Regina v Barry [1999] NSWSC 659 (18 June 1999)

Last Updated: 5 July 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v Barry [1999] NSWSC 659

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 70032/98

HEARING DATE{S): 24 May 1999 - 11 June 1999

JUDGMENT DATE: 18/06/1999

PARTIES:

Crown

Dale Wesley Barry (accused)

JUDGMENT OF: Newman J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

W Creasey (Crown)

J Pappas (Accused)

SOLICITORS:

Director of Public Prosecutions (Crown)

Legal Aid Commission (Accused)

CATCHWORDS:

Murder

maliciously wound with intent to do grievous bodily harm

diminished responsibility

provocation

ACTS CITED:

DECISION:

Murder: Minimum term of 18 years commencing 9 December 1997 and expiring 8 December 2015. Additional term of six years commencing 9 December 2015 and expiring 8 December 2021

Maliciously wound with intent to do grievous bodily harm: fixed term of 12 years commencing 9 December 1997 and expiring 8 December 2009.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

NEWMAN J

FRIDAY, 18 JUNE 1999

70032/98 - REGINA v Dale Wesley BARRY

SENTENCE

1 HIS HONOUR: Dale Wesley Barry is for sentence today having been convicted by a jury on 11 June 1999 of the crimes of murder and maliciously wound with intent to do grievous bodily harm. The crime of murder involved the killing of his wife, Sharon Lee-Anne Barry and the crime of maliciously wound with intent to do grievous bodily harm involved his stepdaughter, Tara Dannielle Barry (also known as Tara Graham), both offences being committed on 9 December 1997 at what had been the family home in the Albury area.

2 The Crimes Act 1900 prescribes a maximum penalty of penal servitude for life for the crime of murder and a maximum sentence of twenty-five years penal servitude for the crime of maliciously wound with intent to do grievous bodily harm.

3 The crime of maliciously wound with intent to do grievous bodily harm was an alternative charge on the indictment to one of wound with intent to murder. The jury, having found the prisoner not guilty of the latter offence, proceeded as I have said, to convict him of the alternative count of maliciously wound with intent to do grievous bodily harm.

4 In determining an appropriate sentence I have to find the facts relating to the offences consistently with the jury's verdict. In so doing I have adopted the criminal standard of proof, namely proof beyond reasonable doubt.

5 At the outset it should be noted that the prisoner did not deny killing his wife. Indeed, he formally admitted at the trial in so doing he acted with either an intent to kill or cause grievous bodily harm. He raised a defence of diminished responsibility which the jury, by its verdict, plainly rejected.

6 While provocation was not expressly raised as an issue in the trial by counsel for the prisoner, material emerged during the course of the trial which, in my view, required me to charge the jury on provocation as an issue for their determination. This I did but again the jury's verdict indicates that they were satisfied that the Crown had excluded provocation.

7 The prisoner pleaded not guilty to the charges of wound with intent to murder and maliciously wound with intent to do grievous bodily harm. Diminished responsibility, is, of course, no defence to either of these charges and provocation is not a matter which was relevant to them.

8 I turn then to the facts of the matter.

9 The prisoner and his wife were married on 19 September 1992. They had had a relatively short association prior to the marriage but that earlier association was attended by violence. The prisoner, in fact, being found guilty of an assault upon her following an incident which occurred on 1 July 1992. Indeed, extraordinarily enough, on the wedding night the prisoner carried out a further assault of some vehemence upon his wife which resulted in him being brought again before the Local Court and again being convicted. Not surprisingly this led to a period of separation but after some months the couple began cohabiting.

10 At the time of the marriage of the prisoner and the deceased, the deceased had two children from relationships with two men other than the prisoner. They were Tara, the victim of the second offence for which the prisoner stands convicted before this Court who was born on 2 January 1985 and a boy, Benjamin who was born on 11 April 1991. Following the prisoner and the deceased commencing cohabiting two daughters were born of their union, Jaimyn who was born on 22 May 1993 and Ashlee who was born on 10 February 1995.

11 The marriage continued, albeit with disagreements and on the evidence of Tara Barry at least one episode of violence on the prisoner's part, and on other evidence other episodes of violence until November 1996 when the prisoner struck the deceased on the jaw. As a consequence of this assault not only did a separation occur but an apprehended violence order was taken out by the deceased against the prisoner on 4 November 1996 for a period of twelve months. That was later extended to 28 November 1997.

12 During the period of separation which then followed it appears that the prisoner had some access to his natural children and stepchildren. Indeed, at Easter 1997 the prisoner had accompanied the deceased and her children on a holiday to Bateman's Bay. Thereafter it seems that despite the continued existence of the apprehended violence order cohabitation commenced again between the deceased and the prisoner. That cohabitation continued until October 1997 when, following an episode of violence which involved the boy Benjamin, the deceased had departed the house at 6 Conmurra Way, Springdale Heights (a suburb of Albury) and took herself and her children to the Albury Women's Refuge where they stayed for a week. As a consequence of this episode a further apprehended violence order was taken out against the prisoner. The cohabitation thereafter ceased although the prisoner sought access to the children.

