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Supreme Court 29 June 2007

R v Barton

[2007] NSWSC 651

Homicide
SENTENCING MANSLAUGHTER BY WAY OF PROVOCATION ONE CHILD DIES OFFENDER RESCUES OTHER CHILD MURDER

Citation: R v Barton [2007] NSWSC 651
Court: Supreme Court of New South Wales
Date: 29 June 2007
Judge(s): Buddin J

Background

The offender, a 50-year-old man with an otherwise law-abiding history, faced three counts arising from events in Albury in September 2004. He had known the deceased, referred to as M., for approximately 30 years. From 1994 onwards, M. had subjected the offender to sustained blackmail and threats.

On 3 September 2004, the offender shot M. in the back of the head at M.'s Housing Commission residence. The following evening, while M.'s two young children (a 3-year-old girl, N., and a 5-year-old boy, J.) were asleep inside the same premises, the offender deliberately set fire to the house. The Crown's case was that the offender intended the children to perish in the fire so they could not implicate him in their father's death, as they had been present the previous evening. N. died in the fire. The offender rescued J.

The jury acquitted the offender of murdering M. but returned a guilty verdict for his manslaughter, accepting provocation as a partial defence. The jury found him guilty of the murder of N. and the attempted murder of J. Buddin J then proceeded to sentence the offender on all three counts.

  • On what basis (provocation or excessive self-defence) should the manslaughter of M. be sentenced, and what weight should be given to the offender's prolonged exposure to blackmail and threats?
  • Whether the murder of N. fell within the "worst category" of the offence so as to warrant the maximum penalty of life imprisonment.
  • How to structure the sentences across three interconnected offences, having regard to the principles of totality, concurrency, and cumulation.
  • What mitigating factors, including the offender's rescue of J. and his subjective circumstances, were relevant to the sentences for the murder and attempted murder counts.

Decision

Buddin J sentenced the manslaughter of M. on the basis of provocation, giving significant weight to the offender's decade-long exposure to blackmail and threats. A fixed term of 5 years was imposed for that count, reflecting the considerable mitigation arising from the provocation found by the jury.

On the murder of N., the court concluded the offence did not fall within the absolute worst category warranting the maximum sentence of life imprisonment, although it was plainly one of extreme gravity. The deliberate killing of a 3-year-old child by arson, committed to conceal an earlier killing, was treated as a very serious instance of murder. A non-parole period of 30 years was imposed, with a total term of 37 years.

For the attempted murder of J., the court acknowledged the aggravating circumstance that the victim was a young child who had been deliberately placed in mortal danger. However, the offender's act of rescuing J. from the burning building was given real, if limited, weight in mitigation, regardless of whatever motivation may have prompted it. A fixed term of 13 years was imposed for that count.

In structuring the overall sentence, Buddin J applied the principles of totality and Pearce concurrency and cumulation. The court noted that the effective non-parole period of 35 years would mean the offender could not be considered for parole until he was 82 years old, but emphasised that the prospect of eventual release into the community remained open.

Orders Made

  • Count 1 (manslaughter of M.): fixed term of 5 years imprisonment, commencing 13 September 2004, expiring 12 September 2009.
  • Count 3 (attempted murder of J.): fixed term of 13 years imprisonment, commencing 13 March 2006, expiring 12 March 2017.
  • Count 2 (murder of N.): non-parole period of 30 years commencing 13 September 2009 (expiring 12 September 2039), total term of 37 years (expiring 12 September 2046).
  • Overall effective non-parole period: 35 years; effective total term: 42 years.
  • First eligible parole date: 12 September 2039.

Key Takeaways

  • A jury verdict of manslaughter on the basis of provocation, arising from prolonged blackmail and threats by the deceased, can significantly reduce the sentence imposed even for the killing of an adult by a firearm shot to the back of the head.
  • Where an offender murders a child to conceal an earlier killing, the Supreme Court may treat the offence as one of extreme gravity without necessarily classifying it as a "worst category" case warranting a maximum life sentence.
  • The rescue of a victim during the commission of an offence can constitute a mitigating factor at sentencing, even where the court cannot be certain of the offender's motivation for performing the rescue.
  • Under the totality principle, sentences for interconnected offences must be structured so that the overall effective non-parole period represents the minimum time the offender must spend in custody, which may produce a non-parole-to-total-term proportion higher than the standard statutory ratio.
  • Subjective factors such as an offender's otherwise law-abiding history, stable employment record, and community involvement retained some mitigating weight even in the context of crimes of this seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 30 (maximum penalty for attempted murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Key Cases:
- Pearce v The Queen (1998) 194 CLR 610 (concurrency and cumulation of sentences)
- Johnson v R (2004) 205 ALR 346 (totality principle)
- R v Simpson (2001) 53 NSWLR 704 (fixing minimum non-parole periods)
- R v Way (2004) 60 NSWLR 168
- R v Folbigg (2005) 152 A Crim R 35
- Knight v R (2006) 164 A Crim R 126
- R v Andrews (2006) 160 A Crim R 505
- R v Merritt (2004) 59 NSWLR 557
- R v Hill (1981) 3 A Crim R 397
- R v Previtera (1997) 94 A Crim R 76
- R v Durocher-Yvon (2003) 58 NSWLR 581
- Various other NSW Court of Criminal Appeal decisions as cited in the judgment