Director of Public Prosecutions v Barlow
[2023] VCC 430
•14 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02115
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY BARLOW |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2023 |
DATE OF SENTENCE: | 14 February 2023 |
CASE MAY BE CITED AS: | DPP v Barlow |
MEDIUM NEUTRAL CITATION: | [2023] VCC 430 |
REASONS FOR SENTENCE
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Subject: Use a carriage service to procure a person aged under 16 and use a carriage service to transmit indecent communications to a person aged under 16.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Z. Hough | Office of Public Prosecutions |
For the Accused | Mr S. Collins | Furstenberg Law |
HER HONOUR:
1Ricky Leigh Barlow, you have pleaded guilty to three charges of using a carriage service to procure a person aged under 16 and one charge of using a carriage service to transmit indecent communications to a person aged under 16. The maximum penalty for the procure offence is 15 years and the transmission offence is seven years.
2The circumstances of your offending are set out in the Prosecution Opening for Plea dated 24 February 2022 (Exhibit A) and can be summarised as follows.
3You operated a Snapchat account rickyb00by80 (your Snapchat account) with a related email address and mobile number.
4Between 13 November 2020 and 14 November 2020, you used your Snapchat account to communicate with NW a 13-year-old female, who also had her own Snapchat account. You added her account and after some communications you asked her if she wanted to give you a blow job for $200. She replied that she did not know who you were, and questioned why she would want to do that. She did not reply to any other messages from you that night.
5The following morning you again communicated through Snapchat, the details are contained in paragraph 11 of Exhibit A. You again asked her if she wanted cash to give you a blow job. She told you she was 13 and questioned whether you cared about her age. You told her you were 20 (Charge 1).
6The next day you used your Snapchat account to communicate with SO who was aged 14 years and a friend of NW. She messaged that she was 14 years and questioned whether you minded that she was younger. She tried to make a voice call to you but you did not answer. You then had the exchange set out in paragraph 13 (Exhibit A) where you asked her to give you a blow job. She then blocked your account (Charge 2).
7On 20 January 2021, you used your Snapchat account to communicate with Emz or Emily James, who you believed to be a 14-year-old child, but was in fact an undercover police operative. You maintained you were 19.
8The details of your communications are set out in paragraph 16 of Exhibit A. You asked her if she was interested in making money by giving you a blow job. She responded that she was only 14 but you persisted in asking her if she was interested, and that you could meet up in your car. The exchange between you became antagonistic when you both refused to send images of yourselves and the communications ceased soon thereafter (Charge 3).
9The next day, on 22 January, you used your Snapchat account to communicate with Isy who you believed to be a 14-year-old child, but was in fact an undercover police operative. You maintained you were 20 years.
10The details of those communications are set out in paragraphs 19 to 26 of Exhibit A.
11During the conversation, you requested a selfie and she sent one. You asked her if she would give you a blow job and offered her $200. You informed her that you could teach her, when she revealed she had not done that before. She said she was not sure, and asked you to include a picture of yourself. You arranged to meet her at 'Maccas' in Frankston, though you also said she could do it in the car when you picked her up. You then discussed further sending pictures, and you provided a 'live pic' through Snapchat. After further conversation you told her that you were on your way. You then told her you were at the meeting place then the conversation ceased (Charge 4).
12On Friday 29 January 2021, police attended your home and seized your phone. You participated in a record of interview.
13You admitted that you had previously had your Snapchat account, but maintained that you had deleted it by March 2020. You admitted to owning a phone with the relevant number, though denied you had access to the relevant email account.
14You denied all knowledge of the names Emz and Isy associated with those communications on Snapchat. You also denied that you had your Snapchat account. You denied that you had sent the messages to Isy and maintained that you would not do such a thing as you had children. When shown your own image you agreed that it was a picture of yourself and taken in your car. You maintained that you did not know how old the photo was. You denied that the live image was an image of you taken on 22 January 2021.
