DPP v Barnes
[2015] VSCA 293
•12 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0011
S APCR 2015 0012
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| and | |
| TREVOR BARNES | First Respondent |
| and | |
| GLENN BARNES | Second Respondent |
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| JUDGES: | REDLICH and KYROU JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 July 2015 |
| DATE OF ORDERS: | 12 October 2015 |
| DATE OF REASONS: | 12 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 293 |
| JUDGMENT APPEALED FROM: | DPP v Barnes & Barnes (Unreported, County Court of Victoria, Judge Hogan, 18 December 2014) |
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CRIMINAL LAW – Crown appeals against sentence – TB (in company with brother GB) entered home of wife EB, from whom estranged, and gravely assaulted her and her partner BK with jemmy bar, causing serious injuries – TB previously violent to wife and only just released from prison for assaulting her and breaching intervention order – Pleas of guilty to aggravated burglary and intentionally causing serious injury to both victims – TB sentenced to total effective sentence of six years’ imprisonment with three-year non-parole period – GB also holding a jemmy bar when he entered house with TB – At trial, GB convicted of aggravated burglary, intentionally causing serious injury to BK and recklessly causing serious injury to EB – GB did not strike any blows but convicted on basis of complicity in TB’s acts – GB sentenced to total effective sentence of three-and-a-half years’ imprisonment with 12-month non-parole period – Whether individual sentences, total effective sentences and non-parole periods manifestly inadequate – Appeal concerning GB dismissed – Sentences lenient but not manifestly inadequate – Appeal concerning TB allowed – All aspects of sentence (except directions for cumulation) manifestly inadequate – TB re-sentenced to total effective sentence of eight years’ imprisonment with non-parole period of five years – Consideration of parity with GB’s (undisturbed) sentence and exercise of residual discretion to decline to intervene on Crown appeal – Green v The Queen (2011) 244 CLR 462.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Vic) | Mr G J C Silbert QC with Ms K Argiropoulos | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For Trevor Barnes | Mr O P Holdenson QC with Mr D Dann | Stephen Andrianakis & Associates |
| For Glenn Barnes | Mr R Edney with Ms E Clark | Stary Norton Halphen |
REDLICH JA:
I have had the benefit of reading in draft the reasons of Croucher AJA. For those reasons, the Court ordered on 12 October 2015 that the Director’s appeal against Glenn Barnes be dismissed, and the Court allowed the Director’s appeal in the case of Trevor Barnes, and re-sentenced him to eight years’ imprisonment with a non-parole period of five years.
KYROU JA:
I agree with Croucher AJA.
CROUCHER AJA:
Overview
The circumstances of the offending
At about 5:00 a.m. on 25 May 2013, Trevor Barnes and his younger brother Glenn Barnes entered a farmhouse in Sunbury through an unlocked door. They were not invited. Each man was carrying a jemmy bar.[1] Trevor had violence on his mind, at least in the form of confrontation, which his brother knew.
[1]In the County Court, these were described as “crow bars”. At the hearing in this Court, the parties accepted that the more apt description is “jemmy bars”.
Trevor’s wife Emma Jane Bethune, from whom he had been estranged for some time, had been living at the house for the past month with her new partner Branislav Karaula. Ms Bethune had attempted to keep her new address a secret from her husband in the hope that he would not find her. They had separated a number of times. Only three days before the home invasion, Trevor had been released from a three-month stint in prison, on a nine-month partially-suspended sentence, for offences that included assaulting Ms Bethune and multiple breaches of an intervention order she had in place against him.
After entering the house through an unlocked door, the brothers moved to the bathroom. Ms Bethune and Mr Karaula were in the shower together, naked. This was too much for Trevor. He went berserk, smashing the glass door of the shower. Next, he struck Mr Karaula several times to the head with the jemmy bar, causing him to fall unconscious onto the glass-splintered floor and to suffer a fractured skull, a broken nose, a large gash to his head and other cuts to his leg and arm.
Ms Bethune fled in terror. Trevor gave chase and caught her near the lounge room. He struck her on the back with the jemmy bar and screamed, “Is this why you want a divorce?” He then struck her on the head and legs with the jemmy bar, and kicked her in the face and the chest. She suffered a laceration to her (only) kidney, a wound to her head, and numerous bruises, abrasions and incisions to her limbs, back, side and groin.
Trevor then pulled out a Stanley knife. In order to get him to stop, Ms Bethune said she loved him. Glenn, who was standing nearby, pointed out that Ms Bethune was bleeding, which caused Trevor to desist.
Trevor then decided that he and his brother should drive Ms Bethune to hospital. Upon arrival at the hospital, Trevor carried his wife into the emergency area. Glenn drove away. Trevor told Ms Bethune not to tell hospital staff that he was her assailant but, rather, that he found her in an injured state. Subsequently, he accompanied her in an ambulance when she was transferred to another hospital, and then sat by her bedside once there, acting in the role of loving husband. At some opportune point, Ms Bethune was able to reveal the truth to a doctor, who contacted police.
Mr Karaula, however, was left to his own devices. He was alone and bleeding heavily when he regained consciousness. Somehow, he managed to drive himself to safety at his father’s house.
Arrests and interviews
Later that day, police arrested and interviewed Glenn. He said he knew nothing of how the injuries were inflicted upon Mr Karaula or Ms Bethune. He said he simply had driven his brother to the farmhouse because he wanted to speak to his wife. He said he waited outside in the car initially and then was called into the house by Trevor, where he saw Ms Bethune in an injured state. He did not see Mr Karaula.
Five days later, on 30 May 2013, police arrested and interviewed Trevor. He denied that Ms Bethune had tried to keep her location a secret from him, and claimed instead that she had given him the address of the farmhouse and had even driven him there at some earlier time. He said that he and his brother had driven to the farmhouse and found Ms Bethune injured. He claimed to know nothing about how his wife and Mr Karaula came to be injured.
Charges, pleas and convictions
Trevor was indicted on, and, just before the trial was due to commence in the County Court, pleaded guilty to, aggravated burglary,[2] intentionally causing serious injury to Mr Karaula and intentionally causing serious injury to Ms Bethune.[3]
[2]Contrary to s 77 of the Crimes Act 1958 (Vic).
[3]Each contrary to s 16 of the Crimes Act 1958 (Vic).
Glenn was charged with the same offences but went to trial. A jury found him guilty of aggravated burglary and intentionally causing serious injury to Mr Karaula; and not guilty of intentionally causing serious injury to Ms Bethune but guilty of the alternative of recklessly causing serious injury.[4] It was not alleged that Glenn physically participated in either of the assaults. Rather, he was convicted on the basis of complicity in his brother’s actions, based on his presence.
[4]Contrary to s 17 of the Crimes Act 1958 (Vic).
Sentences
After hearing separate pleas in mitigation on consecutive days, on 18 December 2014, the judge sentenced the respondents as set out in the table below.
Sentences in County Court: Trevor Barnes Glenn Barnes Charge/Offence Max’m Sentence Cumulation Sentence Cumulation 1. Aggravated burglary 25 years 2 1/2 years 1 year 2 1/2 years Base 2. Intentionally cause serious injury[5] 20 years 3 1/2 years Base 2 1/2 years 6 months 4. Intentionally cause serious injury 20 years 3 1/2 years 1 1/2 years NA NA 5. Recklessly cause serious injury 15 years NA NA 1 1/2 years 6 months Total effective sentence (TES) 6 years 3 1/2 years Non-parole period (NPP) 3 years 1 year Section 6AAA statement TES: 8 years
NPP: 5 1/2 years
NA [5]The Record of Orders records that, pursuant to s 6F of the Sentencing Act 1991 (Vic), Trevor Barnes was sentenced as a serious violent offender on Charge 2. This must have been a slip, because her Honour announced, correctly, in her reasons for sentence that the declaration was made in respect of Charge 4 (Sentence at [29]).
Appeals and orders
The Director of Public Prosecutions appeals to this Court against the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period imposed on both respondents.[6] The sole ground of appeal in each case is that each aspect of those sentences is manifestly inadequate. The particulars in support of each ground are in part common and in part different. The differences concern, principally, personal considerations peculiar to each respondent.
[6]Pursuant to s 287 of the Criminal Procedure Act 2009 (Vic).
On 12 October 2015, in the case of Glenn Barnes, this Court ordered that the Director’s appeal be dismissed. The same day, the Court allowed the Director’s appeal in the case of Trevor Barnes and re-sentenced him. The Court indicated it would provide its reasons in both cases at a later date.
In my view, there was no error in the judge’s careful and detailed reasons for sentencing each respondent. Her Honour addressed all relevant matters raised by the parties and no irrelevant matters were taken into account.
In the case of Glenn Barnes, while some aspects of the sentences were very lenient, I was not persuaded that they were manifestly inadequate. Even if any aspect of those sentences were manifestly inadequate, I still would have dismissed the appeal in the exercise of this Court’s residual discretion to decline to intervene on a Crown appeal.
In the case of Trevor Barnes, however, I was persuaded that the individual sentences, the total effective sentence and the non-parole period were manifestly inadequate.
