Director of Public Prosecutions v Barry

[2018] VCC 879

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-00469

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN BARRY

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Geelong
DATE OF HEARING:	4 June 2018
DATE OF SENTENCE:	15 June 2018
CASE MAY BE CITED AS:	DPP v Barry
MEDIUM NEUTRAL CITATION:	[2018] VCC 879

REASONS FOR SENTENCE
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Subject:                   SENTENCING

Catchwords:             Contravention of order made under the Family Violence Protection Act 2008 – damaging property – aggravated burglary.

Legislation Cited:     Family Violence Protection Act 2008; Crimes Act 1958.
Cases Cited:            

Sentence:                 On an aggregate basis, sentenced to a term of imprisonment for 57 days together with a 3-year Community Correction Order with certain conditions, commencing upon the offender’s release from custody.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. M. Senia	Office of Public Prosecutions
For the Accused	Ms. W. Duncan	Geelong Lawyers, Barristers & Solicitors

HIS HONOUR:   

1Sean Barry, you have pleaded guilty to a number of offences. 

·Four counts of contravention of an intervention order made pursuant to the Family Violence Protection Act2008 in intending to cause harm or fear for safety in breach of s.123(A) of that Act, the maximum penalty for such offence being five years imprisonment or a fine not exceeding $95,142.

·One count of damaging property in breach of s.197(1) of the Crimes Act 1958 the maximum penalty for such offence being ten years' imprisonment and/or a fine not exceeding $190,284.

·Further, one count of aggravated burglary contrary to s.77 of the Crimes Act1958 the maximum penalty for such offence being 25 years' imprisonment and/or a fine not exceeding $475,710.

2Those maximum penalties demonstrate how seriously Parliament views these offences.

3The circumstances of your offending were set out in detail in the summary of the prosecution opening, which is Exhibit A. 

4In summary, each of the offences concerns your conduct on 5 December 2017 at Highton in Victoria.  Approximately two weeks earlier, on 23 November 2017, a Family Violence intervention order had been granted by the Magistrates' Court at Geelong, pursuant to which you were prevented from contacting the complainant, your partner, and your three children. 

5On 5 December, you telephoned the complainant stating that you wanted to speak with her.  She rejected that approach.  You responded by stating that you would attend at her home address if she refused to speak to you.  This conduct constitutes Charge 1, contravention of an order intending to cause harm or fear for safety.

6Some hours later on the same evening, whilst in a highly intoxicated state, you attended the complainant's home in Highton.  You attended at the front door of the house and engaged in a verbal argument with her.  A recording of some of that argument was tendered.  That conduct also constituted Charge 1 and related to the complainant. 

7Each of Charges 4, 5 and 6; contravention of the order made under the Family Violence Protection Act relating to intention to cause fear for the safety of each of your three children respectively.

8Shortly afterwards, you left the premises but returned soon after, in possession of an outdoor-style knife.  The complainant made repeated demands for you to leave the address and she contacted Emergency Services.  You lost your temper and began acting in a highly aggressive and erratic state.  You used the knife to smash a glass outdoor light, affixed to the wall near the front door of the premises.  You later entered the garage of the property and used that knife to puncture the rear tyres of the complainant's motor vehicle.  That conduct constituted Charge 2, damaging of property.

9You entered your vehicle and drove it into the garage roller door at the  premises causing damage.  That conduct also constituted Charge 2 of damaging property and also constituted Charge 3 of aggravated burglary. 

10You later left the complainant's address.  Police arrived soon afterwards, they found you some distance away in a tree about ten metres above ground level.  You had a noose around your neck and were threatening self-harm. 

11Following extensive negotiations with police, you were conveyed to a hospital and underwent a psychological assessment.  You were released from hospital the following day, and arrested shortly after.  You participated in a record of interview with police and made limited admissions - namely:

·that you had attended the complainant's address following a phone conversation with her;

·that you had left her address on the first occasion to obtain more beer and returned shortly afterwards with a knife;

·that your intention was, "To hurt anyone that tried to get me"; and

·further, that in relation to the damage to the roller door, you stated that you had driven your car into the shed. 

12You denied entering the garage and denied causing any damage to the tyres of the complainant's motor vehicle, although I note that you have now pleaded guilty to causing that damage. 

