AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 June 2009

R v Barker, William

[2009] NSWDC 210

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL LAW SENTENCING RECKLESSLY WOUND WIFE VICTIM POOR HEALTH IN BED AT TIME OF ATTACK

Citation: R v Barker, William [2009] NSWDC 210
Court: District Court of New South Wales
Date: 23 June 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a 59-year-old Aboriginal man, had been married to the victim for 37 years. Both had health problems. The offender worked as a senior station hand at a remote property near Bourke, and in the week before the offence he heard repeated claims from a shearer that the shearer had been having an affair with his wife. Those claims were unfounded.

On the night of 22 July 2008, after consuming a significant amount of alcohol at a "cut out" party, the offender travelled 45 kilometres to Bourke and arrived at his daughter's home where his wife was staying. He brought a 12-gauge Winchester shotgun, a boning knife, a length of polythene pipe, rope, and shotgun cartridges. He later said he intended to frighten his wife.

Once inside the bedroom, the offender struck the victim multiple times with the pipe, threatened to shoot and kill her and then himself, aimed the loaded shotgun at her chest from close range, tied a rope around her throat and secured her so she was immobile, and then struck her twice to the head with the stock of the shotgun, causing bleeding. Police arrived within minutes and arrested him. It was the offender's first contact with the law in nearly 60 years of life.

  • What were the objective facts and circumstances of the offences of recklessly wounding and possessing a loaded firearm so as to endanger life?
  • What weight should be given to the offender's subjective circumstances, including prior good character, remorse, guilty plea, health, and cultural background as an Aboriginal person?
  • Whether the standard non-parole period should apply, or whether special circumstances justified a departure from it.
  • What discount, if any, was appropriate for the guilty plea?
  • How should the ancillary firearms and related offences dealt with under section 166 of the Crimes (Sentencing Procedure) Act be sentenced?

Decision

The court assessed the objective criminality as serious. The victim was in poor health, in bed, and immobile when struck. The offender had armed himself with multiple implements before travelling to confront his wife, indicating premeditation in the preparation even if the precise events unfolded in anger. The use of a loaded shotgun to terrify the victim, the threatening of murder and suicide, and the tying of the victim to prevent movement all elevated the gravity of the conduct. The court found a high level of recklessness in striking the immobile and restrained victim with the stock of the loaded firearm.

Against that objective seriousness, the court found the offender's subjective case to be strong. He had no prior criminal history across nearly 60 years. He demonstrated genuine remorse. He entered a plea of guilty. His cultural background as an Aboriginal man was a relevant consideration in the sentencing exercise, consistent with principles drawn from cases including R v Fernando and the approach taken in R v Gladue. The court also noted the offender's poor health and his prospects for rehabilitation in the community.

The court determined that the standard non-parole period did not apply in the circumstances, and that special circumstances justified a longer period on parole relative to the custodial term. A 25 percent discount was applied to reflect the guilty plea, reducing the notional head sentence of two years and six months to one year, ten months and fifteen days. The court expressed the view that imprisonment was imposed solely to reflect the punitive imperative and that, in every other respect, a custodial term was counter-indicated for this offender.

Orders Made

  • Recklessly wound: Convicted; sentenced to 1 year 10 months and 15 days imprisonment, with a non-parole period of 6 months. Sentence backdated to 17 May 2009; release ordered on 16 November 2009; balance of term to expire 31 March 2011.
  • Possess loaded firearm so as to endanger life: Convicted; identical sentence imposed, to run concurrently with the above.
  • Section 166 ancillary offences (all backdated to 17 May 2009, all fixed terms, all reduced by 25%):
  • Possessing ammunition without a licence: convicted pursuant to section 10A of the Crimes (Sentencing Procedure) Act (after the court noted that the offence carries only a fine as a maximum penalty and abandoned its initial custodial order).
  • Unregistered firearm (shotgun): convicted and sentenced to 6 months imprisonment.
  • Possessing ammunition without a licence (second matter): convicted and sentenced to 3 months imprisonment.
  • Unregistered firearm (.22 rifle): convicted and sentenced to 4 months and 15 days imprisonment.
  • Failing to keep a firearm safely: convicted and sentenced to 4 months imprisonment.

Key Takeaways

  • The District Court confirmed that a sentencing court may decline to apply the standard non-parole period where the offender's subjective circumstances, including genuine remorse, prior good character, cultural background, and rehabilitation prospects, are sufficiently compelling.
  • Under the principles in R v Fernando, the cultural and social circumstances of an Aboriginal offender are a relevant consideration in the sentencing exercise, capable of influencing both the structure and length of the sentence imposed.
  • A 25 percent discount for a guilty plea was applied to a notional head sentence, reflecting the utilitarian value of the plea and the resulting reduction in the sentence of imprisonment.
  • Where an offender commits a reckless wounding against a restrained, immobile victim using a firearm as an implement, and does so after deliberate preparation, the objective criminality is assessed as serious even if the offender had no prior criminal history.
  • The court's power to deal with ancillary Local Court matters under section 166 of the Crimes (Sentencing Procedure) Act is subject to the jurisdictional limits of the applicable offences, including where the maximum penalty is limited to a fine rather than imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), including sections 10A and 166

Cases
- R v Gladue [1999] 1 SCR 688
- R v Fernando (1992) 76 A Crim R 58
- R v Dunn [2004] NSWCCA 41
- R v Edigarov [2001] NSWCCA 436
- R v Lattouf (NSWCCA, unreported, 12 December 1996)
- Markarian v The Queen (2005) 228 CLR 357
- R v Hall (NSWCCA, unreported, 11 June 1999)
- R v Gordon SC (unreported, 29 April 1994, Hunt CJ at CL)
- R v Peter James Muir SC (unreported, 3 April 1991, David Hunt J)
- R v Barker [2009] NSWCCA 225 (Crown appeal dismissed)