DPP v Barnett
[2023] VCC 305
•28 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00708
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARIE BARNETT |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 28 February 2023 |
CASE MAY BE CITED AS: | DPP v Barnett |
MEDIUM NEUTRAL CITATION: | [2022] VCC 305 |
REASONS FOR SENTENCE
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Subject: | CRIMINAL LAW |
Catchwords: | Possession of firearm contrary to a firearm prohibition order – Prohibited person possessing firearms – Prohibited person possessing an imitation firearm – Storing a firearm in an insecure manner while unlicenced – Dangerous driving while pursued by police – Trafficking drug of dependence – Summary charges uplifted – Not suitable for Drug and Alcohol Treatment Order – Early plea of guilt – Suffering from severe anxiety and depression – Relevant prior criminal history |
Legislation Cited: | Criminal Procedure Act 2009; Sentencing Act 1991 |
Cases Cited: | - |
Sentence: | Five years and eleven month’s imprisonment, with a non-parole period of three years and six month’s imprisonment. |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison | Office of Public Prosecutions |
For the Accused | Ms S. Vardy | Balmer & Associates |
HER HONOUR:
1Arie Barnett, you have pleaded to one charge of possessing a firearm, contrary to a firearm prohibition order, one charge of being a prohibited person possessing firearms, one charge of being a prohibited person possessing an imitation firearm, one charge of storing a firearm in an insecure manner while unlicensed, one charge of dangerous driving while pursued by police and one charge of trafficking in a drug of dependence.
2You have also pleaded guilty to the following summary charges which were uplifted pursuant to s145 of the Criminal Procedure Act 2009. They are; Charge 7 possessing ammunition cartridges without a license, summary Charge 24 driving whilst disqualified, summary Charge 41 failing to stop on police request, summary Charge 42 dealing with property suspected of being the proceeds of crime, namely $2,691.55 and one charge of trespass.
3Finally, summary Charge 44 possessing a controlled weapon without excuse.
4The facts underlying your offending are as follows. Shortly after midnight on 8 September 2021 police tried to intercept a Mercedes Benz wagon at the intersection of Belgrave-Hallam Road and Princes Highway. That car was being driven by you.
5As police tried to catch up with the Mercedes it turned right and went through a red traffic sign evading police. The police air-wing was notified and they saw the car travelling at a speed well over a 100 kilometres per hour on the Monash Freeway with its headlights turned off and reaching about 170 kilometres per hour between Belgrave-Hallam and Heatherton Roads in Doveton.
6The car then exited the freeway, continuing at about 150 kilometres per hour in the 80 kilometre speed zone. On Heatherton Road you drove the car through a red signal at the Stud Road intersection and then drove around the back streets of the residential area before driving to Browns Road in Noble Park. You drove through two further red traffic signals at Princes Highway and the intersection of Clayton Road and the Dingley Bypass and then drove through another red traffic signal at the intersection of Centre Dandenong and Warrigal Roads. You then went through a further red light at the intersection of Chesterville and Burdon Streets in Bentleigh. Whilst on Chesterville Road you were travelling at about 129 kilometres per hour in the 60 kilometre per hour zone.
7Police laid spike sticks near the corner of Cochranes and Chesterville Roads in Cheltenham in order to stop the car, but after the Mercedes ran over them and it was damaged, you kept driving to avoid police, at one stage driving on the wrong side of South Road, Moorabbin into oncoming traffic.
8While police were pursing the car near to and through the carpark at Southland Shopping Centre, at about 2.11 am, you tried to evade police by driving on the wrong side of Nepean Highway and came close to colliding with a police car which had to then take evasive action.
9Despite the deteriorating condition of the Mercedes, you continued into the industrial area of Bay and Reserve Roads in Cheltenham, again going through a red light and heading back to Nepean Highway. By this time parts of the Mercedes were falling into the roadway until a rim of the Mercedes came off the rear and landed in the front yard of a nearby residential address.
10You stopped the car in Bona Vista Avenue, Aspendale and ran from the scene while the Mercedes rolled to a stop in the gutter. While doing this, you threw away a silver handgun which was later found by police, and also dropped a backpack which was also located by police. While trying to escape, you had also dropped a handgun shaped cigarette lighter near Bona Vista Avenue and the possession of that item, underlies Charge 3 on the indictment; prohibited person in possession of an imitation firearm.
11You ran into an unlocked garage at a house unit in Nepean Highway where you entered the rear courtyard and were located on the top of a hot water system ledge. Your presence there underlies summary offence 43, trespass.
