Director of Public Prosecutions v Barbat
[2014] VCC 42
•5 February 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01597
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT BARBAT |
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JUDGE: | Sexton | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 21, 24 January 2014 | |
DATE OF SENTENCE: | 5 February 2014 | |
CASE MAY BE CITED AS: | DPP v Barbat | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 42 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Bourke | OPP |
| For the Accused | Ms N. Kaddeche for the plea Ms J. Clarebrough for the sentence | Pica |
HER HONOUR:
1 Brett Barbat, you have pleaded guilty to three charges of indecent assault, which is an offence with a maximum sentence of 10 years’ imprisonment.
2 Also, you have consented to this court dealing with the summary offence of dangerous driving, to which you pleaded guilty, and which has a maximum penalty of 240 penalty units or 2 years’ imprisonment. It is mandatory that your driver’s licence be cancelled and you be disqualified from driving for at least 6 months.
3 It is usual that the Prosecution Opening constitutes an agreed factual basis upon which a judge passes sentence[1], and so I proceed to sentence you on the basis of the summary of facts contained in the Prosecution Opening[2], which your counsel described as agreed. Where these facts were disputed on the plea, I indicate my findings. Where I state that I am satisfied, that means satisfied beyond reasonable doubt. Where I state that I find a certain fact, that is established on the balance of probabilities.
[1]Formosa v R [2012] VSCA 298 at [8]
[2]Exhibit A
4 The offences were committed on 11 October 2012 against the woman with whom you had been in an intimate relationship. In these sentencing remarks, I am using a pseudonym for the woman’s name. Her actual name will remain on the court file. I do this to ensure her identity is not made public, which is something the law requires. I do not mean any disrespect to her. The name I will use is Annabelle Cook.
5 You and Annabelle Cook met and commenced a relationship in Queensland in late 2011, when you were both aged about 33 years. It is not in dispute that sometimes the relationship was a rocky one. In mid 2012, you agreed to move to Victoria, as Ms Cook was missing her family. Your family lives in New South Wales. After living briefly with Ms Cook’s parents in the Geelong area, you moved together to rented accommodation nearby. It is alleged in the agreed summary that shortly after that, you began acting violently towards Ms Cook, but this you deny.
6 On about 21 August 2012, Ms Cook decided to separate from the relationship; she says this decision was taken following a particular alleged violent incident. You agree that she left the relationship, but deny the violence. Ms Cook then went to live with an older sister.
7 You and Ms Cook continued contact by text messages, and it is agreed that you did not accept her decision to end the relationship. I am satisfied that this is demonstrated by the many threatening text messages you sent to the complainant as well as the messages pleading for her to reconsider her decision.
8 As a result of the threatening messages, on 14 September 2012, a Family Violence Intervention Order was made against you on behalf of Ms Cook, and another was made in respect of the sister with whom Ms Cook was living. You were present in court when the orders were made, and as you had been subject to similar orders in respect of other women in other jurisdictions, I am satisfied that you understood your obligations and restrictions under those orders.
9 Despite the existence of the orders, contact continued between you and Ms Cook in both directions, and continued to include threatening text messages from you to her. It seems from telephone records and copies of text messages that you ceased this contact after 28 September when Ms Cook changed her telephone number; the records show that Ms Cook, however, continued to contact you after that date.
10 On 10 October 2012, you went to the home of Ms Cook’s parents, complaining about her contacting you. An argument took place, and you pushed her father, which is the subject of a charge of assault pending in the Magistrates’ Court, to which you have pleaded guilty. As outlined in the agreed summary, when you left, you said you would push Ms Cook’s car off the road if you saw it.
11 The following day, 11 October, it so happened that you did see Ms Cook in her car, when you pulled out from a supermarket car park onto a road and shortly afterwards realised that she was travelling in a car behind you. You stopped your car in the middle of the road in front of her on two occasions, signalling for her to pull her car over, and twice, she drove around you. In her police statement, she describes her view that you were getting angry with her.
12 On the third occasion, you drove up close behind her car, in what is described as a ‘tail gating’ manoeuvre, travelling at approximately 70 kph on Barwon Heads Road at about 5pm, while the road was wet. You then pulled alongside her car, and moved your car towards hers in an apparent attempt to cut her off, just as you had threatened you would do. Ms Cook was forced to pull her car off to the side of the road, whereupon you pulled over in front of her car. This conduct comprises the offence of dangerous driving, and is a serious example of that offence.
13 During this frightening driving episode, Ms Cook telephoned her older sister to tell her what was happening, and the call remained open for a while, so that the sister heard some of what then went on after the cars had stopped. You spoke to Ms Cook at the driver’s window of her car, where you appeared as crying and emotional. I am satisfied that Ms Cook was also crying. You then grabbed her by the back of the neck and forcibly kissed her. I treat this conduct as part of the lead up to the indecent assaults which followed, and this does not form part of any charge for which you are to be sentenced. However, I am satisfied beyond reasonable doubt that this was done without her consent, and that you were aware of this.
