Director of Public Prosecutions v Barrett

[2023] VCC 2021

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01122

DIRECTOR OF PUBLIC PROSECUTIONS

v

TREVOR BARRETT

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JUDGE:	Her Honour Judge Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2023
DATE OF SENTENCE:	19 October 2023
CASE MAY BE CITED AS:	DPP v Barrett
MEDIUM NEUTRAL CITATION:	[2023] VCC 2021

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Theft – Attempted theft – Affray – Home invasion – Handling stolen goods – Damaging property – Koori Court – Bugmy – Verdins – Prospects of rehabilitation guarded

Legislation Cited: ss 5; 5(2H); 6AAA Sentencing Act 1991

Cases Cited:Bugmy v The Queen [2013] HCA 37; DPP v Meyers [2014] VSCA 314; DPP v O’Brien [2019] VSCA 254; Hogarth v The Queen [2012] VSCA 302; Honeysett v R [2018] VSCA 214; R v Morgan [2010] VSCA 15

Sentence:                  Imprisonment for a period of 14 months and 28 days. Non-parole period of 8 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R. Fleming	Jonathan Makary
For the Accused	Mr M. Mazzone	Victorian Aboriginal Legal Service (VALS)

HER HONOUR:

1You have pleaded guilty to five charges of theft, one charge of attempted theft, one charge of affray, one charge of home invasion, one charge of handling stolen goods and one charge of damaging property. 

2You also agreed to this Court hearing, and pleaded guilty, to several summary offences namely: two counts of unlawful assault, commit offence on bail, deal with proceeds of crime, and two charges of possess controlled weapon. 

Circumstances of offending

3The offending relates to seven incidences across Western Melbourne between 2 March 2023 and 9 March 2023.  The full details of your offending are outlined in the prosecution opening, marked as Exhibit A and I sentence you on this basis.  The following is only a brief summary. 

Incident 1

4On 28 February 2023 the victim’s Toyota Kluger (registration ending 2DM) was stolen from the carpark of the Footscray Motor Inn.  On 2 March 2023 you drove the stolen Toyota Kluger to the BP Service Station in Kingsville (Charge 1).  You spoke to an employee while an unknown occupant of the car filled it up with petrol valued at $93.00 (Charge 2).  You returned to the vehicle and sped off from the petrol station at a fast rate of speed without making any attempt to pay.

Incident 2

5On 4 March 2023 at 3:15pm, victims, Tran Tuu and Dung Thai, were at their West Footscray business at Paramount Road when Ms Thai observed you driving the Toyota Kluger into the carpark.  She approached you and asked what you were doing there.  You told her you were in the wrong place, drove further into the carpark and then performed a U-turn positioning the Toyota Kluger next to Mr Huu’s vehicle.

6The victims both began to walk towards the Toyota Kluger just as you exited the driver’s side brandishing a 30-centimetre-long knife. You pointed the knife in the victims’ direction, who were approximately 3 meters away, without saying anything to them.

7You then entered Mr Huu’s unlocked vehicle and rummaged through it, throwing items onto the ground as the victims watched on in fear. After approximately 30 seconds, you re-entered the Toyota Kluger, having not stolen anything, and drove away (Related Summary Offences 7 and 8).

8The victims subsequently reported the matter to police.

Incident 3

9On the same day at 8:00pm, you arrived at the Coles Express at 291 Smithfield Road, Kensington in the Toyota Kluger.

10You entered the store and selected various items from the shelves and later left the store without making any attempt to pay (Charge 3). The value of the grocery items is unknown. As you began to drive away in the Toyota Kluger, an unknown customer from inside the Coles approached the vehicle in an attempt to intervene.  You exited the vehicle and brandished a knife and then ran towards the customer, lunging at him with it (Charge 4).  You then drove away.

Incident 4

11On 5 March 2023 at 9:43pm, You drove to Dumblane Avenue in Ascot Vale in the Toyota Kluger. You walked into the front veranda and stole a Workzone Washer (pressure washer) valued at $200 which belonged to the victim, Philip Star (Charge 5).

12The victim subsequently reported this to police.

