Director of Public Prosecutions v Barnes
[2020] VCC 1413
•4 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00565
Indictment No: K12817888
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STUART JAMES BARNES |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2020 | |
DATE OF SENTENCE: | 4 September 2020 | |
CASE MAY BE CITED AS: | DPP v Barnes | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1413 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Jones [2004] VSCA 68; Zhao v The Queen [2018] VSCA 267; R v Khem (2008) 186 A Crim R 465; DPP v Toomey [2006] VSCA 60; DPP v DJK [2003] VSCA 109; R v VZ (1998) 7 VR 693; Galuak v The Queen [2015] VSCA 300; R v Boland (2007) 17 VR 300; Azzopardi v R (2011) 35 VR 43; R v Verdins & Ors (2007) 16 VR 269; Rootsey v R [2018] VSCA 108.
Sentence: Total effective sentence of 3 years' and 11 months' imprisonment.
Non-parole period of two years' and six months'.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms A. Wong | Victorian Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Stuart Barnes, you have pleaded guilty to one charge of rape with aggravating circumstances. The maximum penalty applicable for that offence is 20 years' imprisonment. This is a rolled-up charge (R v Jones[1] applies) and I also note your offending occurred in the 'one incident' (Zhao v The Queen).[2] You have also pleaded guilty to one charge of theft, and the maximum penalty for that offence is 10 years' imprisonment.
[1][2004] VSCA 68.
[2][2018] VSCA 267.
2 The victim of your offending in relation to both charges is Veronica Barnett[3] and your offending took place on 12 April 1983.
[3]A pseudonym.
3 It is not necessary to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of that opening and, as discussed with counsel during the course of your plea hearing, it is sufficient for present purposes to simply say that the facts in this case are most serious and disturbing.
4 At the time of this offending, you were 15 years of age and lived in Ferntree Gully with your family. At the time of your arrest you were 52 years of age.
5 Ms Barnett was born in 1964 and 18 at the time of your offending. She was then in a relationship with her boyfriend and both lived in Ferntree Gully with their two-year-old son. Ms Barnett is now 55 years of age.
6 I turn to your offending.
7 On Tuesday, 12 April 1983, Ms Barnett finished work and caught the 6 pm train home from Belgrave to Ferntree Gully with a colleague. The train arrived at the Ferntree Gully station at approximately 6.45 pm and Ms Barnett got off the train. She walked her normal route home, heading north on a gravel track on the western side of the train line.
8 Ms Barnett had walked approximately 200 metres along the track when she saw you walk towards her from the opposite direction. As you passed Ms Barnett, you grabbed her from behind, put your hand over her mouth, and pushed an unknown object into her right shoulder blade, which felt to Ms Barnett like a knife.
9 You said, 'I've seen you get off the train before and I know where you live or else I wouldn't do this'. Ms Barnett put her hand up and you said, 'Put your hand down and you won't get hurt'. Ms Barnett put her hand back down and you told her to 'walk', then pushed her off the track to the left to a nearby paddock with a white building in it.
10 You told Ms Barnett to sit down and put her bag down, which she did. You told her you had a surprise for her and pulled out a pair of blue knickers, put them over her eyes and tied them at the back, using them as a blindfold. You told Ms Barnett to get up and made her walk towards the white building and then made her lie down.
11 You undid Ms Barnett's top, exposing one of her breasts, then started to squeeze it while saying, 'Tell me that you love me'. Ms Barnett pleaded with you not to hurt her, telling you she had a baby and was once again pregnant.
12 You made Ms Barnett kiss you, then you kissed her exposed breast in a quick action lasting approximately two minutes.
13 I turn to Charge 1. You reached up under Ms Barnett's skirt and ripped the crotch of her panties before pulling her pantyhose and panties down to her ankles. You unzipped your pants, forced her legs apart and forcefully moved on top of Ms Barnett, putting your arms around her neck. You put your penis into her vagina (Charge 1, rape with aggravating circumstances – part of a 'rolled-up' charge).
14 Ms Barnett was shaking uncontrollably. You asked, 'What are you shaking for', and Ms Barnett replied she was scared. You said, 'If you be good I won't hurt you. You'll be alright'. You continued to penetrate her.
15 You removed your penis from Ms Barnett's vagina and inserted it into her mouth, saying, 'Do you know how to do it?' (Part of Charge 1, rolled-up charge). Ms Barnett did not answer nor do anything to your penis.
