R v Barnes

REMARKS ON SENTENCE 1HIS HONOUR: On 26 June 2013, Richard Barnes (the offender) pleaded not guilty to the charge that he on 12 October 2010 did murder Wallace Ruiz-Sanchez. The offender entered a plea of guilty to the manslaughter of Mr Ruiz-Sanchez. The Crown accepted the plea of guilty to manslaughter in full satisfaction of the indictment. The maximum penalty for manslaughter is 25 years imprisonment. 2The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value the community places upon the preservation of human life is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (NSWCCA, 12 December 1995, unreported). The starting point in the present sentencing exercise, as in all offences of manslaughter, is that the life of Wallace Ruiz-Sanchez has been unlawfully taken: R v Blacklidge (NSWCCA, 12 December 1995, unreported). 3During the proceedings on sentence, Mr P Leask appeared for the Crown and Mr W Brewer for the offender. 4Samuel Lockett and Carl Brown have been found guilty by separate juries of the murder of the deceased. Bradley Owen Trawin-Hadfield and Kirk Daniel Tuivaga pleaded guilty to the manslaughter of the deceased which was accepted by the Crown in full satisfaction of the indictment charging them with murder. With no disrespect to these offenders, I will refer to them furthermore by their surnames during these sentencing remarks. 5It has been necessary to deliver separate sentencing remarks for each offender because of the individual jury trials for Lockett and Brown and the differences in the agreed facts upon sentence for the other offenders. However, the parity principle is of importance when sentencing each of them and is not confined to sentences imposed upon co-offenders who have committed the same crime. It can also be applied to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have been actually laid against them: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36 at [30]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [136]. However, the significant practical difficulties with this approach are well recognised: Jimmy at [203]; Green at [30]. 6In my view, there is little utility in considering parity with Lockett and Brown who have been found guilty of murder. The roles that they played in the death of the deceased were much greater than the offenders who have pleaded guilty to manslaughter and there is a deal of difference between the maximum penalties for murder and for manslaughter. The question of parity is considered at [21] below. I have firmly borne in mind the principle of proportionality when sentencing all of the offenders: R v McNaughton [2006] NSWCCA 24; (2006) 66 NSWLR 566 at [15]. 7The pleas to manslaughter were entered by the offender and Tuivaga on the same day. A document was tendered by the Crown without objection which sets out the basis of criminal liability for the offender and Tuivaga (ex A TB 1). Manslaughter as to Barnes and Tuivaga "1. There was in existence a joint criminal enterprise to assault Mr Ruiz-Sanchez, 2. The offenders were party to the agreement, and 3. The accused (sic) participated in the joint criminal enterprise in that they physically assaulted Mr Ruiz-Sanchez, encouraged other parties to the joint enterprise to do so, and remained present throughout, being ready and willing to assist others if need be, and 4. at a point in time before Samuel Lockett struck Mr Ruiz-Sanchez on the head with the gun, killing him, the offenders, knowing that other parties to the agreement intended assaulting Mr Ruiz-Sanchez, realised that Mr Ruiz-Sanchez was being exposed to an appreciable risk of serious injury. 5. The assault upon Mr Ruiz-Sanchez was unlawful and dangerous. 6. The offenders did not foresee either death or grievous bodily harm as a possible consequence. 7. The offenders did not foresee that another party to the agreement would employ the violence applied by Samuel Lockett, or it being achieved by use of a weapon." 8Accordingly, the offender must be sentenced on the basis that he did not foresee the violence applied by Lockett or that death or grievous bodily harm was a possible consequence of the joint criminal enterprise to assault the deceased. 9A statement of agreed facts was tendered by consent (ex B). The agreed facts are: "On 12 October 2010, the offender Barnes was present with the offenders Brown, Tuivaga (both of whom he knew previously) and Trawin-Hadfield and Lockett (both of whom he did not previously know) at 51 Marlborough Street Smithfield. The offender agreed to be the driver of a red BMW motor vehicle to convey himself and the other four offenders to Russell Street Mt Pritchard for the purpose of collecting prohibited drugs. During the journey, the vehicle stopped at premises in Welwyn Place, Canley Vale where a firearm was collected by the offenders. After arriving at the offender Brown's sister's house, the offender became aware that Brown intended to confront the deceased, who lived next door at 42 Russell Street, Mount Pritchard, to discuss money owed to