Incident 5

13On 6 March 2023 at 2:08am, you in the company of unknown male offender gained access through an unlocked door to a unit at Ballarat Road, Footscray. The victims, 2 adults and a 9-year-old child were asleep inside. The female victim awoke to you and the unknown co-offender rummaging through her belongings in the bedroom (Charge 6).

14You and the unknown co-offender fled the address upon her waking, stealing her iPhone, an Optus branded phone and a backpack containing personal property (Charge 7).

15The victims subsequently reported this to police.

Incident 6 & Arrest

16On 7 March 2023 at 10:20am, you were observed by police sitting in Paisley Street, Footscray. As police approached, you fled on foot. Police followed you, requesting that you stop, however you continued running into the Nicholson Street Mall.

17Whilst running through the mall, with police in pursuit, you entered the driver’s seat of a parked Toyota Hiace (ending 1MT)  in attempt to steal the vehicle, however you were unable to as the keys were not in the ignition (Charge 8).

18You exited the vehicle and continued running until you were ultimately arrested by police.

19You were provided with a caution and rights before a search of your person was conducted. Police located the following items in your satchel bag:

a)10 personal bank cards in another person’s name (Related Summary Offence 18),

b)a flick knife (Related Summary Offence 20),

c)a kitchen knife (Related Summary Offence 19), and

d)a set of car keys belonging to a stolen Hyundai station wagon (Charge 9).

Incident 7

20Due to a pre-existing injury, you were ultimately transported to St Vincent’s Hospital and placed under police guard.

21On 9 March 2023 at 2:30pm, you were speaking with your girlfriend using a hospital phone when you became engaged in a verbal argument. You threw the phone at the window before punching a hole in the wall, causing significant damage to the wall (Charge 10).

22Police deployed OC spray and you were restrained by police and hospital security.

23At the time of your arrest, you were on three counts of bail (Related Summary Offence 13).

24On 7 March 2023, police executed a search warrant at your address at 206/70 Kinnear Street, Footscray. Police located items of clothing that matched clothing observed by police in CCTV footage from incidents 1 and 4.

25On 8 March 2023, police recovered the stolen Toyota Kluger in Footscray.

26You did not participate in a record of interview.

27You have been in custody since the date of your arrest on 7 March 2023. Accordingly, there are 226 days of pre-sentence detention.

Gravity of the offending

28Your offending varies in seriousness, with the most serious offending being the home invasion.  Home invasion is an inherently serious offence, as reflected by its maximum penalty.  The offending occurred in the early hours of the morning, whilst two adults and one 9 year old child were asleep in their home.  There was no dispute that this charge is a serious one. I do however accept that your offending does not carry with it some of the aggravating features seen in such cases as Hogarth,[1] where multiple offenders carrying weapons enter a home with the object of confronting or assaulting those inside.

[1] Hogarth v The Queen [2012] VSCA 302.

29I take into account that there was no weapon used or any assault.  Your intention was to steal. You didn’t force your way in but rather entered through an unlocked door.  There was no attempt by you to conceal your identity which also suggests a lack of planning.  Upon request by the victim, you immediately left. 

30I accept this places your case towards the lower end of objective seriousness for such a charge.  Nevertheless, as the Court of Appeal has made clear this is inherently serious offending, calling for both general and specific deterrence.  It is simply unacceptable for a person to feel unsafe in their home and to be confronted by strangers in this manner.[2]

[2] DPP v O’Brien [2019] VSCA 254; Hogarth v The Queen [2012] VSCA 302; DPP v Meyers [2014] VSCA 314.

31Home invasion is a Category 2 offence, and absent proof of one of the matters set out in s.5(2H) of the Sentencing Act 1991, a Court must impose a custodial disposition as contained in Part 2 of Division 3, and not in combination with a Community Corrections Order (‘CCO’). It was not submitted on your behalf that any such exception was enlivened.

32In relation to the charges of assault with a weapon, I take into account that while no doubt very confronting and frightening for the victims, the weapon was shown to them at a distance and there was no physical contact between you.

