R v Michael Barbetta [2008] NSWSC 688

New South Wales Supreme Court

CITATION : R v Michael Barbetta [2008] NSWSC 688

HEARING DATE(S) : 27/06/2008

JUDGMENT DATE : 11 July 2008

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to a term of imprisonment made up of a non-parole period of 13 years 9 months and a balance of term of 4 years 10 months. The sentence is to date from 17 March 2007 and the non-parole period is to expire on 16 December 2020, the date upon which the offender will be eligible to be considered for release to parole. The whole of the sentence expires on 16 October 2025.

CATCHWORDS : Criminal Law - Sentence - Murder - Plea of guilty - offence below mid range seriousness.

CATEGORY : Principal judgment

CASES CITED : R v Apps [2006] NSWCCA 290

PARTIES : Regina v Michael Barbetta

FILE NUMBER(S) : SC 2007/00005214001

COUNSEL : T Hoyle SC - Crown A Haesler SC with J Hallion - Offender

SOLICITORS : S Kavanagh - Crown S O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

FRIDAY 11 JULY 2008

2007/00005214001 R v MICHAEL BARBETTA

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Michael Barbetta, was committed to this Court on 7 November 2007 for trial on a charge that he did on 11 March 2007 murder the deceased, David Smedley. On 7 December 2007 a trial date was fixed for 7 July 2008. On 2 May 2008 he was arraigned and pleaded guilty. He was remanded to 27 June 2008 for sentence and on that date came before me. 2 The Crown tended a folder of material including a document setting out the facts, a number of photographs and a copy of the recorded interview with the offender by police. Two victim impact statements were read to the Court. The offender gave evidence and some reports were tendered on his behalf. He was then remanded until today for sentence to be imposed. 3 The facts can be briefly stated and are not in dispute. The deceased was aged 65 years and suffered from Parkinson's disease. The offender later described him to police as a very fragile man. He lived by himself in a unit. On 11 March another resident of the unit block, Kenneth Hodge, found the body of the deceased and contacted police. The deceased was dressed in pyjamas lying on the floor of the lounge room. He had blunt force injuries to his head. There was a bucket near him in which was bloody water and a cloth was located on the deceased's shoulder. The lounge room appeared to have been ransacked with items broken and scattered about. The bedroom was in a similar state with the contents of drawers and cupboards turned out. One of the walls of the bedroom had been smeared with a tomato. Broken pieces of the deceased's dentures were scattered around the floor of the bathroom. Police investigators located the fingerprints of the offender in various places throughout the unit. 4 Mr Hodge informed police that he had last seen the deceased at about 8 pm the night before when Mr Hodge left the unit to return to his own residence after he had been drinking with the deceased. He said that the next day he saw the offender walking in the stairwell near the deceased's unit and had been informed by him of the death of the deceased. He and the offender had gone to the deceased's unit from where Mr Hodge had called police. 5 Police attended the offender's residence. The offender told them that he had gone to the deceased's unit to check on his welfare as his girlfriend and the deceased had been in an altercation the previous evening. Police located in the offender's shoe a leagues club card in the name of the deceased and a Commonwealth Bank card in the name of an acquaintance of the deceased. The offender told police he had been given these by the deceased a week earlier. 6 The offender was taken to Wollongong Police Station where it was noticed that he had redness and swelling to his knuckles. He told police that these were injuries he sustained while changing a bike chain. The offender was interviewed but denied any involvement in the death of the deceased. Police then released him. 7 An autopsy of the deceased found significant bruising to various parts of his body. He suffered fractures of the hyoid bone, two ribs, the nasal bone and the right maxilla. A set of house keys were located in his throat. The cause of death was the combined effects of blunt force head injury, suffocation and neck compression. 8 On 12 March the offender was walking with an acquaintance, Kenneth Sledge, when the offender told him that he killed "the bastard" because he called his father and grandmother a wog. However he said that the deceased believed the offender was not a wog because he was born here. 9 The police installed a listening device in the offender's unit and on 17 March overheard a conversation in which the offender said that he had been in the deceased's unit where he argued with him because the deceased called his parents "wogs". He said that he had grabbed the deceased by the nose and twisted it. He claimed the deceased was still alive when he left the unit. 10 The offender was then arrested and interviewed by police. Many of the answers he gave are long and rambling. The offender seems to have been obsessed with what he believed to be the deceased's racial prejudice and the use of the term "wog". He admitted that he had an argument with the deceased about the use of this term. He said that the deceased called his parents wogs and that caused his blood to boil. He warned the deceased that if he dared call his mother a wog again he would snap his neck. He then left the deceased's unit. 11 The offender told police that later the deceased came to his unit after midnight and invited him to go with him to his place so they could talk about things. He said that he went with the deceased but he started to talk about wogs again and threw a punch at the offender. The offender threatened the deceased