Director of Public Prosecutions v Barker

[2023] VCC 2210

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-22-00977

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN BARKER

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JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2023
DATE OF SENTENCE:	27 November 2023
CASE MAY BE CITED AS:	DPP v Barker
MEDIUM NEUTRAL CITATION:	[2023] VCC 2210

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              Plea of guilty – Common assault – Causing injury intentionally – Criminal damage – Possession of a drug of dependence – Koori Court – Bugmy – Verdins - Reasonable prospects of rehabilitation – Post-traumatic stress disorder

Legislation Cited: ss 5, 6AAA, 18 Sentencing Act 1991

Cases Cited:Bugmy v The Queen [2013] HCA 37; Honeysett v R [2018] VSCA 214; R v Morgan [2010] VSCA 15.

Sentence:                  Imprisonment for a period of 2 years and 6 months. Non-parole period of 1 year and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Mr J. Portelli	James Dowsley & Associates

HER HONOUR:

1Mr Barker, you have pleaded guilty to one charge of common law assault, one charge of intentionally cause injury, one charge of damaging property and one charge of possess drug of dependence, which was cannabis. The victim of your offending was your then partner Gabriela Gallagher.[1]

[1] A pseudonym.

2You also agreed to this court hearing and pleaded guilty to charges of commit indictable offence on bail and contravene conduct conditions of bail. 

Circumstances of offending

3At the time of your offending, you had been in a relationship with Ms Gallagher for approximately four months. This had ended about a week before the incident.  You had never resided together. 

4On 30 January 2022 there had been a discussion between the two of you that you would attend her home to collect your property and there was a general understanding that you would do so. 

5On 31 January 2022 at approximately 4:00 am Ms Gallagher was home alone sleeping in her bed. Due to the heat, before going to bed, she removed a metal rod from the window frame to allow the window to be open so that fresh air could enter the room. Although the window was open, the flywire screen was in place.

6You attended her home, walked to the back of the house, removed the flywire screen and entered her bedroom. 

7A short time later Ms Gallagher woke to you pulling her by the hair and dragging her out of bed. You were screaming at her saying, 'Where did the glasses come from? Where is he? Did you sneak him out the window or the back door?' Ms Gallagher had no idea what you were talking about. You started yelling abuse at her and calling her a 'slut' and 'whore'. (Charge 1 – Common Assault.)

8Over the next half an hour, as you searched for your jumper and keys, you continued to yell abuse at Ms Gallagher.

9Whilst in her bedroom you started to push and shove her. You shoved Ms Gallagher onto the bed and climbed on top of her in a straddling position. You put both hands around her neck and with all your body weight on her you began strangling her.

10Ms Gallagher felt defenceless. She tried to slap your arms to get you off her. Her vision started to become 'dotty and blurry', and she was gasping for air. She tried to speak saying, 'Get off me you’re hurting me', but her voice was faint because she could not breathe. She felt her neck was being crushed and she was in extreme pain. She heard you say, 'I wanna fucking kill you' and shortly after she fell unconscious. (Charge 2 – Intentionally cause injury.)

11Ms Gallagher does not know how long she was unconscious for. Upon regaining consciousness, she realised she had what she described as a 'Chinese burn' on her neck, and it was tender. She was still finding it difficult to breath.

12She noticed that the shower was running so she got up and closed the door to stop you regaining entry into the room. Upon realising this, you pushed on it and managed to force it open. You then punched the bedroom door causing damage whilst continuing to yell, asking about the car keys. (Charge 3 – Criminal Damage.) Ms Gallagher pleaded with you to leave as she was terrified. You found a satchel bag, yelled 'I’m fucking leaving' and then left the address.

13Ms Gallagher went to call police but noticed her second mobile phone and handbag had been taken. She then drove to the nearest payphone which was out of order.  Ultimately, she managed to obtain some assistance and was able to call Triple 0. This call was placed at 4.55 am. Police and ambulance attended, and Ms Gallagher was transported to Frankston Hospital for further treatment.

14Ms Gallagher underwent various CT and MRI scans of her neck vessels, brain and neck as there was a concern about a tear in the layer of the wall in the artery. On 1 February 2022, Dr Phillipa Brook medically examined her. The scan result noted that the 'flattening of the wall of the proximal internal carotid arteries bilaterally is concern for short segment dissection in this setting'. Ms Gallagher was commenced on aspirin to treat this.

