Barry v The Queen
[2021] VSCA 321
•24 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0086
| KARL BARRY | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 24 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 321 |
| JUDGMENT APPEALED FROM: | [2021] VCC 718 (Judge Hassan) |
---
CRIMINAL LAW – Leave to appeal – Sentence – One charge of theft of firearm – Sentence of 2 years’ imprisonment – Four charges of theft – Two charges of damaging property – Two charges of burglary – Related summary offences – Total effective sentence of 3 years and 1 month’s imprisonment – Non-parole period of 2 years – Whether sentence manifestly excessive – Significant mitigating factors – Comparable cases – Leave to appeal granted.
---
| Written submissions: | Counsel | Solicitors |
| For the Applicant | Ms J Willard | Papa Hughes Lawyers |
| For the Respondent | Mr J Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA:
On 27 May 2021, the applicant pleaded guilty before a judge of the County Court to:
(a) four charges of theft;[1]
[1]Crimes Act 1958 s 74.
(b) two charges of damaging property;[2]
[2]Ibid 197(1).
(c) two charges of burglary;[3]
(d) one charge of theft of a firearm;[4] and
(e) five associated summary offences.[5]
[3]Ibid 76(1).
[4]Ibid s 74AA.
[5]Two charges of unlicensed driving (Road Safety Act 1986 s 18(1)(a)) and three charges of committing an indicatable offence while on bail (Bail Act 1977 s 30B).
On 8 April 2021, the judge sentenced the applicant as follows:[6]
[6]DPP v Barry [2021] VCC 718 (‘Sentencing Remarks’).
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 on bail
3 months
1 month
–
Charge 3
Unlicensed driving
6 months
1 month
1 month
Charge 4
Unlicensed driving
6 months
1 month
–
Charge 10
Committing an indicatable offence on bail
3 months
1 month
–
Charge 21
Committing an indicatable offence 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
Other relevant orders:
Forfeiture order
The applicant now seeks leave to appeal on a single proposed ground alleging manifest excess.
For the reasons that follow, the application for leave to appeal is granted.
Circumstances of offending
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).
Judge’s sentencing remarks
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.[7] 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’.[8]
[7]Sentencing Remarks [23].
[8]Ibid [25].
In mitigation, the judge referred to:
(f) 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;[9]
[9]Ibid [22].
(g) the applicant’s youth;[10]
[10]Ibid [26].
(h) 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;[11]
[11]Ibid [30]. This enlivened the principles in Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
(i) the applicant having been an entrenched, polysubstance drug user from a relatively young age;[12]
(j) 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;[13] and
(k) 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.
[12]Sentencing Remarks [31], [35].
[13]Ibid [32].
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.[14] She allowed for a modest reduction in moral culpability, and some moderation of the principles of specific and general deterrence and punishment.[15]
[14]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
[15]Sentencing Remarks [35]–[37].
The judge described the applicant’s present offending as an escalation of his previous offending. That mainly comprised drug, driving and dishonesty offences,[16] 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.[17]
[16]Ibid [38].
[17]Ibid [39].
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.[18]
[18]Ibid [41].
Proposed ground of appeal
The application for leave to appeal sets out a single proposed ground: that the sentence imposed is manifestly excessive. The applicant’s written case articulates a slightly different ground, that the ‘total effective sentence and the non-parole period’ are manifestly excessive. In both formulations, and in the written case, the applicant does not expressly contend that the individual sentences, or the orders for cumulation, are manifestly excessive. Instead, he alleges that the combination of the two produces a manifestly excessive outcome.
Parties’ submissions
The applicant accepted his offending was serious, and that it was open to the judge to impose a custodial sentence. However, it was said that the sentence imposed was ‘at the top end of the range’ and manifestly excessive. It can be taken that the submission is that, taking all relevant matters into account, the total effective sentence was outside the permissible range.
The applicant submitted that the sentence imposed disclosed that the judge had afforded insufficient weight to the following factors:
(l) the enhanced utilitarian value of his early guilty plea during the COVID–19 pandemic;[19]
[19]Worboyes v The Queen [2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA).
(m) the causal relationship between his long-standing drug addiction and the offending;
(n) his background of profound trauma and deprivation, which engaged Bugmy principles;
(o) his complex of mental illnesses and intellectual impairments, which engaged Verdins principles; and
(p) his youth at the time of offending, elevating the principle of rehabilitation.
