Andrew James Murray v Jamie Mitchell Barry
[2022] ACTMC 22
•30 September 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Andrew James Murray v Jamie Mitchell Barry |
Citation: | [2022] ACTMC 22 |
Hearing Date(s): | 7 June 2022, 23 August 2022 |
DecisionDate: | 30 September 2022 |
Before: | Magistrate Stewart |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Assault Occasioning Actual Bodily Harm - Intentional Threat to Kill – Act of Indecency without Consent – Reprisal against person involved in proceeding - Robbery - youth - significant time in custody on remand – consideration of intensive corrections order |
Legislation Cited: | Crime (Sentencing) Act 2005 (ACT) ss 7, 10, 11, 80(2) Crimes Act 1900 (ACT) ss 24, 26, 30, 60(1), 375 Criminal Code 2002 (ACT) ss 309,712(1) |
Cases Cited: | Hassan v The Queen [2010] VSCA 325 Linney v R [2013] NSWCCA 251 Millard v Williams [2020] ACTSC R v Hodge [2015] ACTSC 214 R v Lee [2019] ACTSC 14 R v MT [2020] ACTSC 339 R v Newman; R v Reid [2016] ACTSC 102 R v Winters [2019] ACTSC |
Parties: | Andrew James Murray Jamie Mitchell Barry (Defendant) |
Representation: | Counsel S Bargwanna (Crown) A Doig (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Briggs Law (Defendant) | |
File Number(s): | CC 3111, 3112, 3114, 3118, 3119 of 2022 |
MAGISTRATE STEWART:
Introduction
1. The offender Jamie Mitchell Barry (DOB 29/01/2004) is charged with the following offences that occurred on 26 March 2022.
(a)Charge CC2022/3111 being one count of assault occasioning actual bodily harm (AOABH) contrary to s24 of the Crimes Act 1900 (ACT). On conviction the offence carries a maximum penalty of 5 years imprisonment.
(b)Charge CC2022/3112 being one count of act of indecency without consent contrary to s60(1) Crimes Act 1900 (ACT). On conviction the offence carries a maximum penalty of 7 years imprisonment.
(c)Charge CC2022/3114 being one count of Intentional threat to kill another person contrary to s30 Crimes Act 1900 (ACT). On conviction the offence carries a maximum penalty of 10 years imprisonment.
(d)Charge CC2022/3118 being one count of reprisal against persons involved in a proceeding in accordance with s 712(1) Criminal Code 2002. On conviction the offence carries a maximum penalty of 5 years imprisonment, 500 penalty units or both.
(e)Charge CC2002/3119 being one count of robbery contrary to s309 of the Criminal Code 2002. On conviction the offence carries a maximum penalty of 14 years imprisonment, 1400 Penalty units or both.
(f)The offender pleaded guilty to each charge on 07 June 2022 which was the fifth occasion before the Court. On the same day he elected for summary disposal of the charges, thereby selecting this Court to sentence him with the consequence of limiting the maximum sentencing jurisdiction on each charge to five years imprisonment pursuant to s375 of the Crimes Act 1900 (ACT).
Summary of Facts
2. The facts may be summarised as follows:
3. On Friday 4 March 2002, the victim in this matter, Zak Collier, was assaulted in an unrelated matter by an offender named Polhuis. Mr Polhuis was remanded in custody due to that assault. Mr Polhuis is an associate of this offender.
4. In the early hours of Saturday 26 March 2022, the offender was at 17 Swallow Street Dunlop ACT with his co-offenders Jack Elson and Dylan Summerall. At 3:40 am the victim, and another of the offenders’ associates, Jack Summerall-Jenkins arrived at the premise by car.
5. Once inside the house, the offender recognised the victim as the victim in the assault perpetrated by Mr Polhuis. The offender said “What did you say about Josh Polhuis? That’s my brother. What are you doing at his missus house? What are you doing at my sister in laws house? Is that why he’s in jail? Cos, he bashed you and the other guy? Why is he in jail? Who snitched?”