16 You removed your penis from Ms Barnett's mouth and reinserted it into her vagina and continued to penetrate her (Part of Charge 1, rolled-up charge). You said, 'All I want to do is to have an orgasm and I'll leave'.
17 Soon after that, you ejaculated, withdrew your penis, and wiped it on Ms Barnett's black skirt. You got up and said, 'Stay there for five minutes or I'll regret what I'll have to do, but I'll do it'.
18 I turn to Charge 2. You picked up Ms Barnett's bag and left the scene with it. Ms Barnett remained where she was for about two minutes, then got up and removed the blindfold from her eyes, pulled her panties and pantyhose up and ran home sobbing.
19 Ms Barnett arrived home, walked in the door, burst into tears and dropped the blindfold on the floor. Her partner asked what had happened, asking if she had been raped.
20 Ms Barnett was unable to talk, and it was then she realised the blindfold on the floor was a pair of, I was told by prosecutor Mr McKenry, women's panties. Her partner tried to console Ms Barnett, but she shied away. Ms Barnett's partner grabbed his keys and ran out the door to look for you. He then went to the police station and reported the matter.
21 Police attended Ms Barnett's home and took her for a medical examination. Ms Barnett then made a statement to police.
22 A medical examination of Ms Barnett occurred at Boronia Medical Centre that evening by Dr John Ogden. Clothing and samples were taken during that examination, handed to police, taken to the police complex, secured overnight, then lodged with Victoria Police Forensic Science Laboratory (VPFSL) on 13 April 1983.
23 During the forensic examination at the VPFSL in 1983, the findings were:
(a) that there was intact spermatozoa on vaginal slides indicating sexual intercourse had occurred within the 48 hours prior to examination; and
(b) preliminary tests indicated the presence of seminal stains on the skirt, pink panties and blue panties.
24 No person of interest was identified during the original investigation and the matter was unsolved.
25 In 2012, the Biological Sciences Group at VPFSL carried out further testing as part of the Cold Case Freezer Project (CCFP) on the black skirt and blue panties.
26 A full male DNA profile was located and entered on the national DNA database; however, no identification was made of any person on the database at that time.
27 In April 2019, an identification was made on the DNA database linking you to both the black skirt worn by Ms Barnett and the blue panties used to blindfold her. A DNA profile of you was compared with samples taken from the black skirt and the blue panties, the results in Exhibit A (paragraph 24).
28 On 24 July 2019, police attended your home at Chelsea. You and your father were present. You accompanied police to the front of the premises where you were advised of the circumstances. You told police you knew what it was about and that it had bothered you for years.
29 You were arrested and taken to Chelsea Police Station for interview, were cooperative during it and made a number of admissions.
30 You told police your recollection was that you got off a train and walked along a track where you approached Ms Barnett from the front. You said as you passed her, you grabbed her from behind, held a pen to her and took her a distance of approximately 10 metres off the track. You said you took your penis out of your pants, lay on top of Ms Barnett and penetrated her vagina until you ejaculated. You then 'pinched' her handbag and left.
31 You told police you could not recall oral penetration, but you were not going to say that you did not do it if that is what Ms Barnett had reported.
32 When you were asked about using a knife rather than a pen, you told police you did not carry knives. You also could not recall blindfolding Ms Barnett. You said that a pair of blue panties did not 'ring a bell' with you.
33 You said that you did not know Ms Barnett and had never seen her before. You acknowledged, however, that she would have felt absolutely frightened by your offending. I have no doubt she was, being dragged off the path and raped on her way home from work. Absolutely terrifying.
34 An aggravating feature in your offending was some pre-planning evident in your instructions to your counsel and Mr Simmons regarding the circumstances leading to it. You also had women's panties with you, used as a blindfold.
35 In addition, you did not wear a condom (R v Khem).[4] Also, that threats were made to Ms Barnett by yourself and some violence over and above that required to perpetrate the rape.
[4](2008) 186 A Crim R 465.
36
You were released after interview and charged three weeks later on
14 October 2019.
37 The prosecution accept you pleaded guilty to this offending at the earliest opportunity after being questioned by police on 24 July 2019.
38 Attached to the Prosecution Opening (Exhibit A) was a chronology. I note your pleas of guilty to the charges were entered on 17 April 2020 and the matter proceeded to this plea hearing.
