Director of Public Prosecutions v Barca
[2022] VCC 2038
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
M10705417
CR-22-00301
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN BARCA |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2022; 19 October 2022 | |
DATE OF SENTENCE: | 28 October 2022 | |
CASE MAY BE CITED AS: | DPP v Barca | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2038 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – Home invasion with three co-offenders – Whether accused provided assistance for purpose of s 5(2H)(a) of the Sentencing Act 1991 – parity principle
Legislation Cited: Crimes Act 1958 s 77A; Sentencing Act 1991 s 5(2H)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Hogarth v The Queen [2021] 37 VR 658; Meyers v The Queen [2014] VSCA 314; Farmer v The Queen [2020] VSCA 140; Boulton v The Queen [2014] VSCA 342; Bugmy v The Queen [2013] HCA 37
Sentence: Community correction order for a period of 2 years with 200 hours of community work
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Z Menon | Solicitor for the Office of Public Prosecutions |
| For the Accused | J Lowy | Kate Freshwater |
HIS HONOUR:
1
Stephen Barca, you pleaded guilty to one charge of home invasion, for which the maximum penalty is 25 years' imprisonment. Home invasion is a Category 2 offence which means that pursuant to s 5(2H) of the Sentencing Act, I must impose an immediate term of imprisonment, and not one combined with a
community correction order, unless the circumstances of your case fall within one of the statutory exceptions.
2
You were 27 years old at the time of the offending. Your co-offender Jai Moon was also 27 years old at that time. The victims are Timothy Rawlings who was
61 years old, and Emma Palmer, 39 years old. They lived on Waratah Street, Kyabram, which is where the offence occurred.
3The circumstances of the offending are set out in the prosecution opening which was tendered and marked as Exhibit A on the plea.
Circumstances of the offending
4On Saturday, 20 March 20221, you and Mr Moon and another person named Paul Fleming, had been at Mr Moon's residence in Kyabram, drinking alcohol, before leaving to go to Fleming's place at around 1 am. While walking up Waratah Street, the three of you decided to visit the victims’ address, with the intention of forcing someone named Jacko out of town for being a paedophile.
5One of you knocked on the door at the property and Ms Palmer opened the door. You and Mr Moon then went inside. Rawlings and Palmer had been watching television at the time you arrived and another person named Michelle Green was in the kitchen. Rawlings recognised you and the others. Ms Palmer recognised Moon and you. When you entered you were in possession of a knife which you had held behind your back once inside. Your entry, with the relevant intent is the basis of Charge 1, home invasion.
6Mr Fleming remained at the front door during the time that you and Mr Moon were inside the residence. Mr Moon approached Mr Rawlings who was seated in the lounge chair and punched him to the right side of the face. Your group was yelling out, 'Where's Jacko?'. Moon alleged that Ms Palmer had touched a teenager inappropriately before picking up a guitar and raising it in the air as if he was going to hit her with it. He then put the guitar down and punched Palmer in the face. Moon made repeated threats to kill Rawlings and burn the house down if the matter was reported to police. The three of you then departed. Rawlings and Palmer did not report the matter to the police until 22 March 2021, due to fear.
7Both you and Mr Moon were arrested on 7 April 2021. Mr Moon was interviewed first and made what was effectively a no comment record of interview. You were then interviewed, and you made full admissions. You implicated Mr Moon and your account largely corresponded with that of the witnesses in the case. You said you went there with a knife to scare Jacko so that he would leave town. At the conclusion of your record of interview you made a statement to police in which you adopted your record of interview as true and correct.
8
Mr Fleming was not charged. He also made a statement to police, which he signed on 5 May 2021. Your statement formed part of the hand up brief in relation to
Mr Moon.
9
Mr Moon pleaded guilty, and he was sentenced by Her Honour Judge Gaynor.
Judge Gaynor found an exception to s 5(2H) namely that Mr Moon, by reason of his psychological issues would have been subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Judge Gaynor imposed a community correction order for a period of two and a half years involving 70 hours community work; treatment and rehabilitation for mental health difficulties; and treatment and rehabilitation for drugs and alcohol.
Guilty plea
10You pleaded guilty at a committal mention hearing in March this year. Although there were several committal mention listings, no witnesses were ever cross-examined.
11This was a plea at an early opportunity and followed your cooperation in the interview and the making of the signed statement. I accept your plea indicates remorse and a willingness to facilitate the course of justice. The utilitarian value of your plea is significant and the principles in Worboyes[1] apply. The sentencing discount for your guilty plea must be significant.
[1][2021] VSCA 169
Personal circumstances
12You were born in Mildura and raised in Kyabram. Your parents separated amicably when you were three years old. You spent every second weekend and half of the school holidays with your father in Merrigum. You have a positive relationship with both of your parents. You have two siblings aged 26 and 27 and two half-siblings aged 36 and 40. An older brother of yours died when he was three years old in a motor vehicle accident. You never met an older half-sister, but you have a positive relationship with your older half-brother who sustained brain damage in the motor vehicle accident which killed your brother. You are close with your younger siblings. Your sister lives in Mooroopna and your brother in Darwin.
