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Supreme Court 18 December 2001

Regina v Barby

[2001] NSWSC 1169

HomicideDrugsFirearms & weapons
MANSLAUGHTER SHOOTING ABSENCE OF SPECIFIC INTENT DRUNKENESS ALCOHOL DRUGS

Citation: Regina v Barby [2001] NSWSC 1169
Court: Supreme Court of New South Wales
Date: 18 December 2001
Judge(s): O'Keefe J

Background

The prisoner was charged with the murder of a 28-year-old man near Euabalong West in Central Western New South Wales on 22 January 2000. The deceased was shot at close range with a single round from a shotgun. After a jury trial in July 2001, the prisoner was acquitted of murder but found guilty of manslaughter.

The jury's verdict reflected a finding that the prisoner was so affected by alcohol and cannabis at the time of the shooting that he was unable to form the specific intent required for murder. The sentencing hearing was delayed until December 2001 due to court calendar pressures and the unavailability of counsel.

The prisoner had been in custody since 25 January 2000. No victim impact statements were tendered in the proceedings.

  • What sentence was appropriate for a manslaughter conviction involving a shooting under the influence of alcohol and cannabis?
  • What weight should be given to the aggravating circumstances, including the mixing of intoxicants with a dangerous weapon and the prisoner's subsequent conduct in concealing the death and the body?
  • What standard of proof applied to disputed facts at sentencing, and how should contested psychiatric evidence be assessed?
  • Whether special circumstances existed to justify reducing the non-parole period below the statutory ratio.

Decision

O'Keefe J began by confirming the applicable standard of proof at sentencing: facts adverse to the prisoner must be established beyond reasonable doubt, while facts in the prisoner's favour need only be proved on the balance of probabilities, following the Victorian Court of Criminal Appeal's analysis in Regina v Storey and adopted in New South Wales in Regina v Isaacs.

His Honour observed that manslaughter produces the widest range of circumstances and culpability of any serious crime, with sentences in New South Wales spanning from 18 months to 20 years. The sentencing task required balancing the gravity of a felonious taking of human life against the subjective circumstances of the offender, while maintaining reasonable proportionality.

On the objective facts, the court identified several aggravating features: the use of a shotgun, the combination of alcohol, cannabis, and a dangerous weapon, and the prisoner's subsequent conduct in concealing the death and disposing of the body. The court rejected psychiatric evidence suggesting the prisoner believed his life was under direct threat at the time of the shooting, finding that view inconsistent with the jury's verdict and not established to the required standard.

In mitigation, the court took into account the absence of specific intent, the prisoner's intoxicated state, and other subjective factors. The court found special circumstances existed, warranting a non-parole period below the standard statutory ratio, in part to allow for a suitable period of supervision and support upon release, including the possibility of protective custody arrangements.

Orders Made

  • Imprisonment for 10 years, commencing 25 January 2000 and ending 24 January 2010.
  • Non-parole period fixed to expire on 24 July 2006.

Key Takeaways

  • Manslaughter sentences in New South Wales carry a wide range (18 months to 20 years), reflecting the diversity of circumstances in which the offence arises; no fixed tariff applies.
  • The standard of proof at sentencing requires that facts adverse to a prisoner be established beyond reasonable doubt, while facts in the prisoner's favour need only be proved on the balance of probabilities.
  • Combining alcohol, drugs, and a dangerous weapon was treated as an aggravating feature, and the court expressly noted the need for sentences in such cases to signal disapproval to the wider community, particularly in rural areas.
  • Subsequent conduct after the offence, including concealment of the death and disposal of the body, constituted a further aggravating factor in the sentencing assessment.
  • Where psychiatric opinion is inconsistent with the jury's verdict, a sentencing court may decline to accept that opinion and proceed on its own assessment of the facts established beyond reasonable doubt.

Legislation and Cases Referenced

Cases:
- Regina v Storey (1997) 89 A Crim R 519
- Regina v Isaacs (1997) 90 A Crim R 587
- Regina v Hill (1980-81) 3 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

Legislation: No specific legislation was cited in the provided text.