13You are currently aged 44.  By way of background, you were born in the Camperdown area, you attended various schools and finished school during Year 9, aged 14. 

14You lived in the Wonthaggi area for some 29 years.  You worked in a variety of labouring jobs and as a truck-driver. 

15You have two children from a previous relationship that commenced in 1995.  You met the complainant in 2001 and were in a relationship with her for some 16 years.  The two of you have three children, aged 14, 12 and ten.

16You separated from the complainant in about June of 2017.  Your relationship appears to have soured over time.  On 23 November 2017, a Family Violence intervention order was granted by the Geelong Magistrates' Court.  You were prevented from contacting the complainant and any of the three children.

17Later, the complainant arranged for the conditions of that order to be varied, so as to permit her and your children to visit you from time to time in prison, and later, after your release on bail. 

18Since your release and since you have been granted bail, you have been living with the complainant's sister and see the complainant and your children regularly.  It is a a condition of your bail that you reside at the complainant's sister's address and there are curfew conditions also.

19Your past criminal history was tendered in evidence as Exhibit B.  You have a number of prior convictions that are of some concern.  In April 1993, you were convicted of wilfully damaging property and fined $300.  In March 2003, you were convicted of recklessly causing serious injury and fined the sum of $2000.  It was submitted on your behalf, and I accept, that the imposition of a fine for such an offence would indicate that it was not at the serious end of the range of such offences. 

20In March 2013, you were convicted of unlawful assault, intentionally damaging property and intentionally destroying property.  You were convicted of those offences and sentenced to a Community Correction Order for six months, subject to a number of conditions. Your counsel advised me that you are currently unable to recall the circumstances of that offending. 

21It would appear that you have no prior convictions for offences involving violence towards persons or property since 2013.

22Section 5 of the Sentencing Act provides for the purposes for which sentences are to be imposed by this court.  They include the following purposes; to punish the offender to an extent and in a manner which is just in all of the circumstances; to deter the offender or other persons from committing offences of the same, or a similar character. 

23Thirdly, importantly here, to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; to manifest the denunciation by the court, of the type of conduct in which the offender engaged; to protect the community from the offender and a combination of two or more of those purposes. 

24An audio recording of part of the conversation which occurred between yourself and the complainant, after you attended at the property on the date of your offending, was played to the court. It was clear from that recording, that your attendance there, especially after you left the premises and returned with a knife, would have been a terrifying experience for the complainant and for the children.  Fortunately, it would appear that the children were some distance away from the door and out of sight, although it is likely that they would have heard what was being said.

25Although the knife was sighted by the complainant, I accept that it remained in a leather cover, at least until such time as the knife was used to puncture the tyres of her vehicle.  Nevertheless, it would have been a very worrying time for her, cover or no cover.

26You told the police that you had obtained the knife, not to use against your family, but to use against police if they attempted to arrest you. 

27I accept that your actions most likely occurred as part of an ill-judged attempt to reconcile with the complainant and the children. I am unable to say whether your actions in the tree with a noose around your neck were indicative of a genuine suicidal ideation or designed to attract attention, but I do accept that your conduct was designed to achieve a reconciliation, rather than to cause fear in any member of your family.  Nevertheless, it ought to have been obvious to you, just how terrifying your visit to the house on the night in question must have been for them. 

28I accept that since your offending conduct, you appear to have made substantial and genuine attempts at rehabilitation.  I accept that these amount to genuine remorse for your conduct.  This is further evidence by your early plea, of guilty to these charges.

29Somewhat unusually, in cases of this nature, your counsel called the complainant herself to give evidence at your plea hearing.  She spoke about your good relationship with her in the early years.  She, herself, had had issues concerning drug-use, and credited you for changing her life.  She spoke about your good work ethic for most of the time that you had been together.  She also spoke of your heavy use of alcohol which appears to have been a major factor in the breakdown of your relationship. 

30Notwithstanding, she considers that since your arrest and following your release on bail, you have made a complete turnaround.  You have attended a Men's Behavioural Change course.  She considers you to be a different person.  She describes you as being great with your children and cooperative if there is any issue to be discussed between you concerning the children. 