Further, I was of the view that, while the existence of the (undisturbed) sentences imposed on Glenn Barnes and principles of parity among co-offenders constrained the sentences to be imposed on re-sentencing, neither the application of those principles nor any other factors were such as to cause me to conclude that the appeal should be dismissed in the exercise of the Court’s residual discretion to decline to intervene. Instead, I took the view that the inadequacy in the sentences imposed on Trevor Barnes was so marked, and the differences between his criminality and personal circumstances and those of his brother were so great, that it would be an affront to the administration of justice to decline to intervene and increase those sentences.
Accordingly, I joined in the orders allowing the Director’s appeal, quashing the sentences imposed in the County Court and re-sentencing Trevor Barnes in accordance with the following table.
| New sentences: | Trevor Barnes | ||
| Charge/Offence | Max’m | Sentence | Cumulation |
1. Aggravated burglary | 25 years | 4 years | 6 months |
| 2. Intentionally cause serious injury | 20 years | 5 1/2 years | Base |
| 4. Intentionally cause serious injury[7] | 20 years | 5 1/2 years | 2 years |
| Total effective sentence (TES) | 8 years | ||
| Non-parole period (NPP) | 5 years | ||
| Section 6AAA statement | TES: 10 1/2 years NPP: 7 1/2 years | ||
[7]Pursuant to s 6F of the Sentencing Act 1991 (Vic), there should be a declaration that Trevor Barnes is sentenced as a serious violent offender on Charge 4.
My detailed reasons for those conclusions and for joining in those orders follow.
Trevor Barnes
Additional information and findings
Before turning to the issues raised on the first appeal, I shall set out some additional background concerning Trevor Barnes and some of the more important findings made by the judge.
Trevor was aged 37 at the time of sentence. He was schooled to Year 12 but struggled academically. He worked as a labourer for a number of years but relationship difficulties and drug and alcohol abuse interrupted his work history. He has three children (aged 15, 13 and 10 years at the time of sentence) from three relationships. Ms Bethune is the mother of his youngest child.
Trevor and Ms Bethune married in 2003. During the relationship, Trevor was violent and threatening towards his wife. She obtained an intervention order at some point. In 2010, Ms Bethune, with their daughter, moved to Queensland to get away from Trevor. He followed them and convinced Ms Bethune to return to Victoria. Subsequently, she left with their daughter again. In 2012, she moved to Corio, with the assistance of Trevor.
At the time of the offending, Ms Bethune had been in a relationship with Mr Karaula for a month or two. Mr Karaula had been friends with Trevor for four or five years and had known Ms Bethune for about the same period. Ms Bethune and Mr Karaula moved into the farmhouse a month before the offending. Ms Bethune told people she was moving to Melton, so that Trevor would not find out where she was living.
Trevor has been sentenced on four separate occasions for criminal matters. In 2002, he was placed on an undertaking, without conviction, for resisting police. In 2004, he was sentenced in the County Court to 18 months’ imprisonment, wholly suspended for three years, on a charge of recklessly causing serious injury and placed on a community based order for two years on a charge of affray. In 2009, he was convicted and fined for breaching an intervention order.
On 17 May 2013, only six days before the current offences, he was sentenced to a total of nine months’ imprisonment, with three months to serve immediately and the rest suspended for 18 months, on two charges of assault, three of breaching an intervention order, two of theft, two of failing to answer bail and some driving offences. He had spent nearly three months in prison at that time and, as indicated earlier, was released only three days before the current offences. One of those previous assaults occurred on 4 October 2011, at Ardeer.[8] Trevor grabbed Ms Bethune by the throat, shoved her head into a wall and punched her in the stomach. The other assault concerned events on 12 December 2012, at Corio. This time, Trevor grabbed Ms Bethune around the neck in front of their daughter and said, “I’m going to get a spade and bury you where no one can find you.”
[8]The long delay, of 17 months, between the commission of this offence and its being dealt with, was occasioned largely as a result of Trevor Barnes’s (four) failures to appear at court, two of which failures resulted in convictions for failing to answer bail. See the Plea Transcript at pp 59-60.
The judge received a psychiatric report and a psychological report in evidence on the plea. Dr Anthony Cidoni, a psychiatrist, was of the view that Trevor is suffering from a major depressive disorder. Dr Matthew Barth, a psychologist, opined that, given Trevor’s extensive history of substance abuse, including of methylamphetamine (or “ice”), he has a stimulant use disorder at a severe level. He is prone to suspiciousness, which culminates in unhealthy relationships and a propensity for violent behaviour. Dr Barth also considered that Trevor’s emotional difficulties and frequent substance abuse have resulted in increasingly reckless, impulsive and aggressive behaviour, such that he has maladaptive interpersonal and behavioural adjustment warranting a diagnosis of a borderline personality disorder, with antisocial features. He opined that Trevor requires extensive psychological support to have any real prospect of remaining abstinent from drug use and of reducing his risk of recidivism for violent behaviour.[9]
[9]Sentence at [16].
In this regard, the judge noted that, while in custody, Trevor had reflected on the causal link between his substance abuse and his offending. Recently, he had undertaken courses in drug and alcohol abuse, anger and mood management, and communication skills. Her Honour considered this significant, especially since he had never sought any treatment for his afflictions previously. It was also positive that he had the support of his parents. In her Honour’s view, Trevor’s prospects of rehabilitation, while not good, must not be ignored; and he should have the opportunity for supervision on parole for “a reasonably lengthy period, particularly in order to link [him] with the treatment of the type recommended by Dr Barth”.[10]
[10]Sentence at [20].
The judge also found that Trevor’s psychological conditions are not likely to be appropriately addressed in custody and that these conditions are likely to render his service of a term of imprisonment more burdensome than would be the case for a person without such afflictions.[11]
[11]Sentence at [24].
While Trevor pleaded guilty, the judge considered those to be late pleas, since they came when the case was in the reserve list awaiting trial. In her Honour’s view, the pleas signified an acceptance of legal responsibility, spared the victims from giving evidence, saved the cost of a trial and facilitated the course of justice, and therefore warranted a significant sentencing discount, but did not demonstrate remorse.[12]
[12]Sentence at [17] & [19].
Knowledge of effect of drug use as an aggravating factor?
On the plea, in response to the judge’s questions, defence counsel (who did not appear on this appeal) accepted that Trevor had previous experience of behaving violently when under the influence of ice and that he was affected by ice at the time of the offending the subject of this appeal. The judge, in her sentencing remarks, did not expressly treat such concessions as disclosing an aggravating factor. Nor were any submissions made at the plea by the prosecutor that these concessions should be regarded as an aggravating factor.
At the hearing of the appeal, questions arose as to whether this information could be taken to be an aggravating factor for the purposes determining whether the sentences were manifestly inadequate and/or in re-sentencing. Mr Holdenson QC, who appeared with Mr Dann for Trevor Barnes on the appeal, submitted that, since this information was not relied on as an aggravating factor by the Crown upon the plea, it could not be relied on now at either stage of the process. Mr Silbert QC, who appeared with Ms Argiropoulos for the Director on the appeal, submitted the Court was at large to rely on the material in re-sentencing.
In my view, for reasons that follow, the information cannot be treated as an aggravating factor at all; and, even if it could be treated in that way, should not be so treated in determining whether to allow the Director’s appeal or upon any re-sentencing.
First, it is not clear that the judge found, at all, let alone on the criminal standard of proof, that taking ice on this occasion did make Trevor behave violently or that he was aware, prior to taking the ice, that it would have this effect.[13] The closest her Honour came was perhaps to be found in the following remarks:[14]
[20] It would also appear that, during your time in custody since May last year, you have reflected upon your substance abuse and its causative link with your offending. …
…
[22] It would appear that your conduct is probably exacerbated by long-term substance abuse, particularly the abuse of ice. During the time that you have been in custody since May last year, apparently you have managed to abstain from illicit drugs and had some time to reflect upon the woeful mess that you have made of your life and the lives of others. It will be up to you to maintain that abstinence, otherwise your future will be a very bleak one.
[13]Contrast, for example, the judge’s findings in R v Martin (2007) 20 VR 14 at 15-16[3] & 29[53].
[14]Sentence at [20] & [22].
A finding that his “conduct is probably exacerbated by long-term substance abuse” is hardly the equivalent of finding that his conduct, on this occasion, was exacerbated by the use of ice and that he knew beforehand that the taking of ice would have this effect. In any event, her Honour’s use of the word “probably” makes clear that it is not a finding on the criminal standard of proof, which would be necessary were the finding to be employed as an aggravating factor. Further, that her Honour referred to Trevor’s having reflected, while in custody, on the causal link between his substance abuse and his offending rather suggests she was of the view that it was only recently that he could see the link, not that he was aware of any such link prior to the offending.
Secondly, even if her Honour did make the findings now urged by the Director, or if they were open on the criminal standard of proof (which I doubt), the prosecutor made no submission to the effect that such findings should be made or that they would amount to an aggravating factor. In those circumstances, it would be unfair to use such evidence against Trevor as an aggravating factor on this appeal. This is because, absent notice in the court below that this was the approach of the Crown, he has been denied the opportunity of meeting any such submission, whether by calling other evidence and/or making submissions to the judge.
