Director of Public Prosecutions v Barnard (a pseudonym)

[2021] VCC 523

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN BARNARD (A PSEUDONYM)

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JUDGE:	Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2021
DATE OF SENTENCE:	4 May 2021
CASE MAY BE CITED AS:	DPP v Barnard (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 523

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr D. Dann QC	Docherty Legal

HIS HONOUR:

1You have pleaded guilty to five charges of sexual penetration with a child under 16:

(a)   in charge 1, the act of sexual penetration was you introduced your finger into her vagina – a rolled up charge of 7 episodes of penetration;

(b)   in charge 2, the act of sexual penetration was you introduced your penis into her mouth – a rolled up charge of 7 episodes of penetration;

(c)   in charge 3, the act of sexual penetration was you introduced your penis into her anus – a rolled up charge of 3 episodes of penetration;

(d)   in charge 4, the act of sexual penetration was you introduced your tongue into her vagina; and

(e)   in charge 5, the act of sexual penetration was that you introduced your penis into her vagina – a rolled up charge of 3 episodes of penetration.

2The maximum penalty for each offence is 10 years’ imprisonment.

3The circumstances of your offending are set out in the summary of prosecution opening for plea dated 27 March 2021.[1]

[1] Exhibit A.

4Through a local football club, you knew the family of the victim.

5In December 2011, at a family wedding, you got your victim, Mariana Melis[2], drinks from the bar and the two of you were flirting with each other.

[2] A pseudonym.

6In the days following, you exchanged Facebook messages with her. She wanted to see you. You pointed out she was only 14 years old and not of “legal age”. When she persisted, you asked her what her mother would have to say about it. She said she thought her mother would not be happy. When she said she wanted to “make out” with you, you asked whether she had “done anything before”. She said she had only been kissed on the cheek. She said she did not want to have sex, she did not want to be 14 and already have had sex, but “making out” would be fine.

1st episode

7On 25 February 2012, she invited you to her sister’s home. When you got there, you asked to sit on the couch with her. When she did, you put your arm around her and told her not to tell anyone because you had a girlfriend and, as well, the two of you would get into trouble. You kissed her on the lips, you put your hand down her shorts and put two fingers inside her vagina (Charge 1).

8You pulled down her shirt and bra and sucked her breasts. Then you stood up, took your penis out of your pants and told her to suck it. She did not want to, but she did for about a minute, and became tearful. You told her not to cry as you liked it (Charge 2).

9You moved into a kneeling position on the floor and said, “Let’s try anal”. She did not answer; she did not quite know what you meant. You took off her shorts and underwear and, using your saliva as a lubricant, put your penis into her anus for about a minute before you ejaculated (Charge 3).

10It hurt her and she noticed bleeding afterward. Later, the two of you hugged and you left.

11She was 14; you were 22.

12You saw her in the weeks following, but neither of you spoke about what had happened.

2nd episode

13On or about 29 March 2012 your victim returned your jacket to you when you were at football training. Afterward, she met up with you. She followed you to the back of the sports complex and the two of you kissed. You put your hand down her pants and you put your fingers inside her vagina (Charge 1).

14You unzipped your pants, pulled out your penis and told her to suck it. And she did (Charge 2).

15When she stopped, she watched you masturbate until you ejaculated.

16You continued to see her at the football club.

3rd episode

17Sometime in May 2012 sent her a message asking her to meet up. She agreed. She sneaked out of home to your waiting car. You drove to a nearby vacant block where the two of you got into the rear seat and started kissing.

18You put your finger into her vagina (Charge 1).

19She sucked your penis (Charge 2).

20You licked her vagina (Charge 4).

21Then you then had anal sex with her (Charge 3).

22You were in the car together for about an hour and a half.

4th episode

23Your victim was at your house for a football presentation evening. A number of people were standing around the fire in the yard. You whispered to her to meet you out the front of the house. When she did, the two of you went to a neighbouring property where you started to kiss.

24You put your fingers into her vagina (Charge 1).

25She sucked your penis (Charge 2).

26You told her you wanted anal sex. She said she wanted “normal” sex.

27You lay on the ground, she got on top of you and you put your penis into her vagina (Charge 5). After some time, you said you could not ejaculate and said that you should go back to the party because people might notice your absence. The two of you returned to the party.

