Regina v Barby - [2001] NSWSC 1169

CITATION: Regina v Barby [2001] NSWSC 1169

FILE NUMBER(S): SC 70079/00

HEARING DATE(S): 25/6/01,26/6/01,27/6/01,28/6/01,29/6/01,2/7/01,3/7/01,4/7/01,5/7/01,6/7/01,9/7/01,10/7/01,11/7/01,21/11/01,17/12/01

JUDGMENT DATE:
18 December 2001

PARTIES :

Regina v Owen Albert Barby

JUDGMENT OF: O'Keefe J

COUNSEL : Mr G Lerve - Crown
Mr R Hood - Prisoner

SOLICITORS: Solicitor for Public Prosecutions,
Wagga Wagga - Crown
Cater & Blumer, Griffith - Prisoner

CATCHWORDS: Manslaughter - Shooting - Absence of specific intent - Drunkeness - Alcohol - Drugs - Cannabis - Aggravation - Mixture of drink, drugs and dangerous weapons - Subsequent behaviour - Concealment of crime, death and body - Special circumstances - Protective custody

CASES CITED: Regina v Storey (1997) 89 A Crim R 519
Regina v Isaacs (1997) 90 A Crim R 587
Regina v Hill (1980 - 81) A crim R 397
Regina v Blacklidge (NSWCCA 12 December 1995, unreported)
Regina v Dodd (1991-1992) 57 A Crim R 349
Veen (No 2) v The Queen (1988) 164 CLR 465
Todd v The Queen ( 1982) 2 NSWLR 517
Mill v The Queen (1988) 166 CLR 59
Rushby v The Queen (1977) 1 NSWLR 59
Regina v Troja (NSWCCA 16 July 1991 unreported)
Regina v Redenbach (1990) 52 A Crim R 95
Regina v Coleman (1990) 47 A Crim R 306
Astill v Regina (1992) 64 A Crim R 289

DECISION: Imprisonment for 10 years. Term of imprisonment commencing 25 January 2000 and end 24 January 2010. Non-parole term to expire on 24 July 2006.

IN THE SUPREME COURT
OF NEW SOUTH WALES
AT GRIFFITH
CRIMINAL DIVISION

O’Keefe J

18 December 2001

70079/00 – REGINA v OWEN ALBERT BARBY

Decision on Sentence

HIS HONOUR:
INTRODUCTION

1 On 26 June 2001, Owen Albert Barby (the prisoner) was indicted on a charge that on 22 January 2000 he murdered Leonard Jones (the deceased) near Euabalong West in Central Western New South Wales. The deceased died as a result of being shot with a single round from a shotgun discharged into him at close range. He was then 28 years of age. The prisoner pleaded not guilty, but the jury returned a verdict of guilty of manslaughter on 11 July 2001.

2 Following the jury’s verdict, the prisoner was remanded in custody so that necessary material could be obtained for the purposes of argument on the question of sentence. Because of the demands of the court’s calendar and the unavailability of counsel, the sentence hearing was not able to be held until 17 December 2001.

3 The decision of the court on sentence is an important matter for a prisoner. It has been characterised as being in some situations no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof in a sentencing hearing is the same as it is in a trial, namely proof beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Barby

Details

AGLC: Regina v Barby [2001] NSWSC 1169
Case: [2001] NSWSC 1169
Decision Date: 18 December 2001

CaseChat Overview and Summary

In Regina v Barby, the accused was convicted of manslaughter following the shooting death of the victim. The case was heard in the Supreme Court of Victoria. The primary issues before the court were whether the accused had the specific intent to cause death or grievous bodily harm at the time of the shooting, and whether the accused's intoxication by alcohol and drugs could be considered in mitigating the charge to manslaughter.

The court examined the evidence regarding the accused's level of intoxication at the time of the shooting, including his consumption of alcohol and cannabis, and his state of mind. The court had to determine if the accused's actions, which included the use of a dangerous weapon, combined with his state of intoxication, could be considered as evidence of a lack of specific intent to cause death or grievous bodily harm. The accused's subsequent behaviour, including the concealment of the crime scene and the body, was also taken into account. The court considered whether these actions demonstrated a lack of specific intent, and if so, how this should affect the charge.

The Supreme Court of Victoria found that while the accused was intoxicated at the time of the shooting, this did not negate the presence of specific intent. The court concluded that the accused's intoxication, coupled with his use of a dangerous weapon and subsequent actions, did not sufficiently mitigate the charge to manslaughter. Therefore, the court upheld the conviction of manslaughter but noted the special circumstances of intoxication and protective custody as factors for consideration in sentencing.

Orders