R v Barca [2007] VSCA 167

Court of Appeal (Vic)|2007-08-21|Before: VINCENT, NETTLE and NEAVE JJA

Criminal Law - Application for leave to appeal against sentence - 12 counts including threats to kill (two counts), theft (2 counts), common assault, trafficking in a drug of dependence, obtaining property by deception and being a prohibited person in possession of unregistered firearm (5 counts) - Sentenced to six years' imprisonment, with a non-parole period of four years and a half years - Serious violent offender - Whether improper imposition of disproportionate sentence - Whether sentence on trafficking count manifestly excessive - Whether total effective sentence manifestly excessive because of orders for cumulation - No disproportionate sentence - Individual sentence and total effective sentence within exercise of judge's discretion - Application refused.

2 The applicant, Mr Rocco Barca, pleaded guilty and was convicted on presentment S01224915 ("the first presentment") of one count of trafficking in a drug of dependence, two counts of being a prohibited person in possession of an unregistered firearm, two rolled-up counts of making a threat to kill, two counts of theft, one count of common assault and one count of obtaining property by deception. The applicant also pleaded guilty and was convicted on presentment 200050121.3 ("the second presentment") of three counts of being a prohibited person in possession of an unregistered firearm and to a summary offence of possessing a prohibited weapon, namely a samurai sword.

3 The applicant pleaded guilty to those offences and was sentenced by a judge of the County Court to a total effective sentence of six years' imprisonment, with a non-parole period of four-and-a-half years. This is an application for leave to appeal against the sentences imposed in respect of two counts in the first presentment and the cumulation which produced the total effective sentence for both presentments.[1]

4 The offences in the first presentment, other than count 1, arose out of a series of events in which the applicant victimised a young man, Chris Kennett, and his uncle, Laurence Kennett, and extorted money from them, stole from them and threatened them over a period of approximately eight months.

5 Chris Kennett, who was then aged 19, and his girlfriend shared a flat rented by Chris' uncle, Laurence Kennett, who was then aged 60. The applicant lived in the building opposite the Kennetts. At the beginning of March 2002, the applicant, who was aged 39 at the time, asked Chris if he knew anyone who wanted to buy marijuana. Later that day, Chris purchased a gram of marijuana for $20 from the applicant. He did so on a few other occasions until he moved out of his uncle's flat in September of that year. Count 1, trafficking in a drug of dependence between 1 March and 30 September 2002, relates to those transactions.

6 On one occasion when Chris Kennett went to the applicant's house to buy marijuana, the applicant produced a handgun containing bullets and said that he would kill Chris if he told the police that he was selling dope. The applicant also said that it would not matter if Chris moved, as he would track him down and let him have it. Count 2, possessing an unregistered firearm whilst prohibited, relates to this handgun. Count 3 is a rolled-up count of threats to kill Chris Kennett. This count relates to this incident and numerous other threats made to Chris in the period 1 March to 5 October 2002, which are outlined below.

7 In early September 2002, Barca came to Chris Kennett's bedroom window and asked him to store a carrier bag containing a motor bike helmet, goggles, a computer lead and two CD players. He also asked him to store an amplifier. Chris refused to store the property, believing it to be stolen, but the applicant became abusive and threatened him. Because of the previous events, Chris was aware that the applicant had a handgun and was scared of him, so he held the property. Some days later, the applicant returned to pick up everything except the amplifier and the computer lead. A few weeks later, Chris Kennett asked Barca to take the property back. Barca said he would be over to collect it in a couple of days, but later that day Kennett took the amplifier to Barca's flat and gave it to the girlfriend. He could not find the computer lead.

8 Shortly afterwards, around the end of September, Chris Kennett and his girlfriend moved out of his uncle's flat. Thereafter, the applicant began to visit Laurence Kennett, wanting to know where Chris had moved to. He said that he was owed a large amount of money for the missing computer lead.

9 Several days later, Chris received a phone call from his uncle, saying that the applicant had been to his flat and threatened to shoot him if he did not give him $1,000 for the missing computer lead. Chris and his uncle agreed to pool their money to pay the applicant for the lead, and Laurence Kennett applied for an advance from Centrelink for his share of the money. Both Chris and Laurence Kennett were frightened of the applicant and believed that his threats would be carried out if they did not do as he had demanded.