28The next morning, you told her your girlfriend was suspicious and the two of you should stop seeing each other.

5th episode

29Your victim turned 15 in October.

30In late January of 2013, you messaged her asking whether she would like to meet up. She was happy you had made contact. She sneaked out of her home and met you in your car.

31You talked, then started kissing before you put your fingers into her vagina (Charge 1).

32She sucked your penis (Charge 2).

33The two of you had penile/vaginal intercourse (Charge 5).

34Afterward, you dropped her home.

6th episode

35Sometime in February 2013, when her family were out, she messaged you asking you to come to her house. When you arrived, the two of you went to the shed where you kissed and you put your fingers into her vagina (Charge 1).

36She sucked your penis. You asked her to suck it until you ejaculated. You pushed her head onto your penis. She vomited onto it. You ejaculated into her mouth and said “good job” (Charge 2).

7th episode

37Sometime in April 2013 victim walked to your home where you were lying on the couch recovering from burns. You said you had not had sex for a while because your girlfriend was mad at you for getting burnt. The two of you kissed.

38You put your fingers into her vagina (Charge 1).

39She sucked your penis (Charge 2).

40The two of you had penile/vaginal sex (Charge 5) and anal sex (Charge 3).

41Afterwards, she told you rumours about the two of you were spreading around. You told her to keep denying them.

42In late April 2013, your victim took a pregnancy test which was positive. She did not tell her parents. On 9 June 2013, when she was at a friend’s house, she experienced vaginal pain and noticed bleeding. She later passed a bloodied sac which she wrapped in tissues and put in a bin. The experience was painful, physically and emotionally.

43Over the next 6 months, the two of you exchanged naked photographs of each other. You saw her again in December 2013. She had turned 16. The two of you had sex in your car.

44In 2014, you had sex again a number of times. She felt she was in love with you.

45In January 2015, you had sex again and continued a sexual relationship until October 2016 when she told you she could not see you anymore. The two of you stopped communicating.

Complaint

46In December 2017, your victim contacted police. On 15 January 2018 she made a statement of complaint. She said she did not want the matter investigated because you employed her brother. She said she would wait until after March 2018 when her brother completed his apprenticeship.

47In May 2019 she contacted police again and, when she made a second statement on 6 September 2019, police commenced their investigation.

48Police interviewed you on 20 January 2020. You exercised your right to remain silent.

49You were charged with sexual offences on 11 May 2020.

50The matter resolved at committal mention stage.

Victim impact statement

51In her victim impact statement, your victim wrote that, in 2011, she was living a “normal” life as a 14-year-old in year 8 at school until you came into her life.[3] The attention, which you paid her at the wedding, made her feel special. To that time, she had never kissed a boy. You stole her “independence… [her] innocence… and [her] self-esteem”.[4] Her first sexual experience, with you, still haunts her. After you penetrated her anus, she bled and was sore for days. She felt ashamed but thought that was how relationships must have been.

[3] Exhibit B, p.1.

[4] Exhibit B, p.1.

52She said you taught her the things that you wanted and liked. She described herself, at 16 years old, as “an emotional and physical mess”.[5] She dropped out of school and began to self-harm. She resorted to alcohol abuse “to numb the emotional trauma”.[6] Her anxiety and depression have been ongoing.

[5] Exhibit B, p.2.

[6] Exhibit B, p.2.

53Dr Remon Eskandar has been her treating general practitioner for 9 years. In his opinion, “[s]he is struggling with symptoms and signs of severe adjustment disorder with mixed anxiety and depressive symptoms”, directly as a result of your crimes.[7] Her physical health, with “increased weight to a significantly unhealthy” extent, has also been adversely affected.[8]

[7] Exhibit C, p.1.

[8] Exhibit C, p.2.

54He wrote that “[s]he feels she has missed out on the normal development through adolescence and young adult hood.”[9]

[9] Exhibit C, p.2.

55Marian Ruyter has been helping your victim with counselling during 2020 for her battles with alcohol and disturbed sleep.[10] She has ongoing poor self-esteem and suicidal thinking.

[10] Exhibit D.

Criminal record

56You have no criminal record.

