Regina v Barry [2000] NSWCCA 138

New South Wales Court of Criminal Appeal

CITATION : Regina v Barry [2000] NSWCCA 138 FILE NUMBER(S) : CCA 60403/99 HEARING DATE(S) : 13 April 2000 JUDGMENT DATE : 13 April 2000

PARTIES : Regina v Dale Wesley Barry JUDGMENT OF : Stein JA at 1; Dunford J at 25; Sperling J at 26

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : SC 70032/98 LOWER COURT JUDICIAL Newman J OFFICER :

COUNSEL : J Pappas (Appellant) D C Frearson (Crown) SOLICITORS : Pappas J - Attorney (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - Murder - appeal against severity of sentence - finding of facts on sentence - reasonable hypothesis - principle of totality Peacock v The King (1911) 13 CLR 619 Queen v Puckeridge (1999) 168 ALR 4 CASES CITED: R v Harris [1961] VR 236 R v Isaacs (1997) 41 NSWLR 374 R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) DECISION : Leave to appeal against sentence granted; Appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL

60403/99 STEIN JA DUNFORD J SPERLING J Thursday, 13 April 2000 Regina v Dale Wesley BARRY JUDGMENT

1 STEIN JA: The applicant, Dale Wesley Barry, seeks leave to appeal against the severity of the sentence imposed on him by Newman J on 18 June 1999. The applicant had pleaded not guilty to murdering his wife and to maliciously wounding his step-daughter, Tara, with intent to do her grievous bodily harm. He was found guilty of both offences by a jury on 11 June 1999. The offences occurred on 9 December 1997 at Albury. 2 His Honour imposed a minimum term of 18 years and an additional term of 6 years, for the murder. With respect to the wounding of the stepdaughter, his Honour fixed a term of 12 years, to be served concurrently. Both sentences were to be calculated to run from 9 December 1997. 3 The applicant did not deny killing his wife. Rather he admitted that he had acted either with an intent to kill or to cause grievous bodily harm, but raised a defence of diminished responsibility. 4 The applicant and his wife were married on 19 September 1992. They had associated prior to the marriage, such association, according to his Honour's judgment on sentence, was attended by violence. Indeed, he had been found guilty of assault on her on 1 July 1992 and placed on a recognisance to be of good behaviour for 2 years. Quite remarkably the applicant assaulted his wife on their wedding night resulting in a further conviction on 16 November 1992 and a community service order. 5 Between the date of marriage and November 1996 there was evidence of violent episodes on the applicant's part. In early November 1996 the applicant assaulted the deceased again. This resulted in an apprehended violence order (AVO) being made against the applicant, which was initially for a period of 12 months but extended to 28 November 1997. During extended periods of separation the applicant had access to the two children of the marriage and to the children of the deceased, including Tara. 6 It seems that the applicant joined his family for a holiday at Bateman's Bay in Easter 1997 and thereafter cohabitation resumed. Cohabitation apparently continued until October 1997 when the applicant was involved in violence towards his stepson, Benjamin. As a result of this the deceased took herself and her children to a women's refuge. According to his Honour, a further AVO was taken out against the applicant. The deceased then returned to the family home with the children. There was no subsequent cohabitation but the applicant sought access to the children. On 6 December 1997 the deceased told the applicant that he no longer could have access to the children. 7 According to the evidence, in November 1997 the applicant told Mr Milgate, with whom he was living at the time, that he intended to kill his wife. Prior to this the applicant had admitted himself to Nolan House for treatment for alcoholism. 8 On the night of 8 December 1997 the applicant was drinking at an Albury hotel and was seen by a hotel supervisor in the car parking area at about 12.30 am. Later he went to the former family home in the Albury suburbs, arriving there around 2 am. It does not appear that he forced entry into the house although it is unclear how access was gained. His Honour accepted that an argument developed between the deceased and the applicant, probably over access to the children.