10 About a week later, on 2 October 2002, the applicant and another man went to Laurence Kennett's flat and told him he had until 11 p.m. to get $1,000 for the lost lead. They drove him to the bank and the applicant told Laurence that if he did not get the money he would shoot him in the arms and legs. Over the next four to five hours, Laurence repeatedly accessed his account but could not get the money until around 4:30 a.m. the next morning, when a $500 advance from Centrelink was credited to his account. He withdrew this money and returned to the flat. Later on, the applicant returned to Laurence Kennett's flat and was given $950, which included the Centrelink advance. The next day he visited Laurence Kennett again and while he was there picked up his wallet and took $50 out, saying, "That is a thousand dollars, that makes us even". These events form the basis of count 7, the theft of $500 from Laurence Kennett on 3 October 2002, and count 6, the count of common assault on Laurence Kennett.

11 From that time on, the applicant, sometimes accompanied by unknown male, went regularly to Laurence Kennett's flat and threatened to injure him if he did not pay $30,000 for the amplifier that Chris Kennett had returned to the applicant's girlfriend. Count 4 relates to the threats made against Laurence Kennett between 1 October 2002 and 31 October 2002.

12 In the first week of October, Chris Kennett and his girlfriend returned to see Laurence. They were driving Chris Kennett's red Commodore. While they were there, the applicant drove into the driveway, put his hand through the open window of the car and removed the keys from the ignition. He then parked the car next to his own car and told Chris Kennett that he wanted the registration papers to the car by the following Tuesday. The applicant again threatened to kill Chris Kennett and injure his uncle if he did not produce the registration papers. At the same time, he pulled out a sawn-off shotgun from the front of his pants and pointed it to Chris Kennett's stomach, again repeating his threat in relation to the registration papers. Count 5, possessing an unregistered firearm whilst prohibited, relates to the applicant's possession of this shotgun.

13 After moving the car and leaving with the keys, the applicant returned and told Chris and Laurence Kennett to go to his flat. They were scared and they did so in a panic. There the applicant screamed at them, grabbed Chris by the back of the shirt, and pointed a small black handgun at Chris's forehead. The applicant told Chris that if he didn't return with the papers for the car his uncle would be bashed. Chris left his car with the applicant. This theft of Chris's car forms the basis of count 8.

14 Several days later, Chris Kennett returned with the transfer papers for the car, but the applicant wanted the papers changed and gave him a week to get new ones. Chris Kennett left and did not return.

15 Some time after the threats outlined above, Laurence Kennett became so upset that he prepared to leave the flat. When the applicant saw Laurence packing, he told him that it did not matter where he went, he would be hunted down and hurt, until payment was made for the missing property.

16 On 18 November 2002, the applicant sold the Commodore owned by Chris Kennett, purporting to be its owner. He was paid $1,800. Count 9, obtaining financial advantage by deception, relates to this fraudulent sale.

17 Eventually, Laurence left the flat and reported the offences to the police. After doing so, he was admitted to the Royal Melbourne Hospital for treatment because he was suicidal. In December 2002, Chris Kennett decided to go to the police and report the car as stolen.

18 The offences which were the subject of the second presentment did not occur until two years later. In November 2004, when a car driven by the applicant was intercepted by the police, they found a loaded silver semi-automatic pistol hidden in the car and also found an imitation pistol cigarette lighter. On 10 December 2004, the police searched the applicant's home and found a loaded sawn-off pump action shotgun. It appears to have been the same gun that was used to threaten Chris Kennett. Counts 1, 2 and 3 of the second presentment, being a prohibited person in possession of an unregistered firearm, relate to these weapons. Count 4 is a summary offence of possessing a prohibited weapon, namely a samurai sword, which was found when the police searched the applicant's premises.

19 The sentences of imprisonment imposed for the offences which were the subject of the first presentment were as follows:

• Count 1: Trafficking in a drug of dependence - 12 months

• Count 2: Possessing an unregistered firearm whilst prohibited - 12 months

• Count 5: Possessing an unregistered firearm whilst prohibited - 12 months

• Count 9: Obtaining property by deception - 12 months

20 His Honour sentenced the applicant as a serious violent offender on count 4 of the first presentment and ordered the following cumulation on count 1:

21 The orders for cumulation and concurrency in relation to the first presentment resulted in a total effective sentence of 61 months' imprisonment.