Personal circumstances
15In respect of your personal circumstances, I received the following material:
i.Report from Mr Andrew Coutts, psychotherapist, dated 24 January 2023, who has been treating you since 2018; and
ii.Report from Catherine Stipis, forensic psychologist, dated 21 December 2021. The latter report provides a comprehensive account of your personal background and circumstances.
16You are currently aged 42. Your parents separated when you were young and your father is now deceased. Your mother resides in Cairns, Queensland. I was informed your father was affiliated with a motorcycle gang and was a heavy user of alcohol and drugs. Such activities drew police attention to your family when your parents were together. After they separated, you had little contact with him. You have a positive relationship with your mother, her partner and brother.
17You were married though you are now divorced. You have two sons aged 12 and 18, with whom you remain in regular contact. I understand they are aware of this offending. You commenced a new relationship in 2019 which continues and together you have a daughter aged 15 months. Your current partner has two other children, including a daughter aged 14 years.
18After completing school you undertook a four-year plumbing apprenticeship. You started a plumbing business in your mid-20s which remained as a going concern until you were remanded on 2 July 2022. The success of the business has varied over the years. You were forced to downsize operations because of the failure of contractors to pay your firm for subcontracting work. Much of the stress associated with the business related to your increased alcohol use. Since you have been on remand the business has failed. I understand your bail was revoked as you breached a bail condition prohibiting your use of social media. You pleaded guilty to that breaching offence and was sentenced on 4 July 2022 to seven days' imprisonment.
19As to your psychological functioning, you have been receiving counselling from Mr Andrew Coutts, a psychotherapist, since 2018. You had monthly sessions with him for anger management issues, anxiety and associated episodes of depression. Other issues that have been addressed included you having an alcohol abuse disorder. He opined that your relationship with your new daughter was a significant determinant in your medium to long term prospects of recovery, and that you should continue therapy.
20You informed psychologist, Ms Stipis, that you commenced drinking when you were 19. You did not think that you had any problems or related issues until about 2016, when you were experiencing difficulties in your business and your long-term relationship ended. You commenced using cocaine and your alcohol consumption increased in about 2020. You reported around this time, you were undergoing severe stress for a number of reasons including:
·Discovery your partner’s daughter had been sexually assaulted by her former partner;
·Impact of the COVID lockdowns;
·Your partner’s pregnancy; and
·Your cessation of anti-depressant medication.
21With these factors operating, you increased your alcohol consumption as a coping mechanism.
22Ms Stipis was informed by you that you do not watch pornography, that you have no particularly unusual sexual interests, and that you do not have a sexual interest in children or adolescent girls. Although you accepted that you had participated in the conversations, you were unable to explain why you did that, other than that it was 'more the fantasy of sexting not who was on the other end of the conversation'. You indicated you were not interested in actually meeting any of the girls, and did not make any effort to meet up with them.
23Ms Stipis opined that you suffer from an adjustment disorder with mixed disturbances of emotions and conduct with the onset likely in July 2020; and that you suffer a moderately severe alcohol use disorder.
24Ms Stipis’ conclusion about your use of alcohol and your offending was as follows at paragraph 104:
'Your abuse of alcohol around the time of the offending would likely not have impacted his offending behaviour (as he reported that he had not been drinking at the time of the offences) but, from his own account, his heavy daily use speaks to the level of stress he was impacted by. High levels of stress can impact cognitive functioning, and it is likely the stress affected his judgment, decision-making and increased his risk of impulsive, reactive, and poorly considered actions.'
25And later at paragraph 120:
'Alcohol use also leads to reduced self-inhibition and cognitive and behavioural control which can manifest as impulsive, reckless, disinhibited behaviour poor decision-making and impaired judgment, increasing your risk of poorly considered, uncharacteristic behaviour during the period when your alcoholic consumption was more frequent and heavier.'
26It was not submitted that your psychological pressures, stressors, and alcohol abuse disorder referred to by Ms Stipis were relied upon in a Verdins sense; rather, that they provide an explanation of the context of your offending. I take those factors into account in that manner.
