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:

1. 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 Relevant Orders: Forfeiture and disposal orders

1. The applicant seeks an extension of time to apply for leave to appeal against sentence on the single proposed ground:

   The sentencing judge erred in failing to have regard to the principle of totality in ordering that 12 months of the sentences imposed on charges 5 and 6, and the whole of the sentence imposed on related summary offences 43 and 44, be served cumulatively upon each other and upon the base sentence.

2. For the reasons that follow, the application for an extension of time to file an application for leave to appeal against sentence should be refused.

Circumstances of the offending

1. On 8 September 2021 the applicant was disqualified from driving and subject to a firearm prohibition order.

2. Shortly after midnight police attempted to intercept a Mercedes Benz wagon driven by the applicant at the intersection of Belgrave-Hallam Road and Princes Highway. The applicant contravened a red traffic signal to evade police.

3. The police airwing were notified. From the air police observed the Mercedes travelling at a speed well in excess of 100 kmph on the Monash Freeway. Its headlights were off. The car reached a speed of approximately 175 kmph before exiting the freeway at Heatherton Road. The Mercedes continued at a speed of about 150 kmph in the 80 kmph zone.

4. The applicant drove the Mercedes through a red signal at the Stud Road intersection, around the back streets of the residential area and then on to Browns Road, Noble Park.

5. The Mercedes continued through a further four red traffic signals and, in the 60 kmph zone on Chesterville Road, travelled at approximately 129 kmph.

6. Police laid spike sticks near the corner of Cochranes and Chesterville Roads, Cheltenham in an attempt to stop the vehicle. The applicant drove the Mercedes over them, damaging the car, but continued to drive it to avoid police, including by driving on the wrong side of South Road, Moorabbin into oncoming traffic.

7. At about 2:11 am police pursued the Mercedes near to and through the car park at Southland shopping centre. The applicant evaded police by driving on the wrong side of Nepean Highway. The Mercedes came close to colliding with a police vehicle which had to take evasive action to avoid the collision.

8. Despite the deteriorating condition of the Mercedes, the applicant drove it through an industrial area, again failing to obey a red traffic signal, to Nepean Highway. Parts of the Mercedes began falling onto the road way. A rim came off the rear and landed in the front yard of a residential address in Aspendale.

9. The applicant stopped the vehicle in Bona Vista Avenue, Aspendale only when it could not be driven further. He ran from the scene while the Mercedes rolled to a stop in the gutter. As he did so, the applicant threw away a silver handgun and dropped a handgun shaped cigarette lighter, backpack and another bag. Police later recovered all items.

10. The applicant ran into an unlocked garage of a residence before entering its rear courtyard. He was located by the police canine unit hiding on the top of a hot water system ledge.

11. Police inspected the Mercedes and found:

    (a)A pump action rifle between the front passenger seats loaded with nine rounds of .22 ammunition.

    (b)Other assorted ammunition.

    (c)A green ammunition round on the driver’s seat.

    (d)A handgun in a black case in the rear passenger seat.

    (e)A modified firearm loaded with a round of ammunition.

    (f)A firearm magazine.

    (g)A meat cleaver.

    (h)A mobile phone.

12. The backpack was found to contain a book safe, inside of which was:

    (a)Zip lock bags of white powder, later found to be 72.4 grams of methylamphetamine with 82-93 percent purity.

    (b)Two spent and two unused rounds of ammunition.

    (c)Empty deal bags, razor blade and a spoon.

    (d)Digital scales.

    (e)A tick book.

    (f)A broken ice pipe.

13. The other bag was found to contain:

    (a)Three 12 gauge shotgun shells.

    (b)Eight rounds of assorted ammunition.

    (c)$2,691.65 cash.

    (d)A mobile phone.

14. Police later identified the seized firearms as:

    (a)A 9 mm luger calibre Dexnix brand pistol, originally imitation but having been modified to discharge live ammunition.

    (b)A .22 rimfire calibre Webley style revolver, modified to fire live ammunition. It was either not capable of discharge or, at best, a single shot only.

    (c)A .22 Long Rifle calibre model Trombone pump-action rifle, loaded. The weapon was in very good working order and had been used.

    (d)A .22 calibre sawn off single shot rifle, modified with a pistol grip.

Sentencing reasons

1. The judge commenced her sentencing reasons[1] by summarising the offending[2] and noting the maximum penalties for the offences to which the applicant had pleaded guilty.[3]

   [1]DPP v Barnett [2023] VCC 305 (‘Reasons’).

   [2]Reasons, [4]-[19].

   [3]Reasons, [20].

