DPP v Barnwell [2002] VSC 280

8. The reason you are before this court to be sentenced is your gross negligence in playing with, and play-acting with, a firearm - a firearm which could be seen to be loaded, which you did not know how to operate, and which was handled by you in a room where another person could be harmed and who tragically was, in fact, shot dead.

11. The deceased, Luke, was born on 31 August 1975. He grew up in the Port Melbourne area and spent much of his life there, as well as a short period in Brunswick. He was an excellent sportsman. He played for the Victorian Junior Australian Football Squad for a short time and was, indeed, sought by a league club. Back injury problems prevented him playing at that level. He had a daughter, as I have said, who is now nine years of age. He did a horticultural course and worked part-time as a landscape gardener and in various other jobs, but at the time of his death was not working.

14. You and the deceased first met in 1999 and by chance met again on 11 March 2001 at a party. You, in circumstances I shall come to in a moment, admitted yourself to the Alfred Hospital Psychiatric Unit on 13 March 2001 because of mood fluctuations and were visited there by the deceased. You had invited him to stay with you in Port Melbourne, which he then did.

17. You, Mr Barnwell, were born in South Africa on 16 March 1977. Your family migrated to Australia when you were three years of age. You were the older of two children. You were educated in the Brandon Park area and had significant difficulties in socialisation at schools in that area, through no fault of your own. Unfortunately, you commenced substance abuse at the age of 13 years, and up until the time of the shooting of the deceased, continued to take illicit drugs. As a consequence of that substance abuse you had a number of psychiatric problems and were formally diagnosed as schizophrenic, a diagnosis that I shall return to shortly. At the time of the shooting, you were under the care of the Junction Community Mental Health Clinic, where you were receiving regular medication. You were also supported with social work assistance to a degree. As I have said, on 13 March you entered the Alfred Hospital Psychiatric Unit and were treated there for three days. On 16 March, you were discharged from that Unit on a Community Treatment Order.

20. On Wednesday 28 March, the day of the killing, the deceased was at your flat. You left the flat at midday and at 1.30 p.m. attended the Junction Clinic in St Kilda to receive your fortnightly medication. By intramuscular injection you received 40 milligrams of Flupenthixol and you then returned to the flat in Port Melbourne. That injection of medication had no effect on your subsequent actions that afternoon.

23. The deceased in fact was the possessor of a nasty firearm, which he had at the flat - a sawn-off Gevarm self-loading repeater rifle. Its barrel had been cut down to 34 cms in length and the stock had been removed and replaced with a shortened stock with handgrips. The deceased was familiar with that weapon. You were not familiar with guns and not at all familiar with this gun and with its method of operation. It was not registered and the deceased was not licensed to possess it. It has been produced before the court.

26. When you arrived home from the Junction Clinic on that Wednesday afternoon, the deceased was lying on the couch watching television. You and he had been watching a number of action movies featuring Al Pacino and other players, a feature of which was that in a number of those movies police officers or other personnel would leap from behind closed doors with guns ahead of them to arrest people. The deceased was watching television. You went to bed. You couldn't sleep. You got up with nothing to do and you started to look around the bedroom. You picked up the weapon.

29. You moved the slide on the weapon, not knowing what that did, and you heard a clicking sound (Homicide interview, 28 March 2001, D.250, Q.250-255). In fact, but unbeknown to you, that movement cocked the weapon. Pressure for trigger operation was within normal limits. It is evident from the photographs tendered before me and from the weapon itself that even a cursory look at the weapon would have demonstrated that it was loaded. The weapon was unusual in that it fired from an open breech. When the weapon is cocked, it can readily be seen that it is loaded for firing. You did not observe the bullets which would have been evident if you had looked (Homicide interview, 28 March 2001, D.604-606, Q.780-795). You did not realise the gun was now loaded, cocked and ready for firing. You yourself had never loaded it. You then commenced play-acting with the weapon, just as you had seen in the videos. You started jumping around the bedroom pointing the gun and pretending you were someone like Al Pacino. This would have been a harmless and immature set of actions except that you had in your hand a weapon which was in fact loaded, which you had operated without knowing what effect the operation would have by moving the slide, and you were in a closed area where, in the next room, there was a person. Tragically you continued your play-acting which, but for the loaded weapon, would have been entirely innocent. You jumped into the lounge room, still play-acting and pointing the weapon. In doing so, and unexpected totally by you, the weapon discharged. Tragically it shot the deceased once in the head and he died instantly.

32. I have examined the report of Dr Ranson who conducted the autopsy and examined evidence of Ms McLeish who did the plan of the premises and considered the evidence of Senior Constable Glaser, the firearms expert called before the court. It is clear that you did not intend to discharge the weapon and that you were handling it in the way that you have described to investigating police.

