Director of Public Prosecutions v Bava

[2019] VCC 798

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01327

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BAVA

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2019
DATE OF SENTENCE:	31 May 2019
CASE MAY BE CITED AS:	DPP v Bava
MEDIUM NEUTRAL CITATION:	[2019] VCC 798

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Aggravated Burglary - Theft of a Firearm – Theft.

Sentence:Total effective sentence of six years imprisonment with a non-parole period of four years imprisonment before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Casey	Director of Public Prosecution
For the Accused	Mr D. Gibson (Plea) Mr J. Van Arcadie (Sentence)	Victoria Legal Aid

HIS HONOUR:

1John Bava, on 27 March 2019, at the County Court at Melbourne you pleaded guilty to the following charges on Indictment No. H10185815.1:

Charge 1, aggravated burglary, on 4 June 2015.  This charge has a maximum penalty of 25 years' imprisonment. 

Charge 2, theft of a firearm, ammunitions, money and television from Stanley Barlow, who was a tenant at those premises.

Charge 3, theft of electric guitar and amplifier, and money, from Julian Brown who was a visitor at Mr Barlow's house.  Charges 2 and 3 have maximum penalties of 10 years' imprisonment, respectively.

2You have prior convictions for importing and trafficking drugs of dependence, prohibited person possessing a firearm, and an aggravated armed robbery. 
In total, you have spent, on my count, 11 years of your 60 years in prison based on your criminal record. 

Circumstances of offending

3You are now 60 years old.  At the time of these offences, you were 56 years old.  The prosecution tendered an agreed summary of prosecution opening for plea, dated 27 March 2019.  It was Exhibit “A” on the plea.  I sentence you on the basis of the factual matters set out in that document, and I am now going to refer to it.

4The victims are Stanley Ivan Barlow and Julian Brown. 

5On the evening of 3 June 2015, Stanley Barlow was at his home in Kingloch Parade in Wantirna, where he had been living for some five years.  Mr Barlow was a 71-year-old man at the time his house was burgled.  He is a person who has a glass eye in his left eye socket. 

6His friend, Julian Brown, had been staying with him for a couple of days whilst he had been visiting from Red Cliffs.  Mr Brown was staying on the couch in the lounge room of the house. 

7At 5 am on the morning of 4 June 2015, Mr Brown heard a knocking noise. 
He was laying on the couch and thought the noise might have been the cat.  Suddenly, he heard a huge bang and then everything caved in as the back door was kicked in.  Mr Brown got straight off the couch and tried to turn the lights on.  He saw three men come inside, calling, 'Police, police, get on the ground!' 

8Mr Brown was tied up by these men.  He saw that one of the men was about six foot tall and wearing a dark hoodie.  The unknown man told Mr Brown to get onto the ground in the lounge room and tied his hands and legs together with duct tape before tying his hands to his belt.  One of the men said, 'I'll stab you if you don't tell me the truth.'  Mr Brown was not harmed. He laid on the ground quietly as the offenders then ransacked the house.  Mr Brown could hear the men yelling at Mr Barlow, however, he could not see much as tape was over his eyes.

9Elsewhere in the house, Mr Barlow was in his bedroom when he woke to hear some noise coming from the kitchen or near the back door.  He did not take much notice of it as he thought it may have been Mr Brown.  However, the noise continued, so Mr Barlow got out of his bed to investigate.  He opened his bedroom door and 'a bloke ran at him.'  Confused, he asked what was going on, but he was told to 'shut up' before being struck to the right side of the head with a metal pole like a tyre lever by an unknown offender.  His head hurt a little bit.

10Mr Barlow tried to defend himself, but the offender yelled at him to lay down. 
At this point, another man came into the room so Mr Barlow complied and got onto the ground.  Mr Barlow heard one of the men say, 'Tape him up', and then Mr Barlow's ankles were taped before his wrists were taped behind him. 