Personal circumstances

57You were born on ………….. June 1989. You were 22 years old when your offending started. You are now age 31 years.

58Your personal circumstances are set out in the report of Dr Tony Pastore, psychologist dated 12 March 2021.[11]

[11] Exhibit 2.

59You were born in Seymour[12] and have lived in the area for all your life.

[12] Town anonymised

60Your father drove trucks and your mother kept the home, which was as a happy one.

61You have an older brother, who is a builder, an older sister, who is a psychologist, and a younger sister, who is a bank officer.

62You went to local schools and completed year 11. You then did a pre-apprenticeship course of Electrical Studies at TAFE before obtaining and completing an apprenticeship. In 2013, you started and developed your own business, which you own with an equal partner and which employs 10 people.

63You have been in a relationship with Tanya McWilliam[13] for 11 years. You have lived together since you bought your first home in 2012. With her, you have two young children.

[13] A pseudonym.

64You first saw Dr Pastore on 15 September 2020 and have had 11 counselling sessions with him.

65You told him this will, as a teenager, you had consensual sexual relationships with girls your age.

66You said that you knew your relationship with your victim was wrong but you pursued it regardless. You said that you wanted to bring it to an end but were worried about your victim exposing it to others. It eventually ended in 2016 when she was 18 years old.

67Dr Pastore wrote:

Mr Barnard made no excuse for his behaviour. He did not blame the victim at all. He stated that he knew his behaviour was inappropriate and that he should not have engaged with the victim at the sexual level.

He wishes he could take it all back and understands the impact this has had on the victim and her family. He is remorseful at what he has done to her and her family, and to his own wife and family.[14]

[14] Exhibit 2, p.8.

68You have no alcohol or drug issues and, while you have symptoms of depression, anxiety and stress, associated with these proceedings, they are within normal limits.

69To his testing, your clinical profile was normal; in other words, you have no psychological disorder

70In his opinion, considering:

(a)   you have no forensic history of sexual offending or violence;

(b)   you have never been charged with any other offences; and

(c)   you have a supportive partner, family and community;

your risk of sexual recidivism is low and you are “a good candidate for rehabilitation”.[15]

[15] Exhibit 2, p.23.

71I accept his opinions which were unchallenged.

72I have read a number of impressive references filed on your behalf.

73Your partner found out about your offending in February 2020; your parents a month later. They must have been appalled.

74Nevertheless, they, together with her family and yours, have stuck by you. Your partner, her brother, your father, your brother and your younger sister supported you in court. Your mother-in-law,[16] as well as your partner[17] and brother,[18] wrote written references.

[16] Exhibit 4.

[17] Exhibit 3.

[18] Exhibit 7.

75Your partner was understandably devastated by your betrayal of her trust. Nevertheless, despite your inevitable incarceration, she is determined to keep her family together. She described you as a hard-working, devoted father and supportive partner will. You helped her through her grief when her father died, and her battles with a cancer diagnosis.

76You mother-in-law has watched you build a happy life with her daughter and grandchildren and a successful business. Your offending shocked her, but she wrote, to your credit, you have taken responsibility for your actions which, with your separation from your family, “comes with a heavy price”.[19]

[19] Exhibit 4.

77Your brother is obviously close to you. He described you as a father and businessman who cares for his children, looks after his staff and sponsors local sporting clubs. He wrote you have taken responsibility for your wrongdoing and regret it.

78You also have the continuing support of friends in your community.

79Doug Hatchet[20] has known you since primary school. He wrote you are the third child of a respected local family.[21] He confirmed you are hard-working and successful. He confirmed you also have been actively involved in local sport as a player, committee member and sponsor. The disclosure of your offending “shocked” him.[22] From his conversations with you, he believes you are genuinely remorseful.

[20] A pseudonym.

[21] Exhibit 5.

[22] Exhibit 5.

80Alex McDonald[23] met you in 2015 on a building site.[24] He came to know you working alongside you. He described you as “a responsible and proactive person with a great work ethic”.[25] He confirmed that you have grown a successful business and are a contributing member of your community. Your offending “stunned” him.[26] To him, you have shown remorse and accepted responsibility for your actions.

[23] A pseudonym.

[24] Exhibit 6.

[25] Exhibit 6.

[26] Exhibit 6.