15At the time of examination, Ms Gallagher reported tenderness on both sides of her neck and her right scalp towards the front, ringing in her ears, sore throat, and difficulty swallowing. Dr Brook observed no external injuries to the neck region other than some minor reddening. Dr Brook opines that the bruising to Ms Gallagher’s neck was from blunt force trauma. She also opined that the absence of external injuries to the neck did not exclude neck compression and pressure to the vital structures in this region.

16Dr Brook notes that the suspected internal carotid artery dissections found on imaging, along with the reported symptoms of neck pain, painful and difficult swallowing and ringing in the ears are of most concern in a history of strangulation. She opines that strangulation is a potentially life-threatening event, as it may take little sustained pressure over a very short period to cause unconsciousness and death.

17On 1 February 2022 you were arrested by police. Certain property was seized, including a small amount of green vegetable matter. (Charge 4 – Possess a Drug of Dependence.) 

18You were interviewed by the police and denied the offending, as outlined in the prosecution opening. 

Victim Impact

19Ms Gallagher has provided a powerful victim impact statement that outlines the profound impact that your offending has had on her. She states that since the offending the 'enjoyment of [her] life has deteriorated to the extent that [she does] not want to go out and enjoy being happy or laughing with others.' She has withdrawn herself socially; she is constantly fearful; she is burdened by nightmares and bad dreams. She states, 'I have suffered and still [am] suffering from the traumatic effects of [your] physical abuse.' She refers to some of her physical injuries and also to her anxiety and depression. She explains how debilitating it has been. She was unable to attend work. She has stopped a lot of physical activities that she used to enjoy. 

20She also details the financial impact of your offending, along with its ongoing social impact. She experiences 'fear, confusion, grief and loss of my life, hesitancy, embarrassment, and being very guarded amongst people along with helplessness and not feeling good enough about myself.' I take into account, Mr Barker, the significant impact that your offending has had on Ms Gallagher. 

Gravity of the offending

21In a case such as this, general deterrence, denunciation and protection of the community are prominent sentencing considerations. Ms Gallagher was entitled to feel safe in her home. Instead, she was awoken by verbal abuse and then physical violence at the hands of her former partner. You acted in a vicious and entitled manner and then subjected her to considerable violence.  I accept the prosecution submission that this is a particularly serious example of the charge of intentionally cause injury as it involved strangling Ms Gallagher which is an 'inherently dangerous act' and one that would be terrifying for the victim.  Your behaviour on this occasion was completely unacceptable and must clearly be denounced. Your offending was serious, and your moral culpability has to be viewed as high. Also, I note that you were on bail at the time of the offending and, further, it occurred during the operational period of a Community Corrections Order (CCO), imposed on 20 December 2021.  I accept that in all likelihood your actions were partly drug fuelled. Psychologist Ms Carla Lechner states that it is 'likely that being drug affected and therefore disinhibited contributed to your actions.' Of course, this is no excuse.

Plea of guilty

22Your plea of guilty entitles you to a substantial discount in sentence. Your guilty plea has utilitarian benefit to the community and has spared Ms Gallagher further trauma in giving evidence. The plea has added utility in the time of a backlog in the courts due to the Covid pandemic. I also accept that your plea of guilty is demonstrative of some remorse. Further, it appears that you have reflected on your behaviour in your discussions with Ms Lechner. She writes, 'He acknowledges that his actions towards her were abusive, extremely inappropriate and potentially dangerous.  He is deeply ashamed of his actions and expressed a willingness to engage with treatment services.'

Personal circumstances

23Your personal circumstances were outlined by your counsel and in Ms Lechner’s report. In brief, you are 37 years of age and were born in Darwin, Northern Territory.

24You have ten siblings in total. You are the second of four children born to Rhonda Foster and Michael Barker. You have four half-siblings on your mother’s side and three half siblings on your father’s side. Your maternal grandmother was part of the stolen generation. Your community are known as Kamu Gamour people, connected to the Daily River which is around two hours southwest of Darwin.  She was enlisted into servitude for a white family in the Northern Territory.  There is apparently a documentary called 'Extinct but Going Home' which details the immense difficulties the family experienced. Your paternal grandfather was a prominent Queen's counsel. 

25Your parents separated when you were around eight years of age. Your father relocated to the Philippines, where he continued to work in the film industry. You spent around four years living with your father overseas. You attended at an international school. You learnt to speak in native Filipino language but did struggle academically. 