2. Next the judge detailed the applicant’s personal circumstances.[4] The applicant was 32 years of age at the time of the offending and 33 at the time of sentence. He grew up between Melbourne and Ballarat as the youngest of a sibship of three. The applicant’s father was violent towards his wife and children. As a result the applicant’s older brother left home in his mid-teens. The applicant has no relationship with him, feeling that his departure from home was an abandonment. His mother stayed with the applicant’s father until the children grew up. His parents separated when the applicant was aged 21 years. The applicant has a good relationship with his sister, but believes that she is fed up with his offending.

   [4]Reasons, [21]-[29].

3. The applicant was expelled from his Ballarat school in year 9. At that time the applicant remained in Ballarat while his family moved to Melbourne. That arrangement was unsuccessful and, when he was 18 years of age, the applicant’s family returned to Ballarat.

4. The applicant has had periods of employment, including as a painter with his father, a builder’s labourer and a factory worker at an abattoir. He was last employed in 2017 as a nightshift cleaner in a restaurant kitchen.

5. The applicant has a 10 year old son from a previous relationship with whom he has no contact.

6. Alcohol has not played a significant role in the applicant’s life, but illicit drugs have. He began using cannabis at the age of nine and was using it frequently by the age of 13. At that age the applicant was given his first line of speed by his father. By the age of 15 years the applicant had tried heroin. Thereafter he used heroin sporadically until he was aged 26 years when he began using it daily. The applicant was introduced to ice when he was aged 18 years and by the age of 23 was using it daily, up to a gram a day at its peak. Between 2019 to 2020 the applicant developed a heavy dependence on GBH, using it multiple times per day. The applicant has been placed on methadone in the past to deal with his heroin difficulties.

7. The judge then detailed the applicant’s extensive criminal history, which began in 2010.[5] He has committed drug, driving, weapons and violence offences. The applicant has received numerous community corrections orders and drug treatment orders — all of which were breached by further offending — as well as numerous terms of imprisonment. The applicant had been released from prison five months before the instant offending.[6]

   [5]Reasons, [30]-[39].

   [6]Reasons, [40].

8. The judge recorded the applicant’s explanation for the offending, namely that he was upset after a confrontation with his father in which the latter apologised for his abuse. The applicant was homeless, on drugs and mixing in ‘heavy circles’. He was trafficking drugs to support his own habit and storing guns for his associates. On 8 September 2021 he was making a ‘delivery run’ of the weapons.[7] The judge said that the applicant had offended in a similar manner in the past, had a lot of ‘heavy associates’ and had found it almost impossible to deal with his drug habit, including on a drug treatment order.[8]

   [7]Reasons, [40].

   [8]Reasons, [41]-[42].

9. That situation had changed while the applicant had been in custody for the instant offending. He had undertaken more than 26 individual sessions with the Caraniche Drug Service and was taking depot injections of buprenorphine. The applicant was exercising and attending to his mental health difficulties. He had also joined church activities and bible studies[9] and trained as a peer listener.[10]

   [9]Reasons, [42]-[44].

   [10]Reasons, [51].

10. The judge refused the applicant’s submission that he should be placed on a drug treatment order, both because he was assessed as being unsuitable and such an order can only be made if an offender receives a term of imprisonment of four years or less.[11]

    [11]Reasons, [45]-[46].

11. Next the judge detailed the matters she considered in sentencing the applicant, including his early plea of guilty, its enhanced utilitarian effect because of the pandemic backlog[12] and his severe anxiety and depression as diagnosed in a report by Sandra Cokorilo, psychologist. The judge accepted Ms Cokorilo’s opinion that the applicant was remorseful for his offending and thankful that no one was hurt in the driving as well as her opinion that he was a high risk of reoffending.[13] The judge found that the applicant’s prospects for rehabilitation were ‘very much better’ than they had been at the time he was admitted to custody because of the progress he had made in drug treatment and other activities. The support of his mother and two pro-social friends was also relevant.[14] The judge said that the applicant had ‘this time around’ made ‘determined efforts’ to turn his life around to be able to live a crime-free life upon his release.[15] His prospects for rehabilitation were better than they had been for many years.[16]

    [12]Reasons, [58].

    [13]Reasons, [47]-[48].

    [14]Reasons, [49]-[52].

    [15]Reasons, [53].

    [16]Reasons, [56].

12. The judge accepted Ms Cokorilo’s opinion that the applicant’s cognitive function vis-à-vis impulsivity and executive function may have been adversely affected by his involvement in violent assaults and that, as a consequence, he was likely to suffer the ill effects of gaol more than an ordinary prisoner.[17] The judge also considered the restrictive conditions of custody during the pandemic.[18]

    [17]Reasons, [55].

    [18]Reasons, [58].