35. When you realised what had happened you fell into a panic attack. You rushed from the house and commenced running down the street, not realising that you still had the gun in your hand. Then, further in panic, you threw the gun away and hid it and ran to a hotel where there was a phone. You rang 000 emergency services and called the police. That was at 4.20 p.m. The police immediately arrived, took you into custody and attended the flat. That was at 4.33 p.m.

38. At that juncture, of course, the police did not know in fact what had happened. In a careful and responsible investigation Detective Senior Constable Woodyatt and other officers interviewed you and investigated the circumstances. You were taken to the Homicide Squad office later that Wednesday, 28 March and commencing at 7.15 p.m. you were interviewed by Detective Senior Constable Woodyatt in the presence of Detective Sergeant Jenks with an independent third person, Mr Jim Sparrow, present. It is significant that at the commencement of that interview at 7.15 p.m. in question 3 Detective Senior Constable Woodyatt informed you that he was interviewing you "in relation to murder". That was because at that stage there was evidence that there was one single shot to the head of the deceased from the rear and you had had the weapon. The officers at that stage did not know all the circumstances of the shooting. That interview continued until 11.16 p.m. and then recommenced shortly after midnight until 12.35 a.m. Then, as appears at question 748, the interviewing officers said that they are not yet in a position to say what is going to happen to you until the results of the autopsy were in. Accordingly, the interview was suspended and you remained in custody. Then at 5.54 a.m. the interview recommenced. Again the commencing question, now question 757, referred to the interview being "in respect of the offence of murder". That short interview concluded and at question 871, the officers saying that the investigations were continuing and forensic tests needed to be conducted. You were not then charged with any offence but were held in custody.

41. On the following Monday, Monday 2 April 2001, in a brief interview - the autopsy, the firearm investigations and the other forensic investigations having taken place - and you having told the officers in the interview what had happened in the tragic accident that had occurred and your part in it, at question 3 the officers said that: "You are now being interviewed for the offence of manslaughter". At question 28 you were informed that you would be charged with offence of manslaughter. As I say, I consider that investigation was careful and thorough and I consider that the officers' decision to charge you with manslaughter was the proper and correct decision.

44. A committal occurred on the charge of manslaughter on 27 September 2001 at the Melbourne Magistrates' Court where you reserved your plea and the matter was formally mentioned before the principal Judge, Teague J on 21 January 2002 and then you came before me for plea and sentence.

47. Although you reserved your plea before the Melbourne Magistrates' Court and formally pleaded not guilty before Teague J, I am satisfied that you have always acknowledged your culpability for your actions and you have always acknowledged your responsibility. Your plea before me of guilty is a formal and significant acknowledgment of that culpability and responsibility. Indeed, as I shall shortly come to, I consider you have substantial and genuine remorse for your grossly negligent actions.

50. I have had the benefit of receiving and reading in court and also reading away from court the victim impact statements in this case, Exhibit B, of the mother of the deceased, Mrs Gayle O'Keefe, who was devastated by the loss of her son and suffers continuing grief from it, and of the grandmother of the deceased, Mrs Dorothy O'Keefe and of the father of the deceased, Mr Leon Kalaitzis. They are all afflicted by the death of Luke and the younger persons, who I earlier referred to, in their own private ways, also are afflicted by the death of Luke. They are most impressive victim impact statements which I found truthful and moving.

53. You, Mr Barnwell, are now 25 years of age, having been born, as I have said, in March 1977. By reason of the social dislocation coming from South Africa and being brought up in the Brandon Park area and educated at local primary and secondary schools, through no fault of yours and no fault of your parents you had a difficult upbringing and adjustment.

56. As I have said, unfortunately very early you commenced substance abuse, doubtless because of the difficulties in which you found yourself amongst your peer group.

59. From the age of 15 years, on 31 March 1992, you have almost continuously committed offences except when you were in either detention at the youth level or custody at the adult level. A small number of the offences involved violence, but the pattern of your offending, Mr Barnwell, is significant in two respects. One is it has been continuous. The other is it does not signify a man of violence. There is no pattern which emerges from the overall review of your convictions of a man of violence.

62. I have carefully paid attention to the evidence and report of a distinguished psychiatrist, Dr Lester Walton. As I previously said, you were diagnosed through the medical care system for many years as schizophrenic. Dr Walton paid due respect to that longitudinal diagnosis, because experience shows that longitudinal diagnoses of treating doctors has a significant weight. Dr Walton examined you on 29 May 2002. His report was tendered before me as Exhibit 2. In it and in evidence before me he stated that you are of normal intelligence. He said, however, the following, quoting his report, Exhibit 2: "I have no doubt that Mr Barnwell is not suffering from schizophrenia and I have considerable doubt as to whether or not he is properly described as suffering from a schizo-affective disorder, a condition with a rather better prognosis and where between psychotic episodes there is often more recovery than occurs with schizophrenia." Dr Walton's conclusion is that his preferred diagnosis is of "A drug-induced psychosis, especially now that Mr Barnwell has not received anti-psychotic medication for a lengthy period and there has been no further psychotic breakdown." Your psychiatric condition had no direct relevance to your conduct that afternoon, just as I have already stated the injection of Flupenthixol had no direct relevance: the fatal events were the result of immature play-acting by you, but unfortunately in a grossly negligent context.

