Barnett v The King - [2024] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0201

ARIE BARNETT	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	20 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 100
JUDGMENT APPEALED FROM:	DPP v Barnett [2023] VCC 305 (Judge Gaynor)

APPLICATION TO EXTEND TIME WITHIN WHICH AN APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE MAY BE FILED DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Application for extension of time – Firearm, driving and drug offences – Applicant with extensive criminal history – Applicant disqualified from driving – Applicant subject to a firearm prohibition order – Total effective sentence of 5 years and 11 months’ imprisonment – Whether judge failed to have regard to principle of totality – Application for extension of time in which to file application for leave to appeal against sentence refused.

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Counsel
Applicant:		Ms E Clark
Respondent:		Mr J O’Connor
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 19 September 2022 the applicant pleaded guilty on indictment to six firearm, driving and drug offences as well as pleaded guilty to related summary offences. Following a further plea on 10 February 2023, the applicant was sentenced on 28 February 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Possess a firearm contrary to a firearm prohibition order	10 years’ imprisonment	2 years’ imprisonment	5 months
2	Prohibited person possess firearm	1200 penalty units / 10 years’ imprisonment	2 years and 6 months’ imprisonment	Base
3	Prohibited person possess an imitation firearm	1200 penalty units / 10 years’ imprisonment	6 months’ imprisonment	2 months
4	Storing a firearm in an insecure manner whilst unlicenced	240 penalty units / 4 years’ imprisonment	1 year’s imprisonment	2 months
5	Dangerous driving while pursued by police	3 years’ imprisonment	2 years’ imprisonment	1 year
6	Trafficking in a drug of dependence	15 years’ imprisonment	2 years’ imprisonment	1 year
Related Summary Offences
7	Possess cartridge ammunition	40 penalty units	$100 fine	N/A
24	Drive whilst disqualified	240 penalty units / 2 years’ imprisonment	2 months’ imprisonment	1 month
41	Fail to stop motor vehicle on police request	120 penalty units / 1 years’ imprisonment (subsequent offence)	9 months’ imprisonment	1 month
42	Deal with property suspected of being proceeds of crime	2 years’ imprisonment	6 months’ imprisonment	2 months
43	Enter private place without authorisation or excuse	25 penalty units / 6 months’ imprisonment	2 months’ imprisonment	2 months
44	Possess controlled weapon without lawful excuse	120 penalty units / 1 years’ imprisonment	2 months’ imprisonment	2 months
Total Effective Sentence:		5 years and 11 months’ imprisonment
Non-Parole Period:		3 years and 6 months
Pre-sentence Detention Declared:		538 days
Section 6AAA Statement:		6 years and 6 months’ imprisonment with a non-parole period of 4 years and 10 months
Other…

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 Barnett v The King

Details

AGLC: Barnett v The King [2024] VSCA 100
Case: [2024] VSCA 100
Decision Date: 20 May 2024

CaseChat Overview and Summary

The case of Barnett v The King involved the appellant, who had a significant criminal history, appealing against his sentence. The appellant had been found guilty of various firearm, driving, and drug-related offences. He was already disqualified from driving and subject to a firearm prohibition order when the offences were committed. The primary issue before the court was whether the trial judge had failed to consider the principle of totality in sentencing the appellant, who received a total effective sentence of five years and eleven months' imprisonment. Additionally, the appellant sought an extension of time to file an application for leave to appeal against the sentence.

The court examined the sentencing principles and whether the trial judge had appropriately applied them. The appellant argued that the judge failed to adequately consider the principle of totality, which requires that the totality of the sentence should not be disproportionate to the overall seriousness of the offending. However, the court found that the trial judge had indeed considered the principle of totality and had made comprehensive findings on the various factors relevant to sentencing, including the appellant’s criminal history and the seriousness of the current offences. The court concluded that the trial judge had exercised their discretion appropriately and had not erred in the application of the sentencing principles.

In dismissing the appeal, the court also considered the appellant’s application for an extension of time to file an application for leave to appeal against the sentence. The court held that the application was untimely and did not meet the criteria for an extension of time. Consequently, the application for an extension of time was refused, and the appeal against the sentence was dismissed. The court’s decision underscores the importance of timely applications for leave to appeal and the rigorous scrutiny applied to such applications, particularly in cases involving extensive criminal histories and significant offending.

Orders