26You were physically abused by your father, and you recount many occasions where he would hit you and be verbally abusive towards you.  Your stepmother was also abusive towards you.  In addition, you were the victim of further abuse as a child where the perpetrator was someone close to you.   

27You returned to Darwin when he you were around 13, completing Year 9. As Ms Lechner puts it, 'your formative years were characterised by frequent moves of home and school, change of primary caregiver and strong feelings of neglect, rejection and abandonment.'

28You then moved to Sydney to complete Year 10 at Gilroy College in Castle Hill. You left partway through your Year 10. At around 21-22, you commenced a traineeship in the mining industry in Darwin and remained working in this field for around seven years. As part of this work, you travelled to Western Australia to work at various mines. You then moved to Tasmania to develop a whiskey distillery. Also, you enrolled in an Aboriginal history course and undertook your Year 12 equivalent at the University of Tasmania in Launceston. The whiskey distillery plans ultimately fell through, so you decided to come over to Melbourne on the recommendation of your brother. 

29You immediately went to work at Willum Warrain, which is an Aboriginal association in Hastings. You worked on a range of matters, including maintaining the grounds, supporting the elders and otherwise engaging with the wider community.  Apparently you were featured on the ABC news for your efforts within this group. 

30In terms of your drug use you first began using amphetamines at the age of 18. You describe observing your mother drinking and using drugs while you were a child. You describe yourself as an 'on and off' drug user throughout your life.

31Your plans, at least in the immediate future, are to remain in Victoria.  Your mother continues to live in Darwin. She suffers from bowel cancer. You have a hope of being released from custody in order to travel home to see her. 

Principles of Bugmy

32Your counsel submits that in your case the Bugmy principles are enlivened.[2]  The High Court in Bugmy recognised that a deprived and disadvantaged background such as yours may compromise a person's capacity to mature and to learn from experience. Further, '… the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision.'

[2] Bugmy v The Queen [2013] HCA 37.

33I accept that the Bugmy principles, as advanced by your counsel, have application in your case and are relevant to sentencing and an assessment of your moral culpability.

Mental health & cognitive functioning

34In her report, Ms Lechner also diagnoses you with stimulant use disorder in remission and complex post-traumatic stress disorder.  She opines that your PTSD is connected to the trauma which you were exposed to in your formative years.  Symptoms of complex PTSD include chronically low self-esteem, interpersonal mistrust, emotional and behavioural dysregulation, hypervigilance and avoidance, through drug use. She also raises the possibility of an ADHD diagnosis and recommends further exploration of this.

35Your counsel submits, and I accept, that your mental health conditions give rise to consideration of Verdins principles namely Limbs 5 and 6.[3]  Ms Lechner opines:

'… Mr Barker has very limited access to the psychological support that he needs whilst in custody.  This is having a deleterious impact on his mood with Mr Barker reporting a decline in his mood and an increase in anxiety. The inherently violent and threatening nature of the prison environment aggravates his post-trauma symptoms, particularly his hypervigilance and intrusive thoughts.'

Other relevant mitigatory matters

[3] R v Verdins [2007] VSCA 102.

Participation in Koori Court

36Mr Barker, you elected to have your matter heard in the Koori Court and you participated in the sentencing conversation.

37In assessing the weight to be given to this mitigating factor I have considered a range of matters including your participation in the conversation; the insights you demonstrated; your expressed motivations and intentions to reform. You were questioned and challenged by the Elders as to your offending, your degree of empathy and your motivations to change. I accept that this would have been challenging, and to adopt a word you used, 'overwhelming'. On my assessment, you actively and genuinely participated in the process; indicating that you wanted to go through the process so that your voice could be heard.[4] You expressed shame for your offending, a desire to give back to the community and to take ownership for your behaviour. You told the Elders that you have been working in custody and also produced art that has been sold through the Torch project. You referred to your previous experience working in a men’s group and helping to educate young people about indigenous cultures. You presented as connected to your culture and as someone who is motivated to make positive changes in their life.

[4] Honeysett v R [2018] VSCA 214; R v Morgan [2010] VSCA 15.

Prospects for rehabilitation

38Your prospects of rehabilitation are reasonable but contingent on you remaining drug free and accessing appropriate treatment and support.  Ms Lechner notes that you are keen to engage with treatment services to address your addiction issues and your dysregulated behaviours.  