39 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial, and witnesses have been spared the need to give evidence on your trial. And in that regard, in particular, I refer to Ms Barnett.
40 I accept that your pleas of guilty have utilitarian value and are indicative of remorse by you for your offending. Regarding the timing of your pleas of guilty, I note they were at the earliest stage, such conceded by the prosecution and apparent following you being arrested and when questioned about this offending. I also note you had made admissions to that offending during the course of that interview. I accept, therefore, you entered your pleas of guilty at the earliest opportunity.
41 There was, at your plea hearing, no pre-sentence detention and no ancillary orders were sought by the prosecution, nor was the prosecution urging the court exercise its discretion under the Sex Offenders Registration Act 2004.
42 The victim of your offending, Ms Barnett, has suffered considerably as a result of your offending. Her statement is eloquent, and it is difficult to do justice to her victim impact statement in these brief sentencing remarks. I have, however, read her statement.
43 Ms Barnett described that on the night 36 years ago that she was raped, her entire life fell apart. Her relationship with her son's father ended as a direct result of your rape of her. To this day, she did not have any contact with him and neither did her son.
44 Your offending led to the beginning of a downward spiral. She took drugs and began drinking alcohol to numb and forget that night. She lived in guilt and shame and her self-worth was so low she struggled in all areas of her life.
45 Your offending had a profoundly detrimental effect on her emotions. She experienced ongoing mental health issues and spent many adult years being treated for mental health problems relating to post-traumatic stress, such as hypervigilance. She often felt deeply emotionally unregulated and unsafe, and had been suicidal with stages where it had been triggered and she had acted on those compulsions, including self-harm.
46 On a social and sexual level, she experienced ongoing issues maintaining relationships. Through therapy, she came to understand that she replicated the pattern of being dominated and treated in a cruel way by people with whom she was intimate. She had been the victim of physical, sexual and emotional domestic violence in multiple relationships throughout her life, and for the last 16 years had avoided any kind of intimate relationships, as she associated intimacy with being vulnerable and unsafe.
47 Your crime also had a profoundly detrimental effect on her family relationships, finding it difficult to form close attachments. She was unable to be emotionally close to her son and, as such, as he became older, he became estranged from her, as had his wife and her only grandchild (whom she had never met).
48 Ms Barnett acted at times in an aggressive and emotionally distant way and that had made it difficult for her parents and siblings to stay close to her. She shut herself off from family and became estranged and ashamed. She felt guilty and disgusted in herself that she never told her family of your hideous crime against her.
49 Your offending had also physically impacted upon her. The force of the actual crime perpetrated created physical pain. The main physical impact, however, was putting herself in harm's way because of her low self-esteem caused by your rape of her. It included using drugs and alcohol and being involved in physically and sexually violent relationships.
50 From that night, she lost all desire to live and cared little for her life, placing herself in situations where she could be taken advantage of emotionally, physically and financially. She lost everything financially, allowing people to take advantage of her as a result of her very low self-esteem and her fear of abandonment and lack of self-worth.
51 She said there had not been a day she had not thought of that night and your crime against her. She suffered anxiety and panic attacks to this day, with no desire to achieve goals in her life. She simply did not have any goals.
52 The truth was, she said, if it was not been for the fact that she did not want to cause pain and sorrow to her son, she would take her life today. You had robbed her of any sense of happiness, love and healthy relationships with family, friends, or intimate relationships.
53 The memory of that night would live in her mind forever. There was nothing she could do to erase that memory. The only hope she had was to look forward to the day of her death. Then, perhaps, she would finally be able to rest in peace. Her emotions, it is clear, are still very raw.
54 Also relevant is the notion of social rehabilitation. And a number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey,[5] in which His Honour Vincent J referred to social rehabilitation citing DPP v DJK[6] (allowing of course for the difference in factual circumstances in those cases to yours).
[5][2006] VSCA 60.
[6][2003] VSCA 109.
55 The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
56 You do not have any prior criminal history, which is not surprising as, at the time of this offending, you were 15 years of age. You do, however, have a number of subsequent court appearances relevant when assessing your rehabilitation prospects.
57 The prosecution, in written correspondence dated 20 August 2020, provided details of your various court appearances when assessing those prospects (Exhibit C). I note some of those appearances were in the Children's Court and approximately 16 to 17 years ago. They post-date your offending before me. But I note, I have said these are dated Children's Court matters.