The applicant acknowledged that the judge had expressly referred to each of these matters in sentencing and had treated them as mitigatory factors in his favour. However, it was said that the total effective sentence was unduly stern, indicating that the judge had failed to give adequate weight to them.
Secondly, it was submitted that reference to relevant comparator sentences reinforced the impression that the sentence on the theft of firearms charge was ‘unnecessarily long’. The applicant pointed to four sentences imposed in recent years in the County Court for offending involving the theft of firearms.[20] In each case, either a combination sentence or a community correction order was imposed.
[20]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 applicant submitted that the sentence offended the principle of parsimony. He submitted that the judge erred in concluding that the seriousness of the theft of the firearms foreclosed a combination sentence, and instead necessitated not only a custodial sentence, but a custodial sentence with a significant non-parole period. In doing so, it was said, 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.[21]
[21]Boulton v The Queen (2014) 46 VR 308, 330–2 [85]–[98] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
The respondent contended that the sentence imposed was unremarkable in all the circumstances, and within the available range. The two year base sentence imposed for the theft of the four firearms represented only 13 per cent of the maximum penalty for that offence. The sentences imposed on the other charges on the indictment represented either 10 or 5 per cent of the maximum penalty for those offences. Given that the offending involved significant and repeated thefts, including of unrecovered firearms, it was said that the sentences were well within range, even allowing for the significant mitigatory factors in the applicant’s favour.
Secondly, the respondent submitted that the judge properly referred to and adequately accounted for the six mitigatory factors to which the applicant now points. For example, the judge expressly allowed for a modest reduction in moral culpability in respect of the applicant’s polysubstance abuse and health issues. In any event, several of the mitigating factors were said to be interlinked.
Thirdly, the respondent disputed the relevance of the comparator sentences identified. It was said that the cases were not true comparators because, in the main, the firearm thefts took place in different circumstances — in particular, they were thefts by family members and/or thefts in which the offender assisted in recovering the firearms. The respondent identified a number of other comparator sentences, including a sentence upheld by this Court,[22] in which terms of imprisonment similar to that imposed on the present applicant were imposed.[23] The respondent also described the base sentence imposed as the median sentence for that offence.[24]
[22]Benkic v The Queen [2019] VSCA 34 (‘Benkic’).
[23]DPP v Fulham [2018] VCC 2186 (‘Fulham’); DPP v Duguid [2019] VCC 713 (‘Duguid’); DPP v Edwards [2019] VCC 1906 (‘Edwards’).
[24]In fact, as noted below, the median individual sentence for theft of a firearm during the most recent period for which statistics are available is 18 months’ imprisonment. The median total effective sentence in cases involving theft of a firearm is 2 years’ imprisonment.
Finally, the respondent contended that it cannot be demonstrated that the principle of parsimony was infringed.
Consideration
The ground of manifest excess requires an appellant to show that the sentence was wholly outside the range of sentencing options available; that is, that it was not reasonably open to the sentencing judge.[25] It must be shown that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion, without necessarily identifying what that something is.[26]
[25]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[26]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P); Nicholls v The Queen [2016] VSCA 300, [31] (Redlich and McLeish JJA and Beale AJA); Till v The Queen [2018] VSCA 122, [45] (Maxwell P, Tate and Niall JJA); Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
The applicant’s base sentence was two years’ imprisonment for the theft of four firearms, two of which were sold and none of which have been located. As this Court has observed, the theft of firearms is a particularly serious kind of theft. The maximum penalty of 15 years’ imprisonment for the offence is 50 per cent greater than the maximum penalty for theft. This recognises that the theft of firearms, as opposed to other types of theft, contributes to the illegitimate flow of firearms in the community and in turn, may facilitate serious criminal activity.[27] The risk presented by the theft and sale or distribution of firearms exists regardless of whether the theft is opportunistic or pre-meditated.
[27]Benkic [2019] VSCA 34, [18] (Priest and Beach JJA).
The judge recognised, on the other hand, that the principles in Bugmy were engaged and pointed to a moderation of the applicant’s moral culpability. She also acknowledged that the applicant’s youth was an important consideration. Applying Verdins principles, the judge allowed ‘some modest reduction’ in moral culpability, and some moderation of the principles of specific and general deterrence. As the respondent submitted, there was some overlap in the application of these principles. In addition, the judge acknowledged the ‘modest’ application of Verdins principles 5 and 6.
In light of the applicant’s criminal record and drug use, the judge was guarded about the applicant’s prospects of rehabilitation, while accepting that his relationship with his daughter ought to motivate him to rehabilitate.
