R v Douglas Elwin Barlow

Supreme Court of NSW|2013-03-20|Before: Harrison J

Judgment 1HIS HONOUR: On the first day of a trial scheduled to commence in Lismore on 18 March 2013 the offender pleaded guilty to a single count in an indictment alleging that on 17 July 2011 at Ballina in the State of New South Wales he did murder David Newport. 2The offence of murder carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period of 20 years. Similarly, I am not required to make an assessment of whether or not the offence is within the mid range of objective seriousness (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions generally, and the provisions of ss 55B(2), 54B(3) and 21A of the Crimes (Sentencing Procedure) Act 1999 in particular, require an approach to sentencing in which all of the relevant factors are identified, and a judgment is reached as to the appropriate sentence having regard to such factors (see Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]). The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27] and [31]).

The circumstances of the offence 3The following facts are agreed for sentencing purposes. 4The offender is a single Aboriginal male born on 3 December 1986. He is now 26 years of age and was 24 years old when the offence was committed. He is originally from Moree. He had been living at 72 Grant Street, Ballina for approximately three months prior to the events that give rise to these proceedings. 5The deceased was born on 19 May 1971 and was 40 years of age at the time of his death. He was a tattoo artist operating his own business from the Top Notch Tattoo Parlour in Ballina. He lived at Pimlico. 6On 17 July 2011 at about 5.30 pm the offender and the deceased became involved in a fight with each other on Moon Street in Ballina near a laneway behind the Henry Rous Hotel. The reason for the fight is unknown. CCTV footage from the nearby Australian Hotel depicts the offender and the deceased together earlier in the afternoon. They were not fighting at that time. 7Two taxi drivers who were at the Moon Street cab rank saw the fight. A verbal altercation was heard and then the deceased was seen to strike the offender to the head. The offender appeared to be stunned by the blow and walked backwards tripping into the garden area on the median strip. The deceased attempted to pull the offender back. The offender then ran off into Tamar Street. The deceased went into the Henry Rous Hotel. He had grazes on his right knuckles. 8The offender took a taxi to premises in Bentinck Street, Ballina that were then occupied by Melanie Stevenson. The offender's friend David Keen and his mother Cheryl Keen were also present. The offender arrived at the house and called out to Mr Keen, saying "a couple of guys tried to jump me down town, you know that Dave". He also told Mr Keen that he had "had words" with Dave. 9Mr Keen formed the opinion that the offender had been drinking. He gave him a bowl of soup and then Mr Keen suggested that they go for a drive to "sort it out". Mr Keen also invited Roderick Lonsdale to accompany them. The three men drove in Mrs Keen's motor vehicle to the Henry Rous Hotel. Mr Keen drove with Mr Lonsdale in the front passenger seat and the offender seated in the rear. Mrs Keen said that she was certain that there were no knives in her car. Mr Keen parked the car in Moon Street adjacent to the balcony of the tavern. 10Mr Keen alighted from the vehicle. He saw that the deceased was standing on the hotel balcony. Mr Keen had previously met the deceased. As he approached him the deceased said to Mr Keen, "what's going on you black cunt?" 11The offender also alighted from the vehicle and approached the deceased by walking along the balcony on the northern side of the hotel. He was armed with a black handled steak knife in his left hand. The deceased turned to face the offender who then placed his right hand on the deceased's left shoulder. He pushed the deceased backwards, thereby exposing his chest. The offender then stabbed the deceased four times in the chest. 12The offender then walked off in a northerly direction. The deceased took a few steps in pursuit of the offender before he collapsed on the veranda. The offender re-entered the rear of Mrs Keen's car and Mr Keen drove it from where it was parked. 13The deceased was taken to Ballina Base Hospital where he died. 14Mr Keen drove back to the premises at Bentinck Street. The offender had blood on him. He told Mr Keen that he had been in a fight. Mr Keen and the offender sat for a while on the veranda of the premises smoking. Mr Keen ultimately persuaded the offender to accompany him to the Ballina Police Station. They arrived there at 7.15 pm. Police were of the opinion that the offender was at that time well affected by alcohol. The offender was taken into custody. 15Mr Keen accompanied the police to the premises at Bentinck Street where they conducted a search. A knife was located in the ground not far from where the offender had sat and smoked with Mr Keen. The knife was a 25 cm black handled steak knife. 16An autopsy conducted upon the deceased revealed that he had died as the result of four stab wounds to his chest. One of these penetrated the descending thoracic aorta and another entered the deceased's right ventricle. A third stab wound entered the upper lobe of the deceased's right lung. There were no defensive wounds on the body of the deceased. Some abrasions and bruising were apparent on the knuckles of his right hand. 17The offender participated in an interview with police commencing at 12.10 am. He initially told them that he had only punched the deceased in the face. He indicated that he had been drinking vodka and was drunk at the time of the offence. He maintained that he was still drunk at the time of the interview. The offender was then shown CCTV footage that depicted the stabbing. He continued to insist that he had only punched the deceased. Police later informed the offender that they had located the knife. The offender subsequently admitted that he had stabbed the deceased. He told police that he had done so because the deceased had wanted to kill him. 18The deceased has remained in custody since the date of his arrest.