22 In relation to the second presentment, his Honour sentenced the applicant to the following terms of imprisonment:

• Count 1: Possessing an unregistered firearm whilst prohibited - 12 months

• Count 2: Possessing an unregistered firearm whilst prohibited - four months

• Count 3: Possessing an unregistered firearm whilst prohibited - six months

• Summary charge: Possession of a samurai sword - one month

23 The judge ordered that the sentences imposed in relation to the second presentment be cumulated on the sentences imposed on the first presentment as follows:

24 The result was that 11 months of the these sentences on the second presentment were cumulated on the sentences imposed on the first presentment, resulting in a total effective sentence on both presentments of 72 months. His Honour ordered a non-parole period of four-and-a-half years.

25 The appeal against conviction was not pursued and neither was ground 3 of the appeal against sentence. I now turn to the other grounds.

26 It was common ground that his Honour had to sentence the applicant as a serious violent offender for count 4 (the second rolled up count of threat to kill), which concerned the threats made against Laurence Kennett. In combination, grounds 1 and 2 complain that his Honour erred in imposing a sentence of 24 months and ordering cumulation of 12 months for this count.

27 Section 6D of the Sentencing Act provides that in sentencing a serious offender the court must:**

"(a) regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may in order to achieve that purpose impose a sentence longer than that which is proportionate to the gravity of that offence considered in the light of its objective circumstances."

**28 The applicant contends that his Honour erred in imposing a sentence of 24 months in relation to count 4. It is submitted that the sentence was disproportionate to the gravity of the offence having regard to the sentence of 18 months imposed for count 3, which covered the threats to kill Chris Kennett. It was contended that there was nothing to differentiate between counts 3 and 4 and that, if anything, the threat to kill Chris Kennett covered by count 3 was more serious than the threat to kill his uncle covered by count 4. It follows that his Honour must have assumed that s 6D required him to impose a sentence disproportionate to the gravity of the offence. It was said that his Honour had erred by doing so without directing his mind to the question whether it was necessary to do so in order to protect the community and that his Honour had not given adequate reasons for doing so, as is required by R v Connell.[2]

29 I do not agree. There was a clear basis for distinguishing between the threats to kill covered by counts 3 and 4. Count 4 covered a number of separate threats to kill Laurence Kennett which occurred over the period of a month. The fear which Laurence Kennett felt as a result of those threats would have been exacerbated by the fact that his nephew had previously been threatened with a gun, that Mr Kennett was retired, that he could not easily avoid the applicant because he lived opposite him, and that he was visited on a number of occasions by the applicant, who was accompanied by another man. Laurence Kennett was so terrified of the applicant that he was prepared to apply for an advance from Centrelink to meet his demands. He contemplated suicide and was later admitted to hospital because of his mental state. Although his Honour noted that although he was "empowered to fix a sentence longer than that which is proportionate to the gravity of the offence", he did not say that he had done so, and in my view the sentence of 24 months was not disproportionate to the gravity of the offence covered by count 4.[3]

30 It is also contended that his Honour should not have ordered 12 months' cumulation of the sentence imposed on count 4. Section 6E of the Sentencing Act provides that:**

"Every term of imprisonment imposed by the court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time."

**31 The sentencing judge had a discretion as to whether to "otherwise direct" under s 6E. To sustain the attack on this exercise of the discretion, the applicant must show that the sentencing judge took irrelevant factors into account or failed to take account of relevant factors in mitigation. Alternatively, it is necessary to show that the order for cumulation is such that his Honour must necessarily have erred in making it. I discuss the applicant's other submissions relating to cumulation below. For the reasons which I give in relation to those matters, this ground is not made out, and grounds 1 and 2 must therefore fail.

32 Ground 4 alleges that the 12 months' sentence imposed for count 1 (trafficking in a drug of dependence) was manifestly excessive. Counsel for the respondent said that the applicant had no prior history in trafficking in drugs and count 1 was only tangentially connected to the other offences. His Honour's remarks in relation to this count were as follows:**

"On count 1 on the first presentment you have pleaded guilty to 'between dates' trafficking in cannabis over a period of seven months. The extent of your trafficking is not apparent other than from the description given by Chris Kennett. The Crown has proved the circumstances of the offending and, having regard to the limited information available, I will treat you as a trafficker in small quantities on a limited scale."

**33 His Honour's remarks show that he gave appropriate weight to the relatively minor nature of this offence and to the fact that the applicant had pleaded guilty to it. If the offence had been considered in isolation, it might not have warranted a sentence of this magnitude. However, in my view the sentence was not manifestly excessive, having regard to the applicant's 11 prior convictions for use, possession and cultivation of cannabis[4] and to the consequent weight to be given to specific deterrence.

