kill the deceased.

84 As I have said, it is important to bear in mind the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. It is irrelevant that the deceased was not a paragon of virtue. The community expects that human life will be protected by the law and that those who take it will be suitably punished: see R v Hill (1981) 3 A Crim R 397; R v Troja (unreported, NSWCCA, 16 July 1991 at 2) and R v McDonald (unreported, NSWCCA, 12 December 1995).

85 It is an aggravating feature that the offence involved the use of a weapon: s 21A(2)(c) of the Act. On the other hand the offender is entitled to have weighed in his favour the fact that he does not have a “significant record” of previous convictions: s21A(3)(e) and that essentially he was at the time of these offences “a person of good character”: s21A(3)(f). I have also had regard, to the extent which is appropriate, to the other matters of a subjective nature to which I have already referred.

Count 2 - Murder

86 Section 61 of the Act provides:

87 Notwithstanding the mandatory terms of s 61, s 21 of the Act preserves the discretion to impose a determinate sentence: see generally R v Merritt (2004) 59 NSWLR 557.

The relevant authorities

88 In Knight v R (2006) 164 A Crim R 126 McClellan CJ at CL, (with whom Adams J, who made some additional remarks, and Latham J agreed) observed that:

There will rarely be only one correct sentence for any particular offender. As much as a conventional sentencing decision is difficult, when sentencing for murder in circumstances where a life sentence may be appropriate and where, if sentenced to life imprisonment, the offender will never be released the task is even more onerous. The problems are acute when the offender might be expected to live for another forty years or more and where, although guilty of a heinous crime, and a present danger to the community, the impact of incarceration and the amelioration of criminal tendencies with time could result in that person being satisfactorily returned to society at some, although distant, future time.

Crimes (Sentencing Procedure) Act

· the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452.

· it is not possible to prescribe a list of cases falling within the worst category – ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 – Hunt CJ at CL).

· a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994).

· in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.

R v Merritt

Merritt

89 In R v Aslett [2006] NSWCCA 360 an offender stood for sentence in respect of one count of murder and many other unrelated offences of violence, some of which were committed before the murder and some after it. The primary judge observed that “standing alone [the offence of murder] would not have qualified for a life sentence”. Nonetheless his Honour felt constrained to impose the maximum penalty because the offender’s criminal history, as well as other unrelated offences for which he was being sentenced, meant that he remained a danger to the community and that he had negligible prospects of rehabilitation.

90 The Court of Criminal Appeal allowed an appeal against the trial judge’s decision and substituted a determinate sentence for the life sentence imposed at first instance. McClellan CJ at CL, with whom Hoeben J agreed:

To my mind there is some difficulty reconciling the result in Harris with the principle defined in Veen (No 2). If a prior offence, including a prior killing, is not capable of informing the objective criminality of the instant offence, even if it be another killing, the imposition of a life sentence for the latest killing, as was done on appeal in Harris requires that the latest offence qualifies as an offence of extreme culpability justifying a life sentence (s 61(1)). Be that as it may, as I have said, the approach to the issue of prior offending has been authoritatively determined in so far as this Court is concerned in McNaughton.

Appropriate application of the principles in Veen (No 2) as explained in McNaughton to the present case leads inevitably to the conclusion that the life sentence which Wood CJ at CL imposed for the count of murder was not appropriate. When sentencing Wood CJ at CL observed that “standing alone” the offence did not justify a life sentence. However, his Honour decided to impose a life sentence in light of the fact that the murder followed other serious and appalling offences for which the applicant had been and was now being sentenced. Finding that the murder involved an utter recklessness and disregard of human life and occurred in the course of an armed robbery, his Honour concluded that the dangerousness of the applicant to the community and his negligible prospects of rehabilitation left no alternative but to impose a life sentence.

The difficulty with his Honour’s approach is that, notwithstanding the legitimacy of each of the individual findings which his Honour made as to the criminality involved in the offences and the personal characteristics of the applicant, his Honour concluded that standing alone the offence would not have qualified for a life sentence. This must mean that his Honour concluded that the culpability of the applicant for the crime of felony murder, even one involving utter recklessness and disregard of human life, could not justify a life sentence.

91 James J agreed that the approach taken by the primary judge was prohibited by the decision in McNaughton. His Honour said that the judge “was not entitled to use the applicant’s other offences as warranting the imposition of a life sentence for an offence, which, standing by itself, would not warrant the imposition of a life sentence” (at par 50).

