Supreme Court New South Wales

• Medium Neutral Citation: R v Barbieri, Mitchell; R v Barbieri, Fiona [2014] NSWSC 1808
• Hearing dates: 12, 24 - 25 November 2014
• Decision date: 18 December 2014
• Jurisdiction: Common Law - Criminal
• Before: R A Hulme J

Decision

Mitchell Barbieri

Imprisonment for 35 years with a non-parole period of 26 years

Fiona Barbieri

Imprisonment for 10 years with a non-parole period of 7 years 6 months

• Catchwords: CRIMINAL LAW - sentence - murder of police officer - intention to kill - significant cognitive impairment - life sentence not mandatory - above middle range objective seriousness but reduced moral culpability - good rehabilitation prospects but lack of genuine remorse; CRIMINAL LAW - sentence - joint criminal enterprise - manslaughter of police officer - use offensive weapon with intent to hinder arrest - substantial impairment - reduced moral culpability - lack of remorse - reasonable prospects of rehabilitation
• Legislation Cited: Crimes Act 1900 (NSW); Crimes Amendment (Murder of Police Officers) Bill 2011; Crimes (Sentencing Procedure) Act 1999 (NSW); Mental Health Act 2007 (NSW)
• Cases Cited: R v Jacobs (No 9) [2013] NSWSC 1470
• Category: Sentence
• Parties: Regina; Mitchell Barbieri; Fiona Barbieri
• Representation: Counsel: Mr M Tedeschi QC with Ms Jeffreys (Crown); Mr R Sutherland SC (Mitchell); Mr G Brady (Fiona); Solicitors: Solicitor for Public Prosecutions; Nyman Gibson Miralis; Alexanders Lawyers
• File Number(s): 2012/379946; 2012/379947

Judgment

1 R A HULME J: Mitchell Barbieri appears for sentence for the crime of murder. On 6 December 2012 he murdered a police officer, Detective Inspector Bryson Anderson, who was performing his duty in trying to arrest him.

2 Mr Barbieri pleaded guilty to that crime. He has asked that his guilt of four further offences listed on a Form 1 document be taken into account: two of assault, one of resisting arrest, and one of possessing a prohibited weapon.

3 Mr Barbieri's mother, Fiona Barbieri, also appears for sentence. She has pleaded guilty to the manslaughter of Inspector Anderson and the Crown has accepted that plea in lieu of a charge of murder. There is a dispute about the basis of manslaughter upon which she is to be sentenced but I will come back to that. Ms Barbieri has also pleaded guilty to the crime of using an offensive weapon with intent to hinder the lawful apprehension of her son.

4 Ms Barbieri also asked when I sentence her for the second of those offences that her guilt in respect of two further offences be taken into account: assaulting another police officer, Detective Senior Constable Darren Caulfield causing him actual bodily harm, and possessing a prohibited weapon.

5 Both offenders were due to be tried before a jury but they pleaded guilty on the day the trial was due to commence.

6 The maximum penalty for murder is imprisonment for life. If certain conditions are established, a sentence of life imprisonment is mandatory. There is also prescribed for certain cases involving the murder of a police officer a standard non-parole period of 25 years.

7 The maximum penalty for manslaughter is imprisonment for 25 years. The maximum penalty for using an offensive weapon with intent to hinder lawful apprehension is imprisonment for 12 years.

Victim impact statements

8 Ten victim impact statements were read at the sentencing hearing. I have taken them into account aside from a few sentences to which objection was taken on the basis of relevance. (They concerned some personal expressions of feelings towards the offenders that are understandable but which I am not allowed to take into account.)

9 I am grateful to Bryson Anderson's parents, wife, brothers and eldest son for providing statements about the impact that his death has had upon them. They describe a man who was undoubtedly very special. It is said that he was his wife's "best friend". He was "loyal", "caring", "humble", "ethical", "honest", "a devoted and supportive father", and generally, "a good man". I repeat that they have my sincere sympathy.

10 Statements were also provided by four of the many police officers who were present at the scene. They provide graphic and moving descriptions of just what a horrific and traumatic experience it was to see a respected senior officer killed while leading his colleagues in the performance of their duty in upholding the law. It needs no imagination to think that it must have been the same for all of the officers who were present.

11 One of the purposes of sentencing is recognise the harm done to the community. Harm to the community is always caused when an innocent life is taken but the way in which the harm is felt varies. It is certainly the case that the community has been harmed by the taking of the life of Inspector Anderson. The NSW Police Force is the poorer for not having him as a member, a leader, and a future holder of high rank. The community has also been harmed by the psychological damage that has been caused to his fellow officers who were present at the scene, and to police officers generally who have lost a leader and respected colleague. It has also been harmed by the profound and eternal grief and loss that has been caused to Inspector Anderson's family and friends.

12 The killing of a police officer in the performance of his or her duty is always regarded as a crime of extreme seriousness. This case exemplifies why that is so. Thousands of police officers go to work each day not knowing what tasks may await them and what dangers might confront them. But we should never forget that they do this willingly in the service of, and for the protection of, us all.

13 Much of what I have to deal with in giving my reasons for the sentences that I am going to impose will be concerned with the circumstances of the offences and of the offenders. That is a legal necessity. But it should not be thought that for one moment I have lost sight of the impact that these terrible crimes have had.

Facts

14 There was disagreement as to certain facts relating to the commission of the offences but agreement as to some peripheral matters. In those circumstances, it became necessary for me to make a number of findings of fact. In doing so I have borne in mind that where matters are found that are adverse to the offenders they must be established beyond reasonable doubt.

15 In 2001 the Barbieri family moved to a 5-acre property at Oakville, a semi-rural area on the outskirts of Sydney. Kevin Waters and his family moved into a similar sized property next door in about 2002. Whilst the relationship between the two families was cordial, at least, it became antagonistic from about 2010. The Barbieris came to believe that Mr Waters wanted to force them from their property so he could buy it cheaply. They also came to believe that he was conspiring to have them killed. I will say more about these beliefs later.

16 On Monday 3 December 2012, a stick was thrown at the Waters' house with a note attached. What was written on the note does not appear to make sense but the incident prompted Mr Waters to engage an electrician to install floodlighting along the boundary between the two properties.

17 On Thursday 6 December 2012, the electrician, Mr Peter Yard was working on the Waters' property near the boundary fence using a ladder to install a floodlight in a tree. At about 1pm, Fiona Barbieri approached Mr Yard and verbally challenged him. She took a number of photographs of Mr Yard and his equipment. Mitchell Barbieri joined his mother and they loudly protested Mr Yard's presence. Mr Yard left the area to speak to Mr Waters.

18 Mr Yard returned some time later with Keith West, a man who worked for Mr Waters. Fiona and Mitchell Barbieri had gone away but also returned to the area. Ms Barbieri was holding a small baseball bat and was swinging it. They both continued to demand that Mr Yard leave. Mitchell Barbieri was holding a compound bow and he fired two arrows, one in the general direction of Mr Yard and Mr West and, a short time later, the other in the general direction of Mr Waters and his son, Kurt. In firing these arrows he intended to cause the men to fear immediate and unlawful violence. These actions comprise the two offences of assault that Mitchell Barbieri asks to be taken into account.

19 The verbal altercation continued. Kevin Waters told Fiona and Mitchell Barbieri that he would be calling the police. Eventually the Barbieris left the area and went inside their house.

