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.

The Onus and Standard of Proof

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 R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said:

“the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities” (at 530)

4 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration eg, do they aggravate or mitigate the penalty to be imposed? It was said in Regina v Storey (supra) that:

“‘Aggravating’ and ‘mitigating’ must be understood in a wide sense and without, eg, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (eg, the use of a weapon) or on the other hand of a prior or subsequent conviction.

The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice.”

and:

“We have spoken of disputed ’facts’ … there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard – not each of the individual facts which is said to bear upon the issue” (supra at 531 – 532)

5 The law of New South Wales accords with these statements (Regina v Isaacs (1997) 90 A Crim R 587 at 592).

6 In determining the facts on which the sentence is to be imposed upon the prisoner in this case I have applied the law as set out above in the light of the verdict of the jury.

Manslaughter

7 The range of the sentences which may be imposed in respect of the crime of manslaughter is wide. The statistics produced by the Judicial Commission of New South Wales and tendered by the Crown show that range effectively to be from 18 months to 20 years. This is a reflection of the diversity of the circumstances in which a verdict of manslaughter can be arrived at.

8 In Regina v Hill (1980-1981) 3 A Crim R 397, Street CJ pointed out the difficulty that is posed for a Court in relation to the imposition of a sentence for the crime of manslaughter. He said:

“It has been said that manslaughter, perhaps beyond any crime, is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely and it is not always easy to determine in any given case what should be done in the matter of sentence.” (supra at 402)

9 To like effect is the decision in Regina v Blacklidge (NSWCCA 12 December 1995 unreported) in which Gleeson CJ said:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.”

and:

“… the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case.”

10 It can thus be seen that there are competing considerations to be taken into account when determining the appropriate sentence in a case of manslaughter. One is the fact that there has been a felonious taking of human life. The felonious taking of human life is recognised by the legislature, the courts and the community as a serious crime. That consideration must be addressed in the sentence imposed. On the other hand is the consideration that the factual content and circumstances of the offence may significantly reduce the blameworthiness of the perpetrator. This must also be taken into account. These two considerations are in tension and the task of the sentencing judge is to resolve that tension. Doing so involves a balancing of the demands of the criminal justice system and community expectations in relation to the protection of the lives of members of the community, and the punishing of a person who has taken a life feloniously on the one hand, against the subjective circumstances of the person responsible for the taking of the life in the circumstances of the particular case on the other.

11 The resolution of the tension between the competing factors to which I have referred must involve a reasonable proportionality between the sentence imposed and the circumstances of the particular manslaughter. This in turn involves the sentencing judge in the first instance having regard to the gravity of the offence viewed objectively and then to the subjective features involved in the case. The need to have adequate regard to the former was stressed in Regina v Dodd (1991-1992) 57 A Crim R 349 in which it was said:

“ There ought to be a reasonable proportionality between a sentence and the circumstances of the crime and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime … has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary … Even so, there is sometimes a risk that attention to persuasive subjective consideration may cause inadequate weight to be given to the objective circumstances of the case.” (supra at 354)

12 In Regina v Dodd (supra) it was also said:

“As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988)164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd (1982) 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468 . Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby (1977) 1 NSWLR 59 .” (at 354)

13 In Regina v Hill (supra) it was said:

“ At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling out for a correspondingly grave measure of criminal justice being meted out to the guilty party .
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life . ” (at 402)

14 The range of circumstances which give may give rise to a conviction for manslaughter is such that it is difficult to compare other cases with the case in question. It is also difficult to find any clear pattern from such cases. Each case must ultimately depend on its own facts (Regina v Troja, NSWCCA 16 July 1991, unreported, per Kirby P).

15 The foregoing considerations mean that the cases referred to by the Crown in its submissions were not of real assistance. Their factual circumstances bore little, if any, similarity to those in the present case. As the Crown frankly and properly conceded, the cases were advanced merely as examples of manslaughters by unlawful and dangerous acts, and submitted that the factual circumstance in the instant case was more serious than any of the cases used as examples. I agree.