Brown. The offender, who did not know the deceased, was aware that Brown and the deceased "did not get along". The five offenders left the house together. The offender knew that the firearm was taken by the group, and that a fight with the deceased was a possibility. The offender saw the firearm change hands between the other offenders as they approached the deceased's premises. The offender stood in the front yard of the deceased's premises and saw a fight commence with the deceased. He saw Lockett punch the deceased in the face and place him in a headlock. He then observed Brown attack the deceased. Finally, he saw Lockett hit the deceased over the head with the firearm and saw that it discharged. The offender agrees that he was party to a joint criminal enterprise to assault the deceased and that he participated to the extent of remaining present throughout the attack upon the deceased, ready and willing to assist others if need be. The offender did not foresee either death or grievous bodily harm as a possible consequence or that another party to the agreement would employ the violence applied by Lockett, or it being achieved by use of a weapon." 10I make findings of fact in accordance with the agreed facts for the purpose of sentencing the offender. 11The offender's conduct did not involve him physically assaulting the deceased. However, he had agreed with the four others to assault the deceased and it was for this reason that he entered into the front yard of the deceased's premises. He did not desist from participating in the agreement even though he was aware that a firearm was in the possession of his co-offenders. He was present during the cowardly attack upon the deceased and remained ready and willing to assist even though the deceased was outnumbered by his attackers. 12Matters that mitigate the objective seriousness of the offence are that the agreement to assault the deceased was not entered into until shortly before he was attacked and the offender did not physically assault him. Furthermore he did not foresee that any of his co-offenders would employ the degree of violence used by Lockett or that death or grievous bodily harm was a possible consequence of the joint criminal enterprise. 13The offender was born on 7 June 1983. He was 27 years old at the time of the offence and is now 30 years old. His prior criminal history reveals that on 20 March 2007, he was sentenced in the Newcastle District Court to imprisonment for 4 years commencing on 11 May 2006 and expiring on 10 May 2010 with a non-parole period of 2 years expiring on 10 May 2008 for an offence of aggravated break and enter whilst armed with a dangerous weapon. He was further sentenced for robbery whilst armed with an offensive weapon to imprisonment for 4 years 6 months commencing 11 May 2007 and concluding on 10 November 2011 with a non-parole period of 2 years expiring on 10 May 2009. 14Having regard to this criminal history, I give more weight to considerations of personal deterrence and the protection of the community than otherwise would be the case: R v McNaughton. I take into account the need for general deterrence. 15At the time of the manslaughter, the offender was on parole for the offence of armed robbery. It is an aggravating factor that the offence was committed whilst the offender was subject to conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. 16On 25 June 2013, Mr Brewer informed the court that he had been instructed to enter a plea to manslaughter. This was the day before the offender's trial for murder was listed to commence. On 26 June 2013, the offender and Tuivaga pleaded not guilty to murder but guilty to manslaughter which the Crown accepted in full satisfaction of the indictment. Mr Brewer invited me to find that the utilitarian value of the plea entitled the offender to a discount of 15 per cent but I decline to do so as the plea was entered on the eve of his trial. Although this was a late plea, the estimated length of the trial was two to three weeks and involved issues arising from the principles of joint criminal enterprise. I assess the utilitarian value of the plea to be 12.5 per cent: R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. 17The offender did not give evidence during the proceedings on sentence. No reports or other evidence were adduced on his behalf but Mr Brewer made oral submissions. 18Mr Brewer told me that the offender has three siblings, that his mother has been very unwell with cancer and the offender has an eight year-old child who is in the custody of his mother. The offender has attempted to re-establish a relationship with his son but his efforts have been unsuccessful whilst he has been in custody. The offender instructed Mr Brewer that upon his release, he intends to return to labouring and to live on the Central Coast where his mother and younger sister live. Mr Brewer said that the offender has no drug and alcohol issues, although that has been a problem for him in the past. I take into account the offender's personal circumstances. 