Events after police arrive

20 The first police arrived at the scene at about 2.25pm. They went to the Waters' property first where they spoke to people and obtained statements. Various other police arrived over the course of the next hour or so and were briefed with the situation. It was apparent that the Barbieris had retreated into their home. It was determined that an offence had been committed, at least by way of an assault by Mitchell Barbieri having fired arrows at people next door. He was going to be arrested.

21 Three emails were sent between 2.41pm and 3.11pm by one or the other of the offenders, but with the awareness of both of them. They were addressed to various federal politicians; made bizarre claims about Kevin Waters; said that "corrupt police" were attempting to break in; and asserted a right to defend themselves and their property. A blind copy of each was sent to the president of Russia.

22 Further police arrived and some of them gathered at the front gate, which was padlocked. Mitchell Barbieri sent a text message at 3.12pm to his father, Angelo Barbieri, saying, "Coppers at our gate clearly to ambush us to [sic] standing up for ourselves".

23 Detective Senior Constable Chris Ornatowski, who was the designated negotiator, called out to Mitchell and Fiona Barbieri to come out for a chat. Curtains on the front windows of the house were closed but one of the offenders was seen to point a camera between the curtains to take photographs of the officers. Dogs could be heard barking from within the house. At one stage, Fiona Barbieri opened the curtains. Police continued to try and make verbal contact but there was no response.

24 A decision was taken for officers to don ballistics vests and approach the house. Some of the officers were allocated to various vantage points to keep watch whilst others went to the front of the house.

25 Detective Ornatowski knocked on a front window and called out, "It's the police. Fiona and Mitchell we need to talk to you". Fiona Barbieri was heard to say to her son, "They're right out the front". There followed a period of about 25 minutes of the police endeavouring to engage with the pair through the front windows. The officers repeatedly made clear who they were and why they were there. Fiona Barbieri responded with claims that all police were corrupt and mentioned that the situation was being dealt with "on an international level". Most of the interaction was with Fiona Barbieri but occasionally Mitchell made a contribution along similar lines to that of his mother. All the while there were two large dogs within the house who were barking aggressively. On a couple of occasions the dogs were removed to somewhere else in the house but soon returned.

26 Inspector Bryson Anderson was one of the officers at the front of the house during this phase. He announced who he was, by name and rank. The offenders continued to reject attempts for rational discussion with claims that all of the police were corrupt. They were told to go away. Mitchell Barbieri suggested that if the officers had any questions they should put them in writing. His mother added that if the officers had any questions they would be answered by email.

27 Inspector Anderson (who was in uniform) obtained a shovel from somewhere and made a rudimentary attempt to jemmy open some French doors leading to the dining room. Fiona Barbieri responded, "You say you're not corrupt but look at him with his stars and stripes, what's he doing?" Then, to Mitchell, she said, "They're trying to break in". Inspector Anderson gave up that attempt.

28 At one point, Detective Caulfield put his arm around Inspector Anderson and said, "He's a commissioned officer, this is Bryson Anderson". Fiona Barbieri responded to the effect that she did not care.

29 Inspector Anderson and Sergeant Adam Fitzgibbon moved to the rear of the house and proceeded onto a small raised veranda. Other officers followed. Two constables were already in position against the back wall of the house. The back door of the house led from the kitchen to the veranda. Beside that door was a window that overlooked the veranda.

30 Inspector Anderson engaged Mitchell Barbieri in conversation through the kitchen window. He again announced his name, rank and station. He told Mitchell that he was wanted in connection with an offence and asked him to open the door immediately. He used a tone that was described as assertive yet calm. However, Mitchell rejected any notion of being under arrest for an offence and said he was not going anywhere. He suggested that the police should go away (with an extensive use of expletives).

31 There was some inconsistency in the recollections of the officers as to how clearly they could see through the window into the kitchen; some saying venetian blinds were almost closed whilst others saying they were open. I conclude that there was vision but it was limited. There was no lighting within the house and an officer who later went inside said it was dark because curtains were closed. Nevertheless, I accept evidence to the effect that both Mitchell and Fiona Barbieri could be seen within the kitchen. I do not accept that Fiona Barbieri was not there at all until the very end.

32 There was continued verbal engagement with the offenders. The officers, primarily Inspector Anderson, were trying to encourage them to open the door and allow the police to enter. I am satisfied that this was done in a professional way; that is, it was not in a manner that would, ordinarily, have inflamed occupants of normal disposition. Nevertheless, the responses from within continued to assert that the officers should leave, again with a liberal use of expletives. Mitchell Barbieri's tone of voice was described by one of the constables as "highly agitated and aggressive". Fiona Barbieri was screaming out in the background.

33 It is of relevance to note that all of the officers who were on the veranda and within sight of the occupants were in full police uniform. Their ballistics vests had the word "POLICE" prominently displayed at the front. There can have been no doubt who they were. There also can have been no doubt that Bryson Anderson was a senior officer; his rank as an inspector had been conveyed a number of times, both at the rear of the house and earlier at the front windows. Fiona Barbieri had earlier commented on his "stars and stripes".

34 Inspector Anderson directed officers to remove a locked flyscreen at the back door and they did so. Fiona Barbieri warned her son that "the cunts are coming in". Inspector Anderson continued his attempt to persuade Mitchell to open the door but he replied in no uncertain terms that the police were not coming in and should go away.

35 Inspector Anderson turned to Sergeant Fitzgibbon and announced, "We're going in". The sergeant forced the back door open with his boot. There was continued yelling and swearing from inside. Inspector Anderson was standing on the veranda somewhere adjacent to the kitchen window and the door. Sergeant Fitzgibbon called out, "Get back, he's got a gas cylinder". Mitchell Barbieri was holding a gas cylinder and the sergeant feared that he might be intending to set fire to the house or to throw the cylinder at police.

36 The two dogs then ran out onto the veranda. They were large and fearsome looking beasts and caused several officers to deploy their capsicum spray devices. Almost immediately, Mitchell Barbieri emerged from the door, lunged towards Inspector Anderson and delivered two blows in quick succession with a knife. Officers quickly moved to disarm and restrain him. There was quite a struggle to do so.

37 Almost immediately, Fiona Barbieri emerged with a 1.8kg sledgehammer which she held in a threatening manner over her head. There was a dispute about this but I accept the following evidence. Constable Hannah Watson said she saw Ms Barbieri holding the hammer over her head and swinging it towards someone. Plainclothes Constable Mark Camilleri described her holding the hammer above her head in a threatening manner as if she was ready to strike. Detective Caulfield said she moved towards the officers who were holding Mitchell Barbieri and was about to hit one of them when he intervened. During his struggle to restrain her she unsuccessfully tried twice to hit him. At least one of these attempts was directed at his head but missed and she struck his shin on the follow through. Detective Senior Constable Matthew Clancy confirmed that she was swinging the object in an aggressive manner towards Detective Caulfield.

38 Ms Barbieri eventually dropped the sledgehammer and was restrained but not without a violent struggle during which she thrashed about and bit Detective Caulfield on his forearm and wrist. Even Mitchell Barbieri, who was arguing with the officers who were trying to restrain him, had to call out to her to comply with the officers' demands.

39 It quickly emerged that Inspector Anderson had been critically injured. Yet, according to Constable James Ghata, he motioned to assist the officers who were attempting to apprehend Mitchell Barbieri. His instinct to help fellow officers in trouble prevailed for a moment over the injuries he had sustained. However, officers sensed the gravity of the situation and moved him a short distance away from the melee. They summoned help and began to attend to him as best they could.