13
You went to Kyabram College and St Augustine's School. You completed
Year 12. You then started a building apprenticeship and pursued this for
two years, partially completing it. In 2013, you worked for your uncle for a year or so, and you also worked in St Arnaud for a steel frame building company. This employment ended badly with your employer owing you money. You returned to Kyabram and obtained a job at a demolition company where you worked for
12 months. You then moved to Merrigum and worked with your father as a handyman and a fencer. You have also raised cattle for your grandparents. You have worked as a fruit picker as well but you did not work during the pandemic. You currently have a job as a full-time fencer, working with your father at TriStar Fencing. You have been in this employment for a year.
14You have two daughters, aged six and nine from your relationship with their mother between 2009 and 2016. Your children live with their mother in Numurkah. You currently have supervised access because you have not yet finished an anger management program required by Child Protection authorities.
15You have some prior convictions, but nothing of any great moment in sentencing in this case. However, the common thread between your offences, has been the influence of alcohol. You say your alcohol consumption, which started when you were 14 years old, escalated at the beginning of the pandemic. You were unemployed and you had nothing to do. You describe your heaviest use of alcohol as consuming six standard cans of beer daily. You have reduced your consumption and feel much better for having done so. You have used drugs as well, but your main problem has been abusing alcohol.
16I have received a report from psychologist Gina Cidoni. Ms Cidoni said your intellectual capacity was intact, although she did not conduct formal testing. She described you as having an alcohol use disorder in remission and a cannabis use disorder. She said there is no evidence of major clinical conditions. She said that you have mild anxiety and mild depression.
17These conditions developed in your teenage years and escalated during the pandemic. She said that by way of considering the effect of a prison term, mild depression and anxiety will escalate in the context of maladjustment. She said that impulsivity and dependency traits would make you vulnerable to forging unhelpful contacts and that a prison sentence might change your life trajectory. She said that you would benefit from counselling to address your cannabis and alcohol use and that would reduce your risk of re-offending.
Gravity
18Home invasion carries a maximum penalty of 25 years reflecting its seriousness. This offence was introduced in December 2016. Before that, conduct such as this would have been charged as aggravated burglary, which also carries a maximum penalty of 25 years. Home invasions based on facts such as these, were the categories of aggravated burglaries which attracted the longest sentences. In the case of Hogarth[2], the Court of Appeal dealing with home invasion style aggravated burglaries, described them as a particularly nasty form of criminal conduct and went onto say this,
'Typically a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of offenders – acting in anger and often fuelled by anger and alcohol, is itself a terrifying experience for the householder, irrespective of what may occur after entry'[3]
[2][2021] 37 VR 658
[3]At paragraph 1
19These comments are obviously pertinent to the offences in this case, where you and Mr Moon, formed this idea to run Jacko out of town, for what you perceived was his reputation as a paedophile. In the case of the Meyers[4], the Court of Appeal provided a non-exhaustive list of factors a sentencing judge should consider in assessing the seriousness of an aggravated burglary. Those comments are relevant to this offence. Amongst the considerations are intent at the point of entry; the mode of entry; whether the offender was carrying a weapon (you had a knife); whether the offender was alone or in company; the time of day at which the burglary took place; what the offender knew or believed about who would be inside; and whether the offender was someone of whom the victim was particularly scared.
[4][2014] VSCA 314
20In this case your intent was to scare Jacko by your possession the knife, so you had an intent to assault. You entered after knocking at the door. Having looked at the depositional material, it appears the knife was visible when you were let in. You expected Jacko and others to be there. You didn't intend to assault or threaten Mr Rawlings or Ms Palmer, which is what happened inside. You are not charged over that conduct. The offence had occurred at 1 am and you were in company with Mr Moon. The entry was not prolonged. There is no evidence that anyone in the premises was a person who was particularly frightened of you.
21It seems to me there was minimal planning involved in this offence. You did not try to hide your identity with some type of commonly used disguise. The offending in my view, bears the hallmarks of an ill-considered, hastily conceived drunken idea.
22However, applying the factors from Meyers it is clear there are several serious aspects of this offence. Why should the victims have had to put up with being accosted in their own home in the middle of the night, by two men, one of whom, was holding a knife? What a frightening and terrifying experience that must have been for them.
23Nonetheless, looking at all the facts of the case I find your moral culpability is reduced by the absence of planning and the amateurish nature of this basic but serious criminal conduct.
24Moreover, you are not a person who has been dealt with before for violent offending and your admissions and cooperation indicate some insight and remorse. In my opinion, this offending was out of character for you. You do not present as a hardened violent offender. Having said all that though, it is inescapable that this was serious criminal conduct.
