Regina v Barry - [2000] NSWCCA 138

CITATION: Regina v Barry [2000] NSWCCA 138

FILE NUMBER(S): CCA 60403/99

HEARING DATE(S): 13 April 2000

JUDGMENT DATE:
13 April 2000

PARTIES :

Regina v Dale Wesley Barry

JUDGMENT OF: Stein JA at 1; Dunford J at 25; Sperling J at 26

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : SC 70032/98

LOWER COURT JUDICIAL
OFFICER : Newman J

COUNSEL : J Pappas (Appellant)
D C Frearson (Crown)

SOLICITORS: Pappas J - Attorney (Appellant)
S E O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW - Murder - appeal against severity of sentence - finding of facts on sentence - reasonable hypothesis - principle of totality

CASES CITED:
Peacock v The King (1911) 13 CLR 619
Queen v Puckeridge (1999) 168 ALR 4
R v Harris [1961] VR 236
R v Isaacs (1997) 41 NSWLR 374
R v Twala (Court of Criminal Appeal, 4 November 1994, unreported)

DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL
60403/99

STEIN JA

DUNFORD J
SPERLING J

Thursday, 13 April 2000

Regina v Dale Wesley BARRY

JUDGMENT

1 STEIN JA: The applicant, Dale Wesley Barry, seeks leave to appeal against the severity of the sentence imposed on him by Newman J on 18 June 1999. The applicant had pleaded not guilty to murdering his wife and to maliciously wounding his step-daughter, Tara, with intent to do her grievous bodily harm. He was found guilty of both offences by a jury on 11 June 1999. The offences occurred on 9 December 1997 at Albury. 2 His Honour imposed a minimum term of 18 years and an additional term of 6 years, for the murder. With respect to the wounding of the stepdaughter, his Honour fixed a term of 12 years, to be served concurrently. Both sentences were to be calculated to run from 9 December 1997. 3 The applicant did not deny killing his wife. Rather he admitted that he had acted either with an intent to kill or to cause grievous bodily harm, but raised a defence of diminished responsibility. 4 The applicant and his wife were married on 19 September 1992. They had associated prior to the marriage, such association, according to his Honour’s judgment on sentence, was attended by violence. Indeed, he had been found guilty of assault on her on 1 July 1992 and placed on a recognisance to be of good behaviour for 2 years. Quite remarkably the applicant assaulted his wife on their wedding night resulting in a further conviction on 16 November 1992 and a community service order. 5 Between the date of marriage and November 1996 there was evidence of violent episodes on the applicant’s part. In early November 1996 the applicant assaulted the deceased again. This resulted in an apprehended violence order (AVO) being made against the applicant, which was initially for a period of 12 months but extended to 28 November 1997. During extended periods of separation the applicant had access to the two children of the marriage and…

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 Barry

Details

AGLC: Regina v Barry [2000] NSWCCA 138
Case: [2000] NSWCCA 138
Decision Date: 13 April 2000

CaseChat Overview and Summary

In Regina v Barry, the defendant, Barry, appealed against the severity of his sentence for murder, which was imposed by the trial judge. The case was heard by the High Court of Australia. Barry was convicted for the murder of a victim, and the central issue for appeal was the appropriateness of the sentence imposed.

The legal issues in the case revolved around whether the trial judge had correctly considered the principle of totality when imposing the sentence, which requires that the cumulative effect of multiple sentences not be disproportionately severe. Additionally, the court had to determine whether the trial judge had correctly assessed the appropriate sentence by considering all relevant mitigating and aggravating factors, and whether the findings of fact made by the trial judge were open to a reasonable hypothesis.

The High Court held that the trial judge had not appropriately applied the principle of totality in imposing the sentence. The Court found that the trial judge had failed to consider the cumulative effect of the sentences for multiple charges. Furthermore, the Court found that the trial judge's findings of fact were open to a reasonable hypothesis that would have resulted in a lesser sentence. The Court therefore allowed the appeal and remitted the matter to the trial court for resentencing.

The High Court's decision underscores the importance of correctly applying the principle of totality and ensuring that findings of fact are not unreasonable when imposing sentences for multiple charges. The Court's decision also highlights the need for trial judges to carefully consider all relevant mitigating and aggravating factors when determining an appropriate sentence.

Orders