16 For the same reason it is difficult to obtain a great deal of assistance from the statistics produced by the Judicial Commission of New South Wales in relation to penalties imposed for manslaughter. I have already adverted to the wide range of sentences imposed in the past (paragraph 7). The statistics indicate that a prison sentence has been imposed in 87% of the cases. Furthermore, the statistics show that the head sentences in 77% of the cases range from 5 to 12 years, and that in 90% of the cases, the non-parole periods range from 3 years to 8 years. The outliers in the statistics, that is, below a head sentence of 3 years, or above a head sentence of 12 years, account for only a small proportion of the sentences. Whilst it is likely that these sentences were imposed in respect of manslaughters committed in circumstances that were especially heinous or in circumstances in which there was a very low culpability, in the absence of knowledge of the individual cases which go to make up the outlier statistics, it is not possible to make effective use of them, except to say that they stress the wide range of circumstances in which a sentence for manslaughter may come to be imposed.

17 Objectively the manslaughter of which the prisoner was convicted is not in the lower levels of culpability. This was conceded by counsel for the prisoner. Nor is it in the very highest levels, that is, it is not amongst the upper outliers in the statutes. The prisoner killed his companion. His companion was unarmed. The prisoner was well affected by liquor and an illicit drug at the material time. Thus a life was taken feloniously, in circumstances which are not such as to be condoned or apparently condoned, either for the prisoner or others who may be tempted to act as the prisoner had, by the imposition of a sentence which might be regarded as over-merciful. Firearms, alcohol and drugs can be, and in this case were, a lethal mixture. It is a mixture that the law should act to discourage.

18 The effect of alcohol and drugs in relation to culpability has been considered in a number of cases. In Regina v Redenbach, (1990) 52 A Crim R 95, the Victorian Court of Criminal Appeal said:

“ Nowadays, it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases, the offender may be regarded as morally responsible for his condition at the time of the offence .” (at 99)

19 Similarly, in Regina v Coleman (1990) 47 A Crim R 306, Hunt J discussed the question as to the extent to which a prisoner is entitled to have his intoxication at the time of the offence taken into account in mitigation. He stressed that the effect of alcohol may aggravate the crime in some cases “because of the recklessness with which the offender became intoxicated.” In other cases, it may mitigate the crime because the offender has, by reason of that intoxication, “acted out of character” (at 327). However, he said that:

“ Where the reason for the offender’s intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate .” (at 327)

20 In the present case, the prisoner’s eldest sister was called as a character witness. Her evidence in chief was to the effect that her brother was even-tempered and that she had not seen him drink alcohol in the family home. However, it later emerged that her mother and father were teetotallers, as was she, that alcohol wasn’t allowed in the house, and that she only saw the prisoner in the family home or in her home and that she was a disciplinarian in regards to alcohol. It further emerged that although she had never seen the prisoner under the influence of liquor, she was aware that he drank and smoked cannabis to the extent that she had occasion to remonstrate with him and “told him he was going up the wrong creek”. That creek was defined as “the drink and dope creek”, and furthermore she had expressed the view to him that she did not like the company he was keeping. This evidence does not establish that the prisoner was either a non-drinker or a light drinker.

21 What further emerged was that she had seen but little of her brother over the years, that she had not seen the children for some four years, and that the family was “not a real close family” but rather one with “a lot of jealousy in it”.

22 Another character witness called on behalf of the prisoner, Ms Stringer, had seen the prisoner consume alcohol at her house only occasionally, and had not “noticed any personality change when he has been drinking”. However, her opportunities for observing the prisoner’s drinking habits were limited.

23 The prisoner himself said that he drank most days, would usually have up to half a dozen drinks on each occasion, and that when he drank, he normally had a mixture of spirits, light beer and wine. That is not dissimilar from what occurred on the day of the shooting.

24 The circumstances in which the prisoner consumed alcohol both at the home of Mr Wenban and at the site proximate to the shooting do not suggest that he was unaccustomed to drink or to the use of cannabis, or that in indulging in both he was acting other than in accordance with what was a commonplace for him. They were circumstances of irresponsibility, particularly as to the alcohol consumed and cannabis indulged in at the site of the shooting at a time when there were potentially lethal weapons in the possession of the members of the party. This is referred to in greater detail later in these reasons. I do not think that alcohol is a mitigating factor in relation to the manslaughter in this case. It has already operated to reduce murder to manslaughter on the basis that the prisoner was so grossly affected by alcohol and drugs at the time of the shooting as to be unable to form the specific intent required for murder. Beyond that, I am of opinion that the ingestion of alcohol and cannabis should, in the circumstances of this case, be regarded as an aggravating factor.