25Turning then to s 5(2H): one of the exceptions to the constraints in sentencing imposed by s 5(2H), is where pursuant to s 5(2H)(a), the offender has either assisted or has given an undertaking to assist law enforcement authorities in the investigation and prosecution of an offence.
26Your counsel Mr Lowy submitted that this exception is established in this case, based on your admissions in the record of interview, and by providing a statement adopting as true and correct, what you had said in the interview. The prosecutor, Mr Menon, conceded that it is open to find that the exception has been established.
27In the case of Farmer[5], it was submitted to the sentencing judge, that admissions made by the accused in the record of interview, constituted assistance. The sentencing judge rejected that submission. On appeal, the Court of Appeal held that it could not be inferred that by implicating his co-offenders in his admissions, the applicant thereby intended to or did assist police.
[5][2020] VSCA 140
28In Farmer, the co-offenders had already made admissions and the applicant knew that. He did not make a statement to the police. The Court of Appeal said,
'By its specific terms, paragraph (a) of s 5(2H), applies where a judge is persuaded that the offender has assisted or has given an undertaking to assist law enforcement authorities in either the investigation or the prosecution process. There is no warrant to distinguish further, and construe the provision as only apply to assistance of a particular kind, extent, or quality.'[6]
…
[6]At paragraph 79
‘Where assistance to police is relied on, the information imparted has to be capable of assisting police in their investigation of the offence. It will include a consideration of its capacity to achieve a favourable law enforcement outcome such as the recovery of stolen or dangerous goods, the interception of a shipment of illicit drugs, the prevention of a crime or the arrest or conviction of offenders.'[7]
[7]At paragraph 80
29In the case of Makieng[8], referring to Farmer the Court of Appeal said,
'As was made clear in Farmer, a sentencing judge must be persuaded that an offender has assisted law enforcement authorities (or given an undertaking to do so) in the investigation or prosecution process. Whether the judge is persuaded that an offender has relevantly ‘assisted’ will depend on what the offender has said in the context of the investigation or prosecution.'[9]
[8][2022] VSCA 52
[9]At paragraph 30
30As I said earlier, at the time you made your statement, Mr Moon had made a no comment record of interview. Mr Fleming was yet to make or sign his statement. He did not do so until 5 May 2021. Although the witnesses had identified you and Mr Moon, your statement which was consistent with what the victims had said was a further powerful piece of evidence against Mr Moon. This statement was included in the hand-up brief and then the depositions against Mr Moon. You would have been a compellable witness against Mr Moon at a committal or a trial in the event that you had pleaded guilty, which always seemed inevitable in this case.
31As it happened Mr Moon pleaded guilty, firstly at a committal mention last year and in this court on arraignment and therefore you were not asked to provide an undertaking to give evidence against him, because it was not necessary. Presumably, the strength of the case against him, which included your statement, was relevant to his decision to plead guilty. I infer that by making the statement and adopting your record of interview, you did intend to assist police in the prosecution of Mr Moon, and that your statement was an addition to the prosecution case, of real value in the case against Mr Moon.
32Therefore, in the circumstances I find that you did assist law enforcement authorities and the exception under s 5(2H)(a) is made out.
33Mr Lowy relied on your admissions and cooperation with police, your plea of guilty, the material in the psychological report of Ms Cidoni, indicating you had reduced your alcohol consumption and suffered from mild depression and anxiety, the absence of relevant prior or subsequent convictions, the fact that you have gainful employment, which you have now held for a period of a year, delay, and considerations of parity with the sentence imposed, on your co-offender, Mr Moon. He submitted I should place you on a community correction order.
34The prosecution submitted that notwithstanding considerations of parity, the nature and gravity of the events required a sentence of imprisonment.
Parity
35The principle of parity is designed to ensure consistency in punishment. Parity requires that like cases be treated alike. The concept of parity requires that when co-offenders are sentenced, any significant difference in the sentences should be capable of a rational explanation. However, the imposition of an excessively lenient sentence cannot justify the reduction of the current sentence to an inappropriately low level.
36There are some differences between you and Mr Moon. Firstly, the home invasion charge against Mr Moon did not include the particular of a possession of an offensive weapon, the knife, because it was not alleged Mr Moon knew you had the knife.
37However, Mr Moon pleaded guilty to threatening to kill Timothy Rawlings and to the summary offence of unlawful assault based on the punch that was delivered. It is not suggested that you were complicit in those two acts. In my opinion, inside the house Mr Moon took the lead role. Whilst your possession of the knife is a serious matter, it is not suggested you brandished the knife inside, or used it to threaten or assault anyone, once you had entered. In my judgment the knife did not play a prominent part in what happened inside the address.
