Director of Public Prosecutions v Barker
[2018] VCC 1844
•9 November 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT SITTING IN MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02241
CR-18-01018
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW BARKER (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June and 30 October 2018 | |
DATE OF SENTENCE: | 9 November 2018 | |
CASE MAY BE CITED AS: | DPP v Barker | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1844 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Mr M. Page | Emma Turnbull |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the accused, victims and family or witnesses.
HER HONOUR:
1 Matthew Barker[1], you have been found guilty by jury verdict of three charges of rape. The maximum penalty applicable to each charge is 25 years’ imprisonment.
[1] Matthew Barker is a pseudonym
2 You have also pleaded guilty on Indictment H10514138.2 to one charge of indecent act with or in the presence of a child under 16. The maximum penalty applicable to that offence is ten years' imprisonment.
3 The complainant in your trial was Sarah Ewing[2]. Those crimes arose out of events which took place on 7 February 2009 at Ballarat. The complainant in Indictment H10514138.2 is Lisa Foley[3] and your offending occurred between June and December 2012 at Wendouree.
[2]Sarah Ewing is a pseudonym
[3] Lisa Foley is a pseudonym
4 I turn first to the trial. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been ventilated during the course of the trial. Suffice to say the jury accepted the evidence of the complainant referable to the three charges on the indictment.
5 I turn to a brief summary of that offending. On 7 February 2009, you asked to meet Sarah in the grandstand at Ballarat oval. Sarah attended arriving at approximately 10-11:00pm. She met you and you appeared to be happy to see her, offering her a cigarette, giving her a hug and saying you had a surprise for her.
6 Sarah was wondering what the surprise was. You told her she had to have a blindfold on. You then put a blindfold (a man’s tie as I understand it) on her. Sarah described that being placed over her eyes. You then went behind her and started to ‘feel her up’ and touch her breasts. She asked you not to do that. You took her arms and put them behind her back and tied them with another tie. You placed another tie over her mouth, tightly around her head, with the tie inside her mouth.
7 Sarah gave evidence that after you put the tie in her mouth, you pushed her down onto the seat, pulled down her underpants and inserted your penis into her vagina (Charge 1). Sarah could not see because her eyes were covered, and also had the gag in her mouth. She said she ‘couldn’t do anything and just put up with it and waited till it was over’.
8 You turned her around so she was facing towards the oval and put your penis in her lips (Charge 2). When putting your penis into her mouth, Sarah indicated ‘no’, by moving her head from side to side.
9 Sarah thought you would untie her and she could go, however, you turned her back around. Sarah heard a rustling sound and you put your penis into her anus (Charge 3). She described the pain as horrendous.
10 Sarah later saw a condom on the ground after you untied her. You took the gag and ties off one by one, from her eyes then her mouth then her wrists. Sarah did not recall any conversation with you but went in search of her underpants which you had flung on to the ground. Before she left you kissed her. Sarah said she was in a state of shock. She did not agree to any of the sexual conduct in the grandstand.
11 The defence in your trial was the alleged offending did not occur. That you did not attend at the grandstand that night, and nor did you meet Sarah at the grandstand. Nor was there any sexual penetration of her at that grandstand by you.
12 By their jury verdict, the jury accepted you were at the grandstand and committed the offences on the trial indictment.
13 There are a number of aggravating features of your offending conceded by your counsel involving Sarah Ewing. A degree of planning, that no condom was used in relation to the penile/vaginal and penile/oral penetration of Sarah, that your offending involved tying her up, gagging her and also pushing her over the chair in the course of committing one of the offences of rape. Your lack of use of a condom relevant to Charge 1 is, of course, an aggravating feature of it (R v Khem[4]).
[4] (2008) 186 A Crim R 465
14 There was also in your offending involving Sarah violence beyond that necessary for the particular charges before me.
15 Your counsel, Mr Page, also agreed that the offending occurred in the context of the relationship of the text messages that were sent by you to Sarah. Some of those messages, I agree with the prosecution, are abhorrent. There was also some planning therefore involved.
16 You proceeded to trial regarding these offences and therefore I find that you are not remorseful for your offending.
17 I turn then to the summary of the offending in Indictment H10514138.2 to which you have pleaded guilty. The complainant, Lisa Foley, was 10 years of age at the time of your offending and you were 51.
18 The complainant and your daughter, Andrea Barker[5], were close friends during primary school until your daughter left for secondary school.