31She understands, she believes, that you are not drinking alcohol at all at the current time.  She has seen no anger in your behaviour and she acknowledges that you have been anxious as a consequence of this case approaching, and very nervous.  She considers that although you still have a long way to go with counselling, you have made great progress. 

32Since being released on bail, as I said earlier, it was a condition that you reside with your complainant's sister at her residence.  She also gave evidence at your plea hearing.  She confirmed that you had not consumed alcohol, at least not to her knowledge, since you had been living at her residence.  You were also subjected to curfew conditions which you have apparently adhered to.

33The prosecutor conceded that you had made a genuine attempt at rehabilitation which goes in mitigation of your sentence.  Nevertheless, the fact remains that you have committed an aggravated burglary with serious elements of violence involved.

34Your counsel informed me that the 58 days that you have spent in pre-sentence detention prior to being released on bail, is the first time that you have been to gaol. 

35Your counsel conceded that the ramming of the garage at the premises with your car was of significance, but submitted that it was relevant that the garage was a detached building, separate from the house and some distance away from it.  She submitted that in terms of aggravated burglaries, your offending was at the lower end of the scale, relating to that offence, and I accept that. 

36I note that, in evidence, the complainant stated that the degree of reconciliation between you and her was such, that but for the court orders requiring you to live at her sister's home, it is likely that you would have been back living with the complainant and your children for some time now.

37It was her evidence that this was likely to have occurred if that order was cancelled.  Nevertheless, I note that she has not made any application to the court for cancellation of the intervention order in full to this time.

38A report from your general practitioner, Dr Bevan, was tendered.  He states that you have made significant progress with your mental health this year, and that you are now presenting as a normal, relaxed 44 year old, making significant strides towards getting your life and career back on track.

39Further, reports from Georgia Hicks, a drug and alcohol clinician, were tendered and indicate that you have participated with some enthusiasm in a drug and alcohol course, and attended for counselling earlier this year.

40Further, a reference from a Mr Argiros indicates that you have been working for his haulage company for some time and have been a valuable asset to it.  He considers that you have been honest, reliable and a valued driver to his company.  He has indicated that he is prepared to keep you on as a full-time driver, provided you stay out of trouble. 

41A reference from one of your former employers, Greg Fulton, was also tendered.  He refers to a deterioration in your work ethic from about the middle of 2017 following your separation from the complainant.  However, he spoke about you generally in complimentary terms. 

42A report from Bernard Levold was tendered.  He is associated with Bethany Community Support and his contact with you was in the context of your attendance at a Mens' Behaviour Change program earlier this year. You have remained in contact with him. You are continuing that program and are scheduled to continue for the next 24 weeks on a weekly basis. 

43In addition, you are attending counselling sessions with a psychologist at Cardinia Health.  This morning, I was provided with a further character reference from Ebon Schoenville who has known you, it would seem, for the last six months or so.  He speaks of you in complimentary terms.  You did casual work for him as part of his bricklaying team in the past. 

44There is no doubt that your offending for which you are currently before this court was serious.  It involved a direct breach of the family violence intervention order, it involved violence in the sense of the use of your car to ram the complainant's garage door, the use of a knife to smash the outside light, and to slice the tyres of your partner's motor vehicle.

45Even if you did not use the knife, or intend to use the knife to frighten anybody, you surely would have known that it would have instilled considerable fear in persons aware of it.  The complainant, for instance, could not have known your limited intentions in relation to the use of the knife.

46I accept that you do appear to have taken considerable steps to rehabilitate yourself.  I consider that the most important of these is the cessation of alcohol.  It would seem on the material before me, that a large proportion of the problems that you have encountered in your relationship, have been as a consequence of excessive consumption of alcohol. 

47I accept that you have ceased to use alcohol in recent times, in prison and since you were released on bail.  Whether you can sustain this, is something that is difficult to be certain about, but it must be obvious to you that alcohol played a substantial role in the breakup of your relationship, and the resultant fracture of your relationship with your children. 

48In all of the circumstances, I consider that there is merit in the submissions made on your behalf that it is in the interests of you, the complainant, your children, and the community, that you return to your family role with them. 

