Director of Public Prosecutions v Barry
[2021] VCC 718
•3 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00148
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KARL BARRY |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2021 | |
DATE OF SENTENCE: | 3 June 2021 | |
CASE MAY BE CITED AS: | DPP v Barry | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 718 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — theft — damaging property — burglary — theft of firearm — commit indictable offence while on bail — unlicensed driving — plea of guilty — early plea — severe disadvantage in childhood — drug abuse — attention deficit hyperactivity disorder — ADHD — post-traumatic stress disorder — PTSD — moral culpability — burden of imprisonment — criminal history — specific deterrence — general deterrence — community protection — denunciation — just punishment
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of three years and one month with a non-parole period of two years
Section 6AAA declaration: total effective sentence of four years and three months with a non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Teo | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J Willard | Papa Hughes Lawyers |
HER HONOUR:
1Karl Barry, you have pleaded guilty to four charges of theft, for which the maximum penalty is a term of imprisonment of 10 years. You have also pleaded guilty to two charges of damaging property, for which the maximum penalty is also a period of imprisonment of 10 years, two charges of burglary, for which the maximum penalty is a term of imprisonment of 10 years, and one charge of theft of a firearm, for which the maximum penalty is a term of imprisonment of 15 years.
2You have also pleaded guilty to the summary offences of unlicensed driving, for which the maximum penalty is 60 penalty units or six months’ imprisonment, and committing an indictable offence while on bail, for which the maximum penalty is 30 penalty units or three months’ imprisonment.
3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’, which sets out fully the agreed facts and circumstances of your offending.
4In brief, the circumstances of your offending are as follows.
Charge 1 and Summary Charge 3: Theft and Unlicensed Driving
5On 17 June 2020 at approximately 4:33am, you and your girlfriend and two other co-offenders stole a pallet of solar panels from outside a service station at Point Cook Road in Seabrook. The value of the panels was $15,850. They have not been recovered. You drove to the service station. You were unlicensed at the time of the offending. Your license had expired on 9 November 2015.
Summary Charge 4: Unlicensed Driving
6On 10 June 2020 at approximately 7:58pm, you drove to the Site Safe storage facility located at Castro Way in Derrimut, where you had previously stored items. You were accompanied by others who were in a red sedan. You opened the gate using a PIN access code but you were unable to enter through a second gate. The driver of the red sedan drove forward into the gate, causing damage. You were unlicensed driving on this occasion, again, your license having expired on 9 November 2015, and it is a summary charge of unlicensed driving that attaches to that incident.
Charge 2: Criminal Damage
7On 24 June 2020 at approximately 3:40am, you returned to the Site Safe storage facility. As a result of your previous attendance at the facility and money owed, your storage container had been locked by the owner. You again used your PIN access code to gain entry into the storage facility. You then walked to the second gate, where you cut the wire fence and entered the storage yard. You then walked to the shipping container where your belongings were stored and forced the lock that had been placed on the container.
8An unknown person drove a white Holden Captiva to the gate. You made multiple trips between your shipping container and the car, taking an unknown quantity of your personal items.
9All of this was captured on CCTV. The damage to the fence and lock was valued at approximately $200, and it is a charge of criminal damage which attaches to this incident.
Charges 3, 4 and 5: Burglary, Theft and Theft of Firearm
10Moving to 11 July 2020, at approximately 4:09am, you drove to a Shell service station situated at Cook Street, Port Melbourne. At the time, your co-accused Mr Reddy and your girlfriend were passengers in your vehicle. CCTV footage depicted you and your co-accused washing your hands at the petrol bowsers. The CCTV footage also depicted you and your co-accused and your girlfriend enter the store.
11You then drove to the Port Melbourne storage facility situated at Lorimer Street, Port Melbourne, parking in the parking bays opposite the entrance. At 4:26am, you and your co-accused forced the pedestrian gate and walked down the main driveway. Your co-accused used an unknown tool to cut the lock of the storage shed and shipping containers hired by the victim, George Korfiatis. You and your co-accused removed a number of items including CCTV cameras, a battery charger, a number of model cars, a Ford XA compliance plate, a key box safe, a number of vehicle keys, remote control devices and a number of gold coins.
12You also located a secured firearm safe and forced the lock off. Four firearms were removed from the safe, namely:
(i)a Sportland 12-gauge shotgun;
(ii)a Weatherby .223 rifle;
(iii)a Remington 30-06 rifle; and
(iv)a Norinco .22 rimfire rifle.
All of these items were placed into wheelie bins and transported to your vehicle. The total value of the firearms was approximately $6,000. The value of the other items was in excess of $10,000, with the stolen Ford XA compliance plate depreciating the value of the original vehicle by approximately $60,000.
13Again, this offending was captured on CCTV footage, and that incident is the basis of charges of burglary, theft and theft of firearm.
Charges 6, 7, 8 and 9: Burglary, Theft and Criminal Damage
14Moving to 11 August 2020, at approximately 8:54pm, your co-accused Mr Reddy drove to an apartment building situated at Woodward Way, Caroline Springs. An unknown resident opened the garage door of the carpark and Mr Reddy drove in. Once inside the carpark, you and Mr Reddy physically broke windows to multiple vehicles and cut holes into multiple storage cages:
· A red Mitsubishi sedan belonging to Brett Stevens had its window smashed but no items were stolen from it. The cost to repair the window was $350.
