New South Wales Court of Criminal Appeal CITATION: BARTON v REGINA [2009] NSWCCA 164 HEARING DATE(S): 27 May 2009 JUDGMENT DATE: 25 June 2009 JUDGMENT OF: Giles JA at 1; Howie J at 29; Latham J at 30 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: Criminal law - sentencing - declined to impose life sentence for murder pursuant to s 61(1) Crimes (Sentencing Procedure) Act 1999 - imposed determinate sentence which, when accumulated on other sentences, expired when offender 82 (non-parole) or 89 (total term) - length of sentences within range of discretion - submission that error in imposing defacto life sentence having declined as above - no error - meant only the qualified obligation in s 61(1) did not apply - other sentencing considerations remained - sentence must reflect objective seriousness - must be imposed even if extending for all or most of life expectancy. CATEGORY: Principal judgment Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549; R v Chen [2003] NSWCCA 327; (2003) 138 A Crim R 433; R v Folbigg [2005] NSWCCA 23; (2005) 152 A Crim R 35; CASES CITED : R v Goebel-McGregor [2006] NSWCCA 390; R v Holyoak (1995) 82 A Crim R 82; Ta'ala v R [2008] NSWCCA 132. R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557; PARTIES: James Harry Barton - Appellant The Crown - Respondent FILE NUMBER(S): CCA 2005/3777 COUNSEL: A Francis - Appellant L Babb SC & M Rabsch - Crown SOLICITORS: Steven O'Connor, Legal Aid Commission - Appellant S Kavanagh, Solicitor for Public Prosecutions - Crown LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2005/1623 LOWER COURT JUDICIAL OFFICER: Buddin J LOWER COURT DATE OF DECISION: 29 June 2007 (Sentence) IN THE COURT OF CRIMINAL APPEAL CCA 2005/3777 SC 2005/1623 GILES JA HOWIE J LATHAM J Thursday 25 June 2009 James Harry BARTON v REGINA Judgment Non publication order 1 GILES JA: The applicant was convicted of the manslaughter of M, the murder of M's three year old daughter N, and the attempted murder of M's five year old son J. A non-publication order protects the identity of the children and any persons whose identity might tend to disclose the identity of the children. 2 The applicant was sentenced by Buddin J to imprisonment for an overall non-parole period of 35 years and an overall total term of 42 years, commencing on 13 September 2004. As at 13 September 2004 he was aged 47. He applies for leave to appeal against sentence on the sole ground that the judge "erred in imposing a 'de facto' life sentence having properly found that a life sentence was not called for in the circumstances of this case". Facts 3 Counsel for the applicant accepted that the length of the sentence itself was within the range of the judge's discretion. The ground of appeal was therefore confined. I have concluded that it should not be upheld, and re-sentencing does not arise. Accordingly, the facts can be outlined in summary form. 4 M lived in Housing Commission house with the two children N and J. He was the sole carer of the children following the break-up of his relationship with their mother. 5 The applicant had known M for about 30 years. Their relationship was unusual. M had a significant criminal record, was a user and supplier of illicit drugs and (in the judge's words) "readily resorted both to violence and to intimidating behaviour". The applicant was in conscientious employment and lived a law abiding existence. The judge said, "Although it appears that they became friends, it is not altogether clear what sustained the friendship". 6 M had been blackmailing the applicant for about ten years. The judge was satisfied that, in cash payments and in other ways, many thousands of dollars had been provided, and referred to evidence that M described the applicant as a "money tree". His Honour said that he had no difficulty in concluding that M found it easy to intimidate the applicant, and that he did not doubt that the applicant had genuine fears for his safety if he did not comply with M's demands. 7 On the evening of 3 September 2004 the applicant went to M's house in connection with a joint business venture. M told the applicant that he had selected a new vehicle for which the applicant was going to have to pay. The applicant shot M in the back of the head. He used a rifle which the judge was satisfied he owned. His Honour considered that the decision to kill M was made during the course of the evening, and was very likely to have been precipitated by an argument about the purchase of the vehicle with threats made by M during the course of the argument, whereupon the applicant went to obtain the rifle. He said that he had little doubt that the applicant had "reached the end of his tether", was "in a state of paralysis and … simply unable to resist [M's] continuing demands and the violent threats which, on occasions, accompanied them", and so killed M whilst acting under provocation. 8 The two children were asleep in the house. The applicant returned to his own home, leaving them and M's body in the house until he returned on the next morning as the children were getting up. He had the children in his care throughout the day. After some time away from the house, the applicant took the children back to it in the early evening. He administered methadone to the children, on the judge's finding knowing and intending that it would make them drowsy and wanting to ensure that they would not wake up when he set fire to the house. 