R v Spania [2009] NSWSC 148

R v Spania [2009] NSWSC 148

The offender deliberately fired a loaded pistol at the deceased's torso and was proved beyond reasonable doubt to have intended to cause grievous bodily harm, making the murder serious, although a little below the mid-range after taking into account lack of premeditation, a degree of provocation, background, disability, limited mitigation from the late guilty plea and some evidence of remorse. The presence of the deceased's five-year-old child seriously aggravated the offence. The offender's disability affected the overall sentence but did not justify altering the usual proportion between the non-parole period and the balance of sentence. The firearms offences were inextricably bound up...

Jurisdiction
Australia
Judgment Date
13 March 2009
Procedural Posture
Criminal Sentencing / Remarks on Sentence After Plea of Guilty
Outcome
The offender was sentenced to imprisonment for murder and concurrent imprisonment terms for firearms offences.
Legal Topics
['murder' 'firearms Offences' 'non Parole Period' 'plea of Guilty' 'provocation' 'aggravating and Mitigating Factors']
['criminal Law' 'sentencing'] ['murder' 'firearms Offences' 'non Parole Period' 'plea of Guilty' 'provocation' 'aggravating and Mitigating Factors']

Case Brief

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Procedural Posture

Criminal Sentencing / Remarks on Sentence After Plea of Guilty

Legal Issues

  1. 1 ["What sentence should be imposed for the offender's murder of Tony Barkho." 'Whether the offender intended to kill the deceased or intended to do grievous bodily harm.' 'What aggravating and mitigating factors affected the seriousness of the murder.' "Whether the offender's disability justified increasing the proportion of the sentence available for parole." 'How the further firearms offences taken into account under s 32 Crimes (Sentencing Procedure) Act 1999 should be dealt with.']

Ratio Decidendi

The offender deliberately fired a loaded pistol at the deceased's torso and was proved beyond reasonable doubt to have intended to cause grievous bodily harm, making the murder serious, although a little below the mid-range after taking into account lack of premeditation, a degree of provocation, background, disability, limited mitigation from the late guilty plea and some evidence of remorse. The presence of the deceased's five-year-old child seriously aggravated the offence. The offender's disability affected the overall sentence but did not justify altering the usual proportion between the non-parole period and the balance of sentence. The firearms offences were inextricably bound up...

Court Disposition

The offender was sentenced to imprisonment for murder and concurrent imprisonment terms for firearms offences.

Orders

  • ['For the murder of Tony Barkho, the offender is sentenced to imprisonment for a non-parole period of 18 years, taken to have commenced on 26 September 2007 and to expire on 25 September 2025.' 'The balance of sentence for murder is 6 years, expiring on 25 September 2031, with the first day of eligibility for...