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Supreme Court 16 February 1999

REGINA v. BARAC

[1999] NSWSC 61

Homicide
SENTENCING: MURDER: GUILTY PLEA LIFE IMPRISONMENT THE QUEEN V. PICKARD (1988) VSCA 50 VEEN V. THE QUEEN (NO. 2) (1987

Citation: [1999] NSWSC 61
Court: Supreme Court of New South Wales
Date: 16 February 1999
Judge(s): Greg James J

Background

The prisoner pleaded guilty to the murder of his wife, committed on or about 3 April 1995 near Goulburn, New South Wales. The couple had been married for just over two months when the relationship broke down. The prisoner lured the deceased to Canberra under the pretence of an immigration tribunal hearing, and she was not seen alive again.

The prisoner had a prior history of serious violence toward women. He had served a sentence of four and a half years for the malicious wounding with intent of his first wife. Following release from that sentence in September 1994, he began the relationship with the deceased, who had met him while working as a librarian in a correctional centre.

The guilty plea was entered on the eve of trial, after the matter had been listed for pre-trial applications ahead of what would have been a five-week jury trial. Jurisdictional complexity arose because the precise location of the killing, whether in New South Wales or the ACT, had originally been uncertain. The prisoner's admission that the killing occurred in New South Wales resolved that issue.

  • Whether the court should impose an inflexible life sentence or a fixed determinate sentence under the relevant provisions of the Crimes Act 1900 (NSW)
  • What weight to give to the guilty plea, having regard to the strength of the Crown case and the limited evidence of genuine contrition
  • Whether special circumstances existed to justify an additional term exceeding one-third of the minimum term
  • How to assess dangerousness, prospects of rehabilitation, and the "worst case" criteria in the context of this offending

Decision

Greg James J declined to impose an inflexible life sentence, concluding that the case, while extremely serious, did not meet the threshold of a "worst case" scenario as contemplated by the authorities. The Court drew on the principles in Mitchell v The Queen, Veen v The Queen (No. 2), and the Victorian decision in The Queen v Pickard, which address when the inflexible life sentence is warranted and the interplay between dangerousness and rehabilitation.

The Court treated the guilty plea as carrying some, but only limited, mitigating weight. Because the plea was entered at the last moment and the Crown case was very strong, the primary value of the plea was its pragmatic benefit in avoiding trial. The Court found little evidence of genuine contrition or rehabilitation, and the sentence reduction under s 439 of the Crimes Act was applied accordingly.

Dangerousness was a significant consideration. The prisoner's history of violence against intimate partners, his personality disorder, susceptibility to substance abuse, and demonstrated inability to exercise emotional restraint all pointed to a lengthy period of custody. The Court concluded that a minimum of 20 years was necessary to reflect the gravity of the offence, protect the community, and allow sufficient time for deterrence and rehabilitation to operate.

Special circumstances were found to exist, justifying an additional term of 10 years rather than the standard one-third ratio. The prisoner's addictions, psychological makeup, and the extended rehabilitative work required during and after custody supported that departure. The sentence was backdated to 26 May 1997, the date from which the prisoner had been in custody solely in connection with this charge.

Orders Made

  • Sentenced to penal servitude for 30 years total
  • Minimum term of 20 years, commencing 26 May 1997 and expiring 25 May 2017
  • Additional term of 10 years, expiring 25 May 2027
  • Earliest parole eligibility date: 25 May 2017

Key Takeaways

  • An inflexible life sentence for murder requires more than extreme seriousness; the "worst case" threshold, assessed against the criteria in Mitchell v The Queen and Veen v The Queen (No. 2), was not met on these facts despite a deeply serious offending history.
  • A last-minute guilty plea, entered when the Crown case is very strong, attracts only limited mitigating weight; its principal value is the pragmatic saving of court time and resources.
  • Where a prisoner's psychological disorder, history of violence, and substance abuse create heightened risk and extended rehabilitative needs, those factors can ground a finding of special circumstances justifying an additional term beyond the standard one-third ratio.
  • Sentencing courts may backdate a sentence to the date from which the offender has been in custody solely in connection with the charge being sentenced.
  • The Court followed Regina v Garforth and Regina v Twala (both decisions of the NSW Court of Criminal Appeal) in its approach to structuring minimum and additional terms in serious murder cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 3A, 19A, 431B(1), 439, 442
- Criminal Procedure Act 1986 (NSW), s 23C

Cases
- Mitchell v The Queen (1995) 184 CLR 333
- Veen v The Queen (No. 2) (1987-88) 164 CLR 465
- The Queen v Pickard (1988) VSCA 50
- Regina v Garforth (NSW Court of Criminal Appeal, unreported, 23 May 1994)
- Regina v Twala (NSW Court of Criminal Appeal, unreported, 4 November 1994)