19Remorse as a mitigating factor is qualified by s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. Many of the agreed facts came from the offender's ERISP interview with police. By his plea of guilty, the offender has accepted responsibility for the part that he played in the death of the deceased and his plea indicates contrition for the offence. His plea saved the Crown witnesses, particularly Ms Knaggs, from giving evidence in a third trial which reflects his remorse: Borkowski at [32]. I take into account his remorse as a mitigating factor. 20Although he is remorseful and intends to return to labouring and to live on the Central Coast upon release, I am unable to make a positive finding on the balance of probabilities that he is unlikely to re-offend or has good prospects of rehabilitation. The commission of the offence whilst on parole does not encourage an optimistic view being taken and the prospects of his rehabilitation remain uncertain. 21I turn to the question of parity. Although the offender did not become physically involved in the attack upon the deceased and Tuivaga did, Tuivaga was not aware that a firearm was in the possession of his co-offenders, whereas the offender with that knowledge did not desist from participating in the agreement to assault the deceased and remained ready and willing to assist. I assess them as being equally culpable for the offence. I turn to their subjective cases. Tuivaga is about two years older than the offender but the offender's prior criminal offending is marginally more serious than Tuivaga's. Tuivaga, however, has been held in segregation whilst in custody and has an underlying depressive illness. It is likely that he will continue to serve his sentence under these conditions. The offender's custodial conditions are those of the general prison population and he does not have a mental condition. In my opinion, the hard conditions under which Tuivaga is to serve his sentence justify a lesser sentence than that to be imposed on the offender. Tuivaga was to be sentenced this morning but due to industrial restrictions at Goulburn Correctional Centre where Tuivaga is an inmate, he was unable to be brought to court today. I discuss the question of the offender's parity with Tuivaga at [25] of Tuivaga's sentencing remarks: R v Tuivaga [2013] NSWSC 1626. Tuivaga is now to be sentenced next Monday. 22Victim impact statements from Ms Knaggs, Maria Vinas, the deceased's mother, and Virginia Ruiz-Sanchez, his sister, were read to the court. The contents of these statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's partner and his family and express on the community's behalf its sympathy and compassion for them. 23The offender's sentence for armed robbery was not to expire until 10 November 2011 and at the time of his arrest on 17 November 2010, he was on parole for this offence. It appears from the offender's custodial history (ex A TB 8 p 1) that the offender completed this sentence on 6 December 2011 following his return to custody and not on 10 November 2011 as submitted by Mr Brewer. It is necessary to consider the principle of totality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The offence for which the offender was sentenced in the District Court and the offence of manslaughter are discrete and independent acts of criminality. This fact does not, however, finally determine whether the present sentence ought to be imposed concurrently, partially concurrently or consecutively: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at [27]. 24The offender's custody until 6 December 2011 was as a consequence of his breach of parole for armed robbery. I do not think that partial concurrency with that sentence would adequately reflect the criminality of the armed robbery or the offence of manslaughter. Accordingly, I consider it appropriate that the commencement date of the present sentence is 6 December 2011. 25Although Mr Brewer did not submit that a finding should be made of special circumstances, I find special circumstances as the present sentence has been made cumulative upon the existing sentence: R v Simpson (1992) 61 A Crim R 58; Close v R (1992) 31 NSWLR 743. I have determined that a non-parole period of 5 years is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63]. 26Taking into account all matters that are relevant to sentence, the appropriate undiscounted starting point of the overall sentence is 8 years. The overall sentence is reduced by 12.5 per cent to 7 years. 27Richard Barnes for the offence of manslaughter, I convict you. I sentence you to a term of imprisonment of 7 years with a non-parole period of 5 years commencing on 6 December 2011 and expiring on 5 December 2016 with a balance of term of 2 years commencing on 6 December 2016 and expiring on 5 December 2018. 28The earliest date that you will be eligible to be released on parole is 5 December 2016. 29I ask Mr Brewer to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence for which he has been sentenced.