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. 9 The only direct evidence as to the incident giving rise to the charges came from Tara, since the applicant claimed to be suffering from amnesia in respect of all of the significant events. 10 Adopting the evidence given by Tara, his Honour found that: … the prisoner and the deceased were observed by Tara Barry to be in the main bedroom of the house on the bed within that room - the prisoner being on top of the deceased. Following the making of this observation Tara Barry returned to her bedroom which was described during the proceedings as bedroom two. There she stood in the doorway of that bedroom which was situated on a hallway which gave access to all four bedrooms in the house. While standing at the doorway facing into the hallway she saw the prisoner walk down the hallway away from the main bedroom heading in the direction of the kitchen of the house. When the prisoner reached the point at which Tara Barry was standing he turned, faced her and stabbed her in the upper abdomen causing a wound of approximately 2-3cm on her skin and penetrating some 6-7cm into her body penetrating the right lobe of her liver and dividing the hepatic artery and portal vein. 11 His Honour continued: Soon thereafter the prisoner directed both Tara Barry and the deceased into the kitchen. He forced his wife to the floor and as I understand the evidence, directed Tara Barry to also lie on the floor. He then proceeded to stab the deceased at least four times, three of the stab wounds being inflicted to her right breast and one on her upper right upper arm. The principal wound thus inflicted was in the medical right breast which caused a wound 17 mm long on her skin and extended some 160 cms into her body, penetrating a major vessel within her lungs. This wound was categorised by Dr Lawrence, forensic pathologist, as being the lethal injury. Lethal because it would cause death due to blood loss. and The prisoner then left the kitchen. Tara Barry was still on the floor, as was the deceased, both bleeding from the wounds inflicted by the prisoner. It seems the prisoner went to attend to the young children at this stage. He then returned to the kitchen and picked up a padded stool and began to beat the deceased around the face with it. Dr Lawrence, pathologist, found no less than five wounds which he felt were probably the result of the application of blunt force to the deceased's face, nose and cheek area involving the breaking of the skin and fractures. 12 The applicant, by his counsel Mr Pappas, submits that his Honour should not have accepted beyond reasonable doubt the sequence of events deposed by Tara. By doing so, it is submitted that his Honour denied the defence hypothesis of a very different sequence of events. This was, a frenzied and swift attack on the deceased, wounding Tara in the course of that attack. It is submitted that his Honour failed to appreciate the possibility that the murder occurred in a way inconsistent with the evidence of Tara, who was aged 12 years at the time and 14 years at the time of trial. Support for the defence hypothesis is said to arise from police evidence, from Detective Callister and the evidence of the neighbours. Inconsistencies in Tara's evidence is also relied on in support of the submission. 13 As the Crown points out in its written submissions, the underlying thread of the submission is that it was not reasonably open to his Honour to accept beyond reasonable doubt the sequence of events deposed by Tara. It may be observed that there was nothing in Tara's evidence of the sequence of events which is inconsistent with the verdict of the jury. 14 Further, there is no requirement to find facts which are the most favourable to a prisoner, R v Isaacs (1997) 41 NSWLR 374, see also R v Harris [1961] VR 236. Not every alternative hypothesis has to be excluded, only a reasonable hypothesis, Peacock v The King (1911) 13 CLR 619; Queen v Puckeridge (1999) 168 ALR 4. 15 Tara was the only eye witness who could give evidence. She was cross-examined at length. However, she was not directly challenged on the sequence of events, or whereabouts in the house she said she was stabbed, nor about the demeanour and conduct that she attributed to the applicant. Nor did the police evidence directly contradict Tara's evidence to any appreciable extent. 16 His Honour was in a position to assess Tara's credibility and, it seems, accepted her to be credible and plausible. It was open to him to do so. It was also open to his Honour not to accept the hypothesis of the defence was not a reasonable possibility such as to give rise to a reasonable doubt as to Tara's evidence. 17 The remaining grounds of appeal are that his Honour gave undue weight to retribution and deterrence, too little to rehabilitation, and the sentence was manifestly excessive. 18 In particular, it is submitted that his Honour erred in failing to take the applicant's abnormality of mind into account in the assessment of the objective gravity of the offences. However, a reading of his Honour's remarks on sentence make it clear that he did treat the applicant's abnormality of mind as diminishing the culpability of his actions. In particular, Newman J found that it was sufficient to take the case out of the category of the worst type of case which could give rise to a possible life sentence. 19 His Honour said that the objective facts indicated a breach of the law of the highest order. He referred to the pathology evidence as indicative of the vehemence of the attack and the police photographs which underscored it. We have examined the photographs today. Further, his Honour referred to the very serious stab wound upon Tara, which was life threatening, and to its consequences for Tara. 20 In considering the mitigating factors, his Honour referred to the evidence of the applicant's mental condition at the time of the commission of the crimes. He referred to the psychiatric evidence of depression, (Dr Jolly and Professor Mullen). Professor Mullen was also of the opinion that the applicant was suffering from mood and personality disorders. His Honour referred to the evidence of the applicant's childhood as being one of 'disorganisation, distress, intimidation and violence'. Nonetheless, according to the Professor, alcoholism was the applicant's main problem. His Honour noted the applicant's excellent work record and his expression of contrition. He said: The court is thus presented with a forty one year old man with a history of alcoholism, minor drug abuse and a childhood of privation who has been a good worker all his adult life. I have no doubt that he regards his natural children with affection but in view of the attack upon Tara Barry and the past history of some further violence towards her which was given in evidence and also the violence exhibited towards his stepson Benjamin is such that his affection is muted as far as those latter children are concerned. 21 His Honour sentenced the applicant on the basis of the principle of totality since both offences were committed as a consequence of the one episode. It was in this context that he referred to R v Twala (Court of Criminal Appeal, 4 November 1994, unreported). As in Twala, his Honour was of the view that the objective circumstances were such as to call for a sentence at the higher end of the range. However, unlike Twala, the additional serious crime of the attack on Tara had to be taken into account. 22 It is correct to say that the sentence imposed by his Honour was a very high one. However, his Honour was right to describe the crimes as brutal and horrific. Indeed, they were. The objective seriousness was very high. His Honour had to have regard to the totality of criminality involved in the two offences. He also had to have regard to the applicant's history of violence directed to the deceased. At the time of the fatal attack, the applicant was subject to an apprehended violence order and was on a bond from a conviction of assault on the deceased. Moreover, there is nothing to suggest that his Honour failed to give sufficient weight to the subjective circumstances. While the sentence is a very high one, I do not see that it can be said to be manifestly excessive. 23 Even assuming everything in favour of the applicant's alternative scenario mentioned earlier, and were this Court to re-sentence the applicant, no lesser sentence than that imposed by his Honour would, in my opinion, be appropriate. 24 I would grant the applicant leave to appeal against sentence but dismiss the appeal. 25 DUNFORD J: I agree. 26 SPERLING J: I agree. 27 STEIN JA: The orders of the Court are that the applicant be granted leave to appeal against the sentence and the appeal is dismissed. OoO 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. 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