Director of Public Prosecutions v Barlow
[2017] VCC 1554
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-17-00068
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V CRAIG BARLOW |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 19 October 2017 | |
DATE OF SENTENCE: | 19 October 2017 | |
CASE MAY BE CITED AS: | DPP v Barlow | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1554 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Bourke | Office of Public Prosecutions |
| For the Accused | Mr I. Polak | Papa Hughes Lawyers |
1
HER HONOUR: On 9 March 2016, you, Craig Barlow, along with a co-offender, Jade England, committed an armed robbery on the National Australia Bank at Newcomb. You drove there in a car which had been stolen a couple of days earlier from retail premises in Moolap. The car was left around the corner from the main entrance to the bank with the ignition running, whilst you and
Ms England went into the bank. You were armed with a sawn-off shotgun, which, until you got inside the bank, was concealed in the front of your jumper and you were wearing a beanie or a balaclava. Ms England was carrying a bag and armed with a screwdriver. She too had a balaclava on.
2
The two of you pulled your balaclavas down over your faces, walked into the branch and you then pointed the gun at the two tellers, Ms Scriviner and
Ms Danka, yelling, "This is a holdup, give us your money." One of the tellers handed over a bundle of notes to Ms England and you then started to run out of the bank. A customer grabbed Ms England around the neck, trying to restrain her and she called out to you, "Shoot him, shoot him, shoot the bastard." You stopped at the door, removed your balaclava and raised the shotgun in the direction of that customer, but then turned and ran out.
3
Ms England was ultimately restrained and arrested and as a result of
a combination of an analysis of contact numbers on her telephone, a tracing of those numbers to a number attributable to you and the recognition of your face by somebody who saw the released CCTV footage, you were identified as the co-offender and arrested a few days later, on 14 March, at a place in Whittington.
4 When arrested, you acknowledged participation in the armed robbery at the National Australia Bank and told the police that you had then driven the car from the bank and parked it over near the cricket club, at the Breakwater bridge. You said the firearm was a shotgun, that you had use of an angle grinder at somebody's house, cut it into pieces and thrown the pieces into the river. You said that you had not wanted to hurt anyone, but needed to get money. You said that you had dumped your clothes. There was a search of the area in the river where you said you had dumped the pieces of the cut-up firearm, but no pieces of firearm were ultimately located.
5
At the time of the commission of this armed robbery, you had not long been released from prison, having served a sentence for armed robbery. As
a result of that conviction and sentence, you were prohibited from possessing a firearm. You have now pleaded guilty to one charge of armed robbery, relating to the armed robbery on the National Australia Bank and one of being a prohibited person in possession of a firearm, namely that sawn-off double-barrel shotgun.
6 I have already sentenced your co-offender, Jade England. In course of doing so, I said this armed robbery was a serious example of its type. It involved the use of a firearm, a sawn-off shotgun. It was pointed directly at the two customer service officers and when a customer grabbed Ms England, as the two of you were on your way out and when she yelled at you shoot him, you turned and pointed the gun directly at that customer, before turning tail and making good your escape and leaving Ms England to fend for herself.
7 When I sentenced Ms England, I said this in relation to the impact on the victims and it applies equally here:
The two customer service officers at whom the gun was pointed were both women. One of them had worked in banks for 34 years and she said that she had always felt safe and in control of her surroundings, even when working in an open-plan branch such as this one, but that you had taken away the sense of safety and control that she had had.[1]
[1]DPP v Jade England [2016] VCC 1486 at [14].
8 She said in her victim impact statement that she has slowly managed to return to work, but with adjusted hours and duties. She experienced flashbacks and has had to significantly reduce the contact with customers, as well as her working hours. The first day she went back to work and walked through the door, she was so distressed that she shook and cried for an hour before she was calm enough to be able to go home. At the time that she made her victim impact statement last year, she said that she still then could not serve on the counter where the robbery occurred and had frightening memories and flashbacks triggered, not just by work surroundings, but by seeing people in hoodies suddenly appearing in her field of vision.