11One of the men was asking, 'Where's the money?  Where's the guns?  Where's the jewellery?'  Mr Barlow noticed this man spoke with an Australian accent. 
Mr Barlow replied that he had no money, but told the men the guns were out in the shed.

12At the same time, Mr Brown could hear the men yelling out to Mr Barlow, 'Where's the guns?  Where's the money?'  He could also hear one of the men in the shed outside, where Mr Brown thought that Mr Barlow kept his guns. 

13The men then put Mr Barlow in the passage where he was laying down with his head down.  Mr Barlow could hear the men ransacking the house and said it felt like it went on for hours. During this, Mr Barlow heard one of them say, 'I'll get the bucket and tip it over his head', but he couldn't see the men at the time.

14Mr Barlow tried to get a look at the men and saw that one of them had a little flat nose and was wearing red woollen gloves and an all-black tracksuit.  But then Barlow was told, 'Put your head down', and he did as he was told. 

15Mr Brown also thought that the ordeal went on for a couple of hours as the offenders went through every room in Mr Barlow's house, turning everything over.  He saw one of the men walking out with a television, but he could only see flashes of them as they were always moving around.

16Mr Brown played dead, laying on the floor, and would not answer any questions that the men asked him, but he could hear the men talking to Mr Barlow in the bedroom.  He also heard one of the men say, 'This gun's brand new' at some point.  Mr Brown told the men that the tape on his hands was too tight, and so one of the men undid the tape and retaped Brown's hands in front of his belt. 

17Mr Barlow described himself as being 'bloody scared', and thought he was going to die.  The men continued to make 'a heap of noise', but Mr Barlow could not see the men during this.  Although he could not see much, Mr Barlow could hear the offenders speaking with each other, calling each other 'Mick' and 'Michael' and 'Ray.'

18Mr Barlow told them that he had $100 in silver coins and a white bag in his bedroom, and a biscuit tin with seven $100 notes and 14 $50 notes in the shed.  This money was gone by the time Mr Barlow was freed.  That is Charge 2, theft.

19When it was light, as the sun was coming up, Mr Brown saw at least two of the men step over him as they escaped via the front door.  He could not hear any car leaving the scene but thought that the burglars would have needed a car to transport the television, which is also a part of Charge 2, and his guitar and amplifier, which was part of Charge 3, which were taken.

20When the coast was clear, Mr Brown got up and locked the front door.  He tried to do the same at the back door, but it was broken.  He then got a knife and went to assist Mr Barlow, who was still tied up in the bedroom.  Mr Brown came into the bedroom and undid the tape from Barlow's ankles and wrists, then
Mr Barlow went to his phone to call for assistance, but saw that the phone cord had been unplugged.  Mr Brown sought assistance from the neighbours from a neighbouring unit, who contacted police. At some point that morning, the men also took $30 from Mr Brown's wallet which was sitting on the couch in addition to his electric guitar and amplifier.  Again, that is part of Charge 3. 

21Mr Barlow went outside to the shed and saw that the two guns were missing from his gun safe.  One was a 12-gauge shotgun and the other was a .22 Sterling rifle.  He saw that one of the gun cases had been left in the shed, but the other was missing.  Additionally, Mr Barlow saw that some red-and-black shotgun shells were missing and a near-new Grace leather ammunition belt, along with a brown canvas bag gun carrier, had been taken.  And that is part of Charge 2.

22Police and crime scene investigators attended the house.  This included three members of the Metropolitan Regional Fingerprint Unit, who conducted a thorough examination of the scene for fingerprints.  Two latent fingerprint impressions were found on a fixed shelf in a hallway, linen-covered, which were later identified as belonging to you, Mr Bava. 

23The informant showed Mr Barlow a picture of you, and he said, 'I've never seen this guy pictured as number one.  I do not know him.  He looks like a big bloke who came into my house, but only because he looks big and mean.  I couldn't be sure if it is.' 