35 Ground 5 alleges that the learned sentencing judge erred by giving insufficient weight to delay as a factor in mitigation. Laurence Kennett reported the offences to the police at an unspecified time in late 2002 and Chris Kennett reported the offences in December of that year. The applicant was not charged with the offences in the first presentment until 19 April 2004. His Honour commented on this issue as follows:**

"The only explanation for this delay is pressure of work by police. I note, however, that you were imprisoned on 14 November 2002 for unrelated offences. In fact you spent most of 2003 in prison. In June 2003 the police made application to interview you in prison but you refused to be interviewed. Certainly the delay in those matters coming to trial is not attributable to any fault by you or your legal practitioners, but because you refused to be interviewed and therefore to admit the offences, the case was treated as a contest. As I say, you were charged on 19 April 2004, the case came to committal on 17 February 2005, at which stage a plea of guilty was indicated."

**36 The respondent conceded that the learned sentencing judge gave some weight to delay and that he had also acknowledged that the delay had deprived the applicant of the opportunity for full or partial concurrency with sentences which were later imposed and served. However, it was submitted in the written outline that his Honour had mistakenly regarded the refusal to be interviewed as ameliorating the effect of the delay on the sentence which should be imposed. I do not accept that this was the case - indeed, his Honour's remarks clearly show that he did not do so.

37 It was further submitted that greater weight should have been given to the fact that the delay had meant that the matter had been kept hanging over the offender's head for some time, "thereby keeping him in a state of suspense as to what would happen"[5] to him, and that "the leisurely progress of the prosecution" was inconsistent with the notion that the offences were serious, thus "leading to a justified sense of unfairness in the offender".[6]

38 In his reasons for sentence, his Honour referred to the delay in the terms set out above and he went on to say:**

"I will make the sentences I have just imposed concurrent with the sentence you are presently serving. One of my reasons for doing so is that the delay in bringing the first presentment before the court means that you were deprived of the possibility of those charges being dealt with at the same time as other charges which resulted in your imprisonment in 2003 and 2004 and of being given some concurrency."

**39 The reference to the sentence which the applicant was currently serving refers to two offences of burglary, two offences of going equipped to steal and two offences of driving whilst disqualified, which resulted in the imposition of a total effective sentence of ten months' imprisonment on 17 February 2005. Counsel for the applicant said that when time spent on remand for other offences was taken into account, the effect of ordering total concurrency between the February sentence and the sentence of six years imposed by his Honour on 15 July was to reduce the period of imprisonment attributable to the latter offences by only three months.[7]

40 In my view, the order as to concurrency made by his Honour gave adequate weight to the effect of delay on the applicant in terms of the deprivation of an opportunity to serve the latter sentence wholly or partially concurrently with the sentences imposed in 2003 and 2004.[8] Whilst his Honour did not specifically mention the fact that the delay may lead to a sense of unfairness in the applicant, the orders made also gave adequate weight to that matter.

41 Finally, it was submitted that the learned sentencing judge erred by ordering too great a degree of cumulation between the sentences on counts 2 to 8 in the first presentment, having regard to the fact that counts 2 to 8 on that presentment related to closely linked events. In the applicant's outline of submissions it was said that it appeared that his Honour had simply applied a formula under which exactly half of each count was cumulated on the other counts. It was also said that his Honour should have ordered a greater degree of concurrency between the sentences imposed for the counts in the second presentment.

42 That submission was elaborated in the applicant's oral submissions. First, it was said that a greater degree of concurrency should have been ordered between the sentence imposed in relation to count 2 (possession of the unregistered handgun between 1 March 2002 and 30 September 2002) and count 3 (the threat to kill Chris Kennett) because the gun covered by count 2 was used to threaten him.

43 Counsel for the Crown agreed that there was some degree of overlap between these offences but pointed out that count 3 was not confined to a particular incident but was a rolled up count covering threats occurring between 1 March 2002 and 5 October 2005. Having regard to the various threats which were covered by count 3, the cumulation ordered by his Honour was, in my view, well within the range of the sentencing discretion.

44 Secondly, counsel for the applicant submitted that there was an overlap between count 5, relating to the possession of a shotgun, and count 8, the theft of Chris Kennett's car when the shotgun was pointed at his head.

45 Counsel for the Crown submitted that there was no overlap between these counts because count 8 was a count of theft rather than armed robbery. The use of the gun had not been treated as an element of the offence covered by count 8.