13. The judge termed the offending ‘serious’ and noted that it was not the first time the applicant had engaged police in a dangerous pursuit in which the public had been placed at risk. It was fortunate that no one had been hurt or killed by the applicant’s conduct.[19]

    [19]Reasons, [57].

14. After announcing the sentences detailed above, the judge addressed the applicant as follows:

    So, good luck, Mr Barnett.

    I hope you can really carve out the sort of life for yourself that you want to Mr Barnett. Do you understand everything I said about the sentencing?

    …

    Your main problem was you have just got so many priors for this and you have just been given so many opportunities. We talked about that during the plea, did we not?

    …

    Look, I want you to know that I, as I said at the plea, I do recognise the efforts that you have made and it really does seem to me that you have come a long way this time around. It is just, as I said, your priors have not helped you and I have to sentence in accordance with that. It gives me no pleasure to give you a serve like this, Mr Barnett. But all I can say is I really hope that you can keep doing what you are doing and that you can keep it up when you get out. We had a talk about Narcotics anonymous last time too. Did you have a go at that?

    Yes, alright. So look, I know it is a blow, I know this is not what you wanted. I have given you a more than usual gap between your maximum and the minimum sentence, all right.

    That I would otherwise, and that is in recognition of the work that you have done, all right.[20]

    [20]Reasons, [66]-[82] (applicant’s responses omitted).

Extension of time

1. The application for an extension of time to file an application for leave to appeal against sentence was filed on 6 November 2023, over eight months after the applicant was sentenced.[21] The application is supported by an affidavit affirmed by Gabrielle Nota, the applicant’s solicitor.

   [21]Criminal Procedure Act2009, ss 279(1) and 313(1).

2. The applicant submits that the extension of time should be granted because there were significant delays in securing funding from Victoria Legal Aid and on the basis that the proposed ground of appeal has merit.

3. The respondent opposes the application for an extension of time on the basis that the reasons for the delay are inadequate and that the proposed ground is without merit.

4. In considering whether to exercise the discretion to grant an extension of time, the Court may have regard to a number of matters including the length and reasons for the delay and the applicant’s prospects of success should the extension of time be granted.[22] It is therefore appropriate to consider the strength of the proposed ground of appeal in order to determine whether there would be any utility in granting an extension of time.

   [22]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

Totality

Applicant’s contentions

1. The applicant submits that the judge failed to have regard to the principle of totality with respect to certain orders as to cumulation.

2. While his offending is conceded to be ‘serious’ and he has a relevant criminal history, the applicant, nonetheless, submits that the offending — including the trafficking — occurred on a single date, no one was injured and the basis of his plea was that the applicant was making a delivery run on behalf of associates. There was no evidence that the applicant had used the firearms in the course of other offending. All of the indictable charges were triable summarily.

3. The judge accepted the matters put on behalf of the applicant in mitigation, including the particular difficulties of both his upbringing and personal circumstances at the time of the offending and the significant steps he had taken towards rehabilitation.

4. The orders for cumulation made with respect to charges 5 and 6 and summary offences 43 and 44 added a total of 2 years and 4 months to the base sentence. While some cumulation was required on charges 5 and 6, the orders requiring half of the 2 year term imposed for each of those charges to be served cumulatively indicates that, having regard to the nature and circumstances of the offending, the judge failed to properly moderate that cumulation.

5. The judge did not expressly refer to the principle of totality in the Reasons, nor in either of the plea hearings. Nor can the judge’s consideration of totality be inferred from the Reasons. Further, the judge’s comment to the applicant at the conclusion of the sentencing that his main problem was his many priors and many previous opportunities suggests a failure to consider totality and contradicted the judge’s comments with respect to the Bugmy[23] principles during the second plea hearing.

Respondent’s contentions

[23]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

1. The respondent submits that it was unnecessary for the judge to expressly refer to the principle of totality in the Reasons, its operation being familiar to sentencing judges.[24] The contention that the failure to do so amounts to a failure to consider the principle and, therefore, specific error should be rejected.

   [24]R v Piacentino (2007) 15 VR 501, 511 [47] (Eames JA, Buchanan, Vincent, Nettle and Redlich JJA agreeing).

2. Further, the structure of the sentence illustrates that the judge did have regard to the principle of totality. Substantial concurrency was ordered as between each of the firearms charges. The cumulation of 2 months on each of charges 3 and 4 reflects the different elements of the offences while avoiding double punishment. The cumulation of 5 months of the sentence on charge 1 reflected the additional criminality inherent in the applicant’s disobedience of the firearm prohibition order.[25] The greater cumulation, half of each individual sentence, ordered on charges 5 and 6 reflected the serious criminality of those non-firearm offences. The modest cumulation on each of summary charges 43 and 44 again represented distinct criminality.