92 In Adanguidi v R [2006] NSWCCA 404 the offender invited a man, whom he knew, to his house for the purpose of robbing him. He assaulted the man and then tied him up. The offender made repeated demands of the man for money. When those demands were not met, the offender left his victim bound and gagged. The offender then went to the man’s home where he shot and killed the man’s son and daughter. He then attacked the man’s wife who subsequently died from the injuries which she had sustained. The Court of Criminal Appeal dismissed an appeal against the life sentences which had been imposed in respect of each of the three murders.

93 Having reviewed a number of decisions, Hislop J (with whom Spigelman CJ and Sully J agreed) said:

Aslett

Villa

Aslett

Application of the principles to the present case

94 The Crown submitted that the murder of N. was of such gravity as to require the imposition of a life sentence. The imposition of a life sentence upon an offender means that he or she has no prospect of release, save for the prerogative of mercy. The “terrible significance” of such a sentence is palpably clear: R v Harris (2000) 50 NSWLR 409 (at par 124).

95 There are a number of features of the case which must be considered in assessing the offender’s criminality. First, there is the question of N’s vulnerability, by reason of her age: see s 21A(2)(l) of the Act. Secondly, the offender was well-known to N. Both she and J. were entitled to place their trust in him. For all intents and purposes, the offender was acting in loco parentis to them at the time when he decided to take their lives: see s21A(2)(k). Thirdly, the offence entailed a degree of planning. I am not able to determine at precisely what point in time the offender decided to embark upon his plan to light the fire in the house with the intention that the children should perish in it. However, given the various things which the offender did, such as obtaining the petrol, taking his vehicle back to his own house, and providing the children with methadone, I am satisfied to the requisite standard that the offender reached the decision to kill the children at least some hours before the fire was lit. That being so, it is clear that there was a considerable measure of deliberation and planning about the offence: see s 21A(2)(m). I accept nonetheless that it was neither a sophisticated nor well thought out plan. The offender lit the fire on a Housing Commission estate in which the neighbouring houses were close by. Moreover, there was a birthday party taking place only a few doors away. Nor did the offender have the presence of mind to make good his escape. On the contrary, he remained at the scene.

96 Finally, it is necessary to have regard to the offender’s motivation. In written submissions Mr Webb advanced the following scenario as possibly reflecting the offender’s motivation. He submitted that “with his impaired abilities, he elected to allow for the possibility that the children would die in the fire in circumstances where he had killed their principal caregiver and was well aware that [the deceased’s] support was at best equivocal, relying at times on neighbours with complications of their own, and also being aware that their mother had moved to Queensland from where she continued to harass him”. As I understand the submission, it was suggested that the offender saw the death of the children, given the demise of their primary caregiver, as being motivated by a concern that it would represent something of a “merciful release”. I have little hesitation in rejecting the submission as there is simply no evidentiary basis to support it.

97 I was informed by the parties that although J. had been twice interviewed by the police, he had said nothing to them which directly implicated the offender in the shooting of his father. He did however tell them that the offender was present at the house on both the Friday and the Saturday. There was other evidence led during the trial that other people had also seen him there. The only other evidence upon this issue comes from the offender who told police that the children had been asleep at the time of their father’s death.

98 It may be that the offender had more than one motive. However I am satisfied that his primary concern was to conceal the fact that he had shot and killed M. together with any physical evidence that may have associated him with his death. In setting out to light the fire the offender wanted the world at large to accept that the deceased had perished in the fire. Presumably he believed that such a view would carry greater authenticity if the fire was to also claim the lives of the children. In other words his purpose was to make it appear as if the entire family had died simultaneously in the fire. His purpose in administering methadone to the children was, as I have said, designed to ensure that they would not wake up. That purpose is consistent with the view which I have already expressed, namely that the fire was intended to look like an accident that had claimed the entire family. I am not prepared in the circumstances to conclude that the offender was motivated to kill the children out of a fear that unless he did so they would, as the Crown contended, implicate him in their father’s death. Nevertheless on any assessment of the situation, the offender clearly believed that the death of the children was necessary to enable him to conceal the fact that he had already committed an unlawful homicide, albeit that the crime was manslaughter and not murder.

99 The real tragedy of the situation is that the offender was apparently unable to see any means of dealing with the consequences of his having killed M. other than to embark upon a course of conduct which meant that two innocent children had to perish. That is notwithstanding the fact that he had, on his own version of events, a period of 24 hours following M’s death in which to determine what he should do. In the final analysis the offender simply went ahead with his plan to set fire to the premises notwithstanding his awareness of the terrible consequences that would flow from his actions. Clearly lighting a fire in such circumstances is an inherently dangerous activity.

