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Queensland Court of Criminal Appeal
McPherson J, Ryan J and Moynihan J
17th September, 1990. No 221 of 1990 (Unreported)
Casenote by Jason Behrendt
David Jason Barry was a 17 year old Aboriginal man from Palm Island who was dying of AIDS. On the 25th of July, 1990, he appeared in Townsville District Court, before Judge Wylie, charged with wilful exposure, two charges of assaulting police while acting in the execution of their duty, wilful damage to property and break and enter. He pleaded guilty to all charges at the first possible stage and expressed remorse for what he had done, claiming that the offences were committed whilst intoxicated and in a period of severe depression. He had no previous convictions.
The first assault was an unfortunate incident which involved the rubbing of excrement into the face of a police officer for which he was sentenced to two and a half years in prison. The second assault involved spitting at another police officer for which he received two years. For wilful exposure he was sentenced to 12 months. The charge of wilful damage was for damaging a wire grill at Palm Island Watch House for which he was sentenced to 12 months imprisonment. All sentences were to be served concurrently. The final charge of break and enter was for stealing meat from the local butcher, whilst on bail, for which Wylie J gave him four months in prison, cumulative on the previous sentences. David Barry was sentenced to nearly three years in prison when he was only expected to live for two.
In sentencing, Wylie J referred to a "trend" of actual or threatened infliction of AIDS in the commission of criminal offences. He felt it was his duty to mark the community's disapproval and provide a deterrent, which outweighed the personal circumstances of the defendant. There was no evidence submitted of any such "trend".
The Solicitor for David Barry, Mr Peter Kilduff, sought leave to appeal against the severity of the sentence on the basis that Wylie J paid insufficient regard to mitigating factors. This included his refusal of a request, from both the Crown and the accused, for a pre-sentence report.
The imposition of a cumulative sentence was also argued to be unnecessarily harsh. Despite the emphasis placed on the risk to the police officers, there was no evidence submitted to suggest that they were at any risk at all. No evidence of the possible consequence of the police officer contracting the HIV virus was presented to the Court, yet the Judge relied upon that consequence as a matter relevant to punishment.
David Barry was diagnosed as being HIV+ at the age of 16. He went through a period of alcoholism, lack of self confidence and low self-esteem. He had difficulty in expressing his feelings and because of his illness he distanced himself from his friends which led to loneliness and poor compliance with medication. He was later able to overcome these problems through counselling and by being in an alcohol free environment. His family had hoped for him to be able to see out his illness at home where he was more comfortable with his condition.
There were fears from medical practitioners and health workers that his mental and physical health would deteriorate if he was placed in prison. He was in the later stages of the AIDS virus and it was likely that he would not live for longer than two years.
In the application for appeal, on 17 September 1990, there was still a great deal of emphasis placed on the fact that the police officer would have to have six AIDS tests over the next four and a half years. Although David Barry's illness was used to emphasise the seriousness of the offences, the fact that he was likely to die from the same disease within two years, was overlooked as a mitigating factor in sentencing. McPherson J, with whom Ryan and Moynihan JJ agreed, referred to David Barry's condition with callous brevity:
"We understand that he has also been informed at the beginning of 1990 that he had the HIV condition and that he will die from it. He is a person of low intelligence' (p.3)
In relation to the cumulative sentence, McPherson noted that:
"His honour was justified in making the sentence of four months' imprisonment imposed in respect of that offence cumulative on the sentences imposed in respect of the first indictment because it was committed while on bail and of course, it was an offence quite distinct from the others". (p.3)
McPherson J went on to give further justification for the sentence delivered:
"His honour did give a `discount' of six months thereby taking into account, no doubt, both the applicants age and his record of no previous conviction. " (p.4)
The application for leave to appeal against the severity of the sentence was refused.
The lack of consideration for David Barry's condition is inconsistent with the recent trend of the Australian courts, in sentencing people suffering from AIDS. King CJ in R v Smith (1987) 44 SASR 587 states:
"Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health. "
The principle has been applied by the High Court in Bailey v Director of Public Prosecutions (1988) 78ALR 116 and in the NSW Court of Criminal Appeal in Norbury Colin McDonald (1988) 38 A Crim R 470. The imprisonment of David Barry also disregards the spirit of the Royal Commission into Aboriginal Deaths in Custody: Interim Report in which Commissioner Muirhead recommended:
"There is, I consider, a responsibility on those Governments which have not already done so to immediately legislate to enforce the principle that imprisonment is truly treated as a last resort. This will do something to ensure that those who sentence, truly seek alternatives and more appropriate measures; the relevant statutes will require them to do so and the Courts of Appeal will no doubt monitor the situation."[1]
Unfortunately, for David Barry it appears that Commissioner Muirhead placed too much responsibility on the Courts of Appeal to "monitor the situation". David Barry was imprisoned at Lotus Glen Prison near Mareeba, over 350km from his home and family on Palm Island.
David Barry's solicitor sought a pardon on compassionate grounds. The application contained an opinion from David Barry's Doctor, Dr William Park, on the effect that prison would have on his health:
"I fear that his mental and physical well being will deteriorate if he remains there. He has full blown AIDS and he may die in the next two years whether he is in gaol or not but I would expect the loneliness of his separation from his family and the Aboriginal Community will hasten the progression of the disease.
The predicament he found himself in at the time of the assault resolved with him seeking help at PIADRAC (Palm Island Alcohol and Drug Rehabilitation Aboriginal Corporation) and developing a new rapport with his mother; such that I could anticipate him returning to the community without similar problems arising."
This was supported by health worker and AIDS expert, Gracelyn Smallwood who stated:
"the depression he is going through will contribute to the deterioration of his condition. My concern is that he will inevitably take his own life, once his body begins to deteriorate with the reduction of his immune response."
The Governor of Queensland, Sir Walter Campbell Q.C., passed on David Barry's application to the Attorney-General Dean Wells who sought an opinion from the Queensland Government Solicitor. The Government Solicitor advised against the pardon and the Attorney-General, who was in a position to either accept or reject that recommendation, sought an opinion from the Minister for Justice, Glen Milliner, in relation to paroling David Barry. The Minister was still considering that application when, on January 12, 1991, David Jason Barry was found dead in his cell. He had committed suicide. He died 8 days short of his eighteenth birthday.
The judicial system and the Queensland Government had effectively given David Barry a death sentence. His death is a sad indictment on a Government which recently transferred two former National Party Ministers to half way houses, one of whom, despite being convicted of 25 corruption related charges, had served just 21 days of his two and a half year sentence.
[1] Muirhead, J. H., Royal Commission into Aboriginal Deaths in Custody: Interim Report, 1988, AGPS, p.18.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/23.html