Citation: Barrett v R [2020] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 14 February 2020
Judge(s): Bathurst CJ (with Wright J agreeing); Garling J (dissenting on sentence)
Background
The applicant pleaded guilty in August 2017 to one count of murder, one count of detaining a person for advantage (kidnapping), and three counts of committing an act of indecency. He also asked for a further 21 offences to be taken into account on a Form 1 document when sentenced for murder. Those additional offences involved covertly filming family members in private situations without consent, for sexual gratification.
The offences were committed against two members of the applicant's household. The victim of the murder and kidnapping was a 25-year-old woman who had moved from China to study in Australia and lived with the applicant and his wife. On 22 April 2016, the applicant detained her, bound her hands, gagged her with duct tape, and photographed her naked. Between that morning and the early hours of 24 April, he stabbed her to death, inflicting 31 knife wounds. He then drove her body to a coastal conservation area and disposed of it in a blowhole, before falsely telling police she had been alive on 22 April.
The applicant was sentenced in December 2017 to an aggregate term of 46 years imprisonment with a non-parole period of 34 years and 6 months. The indicative sentences were 40 years and 6 months for murder, 9 years for kidnapping, and 13 months on each indecency count. All indicative sentences reflected a 10% discount for the guilty plea. The applicant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the aggregate sentence of 46 years was manifestly excessive, having regard to the totality of the criminality and all relevant sentencing factors
- Whether the 10% guilty plea discount was adequate
- Whether the Crown should be permitted to reopen the appeal to adduce fresh evidence of additional alleged offending
Decision
Manifest excess (majority): Bathurst CJ, with Wright J agreeing, dismissed the appeal. The majority accepted that the sentence was severe but found it was not manifestly excessive in light of all the circumstances. Those circumstances included the totality of the applicant's criminality, the particular brutality of the murder, the disposal of the body, and the applicant's complete lack of remorse. The majority reviewed a range of comparable cases involving multiple serious offences, including other murders with high levels of criminality, and found that sentences of comparable severity had been imposed in appropriate cases.
Guilty plea discount: The majority did not find error in the sentencing judge's application of a 10% discount. The discount reflected the limited utilitarian value of the plea given the nature and strength of the Crown case.
Garling J (dissenting on sentence): Garling J concluded the aggregate sentence was manifestly excessive and fell outside the range available in the proper exercise of sentencing discretion. His Honour considered the 10% plea discount was inadequate and that a larger discount would still have reflected the very high level of criminality. Although no patent error in the sentencing remarks was identified, his Honour considered the aggregate sentence was simply too high when compared with comparable cases.
Crown motion to reopen: The Court unanimously dismissed the Crown's earlier motion to reopen the appeal and adduce fresh evidence of alleged additional offending. The Court declined to exercise its discretion because: the sentencing proceedings had been conducted on agreed facts; the applicant did not challenge any factual findings; the Crown did not assert any error by the sentencing judge; and the Court was not well placed to resolve disputed factual questions. The Court also noted that the Crown remained free to prefer separate charges based on the proposed fresh evidence.
Orders Made
• Crown's notice of motion dismissed
Key Takeaways
- An aggregate sentence of 46 years for murder, kidnapping and acts of indecency, including 21 Form 1 offences, was held by the majority of the Court of Criminal Appeal not to be manifestly excessive where the criminality was of a very high order and the offender showed no remorse.
- The decision produced a majority and a dissent. Garling J considered the sentence fell outside the proper exercise of sentencing discretion, illustrating that reasonable minds among experienced judges can differ at the upper end of the sentencing range.
- A 10% guilty plea discount was found by the majority to be appropriate in circumstances where the strength of the Crown case limited the utilitarian value of the plea.
- Refusing to allow the Crown to reopen an appeal to adduce fresh evidence, the Court of Criminal Appeal held it would be unfair to assess sentence on a factual basis entirely different from that before the sentencing judge, particularly where the Crown identified no error in the sentencing remarks.
- The Court confirmed that where a Crown motion to reopen is refused on this basis, no adverse consequence for the administration of justice necessarily follows, because the Crown retains the ability to prefer charges based on any new evidence through ordinary criminal process.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 61N(2), 86(1)(b), 91L(1), 91M(1)
- Criminal Appeal Act 1912 (NSW), s 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 22(1A), 22A, 44(2), 53A(2), 54B(4), 54B(5)
Key Cases:
- Hughes v R [2018] NSWCCA 2
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kelsall v R [2017] NSWCCA 240
- King v R [2015] NSWCCA 99
- O'Connell v R [2006] NSWCCA 82
- Alou v R [2019] NSWCCA 231
- Gibson v R [2019] NSWCCA 221
- PG v R [2017] NSWCCA 179
- Elsaj v R [2017] NSWCCA 124
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Betts v R (2016) 258 CLR 420; [2016] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26