Director of Public Prosecutions v Barry

[2021] VCC 2185

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE  Case No: CR-19-00683

CRIMINAL JURISDICTION   CR-20-00441

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY BARRY

---

JUDGE:	HER HONOUR JUDGE M SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	20th - 22nd and 25th – 27th January, Plea: 28th April
DATE OF SENTENCE:	28 May 2021
CASE MAY BE CITED AS:	DPP v Barry
MEDIUM NEUTRAL CITATION:	[2021] VCC 2185

REASONS FOR SENTENCE

---

Subject:         Criminal Law

Catchwords:  Attempted Armed Robbery – Intentionally Damage Property – Possessing a drug of dependence

Cases Cited: DPP v Terrick [2009] VSCA 220 – Neale v R (1982) 149 CLR 305

Sentence:     Community Correction Order for a period of 12 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	DPP
Stary Norton Halphen
For the Accused	Mr L. Richter with Mr J. McGarvie – Trial Mr J McGarvie – plea and sentence

HER HONOUR:

1Anthony Barry, on 28 January 2021, you were found guilty by a jury of one charge of criminal damage to which you had pleaded guilty at your trial.  That has a maximum sentence of 10 years' imprisonment and is on Indictment ending in 190A.  You pleaded not guilty and were found not guilty of one charge of attempted armed robbery on the same indictment. 

2On 28 April 2021, you pleaded guilty to one charge of possessing a drug of dependence, being cannabis, on Indictment ending in 190B.  That has a maximum sentence of five penalty units if I am satisfied on the balance of probabilities that it was a small quantity of cannabis and not possessed for the purpose of trafficking. 

3On that day, you also consented to this court dealing with a summary charge of committing an indictable offence whilst on bail and pleaded guilty to that charge.  That has a maximum sentence of 30 penalty units or three months' imprisonment.

4I will briefly summarise the facts of your offending. 

5On 9 November 2018, you were riding a mobility scooter on the footpath of Ballarat Road, Sunshine when you came to the intersection with Ashley Street.  A car was pulled up at the intersection waiting to turn left into Ballarat Road.  That car was driven by Solomon Weldeamlak. 

6An altercation occurred at that intersection.  Your account is that Mr Weldeamlak hit your scooter as you went to cross the road with his car and that he drove off to a nearby fast-food carpark without stopping to check on you. You followed him on your scooter and an argument took place between you with Mr Weldeamlak denying that he had hit you or your scooter.   

7You became very angry and used a knife to slash all the tyres of Mr Weldeamlak's car.  That is the subject of the charge of criminal damage.  Mr Weldeamlak had all tyres replaced that same day at a cost and inconvenience to him which I take into account in deciding the appropriate sentence. 

8You then rode your scooter to a business further along Ballarat Road and admitted to staff there that you had slashed the tyres of the 'guy that had nearly run you off the road' and that you had injured yourself in the process.  Your injuries were treated by a staff member and it was agreed with them that you could leave your scooter there to collect later. 

9On 21 November 2018, police were called to the business as the scooter had not been collected.  You happen to arrive in a car while the police were there.  You were arrested in relation to the events of 9 November and you were searched, as was your car. 

10In your car, the police found a tin containing cannabis with a total weight of 22 grams.  A small quantity of cannabis is defined as being no more than 50 grams.  That is the subject of the charge of possessing a drug of dependence. 

11You were on bail for an unrelated matter from 15 November.  As a result, committing the offence of possessing a drug of dependence on 21 November is the subject of the summary charge of committing and indictable offence whilst on bail.  You were held in custody from your arrest on 21 November to 20 December 2018. 

12You admitted to a considerable criminal history, spanning three States.  Your record commences in Western Australia in 1982 and goes to 1991.  Then there are a handful of charges in South Australia in 1995.  Your record in Victoria goes from 1984 to 2008, and then begins again in October 2018, the month before you committed the offences for which I am sentencing you.  Your record ranges from driving offences to drug offences, dishonesty, violence, weapons and damage offences. 

13Your counsel pointed out a number of matters that I should take into account in your favour in deciding the appropriate sentence. 

