Barfoot v The Queen
[2011] VSCA 282
•28 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0104 |
| BRENDAN BARFOOT |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN and MANDIE JJA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 September 2011 | |
DATE OF JUDGMENT/ORDER: | 28 September 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 282 | |
JUDGMENT APPEALED FROM: | R v Barfoot (Unreported County Court of Victoria, Judge Gucciardo 15 April 2010) | |
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CRIMINAL LAW – Sentence – Offences of violence – Totality – Discrete offences committed over a short period of time – Cumulation warranted – Sentence of 12 months’ imprisonment for a count of theft of drinks valued at $250 manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | Doogue & O’Brien |
| For the Respondent | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of intentionally causing injury (count 1), one count of attempted armed robbery (count 2), one count of intentionally causing serious injury (count 3), one count of armed robbery (count 4), one count of theft (count 5), one count of reckless conduct endangering persons (count 6) and one count of arson (count 7).
A plea was conducted and the appellant was sentenced to be imprisoned for a term of two years on count 1, for a term of four years on count 2, for a term of seven years on count 3, for a term of six years on count 4, for a term of one year on count 5, for a term of three years on count 6 and for a term of three years on count 7. With a measure of cumulation, a total effective sentence of ten years’ imprisonment was imposed upon the appellant and a minimum term of seven years’ imprisonment was fixed before the appellant was to be eligible for parole.
The offences took place over a period of approximately one hour. The appellant and his brother went to a house in Endeavour Hills. The offenders were loud and aggressive and obviously affected by alcohol and, it seems, drugs. The appellant argued with Mark McCullagh and punched McCullagh in the face, causing laceration and bruising. McCullagh ran from the house pursued by the appellant. The appellant caught McCullagh and slammed his head onto a concrete driveway (count 1).
The appellant and his brother went to a nearby street and approached a car occupied by a Mr Lariccia. The offenders threw a brick through the car’s front windscreen, which landed on the passenger seat. The appellant and his brother then tried to forcibly remove Mr Lariccia from the car. They threw objects at the car. Mr Lariccia was able to drive away (count 2).
Mr Wheeler came out of his house after hearing the noises generated by the assault upon Mr Lariccia’s car. He asked the appellant to quieten down and then returned inside. The offending against Mr Lariccia continued and Mr Wheeler went back outside. He warned the appellant that the police may come. The appellant said that he was not scared of the police and did not care if they came. As the appellant and Mr Wheeler were speaking, the appellant’s brother removed a large piece of timber from the front yard of a nearby house, walked up to Mr Wheeler and hit him on the head a number of times. The appellant then kicked Mr Wheeler while he was on the ground and stomped on his head a number of times while he lay unconscious in the gutter. Mr Wheeler had offered no provocation and did not resist (count 3).
Mr Wheeler sustained brain injury and fractures to a cheek bone, a temporal bone and his spine. He was in a coma when he was taken to hospital. He spent three weeks in hospital and one month in rehabilitation. He has lost the hearing in one ear and has a broken nerve at the front of his face, causing a palsy. His body is weak and his balance affected. He has been unable to follow his trade as a plasterer.
The appellant and his brother approached a car that was parked in the same street. Mrs Resanovic was standing at the open driver’s side door. Her 14 year old son was in the rear of the car. The appellant’s brother pulled Mrs Resanovic away from the car and got into the driver’s seat. The appellant, armed with a broken bottle, shoved Mrs Resanovic away from the car and got into the passenger’s seat. Mrs Resanovic pleaded with them not to drive off with her son, but they ignored her. Mrs Resanovic’s son was able to jump from the moving car (count 4).
The appellant and his brother drove to Narre Warren North. They entered a Liquorland store, where the appellant’s brother stole a boxed slab of soft drinks and liquor. The approximate value of the items stolen was $250. The appellant waited in the car (count 5).
The appellant’s brother drove the car to Cranbourne North, with the appellant in the passenger seat. The appellant’s brother drove the car recklessly, at times on the wrong side of the road. They pursued a car driven by a Mr Smith, threw a can of drink at Mr Smith’s car and rammed his car some ten times. Mr Smith’s car spun out of control and mounted the footpath. Mr Smith abandoned his car and ran off. A young child walking on the side of the road was almost struck by Mr Smith’s car (count 6).