Objective gravity of the offence 19The offence involved the use of violence and the use of a weapon. These are matters of aggravation. I am mindful of a possible view that they are effectively subsumed in the offence of murder having regard to the particular circumstances of this case and that as such could not be treated as aggravating features of the offence without an impermissible double counting. Neither the Crown nor the offender promoted such a view and I have not proceeded to act upon it. 20The offender has a somewhat unfortunate record of previous convictions, including convictions for personal violence offences. These included offences of assault occasioning actual bodily harm for which the offender was sentenced to terms of imprisonment. 21The issue has arisen as to whether or not the offence was, or could be characterised as, part of a planned criminal activity. The Crown specifically submitted that the offence was premeditated and certainly not spontaneous. It involved a high level of violence and was a calculated attack. 22That issue arises for particular consideration in this case in the context of the offender having come back to confront the deceased armed with a weapon following the earlier unarmed confrontation between them to which I have referred. There is a dispute about where and necessarily when the offender obtained the knife used to kill the deceased. The offender gave evidence that he discovered the knife in Mrs Keen's car under the seat in front of him when he went with the others back to the Henry Rous Hotel in search of the deceased. That explanation is said to be consistent with an absence of planning, or at least with a minimal amount of it, in the sense that the knife fell fortuitously into the offender's possession without any prior degree of forethought, contemplation or planning. 23The contrary argument is that the offender armed himself with the knife at the house at Bentinck Street, in the short time there following his initial confrontation with the deceased. The offender agreed that he was given soup there and that the time between the original confrontation and the fatal attack upon the deceased was only about ten minutes. There is no direct evidence from anyone that the offender acquired the knife at the premises and no evidence is available from which an inference can safely be drawn that the knife came from the house. For example, no one has identified the knife as theirs, or that it was found to be missing from some location in the house where it was customarily to be found. 24Evidence given by the offender is instructive in this regard. Even though the offender said that he effectively came across the knife no earlier than when he entered the car, he also said that he returned to the hotel to get revenge. That appears in at least the following extracts of the offender's evidence before me: "Q. And you came back to get your revenge from him, didn't you, with a knife and you stabbed him, that is what happened, isn't it? A. Yes. Q. When you went to Mr Keen's house, are you sure you did not have a knife on you at that stage? A. I never had any knife on me at all. Q. Well, when did you decide to get the knife and use it upon the deceased, Mr Newport? A. I seen it in the back of the car, so I grabbed it. Q. Are you sure about that? A. One hundred per cent. Q. When you say you 'grabbed it' you grabbed it intending to stab Newport, didn't you? A. Yes. ... Q. So you went back with Mr Keen, as you have already said, to get your revenge on Mr Newport, that is right? A. Yes." 25I am satisfied beyond reasonable doubt that the offender formed the intention to attack the deceased at some short time before he commenced the car journey back to the Henry Rous Hotel, or at least while he was in the car on the way there. The offender's evidence that he found the knife in the car strikes me as inherently improbable. Nonetheless, that is the evidence that the offender gave and it is the only positive evidence about where the knife might have come from. I am of course required to be satisfied of any fact adverse to the offender beyond reasonable doubt. Because of the state of the evidence I am unable to be so satisfied that the offender entered the car with the knife, having obtained it from the Bentinck Street premises. However, I do find beyond reasonable doubt that the offender planned to attack the deceased using the knife before he attacked him, and that he had possession of the knife at the very latest as he was walking towards the deceased on the hotel premises as depicted in the CCTV footage. To that extent at