100 As I said earlier, considerable emphasis was placed by the Crown upon the question of future dangerousness. The material upon which it sought to rely emerged from the cross-examination of Dr Nielssen. Dr Nielssen was not asked by the representatives of the offender to consider the question of future dangerousness and nor was any evidence called upon the issue by the Crown. The evidence which was before the Court on the issue must therefore be assessed in that light.

101 Dr Nielssen acknowledged that the offender’s inability to take responsibility for his actions as well as his prior involvement in lighting fires each represented a “poor prognostic sign” so far as future dangerousness was concerned. Dr Nielssen also acknowledged that the offender’s conduct towards the children revealed “a lack of empathy”. Dr Nielssen did however draw attention to the fact that the offender was only 20 at the time of the previous incident. He also observed that the circumstances in which those fires were lit were significantly different from the present case.

102 He then gave the following evidence:

103 A finding that an offender is likely to re-offend is not something that has to be proved beyond reasonable doubt: R v SLD (2003) 58 NSWLR 589. Dr Nielssen’s evidence clearly suggests that there is some room for concern about the issue of the offender’s future dangerousness. In those circumstances it is appropriate to have some regard to the need for community protection. By the same token however, Dr Nielssen expressed considerable reservations about reaching a definitive view upon the matter especially when it concerned a prediction as to circumstances which must necessarily be so far into the future. In any event, assuming for present purposes that it was appropriate to impose a sentence other than one of life imprisonment, the offender could not, as a matter of practical reality, expect to be released into the community until he had reached an age at which he would no longer represent any significant continuing threat to it. Nor are the present circumstances likely to be replicated at any stage in the future.

104 In both Merritt (supra) and Knight (supra), reference was made to the “two stage approach” in determining whether a life sentence is required. See also R v Sievers (2004) 151 A Crim R 426. The first stage requires a determination that “on the objective facts, the level of culpability is so extreme that it warrants the maximum penalty”: see R v Miles [2002] NSWCCA 276 [at par 204]. As I understand the situation, Mr Webb does not contend that the facts of the present case are not capable of meeting that description. In written submissions he observed that:

[c]learly, the criminality involved in the setting of the fire is properly discussed as perhaps falling into [the worst class of case], whether or not it actually does so is clearly a matter for the Court following consideration of matters raised by both parties together with other matters as the Court may see as also relevant.

105 My approach to the present sentencing task must be informed by the principles expressed by the Court of Criminal Appeal in the authorities to which I have made reference, including Aslett (supra). That said, the circumstances which prevailed in the present case, are quite different from those which existed in Aslett. The significance of the earlier offence (the manslaughter of M.) in the present case is the fact that the subsequent offence (the murder of N.) was committed, as I have found, for the very reason that the offender was concerned to conceal the fact that he had committed that earlier offence. In that sense the offences are inextricably linked. Putting the matter another way, the objective gravity of the murder of N. is relevantly “informed” by the offender’s motivation for having committing it. In all the circumstances, it is my view that the first stage of the “two stage approach” is readily satisfied.

106 Mr Webb’s primary submission was that the second stage of the process, which requires a determination as to “whether the subjective factors are capable of displacing the prima facie need for the maximum penalty”, should see a determinate, rather than a life, sentence imposed. In advancing that submission, he relied upon the various matters to which I referred earlier in discussing the subjective features of the offender’s case. As I said at the outset of these Remarks, the setting in which the offender came to light this fire must be assessed and understood in the context of the quite extraordinary and bizarre relationship which existed between him and the deceased. Moreover, the offender’s disease clearly significantly affected his overall well-being, both in a physical and an emotional sense. I accept that it played a role in shaping his personality and character and that it helps to explain his shortcomings in that respect. The evidence of Dr Nielssen demonstrates that he was emotionally immature and that he lacked problem solving skills. The offender was also socially and emotionally isolated, a factor that was exacerbated by the death of his mother to whom, as I have said, he was devoted. I also accept, as I said earlier, that part of his initial fear was that his mother would find out about the incident over which he was blackmailed. All those factors made him extremely vulnerable to the deceased’s overtures, particularly as they maintained some level of friendship as well as a working relationship.

107 As time went by however, the demands and threats made by the deceased to the offender’s life and limb increased in their intensity and reached a crescendo in the period just prior to the fatal incidents. The extended period of time during which the offender was effectively under the deceased’s control is, in my view, a highly relevant factor in understanding the offender’s state of mind in the period immediately prior to the lighting of the fire. I should add that I had the opportunity, during the course of what was a lengthy trial, to observe the offender, not only whilst he gave evidence, but as he conducted himself in court in a more general sense. My own impressions of his presentation were confirmed by the evidence which was adduced concerning his personality shortcomings. I should note that Mr Webb also relied upon the fact that the offender is, by reason of his status as a “protection inmate”, going to have to serve his sentence in more burdensome circumstances than would a mainstream inmate.