46 I agree with that submission. While the shotgun was used to frighten Chris Kennett into handing over his car, the offences of possession of a firearm and theft were quite separate. The applicant was not punished twice for overlapping offences, as in R v Paoletti.[9]

47 In my view, his Honour did not err by failing to order a greater degree of concurrency in relation to the sentences in the first presentment. The course of behaviour covered by the offences in that presentment occurred over a considerable period and cannot be regarded as part of the same transaction. His Honour considered the sentences which should be imposed in relation to each offence and the degree of cumulation which his Honour ordered was well within the scope of his sentencing discretion.

48 Thirdly, counsel for the applicant said that his Honour had erred by failing to order a greater degree of cumulation on the firearms counts in the second presentment. Count 1 on the second presentment related to a semi-automatic pistol found under the driver's seat of a car which was owned by a person other than the applicant. Counsel for the applicant submitted that if the applicant had not admitted possession of this gun, it is unlikely that there would have been sufficient evidence for him to be convicted of this offence. That matter was, however, taken into account in his Honour's sentencing remarks, as counsel acknowledged.

49 It was also contended that the sentence imposed for count 2 of the second presentment, relating to possession of the cigarette lighter in the shape of a gun, should have been totally concurrent on the sentence imposed for count 1. Further, it was said that there should have been a greater degree of concurrency in relation to the sentence on count 3 of the second presentment, relating to possession of the loaded sawn-off pump action shotgun, because this was probably the gun covered by count 5 of the first presentment.

50 His Honour said that he had imposed a sentence of six months rather than 12 months in relation to count 3 to take account of that fact, but said that the fact that the applicant was still in possession of the weapon two years after he had threatened Chris Kennett justified additional punishment. In relation to count 3, he ordered cumulation of three months on the sentences imposed on the first presentment. In my view, he did not err in the orders for cumulation made for the offences in the second presentment or in the cumulation between the sentence imposed relating to the first and second presentments.**

**51 The applicant has a very lengthy criminal record. Between 6 April 1982 and 30 October 2003, he appeared in court on 35 occasions for 143 offences, including 36 thefts, 10 firearms offences, 37 burglaries, five handling and possessing stolen property, two police assaults, 11 drugs offences, one offence of obtaining property by deception and five common assaults. The violence involved in the offences covered by the first presentment and the applicant's continuing possession of firearms require considerable weight to be given to specific deterrence. His Honour found that, having regard to the applicant's criminal history, there was little to be said in mitigation, although he took some account of the applicant's positive relationship with his son and his determination that his son should not take up his criminal lifestyle. His Honour noted that the extortion from the Kennetts was probably related to the applicant's need for money for drugs and gambling.

52 In my view, the total effective sentence imposed by his Honour was available in the proper exercise of the sentencing discretion having regard to the above factors.

53 I would therefore refuse the application for leave to appeal.

56 The order of the Court is that the application for leave to appeal in this matter is dismissed.**

[1] The applicant initially sought leave to appeal against sentence. The application under Crimes Act 1958, s 585 was taken out of the list when the applicant indicated he would be seeking leave for an extension of time to file a notice of appeal against conviction. Leave was granted, but the application for leave to appeal against conviction has now been abandoned.

[2] [1996]1 VR 436, 443 (Charles JA). See also R v Barnes [2003] VSCA 156 as to the continuing relevance of the principle of proportionality to the application of s 6D.

[3] I note that for people sentenced to a threat to kill between 2001-2002 and 2005-2006, the median length of imprisonment for threats to kill was one year, four months and fifteen days: Sentencing Advisory Council Sentencing Snapshot, Sentencing trends for making a threat to kill in the higher courts of Victoria 2001-2002 to 2005-2006 (No 30, August 2007) Figs 7, 8.

[4] These arose from six court appearances.

[5] R v Cockerell [2001] VSCA 239, [10] (Chernov JA).

[6] R v Schwabegger [1998] 4 VR 649, 699 (Vincent AJA).

[7] This could not be treated as pre-sentence detention for these offences.

[8] On 17 March 2003 the applicant was sentenced to nine months imprisonment wholly suspended for 18 months and on being brought up for breach of that sentence on 9 March 2004 the order was confirmed and the sentence was suspended until 16 September 2004. On 25 March 2003 the applicant received a total effective sentence of 16 months imprisonment. On 31 March 2003 he was sentenced to an aggregate of four months imprisonment, wholly suspended for two years. On 23 April 2003 he received a total effective sentence of six months imprisonment and on 30 October 2003 he received a total effective sentence of two months' imprisonment.

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