81Georgie Cibilic[27] is a family friend.[28] As a neighbour, she confirmed your family is highly respected. She has known you since your kindergarten years. She described you as “a most capable, hard-working and reliable young man.”[29]

[27] A pseudonym.

[28] Exhibit 8.

[29] Exhibit 8.

Defence submissions

82Mr Dann QC, who appeared on your behalf, in comprehensive written and oral submissions, acknowledged that your offending was serious.

83He submitted yours is an unusual case insofar as your victim continued a sexual relationship with you after she turned 16 years old. He submitted that, sometime after, when you tried to bring the relationship to an end, you were met with a “troubling response”. He produced a letter your victim had written you in November 2016 when she asked to meet you to “work this out” or she would expose your “secret”.[30]

[30] Exhibit 10.

84In relation to your victim’s pregnancy, he told me, although you had no direct knowledge of it, there were some contemporaneous discussions between the two of you about it.

85He acknowledged that the imposition of a prison term for your crimes is inevitable. He submitted that a combination sentence, or alternatively, a head sentence with a non-parole period, would be an appropriate disposition.

86He relied on the following factors in mitigation of penalty:

(a)   your guilty plea, entered at the earliest stage, for its utilitarian value and acceptance of responsibility for your actions;

(b)   your remorse – demonstrated by your guilty plea and expressions to others;

(c)   your relative youth when you offended;

(d)   your lack of any criminal record, prior to your offending or subsequent;

(e)   your contributions to the care of your family and your community;

(f)    the increased burden of prison for you due to your separation from your young family; and

(g)   your excellent prospects of rehabilitation.

Prosecution submissions

87Ms Pillai, who appeared for the prosecution, submitted a combination sentence is not within the proper sentencing range. She submitted, for the seriousness of your offending, a head sentence and non-parole period is warranted.

88She submitted there are aggravating features of your offending, namely:

(a)   your offending was protracted – there were multiple instances of penetration in seven incidents over a 14 month period;

(b)   the victim became pregnant and miscarried on 9 June 2013 (after the seventh incident); and

(c)   on an occasion, you ejaculated into her mouth (sixth incident).

89She submitted that, as a 14-year-old who was sexually inexperienced, you caused your victim significant, long-term, detrimental psychological harm. And, in relation to the episode of anal sex on 25 February 2012, physical injury.

90She submitted that the protection of children from sexual exploitation is an important sentencing objective. And general deterrence should be regarded as the principal sentencing factor.

91She accepted that your guilty plea was entered at an early stage and has a high utilitarian value.

92She also accepted that you are remorseful and are a low risk of reoffending.

Consideration

93Under the law, a child under 16 cannot consent to sexual penetration. The objectives are twofold; firstly, to protect a child from harm that can come from premature sexual activity and, secondly, to deter adults who would contemplate having sex with someone under 16.

94I must take into account, in accordance with established legal principles, general deterrence and protection of the community as the primary sentencing considerations for sexual offending involving children.

95Your offending is inherently serious.

96There is no hierarchy of acts of sexual penetration.[31]

[31] DPP v Elfata (2019) VSCA 63 [36].

97Four of the five charges are rolled up counts. The criminality involved in each of them is greater than for a charge which involves only one episode of criminal conduct.

98Your victim was a 14-year-old schoolgirl who had no sexual experience. She was eight years your junior and had a crush on you. You exploited her vulnerability for your selfish carnal gratification. And you corrupted her into believing sexual activity was the sign of your affection for her.

99Your offending was persistent and protracted involving, as it did, five types of sexual penetration in seven episodes over a 14-month period.

100While it was not accompanied by any threat or force, your victim’s willingness to engage in sexual activity with you does not pardon your behaviour.[32] You were well aware it was wrong.

[32] HAJ v The Queen [2012] VSCA 96 [24].

101At times, you had scant concern for her well-being. In the first sexual episode, you caused her pain and injury when you anally penetrated her; on a later occasion, you pushed her head onto your penis to the point where she vomited onto it; and, on another, you exposed her to unprotected sex which caused her to fall pregnant.[33]

[33] See Jason Amaral (a pseudonym) v DPP [2020] VSCA 290; R v Leng Khem (2008) 186 A Crim R 465.