24Investigations revealed that the offending was instigated by Shelly Cole, who was known to Mr Barlow.  However, she has died prior to making any statement. 

25You, Mr Bava, were one of three offenders who attended upon the house that night.  However, the prosecution cannot say which of the three assaulted Mr Barlow.

26One of the firearms was recovered on 18 July 2015, following a series of armed robberies and an attempted armed robberies committed by one Terrence Green.  Mr Green has pleaded guilty to handling the stolen firearm, using it in an attempted armed robbery at a newsagency in Ashwood, and being a prohibited person in possession of a firearm on 18 July 2015.  I have sentenced Mr Green for those offences.  The other property stolen from the victim has not been recovered. 

27On 11 July 2015, Mr Bava, you were arrested.  During your interview, you told the police the following: 

(i) that you were 56 years of age;

(ii) that you did not recall where you were on 4 June 2015;

(iii) that you were familiar with the Wantirna area;

(iv) that you had never been to Kingloch Parade; and

(v) You do not know anyone who lives in Wantirna. 

28You otherwise exercised your right to silence.

29This prosecution has had a tortured progress through the courts.  Ultimately, you pleaded guilty to the charges after conducting a pre-trial voir dire where the fingerprint expert was cross-examined.  No other witness have been required to give evidence in this trial.  There was a committal hearing conducted on 3 and 4 July 2017, where the victims were required to give evidence.  Your plea of guilty is a late plea of guilty.

Victim Impact Statements

30In this case, two victim impact statements were filed.  Mr Stanley Barlow filed a victim impact statement dated 16 April 2019.  It was Exhibit “B” on the plea. Mr Julian Brown also filed a victim impact statement dated 27 March 2019. 
It was Exhibit “C” on the plea. 

Mr Stanley Barlow

31Mr Barlow was an elderly gentleman who had a glass eye as a result of previous accident when he was a young man.  He set out his fear and concern for his eyesight as he was blindfolded by use of duct tape around his head.  He set out how his house was ransacked by you and your co-offenders.  The premises was left in a real mess, he described it as.

32He now has trouble with his left eye, his false eye, and has required surgery to try and improve the symptoms.  He sets out he thought about moving house, but decided to say because he had good friends in the neighbourhood. 
His mother had lived in that house with him prior to her passing, and he had special memories of her.

33He described his experience as a 'nightmare', and was not sure he would survive it.  This offence has had a long-lasting psychological - that is, his anxiety and insomnia - and physical - that is, his eye condition - effect on Mr Barlow.

Mr Julian Brown

34He describes suffering nightmares after this offending.  He did not have the money to replace his guitar and amplifier.  He continues to have pain in his left wrist as a result of being taped up by you or your co-offenders.

Personal circumstances

35At the time of the offending, you were 56 years old.  You are now 60 years old at the time of sentencing.  You were brought up in Carlton.  You have two older sisters and a younger brother.  Your eldest sister and younger brother, I am told, are deceased.  Your father died in 2015.  Your mother is now 91 years old and lives in an aged care facility in Melton.

36In recent times, you and your surviving sister, Jenny, have been engaged in attending to your mother in her final stages of life.  Your father worked at the Victoria Market, running a fruit and vegetable store.  Your mother helped at the market, but mainly attended to the family home in raising you and your siblings. 

37You have reported to Ms Maynard, which was Exhibit “2”, that your upbringing was brutal and physically abusive; that is, your father was brutal and physically abusive towards you.  You describe how, as a result of this abuse, your neck was broken when you were three years old and you spent some
16 weeks at the Royal Children's Hospital.

38You reported that your father smashed every bone in your body.  Your father beat you with a barber's strop.  On a mushrooming trip to the bush, your father even shot you with buckshot whilst you were running away from him. 
Your father had locked you in a box for days.  He shot your pet dog in front of you.

