Director of Public Prosecutions v Barboussas
[2022] VCC 182
•28 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER BARBOUSSAS |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2021 | |
DATE OF SENTENCE: | 28 February 2022 | |
CASE MAY BE CITED AS: | DPP v Barboussas | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 182 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Rape – Category 1 – standard sentence of 10 years – making threat to kill – possession of drug of dependence – possession of a prohibited weapon – pre-meditated violent sexual offending – 14 year old victim – 50 year old offender – extensive criminal record – no prior history of sexual offending – many aggravating features – use of gun and taser to threaten the victim – legal presumption of harm – limited prospects of rehabilitation – plea of guilty at the earliest opportunity – remorse – COVID-19
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Drugs, Poisons and Controlled Substances Act 1981; Control of Weapons Act 1990; Confiscation Act 1997; Sex Offenders Registration Act 2004
Cases Cited:Clarkson v R (2011) 32 VR 361; DPP v Dalgleish (2017) 262 CLR 428; Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296
Sentence:Total Effective Sentence of 12 years imprisonment with a non parole period of 8 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Malobabic | Office of Public Prosecutions |
| For the Accused | Mr S Ranjit | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1Peter Barboussas, you have pleaded guilty on indictment to three charges. Charge 1 is a rolled-up offence of rape contrary to s38(1) of the Crimes Act1958. This offence carries a maximum penalty of 25 years' imprisonment. Charge 2 is an offence of make threat to kill contrary to s20 of the Crimes Act 1958. This offence carries a maximum penalty of 10 years' imprisonment. Charge 3 is an offence of possessing a drug of dependence, namely Cannabis L, contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act1981. This offence carries a maximum penalty of five penalty units.
2You have also consented to this Court hearing and pleaded guilty to the summary charge of possession of a prohibited weapon without exemption or approval, contrary to s5AA of the Control of Weapons Act 1990. This offence carries a maximum penalty of two years’ imprisonment or 240 penalty units.
3Pursuant to s3(1) of the Sentencing Act1991, Charge 1, is a Category 1 offence. Further, it is an offence to which the standard sentencing regime is applicable. The standard sentence in respect of Charge 1 is 10 years’ imprisonment.[1]
[1]Crimes Act 1958 s38(3).
4The circumstances of your offending are set out in the summary of prosecution opening dated 3 December 2021.[2] Your counsel indicated that the opening was an agreed document for the purpose of sentencing.
[2]Exhibit A.
Circumstances of the offending
5At the time of the offending, you were 50 years of age. You were homeless and living on the streets of the Melbourne CBD. On 1 March 2021, Anabelle McBride,[3] the victim in respect of Charges 1 and 2, went to Southern Cross railway station with a group of friends. The victim was 14 years of age. Her friends were aged between 13 and 16. Anabelle and her friends met you outside The Age building on Collins Street at approximately 10:25pm and asked you for a smoke. You gave Anabelle a cigarette which she shared amongst the group. They all continued chatting with you, and at one point you gave Anabelle a necklace.
[3]A pseudonym.
6At approximately 10:46pm, you showed the group a taser device and sparked it in front of them. (Summary Charge of possession of a prohibited weapon without exemption or approval.)
7A male member of the group offered you his Apple iPhone in return for three grams of cannabis. You accepted his offer, taking his phone. You told the group they had to accompany you to Tottenham. At 10:56pm, you, Anabelle and two male members of the group travelled on public transport to Tottenham railway station, arriving at 11:21pm. During the journey, you had a conversation with Anabelle. She told you she was 14 years old. You also asked her questions about her boyfriend.
8After leaving the train station, you told Anabelle’s two male friends to wait at the corner and that you and Anabelle would be back in five minutes. They questioned you why and you responded that Anabelle had to knock on the door to purchase weed as your friend’s girlfriend would be in the house. As you were walking away, you pulled out your taser and said to the two boys, “Stay here or I’m going to use it.”
9You then took the victim to a house in Barkly Street in West Footscray. Having observed a bedroom window was open, both you and Anabelle climbed in. The bedroom had a single bed.
10In the bedroom, you whispered into her ear, saying, “Oh I want to see what you taste like.” When she said no, you attempted to pull her pants down. She resisted and told you to back off because you were too old, she did not like you and she had a boyfriend.