12You told police that you had COVID-19 symptoms and you were taken to Dandenong Hospital but found to be negative. You were later taken to the Dandenong police station for a record of interview where you made no comment responses to questions.
13Your car was inspected and police located the following; a pump action rifle between the front passenger seat loaded with nine rounds of .22 ammunition, other assorted ammunition which underlies related summary offence 7, a green ammunition round in the driver's seat which relates also to summary offence 7, the possession of ammunition without a licence, a black handgun in a black case in the rear passenger seat, a modified firearm loaded with a round of ammunition, a firearm magazine, a meat cleaver which relates to summary offence 44, possession of a prohibited weapon without excuse.
14Inside the backpack dumped by you police found zip-bags of white powder, two spent and unused rounds of ammunition (possession of which also relates to summary charge 7) empty deal bags, a razor blade, a spoon, a tick-book, a broken ice pipe and digital scales.
15The white powder was analysed and found to be 72.4 grams of methamphetamine with 82-83 per cent purity. Your possession of those drugs underlies Charge 6 on the indictment, trafficking in a drug of dependence.
16Another bag dumped by you was found to contain three 12 gauge shotgun shells, possession of which is again related to summary offence 7, eight rounds of assorted ammunition, again related to summary offence 7, and $2,691.65 which underlies summary offence Charge 42, dealing in property suspected of being the proceeds of crime.
17You were disqualified from driving at the time of this offending, this occurring on 22 October 2020, for 12 months, so your driving on this occasion underlies summary offence 24, driving whilst disqualified.
18You were also subject to a firearms prohibition order dated 26 May 2020 stating that you were prohibited from acquiring, possessing, carrying or using any firearm or firearm related to them. That status, and your possession of the firearms I have outlined, underlies Charge 1 on the indictment.
19Police identified the seized firearms as follows: 1. A 9 millimetre Luger calibre Denix brand pistol originally imitation but modified to charge live ammunition. 2. A .22 rimfire calibre Webley style revolver modified to fire live ammunition but not capable of discharge or at best single shot only. 3. A .22 long rifle calibre model Trombone pump action rifle loaded in very good working order. A fired cartridge had been discharged from that rifle. 4. A .22 calibre sawn off single shot rifle modified with a pistol grip.
20The maximum penalty for possessing firearms contravening a prohibition order is 10 years imprisonment. The maximum penalty for being a prohibited person possessing firearms is 1200 penalty units or 10 years imprisonment. The maximum penalty for being a prohibited person possessing an imitation firearm is 10 years imprisonment. The maximum penalty for being an unlicensed person storing firearms in an insecure manner is four years imprisonment. The maximum penalty for trafficking a drug of dependence is 15 years imprisonment. The maximum penalty for dangerous driving pursued by police is three years imprisonment. The maximum penalty for possessing cartridge ammunition without a licence is 40 penalty units. The maximum penalty for driving whilst disqualified is 240 penalty units or two years. The maximum penalty for failing to stop on police request is 120 penalty units or 12 months where there is a subsequent offence. The maximum penalty for dealing in property suspected of being the proceeds of crime is two years imprisonment. The maximum penalty for trespass is 25 penalty units or six months imprisonment. The maximum penalty for possessing a controlled weapon is 240 penalty units or two years imprisonment.
21I now turn to your personal circumstances. You are now 33 years of age, you were 32 at the time of this offending. You grew up between Melbourne and Ballarat. Your father is from the Ballarat region and your mother is Mauritian by birth. They separated when you were 21. You are the youngest of three children and essentially your mother stayed with your father until the children grew up for their sake.
22You had a traumatic childhood marred by your father's violence to yourself, your mother and others. Apparently he is a frustrated artist with longstanding drug and alcohol addictions.
23Because of your father's violence your older brother left home in his mid‑teens, he now lives in Queensland but you have no relationship with him, as you regard him as having abandoned you by leaving home.
24You have a sister with whom you enjoy a good relationship although she has become, according to what you have told your counsel and psychologists, fed up with you because of your offending.
25You were educated in Ballarat but were expelled in Year 9. Alcohol was not a big problem for you but at age nine you began using cannabis and were using it frequently by the age of 13.
26You were given your first line of speed by your father when you were 13. By age 15 you had tried heroin, and this was sporadic use, until you were 26, when you started using it daily. You were introduced to ice when you were aged 18 and by the age of 23 were using it daily, up to a gram a day at its peak. You also developed a heavy dependence on GHB in 2019 to 2020, eventually using it multiple times a day. You have been placed on methadone in the past to deal with your heroin difficulties.
