Citation: R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808
Court: Supreme Court of New South Wales
Date: 18 December 2014
Judge: R A Hulme J
Background
On 6 December 2012, a confrontation at a semi-rural property at Oakville, on the outskirts of Sydney, culminated in the murder of Detective Inspector Bryson Anderson, a police officer who attended the scene to arrest Mitchell Barbieri following an earlier incident involving a compound bow. Mitchell Barbieri shot and killed Inspector Anderson while the officer was performing his lawful duty. Mitchell's mother, Fiona Barbieri, was also present and participated in conduct that resulted in the Inspector's death.
Mitchell Barbieri pleaded guilty to murder. Fiona Barbieri pleaded guilty to manslaughter, with the Crown accepting that plea in lieu of a murder charge. She also pleaded guilty to using an offensive weapon with intent to hinder the lawful apprehension of her son. Both offenders entered their pleas on the day the jury trial was due to begin.
Both offenders had significant mental health histories. The Barbieri family had developed fixed and irrational beliefs about their neighbour, including that he was conspiring to have them killed and that police attending the scene were corrupt and acting to ambush them. These delusional beliefs were central to the sentencing exercise, particularly in assessing moral culpability and whether mandatory life imprisonment applied to Mitchell Barbieri.
Legal Issues
- Whether the conditions for mandatory life imprisonment were established in respect of Mitchell Barbieri's murder conviction
- Whether Mitchell Barbieri's significant cognitive impairment reduced his moral culpability, and if so, to what extent
- The basis upon which Fiona Barbieri was to be sentenced for manslaughter, given a dispute about the factual basis for that plea
- The applicable standard non-parole period for the murder of a police officer and how it interacted with the offenders' individual circumstances
- The weight to be given to rehabilitation prospects, remorse (or its absence), and guilty pleas entered on the day of trial
- How to structure the sentences, including backdating and the application of Form 1 offences
Decision
Hulme J found that mandatory life imprisonment did not apply to Mitchell Barbieri. Although the murder of a police officer attracts a standard non-parole period of 25 years, the court found that Mitchell Barbieri's significant cognitive impairment reduced his moral culpability in a manner that took the case outside the mandatory life sentence provisions. The offence was assessed as above middle range in objective seriousness, given the deliberate killing of a police officer performing his duty, but the impairment finding was central to the sentencing outcome.
On the question of remorse, the court found that neither offender demonstrated genuine remorse. The guilty pleas, entered on the first day of trial, attracted some discount but did not warrant the full reduction that an early plea would have earned. The court noted reasonable prospects of rehabilitation in both cases, though it carefully avoided double-counting those considerations against the structure of the sentences.
For Fiona Barbieri, the court resolved the factual dispute about the basis of the manslaughter plea and sentenced her on the basis of participation in a joint criminal enterprise, together with her use of an offensive weapon to hinder her son's arrest. The court found that her moral culpability was also reduced by her mental state, noting a diagnosis of substantial impairment.
Ten victim impact statements were received and considered, from Inspector Anderson's family and from police officers who witnessed his death. The court acknowledged the profound and lasting harm caused to Inspector Anderson's family, to the NSW Police Force, and to the broader community, and described the killing of a police officer in the performance of duty as always a crime of extreme seriousness.
Orders Made
Fiona Barbieri:
- For using an offensive weapon with intent to hinder lawful apprehension (and taking into account two further offences): imprisonment for 4 years 6 months, no non-parole period, commencing 6 December 2012, expiring 5 June 2017
- For manslaughter of Detective Inspector Bryson Anderson: imprisonment for 9 years, comprising a non-parole period of 6 years 6 months and a balance of term of 2 years 6 months, commencing 6 December 2013, non-parole period expiring 5 June 2020, total term expiring 5 December 2022
- Overall sentence: 10 years with a minimum custodial component of 7 years 6 months
Mitchell Barbieri:
- For the murder of Detective Inspector Bryson Anderson (and taking into account four further offences): imprisonment for 35 years, comprising a non-parole period of 26 years and a balance of term of 9 years, commencing 6 December 2012, non-parole period expiring 5 December 2038, total term expiring 5 December 2047
Key Takeaways
- Significant cognitive impairment, where established to the requisite standard, can displace the mandatory life sentence for murder and reduce an offender's moral culpability even in cases involving the deliberate killing of a police officer.
- A standard non-parole period of 25 years applies under New South Wales law to certain cases of police officer murder, but that prescribed period interacts with individual sentencing factors, including mental impairment, and does not operate as a rigid floor in every case.
- Guilty pleas entered on the first day of trial attract a lesser discount than early pleas; in both sentences here, the court specified what the sentence would have been absent the plea, making the discount transparent.
- Where an offender participates in a joint criminal enterprise resulting in a police officer's death, manslaughter by substantial impairment remains available as a plea where the Crown accepts it, with the factual basis for that plea resolved by the sentencing judge where disputed.
- The absence of genuine remorse is a factor weighing against an offender at sentence, even where cognitive impairment is also present; the court treated these as distinct considerations and declined to conflate them.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Amendment (Murder of Police Officers) Bill 2011
- Mental Health Act 2007 (NSW)
Cases:
- R v Jacobs (No 9) [2013] NSWSC 1470