11You then pulled out the taser and a gun from your bag.[4] Anabelle described the gun as dark grey. She also saw, what appeared to be silver bullets on the desk. You pointed the gun to her head and said, “We can either do it the easy way or the hard way.”
[4]No evidence that this ‘gun’ was real. It has not been recovered.
12Anabelle became scared and felt she had to take her clothes off. She said to you, “Please don’t do this.”
13You pulled down her pants, put her legs on your shoulders, and inserted your tongue into her vagina. You said, “Oh you taste so good” and “I know you like it.” Anabelle said nothing in response. She closed her eyes and was crying.
14You then unzipped your pants and penetrated her vagina with your penis until you ejaculated. During this act, you said to her, “Stay still and don’t make a sound.” You did not use a condom and kept the taser and gun next to her (Charge 1).
15You then told her that you had to leave but would return in five minutes. You said to her, “If you move or if I come back and you’re gone, I’ll come for you” and, “If you move out, I’ll shoot you” (Charge 2). Anabelle could not move or stand up. She waited for half an hour, but given you had not returned, she escaped by jumping out through the window.
16She knocked on someone’s front door, but no one answered. She then hid behind a car in the driveway. Having seen a bus go past, she ran towards it. At approximately 12:27am, she knocked on the back door of the bus and asked the bus driver, whilst crying, to call the police as she had been raped. The bus driver called Triple zero and waited until police arrived. Anabelle was listed as a missing person.[5] She was taken by police to the Footscray police station.
[5]At the time of this offending, she was under the care of the Department of Families, Fairness and Housing.
17In the early hours of 2 March 2021, Anabelle told the police that she had been raped by an unknown adult male. A formal statement was not taken at the time as she was noticeably fatigued. Later that day, she was transported to hospital where she underwent a forensic examination. Police then drove her to West Footscray where she identified the house on Barkly Street where the offending the subject of Charges 1 and 2 occurred. On 3 March 2021, she formally made a VARE[6] statement.
[6]Video Audio Recorded Evidence.
18Police then went through the process of searching through the CCTV at Southern Cross railway station which showed you, Anabelle and her two friends travelling to Tottenham. An image of you was circulated. On 5 March 2021, a protective services officer observed you at Southern Cross railway station. You were arrested. You were searched and a small quantity of cannabis contained in a plastic bag was seized (Charge 3).
19You were taken to the Richmond police station where you were found unfit for interview by a Forensic Medical Officer. You were remanded in custody where you have remained.
20On 8 March 2021, a search warrant was executed on the Barkly Street address, a shared house with multiple bedrooms. It was confirmed that you did not live at this address.
21The vaginal swabs taken from Anabelle were analysed. Your sperm fraction was found in her high and low vaginal area.
Prior criminal history
22You have a lengthy criminal history spanning nearly 30 years. Between May 1990 and February 2019, you have repeatedly appeared before the Magistrates’ Court for offending involving dishonesty. You have had one appearance before the County Court in May 2015[7] for offences of aggravated burglary, armed robbery, false imprisonment, and attempt to obtain property by deception. Your history also includes some offending of using and possessing drugs of dependence, including cannabis. There is a prior matter for cultivating cannabis in 2005.
[7]In addition to a second appearance in June 2018 for breaching the Community Correction Order imposed by the County Court in May 2015.
23Despite a lengthy history, there is no history of any sexual offending on your record.
24You have been sentenced to various dispositions, including fines, community sentences,[8] wholly and partially suspended sentences and terms immediately served.[9]
[8]Community Based Orders and Community Correction Orders.
[9]The longest term of imprisonment was imposed by the County Court in June 2018 for breaching the Community Correction Order imposed on 1 May 2015. The sentence was one of 3 years’ imprisonment with a non-parole period of 2 years and 6 months. His last appearance before the courts in February 2019, attracted a term of 1 year and 2 months’ imprisonment.
Impact upon the victim
25You offended against a 14 year old child. There is no victim impact statement in this matter. However, the absolute prohibition on sexual activity with a child is founded on a presumption of harm. There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children. I am satisfied that your offending subject to Charge 1 has, or will, harm her.[10]
[10]Clarkson v R (2011) 32 VR 361.
Personal circumstances
26I have had regard to your background set out in your counsel, Mr Ranjit’s, written submissions[11] and in a more comprehensive manner, in Mr Warren Simmons psychological report dated 15 November 2021.[12]
[11]Exhibit 1.