that if he did not stop he would hit him. The deceased did not stop and so he carried out his threat. He twisted his nose and he fell to the floor. He then struck him once and left the unit. He said that the deceased was alive when he left the unit and he had told the deceased that he never wanted to see him again. He said that he later returned to the flat and found the deceased dead. 12 The offender admitted to stealing the credit card from the deceased and ransacking the unit to make it appear that he had been murdered. He initially denied placing the keys in the deceased's throat but later, after the formal interview had been completed, he admitted to having done this. 13 It is clear that the offender became enraged with the deceased because of what he saw as his racial prejudice and it seems that the offender was particularly sensitive about it. He complains that he was teased by children at school and called a wog. He found other reasons to dislike the deceased because of what he saw as insulting or unfair behaviour directed toward him. I think that there had been a smouldering resentment of the deceased building up in the offender for some time. In evidence before me he accepted that he went to the deceased's premises having used illegal drugs and intending to have it out with him. Violence was inevitable and the offender killed the deceased in uncontrollable rage. 14 The offender is aged 44. He has a criminal record dating from 1977 for offences of dishonesty and violence. He received short gaol sentences in 1994 and 1995. Since that time he has had little criminal record and nothing of relevance to the sentencing of him for this offence. He has had no convictions since 2001. His criminal record is of little significance in determining the appropriate sentence to impose upon him. There is in my view nothing in his early background of any relevance. 15 The offender has seen a psychiatrist, Dr Davies, at various times since 1988 mainly because of his persistent abuse of both legal and illegal drugs. He has been diagnosed as suffering a drug-induced psychosis and at times has been prescribed anti-psychotic medication. It seems that whenever the offender was having difficulties with drug usage or psychotic symptoms he would seek help from Dr Davies. He would be warned to avoid illegal drugs and prescribed more or different anti-psychotic medication. He would sometimes be referred to a mental health team. The offender would often complain to Dr Davies about behaviour of other people such as someone holding a gun to his head, his brother attempting to blackmail him into becoming involved in the drug trade, or the presence of a paedophile in the area. Dr Davies last saw the offender in March 2007 when he appeared to be coping well and the doctor saw no signs of psychosis or drug usage. 16 There are bizarre aspects to some of the answers the offender gave the police who interviewed him about the killing of the deceased. However there is no suggestion that the offender was suffering from any psychotic thoughts or hallucinations at the time of the killing. While in custody he has been receiving anti-psychotic medication and methadone. He has complained of auditory and visual hallucinations. Dr Olav Nielssen prepared two reports on the offender for the purpose of considering whether there was material indicating that the offender might have had a defence of substantial impairment but he found none. He thought that the offender's behaviour was due in part to his being intoxicated by a combination of benzodiazepines and amphetamine. Dr Nielssen diagnosed the offender as having a severe substance abuse disorder. He notes that the offender has sought drug rehabilitation on a number of occasions but without success. 17 There is also in evidence a report of a psychologist. Tests indicated that the offender has a mild intellectual disability. However Dr Nielssen thought that the offender performed above this level of functioning and suggested that the low scores may have been attributable to the medication that the offender has been taking while in custody. Although there are some unusual aspects of his answers to police, it seems that he is quite capable of complex thoughts and his appearance before me in the witness box did not bear out the psychologist's findings. In any event whatever mental disability he might suffer seems to have nothing to do either with the commission of the offence or with the sentence that is to be imposed upon him. Mr Haesler SC, who appeared for the offender, accepted that he did not fall into the category of mentally handicapped offender for whom general deterrence is inappropriate. 18 The offence of murder carries a maximum penalty of life imprisonment. There is a standard non-parole period prescribed of imprisonment for 20 years. Although it may be viewed as offensive to the friends or relatives of the deceased, this Court is required to consider where this murder falls in the range of murders that come before the Court in order to determine where it stands in relation to an offence falling within the mid range of seriousness. In determining that issue the Court can have no regard to the loss occasioned by the death of the deceased. The Court cannot try to put a value on individual human lives or what the loss of that life means to loved ones of the deceased or the community in general. That is not the purpose of victim impact statements. Nor is it the purpose of punishment. Under the law all lives are precious and the death of any person is a harm inflicted on the community in general. 