40 A barrage of expletive laden abuse of the officers continued to emanate from both of the Barbieris until they were removed to the front of the house and placed into police vehicles. Fiona Barbieri was heard by Constable Ryan Mitchell to say, "It's his own fucking fault, he fucking deserved it", before she was placed into a truck. Two ambulance officers arrived at about this time (about 4.25pm). They each claim to have heard Ms Barbieri say, "Let the dog cunt die, he deserves to fucking die". This was disputed.

41 The ambulance officers commenced their attempts to revive and treat Inspector Anderson. Whilst they were doing so they heard a male on the veranda, which must have been Mitchell Barbieri before he had been removed to the front of the house, say, "Let the copper cunt die, fuck him". This also was disputed.

42 The ambulance officers were required to attend the sentence hearing for cross-examination. They were each impressive witnesses who were steadfast in maintaining that they had heard the offenders say these things. Counsel identified a number of reasons to doubt the accuracy and reliability of the evidence and I have considered them all. In terms of the sentencing outcome of the case, this issue is very minor and so it is not worth spending time giving expansive reasons. I simply record that I am not persuaded that it is a reasonable possibility that the officers were mistaken, dishonest, or had colluded with each other. I am satisfied that the statements were made by the offenders as the officers claimed.

43 When out the front of the property, Mitchell Barbieri was cautioned and asked why he had stabbed Inspector Anderson. He replied, "That will happen when you guys do home invasions". He was searched and a folding knife was found in his pocket.

Subsequent events

44 Inspector Anderson was taken to Hawkesbury Hospital. Death was pronounced just after 5.00pm. An autopsy revealed that he had sustained a full-thickness wound to the left side of the face that resulted in minor soft tissue injury and injury to the upper jawbone. The fatal wound was one that penetrated between the 1st and 2nd rib on the right side and penetrated 14cm down into the right lung.

45 Mitchell Barbieri was taken to Windsor police station and later to Penrith police station. He engaged in a recorded discussion with police in which he exercised his right to silence in respect of answering questions about what had occurred that day. He said he wanted assistance from the Russian consular office. He was seeking to revoke his Australian citizenship and to obtain political asylum because of persecution for having reported and stood up against human rights abuse, corruption and terrorism. He denied having any problem with his mental health.

46 Fiona Barbieri was also taken to Penrith police station and also engaged in a recorded discussion with police in which she asserted her right to silence in respect of the events of the day. However, at one point she indicated that she did not know anything about the murder of Bryson Anderson and said what had occurred was that she and her son were ambushed by an army of police officers and that it was self-defence.

47 Ms Barbieri indicated a preference to speak with the Russian President or one of his representatives, as she did not trust anybody in "the Australian bureaucratic system". She said something about "it" being bigger than the corrupt police department and the corrupt federal parliament; it was "an international matter". She said that she and her son were seeking asylum in Russia. At her insistence, she was permitted to speak by telephone with the Russian Embassy in Canberra. She tried to persuade the person she spoke with to make urgent contact with Mr Putin to inform him of her and her son's plight. It would appear that she was not satisfied with the response she received. She told the interviewing officers that she did not have any problem with her mental health.

48 Police remained at the scene at Oakville for a number of days. They collected a number of weapons and other items from the house as exhibits. These included a number of Molotov cocktails (glass bottles containing petrol and wicks) found in the freezer compartment of a fridge in a granny flat and a slingshot found in a kitchen cupboard. Those items are the basis of the offence of Possess prohibited weapon without permit that each offender asks be taken into account.

49 Booby-traps in the form of upturned nails protruding from pieces of carpet were found concealed in leaf litter near the fence to Mr Waters' property. Items found within the house included a sword, a barbed wire garrotte, a metal hook with a wooden handle, a rope flail, and a cattle prod in the dining room; a 4.5kg sledgehammer inside the front door; a homemade spear with 4 barbs, and 2 baseball bats in the hallway; a folding knife in the kitchen; and bows and arrows in a bedroom and the lounge room.

50 The knife used by Mitchell Barbieri to stab Inspector Anderson was about 27cm long with a blade about 15cm long and was quite heavy. It was not the type of item that would be found in a kitchen but is more in the nature of a hunting knife. Its leather sheath was found on a cabinet in the hallway adjacent to the kitchen.

Personal circumstances of Fiona Barbieri

51 Ms Barbieri did not give evidence in the sentence proceedings. I received reports by forensic psychiatrists, Dr Michael Diamond and Dr Jonathon Adams which comprise the major source of information about her.

52 She was born in Parramatta in 1967 and grew up in Dundas. There does not appear to be anything of present significance about the circumstances of her upbringing. She left school after Year 10. She then completed a secretarial course for six months and then took on work as an office junior and then as a secretary. She commenced work with American Express in 1989 and worked her way up to become a program manager. She was appointed to a position in Arizona in 1998 but returned to Australia after a year when one of her sisters to whom she was particularly close was diagnosed with a serious illness. That sister passed away in 2005.

53 Fiona married Angelo Barbieri in 1990 and their son, Mitchell, was born three years later. They moved to the Oakville home in 2001. The marriage ended in divorce in 2004 and she retained custody of the child. She commenced a relationship with another man soon after. They became engaged but the relationship came to an end two months later.

54 Ms Barbieri told Dr Adams that her mental health began to deteriorate from November 2008. She was in frequent verbal confrontation with her partner and he was physically abusive towards her. She told Dr Adams, "I was constantly in fear of my life". Her general practitioner prescribed antidepressant medication.

55 She gave Dr Adams a history of becoming more anxious and depressed through 2009. In May she took an overdose of Diazepam tablets. Her neighbour, Mr Waters, was supportive of her in this period. Her condition was affecting her ability to work and around the end of 2009 she took a redundancy and had not worked since.

56 Through 2010 her mood continued to deteriorate. She was in dispute with American Express and WorkCover. Her doctor increased her dose of antidepressant medication and she came to find her mood changed. She felt more energised; she had a decreased need for sleep; she spent money more freely; and she took on projects such as writing books and planning to set up businesses.

57 A psychiatrist assessing her in connection with her workers' compensation claim in March 2010 diagnosed her with bipolar disorder in the hypomania phase.

58 Her attitude towards her neighbour, Mr Waters, changed. She began to perceive that he was involved in the criminal underworld and she became fixated on the possibility that he was persecuting her and her son. She explained to Dr Adams that Mr Waters "wanted to buy my property at a bargain price and so he was intimidating us out of our property". She thought that he was watching and stalking them. She complained to politicians and the police but nothing was done. She began to think that this was because of the political influence of American Express.

59 There was an incident in about September 2010 when some youths came to her home and threatened her and her son with machetes. The evidence before me contains a number of references to such an incident but the details are not completely consistent. At around this time she ceased taking the antidepressant medication because she thought it was becoming harmful. She remained unmedicated until after her arrest.

60 Ms Barbieri became concerned for her and her son's safety so they went away for some months, returning in January 2011. The house and surrounds had been ransacked whilst they were away. The police did nothing to assist. She became increasingly concerned about Mr Waters.

61 The police finally agreed to speak to her about Mr Waters in April 2011 but this eventuated in her being detained as an involuntary patient under the Mental Health Act 2007 (NSW) and kept in a mental health facility for five days. She said that she was diagnosed with hypomania. No medication was prescribed but follow-up counselling was offered. Dr Adams noted that the discharge summary noted a diagnosis of "1st manic episode (?) (induced by antidepressants)".