Facts

25 On Saturday 22 January 2000, the deceased and Mr Brett Wenban each purchased a carton of 24 stubbies of full strength beer at Lake Cargelligo, which is about 40 minutes drive from their homes at Euabalong West. Thus armed, they returned to Mr Wenban’s home at Euabalong West in the early afternoon and began consuming the liquor they had purchased, to which was added about another half a carton that was already at his home. A little later in the afternoon, somewhere around 2pm, the prisoner came to Mr Wenban’s home. He began drinking with them and by approximately 4.30pm had drunk at least six stubbies. It is clear that all three were then quite affected by liquor, but in somewhat varying degrees. The prisoner was not as affected as the deceased or Mr Wenban, but was nevertheless well affected.

26 In the late afternoon, the trio decided to go to a dam which was some four to five kilometres west of the township in order to hunt pigs. The plan was that they would go to the area know as “Hoadley’s Dam” and lie in wait for any pig that came to the dam to drink. They went to the dam in Mr Wenban’s utility, taking with them a .22 rifle and a 12 gauge shotgun belonging to Mr Wenban as well as a compound bow which belonged to the prisoner. They also took with them further supplies of alcohol. These included twelve stubbies and a partly consumed bottle of an alcoholic drink known as green ginger wine. The deceased also took with him a quantity of cannabis leaf.

27 There was some disagreement between the deceased and the accused during the course of the drive to the dam, but that appears to have subsided by the time they arrived at their destination. The three men alighted from the vehicle taking the weapons with them. They went to a place close to a post and wire fence which separated the section of the property in which they had parked and the place to which they had walked, from the part of the property on which the dam was situated. The distance that they had walked was about 150 metres.

28 They sat down. Each consumed a further four stubbies of beer, their share of green ginger wine and each had about 2 pipes of cannabis as they waited for a pig to emerge from the scrub and approach the dam for water.

29 After they had been at the site for approximately an hour to an hour and a half, drinking, smoking and talking, the prisoner stood up and walked towards the fence-line. This may have followed some words between the prisoner and the deceased, but what those precise words were is not clear, in view of the then condition of the two survivors. The direction in which the prisoner went was approximately east. Although it was not his, he picked up and took with him the twelve gauge shotgun which was then loaded with a cartridge. He also had a spare cartridge in his pocket.

30 Shortly after the prisoner had left the gathering, the deceased stood up and walked in approximately the same direction as the prisoner had. However, whereas the prisoner continued walking down a rough bush track that ran approximately parallel to the fence-line, the deceased went behind some bushes. Whether this was to urinate or for some other purpose is not revealed by the evidence, however shortly thereafter he emerged from behind the bush, walked around it and moved down the rough bush track, generally in the direction of the prisoner. I accept without any doubt that at the relevant times the deceased had his arms by his side with his hands open and his fingers pointing towards the ground. I have no doubt that he was not carrying anything in his hands or attached to or across his body. He was unarmed, and obviously so.

31 What transpired thereafter is the subject of conflicting evidence between Mr Wenban on the one hand and the prisoner on the other. I found the version given by the prisoner improbable and at times internally confused or inconsistent. Mr Wenban’s evidence, on the other hand, was reasonably clear. I assessed his demeanour as good. He made some mistakes, but he admitted those. There may have been occasions concerning the aftermath of the killing in which he was either confused or in respect of which at one time, but not in his evidence, he tried to make himself appear less culpable as an accessory after the fact than was the fact. However, I accept his evidence and am satisfied beyond reasonable doubt that the version of the shooting given by him in his evidence is generally accurate.

32 Mr Wenban said:

“I was sitting down when they walked off and Jack walked off and Len walked off and I got to my feet. By that stage, Len was just going in behind the bush and I seen Jack turn ‘round and say, ‘what do you think you’re doing?’ … He was looking towards where Len was behind the bush … “

Q – “What is the very next thing that happened, please?”

A – “Len walked out from behind the bush and was walking directly, straight towards him.”

Q – “Towards who?”

A – “Towards Jack.”

