Regina -v- Levy [2000] NSWSC 355

New South Wales Supreme Court

CITATION : Regina -v- Levy [2000] NSWSC 355 FILE NUMBER(S) : SC L3/98 HEARING DATE(S) : 31/03/00 JUDGMENT DATE : 31 March 2000

PARTIES : Regina Barrie Ronald Bruce Levy JUDGMENT OF : Dowd J at 1

COUNSEL : Mr Berman (Crown) Mr Nicholson S.C (Applicant) SOLICITORS : S.E O'Connor CATCHWORDS : Life sentence - determination of minimim and additional terms - Sentencing Act 1989 - s.13A LEGISLATION CITED : Sentencing Act 1989 Criminal Appeal Act 1912 Application of Gary John Purdy (1993) 65 A Crim R 441 Application of Michael Bradley (unreported, 1 march 1996) CASES CITED : R v Malcolm (1991) 58 A Crim R 148 R v Rees (unreported, 22 September 1995) R v Chester (unreported, 21 December 1992) DECISION : Sentence redetermined

- 1 - THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

FRIDAY 31 MARCH 2000

REGINA -v- Barrie Ronald Bruce LEVY

1 This application is brought under section 13A of the Sentencing Act 1989 ("the Act") for a determination of a minimum term and an additional term in respect of a life sentence imposed for the murder of Lory De Barbarrez ("the deceased") at Kyeemagh on or about 18 September 1969, such life sentence having been imposed on 7 August 1970. 2 Although there some a contest about the facts, I make the following findings of fact. 3 The applicant and the deceased had been associates and involved in criminal activity for some time having been co-offenders in a break and enter offence at Mark Foys Limited, Rockdale on 11 May 1965, during which robbery seventy-seven furs were stolen. Both the applicant and the victim received prison sentences for that offence and both spent some weeks of the early stage of that sentence in the Long Bay prison complex at the same time. 4 On 9 February 1967 the victim was released from gaol as a result of his remission entitlements. On 3 July 1968 the applicant was also released from gaol. After the applicant was released he resumed his association with the victim. The applicant also became associated in criminal activity with a Paul Barnhart. 5 On the afternoon of 18 September 1969 the applicant visited his friend Paul Barnhart's residence and secured his involvement in what the applicant said a safe blowing venture to be perpetrated near Kingsford-Smith airport, Mascot which was to take place that night. 6 Barnhart obtained some gelignite and detonators, and that evening went with the applicant in the applicant's car to Kogarah Oval and stole two spades and a mattock. After leaving the Oval the applicant informed Barnhart that he understood there could be a night watchman at the place they intended to rob. The applicant also told Barnhart that he wanted the victim to take part in the enterprise as he was a big fellow and had karate skills. 7 Just before midnight that night the applicant and Barnhart attended the victim's flat in Kings Cross to induce the victim to join in the enterprise. The victim acceded to that inducement and agreed to take part. The three men then drove in the applicant's car towards Mascot and parked on the Botany Bay side of General Holmes Drive at Kyeemagh. 8 When out of the vehicle the applicant handed Barnhart a spade and a mattock and the victim an iron bar. The applicant had obliged Barnhart to have a pistol in his waistband and the applicant was carrying a spade and a stillson wrench. The three men then walked over to a construction site where there were concrete blocks on the ground and piles of dirt. The applicant pointed to a building which had its lights on and told the victim and Barnhart that that was premises the victim he had targeted. 9 Whilst Barnhart was looking at the building the applicant hit the victim who fell to the ground, and then hit him again on the arm with the wrench. The applicant told Barnhart to keep out of it. The applicant said to the victim "Now you cunt, you will answer some questions," and then struck him on the leg with the mattock. 10 Barnhart called out to the applicant "Cut it out, you will kill him" and the applicant pulled the pistol out of his waistband, pointed it at Barnhart and told him to go and sit down on a concrete block. The victim called out for mercy, the applicant responded "He didn't give me any mercy. You nearly got me killed at Long Bay with Johnny Stewart." The applicant, to use Barnhart's terms, went "off his head" after that and started attacking the victim with the mattock. The applicant hit the victim a number of times. The victim screamed for a while and then stopped. He appeared to be lifeless. 11 Barnhart was then directed by the applicant to dig a grave between two concrete blocks. Both the applicant and Barnhart placed the victim's body in the grave. The applicant, after observing that the victim's legs were "sticking out the end of the hole," broke his legs with the mattock and kicked the protruding portions into the hole with his foot. The applicant then threw the mattock and wrench on top of the body and filled in the grave. 