27You have a number of prior convictions. The most serious are dated 17 September 2018 and are violent offences, committed in the circumstances of alcohol abuse by you. You were sentenced to a total effective sentence of six months and a CCO of 18 months. None of your prior matters are for sexual offending. I was also informed that you had some outstanding matters but again these were not related to sexual offending.
28The relevant principles of sentencing for this kind of offending are set out in the plea submissions filed on behalf of the Prosecution and were not disputed by defence (see paragraph 5).
Nature and circumstances of the offending – s16A(2)(a)
29Charges 1,3 and 4 carry a maximum penalty of 15 years imprisonment reflective of the seriousness with which Parliament views this offending.
30You communicated through Snapchat with four separate individuals each of whom you understood were 13 or 14 – the age difference of approximately 26 years was significant.
31You did not desist in the communications once you were informed of their respective ages, rather you encouraged them to continue, despite them expressing some hesitation.
32You offered financial enticements or inducements to meet up with you for sexual activity.
33In respect of Charge 4, you arranged to meet up with Isy and messaged her you were at where you had arranged. It was accepted by the Prosecution that you were not in fact at the meeting place.
34You initiated the conversations with most of the girls. Your offending was not isolated occurring on four different occasions.
35I accept that there are features that are often present in cases of this nature that were not part of your offending:
·You did not send obscene images to them or request them;
·The level of depravation in the communications was not comparatively high;
·the communications were more opportunistic than calculated or predatory;
·the communications with each victim were brief and were not protracted.
Guilty Plea - s16A(2)(g)
36I take into account your Guilty plea.
37You entered a plea at the first reasonable opportunity and have avoided the cost of a trial. No witnesses were required to give evidence. Your plea has a utilitarian value and is illustrative of your acceptance of responsibility for the offending. Your plea has also alleviated the burden on the Court with backlogs still operating due to COVID.
38I accept that your plea is indicative of remorse and consistent with your expressions to Ms Stipis of feeling shame and disgust at what you had done. Since you have been in custody COVID restrictions were in still in operation and some remain. As a consequence prison has been more burdensome for you with prisoner movement restricted and limited programs available
Rehabilitation and risk assessment
39I am mindful of s16A(2AAA) and the relevant matters to consider in sentencing an offender for Commonwealth child sex offences.
40As to your risk of future sexual offending, Ms Stipis concluded, following her assessment, that the risk was low. She said, at paragraph 121, that you did not display any evidence of sexual deviation, diversity, escalation or minimisation/denial of your sexual offending. However, interventions targeting your substance use and non-sexual offending would further reduce your risk of sexual and general recidivism,
41Ms Stipis concluded that you demonstrated good insight into the contributing factors to your offending and that you had some plans to address these factors. She said that these plans included finding settled accommodation, returning to your business, community volunteering, maintaining your fitness, continuing drug and alcohol counselling, and your therapy with Mr Coutts.
42Whilst on remand, you have used your time to complete courses; the Alcohol and Other Drugs program and stress management. You have also attended AA meetings.
43Based on the following matters, your counsel submitted that you had good rehabilitation prospects:
i.Plea of guilty and remorse;
ii.Lack of relevant prior convictions;
iii.Lack of any child sex exploitation material on any of your devices;
iv.Continued engagement with supports.
v.Risk assessment by Ms Stipis.
44In respect to this last consideration, the prosecution referred to Qutami [2001] NSWCCA 353 at [58]-[59] and submitted your statement that you had no sexual interest in young girls should be treated with some caution. After the hearing I was referred to by your counsel to Devaney [2012] NSWCCA 285 at [88] and the remarks therein. No request was made for Ms Stipis to be available for cross-examination by the prosecution and it was not submitted that her opinion as to risk assessment should be rejected. I accept her unchallenged opinion that you are a low risk of sexual reoffending. Further I accept that your rehabilitation prospects are good but dependant on you properly addressing your alcohol and offence specific issues through treatment and counselling.
Comparative cases
45I was provided with some comparable cases which are of assistance in providing guidance as to the relevance and application of sentencing principles and possibly to assist in determining a yardstick of the range of sentence available. Clearly each case however depends on its own facts.
