Barry v The Queen
[2022] VSCA 94
•17 May 2022
| 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. Accordingly, he sought, and we granted, leave to add a further ground of appeal that the individual sentence imposed on charge 5 and the orders for cumulation were manifestly excessive.
[7]Barry v The Queen [2021] VSCA 321 (McLeish JA) (‘Leave Reasons’).
[8]Ibid [37].
Circumstances of the offending
The circumstances of the appellant’s offending were summarised in the Leave Reasons. We gratefully adopt that summary as follows:
At the time of his offending the applicant was 23 years old. On 10 June 2020, he drove to a gated storage facility at Derrimut where he had previously stored items. The applicant was unlicensed to drive at the time (summary charge 4 — unlicensed driving).
A week later, on 17 June 2020, the applicant drove with his girlfriend and two co-offenders to a service station in Seabrook. There, the applicant and the two co-offenders loaded a pallet of solar panels onto the roof and into the boot of the car before departing (charge 1 — theft). Again, the applicant was unlicensed at the time (summary charge 3 — unlicensed driving).
A further week later, on 24 June 2020, the applicant returned to the storage facility. By this time, the owner of the facility had locked the applicant’s storage container. The applicant failed to gain entry at a facility gate using his access code. He walked to a different gate, cut open the wire fence, and entered the storage yard. He then forced the lock that had been placed on his container, and retrieved a number of items which he took to his car (charge 2 — damaging property).
In the early hours of 11 July 2020, the applicant drove, with a co-accused, to another storage facility, this time in Port Melbourne. There, the two men forced open the pedestrian gate, then cut the lock from a storage unit. Within that unit, they came upon a firearm safe. They forced the lock and removed four firearms from the safe — three rifles and a 12 gauge shotgun. They took them to the car, along with some other valuable items located in the unit (charges 3, 4 and 5 — burglary, theft, and theft of a firearm). The applicant admitted selling two of the firearms shortly afterwards, and said he did not know what had become of the other two.
The next month, on 11 August 2020, the applicant attended an apartment building in Caroline Springs. He and a co-accused were given entrance to the carpark by a resident. The two men broke the windows of some vehicles parked there, and cut holes into some of the storage cages. They took items from the cars and storage cages, including tools, painting equipment, car parts, and designer sunglasses (charges 6, 7, 8 and 9 — burglary, theft and criminal damage).
At the time of the above offending, the applicant was drug-affected. He was also on bail (summary charges 2, 10 and 21 — committing an indictable offence on bail).[9]
[9]Ibid [5]–[10].
Appellant’s personal circumstances
The appellant was born in October 1996. He was aged 23 at the time of his offending, and 24 at the time of sentencing. The judge described the appellant as having had a ‘highly disadvantaged childhood and adolescence’.[10] His mother was a heroin addict and was in and out of gaol. Even when the appellant’s mother was not incarcerated, she was unable to properly care for him or his siblings. The appellant’s father was largely absent during the appellant’s childhood, and he and his siblings experienced ‘severe neglect, often being left without food’.[11]
[10]DPP v Barry [2021] VCC 718 (‘Sentencing Reasons’).
[11]Ibid.
As the judge also accepted, the appellant’s family was regularly evicted from different houses and moved several times. The appellant attended a number of schools, and his education was ‘sporadic and disrupted’.[12] The appellant left school in Year 8, after which he attempted an apprenticeship in plumbing, but he found the academic side of this was too difficult and he did not complete the apprenticeship.[13]
[12]Ibid [28].
[13]Ibid.
The appellant lived with an aunt between the ages of 13 and 15, but was asked to leave and became homeless at the age of 15.
The appellant has been a poly-substance drug abuser since his teens, smoking cannabis and then becoming addicted to methylamphetamine, which he started to use in conjunction with GHB when he was 18. At the time of sentencing, he had been in a relationship for five years, and had a two-year-old daughter.
On the plea, a report was tendered on the appellant’s behalf from a clinical psychologist, Alison Mynard, who had met with him on two occasions in April and May 2021. The judge described Ms Mynard’s opinion as follows:
Ms Mynard gives the opinion that although there was no diagnosis of attention deficit hyperactivity disorder (‘ADA’) during your childhood, nevertheless, in her opinion on the basis of her testing and your presentation, you have symptoms consistent with ADHD. She also found you to be depressed and anxious, and to be suffering complex post-traumatic stress disorder (‘PTSD’), referrable largely to your traumatic childhood. She also found you to have borderline intellectual functioning.[14]
[14]Ibid [33].