14The first of these is that you pleaded guilty to all charges.  You are entitled to have that fact taken into account in your favour and I do so.  Because of your plea of guilty, the community was saved the time and cost of a trial or contested summary hearing.  Although a trial was held in respect of the events of 9 November, you were acquitted of the most serious charge and, as you pleaded guilty before the jury on the charge of criminal damage, the fact that a trial was held does not reduce the benefit to the community by you pleading guilty to the charges that I am dealing with today. 

15Further, I accept that the plea of guilty to the criminal damage is a sign of genuine remorse for the victim whose car tyres you slashed. In a report[1], that I will return to later, Dr Anderson noted that you told her, while you felt you had been wronged by Mr Weldeamlak, you are ashamed of your behaviour because, you said, you had come so far in your rehabilitation and to engage in that type of behaviour was no longer typical for you.  To enter the plea of guilty when you still feel you were wronged in the initial altercation carries some weight in that it shows some insight to your overreaction.  As I said, I will return to these aspects later.

[1] Exhibit 2 – Report of Dr Anderson, 26/04/21

16Next, I take into account the delay in this matter being finalised.  Your trial was due to start in March 2020 and was adjourned to a date to be fixed shortly before it was listed to start, when all jury trials were suspended due to COVID-19 on 16 March 2020.  Although ultimately the nine month delay in relisting your trial was less than for other trials, you did not know until later in 2020 when your trial would be relisted and I take into account in mitigation that you had the serious offence of attempted armed robbery, of which you were ultimately acquitted, hanging over your head for a longer period than you expected.  With your criminal record, the risk of a lengthy term of imprisonment, if convicted, was an added stress to the extra delay to finalisation of the trial. 

17Further, it was submitted that, had the offers you made to plead in February and April 2019 been accepted, it is possible that a summary plea hearing could have been heard later in 2019 and the delay to now, May 2021, avoided.  I do not know what the offers consisted of, but if it was similar to what you are facing now for sentencing, then the submission has some force. 

18Next, I take into account your personal circumstances and background.  Details are contained in the written[2] and oral submissions of your counsel and in

[2] Exhibit 1 – Defence Outline of Submissions

[3] Exhibit 2

Dr Anderson's report[3], so I will not repeat them in full.  It is sufficient for me to say that I accept that you were a vulnerable child exposed to destructive influences which led to disconnection with your family (other than your mother), led to a disrupted, unfinished education and led to an early commencement of illicit drug taking which has continued to this day. 

19Although you are now aged 56 years, it is well documented in research[4] and recognised by the courts[5] that interrupted school attendance and childhood exposure to family violence and to alcohol and other drug abuse can have lifelong impacts.  It is for me to decide how those impacts on you relate to the offending for which I am sentencing you and how they affect the sentencing considerations that I must take into account. 

[4] Helpfully compiled in

[5] For example DPP v Terrick [2009] VSCA 220 [46]

20The report of Dr Anderson[6], a clinical neuropsychologist, summarises the impacts on you from her professional perspective.  Her opinion is that your exposure to antisocial attitudes and violence and an overall lack of psychological safety contributed to you learning, as a child, that violence was the most efficient means of not only protecting yourself, but also having your needs met.  Over time, your sense of identity became entrenched in asserting yourself in antisocial communities such as outlaw motorcycle gangs.  This association explains much of your criminal history.

[6] Exhibit 2

21Because the environment in which you grew up meant that you were unable to safely explore or experience the full range of emotions and appears to have been devoid of exposure to any pro-social positive role models of effective emotional coping skills.  You now demonstrate significant deficits in your own emotional coping skills and, as an adult, you have used violence and/or illicit drugs as a means of coping with any form of emotional distress.  As a result, your capacity to positively function in society in a meaningful way has been impaired. 

22Dr Anderson is of the view that, even when, in alter adulthood, you attempted to live a pro-social lifestyle - that is, the period of stability with no offending, long-term employment and reduced drug taking - you were still largely isolated from the community and experiencing dysfunction within day-to-day relationships. 

23Dr Anderson also assessed you as demonstrating clinical features of complex post-traumatic stress disorder, major depressive disorder of mild severity, antisocial personality disorder, stimulant use disorder of moderate severity, and cannabis use disorder of mild severity[7].