38It is true that Judge Gaynor found that Bugmy[10] principles had some application and that Mr Moon suffered from PTSD and would have found prison more difficult and a burdensome experience than the ordinary prisoner. On the other hand, Mr Moon had a prior conviction in 2017 for unlawful assault, criminal damage and resisting an emergency worker and had received a previous community correction order, which he had breached. He had another prior conviction in June 2021 for assault with a weapon and he was on bail for that offence at the time he committed this home invasion offence. He had taken some important steps towards rehabilitation in the context of child protection involvement with his children.
[10][2013] HCA 37
39You do not have the Bugmy factors in your favour, but your prior history is less significant. You have never received a community correction order. I am also of the view that over the 18 months that have gone by since this offence you have taken steps to rehabilitate. You have had a job for most of that time and you have been seeking to achieve non-supervised contact with your children. You have reduced your alcohol consumption. I also accept this offending occurred in the context of a period of unemployment and increased alcohol consumption, during the unusual circumstances of the pandemic. You and Mr Moon are the same age.
40The case of Boulton[11] allows for a community correction order, even for serious offences such as this. If you had a significant prior history, involving prison sentences or even a community correction order, the balance would likely have favoured imprisonment. But the material here does not suggest you are entrenched in criminal activity and I think your prospects of rehabilitation are very positive with some assistance.
[11][2014] VSCA 342
41I have also asked myself the question posed in Boulton:
‘…whether there is any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all its disadvantages, is the only option?’[12]
[12] At paragraph 121
42I have considered the question of whether general deterrence, denunciation and just punishment, all significant sentencing principles in offending such as this, require immediate imprisonment in the circumstances of this case. I am of the view, that the need for specific deterrence while still relevant, is reduced in circumstances where you made full admissions, a statement and have favourable prospects of rehabilitation.
43Similar considerations reduce the need for community protection, which in my opinion, is best achieved by an order which facilitates your rehabilitation.
44A community correction order might well be seen as a lenient disposition for this offence of home invasion, but I am not of the view that the sentence imposed by Judge Gaynor was so lenient that I should depart from imposing a similar punishment in this case. I note the prosecution did not appeal the sentence imposed on Mr Moon as being manifestly inadequate. I have formed the view that to impose a prison sentence in your case would engender a justifiable sense of grievance given the sentence imposed on Mr Moon.
45As I have indicated, having found that the exception in s 5(2H)(a) applies, my judgment in this case is that I should not depart from the type of sentence imposed on Mr Moon. The community correction order I impose will have a significant punitive component. I asked for a suitability report, which I have received. It recommends community work, supervision, treatment and rehabilitation for alcohol and drug abuse and that some of the hours be on program conditions be allowed to be credited to the community work. The report does not recommend mental health assessment and treatment because in the report of Ms Cidoni, there is no evidence of any clinical disorders.
46So, I intend to place you on a community correction order. I need to tell you some things about that and then ask you whether you consent to such an order, all right? There are mandatory conditions to all correction orders. You cannot commit another offence during the period of the order. The period of the order that I impose will be two years. If you commit another offence for which you could be sent to gaol, then that would be a breach of the order, you could be brought back before me and I would have to re-sentence you, do you understand that? Mr Barca do you understand that?
47OFFENDER: Yes, I do, Your Honour.
48
HIS HONOUR: All right. You have also got to comply with any lawful directions of Corrections. You cannot leave Victoria without getting permission of Corrections. If you change your address or your job, you have to let Corrections know within two days. You have to report to Community Corrections within
two days of this order commencing. And you have to report to and receive visits from Corrections as directed, you understand all those core conditions?
49OFFENDER: Yes, I do, Your Honour.
50HIS HONOUR: All right, on top of that. You'll have to perform 200 hours of community work over two years. I order that 60 hours of treatment and rehabilitation satisfactorily undertaken can be counted as hours of unpaid community work. And if you do not comply with either of those special conditions you will be in breach of the order. You will also be under the supervision of a Community Corrections officer for a period of two years. You will have to undergo assessment and treatment for drug abuse or dependency and alcohol abuse or dependency. They are the special conditions.
51Now, if you breach any of those conditions you will be charged with contravening the correction order. The matter will be brought back before me and one of the options is for me to re-sentence you for this home invasion. If you don't complete the order, if you breach the order, it is very likely, I will have no choice but to put you in prison. Do you understand?
52OFFENDER: Yes, Your Honour.
53HIS HONOUR: All right. Do you understand the conditions as I have explained them to you?
54OFFENDER: I do, Your Honour.
55HIS HONOUR: Right. Do you consent to a community correction order in those terms?
56OFFENDER: Yes, I do, Your Honour.
57HIS HONOUR: All right, well I'll sign that order. You have to report to Shepparton Community Correction Services, in Wyndham Street in Shepparton, within two days, from the commencement of this order.
58OFFENDER: Yep.
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