14 You then got into her car. As it was apparently raining heavily, I am not able to exclude that was a reason for you doing so. I am not satisfied that your sole reason for getting in the car was to assault Ms Cook, although given your conduct in kissing her, I am satisfied that it may have been on your mind to touch her, regardless of whether she was consenting.
15 I find that you were still crying and emotional, but I am satisfied Ms Cook was also crying and shaking, and during the conversation that followed, I am satisfied that she gave answers that she thought would keep you calm, and prevent any violence that she thought might follow. She also ended the telephone call to her sister for the same reason. When cross-examined at committal she said she had learned to act this way over the course of the relationship. I make no finding about your conduct over the course of the relationship.
16 Without her consent, you then lifted her top and put your hand inside her bra. I treat this conduct as the context in which the next act occurred and it does not form part of any charge for which you are to be sentenced. However, I am satisfied that this was done without her consent, and that you were aware of this, for reasons which I will outline in a moment.
17 Your next act was to kiss her on the mouth, which is the subject of the first charge of indecent assault. You then kissed her breasts, which is the subject of the second charge of indecent assault. You then put your hand inside her pants and touched her vagina under her clothing, which is the subject of charge 3 of indecent assault. By your plea of guilty, all of these acts were committed by you without her consent.
18 You also asked her to spread her legs, and put Ms Cook’s hand on your crotch, where she felt your erect penis, and you began to undo your pants until Ms Cook convinced you not to, saying that there were cars around. I treat this conduct as arising out of the context in which the indecent assaults occurred and it does not form part of any charge for which you are to be sentenced. However, I am satisfied that the acts were done without her consent, and that you were aware of this, for the reasons which I will come to next.
19 However, I do find that you remained in the car for a period after that and did not attempt to assault her again. I find that the acts of indecent assault were not themselves prolonged.
20 Your counsel submitted that your plea of guilty to the indecent assaults was entered on the basis that you gave no thought to whether or not Ms Cook was consenting. This was not an agreed position, and the prosecution rejected it, submitting that state of mind was not consistent with the surrounding circumstances.
21 I am satisfied on the following bases that you assaulted Ms Cook in indecent circumstances while being well aware that she was not consenting:
· you had just forced her car off the road after she had made it clear that she did not want to stop and deal with you in person at your demand;
· she was shaking and crying when you were in the car, an agreed fact which you were in a position to observe;
· it was then about seven weeks since she had ended the relationship by moving out of your shared premises while you were at work without informing you in advance;
· despite the phone contact instigated by her following her move, you knew the relationship was over; and finally,
· you knew there was an Intervention Order in place sought on her behalf to keep you away from her.
22 I return now to the allegation of you being violent towards Ms Cook during the relationship. The prosecutor made clear on the last hearing date firstly, that the only allegation relied on related to the day before Ms Cook left the relationship as contained in the agreed summary at paragraph 6 (that is, you forced Ms Cook to the ground and pressed your foot to her throat); and secondly, that allegation was relied on solely to show why it was that Ms Cook left you. Your counsel confirmed on the last hearing date that you denied any part of that allegation.
23 I am satisfied on the material in the depositions, despite a slightly different version being given by Ms Cook at committal from that in her statement, that on the day before she left the house you shared, you acted violently towards her. It matters little whether it was a push up against a fence, or forcing her to the ground and putting a foot on her throat (all of which actions you deny). The point is that I am satisfied that there was an act of violence committed by you that led Ms Cook to leave the relationship, the very next day, after you had left for work. I do not treat this as a factor making your offending more serious, as the prosecution do not rely on it for that purpose.
24 Your offending is made more serious by the fact that it was in breach of an Intervention Order, and I am satisfied that it is also made more serious by the persistence of your conduct that day in getting Ms Cook alone, making her feel helpless, and into a vulnerable situation where you could brazenly assault her, ignoring her fearful state as exhibited by her crying and shaking, in a car on the side of a road with cars going past.
25 I am not passing sentence on you for breach of the intervention order taken out on behalf of Ms Cook, or her sister, which are offences which will proceed as pleas of guilty in the Magistrates’ Court, but the total disdain you have shown for those sorts of court orders, both here and interstate, reflects a higher level of criminality in your behaviour in this case. While you have no criminal history of assaulting a woman in indecent circumstances, you have on three previous occasions assaulted a woman with whom you were in a relationship, and for each woman, there was an apprehended violence order in place. I am satisfied that this aspect of your criminal history also makes your offending more serious.