13 On the evidence I am satisfied that on Saturday 6 December 1997 the deceased told the prisoner that he was no longer to have access to the children.

14 Following the separation which occurred in October 1997 the prisoner had been residing, inter alia, at premises at Thurgoona (another Albury suburb) with a former workmate, a Mr Arthur Milgate and Mr Milgate's partner, Angela Harris.

15 Prior to residing with Mr Milgate and Ms Harris and following the separation the prisoner had himself admitted to the Nolan House unit of the Albury Base hospital principally for treatment for alcoholism but where as an inmate of that institution, he was diagnosed as suffering from an adjustment disorder with a depressed mood. I shall return to this matter later when dealing with matters raised in mitigation.

16 However, some two weeks after his discharge from Nolan House the prisoner told Mr Milgate of his intention to kill his wife. As I understand Mr Milgate's evidence he believed that he had been able to dissuade the prisoner from undertaking such a course.

17 On the evening on 8 December 1997 the prisoner was observed drinking at the Boomerang Hotel in the Albury suburb of Lavington. At about 12.30 am he was observed by the supervisor of the hotel to be standing by his car which was parked at the rear of the hotel. From there he made his way to the family home at 6 Conmurra Way, Springdale Heights. The exact time of his arrival at those premises is not readily ascertainable from the evidence but it seems that it was some time around 2 am.

18 Again, it is not possible on the evidence to ascertain exactly how it was that the prisoner obtained entry to the house but the fact was the he had keys upon him which would enable him to enter the house without forced entry or it may be that the deceased opened the door to him. I should add that police investigations indicate that there were no signs of forced entry. However, after obtaining entry I accept that an argument developed between the prisoner and the deceased probably about access to the children.

19 Some time after he obtained entry 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.

20 Dr Merriman, a paediatric surgeon who subsequently treated Tara Barry was of the view that administration of the wound she observed would have required a significant thrust.

21 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 right upper arm. The principal wound thus inflicted was in the medial 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 would was categorised by Dr Lawrence, forensic pathologist, as being the lethal injury. Lethal because it would cause death due to blood loss. There was also a knife wound to her left hand between thumb and first finger which was superficial in nature and described by Dr Lawrence as a defence wound.

22 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.

23 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.

24 Following the administration of these blows it seems that the prisoner remained in the house for some little time. Tara Barry somehow made her way back to her bedroom and having lain on her bed for some time, finding that the prisoner had departed the premises, made her way across the hallway between her bedroom and the bedroom occupied by her brother, Benjamin, whom she successfully directed to obtain help. He made his way to a neighbour's house and as a result of which a Mrs Grelli entered the subject premises, saw the deceased and the attendant pools of blood and raised the alarm.

25 Objectively the facts indicate a breach of the criminal law of the highest order. The pathologist's evidence considered alone indicates the vehemence of the attack carried out on the deceased. The photographs taken by police underscore the extent of that vehemence.

26 The stab wound inflicted upon Tara Barry was of itself very serious. Not only was the damage done to her internal organs life threatening but Dr Merriman, whose skilful treatment I have no doubt saved her life, is of the view that the wound inflicted may lead to significant morbidity in the future. To describe the damage done to the body of Tara Barry as grievous bodily harm is almost to understate the nature of her injuries. I have received a victim's impact statement relating to Tara Barry which indicates the level of harm done to this young person, both of a physical and psychological type.

27 I turn then to the subjective matters relating to the prisoner.

28 The prisoner is now aged forty-one having been born on 30 May 1958. He has a criminal record involving a number of crimes of violence. In Victoria on 12 April 1988 he was sentenced to a total sentence of twenty-seven months with a minimum term of eighteen months for, inter alia, a crime known in Victoria as intentionally cause serious injury.

29 On 3 August 1990 he received a suspended sentence of six months in Victoria for the crime of assault recklessly causing injury.

30 In New South Wales he has at least two offences of assault relating to the deceased and it seems a further offence of common assault as a result of an incident on 15 October 1996. He also has convictions for crimes of dishonesty, namely theft and burglary and three convictions for drug offences. The convictions relating to assault are, of course, a relevant sentencing consideration in this case. See Veen No 2[1988] HCA 14; , (1987-88), 164 CLR 465 at 477.

31 I turn then to factors raised in mitigation. The first and most important of these matters is the prisoner's mental condition at the time when the subject crimes were committed. Two psychiatrists who gave evidence at the trial, Dr Jolly and Professor Mullen were of the view that at the time when the prisoner carried out both of these offences he was suffering from an abnormality of mind. Both were of the view that he was suffering from depression at the time although Professor Mullen's opinion was that the depression was not as significant a phenomena as described by Dr Jolly. Professor Mullen was also of the view that he was suffering from mood and personality disorders. Dr Jolly was of the view that the genesis of the prisoner's abnormality of mind arose from inherent causes.

