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Supreme Court 18 March 2021

R v Barrett

[2021] NSWSC 126

Sexual offencesHomicide
CRIME SENTENCE PLEAS OF GUILTY RELEVANCE OF DRUG USE QUESTION OF REMORSE EXTENT OF DISCOUNT TO BE AFFORDED

Citation: R v Barrett [2021] NSWSC 126
Court: Supreme Court of New South Wales
Date: 18 March 2021
Judge: Wilson J

Background

In April 2016, the offender murdered a 25-year-old woman in a knife attack. He was sentenced in December 2017 to an aggregate term of 46 years imprisonment with a non-parole period of 34 years and 6 months, covering the murder and related offences. His appeal against that sentence was dismissed by the Court of Criminal Appeal in February 2020.

Before the CCA delivered its judgment on appeal, a USB memory stick was handed in to police by a Strathfield resident who had found it in the area. The stick contained recordings made on 22 and 23 April 2016 that depicted, in graphic detail, the offender sexually and indecently assaulting the victim on multiple occasions prior to killing her. These offences had not been known to police or the Court at the time of the 2017 sentencing.

The CCA declined to re-open the appellate proceedings to receive this new evidence. The offender was accordingly charged with nine fresh sexual offences, together with related charges on five Form 1 documents. The matter was committed to the Supreme Court rather than the District Court because of its close connection to the proceedings already finalised there. On 9 December 2020, the offender pleaded guilty to all nine counts on the indictment.

  • What sentences were appropriate for nine counts of aggravated and indecent sexual assault committed against the victim immediately before her murder, where those offences had only been discovered after the murder sentence was finalised?
  • How should the principle of totality apply when the new offences were committed as part of the same criminal episode as conduct already subject to a lengthy existing sentence?
  • What weight should be given to the guilty plea, and whether any genuine remorse warranted a further discount?
  • What relevance, if any, did the offender's drug use at the time of the offences have to the sentencing exercise?
  • Whether an aggregate sentence was the appropriate sentencing mechanism given the number and interrelated nature of the offences.

Decision

Wilson J sentenced the offender on nine counts of aggravated sexual assault and indecent assault arising from recordings that captured sustained and serious sexual violence against the victim. The offences were committed while the victim was bound, gagged, and naked on her bed, and were recorded by the offender himself using multiple devices. The Court described the crimes as grave, noting the offender's use of a large hunting knife throughout, the extended duration of the abuse, and the profound degradation inflicted upon the victim.

On totality, the Court recognised that the new sentence must be considered alongside the 46-year term already in place. The principle of totality required that the combined sentences not be crushing in a manner disproportionate to the overall criminality, but also that the fresh offences not be improperly subsumed into the earlier sentence. The Court found that the new offences were serious in their own right and warranted a meaningful, additional term that could not be treated as fully absorbed.

On remorse and the guilty plea, the Court was not persuaded that the offender had demonstrated genuine remorse for his crimes. The plea of guilty attracted a discount, but the Court's assessment of the offender's expressed regret was sceptical, noting that the evidence of offending came from recordings the offender had made himself. As to drug use, the Court gave limited weight to evidence of the offender's methamphetamine use as a mitigating factor, treating it as not materially reducing his moral culpability given the deliberate and sustained nature of the conduct.

The Court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999. Wilson J specified what individual sentences would have been for each count (ranging from approximately 2 years 3 months for the least serious to approximately 16 years 2 months for the most serious counts), before arriving at an aggregate figure that reflected appropriate concurrency and the totality principle. General and specific deterrence, and denunciation, were identified as weighty sentencing considerations.

Orders Made

  • The offender was convicted of counts 1 to 9 on the indictment of 1 October 2020.
  • An aggregate sentence of 20 years imprisonment was imposed, commencing 28 April 2039 and expiring 27 April 2059.
  • A non-parole period of 14 years was fixed, expiring 27 April 2053.
  • The overall head sentence remained the same when combined with the 2017 sentence, but the overall non-parole period increased by 2 years and 6 months.
  • The offender's earliest possible release date is 27 April 2053.

Key Takeaways

  • Where serious sexual offences forming part of the same criminal episode as a murder are discovered and prosecuted after the murder sentence is finalised, the sentencing court must impose a separate, meaningful sentence for those offences rather than treating them as fully absorbed by the earlier term.
  • The totality principle does not operate to reduce a fresh sentence to a nominal addition where the new offences are grave in their own right; it requires proportionality across the combined sentences without improperly discounting the seriousness of the fresh criminality.
  • A guilty plea will attract a sentencing discount even where the evidence of guilt is overwhelming, but the extent of that discount may be constrained where the court is not satisfied that genuine remorse underlies the plea.
  • Drug use at the time of offending carries limited mitigating weight where the conduct was deliberate, sustained, and recorded by the offender himself, indicating purposeful rather than impulsive behaviour.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence is available and appropriate where multiple interrelated offences are being sentenced together, with the court required to identify what individual sentences would have been before settling on an aggregate figure.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61L, 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A, Division 3 of Part 3

Cases
- R v Barrett [2017] NSWSC 1802
- Barrett v R [2020] NSWCCA 11
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Imbornone v R [2017] NSWCCA 144
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v Arthurell (unreported, 3 October 1997, NSWSC)