AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
16
Court of Criminal Appeal 25 June 2009

BARTON v REGINA

[2009] NSWCCA 164

Homicide
CRIMINAL LAW SENTENCING PAROLE) OR 89 (TOTAL TERM) NO ERROR

Citation: Barton v Regina [2009] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 25 June 2009
Judge(s): Giles JA; Howie J; Latham J

Background

The appellant was convicted of the manslaughter of a man he had known for thirty years, the murder of that man's three-year-old daughter, and the attempted murder of the man's five-year-old son. The appellant, aged 47 at sentencing, had been subjected to blackmail and intimidation by the deceased for approximately ten years. On the night of the offence, he shot the deceased and then, the following day, administered methadone to the two sleeping children and set fire to the house in which they were sleeping, intending to conceal the killing and ensure the children did not survive as witnesses.

At first instance, Buddin J imposed an overall non-parole period of 35 years and a total term of 42 years. On those figures, the appellant would be 82 years old before becoming eligible for parole and 89 years old when the last sentence expired.

The sole ground of appeal was that the sentencing judge erred by effectively imposing a de facto life sentence after expressly declining to impose a formal life sentence under section 61(1) of the Crimes (Sentencing Procedure) Act 1999.

  • Whether a sentencing judge who declines to impose a life sentence under section 61(1) of the Crimes (Sentencing Procedure) Act 1999 is thereafter precluded from imposing a determinate sentence that will, in practical terms, extend for all or most of the offender's remaining life expectancy.
  • Whether the overall sentence, when accumulated, was within the proper exercise of the sentencing discretion.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Giles JA (with whom Howie J and Latham J agreed) rejected the proposition that declining to impose a life sentence under section 61(1) created any logical or principled barrier to a lengthy determinate sentence that extended into old age.

The Court explained that section 61(1) imposes a qualified obligation to impose a life sentence where the level of culpability is so extreme that community interests in retribution, punishment, protection, and deterrence can only be served by that sentence. Declining to impose a life sentence means only that this qualified obligation does not apply. All other sentencing principles remain fully operative. Among those principles is the requirement that a sentence reflect the objective seriousness of the offending, regardless of its practical effect on the offender's life expectancy.

The Court confirmed that a determinate sentence does not become impermissible simply because it is characterised as "crushing" or because it will, in effect, extend for the remainder of an offender's life. The sentencing judge was fully aware that the sentences would not expire until the appellant was well into old age and took that into account in exercising his discretion.

The appellant's counsel had conceded that the length of the individual sentences was within the range of the judge's discretion. The Court found no error in the accumulation of those sentences and no basis for disturbing the outcome.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Declining to impose a life sentence under section 61(1) of the Crimes (Sentencing Procedure) Act 1999 removes only that provision's qualified obligation; it does not constrain or qualify the remaining principles that govern the imposition of a determinate sentence.
  • A determinate sentence may lawfully extend for all or most of an offender's life expectancy if the objective seriousness of the offending warrants it. Being described as "crushing" does not, of itself, render a sentence erroneous.
  • The Court of Criminal Appeal confirmed that justice is individual: each offence and each offender must be assessed on its own facts, and no general principle emerges from a finding that a life sentence was unnecessary that then caps the length of a determinate alternative.
  • No error was established where the sentencing judge was demonstrably aware of the practical consequences of accumulation and took those consequences into account in the exercise of the sentencing discretion.
  • Under section 21(1) of the Crimes (Sentencing Procedure) Act 1999, courts retain discretion to impose a determinate sentence even where section 61(1) would otherwise require consideration of a life sentence, as confirmed in R v Merritt.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(1), 61(1)

Cases
- R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
- R v Folbigg [2005] NSWCCA 23; (2005) 152 A Crim R 35
- Ta'ala v R [2008] NSWCCA 132
- Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
- R v Chen [2003] NSWCCA 327; (2003) 138 A Crim R 433
- R v Holyoak (1995) 82 A Crim R 82
- R v Goebel-McGregor [2006] NSWCCA 390