39You have a relevant prior criminal history across various states, though not for similar matters as the charges presently before the court. Your history commences in 2006 and it is mainly for dishonesty, drug-related and other matters, and you have received a range of dispositions.  As already noted, on 20 December 2021 you were sentenced on a consolidation of matters, including contravening a family violence order, criminal damage, possess methylamphetamine and possess material for trafficking and you were convicted and sentenced to a 24 month community corrections order. I also note that you have outstanding matters currently listed in the Magistrates Court.

40Your ambition is to relocate to Geelong where you have an uncle and your intention is to work with the local Aboriginal community. You have also pursued, as I have noted, your painting whilst in gaol and you have a desire to continue with this work, engaging in the Torch program at the Marngoneet prison. You have already sold approximately seven pieces.

41Whilst in custody, you have obtained a welder’s qualification. You have renewed your truck licence and obtained a white card. You regard yourself as 'work ready'. You have been told that work is available to you in the construction industry on your release from custody.  You told the MHARS clinician that in custody you have remained abstinent from substances and have completed programs with specific targeting of drug and alcohol use. 

Sentencing Purposes

42The basic purposes, Mr Barker, for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

43In sentencing you I also take into account the principles of proportionality, parsimony and totality. I must ensure that the sentence imposed overall reflects your criminality and circumstances.

44I also take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant in your case. I have also taken into account the maximum penalties that apply to each charge. I have had regard to the current sentencing practices for the offences to which you have pleaded guilty to, in particular intentionally cause injury. I have also considered the cases referred to by the prosecution. They have assisted in the application of general principles. They make clear that general deterrence, denunciation and community protection are prominent considerations in offending of this nature. Of course, each case turns on its own particular facts and circumstances.

45As for sentence, the prosecution submits that your offending calls for a term of imprisonment, structured by way of a total effective sentence. Your counsel accepts that a term of imprisonment is warranted but that in all the circumstances a combination sentence is appropriate, given the substantial period of time you have served on remand.  I had you assessed for a community corrections order and you were assessed as suitable, though with 'some obvious concerns'.  It was noted that you are currently in breach of your last order but that the assessment was focused on what you would do differently and you presented as motivated to create some 'much needed stability in [your] life.'  Further it was noted that while you are linked in with the prison Re-Start Program and plan to reside in Geelong, you currently have no fixed place of address.

46As a general proposition I accept that a term of imprisonment with a community corrections order, even in cases of objectively serious offending, is capable of reflecting and balancing all relevant sentencing purposes.  However, after careful consideration, given the circumstances and gravity of your offending, I have concluded that the relevant sentencing principles, in particular just punishment, denunciation and general deterrence cannot be sufficiently served by the making of a CCO in combination with a prison sentence, even with onerous conditions.  All the mitigating factors that have been advanced on your behalf will be reflected in the sentence imposed, and in particular the non-parole period, but I have concluded that the only just and appropriate sentence in your case is one of imprisonment, structured by way of a head sentence. 

Sentence

47Synthesising all relevant matters, you are convicted and sentenced as follows –

48Charge 1, common assault, seven months' imprisonment.

49Charge 2, intentionally cause injury, 26 months' imprisonment, which is two years and two months.

50Charge 3, criminal damage, six months' imprisonment.

51Charge 4, possess drug of dependence, cannabis, small quantity, you are convicted and discharged.

52The summary offences, committing an offence on bail and contravening a conduct condition, you are sentenced on each charge to one month imprisonment.

53Orders for cumulation are as follows -

54Charge 2 is the base sentence.  I order that you serve two months on Charge 1, cumulative, and two months on Charge 3, cumulative.

55The other sentences imposed will be served concurrently.

56That totals an effective sentence of two years and six months' imprisonment and I set a non-parole period of one year and six months.

57I declare pursuant to s18 that you have served 433 days' imprisonment.

58Pursuant to s6AAA, but for your plea of guilty I would have sentenced you to some four years and two months with a non-parole period of three years.

59Counsel, is there anything further?

60MR ROPER:  No, Your Honour. 

61MR PORTELLI:  As Your Honour pleases.

62HER HONOUR:  Mr Barker, I have sentenced you to a total of two and a half years, non-parole period of one and a half years. You have your 433 days, it will be a matter for the Parole Board as to once you are eligible for parole, that process will be in their hands.  Mr Portelli, you probably have a moment, we have stood down our other matter, if you wish to speak to Mr Barker – although he appears to have left the room. Mr Barker, just wait a moment and you can speak to Mr Portelli for a moment. Thank you, counsel.  We will adjourn.

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