26 Your criminal history consists of 31 prior convictions between 2001 and 2010 in Queensland and New South Wales, including three for assault occasioning actual bodily harm, seven for common assault, and three for stalking. You have shown a complete disregard for complying with court orders, by breaching bail orders three times, failing to comply with conditions of a good behaviour bond or suspended sentence or a direction three times, by doing an act with intent to influence a witness once, and, as I mentioned, contravening apprehended violence orders (the equivalent of Intervention Orders) on five occasions. You have received terms of imprisonment on at least three occasions, and on three occasions, you were ordered to attend programs to address anger management. None of these orders or programs seem to have deterred you from offending against Ms Cook, nor from assaulting her father or breaching the Intervention Orders, all of which you have admitted.
27 Ms Cook was entitled to feel safe and secure in a loving relationship. Instead, she was subjected to threats and verbal abuse and, after she left the home you shared together, ultimately was subjected to humiliating indecent assaults at your whim. I am satisfied that this was a breach of the trust that Ms Cook was entitled to have in you as her partner, and did have until your actions breached that trust.
28 I received a Victim Impact Statement from Ms Cook.[3] In it, she eloquently describes the effect of your crimes on her. You heard that read out in court and you should feel ashamed at the impact your actions have had on her and her life. She felt sheer terror at the time of the offending and I am satisfied that she was in a vulnerable position alone in the car with you on the side of a road, trying to keep you calm, and not knowing that anyone was coming to her rescue.
[3]Exhibit B
29 As a result of your offending, she has lost her ability to trust others, or allow others to get close to her emotionally. She has lost her innocence and bubbly personality as well as her confidence, which has reduced her circle of friends; and she feels estranged from her family. Nothing I say can make her feel safer or improve her outlook on life, and given her nightmares of seeing you out of gaol, I am conscious that the sentence I am going to impose will not seem sufficient for her. However, I assure her that I have taken the impact on her very much into account in my sentence, although it must be balanced against the other factors the law requires me to take into account.
30 I am pleased to note that she is receiving counselling from a psychologist which is affording her some comfort and she bravely recognises that things will get better in time. I encourage her to continue to seek assistance for as long as she needs. I wish her well in the future.
31 I turn now to the other factors that the law requires me to take into account.
32 The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour. By your plea, the community has been spared the time and cost of a trial, and Ms Cook has been spared the ordeal of giving evidence at a second hearing, as she was cross examined at the committal. On the basis of those benefits, the sentence I intend to impose will be less than would have been imposed had you been found guilty after a trial.
33 However, I do not find that your plea reflects remorse to any significant degree.[4] The manner in which the plea was conducted, with disputes concerning some of the allegations made by Ms Cook, and emphasis on her conduct, rather than a full acceptance of your own criminality and responsibility for the offending, leads me to the conclusion that your plea does not arise out of a genuine feeling of remorse.
[4]See R v Phillips [2012] VSCA 140, especially at [36]
34 I have been told something of your personal history and your circumstances. Your parents are in Newcastle and your sister lives in Sydney. As a result, you are isolated from family here, and since you have been in custody have only had phone contact with them. After leaving school in Year 10, you completed a number of TAFE courses, including glass glazing and you began working as a glazier from about the age of 20. You worked in Queensland and it was there that you met Ms Cook. You have always been able to find employment, even though your counsel told me that you had problems in the past arising out of your use of cannabis and amphetamines, which apparently contributed to your past offending. You found work when you moved to Victoria with Ms Cook.
35 After committing the offences, you returned to Queensland, where you gained further work, and you later came back to Victoria, where you voluntarily attended the police, and were taken into custody. You have been in custody ever since, a period of nearly a year.
36 While in custody, you have kept yourself fully occupied. You are working as a welder, and you have also managed to complete a very large number of educational and behavioural programs[5]. While you are to be encouraged in these steps towards reforming your character, full employment and anger management programs have not in the past prevented you from re-offending. I find that your prospects of rehabilitation are guarded. However, in my sentence I must try to maximise your chances of rehabilitation, although ultimately you must want to reform your life. Otherwise, I predict more and more of your life will be spent in gaol.
[5]Exhibit 1 contains the certificates relating to completion of these programs.
37 As well as those matters personal to you to which I have referred, I must also take into account such matters as deterrence, which is of considerable importance in a case involving sexual offending. By my sentence of you, I must try to deter other men from committing offences against their domestic partners. Also, my sentence of you must try to deter you from committing such offences in future.
38 I must also consider the question of protection of members of the community from you, and I find that the likelihood of you re-offending in some form is quite high, particularly offending against a woman with whom you enter a domestic relationship in future.