32 There was thus evidence before the jury that two of the three elements relating to the defence of diminished responsibility were present. However, both Dr Jolly and Professor Mullen agreed that if the account given by Tara Barry was sequentially accurate then it was not possible to infer that he lost control at the time. I am of the view that his ability to exercise willpower at the time when he attacked the deceased is an element which caused his defence to fail. I should add that I accept, without difficulty, the sequence of events deposed to by Tara Barry.

33 However, while his defence failed, the fact is that there is a unanimous view expressed by the psychiatrists that he was suffering from an abnormality of mind at the relevant time. This factor following what has fallen from the Court of Criminal Appeal in Regina v Twala, unreported, Court of Criminal Appeal, 4 November 1994 at 7, 8 and 11 and in Regina v Fernando, unreported, Court of Criminal Appeal, 14 April 1999, particularly at 148, is, in my view, sufficient to take the case out of the category of worst type of case which would give rise to the possible imposition of a life sentence.

34 In so saying I do not wish to be thought to be underestimating the horrific and brutal nature of both crimes. While in the case of murder it follows I am of the view I should impose a determinate sentence, plainly enough it will have to be condign in nature.

35 The prisoner had an unfortunate childhood. His natural father was killed in a road traffic accident and he was subjected to violence by his stepfather who was a heavy drinker. Not only was he subjected to violence but also he observed extreme violence by his stepfather upon one of his brothers. Professor Mullen described the home environment experienced by the prisoner in his childhood to be one of disorganisation, distress, intimidation and violence.

36 While the prisoner has occasionally used marijuana and at one stage of his life abused heroin (that being some ten years ago) he has been a heavy drinker for many years to such an extent that Professor Mullen described his main problem as being that of alcoholism.

37 To his credit the prisoner has an excellent industrial record working in clerical and unskilled and semi skilled occupations on a constant basis from the time he left school at the age of sixteen. Indeed, he had been fully employed as a machine operator at an engineering works in Albury until a few days before the tragic events which led to his apprehension.

38 He has today through his counsel expressed contrition and indicates he has an insight into his mental condition at the time of the commission of the offences. Through his counsel it is submitted to me that he is determined to improve himself and will continue studies while in prison. Also he has been receiving treatment within the prison system since his incarceration and currently will continue to receive that treatment.

39 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.

40 As I noted at the very outset of these remarks on sentence both the crimes for which the prisoner stands convicted are very serious crimes. They stand high in the criminal calendar. Because both crimes were committed as a consequence of the one episode, I am of the view that I should not impose a cumulative sentence but a concurrent one. In so doing I have taken into account the totality of his criminality involving both crimes.

41 I accept Professor Mullen's view that at the time when Professor Mullen saw him he was no longer suffering from depression. As I have already remarked, since he went into custody on the day of the commission of the crime, 9 December 1997, he has been receiving psychiatric treatment within the prison system.

42 In view of Professor Mullen's view that he is no longer suffering from depression, it seems to me that this is a case where special circumstances pursuant to s 5(2) of the Sentencing Act do not exist. I should add that no special circumstances were pointed to by counsel for the prisoner in his submissions on sentence nor, may I say, were there any which I believe he could have pointed to. Accordingly, the structure of the sentence will be in accordance with the proportion stipulated by the Sentencing Act between the minimum and additional terms. The additional term which I am about to impose which does not exceed one third of the minimum term will allow ample time for the prisoner to make a supervised re-entry into the community, if released on parole at the expiration of his minimum term.

43 In Twala's case at p 15 Badgery-Parker J observed that an examination of comparable sentences in what are described as relationship cases was a matter of assistance in determining the general range. As in Twala, the objective circumstances here are such as to call for a sentence at the higher end of the range. Unlike Twala, an additional serious crime has to be taken into account as a consequence of his attack upon Tara Graham. As I have said, I have taken that matter into account in applying the principles of totality of sentence.

44 Having taken fully into account the mitigating factors in the matter, including the prisoner's age, his expressed contrition, his mental condition at the time of the crime, his past history of violence and his excellent industrial record but also I have had to take into account the objective seriousness of the crimes, I impose the following sentence.

45 In relation to the crime of murder, a minimum term of eighteen years commencing on 9 December 1997 and expiring on 8 December 2015 when the prisoner will be eligible for release on parole. An additional term of six years commencing on 9 December 2015 and expiring on 8 December 2021.

46 As to the crime of maliciously wound with intent to commit grievous bodily harm, I impose a fixed term of twelve years commencing on 9 December 1997 and expiring on 8 December 2009

LAST UPDATED: 01/07/1999