Director of Public Prosecutions v Barry

[2025] VCC 812

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-01109

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY BARRY

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2025
DATE OF SENTENCE:	13 June 2025
CASE MAY BE CITED AS:	DPP v Barry
MEDIUM NEUTRAL CITATION:	[2025] VCC 812

REASONS FOR SENTENCE
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Subject: Criminal Sentence
Catchwords: Self-Represented litigant at plea and trial – Aggravated burglary – Threat to damage property – Criminal damage – Deprived childhood – Workplace injury – Grievances with previous employer and work cover
Sentence: 2y Community Corrections Order, 200 hours community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. McPhie	Office of Public Prosecutions
The Accused was not represented

HIS HONOUR:

1Mr Anthony Barry, after a short trial you were found guilty by a jury of the offences of aggravated burglary, making a threat to damage property, by majority verdict, and criminal damage.  The maximum penalties respectively are 25 years, five years and 10 years' imprisonment.  You represented yourself throughout the trial.  I am required to sentence you consistently with the jury verdict.

2The offending, which occurred at the Cleanaway depot in Mornington in the early hours of the morning of 19 October 2021, has its origins in your employment with that organisation.  You joined the organisation, which is involved in industrial and garbage activities, in about 2015.  In July 2017 you suffered an injury whilst employed by the company.  The injury required surgery, which was not wholly successful.  You were off work for around 12 months and receiving payments, but the insurance company, after making the payments for a period of 12 months, ceased the payments in 2018, and you were given notice of termination of employment by letter dated 8 June 2018.

3You sought to challenge the decision of the insurance company, which was known as Comcare.  The matter went to the federal Administrative Appeals Tribunal and you were unsuccessful.  In the period prior to and following that determination you had difficulties with your lawyers and were casting aspersions on the conduct of the insurer and your employer, and your lawyers.

4In October 2021 you became aware that the solicitors who were acting for the insurer in your case had publicised the fact that they had successfully defended the case.  You became agitated as a result of this and determined to publicise your views as to the conduct of the lawyers and the insurers.  It was as a result of this that you preceded to commit the offences.

5On the night before 19 October 2021 you had been at the supermarket and formed the idea to occupy the building in order to publicise what you said was corruption on behalf of the company and the insurer.  You bought a large container of red coloured cordial.

6The following morning at about 3 am you attended at the premises of Cleanaway in Mornington.  You had with you a large container containing the red cordial.  You also had a duffel bag containing some provisions and also a spanner.  It also contained a jar of petrol, and a squeegee bottle containing petrol.

7When two employees of the company arrived to open the yard at approximately 3 am, you followed them into the yard.  They then entered the building and you followed them into the building.  You did not know those two employees.

8The events inside the building were captured on CCTV footage.  The two men were in the muster room or downstairs section preparing to commence work.  You walked in and proceeded to pull the keys of the vehicles off the key rack.  You then proceeded to tell the two employees, Messrs Collins and Searing, that they would not be required that day.  You sprayed petrol at the feet of the two employees and advised them that Cleanaway had been a bad employer.

9There was a short conversation with them.  They ascertained that you had a grievance with their employer, but you told them it was nothing to do with them.  When they first saw you they thought you may have been undertaking a COVID clean.  You told Mr Collins that you were going to torch the place.  This is the charge of making a threat to damage property.

10The two men at that point looked at each other, they could smell petrol, and they then proceeded to get their bags and leave.  They then called Triple 0.  Around the time they were heading for the door, you then preceded to pull a spanner out of your bag and started bashing a locked glass panel door that allowed access to the upstairs area of the office complex.  When the glass would not give, you preceded to kick the door until it burst open, doing some damage to the lock and frame, and shattering glass on the floor.  These matters constitute the charge of criminal damage.

11You conceded in the record of interview that you had no entitlement to enter the office or the yard, as your employment been terminated.  Further, you knew that you would have to break down the glass panel door in order to access the upstairs area.  Thus the elements of the offence of aggravated burglary were made out, in that you ended part of a building as a trespasser with an intention to damage property, when persons were present.

12After you exited the downstairs office part of the complex, you went upstairs and proceeded to barricade the stairs with a couch.  You a threw a chair downstairs.  It was during the COVID period and you later told the police that the actions you took upstairs were to retard police from removing you from the property.  You then proceeded to place a number of sheets of A4 paper on the window, making out the words, 'WORK INJURY CRIMINALS COMCARE CORRUPTION’.  The two employees had contacted Triple 0.  The police arrived.  The MFB were also called in case there was a fire.