[7] Ibid, [7.2]

24I accept Dr Anderson's opinion expressed in paragraph [7.3.1] of her report that your early life experiences and the subsequent development of your psychological profile are relevant factors to consider with regard to your lifelong pattern of offending behaviour, and adds to the offending for which I am sentencing you. 

25Despite your efforts at rehabilitation in the years 2008-2018, the significant deficits in your adaptive functioning became more evident in the context of your grief and complex psychological distress following your mother's passing.  You relapsed into illicit drug taking (smoking methylamphetamine daily for about 12 months) and relapsed into your default antisocial behaviours to cope.  Your mood was significantly reduced at the time of the offending and this in term likely reduced your threshold for tolerating further distress and precipitated your emotional volatility when faced with a situation, as you saw it, with Mr Weldeamlak. 

26I find that your disadvantaged childhood has impacted your life in many ways.  It led to your criminality from a young age, it led to your early and ongoing use of illicit drugs, it has impacted significantly on your mental health, and it has had a lifelong impact on your ability to function as a prosocial member of the community in which you live.  Having said that, I recognise and acknowledge the period of 10 years between 2008 and 2018 that you were able to live as a contributing member of society, working, purchasing a home, and being relatively drug free.  As your counsel submitted, that shows that you can do it.  As Dr Anderson recommended, you need support to keep on doing it[8]. 

[8] Ibid, [8.3] – [8.5]

27Unfortunately, when bad things happened in your life, you lacked the personal resources to cope and fell back into old habits.  First, you were diagnosed with bowel cancer in 2016, having surgery in 2017, followed by chemotherapy.  The good news is that you are now considered to be in remission.  The not so good news is that I am told that this life-threatening cancer undermined the efforts you had made towards your rehabilitation. 

28The next thing that happened was that you lost your mother to cancer in 2018.  Because you do not get on with her partner, you were not able to participate in the funeral and grieve for your loss with the family.  Your mother had assisted you in your rehabilitation on your release from gaol, in finding you employment in her place of work and acting as a guarantor for the purchase of your house.  You had shared interests and she was a real support for you. 

29With her passing, you lost confidence and during your mourning, you suffered a relapse and returned to drug use, lost your employment and fell apart emotionally and psychologically.  You committed other offences after a 10-year period of reform.  It was against this background that, about six weeks after your mother's death, you had the altercation with Mr Weldeamlak and completely overreacted in slashing his tyres after feeling he had not dealt with you appropriately after the incident at the intersection of Ashlea Street and Ballarat Road. 

30With respect to the charge of possessing cannabis, I accept that this was a small quantity that you had for your own use.  While you have been charged with this type of offence many times, the circumstances of this particular offence means that it is at a low level.  You apparently a back injury some years ago in your work as a delivery driver and rely on cannabis as a form of pain management.  While I accept that as your reason, it is, of course, not an excuse for possessing cannabis. 

31You told Dr Anderson[9] of your significant and long-standing history of polysubstance abuse from the almost daily intravenous use of ‘speed’ (methamphetamine) from the age of 13 to 36 years, including while in custody, to smoking ‘ice’ (methylamphetamine) daily after your mother passed in 2018, which you now report as being reduced to use of about one ‘point’ per week.  While you have completed many drug programs in the past, Dr Anderson recommends that you undertake this work again. 

[9] Ibid [5.4]

32With respect to the charge of committing an indictable offence whilst on bail, I find that the significant deficits in your coping skills and emotional regulation which contributed to your long-standing drug abuse, also contributed to your commission of this offence.  It is a low-level example of this type of offending. 

33Your counsel submitted that your most serious offence, the criminal damage, arose out of considerable emotional distress, as reported to Dr Anderson which I have outlined.  Counsel further submitted that your level of distress is relevant to my assessment of your moral culpability[10]. 

[10]Neale v R (1982) 149 CLR 305, 324

34I find that your moral culpability for the charge of criminal damage is effected by your mental health, distress and dysfunctional background for the reasons I have accepted and outlined from Dr Anderson's report.  Your moral culpability is somewhat lessened by these factors which arise from your dysfunctional early childhood and were therefore not within your control. 

