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Supreme Court 8 November 2013

R v Barnes

[2013] NSWSC 1627

Assault & violenceHomicide
CRIMINAL LAW SENTENCING JOINT CRIMINAL ENTERPRISE MANSLAUGHTER PARITY FINDING OF SPECIAL CIRCUMSTANCES

Citation: R v Barnes [2013] NSWSC 1627
Court: Supreme Court of New South Wales
Date: 8 November 2013
Judge(s): Price J

Background

The offender, Richard Barnes, was charged with the murder of Wallace Ruiz-Sanchez, which occurred on 12 October 2010 at Mount Pritchard. Barnes was one of five men involved in a group confrontation in which Samuel Lockett struck the deceased over the head with a firearm, causing his death. Barnes had agreed to drive the group to the location and was present throughout the attack, remaining ready and willing to assist, though he did not physically assault the deceased.

Barnes pleaded not guilty to murder but guilty to manslaughter, on the basis of a joint criminal enterprise to assault the deceased. The Crown accepted that plea in full satisfaction of the indictment. Four co-offenders were also dealt with separately: two (Lockett and Brown) were found guilty of murder by separate juries, while Tuivaga and Trawin-Hadfield pleaded guilty to manslaughter on similar terms to Barnes.

The sentencing proceedings required Price J to assess Barnes's individual culpability within the joint enterprise, take account of his criminal history and the parity principle as between co-offenders, and determine an appropriate sentence that reflected the totality of his criminality.

  • What was the appropriate sentence for manslaughter arising from participation in a joint criminal enterprise, where the offender did not foresee death, grievous bodily harm, or the degree of violence used by a co-offender?
  • How should the parity principle apply when co-offenders have been convicted of different offences (murder versus manslaughter) and sentenced in separate proceedings?
  • Whether the sentence should be imposed cumulatively, concurrently, or partially concurrently with an existing sentence for armed robbery, and how the totality principle applied.
  • Whether special circumstances existed to justify a non-parole period that departed from the standard statutory ratio.

Decision

Price J sentenced Barnes on the agreed factual basis that he did not foresee that Lockett would use the violence he applied, and did not foresee death or grievous bodily harm as a possible consequence of the joint enterprise. Mitigating factors included that Barnes did not physically assault the deceased, the agreement to assault was formed shortly before the attack, and he had not anticipated the degree of violence ultimately employed. Aggravating factors included that Barnes was on parole for armed robbery at the time of the offence, which is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999. His criminal history, including prior convictions for aggravated break and enter and armed robbery, led the court to give greater weight to personal deterrence and community protection.

On parity, Price J found little utility in comparing Barnes's sentence with those of Lockett and Brown, given that they were convicted of murder and their roles were significantly greater. Parity was instead considered as between Barnes and the other manslaughter offenders, particularly Tuivaga, whose agreed facts and plea were entered on the same day.

Regarding totality, the court determined that partial concurrency with the armed robbery sentence would not adequately reflect the criminality of either offence, and that the manslaughter sentence should commence on 6 December 2011, the date Barnes completed his earlier custodial term following his return on a parole breach. The starting point of eight years was discounted by 12.5 per cent to seven years, reflecting the utilitarian value of Barnes's guilty plea. Special circumstances were found, justifying a non-parole period of five years rather than the standard proportion, given that the sentence was cumulative on the earlier term.

Orders Made

  • Barnes convicted of manslaughter.
  • Sentenced to seven years imprisonment with a non-parole period of five years, commencing 6 December 2011 and expiring 5 December 2016.
  • Balance of term of two years commencing 6 December 2016 and expiring 5 December 2018.
  • Earliest parole eligibility date: 5 December 2016.
  • Barnes's legal representative directed to advise him of the existence and application of the Crimes (High Risk Offenders) Act 2006.

Key Takeaways

  • The parity principle applies across co-offenders engaged in the same criminal enterprise even where different charges have been laid, but significant practical difficulties attend that approach, particularly where co-offenders have been convicted of substantively different offences such as murder versus manslaughter.
  • Manslaughter arising from a joint criminal enterprise does not require that the offender foresaw death or grievous bodily harm; liability can rest on participation in an unlawful and dangerous assault where an appreciable risk of serious injury was realised.
  • Committing an offence while on parole is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and a history of serious prior offending increases the weight given to personal deterrence and community protection.
  • Where a sentence is imposed cumulatively upon an existing term, special circumstances may be found to justify a non-parole period that departs from the standard statutory ratio, even where the offender's counsel did not make that submission.
  • Under the totality principle, partial concurrency with an earlier discrete sentence will not always be appropriate; the court must assess whether such an approach adequately reflects the criminality of each independent offence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 21A(3)(i)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Close v R (1992) 31 NSWLR 743
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v Macdonald (NSWCCA, 12 December 1995, unreported)
- R v Hill (1981) 3 A Crim R 397
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R
- R v McNaughton [2006] NSWCCA 24; (2006) 66 NSWLR 566