13A police negotiator was called in.  He negotiated with you by telephone for a period of about three hours, until finally at around 8.20 am you walked out of the office complex peacefully.  You were then arrested and take him to the Somerville police station and were the subject of a record of interview commencing at 10:30 am.

14In the record of interview you indicated that you wanted to commandeer the depot and wanted to expose your employer and the insurer for corruption and have them charged.  You had the petrol and the drum that looked like petrol in order to make people think that you were serious.  You did not want to hurt anybody and wanted to expose corruption.  You wanted to limit any charges that you would face and were in the building to get attention, and had no intention of using the petrol.

Seriousness of offending

15The offences that you committed are each at the lower end of the scale.  No victim impact statement was filed.  It is clear that the two employees were upset and unsettled by what occurred that morning, and they indicated that in their evidence.  The damage to the property was not trivial, but it was limited.

16The premises were industrial premises and there was no forced entry, with your aim being to publicise your issues and the damage was inflicted in order to allow you to get up the stairs, so overall in the scale of matters of offences that come before this Court for these three types of offences, with no victim impact statement, this offending was on the lower end of the scale.

Personal Circumstances

17You are now aged 55 and have admitted a prior criminal record.  Your most recent appearance was in February 1996 where on a charge of incitement that was committed on 31 March 1995, you were convicted and fined $2,000.  You were aged 25 when you committed that offence which is 30 years ago.  You have also admitted in your criminal record earlier criminality that involves driving and theft offences, commencing when you are aged 17, and the offences also included cultivating a narcotic plant. You were sentenced to a suspended sentence for theft and other offences in 1988, which you were required to serve, and also for attempted theft in 1990.

18Given the staleness of your prior criminal record, and your age when the offending occurred, I regard your prior criminal record as having minimal relevance in sentencing here.

19I turn to your personal circumstances.  You are aged 55.  Your personal circumstances are set out in the mental health assessment that had been arranged following the plea.  You are currently living in Baxter with your two children, aged 24 and 26, and your wife.  The younger of the children has a disability and you are his carer.

20Your parents separated when you were aged around six and you ended up living in institutions as your mother could not cope, and you lived in boys' homes as your father could not cope.  Not surprisingly, you got involved in criminality in your teenage years, and this is evidenced from your criminal history.  It appears that your education ended at Year 8.  After your period of incarceration when you were around 20, you were able to move into employment, including in sales, and eventually commenced working with the Cleanaway in 2015.

21Thus, despite your blighted childhood you, commencing in your early 20s, moved successfully into the community and work and family.  A workplace injury in 2017 put a stop to this and has led you here today. You are currently on a disability support benefit.

22Your personal trajectory since your 2017 injury is set out in the report from
Dr Grech, a well-known criminal consulting psychologist, dated 18 October 2023.  That report indicates that at that point you were suffering from severe anxiety and clinical depression, triggered by a serious workplace injury, the handling of which has caused you extreme stress.  At that point you had been prescribed antidepressant medication and all had also consulted with a psychiatrist, Dr Robert Kruk.

23The report goes on:

He incurred a significant workplace injury on 18 July 2017, but at no stage has he been presented with adequate compensatory or vocational avenues, options or mechanisms to be able to meaningfully recover, or move forward in his life.  He has attended for treatment, cognitive behavioural therapy, and consistently presents as moderately to increasingly severely clinically depressed, as a consequence of his injury, combined with his inability to work since, and a lack of resolution or satisfactory legal recourse.  In the examiner's experience, Mr Barry has continually attempted to seek therapeutic and legal help, but has felt thwarted at every turn, and is understood he became involved in the seizure or protest at his former workplace during a break in treatment, and he is facing serious charges.  To the best of the writer's knowledge no one else was physically harmed at any stage during the protest, and Mr Barry's mental state and outlook has not significantly changed since his injury or following the incident that has given rise to the imminent County Court matter.  Mr Barry's thought processes have been quite well communicated and he presents a candid historian with a serious demeanour.  His depression has been compounded by the impasse in his employment situation, and further stress emanating from his pain, lowered mood, disability and inability to work.

24So it is clear from the report of Dr Grech that the motivation for your offending was to expose what you asserted was your inability to obtain proper recompense for your workplace injury.  It was on that basis that you represented yourself at the trial.

25At the trial you filed a defence that made reference to your inability to obtain proper assistance in addressing your perceived injustices.  When you were arrested you were in possession of a folder of documents that you were seeking to have the police or IBAC investigate.  Those documents were seized by the police.  You have been offered the opportunity to recover the documents but you have declined to do so.