[12]Exhibit 2.
27You were 50 years old at the time of the offending and had been sleeping rough on the streets of the Melbourne CBD. You are now aged 51. You were born in Preston and grew up in Collingwood and Carlton. You have no recollection of your parents residing together. You are the eldest child and have four younger siblings as well as two step siblings. You endured a difficult childhood living with your mother and a number of her partners. The family struggled financially, and there were occasions when you went without food. You went on to steal clothes in order to provide for yourself. You witnessed violence towards your mother from her partners, and you were also subjected to violence by them. One of your mother’s partners also abused you sexually. These unfortunate events in your childhood have left lasting memories that you continue to ruminate about.
28The difficult living situation with your mother meant that you went to live with your maternal grandmother and your two uncles. You have pleasant memories of living with your grandmother and uncles. You were well cared and provided for.
29Regrettably, this stable environment was lost when your grandmother passed away when you were 16 years of age. You returned to live with your mother. You struggled to live under her care and began to rebel.
30As far as education was concerned, you struggled academically. Your behaviour deteriorated and you began truanting. You eventually left school midway through Year 10.
31You have a long standing and entrenched history of drug abuse. It commenced when you were only nine years old and has continued until your arrest and remand on 5 March 2021. You first smoked cannabis at the age of nine, and, by the age of 11, it became a daily habit. You continued smoking cannabis right up to your arrest for these offences. You began injecting amphetamines at the age of 15. This remained a daily occurrence until the age of 19. For the last 10 years or so, you have been abusing heroin.
32You commenced drinking alcohol at the age of 13. By 18, you were consuming a cask or two of port regularly. Your consumption of alcohol decreased at the age of 21 and you ceased consuming alcohol at the age of 24.
33Days before this offending, you had been drinking GHB. At the same time, you had injected yourself with methamphetamine and heroin. At the time of this offending, you were intoxicated with this cocktail of drugs and you have no recollection of the appalling offending that you engaged in. As your counsel stated, your intoxication may explain your out of character conduct, but does not in any way mitigate or excuse your offending.[13]
[13]See paragraph 18 of defence written submissions (exhibit 1).
34Despite undertaking numerous drug and alcohol courses, both in prison and whilst on parole, you have continued to abuse illicit substances.[14]
[14]See [19] of Mr Warren Simmons psychological report (exhibit 2).
35Your criminal record is directly related to your abuse of drugs. Your past offending has been committed either to obtain money to purchase drugs or committed while you have been drug affected.
36You have been involved in two relationships. The first relationship lasted 14 years and produced a daughter who is now an adult. Your daughter recently gave birth to your grandchild.
37Your second relationship lasted for 3 ½ years. This relationship produced three children who currently reside with your brother and his wife.
38You have held some employment over the years, primarily as a labourer on a casual basis.
39Upon your release from custody after your last appearance in February 2019, you went to live with an aunt in Queensland. Your aunt passed away and you spent some time living on the streets in Queensland. You then travelled to New South Wales, where you undertook work picking fruit and some general work in an orchard. The work slowed down due to the COVID-19 pandemic. You returned to Melbourne in the middle of 2020 and began living on the streets in the CBD.
Gravity of the offending
40The Court must have regard to the objective gravity of the offending.
41You have pleaded guilty to the charge of rape which carries a maximum penalty of 25 years’ imprisonment. As already alluded to, rape is a standard sentence offence, with a standard sentence of 10 years’ imprisonment.
42There can be no doubt whatsoever, the rape you committed was an extremely serious example of the offence. It has many grave features:
(i)It was committed against a young vulnerable female victim, who was only aged 14. You were an adult, 50 years of age. There was plainly a significant disparity in age.
(ii)It was accepted by your counsel that from the point when you left the victim’s two friends behind and took the victim with you under the false pretence that you were going to purchase cannabis, you had planned to engage in sexual activity with her. There was a degree of pre-meditation involved. You took the young victim, a complete stranger to you, to a secluded location in the middle of the night.
(iii)Despite the victim’s resistance, telling you to back off, that you were too old, she did not like you and that she had a boyfriend, you completely ignored her feelings and instead demonstrated an adamant and aggressive stance to fulfil your perverted desire.