58 Your first Magistrates' Court appearance was on 13 May 1987 at Prahran Magistrates' Court on a charge of theft and you were fined.
59 On 12 August 1988, at Oakleigh Magistrates' Court, you were sentenced for unlawfully being on premises, and a four month term of imprisonment was suspended for 12 months. On charges of theft and wilfully damaging property, you were placed on a community-based order for two years, with conditions attached.
60 On 31 January 1990, you appeared at Prahran Magistrates' Court for breach of that order and it was cancelled, and you were fined.
61 On 28 January 1992, you appeared at Prahran Magistrates' Court on a charge of theft and fined $500.
62 On 19 July 2000 at Frankston Court, you appeared for breach of an intervention order and convicted and fined $200.
63 On 11 June 2004, you appeared at Ringwood Magistrates' Court on offences of stalking make/produce child pornography and were convicted and placed on a community-based order for 18 months, with a number of conditions attached. One of those conditions was to attend and participate in the Sex Offenders Supervision Program.
64 On that same date, 11 June 2004, you were also before the court on intentionally damaging property.
65 On 11 June 2004, you were also placed on the Sex Offenders Register for 15 years. Your 15 year reporting period was completed on 11 June 2019.
66 On 12 January 2012, you appeared at Moorabbin Magistrates' Court on a charge of failing to comply with reporting obligations and were convicted and were fined $1000.
67 You appeared on 19 January 2012 at Moorabbin Magistrates Court on charges of possess cannabis and possess drug of dependence, were convicted and fined an aggregate of $1000. You were also before the court on use cannabis and a prescription drug and failing to answer bail.
68 On 28 June 2019, at Frankston Magistrates' Court, you were before the court on a charge of possessing cannabis and were convicted and discharged.
69 The prosecution submitted you had a subsequent conviction for sexual offending relevant to the conviction recorded on 11 June 2004, make/produce child pornography. That offending I note, whilst sexual, is very different to your offending before me, although of some concern.
70 The prosecution submitted your subsequent convictions were relevant when assessing your prospects of rehabilitation relevant to the setting of an appropriate non-parole period (see R v VZ).[7] I agree. You have further offended (see also Galuak v The Queen).[8]
[7](1998) 7 VR 693.
[8][2015] VSCA 300 [17] (‘Galuak’).
71 Your counsel, Ms Wong, prepared a written outline of submissions for your plea hearing and addressed them during the course of it (Exhibit 1). Your counsel relied heavily upon your offending being committed when you were 15 years of age, that fact repeated many times by Ms Wong, and of which I am acutely aware.
72 Your counsel urged you had a dysfunctional background, and that in the 37 years since this offending you had not re-offended in a similar manner. That you had expressed guilt and remorse for your offending, which you said weighed heavily on you for years. That you had pleaded guilty at the earliest opportunity. Ms Wong urged your risk of re-offending in a sexual way was low.
73 A chronology was attached to Exhibit 1 (paragraph 2) and, as previously stated, I accept your pleas of guilty were entered at an early stage.
74 Addressing the gravity of your offending, Ms Wong appropriately conceded the offence of aggravated rape is an extremely serious one. Your counsel conceded, as she must on the material before me, your victim suffered psychological and emotional harm that had profoundly impacted upon her life as a result of your offending.
75 Ms Wong conceded your offending was predatory, with a degree of planning, evidenced by your use of a blindfold (and I note taken to the scene by you) and taking the victim off the footpath. That you had ignored your victim's pleas to not be harmed, using threats of violence and a weapon. The blindfold, you conceded, would have increased Ms Barnett's vulnerability and fear. Ms Wong also appropriately conceded your offending was not fleeting and that the rape consisted of multiple penetrations. Also, that a condom was not used, and you ejaculated inside Ms Barnett.
76 Your counsel urged, however, there were aspects of your offending that took it out of the 'most serious category for offending of this type', in that your offending was not in company, physical injuries were not inflicted, the offending did not involve invasion of the victim's home and your offending did not involve a breach of trust. In my opinion, however, it is difficult to imagine a more frightening experience for Ms Barnett, walking home from work, being dragged off a path and then being raped in the manner described in the prosecution opening (Exhibit A). I regard your offending as very serious indeed, even absent the lack of the aggravating features urged by Ms Wong.