[5] Andrea Barker is a pseudonym
19 In the second half of 2012, Lisa and your daughter, Andrea, were spending a lot of time together. On one occasion that summer Lisa went to stay the night at your home in Wendouree. It was the only time she stayed overnight. Lisa had, however, been to that house once approximately a month prior.
20 On the day of Lisa’s stay, you had drunk multiple cans of mixed drinks. Lisa and Andrea went into Andrea’s bedroom, sat on the bed, talked and played on their iPods.
21 You went into the bedroom and sat next to Lisa on the bed and asked Lisa about school. You then leant over and kissed Lisa on the lips (Charge 1, indecent act with a child under 16). Lisa could feel your teeth on her bottom lip.
22 Later that evening you offered both Lisa and Andrea $40 to put blindfolds on and walk around the house with chilli in their mouths. Both the complainant and your daughter refused to do so.
23 Lisa and Andrea later went into the bathroom to have a bath. Lisa wore her bathers in the bath and Andrea her underwear. You entered the bathroom. Lisa tried to cover herself with bubbles. You said to her ‘Don’t be shy, stand up’. Andrea told Lisa not to stand up and you then left the bathroom.
24 After the bath, they both climbed up on the roof to get away from you. Both were scared. You, however, got a hose and squirted them until they agreed to come down.
25 Lisa and Andrea again went into Andrea’s bedroom and both messaged Lisa’s mother via Facebook asking for Lisa to be picked up. They explained it was because you were drinking and yelling.
26 Lisa’s mother was unable to collect her but told Lisa that her aunt could pick her up if things got really bad. She also told the girls to call police if need be. In the end, Lisa and Andrea stayed in Andrea’s bedroom and shared the same bed. Lisa’s mother went round the following morning and collected Lisa.
27 On 23 October 2014, Lisa told her mother you had kissed her on the mouth. The following day, 24 October 2014, Lisa reported your offending to Ballarat Police Station and made a VARE statement.
28 You were interviewed by police on 29 October 2014 regarding Lisa’s allegations. In that interview, amongst other things, you denied going into Andrea’s bedroom and kissing Lisa on the lips. You denied going into the bathroom while Lisa and Andrea were in the bath. You said Lisa and Andrea made up the allegations because they were angry you would not take them to McDonald’s that night in 2012.
29 Mr Page submitted that you concede and accept that the prosecution case in relation to Lisa as outlined in the prosecution opening is accurate. However, you do not accept the verdict of the jury in relation to the charges involving Sarah, maintaining you did not commit the offences. You have, however, stated that you will accept the sentence and undergo your term of imprisonment.
30 Turning to the aggravating features involving the offending and Lisa, Mr Page agreed there was a breach of trust, not only of Lisa, but also Lisa’s mother, who trusted her daughter in your care. Also, the significant age difference between yourself and Lisa, she was 10 years of age at the time of your offending and you 51.
31 You have pleaded guilty to this charge on 14 May 2018 and you are entitled to have that taken into account in your favour in mitigation of sentence, and I do so.
32 Regarding your plea of guilty to the offending involving Lisa, you initially pleaded not guilty to that offending at the committal. There were originally three complainants on the one indictment, two being Sarah Ewing and Lisa. The prosecution made a decision to file a separate Indictment relating to Sarah Ewing and a decision was ultimately made to discontinue the charges involving Andrea Barker.
33 The prosecution conceded that once the matter entered the indictable stream and counsel became involved, discussions then occurred in relation to progress of this plea indictment.
34 You pleaded guilty to your offending involving Lisa as soon as possible after the trial of Sarah Ewing had concluded, well prior to the trial involving Lisa being listed to commence. The prosecution concedes they knew it was likely there would not be any trial in relation to Lisa once the verdict had been delivered in relation to your offending involving Sarah Ewing.
35 In relation to Lisa, you have pleaded guilty and I accept you are remorseful for that offending. Further, your plea of guilty has utilitarian benefit and, in particular, Lisa has not been required to be cross-examined in relation to her allegations.
36 The community by your plea of guilty to that charge has been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence at your trial, and in particular the complainant, Lisa Foley.
37 As I have said, I accept your plea of guilty to that charge is indicative of remorse by you for that offending, despite your denials to police in the record of interview on 29 October 2014.
38 The victim of your offending, Sarah, has suffered considerably as a result of your offending.
39 Sarah’s statement is eloquent and it is difficult to do justice to it in these brief sentencing remarks. I have, however, read that statement and it was also read into the transcript. Sarah states that every time she thinks about what happened to her she has an anxiety attack. Remembering the night of your offending brings her to tears and she feels physically sick.