6. What followed was a course of offending conduct that lasted for over 15 minutes and was entirely captured by CCTV footage from the premises and mobile phones of the co-offenders. The charge of AOABH CC2022/3111 encompasses the assaults and injuries throughout the event as does the count of reprisal CC2022/3118. The offender first struck the victim in the face with his left hand and shoved him in the chest. The victim then attempted to retreat further into the premises.
7. The offender struck the victim twice in the face and pushed him out onto the front lawn of the premises. The offender continued to strike the victim whilst repeatedly yelling “who snitched, who fucking snitched cunt.” The victim retreated with his hands up and apologised to the offender.
8. The offender took hold of the victim and kicked him in the torso, let his grip go and kicked him in the face causing his head to snap back and give off an audible noise. The victim ran towards the street and was pursued by the offender who dragged the victim back to the front lawn of the premises and said “I’ll kill ya, I’ll put a bullet in ya.”
9. The offender then forced the victim to get on his hands and knees and kicked the victim in the face, before stomping on the victim’s head. The offender continued to say words to the effect of “you ever been to jail cunt, who’s a bitch? Who’s a bitch, tell everyone now.”
10. The offender slapped the victim in the head twice and kicked the victim twice more whilst he was lying on the ground. He then dragged the victim out on to the road and body slammed him onto the bitumen. The offender again struck the victim with his hand and yelled “did you snitch on Josh Polhuis?”. When he got to his feet the victim was kicked in the back of the neck and he retreated to the lawn.
11. The offender punched and then “round-house” kicked the victim to the head causing the victim to fall to the ground unconscious. The victim remained lying on the ground unconscious for approximately 83 seconds. No assistance was provided to the victim by the offender or anyone else present.
12. Whilst the victim was unconscious a co-offender squatted over the victim’s head after exposing their genitals and buttocks in a manoeuvre apparently known as ‘teabagging’. This conduct is not to be attributed to the offender, but he did nothing to stop it and was apparently encouraged by it.
13. Shortly after the victim regained consciousness, the offender approached him from behind and simulated sexual intercourse whilst the victim was on his hands and knees and entirely under the physical control of the offender. It is obvious in the footage that the offender acknowledges that filming is taking place whilst he is simulating intercourse.
14. The victim attempted to stand and appeared to be heavily concussed and unable to control his balance.
15.The offender then said words to the effect of “I’m gonna find ya and I’m gonna blow your brains out, do you think I’m playing with ya or what, I’m gonna blow your brains out cunt”.
16. The offender sat the victim in a car and retrieved a machete before walking back. The offender put the machete on the ground and entered the back seat of the same car. That behaviour and the earlier threats to kill form the basis of the charge of intentional threat to kill CC 2022/3114.
17. A short time later, the victim sat in his own car that was parked directly in front of the premises. The victim can be seen in the footage using his phone while sitting in the car due to the screen being illuminated in the darkness.
18. The offender retreated inside the premises only to return outside a short time later. He sat in the back seat of the victim’s car. The offender reached forward to the front seat and snatched the victim’s mobile from his hands. That act forms the count of robbery CC2022/3119.
19. The offender and the victim exited the vehicle and the defendant demanded that the victim take off all of his clothes. At 4:00 am the victim then ran, entirely nude, from the scene and alerted a nearby neighbour. That person contacted the victim’s mother and arranged for him to be transported to a nearby hospital. The simulated intercourse and forced nudity form the basis of the charge of act of indecency CC2022/3112.
Victim impact statement
20. The victim provided a victim impact statement. The assault has had significant ramifications on the physical and mental well-being of the victim. The victim expressed his “loss of personal sense of safety and fear”. He described “experiencing shame and anxiety”. These effects are consistent with what one might expect from the circumstances identified in the facts.
Objective Seriousness
21. There could be no argument that the only appropriate disposition of each of the charges is a sentence of imprisonment[1]. The Crown submits that the AOABH charge is objectively in the upper reach of seriousness for this type of offence. I accept that it is well above the median level of objective seriousness and narrowly wins a contest with the reprisal charge as the most objectively serious of all of the charges to be dealt with.