33In relation to the affray, I accept that this situation quickly evolved after you were approached by the victim who was attempting to stop your theft. There was no planning and it was spontaneous.  You acted alone, the victim did not sustain any physical injuries and the offending was of short duration.

34In relation to the dishonesty offences, I accept your Counsel’s submission that they are relatively unsophisticated, with little, if any, planning.

35In respect of the criminal damage charge I take into account that the offence took place in the context of you having suffered an injury to your hand and being placed under police guard in the hospital.  

36In relation to your offending, it is aggravated by the fact that you were released from custody on 10 December 2022 and you were on parole at the time of your offending.  In addition, you were on three counts of bail at the time.  On Christmas day you relapsed into methamphetamine use.  You had been experiencing intense anxiety upon your release and you found it difficult to manage your mental health problems.  It’s within this context that you relapsed.  You told psychologist Ms Carla Lechner, ‘as soon as I got on the judice, my mind-set changed … on the drugs you don’t think the same, not thinking at all … all my offending was to support my drug habit ...’

Victim Impact

37Dung Thai and Tran Huu, both victims of your assault, relating to incident 2, provided Victim Impact Statements. Dung Thai states that the ‘biggest thing from this is the psychological impact.’  Ms Thai speaks of the fear, always on her mind, that it may happen again and how it has impacted her work.  Tran Huu states ‘after this incident, my guard is up more when people come into the shop’ and ‘I am more careful now since this happened.’

Plea of guilty

38You have pleaded guilty at the earliest opportunity, which entitles you to a substantial discount.  By your plea of guilty you have indicated a willingness to facilitate the course of justice.  You have also spared the victims in this matter from having to give evidence in Court.  Your plea has considerable utilitarian value, and will attract a heightened amelioration of sentence in accordance with the Worboyes principles.  I also accept that your plea is indicative of remorse.  Your Counsel submits that you have continually expressed deep regret for your actions. You accept that the offending brings shame to yourself, the Yorta Yorta community, and the wider Aboriginal Community.  Psychologist Ms Carla Lechner states that you have indicated that you are immensely regretful for your actions.

Personal circumstances

39Your personal history was canvassed by your Counsel and in the report of Ms Lechner.

40You are a 24-year-old Yorta Yorta man. You have experienced a life marred by significant trauma, mental health issues, instability and substance dependency.

41You grew up in the Albury/Wodonga area on the Victorian and New South Wales border.

42You are the youngest of 5 children born to Mary Barrett (Briggs) and Clinton Pryor. You also have a half-sister.

43Your parents separated when you were around 5-6 years old, and you have not had much contact with your father since this time.  You recall that there was domestic violence between your parents.   

44You describe your early relationship with your mother as quite difficult, however, now instruct that you maintain a good relationship with her and your siblings.   Growing up you describe being ‘flogged’ with a jug cord or stick.  You also report that there was no food in the house and your mother was mostly absent.    

45At an early age, DHHS placed you with an aunt and uncle, due to parental substance abuse issues. Whilst this appears to have been a time of relative stability for you, you were eventually placed back in the care of your mother.

46As a child, living with your mother, you were exposed to drug use at an early age, instability and poverty and you also witnessed significant domestic violence perpetrated against your mother.

47You have described your older sister as the person who raised all the children.  Absent a parental figure, there were no rules at home and you and your siblings could do whatever you wanted whenever you wanted.  You have reflected on your lack of stability growing up and never being taught right from wrong throughout your early years of life.

48At around the age of 13 or 14 you were also the victim of further abuse as described in Ms Lechner’s report, which took place whilst at a “boy’s home”.

49Perhaps unsurprisingly, you have struggled with your education.  You have instructed that you always found learning “hard”.  You undertook your last years of schooling, being Year 10 and half of Year 11, whilst in a range of different juvenile detention facilities.

50You have never had a job. 

51You have been in an “on and off” relationship with Gemma for about nine years. You have a five-year-old daughter. Gemma has also very recently given birth to your son.

52You have a history of polysubstance abuse and you started using alcohol and drugs at the young age of 12-13.

53You began using cannabis at the age of 13, and then Ice at the age of 16. At the age of 24, you began using GHB.  When last in the community, you were abusing Ice, GHB, and Valium.

