Citation: Regina v Barry [1999] NSWSC 659
Court: Supreme Court of New South Wales
Date: 18 June 1999
Judge(s): Newman J
Background
The accused was convicted by jury on 11 June 1999 of two offences arising from events in the early hours of 9 December 1997 at a family home in the Albury area. The first offence was the murder of his wife. The second was maliciously wounding his stepdaughter with intent to cause grievous bodily harm.
The relationship between the accused and the deceased had been marked by violence from before their marriage in 1992. Multiple apprehended violence orders had been taken out against the accused over the years. In October 1997, following a further incident, the deceased left the family home with her children. In December 1997, she told the accused he would no longer have access to the children.
The accused had been residing with a former workmate and, before that, had been admitted to hospital for treatment of alcoholism, where he was also diagnosed with an adjustment disorder with depressed mood. Some two weeks after his hospital discharge, he told his housemate of his intention to kill his wife. On the night of the offences, he was observed drinking at a local hotel before making his way to the family home in the early hours of the morning.
Legal Issues
- Whether the jury accepted the defence of diminished responsibility in relation to the murder charge
- Whether provocation was established as a defence to murder
- What sentence was appropriate for both the murder and the wounding offence, taking into account mitigating factors, the objective seriousness of the crimes, and the principle of totality
Decision
The jury rejected both the diminished responsibility defence and provocation, convicting the accused of murder. Newman J noted that while provocation had not been expressly raised by defence counsel, material emerging during the trial required the jury to be directed on it. The jury's verdict indicated it was satisfied beyond reasonable doubt that the Crown had excluded provocation.
On sentencing, Newman J was required to find the relevant facts consistently with the jury's verdict and to the criminal standard of proof. The accused had formally admitted at trial that he acted with intent to kill or cause grievous bodily harm; the only contest on the murder charge had been the defences of diminished responsibility and provocation.
In assessing the appropriate sentence, Newman J took into account mitigating factors including the accused's age, expressed contrition, mental condition at the time of the offences, and an otherwise good industrial work record. However, the judge weighed these against the objective seriousness of both crimes, a prior history of violence toward the deceased, the premeditated nature of the conduct (evidenced by the statement of intent made to his housemate), and the fact that a second serious offence had been committed against the stepdaughter on the same occasion.
Drawing on the approach in Regina v Twala, Newman J noted that the objective circumstances called for a sentence at the higher end of the range for relationship killings. The second offence against the stepdaughter was addressed through the principle of totality of sentence. Newman J also found no special circumstances under the Sentencing Act that would justify departing from the statutory proportion between minimum and additional terms, noting that the accused was no longer suffering from depression at the time of sentencing.
Orders Made
- Murder: Minimum term of 18 years, commencing 9 December 1997 and expiring 8 December 2015 (eligible for parole); additional term of 6 years, commencing 9 December 2015 and expiring 8 December 2021.
- Maliciously wound with intent to cause grievous bodily harm: Fixed term of 12 years, commencing 9 December 1997 and expiring 8 December 2009.
Key Takeaways
- Where a jury rejects diminished responsibility and provocation on the evidence presented, the sentencing court proceeds on the basis that the Crown excluded both defences to the criminal standard.
- A pre-offence statement of intent to kill, made to a third party some weeks before the crime, may be treated as evidence of premeditation that elevates the objective seriousness of the offending.
- The principle of totality requires a sentencing court to account for the combined criminality of multiple offences committed in a single episode, even where each offence is sentenced separately.
- Under the then-applicable Sentencing Act, the absence of special circumstances required the court to maintain the statutory minimum-to-additional term proportion; the recovery of the accused from depression prior to sentencing was a relevant consideration in that assessment.
- Sentencing in domestic homicide cases draws on comparable "relationship cases" as a reference range, with the objective circumstances of each case determining where within that range the sentence falls.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) (maximum penalties for murder and maliciously wound with intent to cause grievous bodily harm)
- Sentencing Act (NSW), s 5(2) (special circumstances and the proportion between minimum and additional terms)
Cases:
- Regina v Twala (unreported, Court of Criminal Appeal, 4 November 1994)
- Regina v Fernando (unreported, Court of Criminal Appeal, 14 April 1999)