least I am satisfied that the offender had formed a plan to attack the deceased using that knife. It follows as well, and I find beyond reasonable doubt, that the offence was premeditated from at least the point where he alighted from the car. 26It was contended on the offender's behalf that the idea or decision to return to the hotel was not the offender's but was conceived by Mr Keen who suggested that they go for a drive to sort it out. That submission was advanced in aid of the contention that the offender was somehow therefore less morally culpable than if it had been his idea in the first place. I accept as a matter of emphasis that that may be correct. However, the difference in the two possibilities is small at best and does not adequately take account of the offender's own evidence that he returned to the hotel for revenge. The amount of premeditation was no more than ten minutes in any event. I do not consider the difference between the two possibilities either to be instructive or significant. 27That so called plan did not extend to the making of any detailed or organised arrangements. It was largely an anger-fuelled response to the earlier events. It was borne of what appears to have been an uncontrollable passion for revenge. The attack took place in what was in effect a public area in full view of hotel patrons. The offender took no steps to disguise his appearance or otherwise reduce the likelihood of detection. 28It was submitted by the Crown that the offender did cover his head with the hood of his jumper following the fatal attack and that such an act was important in determining his level of self-control and awareness of what he was doing at the time. He did not however take that precaution before the attack. 29In these circumstances I find that although the offender planned to do what he did in the ordinary sense of thinking about it beforehand, his actions could not be described in any way as part of a planned or organised criminal activity amounting to an aggravating feature as contemplated by the Crimes (Sentencing Procedure) Act.

Mitigating features 30It has been submitted on behalf of the offender that he was provoked and that he is entitled to the benefit of that concept as it is to be understood in the context of sentencing proceedings. In this regard I have read a series of statements from a number of independent witnesses who were either present at the time of the original altercation between the offender and the deceased or who spoke to the deceased a short time later at the Henry Rous Hotel where he stood drinking immediately before his death. Some of these should be mentioned. 31Wayne Shepherd knew the deceased. He was at his home on the evening of 17 July 2011 when the deceased telephoned him at about 6.20 pm. The deceased told Mr Shepherd that he was at the Henry Rous Hotel having a beer. Mr Shepherd said that the deceased sounded slightly affected by alcohol and was very angry. The deceased said to Mr Shepherd, "fuckin' black cunts, think they run the town; I had a fight and towelled one up out the back". Mr Shepherd asked him what happened. The deceased replied, "It all started at the Aussie hotel. I saw this fuckin' black cunt through the window on River Street. I saw him talking to Elliot [Reid]. I went out and got up the coon for giving the kids a hard time". Mr Shepherd said that the deceased was all fired up and that he tried to calm him down. 32Scott Heterick went to the Henry Rous Hotel with some friends at about 5.00 pm on 17 July 2011. A short time after arriving, he met the deceased on the hotel veranda. The deceased walked up to Mr Heterick and said, "I just smashed this maggot". Mr Heterick did not then know the deceased and formed the impression that he was drunk. A little later the deceased said, "He was mouthing off at me so I just dropped him." He said the deceased referred to the man he had just had a fight with as "a black cunt." The deceased showed Mr Heterick his grazed knuckles. 33Morgan Walker was one of Mr Heterick's companions at the time. He gave a statement to a similar effect. He also said that while describing the fight he had with the offender, the deceased was shadow boxing, simulating the fight by throwing pretend punches. Mr Morgan said that the deceased was gloating about the fight and how he had gained the upper hand. The deceased was also referring to some taxi drivers across the street as "fucking towel heads." 34Edward Howe was also with these men at the hotel at the time. He recalled that the deceased said, apparently referring to the offender, "He was mouthing off at me so I went over there and smashed him." 35It is uncontroversial that provocation of an offender by the victim is available in an appropriate case to be taken into account on sentence as a consideration or mitigating factor: s 21A(3)(c) Crimes (Sentencing Procedure) Act. Provocation can be taken into account in mitigating the objective seriousness of the conduct of the offender. Even though the provocation would, or might, not have operated to reduce the crime of murder to that of manslaughter, it may still operate as a mitigating factor, and an offender may thus receive the benefit, at least to some extent, of the factual basis upon which such a defence might hypothetically have rested. The same considerations apply if I am satisfied from credible evidence that there is an element of self-defence involved in the killing. 