9 The other customer service officer from the bank has also had a long history of working in banks and had been used to working on a relieving basis, moving from branch to branch. She had found that good, she liked the different surroundings. However she felt unsafe now, not knowing which branch she would be at, or what the surroundings would be like, or where lines of safe escape were and where she could go for protection if she needed it. She experiences panic attacks and she has flashbacks, triggered not only by the memories themselves, but by things that bring the memories back - whenever she sees a policeman or a security guard, because they carry guns, whenever she sees a person in a hoodie, or for that matter, even people in dark bike helmets with the visors pulled down.
10 Although she too has managed to return to work, she has not been able to return to her previous role in customer service, nor has she been able to work again in an open-plan branch. She has been diagnosed now with suffering from an anxiety disorder and is still having counselling in order to help her deal with the lasting impact of that armed robbery.
11 As I said to Ms England, it is not surprising that each of them has written of their experiences in that way and it does not take long for a person to sit and think that might be the impact of their behaviour. I said to Ms England it was knowledge that could easily have been with her, before she embarked upon her armed robberies.
12 That can be said with even more force for you, because you were only four months out of gaol, after serving almost all of the four year maximum sentence I had imposed on you in 2012 for armed robbery. In that case, you had brandished a firearm at a three people working in a pharmacy, as you demanded that they hand over their supplies of OxyContin and cash. I recited to you in sentencing you on that occasion, some of what they had said about the impact of the armed robbery on them.
13 The sentence for the previous armed robbery is also relevant in this sense. As a result, you were prohibited from possessing firearms and it is that that gives rise to the second charge to which you pleaded guilty today.
14
So, it is clear that, subject to considerations personal to you, denunciation, just punishment and deterrence loom large in the sentencing mix. When
I sentenced you in 2012 for the earlier armed robbery, I said, in respect of that, something that applies equally today:
It is clear from the account of events and the accounts given by the victims of the impact on them, that considerations of denunciation, deterrence and just punishment loom large in sentencing for an offence such as armed robbery. Armed robberies are prevalent offences. They are such terrible violations of the rights of people who go to work and do not expect that they will have a gun stuck in their face. It is clear that the sentences that are imposed much serve as a denunciation of the unacceptability of the violation of the integrity and these people's sense of safety, of the violation of everybody's sense of safety in shopping areas and shops and of the denunciation generally in thinking that conduct like this is acceptable or justifiable. We are fortunate to live in a society where we do not have security barriers at shopping centres or at the doors of shops, where most people can feel free and safe in going about their daily business and where people can get up in the morning and go to work, not thinking they are going to have a gun stuck in their face. When you work in a bank, you should not think that having a gun stuck in your face is part of a job description, or when you go to work, that might happen to you. It should not.[2]
[2]DPP v Barlow & Ors (Unreported, County Court of Victoria, 29 June 2012, Judge Hampel) at [32] – [33].
15 So, what are the circumstances personal to you?
16 You were 36 at the time and you are now 37.
17 You have spent most of your adult life, in fact, most of your life since age the age of 13, in some form of custody: in boys' homes, in youth detention, or in adult prison.
18 Your adult criminal history, which you admitted in this proceeding before me, shows 22 separate court appearances since 1996. For the first you were sentenced to be detained in a youth training centre. I was told that once you turned 18, you were transferred, as was so often the case then, to adult prison and in your case then, Pentridge. In the 21 court dispositions after that, you received either suspended sentences or terms of imprisonment. So far as the suspended sentences were concerned, almost all, if not all of them, were then brought back before the court because you breached them. And in all, or almost all of the cases, they were restored. So far as the terms of imprisonment were concerned, very few of those terms had parole terms attached to them and if they did, I am told, you were rarely released on parole and if you were released on parole, it was usually for a matter of weeks before the expiration of your head sentence.