62 Ms Barbieri became burdened with financial difficulties. Her former husband was making a modest contribution but it was insufficient for her and her son's needs. She had no income and was, apparently, ineligible for Centrelink benefits. The electricity supply and telephone service were cut off because bills were not paid. For about a year leading up to December 2012 they were living without power; the house was illuminated at night by candles; they were having the occasional hot shower elsewhere; and the house and grounds became neglected. Social contact with others became almost non-existent, including for her son who used to have a healthy circle of friends. They only left the home if it was essential to do so and then only for the minimum time necessary. Mother and son became dependent upon each other as their sole source of social support.

63 Ms Barbieri's fixation on the idea that she was being persecuted became more entrenched. She told Dr Adams that she had lost all faith in humanity. She said, "it got to the point that we felt so abandoned, we had no support, that we ended up seeking asylum". They approached the Italian embassy and when they got no response, they sought asylum in Russia. Emails were sent to Vladimir Putin. She said she chose Russia "because it's a beautiful country" and she "wanted to go to a country where American Express would not have any influence".

64 Dr Natasha Rae carried out a comprehensive psychiatric assessment of Ms Barbieri after she went into custody. Dr Diamond noted that the history obtained was consistent with his own extensive review. She was found to be preoccupied with conspiracy theories and persecutory delusions and was considered to have a psychotic illness. She was transferred to the Long Bay Psychiatric Hospital on 31 January 2013. She commenced to receive an antipsychotic medication and showed improvement in the ensuing months, with such improvement continuing in to 2014.

65 Dr Adams offered the following opinion:

"With regards diagnostic considerations, given the chronology of Ms Barbieri's clinical presentation, progressing from prominent depressive symptomatology, through to classical features of mania, and subsequently a persistent delusional belief system with perhaps less prominent mood symptomatology, in my opinion the most likely diagnosis is one of a schizoaffective disorder. This is a psychotic illness characterised by the presence of both psychotic symptoms and mood symptoms. In my view the differential diagnosis includes a bipolar affective disorder and a schizophrenic illness."

66 As to her mental state at the time of the offence, Dr Adams said there were reasonable grounds to conclude that Ms Barbieri was suffering from ongoing symptoms of psychosis. It was reasonable to conclude that her symptoms of psychosis would have impacted upon her cognitive functioning and capacity for rational decision-making at the material time.

67 Dr Diamond made a diagnosis that Ms Barbieri was suffering from chronic paranoid schizophrenia at the time of the incident on 6 December 2012.

68 Ms Barbieri's prospects of rehabilitation were discussed in Dr Adams' supplementary report of 20 November 2014. A negative indicator was her longstanding psychotic illness. On the other hand he noted her high level of functioning prior to the onset of illness; her response to medication; her relatively intact cognitive functioning (although this required testing); and her current level of insight and expressed willingness to comply with psychiatric management.

69 Dr Adams said that the prognosis depended upon several factors, including the psychiatric management available to her and her willingness to comply with it. Various measures that he thought would assist her were noted, including a need for ongoing assertive treatment and monitoring when she is released on parole.

70 Two testimonials were tendered. A prison chaplain spoke in positive terms about her attitude and behaviour and the assistance she offers to other more troubled inmates. The author considered that Ms Barbieri was "remorseful for events that have happened in the past". I note the plural; this probably includes the death of Inspector Anderson but it is not clear. The other testimonial is by a woman who had known Ms Barbieri since the early 1980's when they were work colleagues. They had remained friends since that time, although personal contact in more recent years had been limited. However, the author was aware in at least a broad sense of the difficulties Ms Barbieri experienced in the period preceding her arrest. She had visited her in gaol a number of times and considered her to "have her 'old self' back, aside from the devastation and total remorse for what has happened".

71 A letter apparently written by Ms Barbieri was tendered. It was unsigned and undated. The Crown Prosecutor objected to its receipt into evidence but I allowed it on the basis that it was for me to assess the weight it should be given. On its face, it is an expression of remorse including empathy for those affected by the death of Inspector Anderson.

72 Dr Diamond asked Ms Barbieri about the events of 6 December 2012. Included in what she told him was that she considered that if the police had behaved in a civilised way and knocked on the door, she would have responded calmly. She described their manner as intimidating. She said they were not wearing uniforms. There is, of course, overwhelming evidence to the contrary. Blaming the police for what occurred, at least in part, is the antithesis of accepting responsibility for her actions.

73 Similarly, the account Ms Barbieri gave to Dr Adams of what happened included matters that were patently wrong. For example, she told him that she had picked up a hammer to try and wedge the back door closed but she then heard her son being handcuffed, so she walked out, fell over and was then assaulted by the police who kneed her in the back whilst they exclaimed "die die".

74 I am prepared to accept that Ms Barbieri might now regret what happened and is probably sorry for the harm that was caused on 6 December 2012. But to establish remorse as a mitigating factor, one of the requirements is to provide satisfactory evidence that the offender has accepted responsibility for his or her actions. She has not done that.

75 Ms Barbieri's prospects of rehabilitation are no more than reasonable. They are contingent upon her complying with a strict regime of medication and therapy in relation to her mental health. Dr Adams agreed in cross-examination that, subject to what therapy she was engaged with, she could be at risk of becoming psychotic and paranoid and of causing harm within the community if she ever went off her medication.

76 Ms Barbieri has no previous convictions. This, and her otherwise good character, is a matter that must be taken into account in her favour.

77 Conventional sentencing practice is to acknowledge the utilitarian benefit to the criminal justice system that results from an offender pleading guilty. Ms Barbieri required six witnesses to be cross-examined at the committal proceedings and a further two at the sentence hearing. In a relatively small way, this tends to dilute the utilitarian value of her plea which came at a very late stage. I propose to reduce her sentence by about 10 per cent.

The basis upon which Ms Barbieri is to be sentenced for manslaughter

78 It is common ground that Ms Barbieri and her son were parties to an unspoken agreement between themselves to resist the entry of the police to their home and to resist the arrest of Mitchell Barbieri. The Crown contends that Ms Barbieri foresaw the possibility of grievous bodily harm being intentionally inflicted upon one of the police officers. If that was established beyond reasonable doubt, then she would be guilty of murder, but her liability would be reduced to manslaughter on account of her acknowledged (that is, by the Crown) substantial impairment because of an abnormality of mind.

79 Ms Barbieri's case is that foresight of the infliction of grievous bodily harm has not been established. Her counsel, Mr Brady, contends that she should be sentenced on the basis that she merely foresaw the infliction of some harm, short of grievous bodily harm. In other words, she would never have been liable for conviction for murder.

80 Mr Brady submitted that I should have a doubt about whether Ms Barbieri foresaw the possibility of her son using a weapon. If there was a doubt about that, then there would be a doubt about her foresight of the possibility of grievous bodily harm being inflicted. Mr Brady made carefully crafted and detailed submissions on the subject. I do not mean to do them any injustice by not spelling out the detail; but I confirm that I have given them most earnest consideration.

81 The starting point is to recognise that Ms Barbieri accepts that she foresaw the possibility of her son inflicting some harm. How did she foresee he was going to do that? He is not a very big person and was clearly outnumbered.