· A grey Mazda sedan belonging to Angie Rakonoc had its window smashed, and an e-TAG and remote control were stolen from within. The value of the e-TAG and the remote was $17 and the cost to repair the window was $350.
· A black Nissan SUV belonging to Suhdija Cehic had its window smashed, and assorted power tools and painting equipment valued at $1,500 were stolen. The cost to repair the window was $325.
· A silver Suzuki belonging to Emily Falzon had its window smashed, and a pair of Gucci sunglasses valued at $800 was stolen. The cost to repair the window was $350.
· A storage cage belonging to Jake Newton was cut open, and a container containing Nissan Skyline vehicle badges, a number of spare parts, VicRoads registration papers and a Sony head unit valued at $500 was stolen.
· A storage cage belonging to Vinay Prasad was cut open, and a toolbox and a number of tools valued at $400 were stolen.
15Again, the incident was depicted on CCTV footage, and charges of burglary, theft and committing criminal damage are attached to that incident.
Summary Charges 2, 10, and 21: Commit Indictable Offence while on Bail
16At the time of the offending, you were on two counts of bail.
Investigation and Record of Interview
17On 13 August 2020, the police executed a search warrant at your address at Gail Court, Albion. Clothing matching the CCTV footage captured at the BP service station and Site Safe Port Melbourne storage was seized. Multiple car keys were also seized from a safe, which were later identified by Mr Korfiatis as keys stolen from the Port Melbourne storage unit.
18Save for the keys found during the search of your premises, none of the stolen items in any of the incidents the subject of the offending have been recovered.
19On 19 August 2020, you attended at the Melbourne West police station and you were arrested. You participated in a record of interview. You made full admissions in relation to stealing the solar panels from the BP service station. You also made full admissions to the burglary at Port Melbourne storage, but you would not name your co-offender. In relation to the solar panels, you stated that you put them in your front yard, and you are not sure what happened to them after that.
20In relation to the firearms, you stated that they were a chance finding. You told police you sold two of the firearms the day after the burglary but did not know what had happened to the other two. You said you did not know what happened to other items from the burglary, apart from the car keys found at your home.
21You denied being involved in one of the burglaries. That was the burglary at 1 Woodward Way, Caroline Springs.
Plea of Guilty
22You indicated that you would plead guilty at the committal hearing on 28 January 2021, prior to the calling of any witnesses. This is an early plea. It has utilitarian value in that it has saved the witnesses and the community the cost and trauma of a trial. This is of heightened value in the continuing situation of uncertainty in the administration of criminal justice in this State caused by the COVID-19 pandemic. I also accept that your plea of guilty in combination with your admissions to the police is indicative of some remorse on your part.
23Your offending was an ongoing course of dishonest and destructive behaviour committed with your co-accused, during which you stole the personal property of multiple victims.
24I am told your co-accused in respect of charges 2–9, Manuel Reddy, is contesting the charges and as yet no trial date has been listed. Consequently, there are no issues of parity which arise in sentencing you.
25By far the most serious charge is the theft of the firearms. Your counsel Ms Willard submitted that your offending was not pre-meditated and that you came across the firearms and stole them opportunistically. The prosecution represented by Mr Teo did not dispute this. But even so, in my view, this does not diminish the obvious seriousness of your offending. You sold two of the firearms and told police that you did not know what had happened to the other two. Therefore, as a consequence of your offending, four firearms are circulating in the community, their whereabouts unknown. This is a dangerous situation and allows for the distinct possibility that the firearms will end up in criminal hands and be used to further criminal activity.
Personal Circumstances
26I turn now to your personal circumstances. You were born on 18 October 1996. You are presently 24 years old. You are still a relatively young man and your youth is an important consideration in the sentence I pass upon you.
27You had a highly disadvantaged childhood and adolescence. Your mother was a heroin addict and was in and out of gaol. Even when she was not incarcerated, she was unable to properly care for you or your siblings. Your father was largely absent during your childhood and you and your siblings experienced severe neglect, often being left without food.
28Your family was regularly evicted from different houses and moved several times. You attended a number of schools and your education was sporadic and disrupted. You left school in year eight, after which you attempted an apprenticeship in plumbing, but you found the academic side too difficult and did not complete your apprenticeship.
29You lived with an aunt between the ages of 13 and 15, but were asked to leave and became homeless at the age of 15.
30It was not disputed that the severe disadvantage you endured during your childhood and formative years engages Bugmy principles and, in accordance with those principles, I will moderate your moral culpability.[1] Your moral culpability cannot be equated with that of a person who grew up in a stable and loving household. Your upbringing is clearly related to you lacking a sense of proper social norms and the need to be law abiding, and is related to your poor education and your diminished prospects as a consequence.
[1] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
31You have been a polysubstance drug user since your teens, smoking cannabis and then becoming addicted to methamphetamine, which you started to use in conjunction with GHB when you were 18.