19 When I sentenced you in 2012, I quoted, towards the end when talking about the importance of the fixing of a non-parole period from what Dr Adam Deacon had said in the comprehensive and helpful psychiatric report that he had provided. In that he said that your prognosis and prospects for the future were unfortunately likely to be fairly grim. He said:
He has a chronic and prolonged history of drug dependency and offending. He has been difficult to treat and he may continue to prove difficult to treat. He ideally requires personalised and specialised psychiatric treatment, with a multi-disciplinary approach. He requires medical and psychological treatment for depression and post-traumatic stress disorder. He is unlikely to receive such sophisticated care in prison and he is unlikely to be seen as a candidate for a community mental health service, despite his considerable impairment. His prospects for rehabilitation are likely to be very limited whilst he resides in a prison environment. He has developed the hallmarks of institutionalisation and community living has been very difficult. Mr Barlow's motivation to change is difficult to determine. He engaged in programs in early-2012, but his motivation to change now appears to be limited. His depressed state certainly appears to be impacting on his capacity to maintain hope.
20 I then went on, having quoted from Dr Deacon, to say this:
Although the prognosis is not good, in my view, I should allow
a significant gap between the head sentence and the non-parole period, to encourage you to engage with what programs and supports are available for you in prison, that is, to continue to engage with what programs and supports are available for you in prison and to make a real commitment with the support of the Parole Board, if it sees fit to release you on parole, to engage with the services available to you in the community, to assist you to address your substance abuse, mental health and underlying personality disorder issues, so as to allow you to live a more meaningful and offence free life.[3]
[3]DPP v Barlow & Ors (Unreported, County Court of Victoria, 29 June 2012, Judge Hampel) at [108].
21 Despite that, I am told that you were released only weeks short of your maximum sentence and without the supports or assistance recommended.
22 Although you apparently maintained your commitment whist in custody on the last occasion to remain drug-free, that commitment did not last long on your release into the community and you had fallen again into substance abuse by the time of the commission of this armed robbery.
23 When you were before me in 2012, there were three reports provided to me which contained at times, contradictory or conflicting histories and diagnoses. Some of what was put to me by your then counsel conflicted with what was in one or more of the reports. On that occasion, having analysed the reports and the history recounted by your counsel based on your instructions closely, in order to address submissions then made to invoke the operation of Verdins, something that I note is not invoked today, I accepted Dr Deacon's explanation that your memory inconsistencies and apparent confabulation can sometimes be a reflection of trauma and levels of personality disturbance with associated thought and memory disorganisation.
24 I went on then to say this:
I accept that your mental state, by reason of those matters, combined with your substance abuse, has been and continues to be fragile. Your mental health and substance abuse are clearly interlinked. You have shown no preparedness before incarceration to deal with your substance use or the underlying mental health issues and it is heartening to see that you have returned clean urine screens in custody and that you appear to have been drug-free.[4]
That apparently is the case again on this occasion, that whilst in custody, you have returned clean urine screens.
[4]DPP v Barlow & Ors (Unreported, County Court of Victoria, 29 June 2012, Judge Hampel) at [103].
25
On this occasion I was provided with a psychological report from the psychologist, Alison Mynard. She was not provided with the reports from
Dr Deacon, Ms Lechner or Mr Gary McMullen which were provided to me on the last occasion I sentenced you.
26 Mr Polak relied on the history as set out in Ms Mynard’s report. It is an account of a childhood marred by a distant father and a neglectful mother, of many moves due to your father’s work and consequent disruption of schooling and friendships, of defiant behaviour which led to you being before a court and put into State care in the ACT, where the family was then living, by the age of 13, of isolation and alienation from the family thereafter, of ambivalent feelings about your relationships with your father and mother and an unbroken cycle of offending, substance abuse and detention or imprisonment .
27
Periods in the community have been short, but long enough for you to father
a number of children, although no relationship has been able to be sustained for any time with their mothers or with the children. The longest time you spent out of custody appears to have been about three years when you went to Queensland with a partner. You and she were both drug abusers and the children that you had together were ultimately removed from your care.
28 You recount a number of traumatic events which have led to diagnoses at various times of conditions including of post-traumatic stress disorder, depression, borderline personality disorder and substance abuse disorder. Back in 2012 Dr Deacon found that you were institutionalised. That is an opinion confirmed by Ms Mynard.