Q – “Are you able to say about how far away Leonard Jones was from the accused at the time that Leonard Jones began to walk towards the accused?”

… A – “Oh, it would be 25 feet, approximately.”

Q – “What if anything, did you see Leonard Jones do then?”

A – “He didn’t do nothing. He was just walking directly towards him.”

Q – “Are you able to describe, please, the manner in which it was that Leonard Jones walked towards the accused?”

A – “Just a general walk, with his arms down by his side walking.”

Q – “Did he have anything in either of his hands?”

A – “No.”

Q – “What was the next thing that happened after the accused said to Mr Jones words to the effect: ‘What do you think you’re doing’?”

A – “Well, like he walked out from behind the bush and walked directly towards him and Jack took the shotgun off his shoulder and shut it and lifted it to shoulder height and shot him in the chest.”

… Q – “What did you observe immediately after the shot was discharged?”

A – “Len took the shot in the chest and lifted his arms like he was wounded, but he only got his arms to about there (witness indicated about chest height ) and he rolled off his right leg and fell flat on his back.” (Bold added.)

33 This evidence is to be contrasted with that of the prisoner. He said he saw the prisoner “start sneaking out from behind the bush”. By this he meant that he did not take big steps. On his version, there was a deal of interchange between the prisoner and the deceased, in the course of which the prisoner asserted that he said: “Don’t go near me. Go away.” And again, “Don’t come near me.” Words of such a kind were said at least twice, according to the prisoner. He also claimed that the deceased said “What the fuck are you going to do?” sand asked the prisoner, “Are you going to shoot me?” The prisoner also asserted that the deceased told him to “get fucked” on at least two occasions. All this is said to have occurred as the prisoner stood still, facing in the direction of Mr Jones, and whilst Mr Jones was moving towards him until, on the prisoner’s evidence, he was four metres away, at which time, he pulled the trigger of the shotgun. He also said that as Mr Jones was approaching him, “he was leant over, puffed up, with his arms out, glaring at me.” He also claimed that at this time:

“I thought he was going to kill me.”

Q – “How did you think that was going to occur?”

A – “Take the gun off me, and use it on me.”

Q – “This was in your mind, was it?”

A – “Yes.”

34 This evidence was undoubtedly tendered in support of the claim of self defence which was raised on behalf of the prisoner, but rejected by the jury. Like the jury, I do not accept this evidence. In this context, it should be recalled that the partial defence of provocation had been taken from the jury and thus was not an issue in the trial.

35 The evidence given by Mr Wenban is not only inherently more probable, it is also consistent with the jury’s verdict and with the ballistic and medical evidence as to the proximity of the deceased to the prisoner at the time of the shooting. Furthermore, Mr Wenban made it clear in the course of his evidence that the prisoner had sighted the shotgun along the barrel. That the gun was directed towards the deceased and fairly accurately so, was confirmed by the post mortem examination of the deceased. It showed a fairly centrally located, well directed shot to the chest.

36 At the time of the shooting, the deceased was well affected by liquor. His blood alcohol content at the time he died was not less than .206 and was likely to have been higher than that, with a maximum of .358. The prisoner was also well affected by liquor and cannabis, but not to the same extent as the deceased. That the deceased was affected by liquor was apparent to the prisoner who, when asked to describe the state of intoxication of the deceased, said:

“He was very pissed.”

and when asked about his own condition, said:

“I was very pissed too.”

37 I am satisfied to the requisite standard that the prisoner saw the deceased at some remove from him. He was not intimidated by the presence of the deceased, but was in a state of alcoholic befuddlement that negated his ability to form an express intention to kill the deceased or inflict grievous bodily harm upon him. Having regard to the way in which the matter was left to the jury, the verdict of not guilty of murder but guilty of manslaughter can only be explained on such a basis.

38 The prisoner raised the shotgun to his shoulder, pointed it at the deceased and when they were approximately two or three metres apart, the prisoner took aim by looking down the barrel and discharged the shotgun at the deceased.

39 The blast struck the deceased in the chest. Within minutes of the shooting, he died as a result of massive blood loss. As I have said, the proximity of the deceased and the prisoner at the time of the shooting, as described by Mr Wenban, was confirmed by ballistic evidence and the fact that the wad of the shotgun cartridge was found in one of the three major wounds which the deceased had sustained as a result of being struck by the contents of the shotgun cartridge.