The appellant has a criminal record with multiple convictions going back to 2012. Many of his offences relate to drug use. His offences also include theft, theft of a motor vehicle, handling stolen goods, obtaining property by deception, dealing with the suspected proceeds of crime, wilful damage, burglary and committing an indictable offence while on bail. At the time of his current offending, he was on a community correction order (‘CCO’), itself imposed following an earlier breach of another CCO.
Sentencing reasons
The judge’s reasons for sentence were summarised within the Leave Reasons. We gratefully adopt that summary as follows:
The judge characterised the offending as ‘an ongoing course of dishonest and destructive behaviour’ during which the applicant stole the personal property of multiple victims. She nominated the theft of the firearms as the most serious offence, notwithstanding that it was opportunistic. This was because, as a result of the offending, the four firearms were ‘circulating in the community’, raising the possibility that the firearms would end up in ‘criminal hands and be used to further criminal activity’.
In mitigation, the judge referred to:
(a)the applicant’s early guilty plea, which was indicative of some remorse and had a heightened utilitarian value, in light of the ongoing effects of the COVID–19 pandemic on the administration of criminal justice;
(b) the applicant’s youth;
(c)the applicant’s highly disadvantaged childhood and adolescence, which involved ‘severe neglect’ on the part of parents who were at different points drug-addicted, incarcerated, or absent;
(d)the applicant having been an entrenched, polysubstance drug user from a relatively young age;
(e)the fact that the Department of Health and Human Services was involved with the applicant’s partner and two-year old daughter, and might require him to complete a behaviour change program and submit to regular drug screening to have further contact with his daughter; and
(f)the opinion of a clinical psychologist, Ms Alison Mynard, that the applicant presents with borderline intellectual function, as well as symptoms consistent with, among other things, attention deficit hyperactivity disorder and post-traumatic stress disorder.
The judge accepted, on the basis of Ms Mynard’s report, that the first, third, fourth, fifth and sixth limbs of R v Verdins were engaged. She allowed for a modest reduction in moral culpability, and some moderation of the principles of specific and general deterrence and punishment.
The judge described the applicant’s present offending as an escalation of his previous offending. That mainly comprised drug, driving and dishonesty offences, all heard in the Magistrates’ Court or the Children’s Court, for some of which he had previously been sentenced to short periods of imprisonment (of no more than one month). Although the applicant’s desire for contact with his daughter provided an incentive for him to rehabilitate, the judge remained guarded about his prospects of rehabilitation, given his history of drug use.
Although the applicant was assessed to be suitable for a community correction order, the judge declined to impose one. This was because such an order, even in combination with a custodial sentence ‘would not be sufficiently punitive’ in light of the overall offending, and in particular, the theft of the firearms.[15]
[15]Leave Reasons [11]–[15] (citations omitted).
Appellant’s contentions
The appellant submitted that the sentence imposed on charge 5, the orders for cumulation, the total effective sentence and the non-parole period were all manifestly excessive. In support of that contention, he submitted that the judge did not give sufficient weight to:
•the enhanced utilitarian value of his early guilty plea during the COVID-19 pandemic;[16]
•the causal relationship between his long-standing drug addiction and the offending;
•his background of profound trauma and deprivation, which engaged the principles in Bugmy v The Queen;[17]
•his complex mental illnesses and intellectual impairments, which engaged the principles in R v Verdins; and[18]
•his youth at the time of the offending, elevating the principle of rehabilitation.
[16]Worboyes v The Queen [2021] VSCA 139.
[17](2013) 249 CLR 571.
[18](2007) 16 VR 269.
Secondly, the appellant submitted that reference to relevant comparator sentences reinforced the proposition that the sentence on charge 5 was manifestly excessive. The appellant pointed to four sentences imposed in the County Court for offending involving the theft of firearms.[19] In each case, either a community correction order was imposed on its own or in combination with a short term of imprisonment.
[19]DPP v Holt [2016] VCC 2079 (‘Holt’); DPP v Clark [2018] VCC 583 (‘Clark’); DPP v Spur [2018] VCC 1709 (‘Spur’); DPP v Cotchin [2018] VCC 1894 (‘Cotchin’).