54You have a relevant prior criminal history mostly in Albury and Wodonga.  Your history commences in 2014 and is extensive and includes driving, dishonesty and violent offending.  You have served previous terms of imprisonment,  On 12 November 2019 you were sentenced to six years imprisonment commencing on 11 December 2019 with a non-parole period of three years.  This was an aggregate term imposed for a range of offences including aggravated assault armed with a weapon and robbery armed with offence weapon, serious injury. As already noted you were released on parole on 10 December 2022.

Principles of Bugmy

55Your Counsel submits that in your case the Bugmy principles are enlivened.[3]  The High Court in Bugmy recognised that a deprived and disadvantaged background such as yours:

May compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending… the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision.

[3] Bugmy v The Queen [2013] HCA 37.

56I accept that the Bugmy principles, as advanced by your Counsel, have application in your case and are relevant to sentencing and to an assessment of your moral culpability for your offending.

57Ms Lechner considers that your history of engagement with the criminal justice system has arisen in the setting of exposure to Complex Developmental Trauma, early and chronic drug addiction problems, and psychosocial immaturity.

Mental health & cognitive functioning

58Ms Lechner opines that you currently present with symptoms of Stimulant Use Disorder – in early remission in a controlled environment, Complex Post-Traumatic Stress Disorder, and high levels of anxiety.

59You advised Ms Lechner during your assessment that you struggled with your mental health after a lengthy jail sentence and eventually relapsed into drug use as a means of ‘self-medication’. Ms Lechner noted that this only served to aggravate your symptoms and contributes to increased behavioural dysregulation.

60Ms Lechner also states that in an earlier report she had written for you in 2015, she was made aware that your learning and behaviour had been problematic for many years. Testing conducted for that same report confirmed that your Verbal Comprehension Index was in the “borderline” range.  Current testing placed you in the ‘extremely low/borderline’ range of verbal intelligence with approximately 96% of adults performing better. 

61Ms Lechner’s report also indicates that you were previously diagnosed with a borderline/mild intellectual disability in 2004, 2008 and 2015.

62Ms Lechner states that “you impressed as cognitively, socially, and emotionally immature with a limited capacity to engage in reflective and consequential thinking. You have genuine language-based cognitive difficulties hence find it hard to process complex or too much information, to think about it critically and abstractly, to effectively problem-solve and make decisions. You are more inclined to act impulsively without considering the longer- term consequences”

63Your Counsel submits that while the application of the Verdins principles is complicated by your use of illicit substances, limbs 1, 3, 4, & 6 apply in relation to your cognitive impairment and diagnosis of complex PTSD.

64Based on Ms Lechner’s findings, it was submitted that your cognitive impairment and complex PTSD have reduced your moral culpability in that they’ve impaired your ability to appropriately assess the situations you find yourself in and realise the consequences of your actions in any moment; and contributed causally to the offending.

65In relation to limbs 3 and 4 it was submitted that the conditions from which you suffer should cause some moderation in general and specific deterrence.

66In relation to limb 6 Ms Lechner notes that, “You are at immense risk of becoming institutionalized and increasingly unable to cope with living in the community. Another lengthy period in custody is likely to aggravate your anxiety and will further contribute to the risk of institutionalization”.

67The prosecution accept that limb 6 of Verdins has application in your case.  In relation to the remaining limbs relied upon, they accept that they have application but submit that the mitigatory effect of your impaired mental function should be reduced due to your use of drugs and alcohol at the time of the offending.  Given the chronic and longstanding nature of your drug use it was submitted that you would have been aware of the likely effects of drugs on your mental state and behaviour. 

68On my assessment of the evidence, I accept that the Verdins principles, as advanced by your Counsel, do apply in your case.  In terms of the weight to be given to limbs 1, 3 and 4 I take into account that while your cognitive limitations and Complex PTSD exist independently of your drug use, and that your drug addiction problems in fact appear to have ‘evolved as a means of coping with underlying mental health problems originating in [your] formative years,’ your drug use clearly also contributed to your offending.