32You have been in a relationship for five years and you have a two-year-old daughter. The Department of Health and Human Services is involved with your family and they have requested that you undertake a men’s behavioural change program and undergo regular drug screening if you are to have any future contact with your daughter.
33A report was tendered on your behalf from Alison Mynard, clinical psychologist. Ms Mynard met with you on 28 April 2021 and again on 6 May 2021. Ms Mynard gives the opinion that although there was no diagnosis of attention deficit hyperactivity disorder (‘ADHD’) during your childhood, nevertheless, in her opinion on the basis of her testing and your presentation, you have symptoms consistent with ADHD. She also found you to be depressed and anxious, and to be suffering complex post-traumatic stress disorder (‘PTSD’), referrable largely to your traumatic childhood. She also found you to have borderline intellectual functioning.
34On the basis of Ms Mynard’s report, Ms Willard submitted that a number of limbs of Verdins were engaged in sentencing you.[2] First, she submitted that your moral culpability was moderated. You reported to Ms Mynard that you were drug affected at the time of your offending. Ms Mynard states:
In a state of drug intoxication, with such ongoing emotional dysregulation, psychosis, with underlying learning issues, depression and anxiety, Mr Barry’s ability to think clearly and with reasoned judgments at the time of the offending was quite impaired.
[2] R v Verdins (2007) 16 VR 269 (‘Verdins’).
35Although your offending was drug-related, I accept that you have been an entrenched drug user from an early age and this is related to your mental health difficulties. On that basis, I will allow for some modest reduction in your moral culpability pursuant to Verdins limb 1.
36Ms Willard further submitted that there should be some moderation of the principles of specific and general deterrence. Again, I agree with that submission and will somewhat moderate your sentence in respect of those two sentencing principles.
37Ms Willard also relied on Verdins limbs 5 and 6, which are the limbs that apply to your situation in custody. Because of your mental health difficulties, your time in custody will be more onerous than that of a prisoner in robust mental health and you may suffer a deterioration of your mental health in custody, and this is in combination with your youth and in the present circumstances of lockdown and all the ongoing uncertainty connected with that. Again, I accept that submission and will allow some modest application of Verdins principles 5 and 6.
38You have a criminal record with multiple convictions relating to drug use and dishonesty offences. You have always previously been dealt with in the Magistrates’ Court, and the offending for which you now fall to be sentenced represents an escalation in your offending behaviour. You last appeared in the Magistrates’ Court in January 2020, where you were put on a further community correction order for breach of a community correction order which had been imposed on 13 November 2018 for drug, driving and dishonesty offences.
39You have in the past been sentenced to short periods of imprisonment. I am guarded about your prospects of rehabilitation given your drug use, but I do accept the submission that your daughter and your desire to see your daughter and have a relationship with your daughter, and the conditions imposed by the DHHS that will facilitate you doing that, will motivate you or at least should motivate you to rehabilitate.
40Notwithstanding that I have allowed some moderation of the principles of specific and general deterrence, they are still nevertheless engaged in sentencing you, as are the sentencing principles of community protection, denunciation and just punishment.
41I had you assessed for a community correction order. You were assessed as suitable. However, notwithstanding that community correction orders have a punitive as well as a rehabilitative component, in my view a community correction order, even in combination with a term of imprisonment, would not be sufficiently punitive given your offending and, most particularly, as would have been apparent by these sentencing remarks, in respect of charge 5, the theft of the firearms.
42I agree with the submission of the prosecutor that the only appropriate sentence in the circumstances is a sentence of imprisonment combining a head sentence and a non-parole period.
43I intend to sentence you as follows.
44You are convicted on all charges.
45On charge 1, you are sentenced to 12 months’ imprisonment.
46On charge 2, you are sentenced to three months’ imprisonment.
47On charge 3, you are sentenced to 12 months’ imprisonment.
48On charge 4, you are sentenced to 12 months’ imprisonment.
49On charge 5, you are sentenced to two years’ imprisonment.
50On charge 6, you are sentenced to 12 months’ imprisonment.
51On charge 7, you are sentenced to six months’ imprisonment.
52On charge 8, you are sentenced to six months’ imprisonment.
53On charge 9, you are sentenced to six months’ imprisonment.
54On each of the summary charges, that is, the three charges of committing an indictable offence while on bail and the two charges of unlicensed driving, you are sentenced to one months’ imprisonment.
55Charge 5, the sentence of two years, is the base sentence, and I make the following orders of cumulation: there will be three months cumulation on charge 1, three months cumulation on charge 3, two months cumulation on each of charges 7, 8 and 9, and one month cumulation on one of the summary charges of committing an indictable offence while on bail, summary charge 2.
56That makes a total effective sentence of three years and one month. I am directing that you serve two years’ imprisonment before being eligible for parole.
57I declare that the pre-sentence detention served in this matter is 187 days including today and I direct that that be entered into the records of the Court.
58Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, I would have sentenced you to a total effective sentence of four years and three months with a non-parole period of three years.
59I make the forfeiture order sought by the prosecution.
60I do not propose to make any order on your license.
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