77 Your counsel urged that at the time of this offending you were a 'child', such relevant when assessing your moral culpability (R v Boland,[9] see also Galuak).
[9](2007) 17 VR 300, 304 [16] (‘Boland’).
78 Turning to the circumstances of your offending, Ms Wong submitted you had grown up in an abusive home environment, your father a violent alcoholic and a dominating figure in your life. You had a good relationship with your mother, however, did not spend much time with her as you grew up, as she worked nightshifts and slept during the day.
79 You began consuming alcohol when you were 14 and, at the time of this offending at 15, were drinking as much and as often as you could. I have read your record of interview and you referred to that use at the time of this offending.
80 Ms Wong referred to a report from Mr Warren Simmons, psychologist, to which I shall later refer, in which he opined your childhood would have left you vulnerable to alcohol abuse. Your father's behaviour would have modelled excessive alcohol consumption as normal behaviour.
81 On the occasion of this offending you said you had been drinking with friends and they teased you about you not being able to find a 'sexual encounter'. You believe now, that motivated this offending, along with your intoxication at the time. Your counsel correctly noted that, of course, your intoxication did not justify or excuse this very serious offending.
82 You are one of five children. Your parents separated on several occasions during your childhood and you spent time in refuges with your mother. Your parents separated permanently approximately 20 years ago, and your mother now lives in Gippsland with a number of your siblings. You maintained a good relationship with them.
83 Despite your difficult upbringing, you maintained a relationship with your father, living and caring for him until late 2019.
84 Your son has two children, your grandchildren are four and a half years of age and 10 months old. Apparently, I am told you speak with your grandchildren and son daily, or at least have done until your recent incarceration.
85 You are now a carer for your ex-partner, Kerry, who you said had a range of physical and mental disabilities, and had been providing care to her, you said, since August 2019. I discussed the lack of information regarding her 'disabilities'. Ms Wong was not relying on family hardship, 'exceptional circumstances', rather that you will be concerned about her health when you are serving your sentence in prison.
86 Prior to your care of Kerry, for approximately 10 years, you instructed you lived, as I have said, and cared for your father, who had a range of medical conditions (paragraph 21, Exhibit 1). When you began caring for Kerry in August 2019, your sister apparently moved in and took over his care. Kerry, you said, had a psychiatric illness with paranoid symptoms and a range of physical health conditions which limited her mobility, including diabetes and hypertension. You instructed that Kerry had previously been unable to obtain professional carers due to her challenging behaviours.
87 I was told your past history involved a relationship with Jane for approximately 18 months when you were 18 to 19 years of age. When 19, your relationship with Kerry began, which lasted for 12 years, your son James from that relationship.
88 When you were 37, you began a relationship with Trudy and were together for three years, with two children, now 17 and 15 years of age. You do not have any contact with those two children as they were taken by welfare services and apparently now live with a family in Sydney.
89 At age 42, you were in a relationship with Lisa for two years. You had been single since.
90 You attended several primary schools due to your family moving from place to place. You were expelled halfway through Year 7 due to bullying, truancy and behavioural issues.
91 After leaving school, you had a number of jobs, including concreting for approximately four years, in a steel factory approximately four to five years, a cleaner on the railways for four years approximately, a painter for 10 years approximately, and making wheel hubs for caravans for approximately four years. The latter company closed around 2015 and I understood you had not been in paid employment since, rather caring for your father, then Kerry.
92 Your excessive alcohol consumption ceased during your relationship with Kerry when in your twenties. However, after separation from her, the consumption escalated to daily use.
93 You previously attended Wellington House Rehabilitation for two weeks in 2004 or 2005, pursuant to a community-based order. You stopped drinking alcohol completely in 2013 for a time.
94 You began cannabis use when 17, using on a daily basis in your early 20s. Since 2013 you said you had reduced use significantly.
95 Your physical health, you described in Exhibit 1, paragraphs 29-31. Details are somewhat lacking regarding your apparent attendance at Monash Hospital Emergency Department in late July 2020. Most recently, you said you had been at The Alfred Hospital, following injuries sustained to your right forearm when attacked by a dog. Medical material confirming those injuries was tendered (Exhibit 5).
96
Addressing your mental health, Ms Wong referred to the report of
Mr Simmons dated 27 May 2020, in which he opined you appeared 'to have a history of anxiety disorder since you were in your twenties.