Other relevant mitigatory matters

Participation in Koori Court

69You elected to have your matter heard in the Koori Court and you participated in the Sentencing Conversation.

70In assessing the weight to be given to this mitigating factor I have considered a range of matters including your participation in the conversation; the insights you demonstrated; your expressed motivations and intentions to reform.  You were questioned and challenged by the Elders.  I accept that this would not have been easy for you and would have been challenging, particularly in light of your cognitive limitations.  On my assessment, you actively and genuinely participated in the process.[4]  You reflected on your behaviours, demonstrated remorse, spoke about your history and family and appeared genuinely motivated to change your ways.  You told the Elders that you had undertaken a range of courses in custody, including drug and alcohol, cultural courses and a men’s group. You’ve also commenced a 7-part course ‘Atlas’ which is comprehensive, dealing with various aspects of your rehabilitation.  You’ve also been painting and have submitted a painting ‘Future Dreaming’ to the Torch project.  During the conversation you made real efforts to share and to contribute and you demonstrated an ability to listen and to reflect upon the contributions and advise of the Elders.  It is important to your rehabilitation, and ultimately to the protection of the community, that you seize upon your current intention to reform and that you remain connected with your family and your community.    

[4] Honeysett v R [2018] VSCA 214; R v Morgan [2010] VSCA 15.

Totality

71At the hearing, the Court was told that you were currently  in breach of your parole in the NSW jurisdiction. Subsequently the Court was provided with a warrant confirming that your parole had been revoked on 25 January 2023 it seems for non-compliance with conditions.  Your parole ends on 10 December 2025 and you have an outstanding period of 2 years, 10 months, 2 weeks and 3 days to serve.  It was submitted that it was almost a certainty that upon your release from any sentence imposed in this jurisdiction, you would be extradited back to NSW to finish the remainder of your original sentence. 

72There is evidence before the Court that your parole has been cancelled.  It is not clear that you will necessarily be extradited, notwithstanding your counsel’s assertion.  I do accept that it is a likelihood.  Importantly, whether or not you are formally extradited, I accept that it is highly likely that you will return to NSW, given your community, family and cultural links to the State. In all the circumstances I therefore consider that there is a very real possibility that you will spend further time in custody serving your outstanding parole. In your case totality is a relevant and important consideration.[5] This is so even though it appears that your parole was revoked for non-compliance and the sentence imposed clearly relates to different offending at a different time. As the higher Courts have stated, ‘the principle of totality is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences.’

[5] See Jayde Allen v The Queen [2015] VSCA 89; R v Piacentino [2007] VSCA 49.

73Further, as already noted, I take into account your relative youth.  You’re not a youthful offender but you are nevertheless still a young man who impresses as ‘cognitively, socially and emotionally immature.’ There are well established principles that apply to young or youthful offenders that have relevance in your case.  While you are at the ‘upper end’ of what could be described as youthful, I accept that your rehabilitation remains an important consideration.  The weight to be given to your relative youth must also be balanced against the seriousness of the offending. 

Prospects for rehabilitation

74I accept the prosecution submission that your prospects of rehabilitation are guarded.  You have an extensive prior criminal history and I was told that you also have outstanding criminal charges in the Magistrates Court. 

75As already noted, Ms Lechner considers that you are at ‘immense risk of becoming institutionalised and increasingly unable to cope with living in the community’.  She considers that you would benefit from an intensive drug rehabilitation program, use of a replacement program and skills-based learning to manage your mood and stress. 

76You currently present as motivated, ultimately to return to your young family and to be a present and positive role model to your children.  You told the Court that you have aspirations to find work and to live a ‘normal life,’ one in which you are able and equipped to support yourself and your family.

77Overall, I consider that your prospects of rehabilitation are dependent upon your engagement in drug and mental health treatment and other supports.   

Sentencing Purposes

78The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. As I have already indicated, the application of Bugmy and Verdins principles, along with your relative youth, moderate these considerations, to some extent.

79In sentencing you I also take into account the principles of proportionality, parsimony and totality.  I must ensure that the sentence imposed overall reflects your criminality and circumstances.  In particular this has caused me to moderate and adjust my orders for cumulation. As previously canvassed, totality is also relevant in your case given your outstanding parole period.

