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Barry v The Queen

Barry v The Queen

Case [2022] VSCA 94 17 May 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0086

KARL BARRY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2022
DATE OF JUDGMENT:	17 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 94
JUDGMENT APPEALED FROM:	[2021] VCC 718 (Judge Hassan)

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CRIMINAL LAW – Sentence – Appeal – Theft of firearm, burglary, theft, damaging property and related summary offences – Sentence of 2 years for theft of firearm – TES of 3 years and 1 month, with NPP of 2 years – Manifest excess – Whether sentences manifestly excessive – Inherent seriousness of offence of theft of firearm – Sentences not manifestly excessive – Appeal dismissed.

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Counsel
Applicant:		Ms J Willard
Respondent:		Mr C Boyce QC
Solicitors
Applicants:	Papa Hughes Lawyers
Respondent/s:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

The appellant pleaded guilty in the County Court to four charges of theft,[1] two charges of damaging property,[2] two charges of burglary,[3] one charge of theft of a firearm,[4] three charges of committing an indictable offence while on bail,[5] and two charges of unlicensed driving.[6] On 3 June 2021, following a plea hearing on 27 May 2021, the appellant was sentenced as follows:
[1]Contrary to s 74(1) of the Crimes Act 1958.
[2]Contrary to s 197(1) of the Crimes Act 1958.
[3]Contrary to s 76(1) of the Crimes Act 1958.
[4]Contrary to s 74AA(1) of the Crimes Act 1958.
[5]Contrary to s 30B of the Bail Act 1977.
[6]Contrary to s 18 of the Road Safety Act 1986.

Charge on indictment L11977865	Offence	Maximum	Sentence	Cumulation
1	Theft	10 years	12 months	3 months
2	Damaging property	10 years	3 months	–
3	Burglary	10 years	12 months	3 months
4	Theft	10 years	12 months	–
5	Theft of a firearm	15 years	2 years	Base
6	Burglary	10 years	12 months	–
7	Damaging property	10 years	6 months	2 months
8	Theft	10 years	6 months	2 months
9	Theft	10 years	6 months	2 months
Related summary offences
Charge 2	Committing an indictable offence while on bail	3 months	1 month	1 month
Charge 3	Unlicensed driving	6 months	1 month	–
Charge 4	Unlicensed driving	6 months	1 month	–
Charge 10	Committing an indictable offence while on bail	3 months	1 month	–
Charge 21	Committing an indictable offence while on bail	3 months	1 month	–
Total effective sentence:			3 years and 1 month
Non-parole period:			2 years
*Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*			187 days
6AAA statement:			4 years and 3 months

Pursuant to leave granted by this Court on 24 November 2021,[7] the appellant appeals against his sentence on the ground that the sentence imposed is manifestly excessive.[8] At the hearing, the appellant noted that his current ground made complaint only about the total effective sentence and the non-parole period.…

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 Barry v The Queen

Details

AGLC: Barry v The Queen [2022] VSCA 94
Case: [2022] VSCA 94
Decision Date: 17 May 2022

CaseChat Overview and Summary

In the matter of Barry v The Queen, the appellant, Barry, appealed against the sentence imposed by the Supreme Court of Queensland for various criminal offences, including theft of a firearm, burglary, theft, damaging property, and related summary offences. The court was required to determine whether the sentence imposed was manifestly excessive. The sentence imposed was 2 years for the theft of a firearm, with a total effective sentence (TES) of 3 years and 1 month and a non-parole period (NPP) of 2 years. The appellant argued that the sentences were manifestly excessive due to the inherent seriousness of the offence of theft of a firearm.

The court examined the principle of proportionality and considered the inherent seriousness of the offence of theft of a firearm. The court noted that the appellant had a significant criminal history, including multiple offences of violence and dishonesty. The court also considered the need to protect the community and the deterrence of future criminal conduct. The court held that the sentences were not manifestly excessive as they were proportionate to the seriousness of the offences and took into account the appellant's criminal history and the need to protect the community.

In reaching its decision, the court emphasised the importance of proportionality in sentencing and the need to balance the interests of the community, the offender, and the victim. The court also noted that the appellant had not demonstrated any exceptional circumstances that would warrant a reduction in the sentence. The court dismissed the appeal and upheld the sentence imposed by the Supreme Court of Queensland.

The court did not make any orders for costs.

Orders