97 Ms Wong referred to your subsequent court appearances, that you had never previously been sentenced to a term of imprisonment. Your offending of stalking and make/produce child pornography, you instructed, involved placing letters in various letterboxes in your neighbourhood containing pornographic images of children. Your explanation for that offending, you said, was distress and anger at not being able to see your son at that time. The circumstances of that offending and your explanation cause me some concern. Again, I note, however, very different offending to that before me.
98 Addressing relevant sentencing principles, your counsel urged that as your offending was committed as a 15-year-old child, general deterrence should be sensibly moderated (Galuak [17] and Boland [16]). I agree. Your counsel also submitted that the law recognised young offenders are immature and more prone to ill-considered or rash decisions, and lacking a degree of insight referable to moral culpability, and I was referred to Azzopardi v R.[10]
[10](2011) 35 VR 43, 53 [34].
99 Addressing specific deterrence and protection of the community, Ms Wong urged your criminal history showed you had not re-offended in a similar manner for over 37 years, and your offending regarding child pornography was quite different in nature. It is, although it is a bit disturbing. You were deeply remorseful, she said, for this offending and had taken responsibility for it. Your risk of re-offending was, she urged, low.
100 In addition, Ms Wong referred to the report of Mr Simmons of 27 May 2020, noting you did not appear to have any significant antisocial personality traits, that your offending occurred in the context of consumption of alcohol and being challenged by your peers regarding your lack of ability to obtain a sexual partner, that you were remorseful for your offending and the impact it had on Ms Barnett.
101 In Mr Simmons' opinion, there was, Ms Wong submitted, little at the present time that treatment could offer you for this offending, as it had occurred over 30 years ago, the factors contributing to that offending no longer relevant. You now rarely consumed alcohol and your cannabis use did not cause significant difficulties, although Mr Simmons did urge a brief episode of drug and alcohol counselling might be worthwhile.
102
Utilising the Static-99 and RSVP Assessment Tools, in the opinion of
Mr Simmons, you fell into the low-category risk of future sexual offending.
103 Ms Wong submitted absent delay in this offending being dealt with, you could have been sentenced in the Children's Court, where a different sentencing regime applied to that as an adult.
104 Your counsel urged that as a result of the COVID-19 pandemic, imprisonment would be more onerous for you than absent the pandemic. I am aware you will likely spend your initial 14 days in isolation. Also, that, 'in person' prison visits have been suspended and there has been a reduction in courses available to prisoners. Other than speculation, no further restrictions specifically relevant to you have been identified. Should there be 'lockdown' due to COVID-19 this may or may not in the future be addressed by Corrections. I do not, however, take that into account, that is the possibility of emergency days being declared, as such is speculative and not relevant to the sentence I impose.
105 Turning to disposition, Ms Wong urged the appropriate disposition for this offending was a term of imprisonment that was wholly suspended.
106 I turn to the report from Mr Simmons, psychologist, dated 27 May 2020, which I have read and I will not repeat in detail. Further information was contained therein regarding your background and history, including further details in that report of the physical abuse by your father towards you (paragraph 4, Exhibit 2), and physical violence by him to your mother (paragraph 8).
107 You did not recall major issues in your relationship with teachers or peers until Grades 5 and 6 when, at that time, you and your sister were bullied.
108 When you attended Knox Technical School, you reported your home life was then more stable. You had, however, commenced truanting, fighting back against the bullies, which led to you being expelled.
109 Further details were provided regarding your employment history (Exhibit 2, paragraphs 11 and 12), also further details of your relationship history.
110 Addressing your drug and alcohol history, you had also experimented with amphetamines on a few occasions, heroin on a couple of occasions, however denied ongoing use of those drugs.
111 You did not have any significant medical history and you were not on any medication at the time of interview with Mr Simmons.
112 While Mr Simmons noted you appeared to have a history of an anxiety disorder. In my opinion, the principles in R v Verdins & Ors[11] were not enlivened by his report, and I note Ms Wong was not seeking to rely upon Verdins principles relevant to sentence. That, in my opinion, was an appropriate concession by her on the material before me.
[11](2007) 16 VR 269 (‘Verdins’).
113 Addressing your psychosexual history, you did not disclose any evidence suggestive to Mr Simmons that you had fantasies of rape or patterns of control.