9 The children went to bed. The applicant set fire to the house. The judge was satisfied that his primary concern in doing so was to conceal the fact that he had shot and killed M and any evidence that might associate him with the death. However, his Honour considered it "irresistible" that he did so deliberately, intending that the two children should perish in the fire. The fire was intended to look like an accident in which the whole family died. 10 The child N did perish. The child J was rescued. He was rescued by the applicant, but the sentencing judge found that the applicant's primary motivation was to deflect suspicion away from himself. The child suffered burns, which healed, and considerable psychiatric damage, which remains. The sentences 11 For the manslaughter of M, the applicant was sentenced to a fixed term of imprisonment of 5 years. For the attempted murder of J, he was sentenced to a fixed term of imprisonment of 13 years. For the murder of N, he was sentenced to imprisonment for a non-parole period of 30 years and a total term of 37 years. The terms of imprisonment were partly accumulated. The fixed term of 5 years commenced on 13 September 2004, the date of the applicant's arrest. The fixed term of 13 years commenced 18 months later. The sentence for the murder of N commenced at the expiration of the 5 years, 3 years and 6 months into the term of 13 years. The overall sentence was thus of imprisonment for a non-parole period of 35 years and a total term of 42 years. The applicant will be aged 82 when eligible for parole and 89 when the last sentence expires. Consideration of a life sentence 12 In relation to the murder of N, s 61 of the Crimes (Sentencing Procedure) Act 1999 ("the Act") relevantly provided - " 61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. … (3) Nothing in subsection (1) affects section 21 (1)." 13 The judge carefully considered the principles material to satisfaction as to the level of culpability in the commission of the offence required by s 61(1) and their application to the circumstances of the offence. He noted that, notwithstanding the mandatory terms of s 61(1), s 21 of the Act preserves the discretion to impose a determinate sentence: R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557. He considered that, on the two-stage approach found in the authorities, on the objective facts the level of culpability was so extreme that it warranted the maximum penalty. But at the second stage of whether the subjective factors displaced the prima facie need for the maximum penalty, he concluded that "the highly unusual combination of matters upon which [counsel for the applicant] relied, are sufficient to justify the imposition of a sentence other than one of life imprisonment". 14 The judge then addressed imposing a determinate sentence for the murder of N. A determinate sentence attracted the standard non-parole period of 20 years. His Honour observed that it was not and could not be suggested that a considerably greater non-parole period was not called for, and that no submission was advanced that there should be a finding of special circumstances. 15 The sentence, and the accumulation on the other sentences, were arrived at conscious of their consequences given the applicant's age. Immediately before pronouncing the sentences, the judge said - "116 I am acutely aware of the fact that the offender is to be sentenced in respect of three separate offences, albeit that they are interconnected. In those circumstances, it is necessary to have regard to considerations of totality and also to the question of concurrency and cumulation of sentences: see Pearce v The Queen (1998) 194 CLR 610 and Johnson v R (2004) 205 ALR 346. In setting the effective overall non-parole period which I intend to impose, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704. The consequence is that the proportion between the effective overall non-parole period and the effective overall sentence will be higher than the normal statutory proportion. I am also aware that the effective non-parole period which I shall impose will mean that the offender will have no prospect of release to parole until he is well into old age . Nonetheless the prospect of his eventual release into the community still remains." (emphasis added) The applicant's submissions 16 The applicant accepted that a sentence "has 'life sentence' consequences" in the case of an offender of advanced age when sentenced. He submitted, however, that he was not such an offender, being in his late 40s. He submitted that the sentencing judge fell into error because, despite observing that the prospect of the applicant's eventual release into the community still remained, there was a life sentence "in disguise" notwithstanding that the sentencing judge had declined to impose a life sentence pursuant to s 61(1) of the Act. 17 The submission is contrary to principle, and involves flawed reasoning. If a life sentence is imposed, there is imprisonment for however long the period may be until the offender's death: as the judge observed, the imposition of a life sentence upon an offender "means that he or she has no prospect of release, save for the prerogative of mercy". There is a fundamental difference between a determinate sentence expiring when the offender is of advanced age and a sentence enduring until the offender dies, since the offender may live well beyond the expiry of the determinate sentence. It is not correct to regard the former sentence as a surrogate for the latter, or to reason that declining to impose a life sentence pursuant to s 61(1) means that a term of imprisonment expiring in old age can not or should not be imposed. Declining to impose a life sentence means that the qualified obligation in s 61(1) does not apply. It leaves all other sentencing considerations to be applied. 