65. Tendered before me as Exhibit 1 are a series of certificates from Moreland Hall at Port Phillip Prison certifying your efforts at drug rehabilitation. On 7 August 2001, a Youth Drug Education Interactive Media Package was passed by you. On 17 August 2001, a Drug Education Relapse Prevention course was passed. On 23 November 2001, a further Drug Education and Harm Reduction Course was passed, and on 12 March 2002, an Intensive Group Psychotherapy Drug Treatment course was passed.

68. Those matters are significant in two respects: they signify a serious attempt by you at rehabilitation, important in any matter of sentencing. If a person has remorse that is genuine and is attempting to rehabilitate themselves, that is always significant in matters of sentencing. It is doubly so in your case because I consider your lengthy criminality is likely to have been caused by drug taking, in the first place and continually thereafter. That is why you kept committing these offences: because you kept taking these illicit drugs and their medically harmful effect on you.

71. You are now at a point in your life, Mr Barnwell, where through the tragic killing of your friend - the tragic loss of a son and loved one of the O'Keefe family - you are now addressing the causes of your own misconduct, and addressing them successfully. Indeed, as you said to Dr Walton, of your future: "It's a bit bleak but not as bleak as I thought it was for a long time. Instead of passing time I'm trying to make use of time."

74. I am affirmatively satisfied that you have genuine remorse for your crime and that you are seeking to take positive steps to rehabilitate yourself. I consider that you are in truth at a crossroads in your life where you are now seeking to put crime behind you, of all sorts. You will only do so if you stay off drugs.

77. As I said at the start, you had no intention to harm your friend. The reason you are before me is because of the following factors. First, you had a dangerous weapon, the firearm. Second, it could be seen that it was loaded. Third, you were unsure of its operation. Fourth, you operated its mechanism in ignorance of how it operated And fifth, in that circumstance of ignorance you play-acted with it in a room where another person was. That is what caused his death and that is what brings you before this court.

80. In contradiction to many other firearm cases, however, you did not load the firearm and you were not then handling the firearm in a direct way threatening someone, even foolishly. I have considered a number of related cases. The criteria for the gross negligence which constitutes the crime to which you have pleaded guilty are set forth in R v. Nydam[1]. The conscious and voluntary actions here are play-acting with a loaded gun in a room where there was another person. That fell grossly below the proper standard of care required of people and involved high risk to another. See also R v Wilson[2].

83. I have considered a number of like offences of the accidental discharge of firearms resulting in death when no harm was intended, from years ago in the leading authority of R v Pemble[3] and in more recent times R v Osip[4]; R v Raccanello[5]; R v Nguyen[6]; and a decision of the New South Wales Court of Criminal Appeal R v Do[7].

86. I am assisted by consideration of those matters as to the factual elements in them and the sentences there imposed.

89. It is necessary to impose a sentence of imprisonment upon you, Mr Barnwell, which reflects the terrible result of your gross negligence. That terrible result is the killing of an innocent and loved human being. However, I must take into account, first, that you had no intention whatsoever of harming him; second, that it was not a gun which you had, yourself, loaded; and all the other circumstances I have stated. The principles of punishment relevant in this case are stated in the numerous authorities I have cited.

92. In your case in particular, Mr Barnwell, I take into account your age, the circumstance that I consider you do have genuine remorse and that you cooperated with the police in your interview.

95. Looking through the thicket of your prior convictions, Mr Barnwell, I still think there is a substantial potential for good in you and I think if you keep off drugs you could have a good life once released.

98. You have spent 462 days in custody since the day of the shooting until today, the day of the sentence. Pursuant to s.18(4) Sentencing Act 1991, I declare that period of 462 days as already served under the sentence I impose upon you and so certify. That means that the 462 days comes off the sentence I announce commencing from today.

101. Mr Barnwell, for the manslaughter of Luke O'Keefe, I sentence you to four years' imprisonment. I direct that you serve a minimum term of two years' imprisonment before you are eligible for parole.

[1] [1977] VicRp 50; (1977) V.R. 430 at 455.

[2] [1992] HCA 31; (1992) 174 C.L.R. 313 at 333.

[3] [1971] HCA 20; (1971) 124 C.L.R. 107.

[4] [2000] VSCA 237; (2000) 2 V.R. 595.

[5] (2001) V.S.C. 258 (unreported) 25 July 2001.

[6] (2001) V.S.C. 278 (unreported) 10 August 2001.

[7] judgment on 9 February 2001, file No. 60754/99 (unreported).