Aggravated burglary
I turn now to the complaint that the sentence imposed on Trevor Barnes on the charge of aggravated burglary is manifestly inadequate.
Appellant’s submissions on aggravated burglary
Mr Silbert submitted that a sentence of only two-and-a-half years’ imprisonment – or only ten per cent of the maximum penalty – for this particular example of aggravated burglary manifestly fails to reflect that maximum penalty.
He also submitted, by reference to the criteria listed in DPP v Meyers,[15] that this particular offence is properly described as an “intimate relationship aggravated burglary” with the following characteristics. First, at the point of entry, Trevor’s clear intent was to assault his estranged wife, at least by confronting her. Second, while he entered through an unlocked door, so that it might be said to be a less spectacular form of trespass, he was carrying a jemmy bar. Third, he was not alone but was accompanied by his brother. Fourth, his entry occurred in the early hours of the morning. Fifth, since the lights were on, he believed that his estranged wife would be inside the premises (although he might not have believed Mr Karaula was there). Finally, Ms Bethune lived in fear of her husband, which he knew from past experience of domestic violence towards her that had culminated in an existing intervention order.
[15]DPP v Meyers [2014] VSCA 314 at [48]-[49].
It was submitted that the sentence is low even by the sentencing practices that prevailed before this Court’s decision in Hogarth v The Queen.[16] Reliance was also placed on the sentence in DPP v Meyers itself, where this Court substituted a sentence of four years’ imprisonment but would have imposed “a substantially higher sentence” had the prosecutor on the plea adopted a different position.[17] It was submitted that the seriousness of this offence “exceeds that in DPP v Meyers”.
First respondent’s submissions on aggravated burglary
[16]Hogarth v The Queen (2012) 37 VR 658.
[17]DPP v Meyers [2014] VSCA 314 at [7].
Mr Holdenson challenged the latter submission. He pointed out that Mr Meyers entered the premises by smashing through a rear door and had with him a sawn-off double-barrelled shotgun, a nail-gun, a crow bar, cable ties, ‘gorilla tape’, various knives and cutting tools and a plastic drop sheet; whereas, in the present case, the door was unlocked and only a jemmy bar was carried.
It was submitted that, when allowance is also made for Trevor’s plea of guilty, his prospects of rehabilitation, his relatively modest criminal history, his psychological condition (which would make gaol more burdensome for him), that his intention to assault upon entry was confined to Ms Bethune (since he was not aware of Mr Karaula’s presence), the sentences imposed in like cases[18] and the fact that no penalty is to be imposed on the aggravated burglary for the other offences that occurred after entry, it is apparent that the sentence imposed was open to the judge.
Aggravated burglary, its limits and its maximum penalty
[18]In addition to DPP v Meyers [2014] VSCA 314, Mr Holdenson referred to the other cases of aggravated burglary on which the Director relied, including Gale v The Queen [2014] VSCA 168 (three-and-a-half years’ imprisonment); Filiz v The Queen [2014] VSCA 212 (two-and-a-half years’ imprisonment); and Anderson v The Queen [2014] VSCA 255 (three years’ imprisonment).
Mr Holdenson was right to submit that it is necessary to avoid punishing Trevor on the aggravated burglary for the subsequent offences committed inside the house.[19] Aggravated burglary is complete when the offender enters the premises as a trespasser while having the requisite intention (whether it be to steal, assault or damage property) and accompanied by the particular form or forms of aggravation. In this case, the requisite intention was to commit an offence involving an assault to a person in the premises. The forms of aggravation were the knowledge that, or recklessness as to whether, a person was present in the premises and the carrying of an offensive weapon in the form of a jemmy bar. The offence can be regarded as persisting while the offender is inside the premises. Often, however, the behaviour that occurs inside the premises will give rise to other offences, as in this case, which offences attract their own separate punishment. On occasions, the subsequent offences might inform the intention held at the time of entry. Equally, in so far as there was an intention to assault a person at the time of entry, a court must be astute to avoid punishing the offender twice (or more) when sentencing for the aggravated burglary and the assault or assaults committed after entry.
[19]See, e.g., DPP v Meyers [2014] VSCA 314 at [70]-[71].
It might be said that aggravated burglary is, in a sense, an anomalous offence. On the one hand, it carries a maximum penalty – 25 years’ imprisonment – that, murder aside (which carries life imprisonment),[20] is higher than or as high as the maximum penalties for the worst types of offences against the person that might be committed after burglarious entry to premises – such as intentionally causing serious injury (20 years), attempted murder (25 years),[21] rape (25 years)[22] or even manslaughter (20 years).[23] Yet, on the other, it is hard to imagine an aggravated burglary ever properly attracting a sentence anywhere near its maximum penalty, or heavier than the order of sentence likely to be imposed for the more serious instances of offences to the person that might be committed after entry, if only because it would seem wrong to punish such burglarious behaviour, which does not cause physical harm, as heavily as the criminal behaviour that does cause very serious physical and/or psychological harm, such as rape, intentionally causing serious injury and the like.[24] In my view, it is important to recognize this anomaly when having regard to the very high maximum penalty the legislature has fixed for aggravated burglary.
[20]See s 3 of the Crimes Act 1958 (Vic).
[21]See ss 3 and 321P(1)(a) and (1A) of the Crimes Act 1958 (Vic).
[22]See s 38 of the Crimes Act 1958 (Vic).
[23]See s 5 of the Crimes Act 1958 (Vic).
[24]An exception might be, say, a case where an offender enters premises as a trespasser, carrying a weapon or weapons, knowing that a person is inside, and with an intention to rape and murder that person. If the offender were thwarted in his ultimate intention after entry to the premises but before his behaviour had amounted to an attempt to rape and murder, the very high maximum penalty for aggravated burglary presumably might be more usefully called into service.
In this respect, the maximum penalty is similar to the very high maximum penalty – also of 25 years’ imprisonment – that has been fixed for the common law offence of attempting to pervert the course of justice.[25] In DPP v Aydin & Kirsch,[26] when considering that particular maximum penalty, Callaway JA remarked that, “in some cases, the maximum is of less utility than might otherwise be the case”.[27] Similarly, Eames JA said that “[t]his is an instance where rather than assisting the sentencing task a very high maximum penalty provides little guidance to the sentencing judge”.[28] As Callaway JA also said, it is wrong to assume that there is an arithmetical progression from zero to 25 or that such a high maximum is of more than general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale.[29] In my view, those remarks apply equally to the maximum penalty for aggravated burglary.
Conclusions on aggravated burglary
[25]See s 320 of the Crimes Act 1958 (Vic).
[26]DPP v Aydin & Kirsch [2005] VSCA 86.
[27]DPP v Aydin & Kirsch [2005] VSCA 86 at [11] (and see also [7]-[12]) (Callaway JA); see also at [24] (Buchanan JA, agreeing with Callaway JA).
[28]DPP v Aydin & Kirsch [2005] VSCA 86 at [28] (and see also [25]-[28]) (Eames JA, also agreeing with Callaway JA).
[29]DPP v Aydin & Kirsch [2005] VSCA 86 at [11].
All of that said, aggravated burglary can be a serious and terrifying enough offence on its own – that is to say, even without the commission of comparatively serious offences against the person after entry to premises. The unlawful invasion of another’s home with a weapon and a violent intention can be, and usually is, a very serious crime. Indeed, considered in that confined way, Trevor’s offence was still a very nasty aggravated burglary, particularly given the aggravating features of the offence. The combination of factors to which Mr Silbert referred makes it so. While, unlike in DPP v Meyers, the entry did not involve a graphic smashing of a door or being armed with a shotgun or a nail-gun or carrying cable ties and the like, nevertheless, to have entered, uninvited (albeit through an unlocked door), in the early hours of the morning, carrying a jemmy bar, as Trevor did, with an intention to assault his estranged wife, whom he knew was frightened of him because of past instances of violence, and to have done so having just been released from gaol and in breach of an intervention order and a partly-suspended sentence imposed only a short while earlier, still makes this a very serious offence. Further, that the offence was committed in company, and that Trevor was the driving force behind it, makes it all the more serious. Indeed, I consider this offence to be of a similar order of gravity to the aggravated burglary considered in DPP v Meyers.
General deterrence, denunciation and just punishment are important purposes in sentencing for such an offence. The community should understand that criminal behaviour of this type is denounced by the courts and will result in substantial punishment that reflects that a person’s home has been invaded in what must have been intended to be terrifying circumstances. Specific deterrence and protection of the community are also important in this case, given that Trevor had not long since been released from prison for offences that included assaulting Ms Bethune and breaching an intervention order in her favour. In my respectful opinion, however, the sentence imposed at first instance fails adequately to reflect these purposes.
Further, the factors in mitigation (including the pleas of guilty, such prospects of rehabilitation as there may be and the hardship of imprisonment), while important, do not reduce the necessary sentence to anything approaching two-and-a-half years’ imprisonment.