102Around November 2016, your victim wrote you a letter.[34]

[34] Exhibit 10.

103She told you that she was not in love with you anymore. She told you that she was having nightmares and sleeping problems. It seems that she wanted to somehow remain friends with you. She wrote “I’m not protecting someone who won’t even see the need to talk about this in person”.[35]

[35] Exhibit 10.

104It appears that you wanted to end the relationship, not because of any particular concern for your victim, but for fear that you might be found out.

105A combination sentence would not adequately address the gravity of your offending.

Mitigating factors

106I accept:

(a)   your guilty plea was made at the earliest stage – it has high utilitarian value because a committal and a trial, requiring your victim to give evidence, have been avoided. It also shows that you have accepted responsibility for your actions and are willing to facilitate the course of justice;

(b)   you are remorseful for your offending – demonstrated by your guilty plea and your expressions of remorse to others;

(c)   you were relatively youthful when you offended;

(d)   you have no criminal record of any offending;

(e)   you have earned a good reputation as a devoted father, successful businessman and a contributing member of your community;

(f)    your separation from your young family will make prison harder for you; and

(g)   you are unlikely to reoffend and will your prospects of rehabilitation are excellent.

107I have given effect to each of those factors by moderating the sentence I would otherwise have imposed.

108The standard sentence regime is not applicable.

109The serious sexual offender provisions do apply.

110Upon conviction and imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3, 4 and 5.

111The object of the serious sexual offender legislation is to make the sentences on Charges 3, 4 and 5 operate cumulatively rather than concurrently.[36]

[36] Sentencing Act 1991 (Vic) s 6E; HAJ v The Queen [2012] VSCA 96 [19].

112I must have regard to the protection of the community as the principal purpose for which the sentence on Charges 3, 4 and 5 is imposed,[37] and I may impose a sentence longer than that which is proportionate to the gravity of your offending.

[37] Sentencing Act 1991 (Vic) s 6D(a).

113The prosecution does not seek a disproportionate sentence in your case.

114I do not consider you a danger to the community. I am satisfied that, in the circumstances of your case, the principal purpose of protection can be achieved without the imposition of a disproportionate sentence on Charges 3, 4 and 5.[38]

[38] R v Connell [1996] 1 VR 436.

115I must also have regard to the principles of totality and proportionality to ensure the overall sentence is a just and appropriate measure of your total criminality.

116Please stand Mr Barnard.

117By the sentence I impose, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

118Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

·        On Charge 1 – sexual penetration with a child under 16 years, you are convicted and sentenced to 4 years’ imprisonment. This is your base sentence.

·        On Charge 2 – sexual penetration with a child under 16, you are convicted and sentenced to 4 years’ imprisonment.  I direct 9 months of this sentence is to be served cumulatively on the sentence I have imposed on Charge 1.

·        On Charge 3 – sexual penetration with a child under 16 years, you are convicted and sentenced to 4 years’ imprisonment. I direct 9 months of this sentence is to be served cumulatively on the sentences I have imposed Charges 1 and 2.

·        On Charge 4 – sexual penetration with a child under 16 years, you are convicted and sentenced to 3 years imprisonment. I direct 3 months of this sentence be served cumulatively on the sentences I have imposed on Charges 1, 2 and 3.

·        On Charge 5 – sexual penetration with a child under 16 years, you are convicted and sentenced to 3 years’ imprisonment. I direct 6 months of this sentence is to be served cumulatively with the sentences I have imposed on Charges 1, 2, 3 and 4.

119Your total effective sentence is 6 years’ and 3 months’ imprisonment and, to mitigate your punishment and promote your rehabilitation, I fix a minimum non-parole release period of 3 years and 3 months.

120There is no pre-sentence detention to declare.

6AAA

121Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare, but for your plea of guilty, I would have sentenced you to 8 years’ and 6 months’ imprisonment and fixed a minimum non-parole period of 5 years and 6 months.

Sex offender registration

122Finally, Mr Barnard, the offence of sexual penetration with a child is a Class One offence under the Sex Offenders Registration Act 2004 (Vic).

123Under the Act, you are now a registrable offender and you must comply with the reporting conditions of Part 3 of the Act for the rest of your life.  You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time.  It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.