36The offender himself gave evidence that he returned to the hotel in order to take revenge upon the deceased. That intention would appear clearly enough to have been formed between the time of the fight between the deceased and the offender and to have resulted from it. The facts as agreed include that the deceased punched the offender and that he staggered back as a result of the blow. The offender has also given unchallenged evidence that the deceased made offensive and racially derogatory remarks to him and told him that he wanted him out of the town. These were matters that I find each amounted to provocation in the sense currently being considered. 37In forming that view I have taken account of the Crown submission that the offender had sufficient time to cool off and that his conduct does not demonstrate a loss of control. It was submitted that the offender was actually in complete control. It is clear that the offender had not cooled off following the original altercation, even though he had time to do so and even though one might have expected that he should have done so. More significantly, however, I consider that his conduct is an unambiguous example of loss of control. I find it difficult to align the stabbing of another person four times violently in the chest with a steak knife with any concept or notion of the retention of self-control. The outward appearance of calm determination and measured activity that arguably emerges from the CCTV recording of the incident should not in my view be permitted to disguise what was on any view an ill-considered, irrational, and possibly even frenzied assault. 38The offender was intoxicated at the time of committing the offence. He made numerous admissions of being drunk during interviews with the police. Moreover, the police interview was postponed or suspended to give the offender time to recover from the effects of what he had consumed. There is nevertheless a dispute about what his state of inebriation or drug affectation really was. The evidence, including the assessment given by Mr Keen, does not permit me to make any reliable finding in this respect. The offender's level of intoxication at the time must to some extent have affected his judgment and self-control but more than that cannot be said. The fact of his intoxication is a matter that to a degree operates in this case to mitigate the sentence that might otherwise have been imposed. 39In making that assessment I recognise that the offender was not so intoxicated that he was unable to walk from the car into the hotel and up to the deceased to attack him. The Crown made the submission that the offender had no difficulty in carrying out the offence as a result of his intoxication. Against that submission has to be weighed the opposing contention that it is precisely because he was, to some unknown extent, intoxicated that he had no difficulty in doing what he did. One eyewitness described the offender reaching into the sleeve of his right arm to pull the knife out prior to the attack. I accept the Crown's submission that such an act is more consistent with a level of a sober wit than the alternative. 40I am not satisfied that the same can be said concerning the question of self-defence. It is one thing to be required to take steps in response to an attack in order to defend against it. It is quite another to return to the scene of a previous threat, and certainly to what is potentially the scene of a new one, where no attack requiring any defensive measures has even yet materialised. I include in that analysis the notion that this offender apparently harboured fears that a pre-emptive strike was called for in the interests of his own safety. 41The Crown has submitted that the objective gravity of this offence is informed by what the circumstances reveal to be a clear intention on the part of the offender to kill the deceased. That submission proceeds, not unreasonably, upon the basis that the facts speak for themselves. 42The offender has specifically denied on oath that he stabbed the deceased with any such intention. Revenge was said to be his motive. Such a motive is clearly not consistent only with an intention to kill or only with an intention seriously to injure, although the act of stabbing the deceased four times is unequivocally consistent with an intention to do the latter. Without descending into unpleasant detail, it is not difficult to conceive of violent acts against a person that could only ever bespeak an intention to kill. The offender's acts in this case are not so unambiguous. I cannot therefore be satisfied beyond reasonable doubt that the offender stabbed the deceased with any intention greater than an intention to cause serious injury. 43An offender's remorse is a matter to be factored into the sentencing equation in a proper case. It should not of itself be the subject of a separately quantified discount. Matters such as remorse are to be taken into account in the general synthesis before the application of any discount referable to a plea. 44This offender gave evidence before me. He said that he was sorry for what he had done. In giving that evidence he directly addressed the deceased's relatives who were in court at the time and seated not far from the witness box. He said that he thought about what he had done every night as he lay in bed. The offender became emotional as he was giving this account. 