In my view, the sentence is manifestly inadequate. It is out of step with current sentencing practices. When all considerations are weighed in the balance, including parsimony and parity between co-offenders, this offence demands a sentence of no less than four years’ imprisonment.
But for the constraint of parity vis-à-vis his brother’s (undisturbed) sentence, to which I shall return later, a longer sentence would have been required.
Intentionally causing serious injury to Mr Karaula and Ms Bethune
I turn now the sentences imposed for Trevor’s offences of intentionally causing serious injury.
Appellant’s submissions on intentionally causing serious injury
Mr Silbert submitted, in part by reference to the criteria listed by Maxwell P in Nash v The Queen,[30] that sentences of three-and-a-half years’ imprisonment for Trevor’s offences of intentionally causing serious injury to Mr Karaula and Ms Bethune are clearly out of step with comparator cases and are manifestly inadequate. A consideration of the criteria listed by Maxwell P as applied to the present case follows.
[30]Nash v The Queen (2013) 40 VR 134 at 137[10].
First, it is apparent – from the ferocity of the assaults, the weapon used, the fact that several of the blows were to the head, the kicking of Ms Bethune and the gravity of the injuries caused – that Trevor’s intention was to cause each victim very serious injury. It was only when his brother pointed out that Ms Bethune was bleeding that Trevor, at least in part, came to his senses and his grave intentions subsided.
Secondly, the injuries caused to the complainants were very severe. Mr Karaula was knocked unconscious and suffered a fractured skull and a broken nose. It is no exaggeration to observe that each complainant could have been killed by being struck to the head with a jemmy bar. Experience tells that lesser blows have killed. Ms Bethune suffered a laceration to her (only) kidney, a wound to her head, and numerous bruises, abrasions and incisions. She could have lost the function of her only kidney. While there was no victim impact statement from Mr Karaula and no evidence of how he had healed physically or psychologically, the judge accepted that he must have been terrified and deeply unsettled by the incident. In her victim impact statement, Ms Bethune described, among other things, the physical and mental trauma caused to her, the humiliation of having police photographing her injured body, the fact that she is left with scarring, and the loss of security, sleep and enjoyment of life that the incident has caused.
Thirdly, each complainant was in a vulnerable position. They were naked and more or less defenceless in their own home early in the morning. They were taken completely by surprise by Trevor’s frenzied and cowardly attack.
Fourthly, a weapon was used. As I said earlier, striking another on the head with a jemmy bar could have caused far more serious and permanent injuries, or even death.
Fifthly, while each attack was short-lived and while Glenn did not physically participate in any of the blows, the fact is that Trevor did not act alone. The sense of helplessness felt by the victims must have been increased by the fact that there were two armed men in their house, not just one. On the other hand, there is no doubt that Glenn’s words caused Trevor to desist.
As for comparator cases, Mr Silbert relied on Nash v The Queen itself, DPP v Anderson and Tasevski v The Queen. In Nash v The Queen,[31] the offender pleaded guilty to kicking a defenceless woman in the face, while she was kneeling, which caused her to fall to the ground and hit her head. Mr Nash also continued to punch the woman to the head and upper body after she fell. The woman suffered broken bones in her ears, which in turn resulted in complete loss of hearing in one ear and very little hearing in the other, and a loss of balance. She also suffered broken ribs. An appeal against a sentence of seven years’ imprisonment was dismissed.
[31]Nash v The Queen (2013) 40 VR 134.
In DPP v Anderson,[32] an 18-year-old boy pleaded guilty to stabbing a 28-year-old intellectually disabled shop assistant with a knife he grabbed from the shelf of the supermarket in which the assault occurred. Having been ejected from the supermarket for stealing and then reacting violently to other staff, Mr Anderson grabbed the victim by the scruff of the neck and stabbed him in his arm and twice to the legs, down to the bone in each case. The injuries were life-threatening. Further, the victim now has no function in the fingers and thumb on his left hand. Mr Anderson had a significant record of violent offending and a background of overwhelming disadvantage. The sentence was increased on appeal from four to six years’ imprisonment.
[32]DPP v Anderson (2013) 228 A Crim R 128.
In Tasevski v The Queen,[33] the offender, while in a mall, stabbed a passer-by in the stomach, causing a laceration to his liver, after a relatively innocuous verbal altercation. He then taunted the victim when he tried to ring for help. At that time of the stabbing, Mr Tasevski was on bail awaiting trial for another knife attack committed only seven months earlier. The victim was no longer able to work full-time as a boiler-maker and could not lift anything heavy. An appeal against a sentence of seven-and-a-half years’ imprisonment was dismissed.[34]
First respondent’s submissions on intentionally causing serious injury
[33]Tasevski v The Queen [2014] VSCA 135.
[34]Nettle JA and Beach JA joined in the order dismissing the appeal. Tate JA, in dissent, would have allowed the appeal and substituted a sentence of six years’ imprisonment. See Tasevski v The Queen [2014] VSCA 135 at [9] (Nettle JA), [67] (Tate JA) & [71] (Beach JA).
Mr Holdenson submitted that the comparator cases relied on are not helpful, as they involve more serious instances of the offence of intentionally causing serious injury, including permanent physical injuries. Other than scarring to Ms Bethune, there is no evidence of permanent physical injury to either victim.
On the plea, counsel referred the judge to the most recent Sentencing Snapshot for the offence of intentionally causing serious injury.[35] The statistics in that document revealed that the average sentences for the period 2008-09 to 2012-13 ranged from three years and eight months’ imprisonment in 2008-09 to four years and eight months’ imprisonment in 2012-13; and that the median sentence over that period was four years’ imprisonment. Mr Holdenson submitted that, while longer sentences might have been imposed, those statistics support the submission that sentences of three-and-a-half years’ imprisonment were within the range of those available to the judge in the present case.
[35]Sentencing Advisory Council, Sentencing Snapshot No 156: Sentencing trends for causing serious injury intentionally, June 2014.
One of the particulars of the Director’s complaint of manifest inadequacy was that the judge failed to fix a sentence commensurate with Trevor’s status as a “serious offender” on Charge 4 (the charge of intentionally causing serious injury to Ms Bethune). Section 6D(a) of the Sentencing Act 1991 (Vic) provides that, in sentencing a serious offender to a term of imprisonment for a relevant offence, the court, in determining the length of the sentence, must regard the protection of the community as the principal purpose for which the sentence is imposed. Mr Holdenson submitted that, although the judge imposed the same sentence on each offence of intentionally causing serious injury, the offence against Mr Karaula was, objectively, the more serious of the two. In his submission, since there is no doubt that her Honour was aware of the legislative consequences of Trevor’s status as a serious offender, the fact that the same sentences were imposed suggests that, if anything, too much, rather than too little, weight was given to this factor when sentencing on the offence committed against Ms Bethune.
Conclusions on intentionally causing serious injury
While I accept Mr Holdenson’s submission that the comparator cases relied on by the Director involve more serious examples of intentionally causing serious injury than those under appeal here, at least in so far as the causing of permanent physical injury is concerned, I am nevertheless persuaded that the sentences of three-and-a-half years’ imprisonment imposed on Trevor for the offences in Charges 2 and 4 are manifestly inadequate.
Both offences involved brutal, frenzied and potentially life-threatening attacks, with a jemmy bar, and with an armed accomplice in tow, upon persons in vulnerable circumstances in their own home in the wee hours of the morning. While there may be no or only comparatively moderate permanent physical injury, the immediate injuries were grave, and were obviously intended by Trevor. Further, the psychological effects on Ms Bethune, as would be expected by any reasonable person, have been profound. The offences are also aggravated by the fact that they were committed in breach of a partially-suspended sentence imposed only a six days earlier.
In sentencing, the judge said this about Trevor’s offending:[36]
[21] I make it plain that I consider that you are the main offender in this criminal enterprise and the whole appalling saga was dictated by your immaturity and inability to control your anger in the context of your possessive and controlling behaviour of Ms Bethune, whom you had subjected to domestic violence on earlier occasions. In sentencing you, the court must denounce your conduct, give emphasis to general deterrence, and impose just punishment. A strong message needs to be sent to males in the community who are inclined to be violent towards their female partners. You do not own them. You have no right … menacingly [to] control them. If you lay a hand on them in anger, the law will not spare you punishment. Men who are bullies towards women usually have some psychological inadequacy. They need to look long and hard at themselves to try to understand why they are inclined to behave with anger and brutality, and seek professional help to overcome such inclinations.
[22] In your case, emphasis must also be placed upon specific deterrence because of your prior history of violence towards Ms Bethune. As I have indicated, your history of offending whilst on a suspended sentence, and breaching an intervention order, do not inspire optimism. …
[23] … [Y]ou fall to be sentenced as a serious violent offender on Charge 4, that is intentionally causing serious injury to [Ms] Bethune. This means that, pursuant to s 6D, I must regard protection of the community from you as the principal purpose for which the sentence on Charge 4 is imposed. It has not been submitted by the prosecution that the sentence should be a disproportionate one, and I agree with that.