   [25]DPP v Kumas [2021] VSCA 215, [56] (Maxwell P, T Forrest and Walker JJA).

1. The total effective sentence was within the range of sentences open to the judge to reflect the totality of the applicant’s criminality.

2. The judge’s comments to the applicant at the conclusion of the sentence did no more than explain the relevance of his extensive criminal history and the need for specific deterrence and community protection.

3. Finally the respondent submits that if any of the impugned cumulation orders were not open, leave to appeal ought be refused as there is no reasonable prospect that this Court would reduce the total effective sentence.[26]

Analysis

[26]Criminal Procedure Act, s 280(1)(b).

1. The indictable offences to which the applicant pleaded guilty fell into three distinct groups: firearms, driving and trafficking.

2. The applicant makes no complaint as to the individual sentences or orders for cumulation imposed on the firearms offences. The respondent’s analysis of the rationale for those sentences and orders may be accepted.

3. That said, it should not be forgotten that the firearms offences were very serious. The possession charge was rolled-up. One of the firearms possessed was a loaded pump action rifle in very good working order. The applicant was in deliberate defiance of the firearm prohibition order. His criminal history for weapons offences was extensive and included convictions for prohibited person possess firearm, possessing a prohibited weapon without exemption, possessing cartridge ammunition without a licence and possession of a category A longarm.

4. Charge 5 was one of dangerous driving while being pursued by police. The applicant’s conduct was protracted and determined. It ended only when the car driven by the applicant was no longer capable of being driven. It involved the disobedience of multiple red light traffic signals, driving at night without headlights, driving at extremely high speeds and driving on the wrong side of the road into oncoming traffic. And, it was done in an attempt to avoid being found doing a ‘delivery run’, that is in possession of multiple firearms and a controlled weapon, as well as being in possession of illicit drugs and property suspected of being the proceeds of crime. It was outrageous conduct and the judge was correct to observe that it was ‘extremely fortunate that nobody was hurt or killed’.[27]

   [27]Reasons, [57].

5. Further, the applicant’s criminal history involved multiple convictions for driving offences and, specifically, a 2014 conviction for dangerous driving while pursued by police. Specific deterrence and community protection were very relevant sentencing considerations. Both the 2 year sentence and the order for 12 months’ cumulation were clearly open to the judge.

6. Charge 6 concerned the trafficking of 72.4 grams of methylamphetamine with a purity of 82-83 percent. The traffickable quantity is three grams.[28] The maximum penalty is 15 years’ imprisonment. Given the extensive criminal history of the applicant for drug offences and his breach of two drug treatment orders, the sentence of 2 years’ imprisonment and the order for 12 months’ cumulation were within the range open to the judge.

   [28]Drugs, Poisons and Controlled Substances Act1981, Schedule 11, Part 3, column 3.

7. In other words, the three groups of offending were distinct from each other. So much is accepted by the applicant’s concession that some cumulation on charges 5 and 6 was warranted. Given the seriousness of the offending, the applicant’s history and circumstances at the time the sentence was imposed, the 12 months of cumulation ordered on charges 5 and 6 does not indicate that the judge failed to consider the principle of totality. On the contrary, it indicates that the judge was well aware of its relevance. In the circumstances, the absence of an express reference to the principle of totality is unsurprising.

8. The trespass (summary charge 43) involved entry into the unlocked garage and rear courtyard of a residential unit in the early hours of the morning in an attempt to evade police. The controlled weapon (summary charge 44) was a meat cleaver. The modest cumulation of 2 months ordered on these charges again demonstrates that the judge took care to fashion a total sentence that did no more than reflect the applicant’s overall criminality.

9. The comments made by the judge directly to the applicant post sentence do not indicate otherwise. The criminal history of the applicant was a very weighty consideration in the sentencing exercise, for both the number and seriousness of the relevant convictions and also for the numerous breaches by further offending of multiple community correction orders and drug treatment orders. In circumstances where the applicant’s counsel had contended that a drug treatment order was within range, the judge’s comments, considered along with her Reasons, did no more than explain directly to the applicant why such an order was not appropriate. It was in keeping with the judge’s humanity displayed in her praise of the applicant for his rehabilitative steps, her explanation that she had recognised his efforts in the lower than normal non-parole period and her encouragement to him to continue.

10. In neither the individual sentences nor in the orders for cumulation is error discernible. The individual sentences reflected the true gravity of each separate offence. The orders for cumulation produced a total effective sentence well within the range available to the sentencing judge in the exercise of her discretion. It was not crushing.

11. It follows that ground 1 is not reasonably arguable.

Conclusion

1. The ground of the applicant’s proposed application for leave to appeal against sentence lacks merit. Accordingly, there is no utility in granting an extension of time. The application for an extension of time is refused.

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