80I also take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant to your case. I have had regard to the current sentencing practices for the offences to which you have pleaded guilty to, in particular home invasion. Of course, each case turns on its own particular facts and circumstances. I have also taken into account the maximum penalties that apply for each charge.

81As for sentence, your counsel accepts that a term of imprisonment is warranted but submits that in all the circumstances, particularly in light of the likely service of your outstanding parole, a term of imprisonment that does not require a parole period to be imposed would be an appropriate disposition.

82Taking into account all of the circumstances in your case, I am satisfied that the only just and appropriate sentence in your case is one of imprisonment.  Although the sentence I propose to impose does not mandate a non-parole period, I consider that a non-parole period should be set for the reasons I have canvassed and to best optimise your prospects of rehabilitation. I note your Counsel’s submission that in all likelihood you will be extradited upon the completion of any sentence but I don’t consider that this prospect should influence or determine the structure of the sentence I impose.  I have weighed up all relevant matters, including the gravity of your offending, victim impact and your personal circumstances. Also, I am mindful of the need to guard against the risk of institutionalisation in your case.   

Sentence

83Synthesising all relevant matters you are convicted on all charges and sentenced as follows. Given there are a number of charges, I will go through the term set and then orders of accumulation:

84Charge 1 - 3 months imprisonment

85Charge 2 – 1 month imprisonment

86Summary Charge 7 which is incident 2, I am doing it in chronological order, so these are the assault charges – 1 month imprisonment

87Summary Charge 8 – 1 month imprisonment

88Charge 3 – 1 month imprisonment

89Charge 4 – 3 months imprisonment

90Charge 5 – 3 months imprisonment

91Charge 6 – 10 months imprisonment – this is the base sentence

92Charge 7 – 6 months imprisonment

93Charge 8 – 2 months imprisonment

94Charge 9 – 3 months imprisonment

95Charge 10 – 1 month imprisonment

96Summary Charge 13 – 1 month imprisonment

97Summary Charge 18 – 3 months imprisonment

98Charge 19 – 1 month imprisonment

99Charge 20 – 1 month imprisonment

100Now, that covers all charges.  Do counsel agree?

101COUNSEL:  Yes, Your Honour.

102HER HONOUR: Orders for cumulation as follows: Charge 1, 1 month imprisonment; Summary Charge 7, 7 days' imprisonment; Summary Charge 8, 7 days imprisonment; Charge 4 on the indictment, 1 month imprisonment; Charge 7 on the indictment, 1 month imprisonment; Charge 9 on the indictment, 7 days' imprisonment; summary offence Charge 13, 7 days' imprisonment; summary offence charge 18 – 1 month imprisonment. 

103Now counsel, that should arrive at 14 months and 28 days' imprisonment.  I am going to give you a moment so that you can confirm that please.  Do you both agree?

104COUNSEL:  Yes, Your Honour.

105HER HONOUR:  Okay, thank you.  I can indicate I have checked this a number of times, but I do always check with counsel.  So it is 14 months and 28 days' imprisonment and I am proposing to set a non-parole period of 8 months[6].

[6] On 27 October 2023 pursuant to s.104B of the Sentencing Act 1991 the Court reopened proceedings to correct an error of law. On this date, the non-parole period of 10 months originally set was amended to 8 months to accord with s.11(3) fo the Sentencing Act. Otherwise the original sentence imposed on 19 October 2023 remains uncharged.

106I declare Mr Barrett, that you have served 226 days in pre-sentence detention, and I can indicate that pursuant to s6AAA, but for your plea of guilty I would have sentenced you to a term of some total effective two years and six months' imprisonment with a non-parole period of one year and seven months.  There was a forfeiture application that was by consent.  Is that right?  And not opposed?

107MS FLEMING: Yes, Your Honour.

108MR MAZZONE:  No, not opposed, Your Honour.

109HER HONOUR:  Okay, I'll make the forfeiture order.  Was there anything further counsel.

110MS FLEMING: Nothing further, Your Honour.

111MR MAZZONE:  Nothing further, Your Honour.