82 The house was replete with weapons that were in readiness for use to repel an intruder. Ms Barbieri was strident, aggressive, animated and abusive in her attitude towards the police on this particular day. It must have been obvious that her son shared her attitude. I accept the evidence of Sergeant Fitzgibbon that after the flyscreen backdoor was removed she called out to Mitchell, "The cunts are coming in". I infer that this was a signal to her son to put into action their plan to repel intruders with force, undoubtedly with the weaponry that was at hand. She admits that she herself took up a sledgehammer and sought to attack the officers who were endeavouring to arrest her son. The nature of that object, particularly its weight and what she tried to do with it, supports the inference that the pair had an understanding that any intruder, on this occasion the police, would be resisted with armed force.

83 I am satisfied beyond reasonable doubt that Ms Barbieri was aware of the possible infliction of grievous bodily harm upon at least one of the officers. In reaching this conclusion I place little weight on her statements after the event. Given her mental condition, I am doubtful that they are a reliable indicator of her state of mind before the event.

Other matters relevant to the assessment of sentence for Ms Barbieri

84 The victims of Ms Barbieri's crimes were police officers and she well knew that to be the case. The Crown submitted that her offences are substantially aggravated by this feature. I accept that it is an aggravating feature of the manslaughter offence. It cannot be regarded as aggravating the offence of using an offensive weapon to hinder lawful apprehension. Lawful apprehension is almost always something that is done by police officers. Something that is inherent in an offence cannot be counted again as serving to aggravate it.

85 The Crown submitted that in a moral sense, Ms Barbieri was more blameworthy for the death of Inspector Anderson than her son. This was said to be on the basis of her being the dominant partner in the relationship and because she created and fostered the atmosphere of paranoia and hostility to police. She exacerbated the tension and supported her son's actions aimed at resisting the entry of the police and the arrest of her son. She was instrumental in planning for a violent defence of the home in the event of an unwanted intruder. In that sense, there was said to be premeditation, an unusual feature in a manslaughter case. The problem with this submission is that these are matters that were directly related to Ms Barbieri's mental illness.

86 The Crown also submitted that I should accept the evidence of Dr Diamond in preference to that of Dr Adams and conclude that Ms Barbieri had the capacity to exercise reasoned judgment. I accept that she did do some things on the day that could be described as rational; for example, withdrawing from the argument over the side fence with the neighbours and tradesmen. But one simply cannot ignore the fact that she was largely driven by her delusional thought processes, for example, that she thought she was being persecuted and that all police were corrupt.

87 It must be remembered as well that the Crown submits that I should find that Ms Barbieri is guilty of manslaughter on the basis of the partial defence of substantial impairment by abnormality of mind being made out. That carries with it an acceptance that her capacity to understand events, to judge whether her actions were right or wrong, or to control herself, was substantially impaired to such an extent that it warranted her liability being reduced from murder to manslaughter. Whilst Dr Diamond took a different view to Dr Adams about Ms Barbieri's capacity to exercise reasoned judgment, he agreed that she was impaired in the manner just described.

88 The Crown submitted that the objective seriousness of the manslaughter offence was "in the highest range". I do not accept that, but insofar as a case of manslaughter by reason of substantial impairment is concerned, this is a serious example. The offence had all of the attributes of murder aside from Ms Barbieri's mental condition. I accept that it was not a planned killing but it cannot be ignored that it was the product of planning to inflict serious harm upon any unwanted intruder. The fact that the victim was a police officer performing his duty is a feature that significantly elevates the seriousness of the offence. On the other hand, Ms Barbieri was not the principal offender. Further, her mental condition was more than just enough to establish the partial defence. It operates in further mitigation of penalty by reducing her moral culpability from the high level it otherwise would be at. It also warrants moderation of the weight given to retribution, denunciation and deterrence.

89 The offence of using an offensive weapon to hinder the lawful apprehension of Mitchell Barbieri is also a serious matter. Minor injury was occasioned to Detective Caulfield but there was clearly a potential for substantial harm to be caused by swinging the sledgehammer, particularly in the direction of his head. It was only because of the ability of the officer to defend himself and eventually restrain Ms Barbieri that terrible consequences were avoided. Mental illness is relevant to the assessment of sentence for this offence in the same way as it is in relation to the manslaughter.

90 The Form 1 offence of assaulting Detective Caulfield and causing him actual bodily harm is really part and parcel of the primary offence and does not warrant any increase in the sentence. The other offence to be taken into account involves the possession of the explosive devices in the granny flat and the slingshot in the house. It is a significant offence of itself but in the context of the overall case does not warrant any increase in the sentence either.

91 The fact that Ms Barbieri is to be sentenced for two offences requires an assessment of the totality of her criminality. I have come to the view that there should be a degree of partial accumulation of the sentences to reflect the fact that there were two victims of her criminal conduct. I intend to order that the sentence for using an offensive weapon to hinder the lawful apprehension of Mitchell Barbieri commence first. As a result, there is no utility in setting a non-parole period. The fixed term I set will represent what would be the total term of the sentence (that is, not just the non-parole component).

92 Ms Barbieri has been held in custody since her arrest and so her sentence must be backdated.

93 It was submitted that there should be a finding of special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole component. This was said to arise primarily because of the need to monitor her performance in the community for a lengthy period to ensure compliance with the need to take medication and engage in therapy. There is much force in this. However I have concluded that the circumstances are not sufficiently special to warrant the imposition of a lesser non-parole period which must, of course, appropriately reflect the criminality involved in the offences. The parole period that will be allowed should be adequate to serve the purposes identified.

Personal circumstances of Mitchell Barbieri

94 Mitchell Barbieri did not give evidence in the sentence proceedings either. The major source of information that I have about him are reports by forensic psychiatrists, Dr Diamond, Dr Olav Nielssen and Dr Bruce Westmore. Some aspects of his background are apparent from my earlier review of his mother's but some repetition is unavoidable.

95 Mr Barbieri was born in 1993 and so in December 2012 he was aged 19. Like his mother, he has no previous convictions. That fact, together with his implicit prior good character, are to be taken into account in his favour.

96 Mr Barbieri was an only child and his parents separated when he was aged 9 or 10. He reported that his childhood was happy and he was not exposed to violence or other abuses. He remained in contact with his father and saw him regularly.

97 His mother formed a relationship with another man when he was about 11 or 12. He told Dr Westmore that this man used to hit his mother.

98 He was educated to Year 10 level and left school in 2009. He commenced a plumbing apprenticeship but did not complete it. He then worked with a glazier installing shower screens and in property maintenance. He had little contact with friends in the year or two leading up to the offence and he was mostly in the company of his mother.

99 Mr Barbieri told Dr Nielssen that he had no problems with alcohol. He said that he occasionally smoked cannabis; had tried ecstasy; but otherwise had no problems with illegal drugs. He gave a similar account to Dr Westmore. Dr Diamond's extensive documentary review included that in about 2010 there were regular parties held at the home at which large numbers of teenage guests would consume alcohol and cannabis. Mr Barbieri told Dr Diamond that after he had suffered a broken jaw in a football incident he lost motivation for fitness and sports and was more intent on partying, drinking and smoking cannabis. He conceded that he had "lost direction" at this time.

100 Mr Barbieri also told Dr Diamond that the machete incident occurred on 30 September 2010 and described it as a turning point in his life. It resulted in he and his mother going away for some time. They returned to find that the house had been ransacked. Their financial position declined. They were unable to maintain the house and grounds which deteriorated steadily. Eventually, he and his mother ended up living in squalor for the 12 months prior to their arrest. He said that he became socially isolated and increasingly dependent upon his mother.