40 What followed the killing does no credit to the prisoner or to Mr Wenban. The prisoner sought to paint Mr Wenban as the principal actor in relation to the disposal of the body and the concoction of a story for the authorities which would exculpate both him and the prisoner by claiming that the deceased had merely wandered off into the bush. Why Mr Wenban would move from the situation of a spectator to a killing, to the principal actor in concealing the death, the body and the crime, was never explained by the prisoner, nor was any credible reason for the change in roles advanced on his behalf. That Mr Wenban became an accessory after the fact cannot be gainsaid. However, I have no doubt whatsoever that the principal actor in the attempted concealment of the death, the body and the crime was the perpetrator of the crime, the prisoner. Furthermore, I am satisfied that a combination of fear, drink and stupidity caused Mr Wenban to go along with the prisoner’s scheme.

41 In the course of submissions, I expressed concern as to what, if any, use could or should be made of the aftermath of the killing of the deceased. By that time the crime was complete, and no additional charges relating to the concealment of the death or the disposal of the body have been proffered against the prisoner. On reflection, I am satisfied that the evidence concerning the disposal of the body, Mr Wenban’s version of which I accept in essence, is relevant to two matters that touch upon sentence. The first is as indicative of the shrewdness or cunning of the prisoner and his preparedness to engage in further criminality in order to cover up the criminality in which he had already been involved. It was not a case of blind panic. The evidence supports the conclusion that the prisoner was not the quiet, retiring, reticent, gentle person depicted in the thumbnail sketches painted by the character witnesses. And I do not think he was. Secondly, the evidence is material as indicating an absence of remorse, and a cold-blooded attitude towards what he had done. The care with which the concealment of the body and covering up of the crime was implemented, as well as the time over which it extended, are inconsistent with a panicked response, and inconsistent with any real remorse.

42 At no time during the course of the trial did the prisoner express any remorse or contrition. Whilst this could perhaps be explained in relation to his evidence at the trial on the basis that an expression of remorse might have been misconstrued as an admission of culpability, the same cannot be said in respect of the sentence hearing. At it, no evidence of remorse or contrition was given by the accused. There was a faint suggestion of an expression of remorse by way of hearsay from one of the character witnesses, Ms Stringer, and a like statement in the written submissions filed on behalf of the prisoner. However, when Ms Stringer’s evidence was tested, it emerged that it was her impression of how she thought the prisoner felt when she saw him at a time before his trial. I was left with the firm impression that the prisoner was then sorry that he had been apprehended and charged, rather than sorry that he had killed Mr Jones. The fact remains that there was no expression of contrition or remorse to the Court by the prisoner himself, and I am not satisfied that he has remorse or contrition for what he did.

1. Interference with Family Relationships
It was submitted that the imprisonment of the prisoner for a long term will disturb, perhaps irreparably rupture, his relationship with his children.

The relevant children are aged 15, 9 and 6. They are two girls and a boy. They have been living with their mother in Lake Cargelligo since about 1994 or 1995. That would place them as quite young when they were separated from their father. The extent of his contact with them thereafter is not expressly stated in the evidence, however the enmities within the family, spoken of by the prisoner’s sister, Ms Furness, do not betoken a close knit family. In any event, an appropriate prison sentence ought not to be reduced because of the existence of children who were not resident with the prisoner at the material time, and have not been resident with him for many years. If there is a true bond between the children and their father, it is likely to persist. If not, then neither the children nor the prisoner will be any worse off as a result of the imposition of a prison sentence which properly reflects the seriousness of the crime committed.

2. The Medical Condition of the Prisoner’s Mother.
The evidence given by the prisoner’s eldest sister indicated that their mother is now 84 and in failing health. She was shocked by the events in which the prisoner had been involved, and suffers from dementia. This has advanced to a stage that she was not able to be left in her house by herself and has been admitted to a nursing home.

