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Barbat v The Queen

Barbat v The Queen

Case [2014] VSCA 202 4 September 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0038
BRETT BARBAT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2014
DATE OF JUDGMENT:	4 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 202
JUDGMENT APPEALED FROM:	DPP v Barbat [2014] VCC 42 (Judge Sexton)

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CRIMINAL LAW – Application for leave to appeal against sentence – Appeal – Totality – Cumulation of sentences – Appellant sentenced as serious offender under s 6E of Sentencing Act 1991 – Manifest excess – Appellant resentenced – Form of sentence – Date of commencement of sentence.
Sentencing Act 1991, s 6E.
R v Jennings [1999] 1 VR 352.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N D Kaddeche	Pica Criminal Lawyers
For the Crown	Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Offences and sentences

On 11 October 2012, in the course of a single episode, Brett Barbat (for convenience, ‘the appellant’) committed three indictable offences and a summary offence. The offences involved a former female partner. On 5 February 2014, having pleaded guilty to those offences before a judge of the County Court, he was sentenced. The offences committed, and the individual sentences imposed, were as follows:

Charge 1                   -     indecent assault      -     six months’ imprisonment
Charge 2                   -     indecent assault      -     eight months’ imprisonment
Charge 3                   -     indecent assault      -     one year, ten months’ imprisonment
Summary offence     -     dangerous driving   -     ten months’ imprisonment

The judge cumulated all of the sentences imposed on charge 2 and for the summary offence on the sentence imposed on charge 3, which was treated as the base sentence. The total effective sentence was thus three years and four months’ imprisonment. The judge fixed a non-parole period of two years’ imprisonment.

The total effective sentence and the non-parole period corresponded almost completely with the high end of the range proposed by the prosecutor. At the time, the approach commended by R vMacNeil-Brown[1] had not been supplanted by the High Court’s decision in Barbaro v The Queen.[2]
[1](2008) 20 VR 677.
[2](2014) 305 ALR 323.

The appellant sought leave to appeal against sentence on eight grounds. It is only necessary to set out two of them:

7. The sentencing judge erred in failing properly to apply the sentencing principle of totality in that the judge ordered full cumulation in respect of sentence imposed on charge 2 and the summary charge of dangerous driving.
8. The learned sentencing judge erred by imposing individual sentences, a total effective sentence and a non-parole period that were all manifestly excessive in the circumstances.

Appeal

On 2 May 2014, Neave JA granted the appellant leave to appeal on ground 7, but refused leave to appeal on all other grounds.

The appellant has elected to renew his application for leave to appeal on ground 8. He pursues his appeal on ground 7 and, if leave be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barbat v The Queen

Details

AGLC: Barbat v The Queen [2014] VSCA 202
Case: [2014] VSCA 202
Decision Date: 4 September 2014

CaseChat Overview and Summary

The appellant, Barbat, brought an appeal against his sentence, seeking leave to appeal to the Court of Appeal. The dispute centred on the total sentence imposed on Barbat, as well as the form and commencement date of the sentence. The case was heard in the Court of Appeal. Barbat argued that the original sentence imposed was manifestly excessive and that the cumulative effect of the sentences imposed should be reconsidered. The court was required to determine whether the sentence was manifestly excessive and whether it should be resentenced. The court also had to consider the form of the sentence and the date from which the sentence should commence.

The court examined the legal principles governing the totality of sentences and the cumulation of sentences, with reference to section 6E of the Sentencing Act 1991. The court noted that Barbat had been sentenced as a serious offender, which had a significant impact on the overall sentence. The court found that the original sentence was indeed manifestly excessive and that it should be resentenced. The court also considered the form of the sentence and determined that the sentence should commence from a specific date. The court found in favour of the appellant and ordered a resentencing and a specific commencement date for the sentence.

Orders