27After your expulsion from school you family moved to Melbourne but you decided to stay in Ballarat. For understandable reasons, this did not work and eventually the whole family moved back to Ballarat when you were 18 and that was when you began using ice.
28You have had periods of employment over the years. You worked as a painter with your father, as a builder's labourer, a factory worker at an abattoir, and you were last employed in 2017 as a nightshift cleaner in a restaurant kitchen.
29You had a relationship, of which was born a son, who is now 10 years of age. That relationship broke up some time ago and you currently have no contact with your son.
30Along the way, unsurprisingly, you have been dealt with many times by the court for criminal offending. Your record begins in 2010 when you were dealt with for theft from a motor vehicle, unlicensed driving and other driving offences. In 2011 you were dealt with for going equipped to steal, theft of a motor vehicle, unlicensed driving and failing to answer bail. In 2012 you were given a community corrections order for fraudulent use of a numberplate, handling stolen goods and a driving offence. That was contravened in 2013 and when you were placed on a suspended sentence. It was contravened by further offending involving contravening a family violence intervention order, resisting police, intentionally damaging property, making a threat to kill, a shoplift and the like.
31You were then placed on a further community corrections order. You breached this. You were dealt with for further offending, including driving whilst disqualified, possessing amphetamine and possessing cannabis. In 2014 you were dealt with for a consolidation comprising offending such as theft of motor vehicle, reckless conduct endanger serious injury, dangerous driving while pursued by police, going equipped to steal, possessing a controlled weapon without excuse, dealing with property suspected of being the proceeds of crime, driving offences, undertaking handling stolen goods, threaten to cause damage to a police jail, criminal damage, and on all those matters you received a term of imprisonment combined with a community corrections orders.
32In 2015 you were placed on a drug treatment order for charges of being a prohibited person possessing a firearm, possessing a prohibited weapon without exemption, possessing cartridge ammunition without a licence, receiving stolen goods, dealing with property suspected of being the proceeds of crime, possessing a category A longarm, theft of motor vehicle, use amphetamine, resist police officer, contravene a bail condition and possess a drug of dependence, a prescription drug and dishonestly receiving stolen goods and so on. You were given a 20 month aggregate sentence to be served by way of a Drug Treatment Order.
33In 2016 you were jailed for further offending. There was a variation to the order. Then, on 16 March 2016, again you received further sentences to be served by way of a drug treatment order.
34You received a number of sentences for offending along the way, for which you received terms of imprisonment, which were expressed in terms of days.
35Eventually in 2017 that order was breached and you were required to serve the unexpired portion of 15 months.
36You were jailed in 2017 for making a threat to kill, unlawful assault and failing to answer bail. You got a second opportunity in 2019 when, in November of that year, you were placed again on a Drug Treatment Order by the Dandenong Magistrates' Court for charges of handling stolen goods, theft from shop, unlicensed driving, burglary, theft of motor vehicle, resist emergency workers on duty, being a prohibited person possessing an imitation firearm, theft, failing to stop a vehicle on police direction, unlicensed driving, dishonestly undertaking in the retention of stolen goods and possessing methamphetamine.
37Despite being given this opportunity, you continued to offend and were dealt with by the Drug Court for offending and giving you minor responses. Eventually, in October 2020, that Drug Treatment Order was cancelled and you were required to serve the unexpired portion of 208 days.
38In October 2020 you were sentenced to 12 months imprisonment on charges of theft of motor vehicle, intentionally damaging property, obtaining property by deception, theft of motor vehicle, theft and unlawful assault.
39Then in January of 2021 you appeared in the Melbourne County Court where you appealed the sentence that you had received and received a lesser term.
40So that brings us up to the current situation. Apparently you had only been out of jail for five months when the offending before this court occurred. You were upset after a confrontation with your father where he apologised for the abuse he had meted out to you, you were homeless, you were using drugs, you were mixing in heavy circles, you were trafficking in order to support your habit, you were storing the guns for other associates, and on the night in question, you were told those guns were required, and you were essentially making a delivery run at the time police came across you.
41As you would be very much aware, listening to your prior criminal history, Mr Barnett, this is not the first time offending of this kind has occurred. It seems that one of the particular difficulties for you is you have a lot of what might be termed heavy associates who deal in drug trafficking and who deal in guns. And it is clear to me, on your record, that you have found it almost impossible to deal with your drug habit over a period of years, until now.