40 At the time of your offending she was in shock and suffered physical and emotional pain and distress. She now had little confidence in relationships and did not like being touched. Out of self-preservation, she ‘filed away’ the incidents of that night, hoping to never have to access them again, however, when she made a statement to police in 2016, it was back ‘as raw as ever’.
41 After her statement to police, Sarah pushed the memory away again as she did not want to work through the horrific memories of your offending.
42 Before the trial, Sarah had great difficulty reading her police statement, crying and feeling physically ill to the point of vomiting.
43 Since giving evidence, Sarah had suffered nightmares, body twitches, headaches, chest pain and endless tears. She was seeking assistance from a counsellor and also during the process of the court hearings had assistance from those involved in it. She had not advised any family or friends of your offending. She was fearful that if they were aware of your offending they would not want to be around her. She felt alone and isolated.
44 Sarah did not believe she could be comfortable in her body again.
45 Sarah just wanted to forget what had happened to her that night and for the memories to be banished. She did not feel that she was ‘me’ any more. She believed she would never be whole again.
46 Lisa was given the opportunity to provide a victim impact statement, but has not done so.
47 Also relevant is the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[6], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[7] (allowing of course for the different factual circumstances from those cases to yours).
[6] [2006] VSCA 60
[7] [2003] VSCA 109
48 The effects upon a victim are a relevant sentencing consideration, see s5 and s8 Sentencing Act 1991, but I am conscious I must not allow the effects upon a victim to swamp the sentencing process.
49 Your initial plea hearing was on 27 August 2018, however you were unable to attend court due to your ill health. I was advised by Mr Page, who appeared on your behalf that day, that you were then in the hospital wing at Ravenhall Prison.
50 As a result of your ill health, you had not been brought into court. Mr Page, therefore, sought your plea hearing to be adjourned to 30 October.
51 I note that at your initial intended plea hearing on 27 August 2018, your sister was here to support you, having travelled from Queensland for that hearing and a reference from her was also provided. I also note that on 27 August your pastor was at court to support you and there is also a reference from him.
52 You are to be sentenced as a serious sexual offender in relation to Charge 3 on the trial indictment and on the charge of indecent act on the plea indictment. As such, s.6D and s.6E Sentencing Act 1991 applies. There has been discussion of totality when so sentencing most recently. I discussed that briefly with counsel, but I have been assisted in particular by the decision of Zhao v R[8]). In that decision, the court address totality, in particular when dealing with offending on the same occasion, as is your case on Charges 1, 2 and 3 on the trial indictment.
[8] [2018] VSCA 267
53 Mr Page agreed you fell to be sentenced as a serious sexual offender on those two charges to which I have just referred.
54 At the time of your plea hearing, you had spent 173 days in custody by way of pre-sentence detention up to and including 29 October 2018.
55 Mr Page also conceded regarding the Sex Offenders Register that such classification and duration applied to you and I shall refer to that and make that order shortly.
56 Mr Page submitted he did not have any psychological material to put before me, but from his dealings with you he did not ascertain any psychological issues with you, nor any drug or mental health issues.
57 Mr Page prepared a written outline of submissions and addressed them during the course of the plea hearing, including your personal circumstances. You are 57 years of age at sentence, born in Melbourne.
58 You have three siblings; a sister, who lives in Queensland. You are estranged from your other two siblings.
59 Your parents separated when you were 4.
60 You were educated at Spotswood Primary and Maribyrnong High School, where you finished Year 11 and then joined the air force.
61 You served in Queensland as a defence guard in Amberley, Queensland, until age 22.
62 When 22 you qualified as a chef at William Angliss College and worked as a chef since at various food venues.
63 You had a ten-year relationship with your ex-wife, who you met in 1990, that relationship ending due to your drug use. There are five children of that relationship and you maintain a good relationship with three of the children who visit you in custody. In relation to the other two children, your son was sentenced in relation to offending against Andrea Barker and spent some time in custody with you. He had been transferred to another prison and therefore you do not see him. You do not have a relationship anymore with Andrea.
64 After you separated from your ex-wife you moved to Maryborough and leased a hotel kitchen, then obtained employment and became a supervisor at an abattoir in 2001, where you remained for two years.
65 In 2003 to 2004 you obtained full custody of your children, and moved to Ballarat to become a full-time dad to them. You occasionally did volunteer cooking.
66 Your relationship with Sarah was of short duration, being roughly October to February, with a break just prior to Christmas when Sarah left you.