[1] S 10 Crimes (Sentencing) Act
22. In R v Newman; R v Reid [2016] ACTSC 102 the Supreme Court set out the two factors to consider when considering the objective seriousness of a charge of AOABH – the nature of the injuries and the nature of the conduct. The injuries suffered by the victim included.
(a)1cm laceration to the lip;
(b)1.5cm laceration to right tip of the tongue;
(c)Soft tissue injuries to the face;
(d)Resultant bleeding; and
(e)Unconsciousness for more than 80 seconds.
23. For the AOABH the relevant nature of the conduct is:
(i) The extended duration of the assault;
(ii) Multiple blows concentrating on the head[2] as a most vulnerable area;
[2] R v Hodge [2015] ACTSC 214
(iii) Failure to mitigate injuries or check on the well-being of the victim – particularly once he had been rendered unconscious;
(iv) The offending occurring in company at various times during the assault;
(v) The failure to desist when co-offenders attempted to dissuade further offending;
(vi) The offender’s knowledge that his violence was being watched and recorded by the co-offenders on their telephones;
(vii) The sheer domination of a physically smaller victim who submitted without any attempt at self-defence; and
(viii) The refusal to negotiate or accede to the victim’s plead for the assault to stop.
24. It will be noted that I specifically omitted the separately charged context of reprisal, threats to kill, acts of indecency and the theft of the victim’s telephone as I will sentence separately for that behaviour on those charges to avoid double jeopardy.
25. The parties did not provide a list of comparative sentences. I have considered some of the more serious AOABH matters in the Australian Capital Territory to attempt to find a sentencing yardstick for this offence:
(a) In R v Lee [2019] ACTSC 14 Elkaim J sentenced for numerous sexual offences and AOABHs. The most serious AOABH called for a sentence of two years imprisonment. That involved spearing the victim through the arm with a fishing spear, holding a knife to her throat and threatening her with death. The spear was cut so it could be pulled back through her arm and hospital treatment was denied to her.
(b) In R v Winters [2019] ACTSC 245 Loukas-Karlsson J imposed a 20-month sentence reduced to 15 months on account of the plea. That AOABH occurred in the custodial setting and lasted for a minute. About 20 blows were delivered and the victim was then stomped and kicked when he fell to the ground. Injuries included a ruptured ear drum, a swollen cheek and scalp, abrasions and a scalp laceration that required gluing.
(c) In R v MT [2020] ACTSC 339 Elkaim J imposed a sentence of two years reduced from two years and four months. This was in the context of a 17 year old offender who was also convicted of murder and causing grievous bodily harm. The AOABH count related to punching the victim and knocking out a tooth implant and biting his hand whilst yelling that he would kill the victim.
26. I consider that the case at bar is of greater objective seriousness than each of these matters.
27. It is difficult to find a locus classicus for the count of reprisal against a person involved in a proceeding. As with many justice type offences it is immediately serious:
(a) In Millard v Williams [2020] ACTSC 179 Elkaim J considered an appeal against sentence for a reprisal offence involving violent threats and gestures made to a police officer who had given evidence contrary to the benefit of the appellant at a bail application. At first instance a sentence of 18 months reduced to 16 months was imposed. His Honour did not interfere on the basis of manifest excess.
(b) In Linney v R [2013] NSWCCA 251 the New South Wales Court of Appeal considered a similar section with a maximum penalty of 10 years imprisonment. A sentence of three years and nine months was imposed at first instance and not interfered with by the court. The circumstances were that the appellant was aggrieved by a decision of a District Court Judge and sent an e-mail to police mentioning murdered Justice Opas of the Family Court of Australia and in relation to the extant judge emailed these words: “ A bullet in his head for him would not be a dream. Please take me seriously. Don’t think this is a joke.” Further emails were sent to the judge’s chambers.
28. The objective seriousness here lies somewhere between those two matters. I must consider the risk of double jeopardy in the circumstances of this matter as I am mindful of the almost complete degree of factual overlap between the AOABH charge and this charge.