12 Before leaving the scene the surface of the grave was smoothed over and loose dirt was thrown around near it in case there was any blood on the ground. Barnhart and the applicant threw the spades used in connection with the offence into Botany Bay. 13 The two men returned at the applicant's instigation to the victim's flat in Kings Cross where the applicant forced the door open with a screwdriver and with Barnhart putting his weight to the door. The applicant and Barnhart packed the victim's goods into a couple of suitcases and an overnight bag. The applicant and Barnhart then took the victim's effects out along the Princes Highway, dumped them in the bush and set them alight with petrol. 14 About one week later at the request of the applicant he and Barnhart returned to the place as the applicant wanted to make sure the property had been completely destroyed. To this end they scattered the ashes of the victim's property around the bush area. 15 Some few months later on 23 December 1969 Barnhart, who was in custody in respect of other matters, was interviewed by police concerning a number of matters including what happened on the night of 18-19 September 1969. At the conclusion of the interview he accompanied police to the area where the murder had taken place and pointed out certain locations. 16 Initially on 26 and 27 December 1969 efforts to locate the grave were unsuccessful. The following day the grave was located and the body of the deceased was exhumed in the presence of Dr Oettle, forensic medical specialist. A mattock and a pair of stillson wrenches were located in the vicinity of the body. The two spades were recovered from Botany Bay. 17 On 26 December 1969 Dr Oettle carried out a post mortem examination of the deceased where he found the victim had sustained fractures to both arms, a small wound to the upper chest between the first and second ribs, fractures to both legs below the knee and a depression to a bony structure of the upper and lower jaw. 18 Dr Oettle also observed a depressed fracture on the back of the left hand side of the skull and on testing with the stillsons wrench observed the relationship of a part of the stillsons, which is a circular part, with the depressed fracture in the skull. Dr Oettle opined that the injuries to the head rather than those to the limbs were the ones which caused death. 19 On 8 June 1970 Barnhart pleaded guilty before Lee J to a charge of accessory after the fact to murder. He was sentenced to ten years penal servitude to date from 6 January 1970. His Honour specified a non-parole period of four years six months. 20 On 4 August 1970 the applicant was indicted for murder before Mr Justice Else-Mitchell at Central Criminal Court. The applicant pleaded not guilty before the court and on 7 August 1970 the jury returned with a verdict of guilty. His Honour thereupon imposed the then mandatory sentence of penal servitude for life. 21 The applicant appealed against his conviction. The Court of Criminal Appeal dismissed the appeal against conviction and directed that time should count. The appeal was dismissed notwithstanding that the court held that the trial judge erred in excluding certain evidence from the jury's consideration and applied the proviso to s.6 of the Criminal Appeal Act 1912 that an appeal may be dismissed if the Crown is able to persuade the court there has been no miscarriage of justice caused by the error shown to have occurred. 22 On 20 November 1970 the High Court refused a Special Leave to Appeal Application against the conviction. On 1 November 1971 the Privy Council refused the applicant's petition for leave to appeal against conviction. 23 In terms of the matters to be considered in the section it is clear that the applicant is serving a life sentence and has served, as required by the section, at least eight years of that sentence. The court is empowered by the section on appropriate application to set both a minimum term of imprisonment the person must serve and an additional term during which the person may be released to parole, either for a specified period or for the period of the remainder of the person's natural life, or the court may decline to determine a minimum and an additional term. Section 5(2) of the Act does not apply to a re-determination and there is therefore no need to look at the relationship of the minimum and additional term. Any minimum term is to commence on the date that the original sentence commenced or, if that was not the date of the applicant being remanded in custody, the date of such remand. The court, should the determination be made of a minimum term and an additional term, thereby replaces the original sentence of imprisonment for life 24 The other matters to consider are set out in the new s. 13A(9) of the section and the new s. 13A(4A) of the Act. 25 Subsection (9) provides: "The Supreme Court in exercising its functions under this section is to have regard to: (a) the knowledge of the original sentencing court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences; and (b) any report on the person made by the Review Council and any other relevant reports prepared after sentence including, for example, reports on the person's rehabilitation, being in either case reports made available to the Supreme Court; and (c) the need to preserve the safety of the community; and (d) the age of the person at the time the person committed the offence and also at the time the Supreme Court deals with the application and may have regard to any other relevant matter.