39 If you are sentenced to a term of imprisonment on charges 1 and 2, then in determining the sentence on charge 3, the law requires me to regard the protection of the community from you as the principal purpose for which sentence is imposed in respect of that charge. In order to achieve that purpose, I can impose a sentence greater than is proportionate. I do not propose to do that, because the prosecution do not seek it, and because in my view an appropriate sentence on charge 3 can be arrived at on usual sentencing principles having regard to its level of seriousness.
40 Application has been made by the prosecution for the retention of an intimate forensic sample previously taken from you. You have not opposed that application and as it is in the public interest that the order be made, and as the seriousness of the circumstances warrant the making of the order, I have signed it.
41 The prosecutor submitted that your offences are serious examples of indecent assaults, because of the surrounding circumstances, and the aggravating features. He submitted that a sentence of imprisonment was the only option, and an appropriate range for your sentence is 2½ - 3½ years as a head sentence with a non-parole period of 18 months to 2 years.
42 Your counsel submitted that although it is conceded on your behalf that a term of imprisonment must be imposed, the range put forward by the prosecutor is too high. She submitted that a partially suspended sentence would be appropriate because of your prospects for rehabilitation arising from your ability to work, the programs you have undertaken in custody, and your family support from interstate. I am told that on release, you propose to return to Queensland after spending some time with your family, and that a parole period would restrict you in leaving Victoria. She also submitted that there should be a high degree of concurrency in the sentences, as they occurred only moments apart.
43 At the last hearing, your counsel provided further submissions in writing[6] to which she spoke. I had referred both counsel to the case of Bowden v R[7], and your counsel submitted, amongst other matters, that there was a comparison to the range provided by the prosecution in your case, and the sentence in Bowden which was reduced by the Court of Appeal. She ultimately submitted that in light of that case that your sentence could involve no more than the time you have already served.
[6]Exhibit 2
[7][2013] VSCA 382
44 On the basis of the findings I have made in these sentencing remarks, I do not agree with your counsel that the time you have already served is a sentence which properly reflects the seriousness of your offending and the other factors that I take into account, even when balanced against the matters in your favour.
45 I proceed to sentence you on the basis of the findings I have already made. Before proceeding to announce your sentence, I indicate that:
· Charge 3 will receive a higher sentence than charges 1 and 2, because it involves an indecent assault at the high end of seriousness, and because you are to be sentenced on that charge as a serious sexual offender;
· I will not disturb the presumption for cumulation in respect of charge 3[8] to direct any concurrency between charge 3 and the other charges;
[8]Section 6F Sentencing Act
· I propose to order total concurrency between charges 1 and 2;
· I propose to order total cumulation of the summary charge of dangerous driving on the charges of indecent assault as it involved a different type of offending, has a high level of seriousness and set up the situation for the sexual offending; and
· I am of the view that you require a period of parole on release, and so I am not satisfied that a partially suspended sentence is appropriate in this case.
46 In respect of the submission that a parole period would prevent you from leaving Victoria, I note that I must decide on an appropriate sentence on the basis that you will serve the whole sentence that I impose, but I am aware that should you be granted parole, an application can be made for it to be transferred interstate.
47 Brett Barbat, you are convicted and sentenced as follows:
48 Charge 1 – indecent assault – 6 months’ imprisonment;
49 Charge 2 – indecent assault – 8 months’ imprisonment;
50 Charge 3 – indecent assault – 1 year 10 months’ imprisonment.
51 On the summary charge of dangerous driving – 10 months’ imprisonment.
52 Charge 3 is the base sentence. I direct that the sentences imposed on charges 1 and 2 be served cumulatively on the sentence imposed on charge 3; I direct that the sentences on charges 1 and 2 be served concurrently with each other; and I direct that the sentence on the summary charge be served cumulatively on the sentences imposed on charges 1, 2 and 3.
53 That makes a total effective sentence of 3 years 4 months’ imprisonment.
54 I direct that you serve 2 years before becoming eligible for parole.
55 I direct that it be entered into the records of the court that I have sentenced you in respect of charge 3 as a serious offender within the meaning of the Sentencing Act.
56 I declare that you have served 332 days in custody not including today and note that this period will be deducted administratively from your sentence.
57 Any driving licence held by you is cancelled and you are disqualified from driving for 12 months from today.
58 If you had not pleaded guilty but had been found guilty of these offences after a trial, the sentence of imprisonment I would have imposed is 4 years 10 months with a minimum of 3 years.
59 Just take a seat again, Mr Barbat. The ancillary order as to the retention application is in the file and that can be provided. Nothing arising out of those orders?
60 MS CLAREBOROUGH: No, Your Honour.
61 MR BOURKE: No, Your Honour – Sex Offender's Registration - - -
62 HER HONOUR: Yes, I'm going to proceed to that now.
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