Thirdly, the appellant submitted that the sentence imposed by the judge offended the principle of parsimony; and that the judge overlooked the extent to which a community correction order, as part of a combination sentence, could satisfy the applicable sentencing purposes, including punishment and deterrence.[20]
[20]See Boulton v The Queen (2014) 46 VR 308, 330–2 [85]–[98].
Consideration
In relation to the appellant’s submission that the judge failed to give sufficient weight to the mitigatory factors referred to in [11] above, the first point to be made is that the judge expressly referred in her reasons for sentence to each of the matters relied upon by the appellant,[21] treating them as mitigatory factors in the appellant’s favour.
[21]Sentencing Reasons [22], [26]–[30] and [33]–[37].
Secondly, the sentencing decisions relied upon by the appellant (Holt, Clark, Spur and Cotchin) are of little assistance to the appellant. While they are examples of cases involving the theft of firearms, the circumstances of the offending and offenders are significantly different in each case. Those cases merely show that lesser sentences might be imposed in different circumstances. Of critical relevance, however, was that in those cases one, some or all of the firearms were recovered, and in some cases with the assistance of the offender.
That said, other sentencing decisions show that a sentence of two years’ imprisonment for the theft of a firearm is not out of the ordinary.[22] As was said by this Court in Benkic v The Queen,[23] the theft of a firearm is a particularly serious species of the offence of theft.[24] It thus carries a maximum penalty of 15 years’ imprisonment — as opposed to the maximum sentence of 10 years’ imprisonment for theft simpliciter. Of particular concern in relation to the theft of firearms is the fact that the theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity.[25]
[22]See, eg, DPP v Fulham [2018] VCC 2186; DPP v Duguid [2019] VCC 713; DPP v Edwards [2019] VCC 1906.
[23][2019] VSCA 34.
[24]Ibid [18].
[25]Ibid.
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[26] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[27]
[26]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[27]Ibid.
The sentence imposed on charge 5 was a little over 13 per cent of the maximum sentence for that offence. The judge was undoubtedly correct to regard charge 5 as the most serious of the appellant’s offences.[28] Four firearms were stolen: two were sold; and the other two remained unrecovered. Again as the judge correctly observed, as a consequence of the appellant’s offending, four firearms are circulating in the community — allowing for the possibility that the firearms will end up in criminal hands and be used in further criminal activity.[29] In those circumstances, and notwithstanding the matters in mitigation to which we have already referred, we are unable to conclude that the sentence of two years’ imprisonment imposed for the theft of the four firearms was outside the permissible range of sentencing options open to the judge. It follows that the appellant’s complaint of manifest excess in relation to charge 5 must be rejected.
[28]Sentencing Reasons [25].
[29]Ibid.
Similarly, when one has regard to all of the circumstances of the totality of the appellant’s offending (and, again, taking account of the appellant’s personal circumstances and matters in mitigation) we are unable to conclude that any of the orders for cumulation, the total effective sentence or the non-parole period are manifestly excessive.[30] Additionally, we reject the submission that the judge overlooked the extent to which a community correction order, as part of a combination sentence, could satisfy the purposes for which sentences are imposed (including punishment and deterrence). Her Honour expressly averted to that matter in her reasons for sentence.[31] We would note again that at the time of the offending, the applicant was on a CCO, a matter of some aggravation.[32]
[30]For completeness, we note that s 16(3C) of the Sentencing Act 1991 requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
[31]Sentencing Reasons [41].
[32]DPP v Basic [2017] VSCA 376, [70]; Bieljok v The Queen [2018] VSCA 99, [68]; DPP v Milson [2019] VSCA 55, [66]; Wilson v The Queen [2022] VSCA 2, [12].
The appellant received a total sentence of 3 years and 1 month for offending that occurred over a period of weeks in June, July and August of 2020. The offending involved significant and repeated thefts, including the theft of unrecovered firearms. Notwithstanding the significant mitigatory factors in the appellant’s favour to which we have referred, when one synthesises all of the relevant circumstances of the offending and the offender, it cannot be concluded that the various sentences and orders made by the judge were other than within the permissible range.
Conclusion
The appeal against sentence must be dismissed.
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