(iv)Her resistance was met by you pulling out a taser and a gun from your bag. You pointed the gun to her head. She also saw, what appeared to be silver bullets on the desk. In addition to your actions in pointing the weapon towards her head, you made it plain to her that you were going to get your way. You said to her “We can either do it the easy way or the hard way.” Your words and actions placed immense fear in your young victim, such that she found she had no choice but to remove her clothes. She continued to plead with you. She said, “Please don’t do this.” However, her pleas fell on deaf ears.
(v)Rape, by its very nature, is a violent offence. However, your offending was accompanied by additional violence threatened through words and actions. Whilst there is no evidence that the weapon was a genuine firearm, that matters little, as the victim believed it to be real.
(vi)The charge you have pleaded guilty to is a rolled-up charge. You are being sentenced for the totality of your offending, involving penetrating the victim’s vagina, both orally and with your penis.
(vii)Having penetrated the victim with your tongue, you completely ignored the fact she was crying and moved on to penetrate her with your penis.
(viii)You ejaculated inside the victim’s vagina. You were not wearing a condom. This created a risk of causing a pregnancy and transferring sexually transmitted infections.
(ix)As already indicated, there is a legal presumption that child victims will suffer physical and psychological harm.
43The combination of the above factors present in your offending, really does make this a most serious offence of rape.
44Further, I regard your moral culpability as being high. Your counsel did not rely upon any Verdins[15] principles or Bugmy[16] considerations to temper your moral responsibility for this offending.
[15]R v Verdins (2007) 16 VR 269.
[16] Bugmy v The Queen (2013) 249 CLR 571.
45I also regard Charge 2 as a serious and distinct offence. Having committed the abhorrent offending the subject of Charge 1, you made good your escape having threatened to kill the victim. You told her that you were leaving but would be back in five minutes. You added “If you move or if I come back and you’re gone, I’ll come for you” and “If you move out, I’ll shoot you.” You left, of course, with no intention to return. However, the threat that you uttered was taken seriously by the victim, who was unable to move or stand up. She waited for half an hour before deciding to leave and seek help.
46As your counsel, quite properly conceded, this very serious offending must be met by a substantial term of imprisonment.
Matters in mitigation
47The most significant matter in mitigation are your pleas of guilty at the earliest opportunity. You have not challenged the victim’s account in any way. You have facilitated the course of justice and taken responsibility for your actions. Your pleas of guilty have saved the community the time and expense of a trial and, more importantly, spared the victim from further trauma by having to relive the traumatic incident in court.
48Your pleas of guilty have been entered at a time when this Court is facing significant delays due to the pandemic. You are entitled to an additional and palpable discount.[17]
[17]Worboyes v The Queen (2021) 96 MVR 344, 356-7 [35]-[39]. See also Rossi v The Queen [2021] VSCA 296 [13].
49I accept that your pleas of guilty are demonstrative of genuine remorse. Mr Warren in his psychological report states:
… he appeared remorseful and certainly did not want to put the victim through having to give evidence. He expressed remorse for his actions and seemed disturbed that he could have committed such an act. This was because of what it did to his sense of who he is, but also because of the impact that it would have had on the victim, acknowledging that nobody should ever have to go through what the victim did.[18]
[18]See also Mr Warren’s report, [30].
50I was told that you are ashamed of what you have done and have had thoughts of suicide because of your offending. You are so ashamed that you have broken all links with your family.
51As I noted earlier, despite a lengthy criminal history, you have not previously committed any sexual offending.
52You have been in custody since 5 March 2021. I accept that the pandemic has made your remand more onerous. It is likely the onerous conditions will continue. You have been subject to a 14-day isolation upon entering prison and endured many periods of further lockdowns. I was to sentence you on 28 January 2022. The sentencing hearing was unable to proceed as you had contracted Covid. Upon testing positive, you were immediately placed into a two week isolation. I am told it involved complete lockdown in your cell without any access to fresh air. During the 14 day lockdown, you were allowed only one phone call. You are in an environment where you have little control which has not only caused you anxiety over contracting Covid but you have actually endured the experience of contracting the virus and the isolation that followed. You have had limited access to courses and treatment.
53Whilst in custody, you have been experiencing intrusive memories involving your past.[19]. You are in a protective unit and anxious of being attacked by other prisoners.
[19]Ibid [21].
54I accept that your time in custody has been and will continue to be more burdensome, with little social interaction and the burden of being in protection, as well as the additional hardship as a result of the pandemic.
