Barbieri v R [2016] NSWCCA 295

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Barbieri v R [2016] NSWCCA 295 Hearing dates: 21 June 2016 Decision date: 12 December 2016 Before: Simpson JA at [1]; Price J at [134]; McCallum J at [195] Decision: (1) Leave to appeal against sentence granted; (2) Appeal allowed; (3) Sentence imposed at first instance quashed; (4) In lieu thereof, the applicant be sentenced to a non-parole period of 15 years, commencing on 6 December 2012, expiring on 5 December 2027, with a balance of term of 6 years and 3 months which will expire on 5 March 2034. Catchwords: CRIMINAL LAW – sentence appeal – murder – victim a police officer acting in execution of duty – Crimes Act 1900 (NSW), s 19B(1) – offender offered plea of guilty to manslaughter on basis of substantial impairment – Crimes Act, s 23A – offer not accepted by DPP – DPP conceded applicant had "significant cognitive impairment" within meaning of s 19B(3)(b) – sentence of life imprisonment not mandatory – offender pleaded guilty to murder – further four offences taken into account on Form 1

CRIMINAL LAW – sentence appeal – murder – offender suffering mental illness – delusional disorder shared with mother – "Folie A Deux" – mother a co-offender – mother offered plea of guilty to manslaughter on basis of substantial impairment – plea of guilty accepted by DPP – effect of mental illness – sentencing judge took into account fact that applicant's condition was "secondary" to that of his mother and overcame condition when separated from mother – error in so doing – considerations irrelevant to assessment of moral culpability – principles relating to sentencing mentally ill offenders