29. The act of indecency is a rolled-up count comprising the simulated intercourse with and forced stripping of the victim. The offending is around or a little above the median for this type of offence. It was conduct that had it’s origin in demeaning and controlling the victim rather than sexual gratification. It involved the embarrassment of non-consensual public nudity. It was captured on mobile phone footage.
30. As for the remaining counts, they are charges that have greater familiarity with this jurisdiction and instinctive synthesis is more readily at hand.
Subjective Circumstances.
31. The subjective circumstances are outlined in the pre-sentence reports (PSRs) and a psychological report by Leigh Nomchong 9 August 2022. I am concerned about the usefulness of the latter. It appears that there has been no psychometric testing administered and no fact checking of some of the somewhat sketchy details provided to the report writer by the offender. The report is useful for the opinion that the offender self-medicated with alcohol for symptoms of anxiety, but I am not persuaded to accept the opinion that the offender “would most likely meet the diagnosis of attention deficit hyperactivity disorder (ADHD)”[3] without a proper basis for such a hunch. The assertion that the offender was not in control of himself[4] during the offending is deeply concerning. It does not reflect the level of control and dexterity exhibited by the offender on the video footage and was not a feature of counsel’s submissions on sentence. I reject that opinion.
[3] Report of L.W. Nomchang dated 09 August 2022 page 5.
[4] Ibid page 9
32. What can be accepted from that report is that the offender is an 18-year-old Aboriginal man. He had a disrupted upbringing where he was exposed to problematic alcohol misuse in his teenage years. His parents separated when he was 15 years old, and his mother then increased her alcohol consumption to drinking to the point of sleep each night until she went into residential rehabilitation in Sydney. He appears to have fended for himself for some 6-8 months in her absence. The offender then worked sporadically after drifting away from school in that period. He did not enjoy a positive relationship with his older siblings in his childhood and described his life as one of violence.
33. The PSRss detail issues with behaviour whilst the offender has been on remand. There had been negative behaviour displayed towards correctional officers and other detainees resulting in seven days separate confinement and 13 separate negative case notes. I warned the offender on the last occasion about this behaviour affecting his suitability for a community-based sentence and requested a short report on his behaviour in custody since. That report dated 27 September 2022 tells me that:
“Service records indicate no recorded disciplinary actions, or negative behaviour displayed towards Correctional Officers or other detainees.”
34. The offender has expressed a willingness to engage with treatment across the reports. He is currently engaging with alcohol and drug intervention as well as seeking medical attention in mental health and counselling in the AMC. He has not been able to access other programs including anger management that he has sought out whilst in custody. I am told today that he has commenced work whilst in custody and he is to be commended for that.
35. The offender is in a stable and committed relationship. His girlfriend is reported to be pro-social. A letter indicates that he has been offered an opportunity to work in the construction industry with a masonry business.
Criminal History
36. Redacted..
Attitude to offending
37. The Court should be guarded about which version of events and what level of intoxication is to be accepted. The offender has taken responsibility for his offending and has not disputed any factual matter. He has expressed his own shame at his behaviour and requested that his family not view the footage in the sentencing proceedings.
38. Mr Nomchong’s report contains an assertion that the offender was set up by his friends to assault the victim. This was not a feature of counsel’s submissions on the offender’s behalf.[5]
[5] Ibid page 7
39. I accept that the offender feels shame about his offending behaviour. I think that given his immaturity it is unsurprising that he has variously attempted to blame alcohol and a set up by others in an attempt to explain away the reality of the way that he has offended. Because of his young age I do not think that his sentence should be affected for doing so.
Intoxication
40. Ultimately defence counsel did not submit that intoxication was put forward as any form of defence or excuse. The Crown submitted that the decision of Hasan v The Queen [2010] VSCA 352 was of relevance to reject the proposition that intoxication can mitigate the seriousness of the offence.[6]
[6] Hassan v The Queen [2010] VSCA 325
41. I find that the issue of intoxication might explain some part of the offending but that it should have a neutral effect on the sentence.