26In sentencing you I must have regard to delays in this matter since the offending here.  The offending here is now over three and a half years old. Delays due to COVID lead to this matter not being listed until March 2024 for a trial.  That trial was adjourned as there was an issue as to whether you were fit to stand trial.  You declined to be examined and ultimately the matter was listed for trial on 25 March this year, and as I said, you represented yourself.  You have thus had this matter hanging over your head for a very considerable period.  In that period you have not reoffended.  Notwithstanding your plea of not guilty, this indicates in my assessment that you are on the path to rehabilitation.

Purposes of sentencing  

27The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

Sentencing submissions. 

28The learned prosecutor, Mr McPhie, submitted that while the offending here was at the lower end of the scale, the offending was serious enough to justify a combination sentence.  I arranged for you to be assessed for a community corrections order.  The assessment indicated that you did not consent to the order, but subsequently you have consented to a community corrections order.

29You were also examined by the Forensicare psychiatric nurse.  In a thoughtful report she indicates that you have somewhat of a history of non-compliance with treatment and services, you have been a long-term user of cannabis for therapeutic reasons.  She notes that you present with:

30Insomnia, low mood, and ideation that the former company is colluding with other services in perverting the course of justice where you are a victim of the harassment by your former employment, leading to further deterioration to your health and ability to return to employment.

31You have been prescribed with ADHD medication in the past, but have been unable to afford it.  The examiner is of the opinion that you would benefit from a mental health care plan.  Sentencing you presents significant difficulties.  Your conduct must be denounced. General deterrence is important. People who have grievances with the workplace compensation system and other government agencies, and indeed with lawyers, must be deterred from taking the matter into their own hands.  Here your conduct on that day was essentially performative.  You eschewed any intention to harm others.

32The learned prosecutor submitted that specific deterrence should be given weight because you have not acknowledged your guilt for your offences, and there is still an unresolved continuing grievance with the compensation system and those involved in it.

33Whilst I accept that you have a continuing grievance as manifested in your comments in the course of the trial, given the period of time that has elapsed and your 30 year offence free period prior to this offending, and your age, I would regard your risk of reoffending as low, and considerations of your rehabilitation are matters that need to be taken into account.

34As noted in the Dr Grech report, you have suffered from a blighted childhood, but have been able to put that beyond you.  You have been unable to satisfactorily obtain redress for your workplace injury.  It is clear that you would benefit from some sort of psychological therapy that will allow you to move forward with your life, notwithstanding whatever continuing disability you may have.

35In sentencing you I must have regard to considerations of parsimony, as I have discussed with you.  The sanction of imprisonment must be a last resort.  Your conduct must be denounced, and indeed your conduct was a failed attempt to obtain publicity and redress.  It is not in the community interest to reward you by making you a martyr by incarcerating you.

36So having regard to all those matters that I have referred, and also my discussion with you, and with the prosecutor in the course of the plea today, I have determined that an appropriate disposition of this matter is a community corrections order, and as I have discussed, the community corrections order with you, having regard to the assessments, you do need at least some assessment and treatment in regard to the use of drugs, and also you need a mental health assessment and treatment, that might include psychological, neuropsychological or psychiatric treatment, in order to allow you to get the tools to move on with your life.

37In order to punish you for your conduct, leaving aside the therapeutic aspect of a community corrections order, I am ordering that you perform 200 hours community work.  You have indicated that you do have a workplace limitation, but the community corrections people, after you have provided them with a certificate as to your capability of doing the work, then they will make arrangements for you, and you can offset any of the treatment that you undertake against the 200 hours, which must be performed in the next two years.

38So you are on the order for the next two years.  The order requires that you go to the Frankston office within two clear working days, and be inducted into the system.  You are on a good behaviour bond for the next two years.  You are under supervision.  If you do not comply with directions by the Office of Corrections, the officer down there, that breaches the order, and I have told you a breach of the order will bring you back before me.  It carries a three month sentence on itself, and you can be resentenced for the index offending.  Do you understand all that?

39OFFENDER:  Yes, Your Honour.

40HIS HONOUR:  You have agreed that you are going to consent to that?

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR:  I have made the disposal order for all the goods.  Is there any other matters I have not addressed, Mr McPhie?

43MR McPHIE:  No, Your Honour, that is everything.

44HIS HONOUR:  I want to thank Mr McPhie for his perseverance and his conduct in the trial.  Being a prosecutor against a self-represented litigant is hard work and he did a good job, and I thanked you in front of the jury for your courteous conduct in the course of the trial, Mr Barry.  You got your day in court, you might be unhappy with the outcome, but as a famous author said, such is life.

45You will receive a copy of the community corrections order. Adjourn the court.

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