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Barry v The Queen

Barry v The Queen

Case [2021] VSCA 321 24 November 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0086

KARL BARRY	Applicant
v
THE QUEEN	Respondent

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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)

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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.

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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…

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 [2021] VSCA 321
Case: [2021] VSCA 321
Decision Date: 24 November 2021

CaseChat Overview and Summary

The appellant, Barry, appealed against his sentence in the High Court of Australia. He was convicted on one count of theft of a firearm, four counts of theft, two counts of damaging property, two counts of burglary, and related summary offences. Barry was sentenced to a total effective term of imprisonment of three years and one month, with a non-parole period of two years. Barry contended that the sentence was manifestly excessive, and that the primary judge failed to properly consider significant mitigating factors. The primary issues before the court were whether the sentence was manifestly excessive, whether the primary judge failed to consider significant mitigating factors, and whether the sentence was disproportionate when compared to similar cases.

The court examined whether the sentence was manifestly excessive by considering the totality of Barry’s offending, his personal circumstances, and the principles of proportionality and deterrence. The court noted that Barry had a significant criminal history, and his offending was serious and involved multiple victims. However, the court also recognised that Barry had shown remorse and had made efforts to address his drug addiction and other personal issues while in custody. The court found that while the sentence was severe, it was not manifestly excessive given the nature and circumstances of the offending. The court also found that the primary judge had considered the mitigating factors but had given them less weight than the aggravating factors.

The court concluded that the sentence was not manifestly excessive and that the primary judge had appropriately considered the mitigating factors. The court found that the sentence was proportionate to the offending and that it served the purposes of deterrence and denunciation. The court also noted that the sentence was consistent with sentences imposed in similar cases. The court granted leave to appeal on the ground that the sentence was manifestly excessive, but dismissed the appeal on the merits.

The High Court ordered that leave to appeal be granted, but the appeal be dismissed. The court emphasised the importance of proportionality and the need to consider both aggravating and mitigating factors when sentencing. The court also highlighted the significance of the offender’s criminal history and the impact of their offending on the victims and the community. The final orders of the court reflected the court’s findings and reasoning, and provided guidance for future sentencing decisions in similar cases.

Orders