19 The Crown has conceded that this is an offence falling below mid range in seriousness. That concession is an appropriate one. However it is not far below that level. It was a violent attack on a fragile man in his own home by a much younger and stronger person. No doubt the use of drugs made the offender more volatile and less inhibited. This is not a case however where the offender knew that the use of drugs made him more violent so that his drug usage is not an aggravating factor. But under the influence of drugs he went to the deceased's premises to have it out with him and, as I have already noted, violence was inevitably going to occur. Apparently no weapon was used but nonetheless there was a very considerable degree of violence inflicted upon the deceased including an attempt at strangulation. It may be that in his rage he did not form the intention to kill but clearly the offender intended to inflict very serious harm upon the deceased and I see little mitigation in the circumstances of this case arising from a lack of an intent to kill. There was a degree of provocation perceived by the offender by what he viewed as racial taunts directed toward his parents. I have already noted that, although the offender has some history of violence, it was many years ago and the offence should be treated as out of character. 20 The offender pleaded guilty after his committal for trial and after a trial date had been set. It was submitted that he should receive the maximum discount because he pleaded guilty to murder and because the plea was justifiably delayed pending a report from a psychiatrist as to whether he had a defence. I reject that submission. In my opinion the size of the discount does not depend upon the offence to which the offender is pleading guilty. The utilitarian value of a plea does not vary with the seriousness of the offence. A person who pleads guilty to murder is not entitled to any more leniency because of the plea than a person who pleads guilty to shoplifting. Nor in my opinion is the reason for the delay of the plea a relevant matter. If the plea is delayed it is of less utilitarian value than an early plea regardless of the reason for the delay. I understand that in R v Apps [2006] NSWCCA 290 the sentencing judge gave the full discount in a similar situation, but with respect I do not understand that to be a proper approach. Otherwise a person who has a valid reason for not pleading guilty before the day of the trial still gets the full discount. I will discount the sentence by 20 per cent. 21 I accept that the offender is now remorseful. He wrote a letter from the gaol to a person not knowing that it was going to fall into the hands of the prosecutor. In it he expresses his sorrow for what happened. He also gave evidence before me and expressed his remorse. I accept it is genuine although somewhat late in coming. There was little remorse evident in the conversations he had shortly after the killing. 22 It is difficult to make any assessment of his prospects of rehabilitation. It will depend upon his attitude to drugs when he is eventually released. He has made numerous attempts in the past that have all failed. But at least he voluntarily sought assistance from Dr Davies and others. Dr Nielssen believes that the offender could gradually withdraw from medication while in custody. He also believes that the offender has insight and is capable of fully addressing his substance abuse. 23 I have already noted that victim impact statements were read to the Court from the deceased's daughter and his sisters. I am conscious of the effect that the death has had upon them. I understand that it must be particularly painful when the death of a loved one occurs through unjustified and undeserved violence. However, while I can express the Court's sympathy to the deceased's family, the law does not allow me to use the effect of the death upon them to increase the sentence that is to be imposed upon the offender. I acknowledge that no sentence the Court can impose will redress their loss or vindicate his death. 24 The offender has been in custody since 17 March last year. Much of that time he has spent on protection apparently because of some assistance he gave to the gaol authorities. By reason of his status he has reduced access to some of the facilities available to other prisoners. It may be that at some stage, after he is sentenced, he will find himself in a prison for protected inmates where he will have the normal gaol facilities and programmes. But it is a matter I take into account although it is not of great significance. I do not believe that whatever intellectual impairment he has or his physical problems mean that he will generally find it harder to cope with prison than any other person of his age and background. 25 I take into account as part of the explanation for the offence that he had used drugs as a result of his abuse disorder and this perhaps made him less inhibited so far as his aggression is concerned. His tendency to psychosis when using drugs may have increased his level of violence. However, I do not believe that this is a case where either general deterrence or specific deterrence is irrelevant. 26 It may be the case that had the offender been sentenced for some less serious offence there might have been reasons to find special circumstances. But it seems to me that the parole period that will result from the statutory relationship will give him adequate time for supervision and assistance and many of the relevant factors I have already taken into account in reducing the overall sentence. The total sentence I would have imposed before discount for the plea of guilty would have been 23 years. 27 The offender is sentenced to a term of imprisonment made up of a non-parole period of 13 years 9 months and a balance of term of 4 years 10 months. The sentence is to date from 17 March 2007 and the non-parole period is to expire on 16 December 2020, the date upon which the offender will be eligible to be considered for release to parole. The whole of the sentence expires on 16 October 2025. **********