It is clear beyond argument, even on the submissions made on behalf of the prisoner, that a custodial sentence of a not inconsiderable length has to be imposed. That being so, and in the absence of any more specific evidence as to the precise condition or prognosis of the prisoner’s mother, the reduction of a proper sentence by reference to the unknowns as to the life expectancy of the prisoner’s mother, or the rapidity or otherwise of the progress of her dementia, would not be appropriate. It is not as if his earlier release is sought on the basis that he is needed in order to tend to his mother’s needs. She is in care. She may well be dead in quite a short time. Furthermore, her dementia may progress to the extent that she would not know whether the prisoner is in jail, or out of jail, or even that he is her son.

In my opinion, this ground of mitigation propounded on behalf of the prisoner does not operate to reduce the sentence which should be imposed.

3. The Aftermath of the Killing
It was submitted on behalf of the prisoner that the circumstances following the death of the deceased in which his body was moved from the scene of the crime, wrapped up in plastic and later buried in a less than adequate grave in a remote place, should not be regarded as adverse to the prisoner.

As I have already indicated, I am of opinion that the circumstances following the killing should not be taken into account to increase a penalty which should otherwise be imposed, but may properly be used to assess both the extent, if any, of contrition or regret on the part of the prisoner, and to inform the Court as to the characteristics of the prisoner.

This factor is not a mitigating circumstance and in the final analysis was not really advanced as such on his behalf.

4. The Prisoner’s Antecedent
The prisoner has three convictions for possession of an unlicensed firearm. These were recorded in October 1997 and a relatively small fine was imposed in respect of each offence. The fact that a fine was imposed and that it was relatively small are, in my opinion, a reflection of the fact that the prisoner was a country man, and that the attitude of many country people to the possession of firearms, notwithstanding the laws requiring registration, is less strict than would be the case for a city person.

For the purposes of the present case, and notwithstanding that the offence in question was committed with a shotgun, I do not think that these convictions should in any way tell against the prisoner. I do not use them in any such way.

The fact is that except for the matters referred to above the prisoner has no convictions for any offence. This is in his favour, and I take it into account in his favour in fixing the sentence.

5. Loss of Motor Vehicle

After the prisoner had been taken into custody and his vehicle examined by the forensic experts, it was released to his de facto wife and housed at or outside her home at Lake Cargelligo. On 25 March 2000, it was destroyed by fire at a time when it was uninsured. The circumstances in which this destruction of the vehicle occurred are unknown. Whilst it may be speculated that it was related to the charge of murder then pending against the prisoner, there is no evidence to confirm that any such speculation has substance.

On behalf of the prisoner it was submitted that this factor should be taken into account in mitigation of penalty in that it caused him anxiety for his property, partner and children. Whilst there is no evidence that it caused him such anxiety, for the purposes of imposing a sentence I accept that anxiety on his part would be a natural response to the event. However, nothing untoward has happened since that date. There is no suggestion of any interference with, or reprisals against, his partner or family. His house at Euabalong West remains intact, indeed since his incarceration, the prisoner’s house has been tenanted for a good deal of the time.

In my opinion, this ground of mitigation does not operate in favour of the prisoner.

6. Likelihood of Re-offending
The prisoner is now 48 years of age. As already indicated, he has no previous convictions for violence, and there is no evidence to suggest that upon his release he is likely to be involved in another homicide. However, in fixing his sentence, the need for appropriate punishment being imposed for a serious offence must be taken into account. The fact that personal deterrence may not be required is material, but only part of the picture. As indicated above, general deterrence is a feature of the present case, and although the unlikelihood of the prisoner re-offending is high, that should not cause the Court to lose sight of the seriousness of the offence and the need for a sentence which has an element of general deterrence in it.

In favour of the prisoner it should be remembered that whilst in custody, namely between 6 December 2000 and 24 January 2001, he attended ten hours of courses which were conducted as part of the National Campaign Against Drug and Alcohol Abuse. Furthermore, in July 2001 he was involved through TAFE in an Aboriginal Vocational Preparation Course. In addition, there is nothing to suggest that whilst in custody the prisoner has been other than appropriate in his mode of behaviour.

7. Special circumstances
The prisoner has been held in protective custody in various correctional centres since a short time after he went into custody. The Court has been informed from the bar table that there was an assault on him by a named person of Aboriginal origin. This was thought to be because of the Aboriginality of the deceased. In addition, threats were made against the prisoner in the correctional centre in which he was then held. He, through his counsel, has expressed concern that if released from protective custody, his physical wellbeing may be in jeopardy. As a consequence, it was submitted on his behalf that the sentence should be fixed on the basis that the prisoner will remain in protective custody for substantially the whole of any term of imprisonment imposed upon him.