108 To assist me in the sentencing task I was provided with a schedule of cases which appears on the Public Defenders’ website in which life imprisonment has been imposed. In that respect, I have had regard to cases such as R v Villa [2005] NSWCCA 4 and R v Tiwary [2006] NSWSC 1156, in which life sentences were imposed upon offenders who were motivated to kill persons in order to remove them as witnesses who could implicate them in an earlier homicide. However, as I have explained, the offender’s motivation in the present case is somewhat different. Furthermore, as the Crown observed, Villa involved an even greater degree of criminality than the present case.

109 I have also had due regard to a number of cases in which determinate sentences have been imposed for offences at the most serious end of the spectrum. I have also considered cases in which offenders have committed multiple murders including situations in which the victims have been young children, albeit they have all been situations in which the offender has killed members of his or her own family: see, for example, R v Velevski NSWSC unreported 26 September 1997; R v Park [2003] NSWCCA 142 at par 203; R v Cheatham [2002] NSWCCA 360; Merritt (supra); R v Fraser [2004] NSWSC 53; R v Folbigg (2005) 152 A Crim R 35. Determinate sentences have been imposed in many such cases although the circumstances in the present case are clearly somewhat different.

110 In considering that material, I am of course mindful of the inherent limitations in having regard to other decisions except insofar as they may be understood to form part of an overall sentencing pattern: see Merritt (supra) at par 67: see also generally R v Trevenna (2004) 149 A Crim R 505.

111 I have given anxious consideration to the competing submissions of the parties. On the one hand, the offender has committed a crime of such objective gravity that it can be properly categorised as falling into the worst category of offence. On the other hand, the offender is a person who, notwithstanding a number of challenges that have been put in his way, has led an otherwise worthwhile and productive existence. More significantly, I accept that the impact which the deceased’s conduct had upon the offender over such an extended period assumes considerable importance in assessing the appropriate sentencing outcome. In that context, I accept the opinion of Dr Nielssen that it “significantly impaired” his capacity to make logical choices at the time when he lit the fire. Accordingly, I am prepared to accept that the highly unusual combination of matters upon which Mr Webb relied, are sufficient to justify the imposition of a sentence other than other one of life imprisonment.

112 The present offence attracts the operation of s 54A of the Act. Section 54A(2) provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table to this Division”. The standard non-parole period for the offence of murder is 20 years. Section 54B sets out the mechanism by which the non-parole period is to be determined. The relevant sub-sections are in the following terms:

…
(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

113 In construing the section, I have had regard to the principles set out in Way (supra) especially at pars 117-124; 131: see also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v Apps [2006] NSWCCA 290; Wallace (supra).

114 It was not suggested and nor could it be, that a non-parole period which considerably exceeded the standard non-parole period was not called for. Nor was any submission advanced that there should be a finding of special circumstances.

Count 3

115 Although many of the same considerations which apply in relation to count 2 have relevance to the sentencing exercise in respect of count 3, the circumstances giving rise to this count, which attracts a standard non-parole period of 10 years, are to be regarded in a somewhat different light. Whatever it was that prompted the offender to rescue J., the fact of the matter is that it was his actions which saved the little boy’s life. Serious as the offence was when the offender embarked upon it, due recognition must be given to the fact that he rescued J., regardless of what may have been his motivation for having done so. I have nevertheless come to the view that the offence still lies above the mid-range of objective seriousness. So far as this offence is concerned, it is appropriate to again have regard to those mitigating factors which I indicated were applicable to the sentence to be imposed in respect of counts 1 and count 2.

116 I am acutely aware of the fact that the offender is to be sentenced in respect of three separate offences, albeit that they are interconnected. In those circumstances, it is necessary to have regard to considerations of totality and also to the question of concurrency and cumulation of sentences: see Pearce v The Queen (1998) 194 CLR 610 and Johnson v R (2004) 205 ALR 346. In setting the effective overall non-parole period which I intend to impose, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704. The consequence is that the proportion between the effective overall non-parole period and the effective overall sentence will be higher than the normal statutory proportion. I am also aware that the effective non-parole period which I shall impose will mean that the offender will have no prospect of release to parole until he is well into old age. Nonetheless the prospect of his eventual release into the community still remains.