29 In her report, she concludes:
Mr Barlow grew up in an unsafe environment and was unable to depend upon people around him, either his family or the school community. His family moved off and this meant that Mr Barlow had fewer experiences of trusting and long-term friendships. His relationship with his father appears to have been very sporadic and was frightened of his mother as a child. Mr Barlow appears to have been exposed to physical abuse, emotional abuse and neglect. Coming to school unkempt, with dirty clothes and reported to be fed dog food, are indicators of his exposure to neglect. Like many young people when they are maltreated as children, Mr Barlow acted out, externalising his tumultuous, emotional state, without out of control behaviour. He experienced institutional care from age 12 and as his drug use escalated through his adolescence, so did his anti-social behaviours, until he was in Pentridge at age 17.
As a young man, he experienced many traumatic events, including witnessing someone being shot, being raped in custody and being in many fights and threatening situations. Mr Barlow has learnt to be hyper-vigilant to danger, and use drugs to block out negative experiences, but has continually struggled with memories and intrusive thoughts of bad experiences. There are some indicators that Mr Barlow may have been suffering with attention deficit hyperactivity disorder as a child, however these behaviours may also have been indicative of the trauma he was exposed to, with lack of safe attachments and having a highly aroused nervous system that was always on alert. When an individual has a highly aroused nervous system, resultant from traumatic experiences, the person often is predisposed to being impulsive, risk-taking and doesn't slow down enough to think of consequences. He displayed these issues from a young age. His personality disorder was also taking shape from a young age, where the caregivers that were supposed to provide him with safety were either frightening or absent. Mr Barlow subsequently developed a dysregulated emotional state, lack of experience with safe attachments and a view of others that couldn't meed his basic needs.
Mr Barlow told the writer that he has felt safer in custody than in the community at times. He spoke about lack of housing and support when he is in the community. He appears to come to understand that he is quite institutionalised and wants to have intensive support on release, in order to turn his life around. It is the writer's opinion that Mr Barlow's psychological difficulties and personality traits do contribute significantly to his offending behaviour, particularly his impulsivity, lack of consequential thinking, lack of realistic problem solving abilities and his risk taking. His substance use has been an effort by him to continually regulate his emotional state and his nervous system. His offending behaviours over the years have also been a result of poor judgment and lack of consequential thinking because of his addictions.
The writer believes that being incarcerated has a compounding effect on Mr Barlow, that his mental health issues become worse and have not been treated effectively over a long period of time.
30 In my view, although it may now be well-nigh impossible now to unravel the tangled skeins of the history you have recounted over recent times to the many health professionals who have assessed you, it is clear that you have a long history of criminal behaviour, substance abuse and psychological and psychiatric conditions which have been largely unaddressed.
31 You have been in custody for much of the time and the community and the custodial authorities must take some responsibility for the failure to provide you with the supports you need and that are continually recommended for you.
32 I am satisfied that your history since early adolescence can properly be characterised as one of chronic neglect and deprivation. Although yours may not be as severe a history of chronic childhood abuse and neglect as that recounted in the High Court case of Bugmy,[5] you too were offending and in need of greater institutional support as an adolescent that you received. Had you received the supports then, you may well have been able to be assisted to turn to a more meaningful, drug and offence-free life. The effect of that failure to provide you with assistance in adolescence has continued into and must be seen to be a significant factor in what is now an entrenched pattern of criminal and drug abusing behaviour.
[5]Bugmy v R [1990] HCA 18.
33 So consistent with the principle in Bugmy, that must be reflected in the sentence to be imposed upon you by ameliorating its harshness.
34 You have expressed a desire to turn your life around. You have shown, at times a period of commitment to turning the hope into reality, although it has not always been able to be sustained for long. You express a further desire to make a new start and you have done what you can to show your commitment to changing the habits, beliefs and associations of your past life.
35 I take into account all that had been put in that regard in your favour. I also take into account your guilty plea. Although late entered, it is, in my view, an acceptance not just the strength of the prosecution case against you, but also an acceptance of your responsibility, your moral responsibility for your behaviour.