114 Regarding this offending, you said you did not have a complete recall of the offences as you had been drinking with friends on the evening prior to it occurring. You did not attempt to justify your behaviour, readily acknowledging it was wrong and inappropriate and did not attempt to minimise your offending. You acknowledged you had 'ruined someone's life'. You denied any premeditation/pre-planning in your offending, although as I have already referred, in my opinion there was some.
115 In the opinion of Mr Simmons, your offending occurred in the context of you having consumed alcohol and being challenged by peers. You now rarely drink, and your cannabis use was moderate.
116 A supplementary report was prepared by Mr Simmons, dated 3 August 2020 (Exhibit 3), in which he addressed your risk of sexual recidivism. I have read that report. Having utilised the relevant assessment tools, Mr Simmons concluded you fell in the low-category risk of sexual re-offending.
117 Written correspondence from you was tendered (Exhibit 4). You apologised for the rape of your victim. You acknowledge this type of crime could not be forgiven and you could not take it back. You hoped your arrest would provide some closure for her. You were sorry for your offending and disgusted in yourself for it. Since you were an adult, you hated what you had done and could not understand the full impact this crime would have had on her. You accepted it was your fault the victim's life was ruined, and you wished you could change that. You apologised for your rape of her, of causing the end of her relationship with her son and father of him. You wished that this had not happened to her.
118 The prosecution filed a response to Ms Wong's written plea submissions, dated 20 August 2020 (Exhibit D). The prosecution did not take issue with the principles of law referred to in Ms Wong's written submissions.
119 Mr McKenry submitted your offending was a very serious example of a very serious offence, with long-lasting and profound impact on the victim. He is correct. Further, he noted your offending was motivated solely by a desire for sexual gratification. It was.
120 Referring to you now being sentenced as an adult, with this offending committed as a child, Mr McKenry referred to the decision of Rootsey v R,[12] which I have read, and I discussed during the course of the plea hearing. There are a number of similarities and some differences in that to your offending. I note in part, the different maximum penalties that applied in Rootsey compared to your case, and also as I understood it, in Rootsey that did not involve a ‘rolled-up’ charge. But as in all cases, facts and circumstances vary enormously relevant to offending case to case, as do matters in mitigation and personal to an offender. A number of relevant sentencing principles, however, can be found in that decision applicable when sentencing you.
[12][2018] VSCA 108 (‘Rootsey’).
121
Addressing your risk of sexual recidivism, Mr McKenry noted that
Mr Simmons, in his report of 27 May 2020, utilising the Static-99 R Assessment Tool, opined your risk of sexual recidivism was moderate to high level, yet in his supplementary report, using the RSVP Assessment Protocol, you were assessed as low. In my opinion, taking into account both assessment tools, he assessed your overall risk of sexual re-offending as low, and I proceed on that basis.
122 The prosecution conceded yours was not a situation where you had not committed further offences since this offending and referred to your subsequent court appearances, including convictions for stalking and producing child pornography at the Ringwood Magistrates' Court in 2004, which resulted in you being placed on a community-based order and being supervised as a sex offender. It is clear you have had a number of court appearances, as set out within the amended subsequent convictions' document, up until and most recently, June 2019. You have not achieved rehabilitation in that regard. I note, however, no further offending of the type currently before me.
123 The prosecution submitted you were an appropriate vehicle for general deterrence; however, conceded general deterrence should be moderated because of your youth at the time of this offending. I agree. And it is consistent with the authorities, including Galuak. In addition, the prosecution submitted denunciation was an important sentencing consideration, given the circumstances of your offending involving a vulnerable young woman walking home alone in the dark, and fearing you had a knife. I note also, force used against her, preventing her from being able to identify you by putting a blindfold on her.
124 Regarding your remorse for your offending, the prosecution conceded such was a relevant sentencing consideration, I agree. The prosecution, however, submitted that in the years since this offending you had numerous opportunities in your interactions with police and your subsequent court offences to confess before you were arrested for this offending in July 2019. While that is true, it is unlikely you (or anyone for that matter) are likely to volunteer this offending.
125 As well as matters personal to you to which I have referred, including your prospects of rehabilitation which I regard as good, I must also take into account the need for general deterrence, moderated, when sentencing you. I note your age at the time of this offending, 15 years, and that you would, if sentenced then, have been dealt with at that time in the Children's Court.