James Harry Barton

117 In respect of count 1, the manslaughter of M., you are sentenced to a fixed term of 5 years imprisonment to commence on 13 September 2004 and to expire on 12 September 2009.

118 In respect of count 3, the attempted murder of J., you are sentenced to a fixed term of 13 years imprisonment to commence on 13 March 2006 and to expire on 12 March 2019.

119 In respect of count 2, the murder of N., you are sentenced to a non-parole period of 30 years to commence on 13 September 2009 and to expire on 12 September 2039 with the total term being one of 37 years which will expire on 12 September 2046. The overall effective non-parole period is thus one of 35 years and the effective total term is one of 42 years. The first date on which you will be eligible for parole will be 12 September 2039 at which time you will eighty-two years of age.

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Citations

R v Barton [2007] NSWSC 651

Most Recent Citation

Frost v Commissioner of Police [2014] QDC 294

Cases Citing This Decision

3

Carter v Northmore Hale Davy & Leake [1995] HCA 33

The Queen v Richard Alister Kingston [2001] NZCA 170

Frost v Commissioner of Police [2014] QDC 294

Cases Cited

35

Statutory Material Cited

2

R v Wallace [2007] NSWCCA 63

R v Malceski [2004] VSCA 138

Muldrock v The Queen [2011] HCA 39

CITATION:	R v Barton [2007] NSWSC 651
HEARING DATE(S):	01/09/2006, 29/9/2006, 26/10/2006, 23/3/2007, 11/05/2007
JUDGMENT DATE :	29 June 2007
JUDGMENT OF:	Buddin J
DECISION:	In respect of count 1, the manslaughter of M., sentenced to a fixed term of 5 years imprisonment to commence on 13 September 2004 and to expire on 12 September 2009. In respect of count 3, the attempted murder of J., sentenced to a fixed term of 13 years imprisonment to commence on 13 March 2006 and to expire on 12 March 2017. In respect of count 2, the murder of N., sentenced to a non-parole period of 30 years to commence on 13 September 2009 and to expire on 12 September 2039 with the total term being one of 37 years which will expire on 12 September 2046. The overall effective non-parole period is thus one of 35 years and the effective total term is one of 42 years. The first date on which you will be eligible for parole will be 12 September 2039.
CATCHWORDS:	Sentencing - offences of murder, attempted murder and manslaughter - Manslaughter by way of provocation - offender subjected to blackmail and threats by deceased over many years - offender sets fire to premises in which deceased's young children are asleep - one child dies - offender rescues other child - Murder - whether it falls within "worst category of offence" - whether maximum penalty should be imposed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Adanguidi v R [2006] NSWCCA 404 Johnson v R (2004) 205 ALR 346 Knight v R (2006) 164 A Crim R 126 MAH v R [2006] NSWCCA 226 Pearce v The Queen (1998) 194 CLR 610 R v AJP (2004) 150 A Crim R 575 R v Alexander (1994) 78 A Crim R 141 R v Andrews (2006) 160 A Crim R 505 R v Apps [2006] NSWCCA 290 R v Aslett [2006] NSWCCA 360 R v Cheatham [2002] NSWCCA 360 R v Durocher-Yvon (2003) 58 NSWLR 581 R v FD & JD (2006) 160 A Crim R 392 R v Folbigg (2005) 152 A Crim R 35 R v Fraser [2004] NSWSC 53 R v Harris (2000) 50 NSWLR 409 R v Hill (1981) 3 A Crim R 397 R v MA (2004) 145 A Crim R 434 R v McDonald (unreported, NSWCCA, 12 December 1995) R v Merritt (2004) 59 NSWLR 557 R v Miles [2002] NSWCCA 276 R v Mostyn (2004) 145 A Crim R 304 R v Park [2003] NSWCCA 142 R v Previtera (1997) 94 A Crim R 76 R v Sievers (2004) 151 A Crim R 426 R v Simpson (2001) 53 NSWLR 704 R v SLD (2003) 58 NSWLR 589 R v Tiwary [2006] NSWSC 1156 R v Trevenna (2004) 149 A Crim R 505 R v Troja (unreported, NSWCCA, 16 July 1991) R v Velevski NSWSC unreported 26 September 1997 R v Villa [2005] NSWCCA 4 R v Wallace [2007] NSWCCA 63 R v Way (2004) 60 NSWLR 168 R v Yildiz (2006) 160 A Crim R 218
PARTIES:	Regina James Harry Barton
FILE NUMBER(S):	SC 2005/1623
COUNSEL:	D Howard SC (Crown) A Webb (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Director of Pubic Prosecutions) Legal Aid Commission (Offender)