55Mr Warren in his report notes your intrusive memories relating to your childhood. Whilst you display symptoms of Post-Traumatic Stress Disorder (‘PTSD’), they do not reach the threshold for a formal diagnosis. Mr Warren adds that intrusive memories can often be the most disabling and disturbing symptom. He recommends treatment of these symptoms.[20]
[20]Ibid [31].
56Mr Warren also recommends, quite obviously, counselling for your long standing drug addiction.[21]
[21]Ibid [31].
Sentencing considerations
57Any sentence must punish you and denounce your reprehensible conduct.
58General deterrence is an important consideration. The message that this Court sends, must convey loudly and clearly, that anyone who is minded to commit offending of this nature against a young and vulnerable child must accept the consequences of a significant term of imprisonment.
59The punishment must also act to deter you from reoffending in a similar manner. Protecting the community is also an important consideration.
60Mr Warren opines that your risk of sexual re-offending, should you be released before the age of 60, is above average. If released aged 60 or over, it would be within the average range. Your risk of re-offending in a manner as revealed by your criminal record, is high. I agree with Mr Simmons, that your prospects of rehabilitation must be considered to be limited.
Standard sentence
61Sentencing requires taking into account many different matters. The standard sentence of 10 years’ imprisonment applicable to Charge 1 is one such factor and no more. The sentence specified as the standard sentence is, ‘The sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness’.[22]
[22]Sentencing Act 1991 s5A(1)(b).
62The standard sentencing regime does not interfere with the instinctive synthesis approach the Court must carry out which involves distilling all relevant factors to arrive at the appropriate sentence.
63When sentencing on Charge 1, the Court must only have regard to sentences imposed in cases where the standard sentence regime applied.[23] I have had regard to the standard sentencing cases referred to me by the prosecution.[24] Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the court is required to consider.[25] Each case ultimately turns on its own particular facts and circumstances.
[23]Sentencing Act 1991 s5B(2)(b). The Court is not, however, precluded from considering principles established in past cases.
[24]Stamper (a pseudonym) v The Queen [2021] VSCA 323 (24 November 2021); Wright v The Queen [2021] VSCA 243 (2 September 2021); Nachar v The Queen [2021] VSCA 242 (2 September 2021); DPP v Herrmann [2021] VSCA 160 (11 June 2021); DPP v Beck [2021] VSCA 88 (7 April 2021); Todd v The Queen [2020] VSCA 46 (12 March 2020); Lockyer (a pseudonym) v The Queen [2020] VSCA 321 (9 December 2020); DPP v Drake [2019] VSCA 293 (10 December 2019).
[25]DPP v Dalgleish (2017) 262 CLR 428.
64The sentence on Charge 1 will be higher than the standard sentence in order to reflect the objective gravity of the offending as articulated earlier in these reasons, your high culpability, your personal circumstances and the matters in mitigation. In mitigation, your plea of guilty, accompanied by remorse, must attract a significant amelioration.[26]
[26]The Court has of course taken into account all the matters in mitigation, including lack of sexual priors and the burden of imprisonment.
Sentencing
65Having carefully considered all the matters in this case, I sentence you Mr Barboussas as follows:
66In respect of Charge 1, you are convicted and sentenced to 11 years and 9 months’ imprisonment.
67In respect of Charge 2, you are convicted and sentenced to 18 months’ imprisonment.
68In respect of Charge 3, you are convicted and fined $100.
69In respect of the summary charge, you are convicted and fined $250.
70Charge 1 will be the base sentence. Three months of the sentence on Charge 2 will be served cumulatively upon Charge 1.
71This makes a total effective sentence of 12 years’ imprisonment. I set a non-parole period of 8 years and 3 months’ imprisonment.[27]
[27]Sentencing Act 1991 s11A(4)(c).
Pre-sentence detention
72Pursuant to s18 of the Sentencing Act 1991, the period of 360 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
73Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to Charges 1 and 2 and been convicted of them, you would have been sentenced to a term of 16 years’ imprisonment with a non-parole period of 12 years.
Sex Offender Registration
74By reason of your finding of guilt on Charge 1, you will be subject to the requirements of the Sex Offenders Registration Act2004 and required to report for a period of 15 years. Documents regarding your reporting obligations will be sent to you in prison.
Disposal order
75Pursuant to s77(1) of the Confiscation Act1997, I grant the disposal order in respect of the cannabis seized.
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