18 The applicant relied on R v Chen [2003] NSWCCA 327; (2003) 138 A Crim R 433 and R v Folbigg [2005] NSWCCA 23; (2005) 152 A Crim R 35. 19 In R v Chen the offence attracted a maximum penalty of life imprisonment. The offender was sentenced to imprisonment for 40 years with a non-parole period of 26 years. Sully J, with whom Meagher JA and Kirby J agreed, held that there had been sentencing error, and asked whether some other and more lenient sentence was warranted in law. Part of the answer, leading to re-sentencing to imprisonment for 31 years with a non-parole period of 23 years, was - "67 The applicant is now aged 44-1/2 years. A decision, albeit one reached upon an erroneous basis, not to pass a "life means life" sentence, cannot properly be disturbed on the present application and in the absence of a Crown appeal. That being so, it would not be proper, in my opinion, to uphold a head sentence having the effect of achieving a de facto life sentence. If a life sentence is to be imposed at all, it should be imposed frankly and directly. A head sentence of 45 years, after proper discounting, passed upon a man aged 43 years when sentenced is, in terms of practical future probabilities, a de facto life sentence." 20 In R v Folbigg the offender was convicted for manslaughter, for maliciously inflicting grievous bodily harm, and on three counts of murder. She was sentenced to partly accumulated terms of imprisonment for an overall non-parole period of 30 years and an overall total term of 40 years. It was held by Sully J, with whom Dunford and Hidden JJ agreed, that there was particular error in the sentencing judge's method of cumulation and (at [187]) "that the overall results of a head sentence of 40 years and a non-parole period of 30 years are so crushing as to manifest covert error." His Honour said - "189 As matters stand, the appellant cannot be paroled until she is aged 66 or thereabouts. She might well not be paroled until she is even older; and if political reaction to media pressure and to meretricious polling operates at that future time as it tends to operate now, she might well not be released until she is aged 76 or thereabouts. That is, it seems to me, a life sentence by a different name. 190 Barr J stopped short of passing a life-means-life sentence, and that for reasons with which I respectfully agree. An end sentencing result which does not have the same pedantic theoretical operation, but which is likely to have the same practical effect, is in my respectful opinion such as to warrant the section 6(3) intervention of this Court. In my opinion, justice would be done by an overall result entailing a head sentence of 30 years and a non-parole period of 25 years." 21 It may be noted that in the present case, if a de facto life sentence or a life sentence by a different name is precluded because the judge declined to impose a life sentence pursuant to s 61(1), only the consequences of the sentence for the murder of N should be considered. The ages of 82 years and 89 years mentioned above include the 5 years for the manslaughter of M and 3 years and 6 months of the 13 years for the attempted murder of J, and no complaint is or could be made of those sentences or the accumulation. R v Chen involved one offence, but an equivalent point may not have been appreciated in R v Folbigg. (The supposition in that case that life is at an end after age 66 also does not strike a chord.) 22 So far as these cases were decided on that basis that a "de facto life sentence" or a "life sentence by a different name" is excluded in the event that the sentencing judge declines to sentence the offender to imprisonment for life pursuant to s 61(1) of the Act, I respectfully disagree. First, as I have explained, that involves illegitimate reasoning. Secondly, a fundamental sentencing principle is that a sentence must reflect the objective seriousness of the offence. Adherence to that principle may in the case of an offender of middle to advanced years have the practical effect of a life sentence. It may not, if the offender achieves longevity, hence the illegitimacy in the reasoning. But error in sentencing can not be found simply by describing the possible effect of the sentence as a de facto life sentence or a life sentence by a different name. The applicant recognised this in his acceptance that in some cases a sentence "has 'life sentence' consequences". 23 Cases after R v Chen and R v Folbigg do not support the applicant's reliance on those cases. 