The brothers drove the stolen car to a construction site and set it alight, destroying it completely (count 7).
The appellant was arrested the next day. He said that he could not recall being in Endeavour Hills. He said that he had been drinking and ‘would have had speed’ and other drugs. It appears that the offending was the climax of a three week drug and alcohol fuelled binge.
The appellant is now 29 years’ old. The appellant was raised in a family where violence and substance abuse were common. The appellant has little knowledge of his father. His stepfather separated from the appellant’s mother, a heroin user, when the appellant was aged ten years. At the age of 14 years he commenced to use alcohol and cannabis. Later he used amphetamine. He also gambled heavily. The appellant left school after year 8 and worked consistently until 2005 as a house painter. He bought a house.
The appellant had a son with a woman from whom he separated. He had lived with another woman for two years at the time he was sentenced.
In 2005 the appellant’s life spiralled out of control. He began using amphetamine and gambling heavily. He lost contact with his son, lost his house and embarked upon week-long binges.
A report by a psychologist was tendered in the course of the plea. The psychologist was of the opinion that the appellant was of sound intellectual ability but diagnosed him as suffering from a physiological dependence upon drugs. The psychologist reported that fear of a lengthy sentence ‘has created an appreciation of the seriousness of his deterioration and the bleakness of his future if he does not successfully address his problems.’ The psychologist reported that the appellant had severe levels of anxiety, depression and stress.
Victim impact statements from the victims of the offences disclose that they have suffered mentally, physically and financially as a result of the appellant’s offending.
The appellant had 27 prior convictions from three court appearances, including convictions for traffic offences, drug offences, offences of dishonesty and offences of violence. In committing the offences the subject matter of this appeal the appellant breached a community based order imposed four months earlier for a series of offences that resembled, though were less serious than, the offences now in question. The appellant was sentenced to be imprisoned for 40 days as a result of breaching the order.
The first ground of the appeal is that the sentence imposed upon the appellant breached the principle of totality.
The sentencing judge cumulated part of each of the other sentences on the base sentence of seven years. Although he conceded that there were discrete offences, counsel for the appellant submitted that the offending was so closely related in time that it could be considered as a single course of conduct. Counsel contended that the level of cumulation fixed by the sentencing judge led to a breach of the principle of totality, resulting in a crushing sentence.
While the offences were committed over a short period of time, there were seven separate incidents against different victims at four different locations. I consider that the cumulation fixed by the sentencing judge appropriately reflected the overall gravity of the appellant’s actions, which were a repetition of a rampage that took place not long before. The victims suffered gratuitously violent and brazen attacks, which were completely unprovoked and, in the case of at least Mr Wheeler, led to grave permanent effects. General and personal deterrence and denunciation are important sentencing considerations in this case.
The sentencing judge was alive to the deprivation inherent in the appellant’s upbringing and the role which drugs played in the offending. He also took into account the early pleas of guilty, the appellant’s co-operation with the police, his age, his good work history and his psychological ailments. In my opinion, those factors were appropriately reflected in the sentence imposed upon the appellant. The cumulative sentences did not produce a result which in my view could be properly described as crushing or as offending the principle of totality.
The second ground of the appeal is that the total effective sentence, the sentence imposed on count 5 and the non-parole period are manifestly excessive.
Insofar as the ground relates to the total effective sentence, it amounted to a reiteration of the matters advanced in respect of the contention that the sentence infringed the principle of totality. In my opinion, however, for the reasons I have stated, I consider that the sentence was one which was within the range of a sound discretionary judgment. The appellant’s record of like offending meant that the rampage could not be considered as an event without precedent.
The sentence imposed on count 5, on the other hand, is one which is out of all proportion to the gravity of the offence and is hardy likely to have been imposed if it had been dealt with in isolation from the other offences.
I regard the sentences imposed on the counts other than count 5 and the orders for cumulation in respect of these counts as appropriate. Accordingly, I would allow the appeal for the purpose of setting aside the sentence passed on count 5 and substituting therefore a sentence of three months’ imprisonment, which I would direct be served concurrently with the other sentences, producing a total effective sentence of nine years and nine months. I would order that the appellant serve a period of six years and nine months before he is to be eligible for parole.
MANDIE JA:
I agree with Buchanan JA.
WHELAN AJA:
I agree with Buchanan JA.
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