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)

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Barnes

Details

AGLC: DPP v Barnes [2015] VSCA 293
Case: [2015] VSCA 293
Decision Date: 12 November 2015

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Barnes, the court was tasked with reviewing sentences imposed on two individuals, TB and GB, following a jointly committed aggravated burglary and assault. TB and GB entered the home of TB's estranged wife, EB, and her partner, BK, where they gravely assaulted both victims with a jemmy bar, resulting in serious injuries. TB, who had a history of violence towards EB and was recently released from prison for assaulting her and breaching an intervention order, pleaded guilty to aggravated burglary and intentionally causing serious injury to both victims. GB, who was also holding a jemmy bar during the incident but did not strike any blows, was convicted of complicity in TB's acts and sentenced accordingly.

The legal issues at hand involved whether the sentences imposed on TB and GB were manifestly inadequate, considering the gravity of the offences committed. Specifically, the court examined whether the individual sentences, the total effective sentences, and the non-parole periods were commensurate with the seriousness of the crimes. The Crown appealed TB's sentence, arguing that it was lenient and inadequate, while the appeal concerning GB's sentence was dismissed as the sentences were deemed lenient but not manifestly inadequate. The court had to balance the principle of parity, which demands that co-offenders receive comparable sentences, against the need to impose penalties that reflect the severity of the offences.

The court found that while GB's sentence was lenient, it was not manifestly inadequate. Conversely, TB's sentence was considered manifestly inadequate in all respects except for the directions for cumulation. The court exercised its residual discretion to decline to intervene on the Crown appeal concerning GB's sentence, adhering to the principles established in Green v The Queen. TB's sentence was re-assessed and re-sentenced to a total effective sentence of eight years’ imprisonment with a non-parole period of five years. This decision underscored the necessity for sentences to adequately reflect the gravity of the crimes, particularly in cases involving serious violence and complicity.

Orders