36 Ms Mynard concluded her report by saying this:
The writer recommends that Mr Barlow is provided with intensive support upon release from custody, including housing support, psychological and psychiatric support, for medication monitoring and review. Mr Barlow requires an ongoing therapeutic relationship to assist him to manage his depression, anxiety, post-traumatic stress disorder, ADHD symptoms and personality disorder. He also requires support from a drug and alcohol counsellor to address his ongoing addictions. There are specific therapies that will be targeted approaches for Mr Barlow's conditions, including cognitive behavioural therapy, dialectical behaviour therapy, motivational interviewing and trauma focussed therapy. If Mr Barlow is able to engage in these services, it is likely that his chances of re-offending will reduce.
37 I urged the authorities responsible for your care in custody and on release last time to implement Dr Deacon’s recommendations. My recommendations that that occur, fell on deaf ears. Despite the seriousness of this offending, in my view, the sentences today should be ameliorated by reason of that failure to provide you with the supports recommended by the experienced professionals that provide the only real hope of assisting you to fulfil your stated desire to lead that more meaningful, productive and offence-free life in future and to capitalise on the steps that you have already made.
38 I urge, in even stronger terms today, that those who will be responsible for your care whilst in custody and on release, implement the treatment recommendations made by Dr Deacon in 2012 and by Ms Maynard earlier this year.
39 I have, again, allowed a significant gap between the head sentence and the non-parole period in order to allow maximum opportunity for this to occur.
40 I do not consider it appropriate to impose the same sentences as those imposed on Ms England for this armed robbery and for the offence that each of you also pleaded guilty to of being a prohibited person in possession of a firearm. She does not have anywhere near as extensive a criminal history as you, nor does she have a prior for armed robbery, but on the other hand, she does not have a history of an unhappy and unstable childhood, a history of substance abuse going back to adolescence and connected with those instabilities and abuses of childhood. She does not have a history of a cycle of substance abuse, incarceration and release without support as you have. She is not institutionalised. She in fact managed to get to her mid-20s before substance abuse and associated criminal behaviour began impacting on her life. She was, or should have been, in a better position than you to make mature and informed choices about her behaviour.
41 The sentence, therefore, is designed to reflect the circumstances of your custody. I hope it will provide an incentive to you and to those responsible for your care to capitalise on the steps you have already taken and the plans you have made for a fresh start.
42 Could you now please stand.
43 Craig Barlow, on the two charges to which you have pleaded guilty, you are convicted.
44 On Charge 1 of armed robbery, you are sentenced to be imprisoned for a period of three years.
45 Charge 2 of being a prohibited person in possession of a firearm, you are sentenced to be imprisoned for a period of 12 months and I direct that three months of that be served cumulatively upon the sentence on Charge 1.
46 That makes a total effective sentence of three years and three months.
47 I fix the period of 21 months as the time that you must serve before being eligible for parole.
48 I declare that you have spent 584 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
49 I declare, pursuant to. s.6AAA of the Sentencing Act 1991 (Vic), that but for you pleas of guilty, I would have sentenced you to a total effective term of imprisonment of five years and fixed a non-parole period of three years and six months.
50 Are he orders I have pronounced reflective of what I said I intended to do?
51 MR BOURKE: Yes, Your Honour.
52 HER HONOUR: Arithmetic correct?
53 MR BOURKE: I am sorry, Your Honour.
54 HER HONOUR: Arithmetic correct?
55 MR BOURKE: Yes, Your Honour.
56 HER HONOUR: And no further orders required?
57 MR BOURKE: No.
58 HER HONOUR: Thank you. Could you remove Mr Barlow please.
59 Can I thank both counsel for their assistance in this matter and can I thank you, Mr Bourke, and your instructors for the pleasure of having your attendance and assistance throughout this circuit.
60 MR BOURKE: Thank you, Your Honour. I do get a lot of assistance from my instructor.
61 HER HONOUR: Well, it has made it a much easier experience for me, but, thank you.
62 MR BOURKE: Thank you.
63 All right, we will adjourn.
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