42Despite being given two opportunities to rehabilitate on a drug treatment order, you have not been able to do so. Your current time in custody represents the longest period of time that you have actually spend in jail. It seems that you have used your time well. You have undertaken more than 26 individual sessions with the Caraniche Drug Service. You have joined and become very involved in Bible studies and, is it the Anglican Church?
43ACCUSED: (Indistinct) but yeah, it is, we could say it's Anglican.
44HER HONOUR: It is Anglican. And very much involved in church activities inside the jail. You are involved in services every week. You are on depot injections of buprenorphine. You are probably physically in the best condition of your life in terms of being drug free, you have been exercising properly, you have been attending to your mental health difficulties, you have involved yourself in giving up drugs and living a stable life within jail, which is not an easy thing to do and the court congratulates you in that regard.
45On your behalf, your counsel, applied to have you admitted to a Drug and Alcohol Treatment Order in the County Court, which application I have refused.
46First, you were not found suitable by the assessors because of your previous non-compliance with Drug Treatment Orders. Second, it was submitted by the prosecution that your offending on this occasion would have to be responded to by the court in a way which exceeds the four year maximum term that can be imposed on a person who is then become eligible for a DATO. In other words, if an offender receives a term of imprisonment of more than four years, they are not eligible for treatment on a Drug and Alcohol Treatment Order.
47In sentencing you, I take into account your plea of guilty, which was made at an early stage. I accept that you have had particular difficulties. The matter was adjourned so that a neuropsychological report could be obtained, and I received this report, dated 13 November 2022, from psychologist, Sandra Cokorilo.
48She assessed you as suffering from severe anxiety and depression. She said you were experiencing a severe range of symptoms of a post-traumatic stress disorder. She unfortunately assessed you as being a high risk of reoffending, but did note that you were remorseful for your offending and thankful that no‑one was hurt in the driving that you undertook on that night.
49She noted that you had undertaken a large number of sessions with Caraniche, were involved in Bible correspondence and Sunday service. And you have also been in the Peer Listener Group too, have you not, Mr Barnett?
50ACCUSED: Yes, I'm about to, I've just been – finished training, Your Honour and I'm about to get (indistinct).
51HER HONOUR: Thank you. You are also being trained as a peer listener, which is a position of particular trust. And I am satisfied you have done well in jail, and that your prospects of rehabilitation as a result, are better than they were, very much better than they were, at the time you were admitted into custody.
52You continue to enjoy the support of your mother and you have two pro‑social friends who have continued to remain in contact with you.
53It has been conceded that the only way I can deal with you is by way of a term of imprisonment to be immediately served. In sentencing you, as I have said, I take into account your plea of guilty. I take into account that you are remorseful for your offending. I also take into account the very considerable progress you have made in jail. I accept that this time round you have made determined efforts to turn your life around and to set up a scenario whereby when you leave jail, you are able to take up a pro-social and rewarding crime‑free life for yourself.
54I also note, Ms Cokorilo's comments in testing to the effect that it seems along the way you have been involved in a number of assaults and violent activities, and this may have had some effect on your cognitive functioning, in so far as things like impulsivity and executive functioning, that is sensible decision making by you may have been compromised.
55I accept that, as a person in custody with these difficulties as detected by Ms Cokorilo, you are likely to suffer the ill effects of jail more than the ordinary prisoner. Having said that, it is also quite clear, in my view, that jail has served you well, in that it has given you a strong structure in order to attend to your drug problem.
56In saying that , I do not for one moment wish to suggest that jail is anything other than an ordeal, but as I have said, the way in which you have navigated your time in custody leads me to the conclusion that your prospects for rehabilitation are a great deal better than they have been for many years.
57The sentencing is serious. Unfortunately, it would appear from your prior convictions, this is not the first time the police and you have engaged in a dangerous pursuit where the public have been placed at risk. It is extremely fortunate that nobody was hurt or killed. If that had been the case, apart from anything else Mr Barnett, you would be facing a sentence for culpable driving and you would be looking at a standard sentence for culpable driving of nine years imprisonment. So you very much put yourself in danger. And given your prior convictions, had something like that occurred, I would imagine that you would be serving a term well into what we would call double figures, something like 12 years with a 10 year minimum. So you need to understand that, going on the roads the way you have, and driving in the way you have, not only places the public in danger, but puts you in danger of receiving a very long term of imprisonment.