101 He came to agree with his mother's beliefs and her view of the world in this period. He told Dr Diamond that he now questioned the extent of these beliefs; he was unable to understand what he had been thinking. He laughed about the subject of seeking political asylum in Russia. He agreed that it was bizarre now to look at their attempts to involve the Russian president.

102 I'll divert at this point to mention a statement by Ms Renee Moorley that was tendered in the defence case. It adds support to the history provided to the psychiatrists. Ms Moorley worked at Southern Cross Stock Feeds at Richmond and in about 2006 she came to know Fiona and Mitchell Barbieri as regular customers. (They had horses.) In about February 2008, Mitchell Barbieri became a casual employee working on weekends. Ms Moorley spoke positively of him in that context. He ceased this work at the end of 2008.

103 Ms Moorley did not see so much of them in the years that followed. When she drove past their home it looked run down. She next saw them in about mid-2011 and noticed that they had changed. Fiona Barbieri had lost a lot of weight. They spoke of people being after them. In subsequent conversations there was mention of trouble with a neighbour in which a variety of paranoid and delusional beliefs were expressed. She last saw them in mid-2012. She described her observations of how Mitchell Barbieri related to his mother in this way:

"Since their return they only talked about the dramas happening in their life. They kept bringing the same things up whereas before you could have a normal day to day conversation. While Fiona did most of the talking Mitch would butt in and support what his mother said. They were always together and wouldn't go anywhere without one another. It came across to me that Mitch saw himself as his mother's little body guard. We offered him some more work and he refused saying he had to 'look after' his mum. Mitch always seemed on edge and was always on the lookout and seemed really fidgety. It was like they didn't trust anyone ... I had the impression that they were both extremely paranoid."

104 Mr Sutherland, senior counsel for Mitchell Barbieri, referred to evidence from other sources that was consistent with Ms Moorley's observation of the protective and supportive role his client adopted in relation to his mother.

105 Mr Barbieri told Dr Diamond that when he first came to gaol he found it hard to accept that he might be psychiatrically impaired but was more able to accept it as time went on.

106 He told Dr Westmore that he had been held in a mental health unit for four or five months after going into custody. He was then on protection for six months but then in the main section of the gaol. He said that he got along well with officers and other inmates.

107 Dr Diamond's review of the Justice Health files indicated that Mr Barbieri had progressed well from a psychiatric point of view to the point that on 18 February 2013 he was considered to be free of persecutory ideation and delusional thoughts and beliefs. He had not been treated with any medication. In other words, as I understand it, his psychiatric illness had resolved naturally.

108 Dr Nielssen made the diagnoses of "delusional disorder" and "substance use disorder (cannabis)". He clarified the former as a "shared delusional disorder", namely one that was shared with his mother, the primary person who was affected. Mr Barbieri had adopted his mother's persecutory beliefs and Dr Nielssen said that at the time when he first interviewed him in June 2013 he "continued to hold those beliefs with delusional intensity". I note that this is contrary to what Dr Diamond saw in the Justice Health files, they being files that Dr Nielssen had not had access to at the time of his first report.

109 Dr Nielssen offered the opinion in his first report that Mr Barbieri would be able to raise his mental illness as a defence and would also be able to raise the partial defence of substantial impairment by abnormality of mind.

110 Dr Nielssen provided a further report last month. By this time he had seen medical records in relation to Mr Barbieri. He said they confirmed the opinions he had earlier expressed.

111 Dr Nielssen was also asked to comment upon whether Mr Barbieri had a "significant cognitive impairment" within the meaning of s 19B of the Crimes Act 1900 (NSW). (This is an issue to which I shall return.) The doctor said:

"The delusional disorder that affected Mr Barbieri at the time of the offence is a significant cognitive impairment, both in the way it affected the content of his thoughts, and also in the way it affected his capacity for calm and logical thinking. At the time of the offence his interpretation of events was affected by the delusional belief that he and his mother were in immediate danger. That perception is likely to have resulted in a high level of fear, and the emotional arousal arising from his fearful state is likely to have significantly affected his ability to consider the wrongfulness and the potential consequences of his actions in a calm and rational way."

112 Having regard to the diagnosis of schizophrenia in relation to his mother, Dr Nielssen said there was a possibility of Mr Barbieri having an inherited vulnerability to developing a psychotic illness independent of her. This is a risk that would decline over time. Abstinence from cannabis might further reduce the risk.

113 Dr Nielssen considered that Mr Barbieri's prospects of rehabilitation were good and that he had a low risk of reoffending. There was little in the way of antisocial behaviour in his past aside from the use of cannabis and the behaviour towards the neighbours. He was of normal intelligence; had a history of employment; was a polite and engaging person; and would be able to make the most of vocational training and other rehabilitation opportunities. I accept Dr Nielssen's assessment on this subject.

114 Dr Westmore's diagnoses were essentially the same as those of Dr Nielssen. He also considered that the mental illness defence could be raised. He noted that the intensity of Mr Barbieri's delusional beliefs had lessened and he expected that they would be completely resolved, which he said was the usual course a shared delusional disorder takes in the person who is the secondary sufferer.

115 Dr Diamond agreed with the diagnosis of delusional disorder but doubted the relevance of other diagnosed conditions to Mr Barbieri's state of mind at the time of the offence. He explained the effect of the delusional disorder:

"It affected his ability to differentiate reality from his delusional belief system in focal and specific ways. It meant that his perception of persecution and being a subject of multiple conspiracies influenced his day to day thinking and subjective experiences. The pervasiveness and extent of his mental illness existed in a chronic form over a long time period both before and after the alleged act. There was no acute exacerbation of illness at the time of the alleged act."

116 He did not, however, consider that a mental illness defence was available. He referred to various acts of Mr Barbieri on the afternoon of 6 December 2012 and concluded that they "demonstrated considered reasoning and decision-making to the extent that it does not lead me to support a view that [Mr Barbieri] was labouring under such a defect of reasoning from disease of the mind that he did not know the nature and quality of his act or that he did not know what he was doing was wrong".

117 Dr Diamond did, however, agree that the partial defence of substantial impairment was available in that Mr Barbieri "was suffering from an underlying condition such that his capacity to understand events, or to judge whether his actions were right or wrong, or his ability to control himself, was substantially impaired by an abnormality of mind".

118 I have mentioned the opinions about the possibility of Mitchell Barbieri being able to raise a mental illness defence or the partial defence of substantial impairment only to indicate the significance with which the doctors regarded his mental condition. By his plea of guilty to murder, of course, Mr Barbieri has abandoned any reliance upon such defences. The existence of his mental condition, and its relative seriousness, is relevant to sentence generally but also to the question of whether a mandatory life sentence must be imposed. I will come to that question shortly.

119 A handwritten letter annexed to an affidavit sworn by Mr Barbieri's solicitor was received over the objection of the Crown Prosecutor. I received it on the same basis as I did the letter from Ms Barbieri. The letter is dated 26 May 2013 and is addressed to family, friends and colleagues of Inspector Anderson. It purports to express a profound apology and genuine remorse. A copy had only recently been provided to the Crown but in the event that someone questioned the veracity of the date of the letter, the solicitor's affidavit includes that he saw it sometime in mid-2013.