35What is within your control is taking up any opportunity to manage your issues.  You successfully reformed to a degree over the period from 2008 to 2018 and the level of offending for which I am sentencing you is less serious than some of your violent offending in the past, but your risk of reoffending remains high and your ability to rehabilitate is linked to the need for you to improve your coping skills and emotional regulation.  Fortunately, you appear willing to accept assistance on these issues, as I will come to in a moment.

36Your current circumstances are that you are medicated with anti-depressants which is managed by your GP, but you have had recent suicidal ideation, and are fearful of another possible cancer diagnosis.  You seem to remain isolated from others in the community, although your counsel did tell me that you connected with your mother's family, your uncles, after her passing and learned more of your Aboriginal family of origin.  That may well be an important community link for you in future. 

37You are currently on a Community Corrections Order from the Magistrates' Court.  I received information that you have been doing very well on the order in terms of your program conditions[11].  You have completed the drug treatment condition and you have engaged positively in both supervision and your mental health treatment.  I have been informed that there is other offending to be dealt with which may breach that order.  Those charges have been adjourned to September 2021. 

[11] Exhibit 3 – Email from CCS, 23/04/21 and Exhibit 4 – Letter from Forensic Mental Health

38Your counsel submitted that you should not receive any more imprisonment for the offences for which I am sentencing you.  It was submitted that an appropriate sentence was a Community Corrections Order.  The prosecution agreed with that submission. 

39I had you assessed for a Community Corrections Order on 28 April 2021 and you were found suitable. 

40There are two things I need to note from that assessment. 

41First, the assessor found you showed no remorse for the charge of criminal damage but I have found otherwise for the reasons I outlined earlier.  It may be that you need to do some work to enable you to show that remorse as clearly as you in talking to Dr Anderson. 

42Second, I will not be attempting to integrate the Magistrates' Court Community Corrections Order with any order I make.  As a matter of practicality, Community Corrections can run orders from different courts with the same conditions in tandem to avoid duplication and that is a matter for them. 

43I also have regard to the mental health Community Corrections screening report from the assessment conducted on the same day.  The writer of that report thought that you were currently presenting with symptoms consistent with those observed by Dr Anderson and recommended that you remain linked with your GP for monitoring of your mental health and medication review, continue treatment with Wendy Holmes[12] from Ballarat Health Service and link in with an Aboriginal community program to reduce your social isolation.  I agree with all of those recommendations.

[12] Author of Exhibit 4

44Turning to the sentence.  The court must denounce your offending, especially the criminal damage, and impose a sentence that is just in all the circumstances.  Further, by my sentence I must seek to deter you and others from committing crimes of criminal damage, possession of drugs and committing indictable offences whilst on bail.  I do acknowledge that, because of the issues arising from circumstances in your childhood over which you had no control, deterrence has less of a role to play. 

45I note that you spent some further time in custody as a result of this and other offending and that I cannot take this time into account unless I impose a term of imprisonment.  A term of imprisonment can only be imposed if it is the only option in all the circumstances.  I am satisfied that there is another alternative to imprisonment in this case.

46Taking all matters into account, I have decided that convicting and releasing you on a Community Corrections Order is an appropriate sentence.  I will announce the formal orders in a moment but this will be an order for 12 months.  As I cannot formally take into account the presentence detention on these offences or the time spent in custody on other matters not otherwise taken into account, I have reduced the period of the community correction order from the period I would otherwise have ordered. 

47The conditions will be the same as on your Magistrates' Court order with the addition of a condition to undertake 50 hours of unpaid community work.  I have taken into account your back injury and the remarks of the assessor that this can be managed. 

48Mr Barry, you are well aware of the conditions but I must go through them. 

49The order will have the conditions that are attached to every order which are that you must report to and receive visits from Corrections Victoria, and as you know that means reporting two business days from today. You must notify Corrections Victoria of any change of address or employment. You must not leave the State of Victoria without the permission of Corrections Victoria and must comply with any direction given by Corrections Victoria.

50I will also order that you comply with other conditions during that 12 months. There are that you will be under the supervision of Corrections Victoria; you must undertake assessment and treatment for drug use; you must undertake assessment and treatment for mental health issues; and you must undertake 50 hours of unpaid community work. I will order that any hours of rehabilitation be counted towards your unpaid work condition.