45It is important in this context that I record my observations of the offender. He related a history of violence from his stepfather, a life growing up in a violent household and a descent on his part into the abuse of alcohol in his early to mid teens. He would drink at this age until heavily intoxicated. This later deteriorated into the use of amphetamines, crystal methamphetamine and marijuana. The offender also used heroin from the age of about 18 years. He has never had a job. He has never been married. He has no children. He appeared to me to harbour what could only be described as a barely concealed burden of anger and resentment. Everything he said had a sharp edge. 46However, in almost every respect his answers to questions from both counsel were responsive and candid, neither apparently self-serving nor defensive, and for that reason often inimical to his best interests. For example, he agreed that he had stabbed the deceased with the intention of hurting him. Although he did not concede that he intended to kill the deceased, the admission that he made was nonetheless wholly in line with his plea of guilty to the murder of the deceased. He did not attempt to minimise or rationalise the significance of his actions or to sidestep the plain facts. 47This impression is relevant to an understanding of the genuineness of offender's expression of remorse. I take much from the frank way that he gave this other evidence in an unguarded and patently honest fashion. The offender has a not inconsiderable background of trouble with the police. He has served time in gaol. The courtroom and the witness box are unlikely to hold fond memories for him. Notwithstanding this, he gave evidence about the tragic and terrible events of 17 July 2011 and apologised for his actions. I was certainly left in no doubt by the reactions from some others in court at the time that my view may not be the view of everyone. So much is understandable and only to be expected. However, I must reach my conclusions unaffected by the crushing weight of grief that others may feel. 48The offender did not for long maintain his resistance to the allegation that he had killed the deceased. He should in that sense be given the benefit as a mitigating factor of having assisted law enforcement authorities investigating the crime. I have had particular regard to the matters for which s 23 of the Crimes (Sentencing Procedure) Act provides. 49I do not feel that I can make any findings favourable to the offender in terms of his prospects for rehabilitation or his likelihood of reoffending. He has an unfortunate history of failures to respond to supervision by authorities or to comply with conditions imposed upon him in that respect. I acknowledge that his criminal antecedents and subsequent response to authorities are significantly related to his various addictions. His prospects of becoming and remaining drug free necessarily inform the likelihood that he will reoffend. The current state of available information produces a somewhat pessimistic prognosis

Subjective circumstances 50The offender is of Aboriginal descent. He was raised by his mother. He lived at Moree as a child. He had no contact with his biological father until the age of 17 years. The family was impoverished. He has a large extended family with the younger members of which he socialized. He was educated to Year 9 level. He was expelled from school. He was exposed to significant violence in the home to which I have already referred. The offender had a motorcycle accident when he was 13 years old, suffering broken bones and remaining in a coma for some time. He said he was in hospital following the accident for 12 to 18 months. He was later given a disability support pension as the result of injuries to his eye and his leg. He has spent all of his teenage years and short adult life addicted to drugs and alcohol in the ways that I have already mentioned. 51These matters attract consideration of the principles discussed by Wood CJ at CL in Fernando (1992) 76 A Crim R 58 at 62-3. At 63, having outlined the principles specially to be considered when sentencing an Aboriginal offender, his Honour enumerated a series of subjective features applying to the offender in that case. Of those factors, which I hasten to observe were not intended to be treated as some form of checklist, only some presently apply. In this case, the offender is from a deprived background, he was introduced to alcohol at an early age and has constantly abused it since then. It appears that the offender was probably significantly disinhibited by at least alcohol at the time of the offence. He has shown what I have accepted to be genuine remorse and contrition. 52It is of course not every case of disadvantage and deprivation suffered by an Aboriginal offender that justifies some special or different approach to sentencing. In the present case, the offender is entitled to have a series of subjective features taken into account for sentencing purposes quite independently of his Aboriginality. The fact that they may be a direct or strongly related consequence of the offender's indigenous background and upbringing does not mean that I should give them additional weight or consider them more than once. The sad but real fact is that the offender is disadvantaged in life as a consequence of his Aboriginal background. The important point in this case is that the sentence that I impose should be formulated having regard to that disadvantage but without undue emphasis upon its cause unless it is independently relevant or appropriate to do so: see Kennedy v R [2010] NSWCCA 260. 