39At seven years old, you were first taken to Turana.  You were in and out of Turana until you were the age of 14.  At this stage of your life, you were sexually abused by a priest at the school that you attended, workers in the boys' home, and one of your father's friends.  You have not reported any of these offenders to the authorities.  You described your father as a 'cruel bastard' and had limited contact with him up until his death in 2015.

40You were married, and you remained in that relationship for 25 years.  You have three children from that relationship.  You see your former wife occasionally.  You have lived with your eldest son in recent years.  You have grandchildren that you care for on occasions.

41You have limited formal education.  You started at St Bridget's Primary School in Carlton, but were expelled due to your behaviour.  You attended at a Catholic Brothers' school nearby, but sexual abuse there saw you cease going to school.  You have taught yourself to read and write in your 30s.

42You have reported using cannabis from an early age, as young as eight. 
You ceased smoking cannabis around the age of 30.  You have used amphetamines and cocaine.  In recent times, you have used ice regularly.

43Between 2012 and 2013, you were diagnosed with cancer.  Operations removed those cancers, and you were in remission.  You currently suffer from cellulitis and a heart condition.  In 2016, you actually had a heart attack. 

44You have a relevant and extensive criminal history.  You reported to
Ms Maynard that you had spent 27 years of your life in gaol.  On the admitted criminal history, you have two substantial sentences adding up to approximately 11 years in gaol.

45On 20 September 1994, at Launceston, you were sentenced for an aggravated armed robbery to a three-and-a-half year gaol sentence.  You served 20 months of that gaol sentence before being paroled in Victoria.  From 3 March 2003, you were in custody for importing a prohibited drug, trafficking in drugs of dependence, and being a prohibited person in possession of a firearm.

46You were paroled on those offences on 3 February 2012.  Your sentence for those offences was completed on 2 August 2014.  That was ten months before you committed the offence in this case.  The last sentence served was about nine years in actual custody.  I am unable to reconcile your history to
Ms Maynard of 27 years in gaol with your documented criminal history in Victoria and Tasmania.

47You have been assessed by Ms Maynard, clinical psychologist.  Her report was dated 23 May 2019.  It was Exhibit “2”.  She describes you as suffering from symptoms of PTSD, arising from your childhood experiences at the hands of your father and other sexual predators.  She says:

'Whilst Mr Bava would likely manage a period of custody, it is the writer's opinion that time in custody would not serve to decrease his chances of reoffending.'

48She notes that in recent times, you were more invested as a carer for your family than you had been in the past.

Sentencing Considerations

49The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.

50I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.

51I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases, and the statistics for those cases, or those sentences.

52I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.  Ultimately, current sentencing practices is but one of the factors I have to take into account when fixing your sentence.

53Your plea of guilty is a late plea of guilty, as I previously noted in these reasons for sentence. 

54Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending. 

55Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal system which is set up to protect the community.

56Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea to these charges indicates and demonstrates some remorse on your behalf. 

57You did conduct a committal hearing where your victims, Mr Barlow and Mr Brown, were cross-examined and forced to relive the frightening experience of your offending.

58I take into account your criminal history, in particular, your offending in Tasmania in the 1990s where the offence was aggravated armed robbery which involved tying up Your victims, as done in this case.  You also have subsequent court appearances.  I note the charge of burglary was committed on 27 May 2015, just one week prior to these offences.  The remainder of your criminality is importing and trafficking of drugs of dependence.

59You have spent a significant amount of time in custody.  This offence occurred only 10 months after your last sentence was completed in August 2014. 
You have been on parole between February 2012 and August 2014.

60The objective seriousness of the charge of aggravated burglary is indicated by the following considerations:

(a) The mode of entry to the premises was breaking in through the back door of the house;

(b) The offence happened in the early hours of the morning and continued for some time;

(c) You committed this offence in the company of two co-offenders;

(d) From the evidence of the demands, from 'Where are the guns?  Where is the money?', the only reasonable inference is that your intent was to steal prior to the entry of the premises;

(e) The victims were tied up and subjected to threats.  All of this occurred in your presence, and;

(f) I accept there is no direct evidence you assaulted either Mr Barlow or
Mr Brown by striking them.