[36]Sentence at [21]-[23].
Thus, it is plain that her Honour endeavoured to place considerable weight on the need for general deterrence, denunciation, just punishment, specific deterrence and protection of the community.[37] In my view, however, the sentences imposed simply do not reflect the importance of those purposes in sentencing Trevor Barnes for these particular offences.
[37]These purposes, as well as rehabilitation, are the only purposes for which sentence may be imposed (see s 5(1) of the Sentencing Act 1991 (Vic)).
While the factors in mitigation (especially the pleas of guilty, such limited prospects of rehabilitation as there may be and the hardship of imprisonment) are also important considerations, they cannot justify the sentences imposed for such serious examples of intentionally causing serious injury accompanied by such serious aggravating circumstances committed by a man with such a poor and recent record for violence.
In my view, each offence demands a sentence of no less than five-and-a-half years’ imprisonment.
Again, but for the constraint of parity, to which I shall return later, longer sentences would have been required.
Cumulation, total effective sentence and non-parole period
This brings me to the total effective sentence and the non-parole period.
Appellant’s submissions on total effective sentence and non-parole period
Mr Silbert’s principal submission was that the total effective sentence (of six years’ imprisonment) and the non-parole period (of three years) manifestly failed to reflect the total criminality in the three offences committed by Trevor Barnes.
As I understood the argument, it was submitted that the erroneous total effective sentence resulted from the imposition of manifestly inadequate individual sentences, thereby producing an insufficient base sentence on which to cumulate other sentences, or the directing of manifestly inadequate levels of cumulation, or both.
On the issue of cumulation, Mr Silbert placed a good deal of reliance on s 6E of the Sentencing Act in its application to the order for cumulation of the sentence on Charge 4, the offence of intentionally causing serious injury to Ms Bethune. Section 6E provides that every term of imprisonment imposed on a “serious offender” (as Trevor Barnes now is) for a “relevant offence” (as the offence in Charge 4 is) must, unless otherwise directed by the court, be directed to be served cumulatively on other sentences. In particular, it was submitted that a much greater level of cumulation (than the 18 months ordered) was required so as not to undermine the legislative policy behind s 6E. In this regard, counsel relied on the remarks of the High Court in RHMcL v The Queen[38] concerning an earlier version of the same provision.
[38]RHMcL v The Queen (2000) 203 CLR 452 at 476-477[76].
I did not understand Mr Silbert to address any separate argument to the appropriateness or otherwise of the ratio of the non-parole period to the total effective sentence. Rather, I understood his submission to be that a non-parole period of three years was manifestly too short given the total criminality; and that that came about as a result of the unreasonable level of compression of the total effective sentence.
First respondent’s submissions on total effective sentence and non-parole period
Mr Holdenson submitted that, because the three offences occurred as part of a single incident of short duration and because of the need to avoid double punishment for the aggravated burglary and the offences committed after entry to the premises, it was necessary for the judge to have significant regard to the principle of totality. In those circumstances, he submitted, it was open to choose the sentence on Charge 2 (intentionally causing serious injury to Mr Karaula) as the base sentence and to direct that 18 months of the sentence on Charge 4 and 12 months of the sentence on Charge 1 (the aggravated burglary) be served cumulatively upon the sentence on Charge 2.
As for s 6E, he submitted that the judge, correctly, took the view that total cumulation of the sentence on the offence in Charge 4 would lead to a crushing and unjust sentence. In this regard, he noted that her Honour also referred to the increased burden of imprisonment because of Trevor’s psychological conditions. Further, he submitted that RHMcL v The Queen “only requires sentencing judges to be ‘astute not to undermine the legislative policy’”.[39] It still remains necessary to consider whether the total sentence is proportionate to the totality of the offending.[40]
Conclusions on total effective sentence and non-parole period
[39]RHMcL v The Queen (2000) 203 CLR 452 at 476-477[76].
[40]For this proposition, Mr Holdenson relied on R v Connell [1996] 1 VR 436 at 444.
In my view, balancing all considerations, including the factors in mitigation, the total effective sentence and the non-parole period do manifestly fail to reflect the total criminality in the three offences committed by Trevor Barnes.
I do not accept, however, that there is any error, or manifest inadequacy, in the judge’s direction for partial cumulation of the sentence for intentionally seriously injuring Ms Bethune upon the base sentence for intentionally seriously injuring Mr Karaula. Allowing full weight to the legislative policy behind s 6E, to have directed that 18 months of a three-and-a-half-year sentence be cumulated is a goodly amount and proportion of cumulation.
Equally, there is no error, or manifest inadequacy, in the cumulation of 12 months of the two-and-a-half-year sentence on the aggravated burglary upon the other sentences. If anything, that, in my view, is quite a high level of cumulation of a sentence for an offence which is, in sense, overtaken in seriousness by the subsequent offences.
Instead, the manifest inadequacy in the total effective sentence stems from the manifestly inadequate base sentence on which the orders for cumulation were made. Had the judge imposed substantially longer individual sentences but made the same directions for cumulation, there could be no complaint about the total effective sentence or the orders for cumulation.
In my view, balancing all considerations, including the (undisturbed) total effective sentence (of three-and-a-half years’ imprisonment) imposed on his brother, the totality of Trevor’s offending demands a total effective sentence of no less than eight years’ imprisonment.
The manifest inadequacy in the non-parole period in turn results from the manifest inadequacy in the total effective sentence. Had the total effective sentence been substantially longer, I have no doubt that the judge would have fixed a substantially longer non-parole period.
A non-parole period is designed to provide mitigation of the punishment of the offender in favour of his rehabilitation through conditional freedom, when appropriate, once the offender has served the minimum time in prison that the sentencing judge determines justice requires that he or she must serve having regard to all the circumstances of the offences.[41]
[41]Power v The Queen (1974) 131 CLR 623 at 628.
In my view, the collective gravity of the three offences and such prospects of rehabilitation as he has require that Trevor Barnes serve at least five years of an eight-year total effective sentence in prison before becoming eligible for conditional freedom on parole.
Again, absent the constraints of parity, to which I shall turn after addressing the appeal against the sentences imposed on Glenn Barnes, a longer total effective sentence and non-parole period would have been required.
Glenn Barnes
Background and judge’s findings
Before turning to the issues raised on the second appeal, I shall set out some additional background concerning Glenn Barnes and some of the more important findings made by the judge.
Glenn was aged 34 at the time of sentence – three years younger than his brother. He left school halfway through Year 12 and commenced full-time work immediately. He worked as a cleaner at the school he had attended as a student; as a petrol service station attendant; as a shoe salesman; and as a leading hand and fork-lift driver. He was in full-time work for over seven years, until his mid-twenties, when the effects of schizophrenia blighted him. Eventually, in 2007, he was placed on a disability support pension because of that affliction. He has two children (aged 13 and 11 years at the time of sentence). He has been separated from their mother for ten years, but on good terms. Prior to his incarceration, he had access to the children every weekend. He has been in a relationship with his current partner for about four years.
Glenn has been sentenced on three separate occasions for criminal matters, all of which occurred after the symptoms of his paranoid schizophrenia surfaced. In 2004, he was placed on an undertaking, without conviction, for assaulting and resisting police and using indecent language. A condition of the undertaking was that he “continue to accept treatment for schizophrenia”. In 2007, he was fined for recklessly causing injury and assaulting police. In 2008, he was placed on an undertaking for possessing methylamphetamine and a controlled weapon. Again, a condition of the undertaking was that he “continue to attend all scheduled appointments with Dr Ibrahim”.
Dr Ibrahim has been Glenn’s psychiatrist since 2007. The judge received two reports from Dr Ibrahim on the plea. While he is uncertain as to the onset of Glenn’s schizophrenia, he is of the opinion that it was marked by the presence of paranoid delusions, particularly relating to television and radio broadcasts. Initially, Glenn had only partial insight into his illness, was ambivalent about seeking treatment and was not consistent in doing so. Recently, however, the judge found, he had developed greater insight into the connection between illicit substance abuse and difficulties with his mental health, and was compliant with his medication.[42]
[42]Sentence at [36] & [39].
While there was no evidence that schizophrenia played any part in the present offending, the judge found that Glenn would find serving a term of imprisonment more onerous because of his affliction, part of which involved his feeling difficulty when having several people around him, which is of course a feature of prison life. Her Honour also accepted Dr Ibrahim’s opinion that Glenn’s mental health was at a fragile stage and that his condition could well deteriorate with the stress of a gaol sentence. Further, the judge was particularly concerned (and understandably so) that, between the time of his being remanded in custody following the verdict and the hearing of the plea, Glenn did not receive his full regime of medication. Her Honour found that made that period “very difficult, particularly as [he had] never been in custody before”.[43]
[43]Sentence at [36] & [46].
The judge accepted the contents of a reference from Glenn’s partner Jacqueline Clark to the effect that he is a very gentle, kind, compassionate man; has managed his schizophrenia well; is a responsible, loving and caring father; has never been violent to her or other females; and has been very caring and understanding towards her significant health concerns. Glenn’s aunt Norma Abela gave a similar reference.[44]
[44]Sentence at [40].