51All right, well, the orders of the court are that on Charge 2 on Indictment J13039190A, criminal damage, you are convicted and released on a Community Corrections Order for a period of 12 months on the core and special conditions that I have outlined. Pursuant to s.48CA of the Sentencing Act, I direct that all hours of satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work.  I recommend that Community Corrections make the best of Dr Anderson's report in working with this offender.

52On Charge 1 on Indictment J13039190B, possession of a drug of dependence, you are convicted and discharged.  On that charge I make an order for disposal of the tin containing the drug. 

53On the Summary Charge of committing and indictable offence whilst on bail, you are convicted and fined $500.  That payment will be management through Fines Victoria.  So, Mr McGarvie, if there is any issue about time you need to pay, that can be coordinated through Fines Victoria. 

54      HER HONOUR:  So, Mr Barry, do you understand those conditions?  Sorry, I'll just get you to unmute. 

55     OFFENDER:  Ah, thank you very much, Your Honour.  I do understand the conditions you've imposed.

56     HER HONOUR:  Thank you.  Do you agree to being released on a Community Corrections Order with those conditions attached?

57     OFFENDER:  I do, Your Honour.

58      HER HONOUR:  Thank you.  Sorry, Mr McGarvie.

59      MR McGARVIE:  I apologise, Your Honour, there is an issue that I may have heard it incorrectly but I feel compelled to raise and that was in relation to presentence detention.  I thought I understood Your Honour as saying that there wasn't any presentence detention referrable to the offences for which Mr Barry had been sentenced but there are or there is - - - 

60      HER HONOUR:  No, I think - yes, I think I - - - 

61     MR McGARVIE:  It may have been a question of expression. 

62     HER HONOUR:  Yes, yes.  What I said was, I note that Mr Barry spent some further time in custody, a result of this and other offending and that I cannot take this time - and what I meant was, any of that time - into account unless I impose a term of imprisonment.  So I've acknowledged that there is presentence detention, and I think I said that earlier, that he had spent the time in custody from 21 November to 20 December. 

63     MR McGARVIE:  And I apologise, I misunderstood what Your Honour has said and I understand exactly the way in which the sentence has been constructed, so I apologise for that. 

64     HER HONOUR:  That's all right, it's important to have these things clarified. 

65     MR McGARVIE:  If the court pleases. 

66     HER HONOUR:  All right, so, Mr Barry, because we are not in court and we are in different places, you will not be asked to sign the Community Corrections Order but you have been audio-visually recorded as consenting to the order and acknowledging that you understand the conditions.  Just before I finalise the matter, Mr Moore, you've come back online - back on video.  I just wanted to make sure there was nothing you wanted to say at this point before I finalise the order. 

67      MR MOORE:  Your Honour's sentence is perfectly clear, Your Honour. 

68     HER HONOUR:  Thank you.  All right, so, Mr Barry, coming back to you.  I remind you that, if you are ill or there are other exceptional circumstances, the order may be suspended for a period of time.  If your circumstances change, the court can  change the order or cancel it, but in either case you must tell the Community Corrections Office if you are ill or if your circumstances change and I recommend that you also get legal advice.  So, for example, if your back injury prevents you from doing unpaid work at any time, you must let the Community Corrections officer know and I recommend that you also get a medical certificate from your GP. Do you understand all of that?

69     OFFENDER:  Yes, I do, Your Honour, yep.

70     HER HONOUR:  Thank you.  I also remind you that if you do not complete any condition of the order, including by committing other crimes, you will be brought back before me to ne resentenced on these charges and also to be dealt with for the breach of the condition.  So do you understand what will happen if you breach this order?

71     OFFENDER:  I do, Your Honour, yes.

72     HER HONOUR:  Thank you.    

73     MR McGARVIE:  As Your Honour pleases.

74      HER HONOUR:  Thank you.  Are there any other matters outstanding?

75     MR McGARVIE:  No, Your Honour. 

76     MR MOORE:  No, Your Honour, from my point of view. 

77     HER HONOUR:  Thank you. 

78     OFFENDER:  Thank you, Your Honour. 

79     MR McGARVIE:  As the court pleases. 

- - -