67 Mr Page submitted that despite this offending before me you had otherwise been productive in the community, having relatively limited priors. I note the prior matters do not relate to Sarah or Lisa and are somewhat dated, and I shall return to these later.
68 There were three references before me, one from your mother dated 29 May 2018. She described you as a caring and respectful man who had provided her with a lot of assistance when she became ill. She was not able to visit you in prison due to her ill health. She would always support you.
69 There was correspondence from your sister undated. She described you as fun-loving, caring, affectionate and a happy-go-lucky boy, with good moral standards. You had always tried to help your family and friends whenever you could.
70 You had been involved in the past with sporting clubs such as cricket and football, supporting and cooking barbeques for them. You had also helped with the Energy Breakthrough, when your four boys were competing in it. You and she were very close as you were growing up. She currently lives in Queensland, and often comes to Melbourne to see family. She referred to your mother having a bad heart turn in mid-January and that you had been helping her at that time. Your sister was willing to assist you as much as possible.
71 There was also correspondence from Dr Neil Davies, pastor, Church of Christ. He described you as having been part of the Church of Christ for a period of approximately two years, with the last 12 months at the Church. You were baptised in April 2018 and were received as a member of the church.
72 Prior to your incarceration you had regularly attended services and were quick to volunteer in the various ministries of the church. You also assisted preparing church dinners.
73 In the opinion of Dr Davies, you had responded positively to church counselling and teaching. The church would continue to provide you with support. Mr Page submitted, and I accept, you will have support whilst in custody with visits from family members, including your children, and also, upon your release, family and your church. He urged your prospects for staying out of trouble were good and that your rehabilitation prospects were optimistic in that regard.
74 Mr Page referred to your health issues, which were currently being managed in prison. You have in the past, 2015, had a kidney removed and had been advised your remaining kidney was having difficulty with fluid. Since the Queen’s Birthday this year you had had a catheter and you still do. I was advised that later in the week of your plea hearing you were going to see a doctor to explore whether or not it could be removed; apparently not removed.
75
Reference was also made to another medical condition referred to within
Mr Page’s submissions (Exhibit 1, paragraph 6). Mr Page was also not submitting that issue could not be managed in custody.
76 Mr Page submitted that there was some hardship to you, however, in that you would have to attend hospital or doctors because of your various medical conditions, but he conceded you could be managed whilst you were in prison.
77 Further details in relation to your health were set out within his written submissions (paragraphs 4-9). I accept there will be some difficulty for you, albeit it can be managed in prison, compared to a prisoner without your health issues.
78 He urged, and I accept, this is your first time in custody.
79 Turning to delay, Mr Page submitted the relevance of delay in your case was that you had demonstrated some rehabilitation. In brief, he submitted that the offence before me in relation to Sarah Ewing occurred in 2009 and the allegation in relation to Lisa Foley in 2012. Statements were made by Sarah Ewing and Lisa Foley in 2016. Mr Page submitted, and I accept, that from 2012 until 2018 there had been a delay in these charges being finalised, and in that intervening period you demonstrated some rehabilitation by not offending, in particular since 2012. Further, from 2016 the matters had been hanging over your head for approximately two years and you had not offended within that time.
80 You have admitted three prior court appearances. At Sunshine Magistrates’ Court on 21 June 1990 on a charge of recklessly causing injury, the matter was adjourned on a good behaviour bond. Your next appearance at Ballarat Magistrates’ Court on 6 July 2004 for breaching an intervention order and, with conviction, you were fined $150. Then an appearance at Ballarat Magistrates’ Court on 5 May 2005 for breaching an intervention order and, with conviction, fined $600. I note that none of those prior offences involved sexual allegations and that they are somewhat dated.
81 Mr Page conceded there was a need for general and specific deterrence when sentencing you and that ultimately a custodial sentence would be imposed. He urged, however, it not be crushing. You instructed you simply wanted to serve your sentence and then ‘get out of prison’.
82 Mr Doyle, who appeared for the prosecution submitted your offending was very serious, in particular in relation to Sarah Ewing. He referred to the aggravating features. In addition to the matters previously mentioned, also to humiliation of her by your offending having occurred in a public place which caused her to ‘freak out’. He referred also to restraints being used, including a gag, and that despite such she nevertheless tried to manifest her lack of consent by shaking her head, which you ignored. Further, Sarah Ewing described excruciating pain in relation to the penile/anal penetration. Overall, he submitted, this was a very serious incident of rape. I agree.