The judge found that Glenn played “a very considerably lesser role than [his] brother”.[45] He did not participate in the assaults. Instead, he was “back-up” to his brother. He stood in or near the doorway to the bathroom, with a jemmy bar, while Trevor assaulted Mr Karaula. The judge said the evidence was unclear as to what Glenn did from that time until he was next seen by Ms Bethune in the lounge room. Her Honour considered “it most likely that the jury formed the view that [Glenn] stood by while Trevor pursued Ms Bethune and [was] reckless as to the outcome of his actions”.[46]
[45]Sentence at [41].
[46]Sentence at [33].
The judge also found that it was Glenn’s utterance that Ms Bethune was bleeding that effectively interrupted Trevor’s frenzied attack on his wife, which is a matter that went to his credit.[47]
[47]Sentence at [34].
Her Honour found that Glenn was “foolishly dragged into this bloody scenario by the vengeful attitude of [his] older brother towards his wife”.[48] She had no difficulty in accepting that it was Trevor’s idea to go and “vent his spleen” and that Glenn went along with him “out of a misguided sense of brotherly loyalty”.[49]
[48]Sentence at [34].
[49]Sentence at [43].
Further, her Honour accepted that, unlike Trevor, Glenn held no grudge against Ms Bethune, had no history of violence towards her, was not in breach of a suspended sentence or an intervention order, was not to be sentenced as a serious offender and had a lesser criminal history.[50]
[50]Sentence at [42].
The judge accepted that Glenn is “not by nature a violent person and that there was not a great deal of need for emphasis on specific deterrence in sentencing [him]”.[51]
[51]Sentence at [44].
Her Honour also found that Glenn’s prospects of rehabilitation are superior to those of his brother.[52]
[52]Sentence at [47].
Despite his failure to acknowledge responsibility for the offending by pleas of guilty, the judge considered Glenn’s circumstances to be “deserving of some compassion”.[53]
[53]Sentence at [45].
Finally, the judge considered it appropriate to impose “a disproportionately low non-parole period in light of the concerns about [Glenn’s] mental health in custody and the fact that [she considered] it important for [his] mental health and [his] rehabilitation that [he] be reunited with [his] family and settled back into the community as soon as possible”. Her Honour also considered that “supervision on a reasonably lengthy parole period is probably the best way to ensure that [he] obtain[s] treatment for [his] substance abuse”.[54]
[54]Sentence at [52].
Aggravated burglary
I turn now to the complaint that the sentence of two-and-a-half years’ imprisonment imposed on Glenn Barnes on the charge of aggravated burglary is manifestly inadequate.
Appellant’s submissions on aggravated burglary
With necessary adaptation, Mr Silbert made similar submissions about the sentence imposed for the aggravated burglary committed by Glenn as he did about the same sentence imposed for the same offence committed by Trevor.
Again, he addressed the criteria listed in DPP v Meyers.[55] First, at the point of entry, Glenn was aware that Trevor had an intention to assault his estranged wife, at least by confronting her, and he was there to “back up” his brother. Second, while he entered through an unlocked door, he too was carrying a jemmy bar. Third, he accompanied his brother. Fourth, his entry occurred in the early hours of the morning. Fifth, he must have believed that someone would be inside the premises.
Second respondent’s submissions on aggravated burglary
[55]DPP v Meyers [2014] VSCA 314 at [48]-[49].
On the other hand, as Mr Edney, who appeared with Ms Clark for Glenn Barnes on the appeal, pointed out, there was no evidence that his client knew that Ms Bethune lived in fear of her husband. Nor, of course, did Glenn commit the offence in breach of an intervention order, in breach of a partly-suspended sentence or having just been released from prison for assaulting Ms Bethune and breaching an intervention order on multiple occasions.
Mr Edney submitted that, while Glenn did not have the benefit in mitigation of pleas of guilty, nevertheless, when regard is had to the judge’s findings about Glenn’s lesser role, his modest criminal history, his positively good character, his prospects of rehabilitation, the hardship imprisonment would impose upon him in light of his mental illness and current sentencing practices, a sentence of two-and-a-half years’ imprisonment was open.
Conclusions on aggravated burglary
While Glenn’s offence of aggravated burglary was still very serious, I am of the view that the sentence imposed was open to the judge in the sound exercise of the sentencing discretion.
General deterrence, denunciation and just punishment were important sentencing purposes in sentencing for this offence, but there was little, if any, need for specific deterrence or protection of the community, since this behaviour was out of character for Glenn Barnes. His prospects of rehabilitation are good and, in the judge’s view, which is not challenged, should be encouraged.
Glenn’s offence was substantially less serious than his brother’s offence, given the differences identified by the sentencing judge. Instances of aggravated burglary of greater gravity committed in recent years have attracted sentences of a similar order.[56] Accordingly, the sentence is consistent with current sentencing practices and is not manifestly inadequate.
Intentionally causing serious injury to Mr Karaula and recklessly causing serious injury to Ms Bethune
[56]See, for example, Gale v The Queen [2014] VSCA 168 (three-and-a-half years’ imprisonment); Filiz v The Queen [2014] VSCA 212 (two-and-a-half years’ imprisonment); and Anderson v The Queen [2014] VSCA 255 (three years’ imprisonment).
I turn now to the sentences imposed for Glenn’s offences of intentionally causing serious injury and recklessly causing serious injury.
Appellant’s submissions on intentionally and recklessly causing serious injury
Mr Silbert submitted, again in part by reference to the criteria listed by Maxwell P in Nash v The Queen,[57] that a sentence of two-and-a-half years’ imprisonment for Glenn’s offence of intentionally causing serious injury to Mr Karaula is manifestly inadequate. I shall not repeat his analysis of the criteria listed by Maxwell P as applied to the present case, since it is similar to his equivalent analysis in respect of Trevor’s offence against Mr Karaula. While Mr Silbert acknowledged that Glenn’s limited role and his more favourable personal circumstances meant that there might be a lesser sentence than should have been imposed on his brother, he was still found guilty of being complicit in a very serious offence, which demanded a substantially longer sentence than was imposed.
[57]Nash v The Queen (2013) 40 VR 134 at 137[10].
He also submitted that the sentence of 18 months’ imprisonment for Glenn’s offence of recklessly causing serious injury to Ms Bethune is manifestly inadequate. Again, while his lesser role and more favourable personal circumstances, as well as the fact that he was convicted of a less serious offence, meant that he should receive a lesser sentence than should have been imposed on his brother for his offence against Ms Bethune, nevertheless, the offence of which he was convicted demanded a substantially longer sentence than the judge imposed.
Second respondent’s submissions on intentionally and recklessly causing serious injury
Mr Edney submitted that neither sentence was manifestly inadequate. Again, in support of those submissions, he placed reliance on the judge’s findings as to Glenn’s limited role in both offences, his actions in causing his brother to desist, his modest criminal history, his positively good character, his prospects of rehabilitation, the hardship imprisonment would impose upon him in light of his mental illness and the risk that gaol would harm his fragile mental health.
Conclusions on intentionally and recklessly causing serious injury
While I accept that both sentences are lenient, I am not satisfied that they are manifestly inadequate.
As indicated earlier, the judge found that Glenn played “a very considerably lesser role than [his] brother”. His involvement in these particular offences comprised nothing more than standing by and providing “back-up” while his brother went berserk. As the judge found, Glenn went along with his brother out of a misguided sense of loyalty.
In order to be found guilty of each offence, he needed to be complicit only in the causation of serious injury with the requisite mens rea, not in the full extent and gravity of the assaults actually perpetrated by Trevor. “Serious injury”, as it was defined at the relevant time, included any combination of injuries, including “unconsciousness, hysteria, pain and substantial impairment of bodily function”.[58] Thus, complicity in, say, a single blow with a jemmy bar or a kick, with the requisite mens rea, could be enough to warrant a verdict of guilty of either offence. While the judge made no finding about the matter, it would seem unlikely that Glenn was aware that his brother intended to do such serious damage as was done to Mr Karaula or that such serious injuries would be caused to Ms Bethune. Indeed, that he persuaded his brother to desist and that he was found not guilty of intentionally causing serious injury to Ms Bethune but guilty of only recklessly causing her serious injury are factors consistent with that view.
[58]See s 15 of the Crimes Act 1958 (Vic), as it was prior to 1 July 2013.
In any event, I accept Mr Edney’s submission that such findings as the judge did make as to Glenn’s much lesser role in both offences, his actions in causing his brother to desist, his modest criminal history, his positively good character, his prospects of rehabilitation, the hardship imprisonment would impose upon him in light of his mental illness, and the risk that imprisonment would cause his fragile mental health to deteriorate, mean that it was open to her Honour to treat him very differently from his brother and sentence him as she did.
While general deterrence, denunciation and just punishment are important purposes in sentencing, I do not think specific deterrence and protection of the community are of much, if any, significance in Glenn’s case. Again, given the evidence accepted by the judge from Glenn’s partner and his aunt, the offending is out of character. Rehabilitation, however, remains an important purpose and a good prospect.