53I have had regard to the psychiatric opinion of Dr Stephen Allnutt and the neuropsychological opinion of Dr John McMahon. Neither practitioner supports the proposition that the offender was labouring under the effects of any condition that was relevantly related to his commission of this offence. The offender had no symptoms of mental illness, mental retardation or psychosis at the time leading up to or including the killing of the deceased. The offender scores in the impaired to borderline impaired range for most intellectual functioning. He is not, however, inarticulate or impoverished in his ability to understand questions and respond appropriately in the witness box. My observations of the offender did not wholly accord with the medical opinions but I do not presume to substitute my own lay observations for the uncontested expert views that are in evidence.

Plea of guilty 54The offender pleaded guilty at the commencement of his trial. He is entitled to a discount for the utilitarian value of that plea. There is a dispute between the parties as to what that discount should be in this case. There is no dispute about the principles that I am required to apply when exercising the relevant discretion: R v Thomson & Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. 55The Crown contended that the plea was late and of little utilitarian value. A concession was nevertheless made that the offender would be entitled to a discount in the circumstances but not more than ten percent. No point was taken that the utilitarian value of the plea was in any way diminished by the fact that an outstanding factual dispute required resolution by the calling of evidence during the sentencing proceedings. The Crown's principal submission was that the plea of guilty was late and the Crown case was strong. 56This case raises potentially troubling matters for consideration in this context. There is no doubt that the Crown case is strong. The issue therefore arises as to why a plea was not offered much earlier. In support of an answer to that question I was provided with what became an agreed chronology of events touching this issue. 57The offender gave initial instructions to his current solicitor as early as August 2011 that he wished to plead guilty to manslaughter. He gave instructions to waive a committal hearing. Matters later arose with respect to the offender's fitness to plead. When the matter came before this Court on 3 February 2012 an adjournment was granted to enable the offender's representatives to arrange a psychological assessment regarding the offender's fitness to stand trial. 58Dr Allnutt provided the requested report on 7 July 2012. The offender was arraigned on that day and a further adjournment was refused. Later discussions between the offender's solicitor and counsel and Dr Allnutt produced Dr Allnutt's view that the offender was possibly suffering from a relevant substantial and significant impairment of his mental capacities. Unfortunately, Dr Allnutt did not see the offender until 5 February 2013. Apparently with the benefit of Dr Allnutt's opinion, the offender's solicitor was given instructions on 1 March 2013 that he wanted to plead guilty to murder. That plea was not finally and formally entered until the day scheduled for the commencement of the trial because the facts to be submitted in support of it remained in dispute in some respects. 59The burden of the offender's submissions in these circumstances is that as the result of practical difficulties concerning legal aid funding to obtain medical opinions, a delay was occasioned in the provision of proper or sufficient information that satisfied the offender's legal advisers that a plea of guilty to murder was advisable if not inevitable. As a corollary to that submission it is contended that the offender should not be adversely affected by that fact if it is fairly available as an inference, having regard to what has now happened, that the offender would have pleaded guilty to murder at a much earlier time if he had been advised to do so. 60It was contended on behalf of the offender that this case was for these reasons an exceptional case in the sense discussed in Borkowski at [31]. 61If the staring point for exercising the relevant discretion is the utilitarian value of the plea, it is not to the point to examine the reasons why a plea is not offered at some or any particular time. As was said in Borkowski, generally the reason for the delay in the plea is irrelevant. That may seem to be a particularly harsh approach when in the normal course of events an offender will have little interest in, and often little understanding of, concepts such as the utilitarian value of avoiding a trial. All the more so would this seem to be the case when a particular offender has been content at all times wholly to rely on advice given by lawyers retained to protect his or her best interests and where the timing of that advice was largely dependent upon matters unrelated to anything within the offender's control. 62In the end result I am not satisfied in this case that the offender should receive a discount for his plea of guilty greater than ten percent.