83 Turning to your rehabilitation prospects, Mr Doyle referred to concerning text messages sent to Sarah Ewing by you and your prior history, which indicated you had some difficulty with relationships. The messages he submitted reflected a degree of manipulation and emotional violence within them, with a focus on sexual conduct. That, he urged, was of concern regarding your future relationships.
84 When assessing risk, he referred to the lack of expert report having been provided.
85 Mr Doyle conceded appropriately that some time had passed without any further allegations of sexual or other offending by you.
86 Mr Doyle submitted there was a need for general deterrence, specific deterrence, just punishment and denunciation of your conduct.
87 Regarding your rehabilitation prospects, I have guarded optimism, although I accept no offending since 2012. You have not, however, addressed your relationship issues and clearly you have some. When sentencing you, however, I must seek to maximise your chances of rehabilitation, as they may be.
88 As well as matters personal to you, including your prospects of rehabilitation, as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
89 There is also the need for specific deterrence when sentencing you, as you do have a prior criminal history, although I note the limited relevance of it. You do, however, have two victims of sexual offending before me, an adult and a child victim. Your offending against Sarah Ewing, albeit on the same occasion, involved three serious offences involving different types of penetration.
90 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I do not seem to have a report in that regard.
91 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
92 You fall to be sentenced on Charge 3 on Indictment H10514138.1 (CR-17-02241) and on Charge 1 on Indictment H10514138.2 (CR-18-01018) as a serious sexual offender and I direct that be entered into the records of the court relevant to those two charges.
93 When sentencing you I take into account the principle of totality.
94 I sentence you as follows.
Indictment H10514138.1
95 On Charge 1, you are convicted and sentenced to 7 years’ imprisonment.
96 On Charge 2, you are convicted and sentenced to 7 years’ imprisonment.
97 On Charge 3, you are convicted and sentenced to 7 years’ imprisonment.
Indictment H10514138.2
98 On Charge 1, you are convicted and sentenced to 6 months’ imprisonment.
99 I order the following in relation to cumulation and concurrency.
100 Charge 1 on Indictment No. H10514138.1 is the base sentence.
101 I direct that 6 months of Charge 2 be served cumulatively upon Charge 1.
102 I direct that 6 years and 6 months of Charge 3 be served concurrently and 6 months cumulatively upon Charge 1.
103 On Indictment H10514138.2, I direct that 3 months of Charge 1 be served concurrently and 3 months cumulatively upon Indictment H10514138.1.
104 That results in a total effective sentence of 8 years and 3 months’ imprisonment and I direct you serve a period of 6 years before you are eligible for parole.
105 Pursuant to s.6AAA Sentencing Act 1991, in relation to the charge of indecent act with a child under 16, had you pleaded not guilty to that charge but been found guilty of it, I would have sentenced you to a term of imprisonment of 14 months with a non-parole period on that offence, if it was on its own, of 8 months.
106 Pursuant to s.18(4) Sentencing Act, I declare you have spent 183 days in custody (up to and including 8 November 2018) by way of pre-sentence detention, and I direct that that be entered into the records of the court.
107 Also, I should indicate that the periods of cumulation are upon each other and upon the base sentence, for clarity.
108 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act and I make the order in the terms sought. It will be for a saliva sample and I do so on the basis of the seriousness of your offending and your prior court appearances. I must advise you the authorities may use reasonable force in order to obtain that sample.
109
You will also be required to report pursuant to the Sex Offenders Registration Act for a period of 8 years, such being mandatory. As previously stated,
Mr Page conceded such applied to you. At the end of these sentencing remarks Ms Jackson, my associate, will approach you with the documents, asking you to sign in relation to the register. You are not being asked by her whether or not you want to be on the register or not, I have already made that order, you are simply being asked to acknowledge receipt of the relevant paperwork so that you know what it is all about.
110 Any other orders?
111 COUNSEL: No, Your Honour.
112 HER HONOUR: What about the PSD?
113 MR DOYLE: The PSD is correct.
114 HER HONOUR: You agree with that?
115 MR PAGE: I do, Your Honour.
116 HER HONOUR: All right. What is coming out now is a copy of all the relevant paperwork to do with the Sex Offenders Register and you might when you go back just explain to Mr Barker he is just being asked to acknowledge receipt of them. If he does not want to sign them that is all right, Ms Jackson has to ask him anyway.
117 MR PAGE: Yes, Your Honour.
118 HER HONOUR: Is there anything further?
119 COUNSEL: No, Your Honour.
120 HER HONOUR: Thank you both very much for your assistance.
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