Cumulation, total effective sentence and non-parole period
This brings me to the total effective sentence and the non-parole period.
Appellant’s submissions on total effective sentence and non-parole period
Mr Silbert’s principal submission was the total effective sentence (of three-and-a-half years’ imprisonment) and the non-parole period (of 12 months) manifestly failed to reflect the total criminality in the three offences committed by Glenn Barnes.
It was submitted that the erroneous total effective sentence resulted from the imposition of manifestly inadequate individual sentences, thereby producing an insufficient base sentence on which to cumulate other sentences, or the directing of manifestly inadequate levels of cumulation, or both.
Mr Silbert submitted that the non-parole period was unusually short in proportion to the total effective sentence, and that it was manifestly inadequate given the total criminality.
Second respondent’s submissions on total effective sentence and non-parole period
Mr Edney accepted that the total effective sentence and non-parole period were lenient but not that they were manifestly inadequate. He adopted Mr Holdenson’s submission to the effect that, because the three offences occurred as part of a single incident of short duration and because of the need to avoid double punishment for the aggravated burglary and the offences committed after entry to the premises, it was necessary for the judge to have significant regard to the principle of totality. In those circumstances, he submitted, it was open to choose the sentence on the aggravated burglary (Charge 1) as the base sentence and to direct that six months of each of the sentences for intentionally and recklessly causing serious injury (Charges 2 and 5) be served cumulatively upon the sentence on Charge 1.
Mr Edney submitted that the judge carefully explained her reasons for fixing a relatively short non-parole period. In this regard, he also emphasized the judge’s finding that Glenn’s circumstances were deserving of some compassion.
Conclusions on total effective sentence and non-parole period
In my view, balancing all considerations, including the factors in mitigation, the total effective sentence and the non-parole period, while lenient, are not manifestly inadequate.
The level of cumulation of the sentence on the offence of intentionally causing serious injury – six months of a two-and-a-half-year sentence upon the aggravated burglary sentence – is very moderate, but not manifestly inadequate. A total sentence of three years’ imprisonment for those two offences, while rather lenient, again, is not manifestly inadequate. That order for cumulation is balanced by the cumulation of a further six months of the 18-month sentence for recklessly causing serious injury, which, in my view, is a significant level of cumulation. A substantial degree of concurrency among the three sentences was justified given that the three offences did occur as part of the one short episode of offending, which was effectively brought to an end by Glenn’s remarks to his out-of-control brother.
The non-parole period is quite short both in absolute terms and as a proportion of the total effective sentence. The judge recognized this and gave reasons for fixing such a relatively short non-parole period. Those reasons included her Honour’s concerns about the potential deleterious effect of imprisonment on Glenn’s mental health and her view that his prospects of rehabilitation would be enhanced by ensuring the potential for release on parole after a relatively short period in prison. Further, as I have said, the judge concluded that Glenn’s circumstances were deserving of some compassion.
In my view, those reasons were sound. A judge is entitled to extend mercy where her sympathies are reasonably excited, as they were in this case. There must always be a place for leniency where a judge forms the view, as her Honour was entitled to do, that leniency at this particular stage of an offender’s life might lead to reform.[59]
[59]See, e.g., R v Clarke [1996] 2 VR 520 at 523 (Charles JA), citing R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).
Conclusion
Since no aspect of the sentences is manifestly inadequate, the Director’s appeal must be dismissed.
Residual discretion
Even if I were wrong in that conclusion, I still would dismiss the appeal in the exercise of this Court’s residual discretion to decline to intervene on a Crown appeal against sentence. There are three inter-related reasons.
First, as I have already indicated and as the judge recognized, the non-parole period is quite short both in absolute terms and as a proportion of the total effective sentence. A longer total effective sentence and non-parole period would have been open to her Honour. Unconstrained by the discretionary considerations applicable to Crown appeals, while I would not have altered the individual sentences or the total effective sentence,[60] I would have fixed a non-parole period in the order of 18 months. But the prospect of an increase of such a comparatively small order in the non-parole period, in my view, would require this Court to exercise its residual discretion to decline to intervene.[61]
[60]However, I would have made the sentence on the offence in Charge 2 the base sentence and directed that six months on each of the sentences in the offences in Charges 1 and 5 be served cumulatively, thereby making the same total effective sentence of three-and-a-half years’ imprisonment.
[61]DPP v Karazisis (2010) 31 VR 634 at 648[50], 649[52]-[53], 652[73]-653[77] & 657[99]-660[115].
Secondly, Glenn will become eligible for consideration for release on parole later this month.[62] In my view, it would be unduly harsh to interfere with the possibility of his being granted parole at this juncture.[63]
[62]Whether he is in fact released on parole this month or at any time before the expiry of his total effective sentence is, of course, a matter for the Adult Parole Board, not this Court.
[63]Green v The Queen (2011) 244 CLR 462 at 479-480[43].
Finally, it is also important to recognize the significance of rehabilitation as a relevant sentencing purpose, and the interplay between rehabilitation and protection of the community. Whether it is later this month or at some subsequent stage, Glenn will be returning to the community ultimately. It is therefore in the community’s interests that his prospects of rehabilitation be maximized, so that, when he does return to the community, his chances of remaining offence-free, maintaining good mental health and achieving successful reintegration are the best they reasonably can be. Increasing the total effective sentence and/or the non-parole period at this stage has the potential to dash his hopes for early release and harm his mental health, and thereby undermine his chances of reform. In my view, the preferable course – and one which is open – is that the existing sentence remain undisturbed, so that such chances of reform as he has are promoted. The guidance afforded to sentencing judges by allowing a Crown appeal should not come at too high a cost in terms of justice to the individual[64] or in terms of the community’s ultimate protection through an offender’s rehabilitation.
[64]Green v The Queen (2011) 244 CLR 462 at 479-480[43].
Trevor Barnes: Residual discretion and parity
I turn now to a consideration of whether, in light of the principles of parity between co-offenders and the existence of the (undisturbed) sentences imposed on Glenn Barnes, this Court should dismiss the appeal against the sentences imposed on Trevor Barnes in the exercise of this Court’s residual discretion to decline to intervene; or, if the appeal is to be allowed and he is to be re-sentenced, whether any substituted sentences should be less than they might be otherwise on account of those same considerations.
Principles
In Green v The Queen,[65] when dealing with an appeal from the Court of Criminal Appeal of New South Wales, which Court had allowed a Crown appeal against sentences imposed on two co-offenders in circumstances where a third co-offender’s sentence had not been the subject of any appeal by the Crown, a majority of the High Court (French CJ, Crennan and Kiefel JJ) said this:[66]
[2] In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender’s progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal.
[65]Green v The Queen (2011) 244 CLR 462.
[66]Green v The Queen (2011) 244 CLR 462 at 466[2] (my emphasis).
Later, their Honours added the following:[67]
[67]Green v The Queen (2011) 244 CLR 462 at 477[35]-478[37] & 479[42]-480[44] (footnotes omitted; my emphasis).
[35] … Assuming the Court of Criminal Appeal considers the sentence under appeal to be inadequate on account of error by the primary judge, two questions arise. Their answers involve the exercise of the different discretions conferred by s 5D [of the Criminal Appeal Act 1912 (NSW)]. They are:
1. Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its “residual discretion” under s 5D, to allow the appeal and thereby interfere with the sentence appealed from.
2. To what extent, if the appeal is allowed, the sentence appealed from should be varied.[36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
[37] The parity principle has been the focus of debate in these appeals. Its undisputed significance does not mean that the Court must dismiss a Crown appeal in every case in which allowing the appeal would give rise to disparity. Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender. The question would then arise: would the purpose of Crown appeals under s 5D be served by allowing the appeal? If the result of doing so would be a sentence “adequate” on its face, but infected by an anomalous disparity which is an artefact of the Crown’s selective invocation of the Court’s jurisdiction, the extent of the guidance afforded to lower courts may be questionable. As was said in R v Borkowski:[68]
“the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong.”
…
[42] A case might arise in which the Court of Criminal Appeal concludes that the inadequacy of the sentence appealed from is so marked that it amounts to “an affront to the administration of justice” which risks undermining public confidence in the criminal justice system. In such a case the Court would be justified in interfering with the sentence notwithstanding the resultant disparity with an unchallenged sentence imposed on a co-offender. That, however, is not this case. …
[43] Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.
[44] The preceding matters are relevant to the exercise of the Court’s residual discretion not to allow a Crown appeal. Also relevant is the extent to which disparity between co-offenders is able to be mitigated in the exercise of the re-sentencing discretion.
[45] If the Court does decide to allow an appeal under s 5D it will, in exercising its re-sentencing discretion, have regard to the matters to which it must have regard by virtue of ss 3A and 21A of the [Crimes (Sentencing Procedure) Act 1999 (NSW)]. The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.
[68]R v Borkowski (2009) 195 A Crim R 1 at 18[70].