Detention in protective custody is undoubtedly capable of constituting special circumstances ( Astill v Regina (1992) 64 A Crim R 289). Furthermore, in the present case, the fact that the prisoner has spent most of his term of incarceration to date in protective custody indicates that some weight should be given to this factor in favour of the prisoner. The prospect that he may remain in protective custody, although not the subject of any evidence, and thus difficult to assess, is an additional factor to be taken into account in his favour, and I do so.

8. Situation on Release
One of the character witnesses called on behalf of the accused, Ms Stringer, offered to take the prisoner into her home at Goulburn upon his release. She also offered to use her best endeavours to obtain employment for the prisoner, whom she described as resourceful. This is consistent with the work history of the prisoner as detailed in the written submissions filed on behalf of the prisoner. Such submissions indicate that although the prisoner is a person who did not obtain a good education, he was practical and had undertaken a fairly wide range of activities during his working life, albeit largely of the outdoor and country type.

I accept the genuineness of the offer made by Ms Stringer. Whether it will still be open at the expiration of a proper term of imprisonment cannot be known, however if it is, then it would auger well for the rehabilitation of the prisoner after his release, and may well operate to ensure that parole is granted to him as soon as he becomes eligible for it. I do not think, however, that it is a factor which, in the circumstances of the present case, should reduce an otherwise proper sentence.

9. Psychiatric Report
A psychiatric report from Dr Andrew R Robertson was tendered on behalf of the prisoner. The history of the events leading up to and culminating in the shooting is substantially as deposed to by the prisoner at his trial and, as would seem from the verdict, was rejected by the jury. I have already stated my conclusions on this aspect of the evidence. The history relating to the aftermath involves a version of the events which I have already rejected.

The psychiatrist expressed the opinion that he did not think the prisoner had a diagnosable psychiatric disorder, but he thought, “ on the balance of probabilities , Owen Barby was suffering from a Paranoid Disorder at the time he shot and killed Leonard Jones.” He went onto opine that he thought it “ likely that Owen Barby felt that Leonard Jones posed a direct threat to his life at the time Barby shot Jones.” I do not accept these views as correct. Furthermore, the last mentioned part of the psychiatrist’s opinion is, in my opinion, inconsistent with the verdict of the jury, which was undoubtedly based upon the befuddlement of the prisoner due to alcohol and cannabis being such as to be unable to form the intent necessary for murder. That being so, and in my own assessment, I am satisfied beyond reasonable doubt that the prisoner did not believe that a direct threat was posed to his life at the material time, nor do I accept that the prisoner was suffering from any psychiatric disorder, at the time he shot and killed the deceased.

Victim Impact Statements

44 No Victim Impact Statements were tendered in the proceedings.

Conclusion

45 The crime committed by the prisoner involved the taking of a young life which deprived his de facto wife of a partner and his two children of a father. It was committed in circumstances in which, on the jury’s verdict, the prisoner was so affected by alcohol and cannabis that he was unable to form the specific intent required for murder. It was a serious crime, and the penalty to be imposed should reflect both the fact of the death and the seriousness of the circumstances in which it occurred. It should also reflect the disapprobation of the Court for behaviour of such a kind, not merely for the prisoner, but for the wider community, especially in country areas where there may be a temptation to mix drink, drugs and dangerous weapons.

46 Having regard to these factors, as well as the factors in mitigation to which I have adverted above, I am of opinion that an appropriate sentence would be imprisonment for ten years, but in view of the special circumstances, the non-parole period should be reduced below the statutory ratio.

Sentence

47 Owen Albert Barby, you have been convicted by a jury of your peers of the crime of the manslaughter of Leonard Jones near Euabalong West on 22 January 2000. In respect of that crime I sentence you to imprisonment for ten years. The term of such imprisonment is to commence on the date on which you went into custody, namely 25 January 2000 and is to end on 24 January 2010.

48 In view of the special circumstances, I fix the non-parole term to expire on 24 July 2006, after which you will eligible for parole.

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Last Modified: 12/21/2001