None the less, in my view, given the mitigating factors upon which the applicant was able to rely, the sentence of two years’ imprisonment imposed in respect of the theft of the firearms is at the upper end of the range of sentences available to the judge. (As noted earlier, the applicant does not contend that it was beyond the available range, if taken alone.)
That conclusion is borne out by reference to the comparable cases relied on by the parties. The four cases relied upon by the applicant are different from the present in key respects. In Holt, the offender ultimately surrendered the two stolen firearms to police.[28] The other cases involved thefts from family members. In Clark, the offender stole firearms from her partner to obtain money in the context of gambling and mental health issues. The offender in Spurr had no prior police involvement and stole firearms from the family home while his parents were away in the context of mental health problems that had since been resolved; he was assessed as having ‘excellent’ prospects of rehabilitation.[29] The offender in Cotchin stole firearms from his mother to feed a drug addiction which was connected to alleged sexual abuse he had experienced; his prospects of rehabilitation were assessed as good.[30]
[28]Holt [2016] VCC 2079, [16], [19] (Judge Gaynor).
[29]Spurr [2018] VCC 1709, [25] (Judge Gaynor).
[30]Cotchin [2018] VCC 1894, [35] (Judge Carmody).
These cases all attracted community correction orders, based in large part on the personal circumstances of the offenders. The cases pointed to by the respondent involved terms of imprisonment, in one case with a community correction order. That case is Benkic, the only appellate authority relied on by the parties. The offenders in that case broke in to a farm and stole six firearms and a large quantity of ammunition. The offending was premeditated, and involved bringing down gun safes using chains attached to the offenders’ vehicle. Only four of the guns were recovered. The applicant was 23 years old with ‘good’ prospects of rehabilitation and a limited criminal history. The Court considered a sentence of 18 months’ imprisonment for the theft of the firearms to be ‘well within the proper bounds of discretion’ (together with a 2 year community correction order on account of the burglary that preceded the theft).[31]
[31]Benkic [2019] VSCA 34, [24] (Priest and Beach JJA).
The other cases involved sentences similar to that imposed in the present case. An older co-accused of Benkic, who was a prohibited person under the Firearms Act 1996 with a lengthy criminal history and guarded prospects of rehabilitation, received a sentence of 2 years and 6 months for the theft of the firearms: Fulham. In Duguid, seven firearms were stolen and only three of them were recovered. The offender, also a prohibited person under the Firearms Act, had a significant criminal history and his prospects of rehabilitation had to be approached ‘with significant caution’.[32] A sentence of 2 years was imposed. Edwards involved the same sentence, imposed for the theft of three firearms which were subsequently recovered by police; that offender had a ‘very significant’ criminal history but was able to draw on the principles in Bugmy.[33] Both Duguid and Edwards were much older than the present applicant.
[32]Duguid [2019] VCC 713, [29] (Judge Dean).
[33]Edwards [2019] VCC 1906, [5], [22] (Judge Smallwood).
Not surprisingly, the cases reveal a wide range of sentencing outcomes. They suggest that the sentence imposed on the theft of firearms charge in the present case was very high given the circumstances. That is confirmed by sentencing statistics to which the respondent referred showing that the median sentence for the offence is 18 months’ imprisonment.[34] In particular, the present applicant lacks the significant criminal history of others who have received similar sentences for theft of a firearm, and has the advantage of youth.
[34]Sentencing Advisory Council, ‘Theft of a Firearm: Crimes Act 1958 s 74AA(1), Higher Courts, 1 July 2015 to 30 June 2020’. On the other hand, the median total effective sentence is reported as 2 years. But, see generally DPP v Currie [2021] VSCA 272, [130] (Beach, McLeish and Walker JJA).
The sentence is also higher than that imposed in Benkic, where the offender had good prospects and was also relatively youthful but could not point to the mitigating considerations available in the present case.
The total cumulation of 13 months’ imprisonment on the other charges is also substantial. In particular, the burglary the subject of charge 3 (3 months cumulated) was part of the same transaction as the firearm thefts, and charges 7, 8 and 9 (2 months cumulated for each) were also part of a single series of connected events. In those circumstances, it is arguable that the overall result is that the total effective sentence, and therefore the non-parole period, are manifestly excessive.
It is probably unimportant which formulation of the proposed ground of appeal is adopted. In the absence of any application to amend, leave to appeal is granted on the ground ‘that the sentence imposed is manifestly excessive’.
---
4
19
0