While those passages concern Crown appeals under the New South Wales provisions, there was no dispute in the present appeal that the principles outlined are applicable to a Crown appeal brought under the similar (but not identical) provisions in Victoria, with necessary adaptation.[69] In my view, that was the correct approach.
[69]See ss 287-290 of the Criminal Procedure Act 2009 (Vic). Of course, one necessary adaptation is that this Court must have regard to the matters contained in the Sentencing Act 1991 (Vic), not the Crimes (Sentencing Procedure) Act 1999 (NSW).
The principles outlined by their Honours speak of “consequential disparity relative to an unchallenged sentence imposed on a co-offender”. In the present case, Glenn’s sentence has been challenged by the appellant, but that challenge has failed. Despite this difference, the same constraints on appellate intervention as spelt out by their Honours are applicable to a consideration of the appeal concerning Trevor’s sentences.
One important difference, however, is that, because Glenn’s sentences have been the subject of close examination on appeal, this Court is now placed in a better position than it would have been (had those sentences not been challenged) to consider whether increasing any aspect of Trevor’s sentences might create an unjustified disparity.
Conclusions
While the existing disparity between the sentences imposed upon the two brothers – and, if a re-sentencing is to occur, potential further disparity – is such as to enliven the residual discretion to decline to intervene and dismiss the appeal concerning Trevor’s sentences, the inadequacy in those sentences is so marked, and the differences between his criminality and personal circumstances and those of his brother are so great, that it would be an affront to the administration of justice to decline to intervene and increase those sentences.
Further, this is not a case in which the purposes of a Crown appeal – which include the promotion of consistency in sentencing and the establishment of sentencing principles – could be achieved adequately by statements of this Court to the effect that the sentences imposed on Trevor were wrong and why they were wrong.[70] While it may be accepted that such statements could serve an educative purpose, in my view, Trevor’s offences are so serious and he has shown himself to be so deserving of punishment and such a danger to Ms Bethune and anyone close to her that public confidence in the administration of criminal justice would risk being undermined if the appeal were not allowed and he were not re-sentenced.
[70]Green v The Queen (2011) 244 CLR 462 at 477-478[37].
In one of the passages extracted above from the majority judgment in Green v The Queen, their Honours make the point that, when considering re-sentencing, in an attempt to avoid or minimise unjustified disparity between the new sentences and the sentences imposed on the co-offender, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.[71] In the present case, the key differences between the two respondents are as follows.
[71]Green v The Queen (2011) 244 CLR 462 at 480[45].
First, it was Trevor who was the driving force behind the offending. He was the major offender and was motivated by a vengeful attitude towards his wife. Glenn was not motivated to act out of any spite for Ms Bethune. He was very much the minor offender who simply went along with his brother out of a misguided sense of loyalty.
Secondly, it was Trevor who repeatedly beat Mr Karaula and Ms Bethune mercilessly with a jemmy bar while in a rage. Glenn did not strike a blow. He simply stood by as “back-up”. The judge found his role to be “very considerably less” than his brother’s. He was convicted of a lesser offence concerning Ms Bethune, which is consistent his not being found to be a party to the full extent of Trevor’s extreme and brutish actions and intentions towards both victims.
Thirdly, when Trevor produced the Stanley knife and appeared to be prepared to harm Ms Bethune even more, it was Glenn who brought him to his senses. In my view, the juxtaposition of these two pieces of behaviour is telling as to Trevor’s moral culpability vis-à-vis Glenn’s.
Fourthly, it was Trevor who: had a long history of violence towards his wife and prior convictions for assaulting her and breaching intervention orders; was in breach of a partly-suspended sentence imposed in part for such offending; was in breach of an intervention order; had only just been released from prison; and, as a result of his conviction and sentence for intentionally causing serious injury to Ms Bethune, was a “serious violent offender” in respect of whom protection of the community became the principal purpose in sentencing for that offence. None of these considerations applied to Glenn.
Fifthly, while both brothers have prior criminal convictions, Trevor has a more significant history and has been gaoled previously. Glenn has not been gaoled previously and did not sustain any convictions until after the onset of paranoid schizophrenia in his twenties.
Sixthly, Trevor has shown himself to be a man disposed to violence, whereas the judge accepted that Glenn was not so disposed. On the contrary, her Honour accepted the evidence that Glenn was a very gentle, kind and compassionate man, and has never been violent to his partner or other females.
Seventhly, the judge struggled to find anything positive to say about Trevor’s prospects of rehabilitation. Glenn’s prospect of rehabilitation were found to be superior.
Eighthly, while the judge accepted that both brothers would find gaol particularly burdensome because of their respective psychological or mental health afflictions, her Honour was concerned that Glenn’s mental health was fragile and could well deteriorate in prison.
The only significant thing that could be said for Trevor that could not be said for Glenn is that Trevor pleaded guilty whereas Glenn fought a trial. That said, the pleas of guilty came late and were not found to be accompanied by any remorse, which limited their weight in mitigation. Nevertheless, those pleas still were an important mitigating factor applicable only to Trevor.
While the nature of the instinctive synthesis, whether applied at first instance or upon a re-sentencing on appeal, does not admit of precise identification of the weight accorded to the various factors that combine to produce any particular sentence, nevertheless, with the foregoing differences in mind, I shall attempt to identify some of the more important features that, in my view, justify each aspect of the proposed re-sentencing of Trevor in light of the sentences imposed on Glenn.
The sentence of four years’ imprisonment to be imposed on Trevor for the aggravated burglary offence is the closest of the individual sentences to the existing sentence (of two-and-a-half years’ imprisonment) imposed on Glenn for the same offence. This relativity reflects that their roles in these offences were closer than in the other two offences but that all of the other major personal factors (except the plea of guilty) and aggravating features mentioned above point to the need for a substantial disparity between their sentences.
The sentence of five-and-a-half years’ imprisonment to be imposed on Trevor for the offence of intentionally causing serious injury to Mr Karaula is proportionally longer again than the existing sentence (of two-and-a-half years’ imprisonment) imposed on Glenn for the same offence. This relativity reflects Trevor’s far more culpable behaviour in mercilessly beating Mr Karaula with a jemmy bar, as well as the same considerations just mentioned.
The sentence of five-and-a-half years’ imprisonment to be imposed on Trevor for the offence of intentionally causing serious injury to Ms Bethune is proportionally the most disparate to the existing sentence imposed on Glenn for the related offence of recklessly causing serious injury. This greater disparity reflects the different nature and seriousness of the two offences, their different maximum penalties, Trevor’s far more culpable behaviour in beating Ms Bethune with a jemmy bar and viciously kicking her and his serious offender status (and the resulting requirement that protection of the community be the principal purpose in sentencing on Charge 4), as well as the other considerations just mentioned.
The total effective sentence of eight years’ imprisonment (including the associated orders for partial cumulation), when compared with the three-and-a-half years imposed on Glenn, is, in my view, justified by all of the foregoing considerations and the much greater overall criminality involved in Trevor’s offending and its associated aggravating features.
That total effective sentence results from a direction that two years of the sentence on Charge 4 and six months of the sentence on Charge 1 be served cumulatively upon the sentence on Charge 2 and upon each other. Those directions for cumulation reflect, among other things, my view that the most serious aspect of the offending is the combination of assaults against Mr Karaula and Ms Bethune, the application of totality and the application of parity in view of the total effective sentence imposed on Glenn Barnes.
Finally, the non-parole period of five years is, of course, starkly disparate with the non-parole period of one year fixed in Glenn’s case. This disparity results from a number of considerations, including the respective total effective sentences and the peculiar circumstances that justified special leniency and compassion in Glenn’s case but which have no place in Trevor’s case. The three-year gap between the total effective sentence and the non-parole period still makes for a rather long potential parole period, as it was under the sentence imposed by the primary judge. I have maintained that gap so that, consistently with her Honour’s intentions, Trevor should have the opportunity for supervision on parole for “a reasonably lengthy period, particularly in order to link [him] with the treatment of the type recommended by Dr Barth”.
As I have said, but for the constraints of parity in light of the sentences imposed on his brother, longer sentences would have been justified in Trevor’s case.
Further, but for Trevor’s pleas of guilty, the substituted individual sentences would have been longer and I would have imposed a total effective sentence of ten-and-a-half years’ imprisonment with a non-parole period of seven-and-a-half years.
Breach of suspended sentence
One final matter. Mr Holdenson pointed out that it is likely that Trevor Barnes will face proceedings for breaching the partly-suspended sentence he was serving at the time of the offending the subject of this appeal, the result of which may well be that the suspended part of the sentence is restored and directed to be served cumulatively upon the existing sentence or any sentence this Court might substitute on appeal.
If the suspended part of the sentence is restored, it may be that it will be directed to be served concurrently with the sentence imposed by this Court. I note that the fact that Trevor was in breach of that suspended sentence was an aggravating feature of the present offending and, as a result, has already contributed to longer sentences imposed by this Court upon re-sentencing. Further, given the increased total effective sentence and non-parole period imposed by this Court, totality will loom even larger than it would have done previously.
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