49I am in possession of a report dated 4 June 2018 from the Geelong Community Correctional Services indicating that you have been assessed as suitable for a Community Corrections Order.  Your counsel submitted to me that the period served by you in pre-sentence detention would be an adequate period of imprisonment to impose before requiring you to fulfil the conditions of such a Community Corrections Order.

50There would be many in our community who would regard the imposition of such a short term of detention, albeit in conjunction with a Community Corrections Order to be an inadequate penalty for your offending behaviour. Nevertheless, I am conscious of the provisions of s.5(4) of the Sentencing Act which provides that a term of imprisonment should not be imposed if another penalty can be imposed which adequately satisfies the purposes for which you are to be sentenced.

51In offending of this type, it is often the case that the principal purpose of sentencing are to denunciate offending behaviour and to deter you and others from committing such offences in the future, and for the protection of the public.  In your case, I am satisfied that the most important purpose of sentencing you is to establish conditions within which is considered by the court that your rehabilitation may be facilitated. 

52I consider that your determined attempts to rehabilitate yourself to date, as confirmed by the complainant, indicates your prospects of rehabilitation are relatively good, provided you are able to continue with your current style of treatment, and provided that you are prepared to continue your cessation of consumption of alcohol.

53I consider that it is most likely to be achieved in circumstances other than those involving a lengthy period in custody.  Further, on the material before me, I do not consider that the need for protection of the public from you is of significance.

54In all of the circumstances, I am proposing to sentence you on an aggregate basis in respect of each of the charges to a term of imprisonment of 58 days, together with a three year Community Corrections Order, with a number of conditions attached to it.  The effect of that is that you will not be required to return to prison, providing you adhere to the conditions of the Community Corrections Order. 

55I am not permitted by legislation to make such a Community Corrections Order unless you consent to it, but in fairness to you, I should tell you of the conditions that I intend to impose before asking you whether you consent to it. 

56Firstly, there are a number of mandatory terms to every Community Corrections Order that I must impose.  They are;

·That you must not commit any offence for which you could be imprisoned during the time the order is in force, that is, the three year period; 

·You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations of 2011;

·You must report to and receive visits from the Secretary of the Department of Justice or his or  her delegate;

·you must report to the Community Corrections centre and that will be at Level 5, 30A Little Malop Street, Geelong within two clear working days after the commencement of this order, one clear day would be Monday, two clear days would be Tuesday, so you must report to that establishment by 4 pm on Tuesday or before;

·you must advise Community Corrections within two clear working days, of any change of your address at which you are residing, or any change in your employment situation within two clear working days;

·You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.  You will understand that if you go to Albury you have left Victoria.  If you go to Mount Gambier, you have left Victoria et cetera.  Do not do so;

·Finally, you must obey all lawful instructions from the directions of the Secretary or his or her delegate.

57Now in addition to those mandatory conditions, I intend to impose a condition that you perform 200 hours of unpaid community work over the three year period of the Community Corrections Order, such work as directed by the regional manager.  If you fail to comply with that order the Secretary or his or her delegate may give you a direction to perform additional hours of unpaid work in accordance with the Sentencing Act.

58Further, you are to be under the supervision of a Community Corrections officer for the period of three years.  In effect that means that you will have to attend at the Community Corrections premises when directed and that will depend on a number of factors but it might be weekly, it might be monthly, hard to tell.

59Further, you must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager, and you must undergo any mental health assessment and treatment that may include psychologist, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.

60I ask you, Mr Barry, to you consent to the imposition of a Community Corrections Order with such conditions?

61OFFENDER:  Yes, Your Honour.

62HIS HONOUR:  Do you wish to have a talk with your barrister before answering.  I just cannot hear a word you are saying I am sorry.

63OFFENDER:  (Indistinct).

64HIS HONOUR:  You do consent?

65OFFENDER:  Yes.

66HIS HONOUR:  Thank you.  I formally make orders that you be convicted of each of the offences for which you are charged, and that on an aggregate basis, you are sentenced to a term of imprisonment of 58 days. 

67In addition, I sentence you to a three year Community Corrections Order commencing forthwith with each of the conditions, mandatory and other, that I have previously spoken of just now. 

68You will have to sign a document relating to that Community Corrections Order acknowledging the conditions of it.

69In terms of ancillary orders, Mr Senia. 