24 In Goebel-McGregor v R [2006] NSWCCA 390 the applicant was found guilty of murder, and was sentenced to imprisonment for a non-parole period 15 years and a total term of 20 years. The sentence commenced when the applicant was aged 62. James J, with whom Hidden and Hislop JJ agreed, recorded at [126] the submission that the sentencing judge "having decided that the offence did not call for a life sentence, had imposed a sentence which, having regard to the prisoner's age and life expectancy, was tantamount to a life sentence". His Honour said of this - "128 As regards the further submission made by counsel for the appellant, it is true that this Court has said that, if a life sentence is to be imposed, it should be imposed "frankly and directly" and a sentencing court which refrains from imposing a life sentence should not impose a determinate sentence which would have the effect of a life sentence. R v Chen (2003) 138 A Crim R 433 at 444 (67). However, a sentence must reflect the objective seriousness of the offence and when the offender is of advanced years a determinate sentence, in order to reflect the objective seriousness of the offence, may unavoidably extend for all or most of the offender's life expectancy. In Des Rosiers v Regina [2006] NSWCCA 16 Latham J, with whom the other members of the Court agreed, referred with approval at par 30 of her judgment to a statement by Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507:- 'It simply is not the law that it can never be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody'. 129 In the present case the appellant was sixty-two years old at the time he committed the offence of murder by what the sentencing judge found to be a cowardly and brutal act. It was inevitable that there would be a real risk of the appellant dying in custody, before he completed serving even the non-parole period of any sentence which adequately reflected the objective seriousness of the offence." 25 The appeal against sentence was dismissed. In Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549 Latham J had followed the reference to the statement by Allen J in R v Holyoak (1995) 82 A Crim R 82 with the statement - "However, the submissions contend that it is only appropriate to impose a lengthy minimum term which potentially has that effect where the nature of the criminal conduct is so serious as to justify a conclusion that the offender has forfeited his or her right to live in the general community. No authority was cited in support of this proposition. Reference was made to R v Crowley (1991) 55 A Crim R 201, wherein the Victorian Court of Criminal Appeal dismissed an appeal against an effective sentence of 36 years, including a non-parole period of 24 years, imposed on a 41 year old offender in respect of two murder offences committed six months apart. Whilst accepting that a court may be reluctant to impose a sentence which destroys any reasonable expectation of a useful life after release, the Court went on to observe that it does not follow that every such sentence must on that account be held to be manifestly excessive. Where the offender's conduct in the commission of the offence served to forfeit the right to any expectation of a useful life after release, the sentence, no matter how "crushing" in that sense, would be within the bounds of the sentencing discretion (at 206). It is apparent that Crowley was not a decision which turned on the age of the offender. There is no basis in principle for confining Allen J's statement in Holyoak in the manner contended for by the applicant." 26 In Ta'ala v R [2008] NSWCCA 132 the applicant was found guilty on two counts of murder. He was sentenced to imprisonment for an overall non-parole period of 38 years 6 months and an overall total term of 47 years, with the sentence for the second murder commencing 12 years after the sentence for the first murder. The sentences had been imposed prior to the decision in R v Folbigg. Grove J, with whom Campbell JA and Johnson J agreed, referred to the applicant's reliance on R v Folbigg. His Honour observed that a life sentence scheduled to expire before reaching the anticipated life expectancy would be more "crushing" than any determinate sentence, but continued - "42 Courts are not unfamiliar with descriptions of sentences as "crushing" but that does not articulate some applicable test. A life sentence would presumably fall within the ambit of that description but the legitimacy of availability of a life sentence is not open to challenge. Whilst the language in Folbigg is general in terms it does not purport to, nor could it, detract from the well established principle that justice is individual and each offence and each offender requires assessment. The judgment in that case was, of course, delivered after his Honour's impositions in this instance but it did not reveal any principle demonstrating that there had been error in the assessment of sentences received by the appellant." 27 In my opinion, that the judge declined to impose a life sentence pursuant to s 61(1) of the Act does not provide a basis for disturbing a sentence which was otherwise within the range of his Honour's discretion, or the outcome of an accumulation with other sentences also within the range of the discretion. The judge was well aware that the sentences would not expire until the applicant was well into old age, and that was not overlooked in the exercise of his discretion. The ground of appeal should not be upheld. 28 I propose orders that leave to appeal be granted but that the appeal be dismissed. 29 HOWIE J: I agree with Giles JA. 30 LATHAM J: I agree with Giles JA. ********** 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.