Plea of Guilty
42. The defendant entered pleas of guilty at an early stage after representations were accepted by the prosecution. The pleas were entered on the 5th occasion.
43. Section 35 of the Crime (Sentencing) Act 2005 governs the discount to be applied for a plea of guilty. The prosecution case relied on CCTV and other footage. It is difficult to imagine a successful defence of the charges. However, there was significant utility in those pleas – the victim was spared re-traumatisation at hearing and there has been a considerable financial saving to the community by a hearing not being required. I think that an appropriate discount for negotiated guilty pleas in those circumstances is about one eighth or 12.5%.
Time in Custody
44. The offender was arrested on the 31 March 2022 and has remained in custody continuously since that date. He has spent 183 days (5 months 30 days) in custody as of yesterday 29 September 2022. Given that the offender is 18 years old, this is a significant period and spans the majority of his adult life.
Consideration
45. There are competing sentencing purposes at hand. Despite the extreme objective seriousness of the offending and some relevant criminal history, the youth of the offender is a paramount consideration. But for his age, the start points of my sentences would have been higher again by a significant margin. Despite him being an inconsistent historian, I have formed the view that rehabilitation must take precedence over punishment and deterrence in this sentence – rehabilitation is one of the surest ways to protect the community from this offender re-offending.
46. The offender was afforded an opportunity to show the Court that he can be respectful to Department of Correctional Services staff since the last Court date. He has done so. Whilst a month and few days is not a long time to demonstrate change, it does serve to demonstrate that the offender is capable of behavioural change.
47. One thing is clear – if alcohol is the root of the offender’s criminal behaviour then it is best that he now commence a lifelong effort of restraint from that substance. He will need assistance with this given his lengthy exposure to alcohol abuse behaviour during his childhood at home.
48. Given the amount of time in custody and the young age of the offender I think that my discretion to allow him to serve the remainder of his sentence in the community is enlivened. I do not think that a suspended sentence of imprisonment is what he needs – he needs close supervision if he is to rehabilitate. An intensive corrections order (ICO) will serve this purpose. I cannot back date the ICO or combine it with the time actually served, so I will afford a reduction to reflect the time spent in custody.
Sentence Structure
49. On charge CC2022/3111 AOABH I commenced at a start point of two years and six months. I have reduced that by about 12.5% to 26 months and seven days on account of the guilty plea. There will be a further reduction to account for the time spent in custody of five months and 30 days to 20 months and eight days. That will run from today 30 September 2022 to 06 June 2024.
50. On charge CC2022/3112 act of indecency without consent I commenced at a start point of 12 months imprisonment. I have reduced that by one and a half months to 10 months and 15 days on account of the guilty plea. It will be concurrent as to three months on 202/3111 and will run from 07 March 2024 to 21 January 2025.
51. On charge CC2022/3114 being intentional threat to kill another person I commenced at a start point of six months imprisonment. I have reduced that to 5 months and 7 days on account of the plea. It will be concurrent as to two months on CC2022/3112 and will run from 21 November 2024 to 27 April 2025.
52. On charge CC2022/3118 reprisal against persons involved in a proceeding I commenced at a start point of two years imprisonment. I reduced that to 21 months on account of the guilty plea. I have decided to afford a far greater degree of concurrency than usual due to the factual overlap between it and the AOABH charge. It will run from 01 August 2024 to 30 April 2026.
53. On charge CC2002/3119 robbery I commenced at a start point of 4 months and reduced that to 3 months and 15 days on account of the guilty plea. It will be concurrent as to one months and 16 days on CC2022/3118 and will run from 15 March 2026 to 29 June 2026.
54. The total sentence is three years and nine months from 30 September 2022 to 29 June 2026. After considering s 11(3) of the Crimes Sentencing Act 2005 (ACT) and dwelling on the issues of harm to the victim and culpability in particular, I remain of the view that it is appropriate for this sentence to be served by way of ICO.
Orders
55. The order of the Court is that a sentence of three years and nine months is imposed commencing today and it is to be served by way of ICO.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Stewart .................. Associate: Rebecca Hunter Date: 30 September 2022 |
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