AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
11
Court of Criminal Appeal 12 December 2016

Barbieri v R

[2016] NSWCCA 295

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER CRIMES ACT 1900 (NSW), S 19B(1) CRIMES ACT, S 23A OFFER NOT ACCEPTED BY DPP

Citation: Barbieri v R [2016] NSWCCA 295
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2016
Judge(s): Simpson JA (McCallum J agreeing); Price J (agreeing on result but dissenting on the re-sentence)

Background

The applicant pleaded guilty to the murder of Detective Inspector Bryson Anderson, a police officer killed in the execution of his duty during a confrontation at the applicant's home in December 2012. Both the applicant and his mother were involved in the events. Psychiatric evidence established that the applicant suffered from a delusional disorder shared with his mother, a condition known as "Folie à Deux," where one person adopts the delusional beliefs of another.

Because the victim was a police officer acting in the execution of his duty, section 19B of the Crimes Act 1900 (NSW) ordinarily mandates a sentence of life imprisonment. However, the Crown accepted that the applicant had a "significant cognitive impairment" within the meaning of section 19B(3)(b), which removed the mandatory life sentence. The applicant's mother, a co-offender, was separately dealt with: the Director of Public Prosecutions accepted her plea of guilty to manslaughter on the basis of substantial impairment under section 23A of the Crimes Act. The DPP declined to extend the same acceptance to the applicant.

At first instance, the applicant was sentenced to 35 years imprisonment with a non-parole period of 26 years. His mother received a total sentence of 10 years with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal, arguing several errors in the sentencing exercise.

  • Whether the sentencing judge erred in assessing moral culpability by treating the applicant's delusional disorder as "secondary" to his mother's condition and by noting that he recovered after separation from her
  • Whether the sentencing judge erred in failing to reduce the weight given to general deterrence in light of the applicant's mental illness
  • Whether the circumstances in which the applicant entered his guilty plea warranted a greater discount under section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentence imposed was disproportionate to the sentence imposed on the applicant's mother, giving rise to a justifiable sense of grievance under the parity principle
  • Whether the sentencing judge erred on other grounds, including double counting, insufficient weight to remorse, failure to find special circumstances, and manifest excess

Decision

Mental illness and moral culpability. The majority (Simpson JA, McCallum J agreeing) held that the sentencing judge fell into error by treating the derivative or "secondary" nature of the applicant's delusional disorder, and his apparent recovery after enforced separation from his mother, as reasons to conclude that his moral culpability was not substantially reduced. Those considerations were irrelevant to the applicant's mental state at the time of the offending, which is the focus of the moral culpability inquiry.

General deterrence. The majority also found error in the judge's refusal to reduce the weight given to general deterrence. An offender whose mental illness diminishes moral culpability is generally an unsuitable vehicle for general deterrence, and the sentencing judge should have approached it on that basis. Price J agreed there was error on the general deterrence point, but took a somewhat different path: his Honour concluded the sentencing judge's comments about the derivative nature of the disorder and the applicant's recovery were directed to the general deterrence analysis, not to moral culpability directly. On that basis, Price J would not have found error on the moral culpability ground.

Guilty plea. Simpson JA found that section 22(1)(c) of the Crimes (Sentencing Procedure) Act was susceptible to a less rigid interpretation than prior authority suggested, and that the circumstances in which the applicant pleaded guilty warranted a greater sentencing reduction than the judge allowed. Price J disagreed, concluding section 22(1)(c) was not applicable on the facts.

Parity. Both the majority and Price J agreed that the marked disparity between the sentence imposed on the applicant and that imposed on his mother gave rise to a justifiable sense of grievance, notwithstanding the materially different bases on which they stood for sentence. The evidence showed the applicant shared his mother's delusional thought processes, and it was erroneous to attribute far greater weight to the mother's mental illness than to the applicant's.

Re-sentencing. Having found error on at least two grounds, the Court exercised the sentencing discretion afresh, following the approach required by Kentwell v The Queen (2014) 252 CLR 601. Simpson JA (McCallum J agreeing) re-sentenced the applicant to 32 years imprisonment with a non-parole period of 24 years, applying a 10 per cent discount for the utilitarian value of the plea and declining to find special circumstances. Price J agreed the appeal should be allowed but dissented on the sentence imposed on re-sentencing.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed at first instance quashed.
  • The applicant re-sentenced to 32 years imprisonment, consisting of a non-parole period of 24 years commencing 6 December 2012 and expiring 5 December 2036, with a balance of term of 8 years expiring 5 December 2044.

Key Takeaways

  • A sentencing court assessing moral culpability for a mentally ill offender must focus on the offender's mental state at the time of the offending. The derivative or "secondary" nature of a delusional disorder, and the offender's recovery after separation from the inducing co-offender, are irrelevant to that inquiry.
  • Under the principles governing sentencing of mentally ill offenders, an offender whose mental illness reduces moral culpability will generally be an unsuitable vehicle for general deterrence, and the sentencing court must reflect that in the weight it attributes to that sentencing objective.
  • The Court of Criminal Appeal confirmed that section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), governing sentencing discounts for guilty pleas, may be capable of a less rigid application than previously understood, though the majority and minority differed on how that provision applied to the specific facts here.
  • Applying the parity principle, a marked disparity between sentences imposed on co-offenders who share a common mental illness can give rise to a justifiable sense of grievance, even where the co-offenders were charged with different offences and sentenced on different bases.
  • Where appellate error is established on sentence, the Court must re-exercise the sentencing discretion afresh rather than simply adjusting the original sentence, consistent with Kentwell v The Queen (2014) 252 CLR 601.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 19B, 23A, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, ss 21A, 22, 44(2)
- Crimes Amendment (Murder of Police Officers) Act 2011 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Verdins (2007) 16 VR 269; [2007] VSCA 102
- Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Devaney v R [2012] NSWCCA 285
- R v Barbieri, Mitchell; R v Barb