70MS DUNCAN:  May I just point out to the court respectfully that the court has not yet declared pre-sentence detention.

71HIS HONOUR:  It is on my list.

72MS DUNCAN:  Thank Your Honour.

73HIS HONOUR:  Perhaps I will bring it forward in case Ms Duncan or you worry.  As regards pre-sentence detention, the parties are in agreement that you have already served 58 days by way of pre-sentence detention and I direct that such period be designated as time already served pursuant to this order. 

74MS DUNCAN:  I am obliged, Your Honour.

75HIS HONOUR: I declare pursuant to s.6AAA of the Sentencing Act that if you had not pleaded guilty to these offences, I would have sentenced you to imprisonment for a term of 12 months and ordered that you not be eligible for parole for a period of six months. 

76Ancillary orders sought, if any?

77MR SENIA:  Yes, Your Honour, there's a disposal order.

78HIS HONOUR:  Is that the knife.  Yes, I will make that order.

79MR SENIA:  Which I will just print it off.

80HIS HONOUR:  Is that the only ancillary order that - - -

81MR SENIA:  There's a forensic sample application, Your Honour.

82HIS HONOUR:  Yes.

83MR SENIA:  Which I will tender as well.

84HIS HONOUR:  Thank you.  Have you got that there, or is that in the pile you have just - - -

85MR SENIA:  I have got that here, Your Honour.  I have done it in triplicate as well.

86HIS HONOUR:  Yes.  I will make a disposal order in relation to the Bear Grylls brand outdoor knife that was in your possession on the night in question.

87MS DUNCAN:  If I may be excused, I will just go to the back of the court and ask my client to sign that, and I will double-check regarding s.464.  There is obviously, the disposal order is consented to, but I cannot recall my client's instructions regarding the 464.

88HIS HONOUR:  Get instructions for that if you would.

89MS DUNCAN:  Thank Your Honour.

90HIS HONOUR:  Thank you. 

91MS DUNCAN:  My client does consent to the s464, Your Honour.

92HIS HONOUR:  Thank you.

93MS DUNCAN:  May I be excused one minute please.  I just want to speak to people.

94HIS HONOUR:  Yes.

95MS DUNCAN:  Thank you. 

96HIS HONOUR: Yes, I will make an order pursuant to s.464ZF of the Crimes Act enabling police to obtain a forensic sample from you Mr Barry.  That will involve a scraping generally from the inside of your mouth or a blood sample.  I make the order by reason of the seriousness of the circumstances of your offending, and also by reason that it is by consent. 

97But notwithstanding that consent, I tell you this; that, if come the time you do not consent to the sample being taken, police are authorised to use reasonable force to enable a forensic procedural blood sample to be taken from you, do you understand that?

98OFFENDER:  Yes, Your Honour.

99HIS HONOUR:  Yes, thank you.

100Now, I just had a query about the driver's licence Mr Senia.  This does not fit within one of those convictions where it is compulsorily - - -

101MR SENIA:  No, I don't believe so, Your Honour.  I don't believe it fits into the compulsory - - -

102MS DUNCAN:  In my submission, it is on private property, I agree with Mr Senia and it - - -

103HIS HONOUR:  That would be the distinguishing feature would it?  If it, if something similar had happened out on the open road, there would be a compulsory disqualification of licence.

104MS DUNCAN:  Yes, then there would be grounds for the OPP to make that submission, in my submission.

105HIS HONOUR:  All right, I will not say anything more about it.

106MS DUNCAN:  As the court pleases.

107HIS HONOUR:  Is there anything else?

108MR SENIA:  No, Your Honour.

109HIS HONOUR:  Mr Barry, firstly, you will have to go downstairs to finalise - I think there are documents to be signed and what-not, but you will be able to leave this court today. 

110The sentence that I have imposed on you, as I said during my reasons, is one that many people might raise their eyebrows about, and I may be made to look a fool if you relapse into your prior standard of behaviour.  It is to be hoped that that does not happen, but the ball is squarely in your court.

111OFFENDER:  Yes, Your Honour.

112MS DUNCAN:  As the court pleases.

113HIS HONOUR:  Yes, thank you.  Just adjourn the court temporarily, thanks.

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