Special circumstances 63It was contended on the offender's behalf that the Fernando principles and his youth could be taken into account in order to make a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act: see Zaro v R [2009] NSWCCA 219 at [70]. 64The offender is a young adult but is not young in any relevant sense. His age would not seem to me to be a significant matter to be taken into account in this context. The present offence is very serious and this must necessarily intersect with the emphasis that can be given to the offender's youth. I acknowledge what was said by Simpson J in JM v R [2012] NSWCCA 83 at [108] that "retribution and deterrence cannot, in a case as serious as the present, give way entirely or even substantially to the interests of rehabilitation." 65The offender said that he was in isolation under protection. The details about that are scant. He is not currently suffering any particular disadvantage as a result, although that is always subject to possible change. Ultimately any submissions on the offender's behalf in this respect were only faintly pressed. I have noted the submissions but do not consider that I have adequate material to support the incorporation of a significant adjustment to the sentence that should be imposed. 66I have otherwise considered and accommodated matters that might generally be described as the Fernando principles elsewhere in these remarks.

General deterrence 67The murder of the deceased was sudden, violent and inexcusable. No reason for what occurred has emerged, or at least none that ordinary members of the community could easily understand or accept. The racial abuse and assault of an offender by a victim amounts neither to an excuse to murder him nor to a rational or acceptable reason for doing so. It is trite to observe that no civilised society can exist in the presence of such conduct, and its unambiguous disapprobation is required.

Victim impact statement 68A victim impact statement from the parents of the deceased was read aloud to the Court. It spoke of their reaction to the death, as well as that of the deceased's children. All of these people would appear to be labouring with the burden of grief in various and personal ways. The death of the deceased is undoubtedly a terrible and unending fact of life for them and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of his family and friends who remember him. I am, however, mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them.

Conclusions 69It will be apparent that I consider this offence to be a serious example of offences of its type. It was perpetrated upon the victim in satisfaction of a desire for revenge that was wholly disproportionate to the events that triggered that desire. The offence was violent and effected in circumstances that gave the deceased no opportunity to defend himself or even to minimise what tragically became the lethal consequences of the injuries that he sustained. 70In all of the circumstances I consider that this offence falls to be assessed as an offence in the middle range of seriousness for offences of its type. Such a conclusion does not thereby lead to the automatic imposition of the standard non-parole period for murder. All factors in favour of and against the offender have to be considered and included in the process of reasoning that leads to the calculation of what is a proper sentence in this case. I have approached the matter in that way. 71Douglas Elwin Barlow you are convicted. For the murder of David John Newport I sentence you to a term of imprisonment of 23 years consisting of a non-parole period of 17 years commencing on 17 July 2011 expiring on 16 July 2028 with a balance of term of 6 years commencing on 17 July 2028 expiring on 16 July 2034. The first day upon which you will become eligible for release on parole is 17 July 2028.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2013

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