58In sentencing you I also take into account the lack of services that have been available in jail, due to the pandemic conditions. And I take into account your plea of guilty, which has saved the community the time and expense of a trial at a time when the courts are struggling with the backlog, brought about by the pandemic restrictions on hearing trials during the pandemic.
59I accept that a more than usual significant reliance and importance should be placed on the value of such a plea.
60Having taken all the mitigatory and punitive matters in this matter, I therefore sentence you as follows.
61On Charge 1 you are sentenced to two years imprisonment. On Charge 2 you are sentenced to two years and six months imprisonment. On Charge 3 you are sentenced to six months imprisonment. On Charge 4 you are sentenced to 12 months imprisonment. On charge 5 you are sentenced to 12 months imprisonment. On charge 6 you are sentenced to two years imprisonment.
62On the summary Charge 7, possess ammunition, you are fined $100. On Charge 24, drive whilst disqualified, you are sentenced to nine months imprisonment. On Charge 41, failing to stop on police request, you are sentenced to nine months imprisonment. On Charge 42, dealing with property being the proceeds of crime, you are sentenced to six months imprisonment. On Charge 43, trespass, you are sentenced to two months imprisonment. And on Charge 44, possessing a controlled weapon without excuse, you are sentenced to six months imprisonment.
63The base charge will be the sentence imposed on Charge 2 on the indictment, two years and six months imprisonment. I order that five months of the term imposed on Charge 1, two months of the charge imposed on Charge 4, six months of the term imposed on Charge 5, 12 month of the sentence imposed on Charge 6, one month of the sentence imposed on summary Charge 24, one month of the sentence imposed on summary offence Charge 41, two months of the sentence imposed on summary Charge 42 and two months of the sentence imposed on summary charge 44, be served cumulatively to the sentence imposed on Charge 2 and all other sentences. This should give a total effective sentence of five years and 11 months. And I order that you serve three years and six months before becoming eligible for parole.
64I declare that 538 days of this sentence have already been served by way of pre-sentence detention. Pursuant to s6AAA I declare that, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six years and six months and ordered that you serve a minimum term of four years and 10 months. Are there any other orders that I need to attend to?
65MR HARRISON: There are, Your Honour.
66HER HONOUR: So, good luck, Mr Barnett.
67OFFENDER: Thank you.
68HER HONOUR: I hope you can really carve out the sort of life for yourself that you want to Mr Barnett. Do you understand everything I said about the sentencing?
69OFFENDER: Um, yeah it was five years and 11 months or something.
70HER HONOUR: Yes, five years and 11 months, three years six months on the bottom.
71OFFENDER: Yep.
72HER HONOUR: I've declared that the days that you have served.
73OFFENDER: Yep.
74Your main problem was you have just got so many priors for this and you have just been given so many opportunities. We talked about that during the plea, did we not?
75OFFENDER: Yep. Yep.
76HER HONOUR: All right? So and I imagine you would have a fair number of emergency days under your belt as well?
77OFFENDER: I think I've got a month or something, so yeah.
78HER HONOUR: Yes. All right. Look, I want you to know that I, as I said at the plea, I do recognise the efforts that you have made and it really does seem to me that you have come a long way this time around. It is just, as I said, your priors have not helped you and I have to sentence in accordance with that. It gives me no pleasure to give you a serve like this, Mr Barnett. But all I can say is I really hope that you can keep doing what you are doing and that you can keep it up when you get out. We had a talk about Narcotics Anonymous last time too. Did you have a go at that?
79OFFENDER: Ah, yeah, I've been doing all that sort of stuff in here, so yeah.
80HER HONOUR: Yes. All right. So look, I know it is a blow, I know this is not what you wanted. I have given you a more than usual gap between your maximum and the minimum sentence, all right.
81OFFENDER: Yep.
82HER HONOUR: That I would otherwise, and that is in recognition of the work that you have done, all right.
83OFFENDER: Okay. Yep.
84HER HONOUR: If you had not done that you could have been looking at, you know, five years 11 months with like four years six months on the bottom.
85OFFENDER: Yep.
86HER HONOUR: I have not done that. I pulled it down. It seems to me you are doing a great job for yourself and I am sure you can keep doing that. All right?
87OFFENDER: Yep. No worries. Thank you.
88HER HONOUR: No worries Mr Barnett. Thank you very much. I thank counsel for their assistance.
89MS VARDY: As Your Honour pleases.
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