126 I must also take into account the need for specific deterrence when sentencing you. There is an element of that required, although I note your subsequent offending does not involve sexual offending of the same type as that before me.
127 There is also the need to protect the community from you. I am comforted in that regard by the conclusion of Mr Simmons that you are a low risk of sexual re-offending and that you have not re-offended in this way since this offending occurred approximately 30 years ago.
128 I am also called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose just punishment.
129 In my opinion, to impose a term of imprisonment and suspend it either wholly or partially would not reflect the objective gravity of your offending, notwithstanding all the matters in mitigation of sentence. An immediate term of imprisonment is, in my opinion, the only appropriate disposition.
130 I sentence you as follows.
131 On Charge 1, you are convicted and sentenced to three years' and nine months' imprisonment.
132 On Charge 2, you are convicted and sentenced to six months' imprisonment.
133 Charge 1 is the base sentence, and I direct that two months of Charge 2 be served cumulatively upon Charge 1.
134 That results in a total effective sentence of three years' and 11 months' imprisonment.
135 And I direct you serve a period of two years' and six months' imprisonment before you are eligible for parole.
136 Pursuant to s.18(4) of the Sentencing Act 1991, I declare you have spent 14 days in custody by way of pre-sentence detention, up to and including yesterday, 3 September 2020, and I direct that be entered into the records of the court. I will check it with counsel in a minute.
137 Pursuant to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to these two charges and been found guilty of them, I would have sentenced you to a term of imprisonment of seven years, with a non-parole period of five years.
138 First of all, PSD correct?
139 MR McKENRY: Yes, Your Honour.
140 HER HONOUR: Any other orders?
141 MR McKENRY: None sought, no.
142 HER HONOUR: All right. Anyone want help with the figures? I am not asking if you like the figures. Did you get the figures down?
143 MR McKENRY: It is correct from my account.
144 MS WONG: (Indistinct) the figures, Your Honour. And as the court pleases, could I ask the permission to speak very briefly to Mr Barnes after you stand down, just to make sure that he understands the figures. I will not have a long conference with him, obviously.
145 HER HONOUR: Hold on. Look, how long are you going to be?
146 MS WONG: Probably about just five minutes or so.
147 HER HONOUR: Well, five minutes or so, you can have until quarter to and that is it, all right?
148 MS WONG: All right, thank you, Your Honour.
149 HER HONOUR: So, that is not five minutes, it is about eight minutes.
150 MS WONG: I am grateful, thank you.
151 HER HONOUR: Before we do that, however, I have just been given a note by my associate. You two would both appreciate we are doing everything via Webex, people have to give notification of their attendance and so on; you are aware of that, I trust?
152 MS WONG: Yes.
153 HER HONOUR: Right, a message from my associate, 'Mr Barnes' sister apparently attended court; however the door was locked and permission to attend was not sought'. And my associate was only advised of that during the course of my sentencing. That was too late to arrange Webex facilities for his sister. So, basically, there is a process, which is the way it is. We do not intend to exclude people if we do not have to, but we cannot just - the rules are the rules. We have to all abide by them whether you like it or not.
154 MS WONG: I appreciate that, and I will make sure that we get in contact with Mr Barnes' sister to explain what has happened.
155 HER HONOUR: Yes, would you mind - it is up to you in the end, but that is the way it is done and if she took offence to that - I do not know whether she did or not - where there is a strict set of rules for all of this. All right?
156 MS WONG: We were not aware that she was intending to do that, so I do apologise for inconvenience caused.
157 HER HONOUR: No, that is all right. I just want you to let her know that it is not - I was not excluding her specifically. I just found out that she was there. But the problem is we cannot just let people wander in and out.
158 MS WONG: We will contact her to explain, Your Honour, thank you.
159 HER HONOUR: Right, you can have until a quarter to, you have now got seven minutes left. I will leave.
160 MR McKENRY: As Your Honour pleases.
161 HER HONOUR: My associate will leave. Mr McKenry's going to leave - - -
162 MR McKENRY: Yes, Your Honour.
163 HER HONOUR: - - - the informant will leave, instructors will leave. Please keep it - - -
164 MS WONG: Could I just have Mr Sackville there as well, please? He is my instructor.
165 HER HONOUR: He is there, is he? All right. So, that is three of you. Everyone else is going to go, all right.
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