46Offending of this nature causes significant harm to vulnerable members of our community, young teenage girls. Where social media is such a significant part of their lives, they are easily manipulated into engagement with others whose identity is not as they thought. The medium provides anonymity to offenders like you and allows you to deceive young people as to your true identity and intentions. General deterrence is the paramount factor in sentencing for offences of this nature because of the important public interest in promoting the protection of children. Specific deterrence is also of relevance given the number of occasions you engaged in this activity. Denunciation and just punishment are also relevant sentencing considerations.
47The prosecution submitted that I should impose a term of immediate imprisonment though did not dispute that it was within range of sentencing principles to impose a sentence at the conclusion of which you would enter a recognisance release order. Your counsel conceded that a sentence of imprisonment was warranted. It was submitted that taking into account the gravity of the offending and all the mitigating factors on your behalf that you should be released on completion of your prison sentence on your own recognisance.
48In respect of Charge 1, procurement charge, you are convicted and sentenced to a term of imprisonment of 12 months.
49In respect of Charge 2, the transmission offence, you are convicted and sentenced to a term of imprisonment of three months.
50In respect of Charge 3, the procuring offence, you are convicted and sentenced to a term of imprisonment of 18 months.
51In respect of Charge 4, the procurement charge, you are convicted and sentenced to a term of imprisonment of 18 months.
52In respect of Charge 4, that will be the Base Sentence.
53Charge 1, that is the 12 months, will commence six months before the expiration of the sentence on Charge 4. Charge 2 will commence two months before the expiration of the sentence on Charge 1. And Charge 3 will commence seven months before the expiration of Charge 2.
54That should end up with a sentence therefore of 3 years' imprisonment.
55I order that you be released in 18 months on a recognizance in your own undertaking to be of good behaviour for a period of two years.
56I am required to explain the purpose and consequences of making the recognizance release order that I have made. It reflects the gravity of your offending but also the mitigating factors to which I have referred in the reasons.
57If you are of good behaviour over that two-year period, that will be the end of the sentencing process as far as the court is concerned. If you are not, in all likelihood you will be bought back before this court and depending on the nature and seriousness of the transgression the court may either take no action, impose a fine, extend the period of your good behaviour, impose a different penalty or revoke the recognizance release order and send you back to prison for the remainder of your sentence.
58In respect of Charges 1, 2, 3 and 4, they are Class 2 offences under the Sex Offenders Registration Act. The period that you will be required to report under those provisions is for life.
59Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty, I would have imposed a sentence of four years and six months with a non-parole period of three years.
60Could I ask counsel please to check the sums in respect of that sentence?
61What it means, Mr Barlow, is that you will have 18 months to serve. Now, there should be some PSD as well. What is that please?
62MR COLLINS: Your Honour, I do not have the exact - - -
63HER HONOUR: You need to put your sound on, Ms Hough.
64MR COLLINS: I believe he has been in custody, Your Honour, since 22 July last year.
65HER HONOUR: Yes, I need days please.
66MR COLLINS: I need to check that. Yes.
67HER HONOUR: Ms Hough, you need to put your sound on.
68MS HOUGH: Apologies, Your Honour. (Indistinct words.)
69HER HONOUR: Yes.
70MR COLLINS: I think those calculations, Your Honour, are accurate. I do not have a problem.
71HER HONOUR: Yes. Thank you. Ms Hough, the pre-sentence detention; 214 days.
72MR COLLINS: Two hundred and fourteen. Yes. Thank you, Your Honour.
73HER HONOUR: All right. Is there anything else?
74MR COLLINS: I believe there might be an order for confiscation.
75HER HONOUR: The forfeiture order. Yes. And that is by consent?
76MR COLLINS: It is, Your Honour.
77HER HONOUR: Yes. That will be made. Anything else?
78MR COLLINS: I have nothing else. Thank you, Your Honour.
79HER HONOUR: Thank you.
80MR COLLINS: Thank you, Your Honour.
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