120 Supporting the proposition that Mitchell Barbieri is remorseful is the first report of Dr Nielssen. It includes:

"Mr Barbieri expressed his sadness and remorse for what he had done. He said 'in a place like this [gaol] you try not to show emotion ... I wonder how on earth something like this has happened ... I get reoccurring dreams of it and I keep reliving it ... it breaks my heart'."

121 Dr Westmore asked him what his thoughts were about what he had done:

"He said 'heartbroken mate, I'm still in shock. I wake up every morning hoping it's a dream and I'm not here. (I acted) in that split second. I thought I was protecting my family and I have taken somebody away from theirs. I am confused and full of sorrow'."

122 Mitchell Barbieri's account of what happened is at odds with overwhelming evidence to the contrary. He told Dr Nielssen last year that police were coming through the back door and he intended "to push the person out and I picked up the knife ... it was an instant reflex ... a single push ... I don't know how there happened to be two wounds". He said, "I pushed the officer out the door and the other police came in and grabbed me with the knife in my hand and asked me to drop it".

123 He added to this account in what he told Dr Westmore in February this year. Dr Westmore wrote:

"He said he then heard a 'massive bang on the outside of the house'. He said he grabbed 'something' at that particular point and he turned and saw someone had come into the house. He said 'all I could see was dark clothing but, in hindsight, it was (a police officer)'. He acknowledged that the man who entered his mother's house had been wearing a police uniform, but he stated he only realised that later.

He continued and said 'all I could see was this firearm'. He said he ran towards the man, who had entered his mother's house and he tried to push him out the door. He said he then stopped pushing the man and the man stumbled backwards. Mr Barbieri said he could see at that particular time that the man was a police officer and that he appeared to be 'hurt'. Mr Barbieri said he then took a few steps back into the house and he 'froze' and he saw that he was holding a knife.

Following the incident, he said other police gained entry into the house and he and his mother were arrested."

124 In October 2014 he told Dr Diamond that after some conversation with the officers at the front of the house he thought that the police had left. Some 30 minutes or more later, when he was in the hallway, half way between the front and back doors, he heard a "big bang that shook the house". This was "completely out of the blue"; "he had not expected police to return because there was no ongoing problem". Dr Diamond reported:

"His next recall was that he says he saw a man in dark clothing with an unholstered firearm in his hand. He could see the firearm from the light where the door was breached. He said he didn't hear the man say anything. He said it happened so fast. He said all he could remember was trying to throw this man out of his house. I asked him why he thought it was necessary to do that. He said it was because he saw a man with a firearm pointed at him. He said it was instinct. He said he was scared and he panicked.

I asked him why he had a knife in his hand. He indicated that he was not aware of holding the knife in his hand. ...

He said he lunged at the man and there was a brief struggle for only a second. He implied that he was unaware that he had the knife in his hand at the time. He said he realised then that the man was a police officer. He said he looked down and he was shocked to realise he was holding the knife. He said he froze.

He said two police ran in and took hold of him and dragged him out of the house."

125 The letter Mr Barbieri wrote in mid-2013 conveys his apology and regret for the harm caused. But it does not convey any credible acceptance of responsibility. Indeed, it includes "I never wished for anybody to get hurt"; whereas he now admits by his plea that he intended to inflict really serious bodily harm upon Inspector Anderson. Perhaps he meant by that claim that he did not have such an intention in advance of the events. But in the absence of him giving evidence to explain himself I am not prepared to divine some benevolent interpretation for him.

126 It was submitted that the plea of guilty was the "most powerful of objective indicators of remorse". But the plea was only forthcoming after the Crown indicated that it would be conceding that the mandatory life sentence provision did not apply. This does not support a finding of remorse.

127 In the end, I am not persuaded that Mr Barbieri has accepted responsibility for his actions. As in the case of his mother, I am prepared to accept that he might now regret what happened and is probably sorry for the harm that was caused on 6 December 2012 but I am not persuaded that he is genuinely remorseful.

128 Mitchell Barbieri entered his plea of guilty on the day his trial was due to commence. It was submitted that this was "the effective earliest practical opportunity". However, what is required is an objective assessment of the utilitarian value of the plea. Three eye-witnesses were required to be cross-examined during committal proceedings and the two ambulance officers were cross-examined at the sentence hearing. The lateness of the plea and the slight dilution of the utilitarian benefit leads me to conclude that the reduction of sentence on account of the plea should be about 10 per cent.

Did Mitchell Barbieri have an intention to kill?

129 The Crown contends that Mitchell Barbieri intended to kill Inspector Anderson. Generally speaking, having an intention to kill renders a crime of murder more serious than when an offender intends to inflict grievous bodily harm, or acts with a reckless indifference to the probability of death occurring. On the other hand, Mitchell Barbieri contends that I should find that his intention was to inflict grievous bodily harm.

130 Mr Sutherland's submissions included that the offender's mental condition impaired or reduced his ability to form a specific intention. But if he had the capacity to form an intention to inflict grievous bodily harm, he would just as well have had the capacity to form an intention to kill.

131 It was also submitted that the incident happened quickly and the stabbing was random, haphazard and reckless as to the location of the wounds and not consistent with a purposeful and intentional selection of target.

132 I am satisfied that the intention of Mitchell Barbieri was to kill Inspector Anderson. Of all the weapons he could have taken up, he chose the one most capable of inflicting lethal injury. Anyone who had held that knife, as Mr Barbieri had done, would readily appreciate the harm it could cause. The fatal stab must have been inflicted with significant force. And both of the stabs were to obviously vulnerable areas of the body. It is beyond belief that the stabbing could have been carried out with some lesser intention. No recourse is needed to the interpretation of statements made by the offender after the event.

Is Mitchell Barbieri liable to a mandatory sentence of life imprisonment?

133 Section 19B of the Crimes Act provides, relevantly, as follows:

19B Mandatory life sentences for murder of police officers

(1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed:

(a) while the police officer was executing his or her duty, or

(b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty,

and if the person convicted of the murder:

(c) knew or ought reasonably to have known that the person killed was a police officer, and

(d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers. ...

(3) This section does not apply to a person convicted of murder:

(a) if the person was under the age of 18 years at the time the murder was committed, or

(b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment). ...

134 The Crown concedes that the section is not engaged because Mitchell Barbieri "had a significant cognitive impairment" at the time of the offence: s 19B(3)(b). Unsurprisingly, Mitchell Barbieri endorses that concession. However, Parliament has dictated that such a sentence must be imposed if the conditions mentioned in s 19(1) are established and the matters in s 19(3) do not apply. That is a matter that I must decide, not the parties.

135 In R v Jacobs (No 9) [2013] NSWSC 1470, it was said by Button J (at [49]) that the matters in s 19B(3), which he described as disengaging the application of the section, needed to be established on the balance of probabilities by the offender. I do not understand the issue to have been contentious in that case. I have heard submissions on the subject; in effect, counsel agree with a tentative view I expressed during the sentence hearing. With respect to Button J, having regard to the ramifications of the section being applied, I think the better view is that it is for the Crown to establish beyond reasonable doubt that the matters in s 19B(1) apply and the matters in s 19B(3) do not apply.

136 The precise meaning of "significant cognitive impairment" is not entirely clear. Parliament did not provide any explanation of what it meant by the term. When the Crimes Amendment (Murder of Police Officers) Bill 2011 was introduced, the then Minister for Police simply indicated that "the decision on whether a cognitive impairment is significant would be a matter for the courts to determine".