61This is a serious example of aggravated burglary.  The offences of theft are also serious.  The theft of guns has the risk that they will be used in other criminal activity.  In this case, that risk turned into a reality for which another person has been sentenced.

62The theft from Mr Brown was opportunistic in the sense that there was his guitar and amplifier by chance on a brief visit to his friend, Mr Barlow.  Each of these theft charges have distinct criminality which calls for some cumulation of the sentences in respect of each of those charges.

63Your counsel submitted to the court that the delay between the day of the offence and the date you were charged, the period of approximately 18 months should be regarded.  The issue of delay is relevant if there has been some significant rehabilitation that has been demonstrated.

64You have had some five court appearances since these offences.  Some of those hearings relate to court supervisory orders relating to the burglary charge arising from offending which occurred on 27 May 2015.  You have been on bail for these offences since you were charged.

65I do not consider the delay referred to by your counsel as significant in the overall context of this case.  I assess your prospects of rehabilitation as guarded.  In making that assessment, I note after serving a very long sentence of imprisonment, you offended ten months after the expiration of the actual sentence itself.

66I also note the opinion of Alison Maynard referred to earlier in these reasons, where she states that time in custody would not serve to decrease your chances of reoffending.

67I have moderated the individual sentences and the cumulation of those sentences so that the principle of totality is not offended, and that your total sentence is not a crushing sentence.  I have fixed a non-parole period which will give you the opportunity to move back into the community with the assistance and supervision of the Adult Parole Board, should you be granted parole.

68Your offending is serious and the only proper disposition is a term of imprisonment with a non-parole period.  The principles of general and specific deterrence, combined with just punishment, dictate a term of imprisonment is the only appropriate sentence.

69Would you stand, please?

70On Charge 1, of aggravated burglary, you are convicted and sentenced to five years' imprisonment.  That is the base sentence.

71On the charge of theft, Charge 2, you are convicted and sentenced to
18 months' imprisonment.

72On the charge of theft, Charge 3, you are convicted and sentenced to nine months' imprisonment.

73I order that nine months of the sentence on Charge 2 and three months of the sentence on Charge 3 be served cumulatively upon the base sentence of Charge 1, which is a five-year sentence.

74That is a total effective sentence of six years' imprisonment.

75I fix a non-parole period of four years' imprisonment.

76Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a period of seven-and-a-half years' imprisonment with a non-parole period of five years' imprisonment. 

77And I declare that you have served three days pre-sentence detention.  I think that is accurate, is it not?

78COUNSEL:  Yes, Your Honour. 

79HIS HONOUR:  Yes.  Is there anything further I need to ‑ ‑ ‑

80MS CASEY:  Just in terms of Your Honour's orders for cumulation, you said cumulative on the base.  You did not declare cumulatively on each other.

81HIS HONOUR:  Yes, sorry.  Sorry.  They are cumulative on - I will repeat that.  The base sentence is Charge 1, which is a five-year sentence.  Cumulative upon that is nine months of the sentence from Charge 1 and three months of the sentence from Charge 3, cumulative upon one another, adding up to a total effective sentence of six years with a minimum of four.  Is that clear to everyone?

82COUNSEL:  Yes, Your Honour. 

83HIS HONOUR:  Yes, thank you.  Mr Bava, it is up to you.  When you get out, at the earliest, you will be 64. 

84OFFENDER:  Yes, Your Honour. 

85HIS HONOUR:  You must be getting sick of this.

86OFFENDER:  I am, Your Honour.

87HIS HONOUR:  You have just got to straighten up.  It is over to you now.  Remove the prisoner.

88OFFENDER:  Thank you. 

89HIS HONOUR:  Thank you, counsel, and everyone in court. 

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