137 A dictionary definition of the word "significant" is that the subject matter must be "important" or "of consequence". In s 61H of the Crimes Act the term "cognitive impairment" is defined. If that definition was to be applied to s 19B, I would have to conclude that Mitchell Barbieri was not cognitively impaired. However, that definition is for a particular purpose and is inapplicable to s 19B.

138 Given this issue was not contentious as between the parties, it is unnecessary for me to provide reasons beyond saying that I am persuaded by the Crown's submissions (namely, paragraphs [11]-[16], particularly [15], of the written submissions, a copy of which will be held on the Court file) that there is a reasonable possibility that Mitchell Barbieri had a significant cognitive impairment at the time he killed Inspector Anderson.

139 What that means is that Mr Barbieri's mental condition has been taken into account in deciding that he should not receive the mandatory sentence of life imprisonment. Can his mental condition have any further mitigating value in the assessment of sentence? Counsel for both the offender and the Crown contended that it can. It was their position that the removal of the requirement to impose a life sentence simply meant that I should proceed to exercise the sentencing discretion in the usual way, including taking into account the offender's mental condition.

140 As a matter of statutory construction I have come to the view that the position of the parties should be accepted. Parliament has indicated in s 19B that if certain conditions are met, the sentencing discretion is completely abrogated in the case of the murder of a police officer. It did not indicate, either expressly or by necessary implication, that if the section does not apply there is any constraint upon the exercise of the sentencing discretion in the usual manner.

141 Often when an offender is suffering from mental ill-health a court will find that his or her moral culpability is reduced where the condition contributes to the commission of the offence. Less weight might be given to the need for general deterrence because they are inappropriate people to make an example of to others. A custodial sentence might weigh more heavily upon such a person. There may be a reduced need for personal deterrence.

142 I am prepared to accept that Mr Barbieri's moral culpability is less than it otherwise would be on account of his mental condition but not to any substantial degree. Because the nature of his condition was one that was secondary to that of his mother and he seems to have overcome it with the enforced separation from her, I cannot see any need to lessen the weight I give to general deterrence which is such an important feature of sentencing in a case like this. Personal deterrence is not a matter that looms large. Finally, there is no evidence that a custodial sentence will weigh more heavily upon him. I will, however, take into account that he did endure a period of restrictive custody on protection in the early stage of his period on remand.

143 There is a further aspect relating to Mr Barbieri's mental condition that should be taken into account in mitigation. He was a young man of 19 years of age at the time of the offence. He was aged around 17 when he started to adopt the delusional beliefs of his mother. The reason he did so was obviously because of their close relationship and increasing social isolation. But I accept that it was also partly due to his relative immaturity which made him less equipped to recognise his mother's condition and deal with it in an appropriate way. I do not find that the immaturity of youth was a material factor in the events of 6 December 2012; but I accept that the offender's significant cognitive impairment was. The fact that it arose in the circumstances I have just mentioned calls for some measure of understanding in his favour.

Other matters relevant to the assessment of sentence for the offence of murder

144 Twelve years ago, Spigelman CJ wrote about the seriousness of crimes involving assaults upon police officers:

"Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police. ... [S]ignificant risks are run by police officers throughout the State in the normal execution of their duties. The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases." (Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515; 137 A Crim R 196 at [22],[26])

145 Those observations are equally apt in cases involving the killing of a police officer. Two years later, his Honour said in relation to that category of case:

"The courts will, and do, give great weight to the protection of members of the police force by reason of the fact that in the course of their duties, they are called upon to place themselves in danger and do so for the benefit of the community at large. That is why the courts have always accepted that the fact that the victim was a police officer is a substantially aggravating factor." (R v Penisini [2004] NSWCCA 339 at [20]).

146 Despite my acceptance of the Crown's concession that the mandatory sentence of life imprisonment does not apply in this case, there remains s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be considered. It provides:

"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."

147 On the basis that this case does not display features such as premeditation and planning, multiple victims, contract killing, or torture and gratuitous violence that tend to characterise cases that do attract life sentences, the Crown conceded that a life sentence was not warranted under s 61 either. That is a significant concession. Having regard to the fact that it was made by the State's most senior Crown Prosecutor it carries important weight. I have carefully considered this issue. In the end, I am persuaded that I should act upon the concession. However, I am also persuaded that even taking into account Mr Barbieri's reduced moral culpability, a lengthy sentence is required. That is particularly so because of the requirements of retribution, denunciation and punishment, to recognise the harm caused, and the need to send a clear message of general deterrence.

148 The Crown submitted that Mitchell Barbieri's offence fell within the middle of the range of objective seriousness for the murder of a police officer and so the standard non-parole period of 25 years prescribed for such an offence provided an important guidepost. However, there is no such offence as "murder of a police officer". The offence is murder and its objective seriousness should be determined as such.

149 There is no doubt that Mr Barbieri knew that Inspector Anderson was a police officer endeavouring to perform his duty. He plunged a hunting knife deep into the officer's chest causing virtually immediate death. In doing so, he acted with an intention to kill him. Whilst there was no premeditation, a violent response was something the offender was certainly prepared for. I consider that the offence is above the middle of the range of objective seriousness.

150 The important guideposts provided by Parliament of a maximum penalty of imprisonment for life and a standard non-parole period of 25 years have to be taken into account along with all of the other relevant facts and circumstances. Neither have such significance that they alone determine the sentence. Aside from the objective seriousness of the offence, I have earlier mentioned other matters that are relevant, such as the offender's reduced moral culpability on account of his mental condition.

151 The four offences listed on the Form 1 document are to be taken into account when Mr Barbieri is sentenced. Normally this calls for greater emphasis to be given to retribution and personal deterrence. However, they are relatively minor matters and the sentence I will impose will already factor in an appropriate recognition of those matters.

152 I propose to backdate the sentence in order to take into account that Mr Barbieri has been in custody since his arrest.

153 Mr Sutherland submitted that there should be a finding of special circumstances. However, the features he identified were all matters relevant to the assessment of the overall sentence and I am conscious of the need avoid double counting.

SENTENCE

Fiona Barbieri

154 Convicted

155 For the offence of using an offensive weapon with intent to hinder the lawful apprehension of Mitchell Barbieri, and taking into account two other offences, sentenced to imprisonment for 4 years 6 months. I decline to set a non-parole period. The sentence will date from 6 December 2012. The sentence will expire on 5 June 2017.

156 That 4 year 6 month sentence would have been one of 5 years if not for the plea of guilty.

157 For the manslaughter of Detective Inspector Bryson Anderson, sentenced to imprisonment comprising a non-parole period of 6 years 6 months with the balance of the term of the sentence being 2 years 6 months. The sentence will date from 6 December 2013. The non-parole period will expire on 5 June 2020 and the total term will expire on 5 December 2022.

158 That is a sentence of 9 years. If not for the plea of guilty, it would have been a sentence of 10 years.

159 The overall sentence then is one of 10 years with a minimum custodial component of 7 years 6 months.

Mitchell Barbieri

160 Convicted.

161 For the offence of murdering Detective Inspector Bryson Anderson, and taking into account four other offences, sentenced to imprisonment comprising a non-parole period of 26 years with the balance of the term of the sentence being 9 years. The sentence will date from 6 December 2012. The non-parole period will expire on 5 December 2038 and the total term will expire on 5 December 2047.

162 That is a total sentence of 35 years. If not for the plea of guilty, it would have been a sentence of 38 years.

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Decision last updated: 18 December 2014