Director of Public Prosecutions v Barrett (a pseudonym)
[2023] VCC 749
•6 April 2023
,
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02112
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL BARRETT (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 March 2023 | |
DATE OF SENTENCE: | 6 April 2023 | |
CASE MAY BE CITED AS: | DPP v Barrett (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 749 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Plea of guilty – indecent act with a child under 16 – early plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Phillips (a pseudonym) v The Queen [2018] VSCA 114
Sentence: Total effective sentence: 4 months imprisonment suspended for 12 months and 18 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Skehan | Office of Public Prosecutions |
| For the Accused | Ms A. Beech |
HER HONOUR:
1Paul Barrett,[1] you have pleaded guilty on indictment M11632718.3 to three charges of committing an indecent act with a child under 16.
[1] A pseudonym.
2At the outset, I acknowledge that your offending has caused great hurt to your victim and your immediate family unit has been shattered. It is my duty to sentence you in accordance with the criminal law. The sentence I am about to impose cannot repair the damage that has been caused, but I trust that it will bring closure and finality to the process and so allow your victim and family to heal and move forward.
Circumstances of offending
3The complete agreed factual basis of your offending is detailed in the Summary of Prosecution Opening for Plea dated 14 March 2023. This document was tendered on your plea as Exhibit A what follows is a summary.
4You were between 25 and 29 years of age when you offended. In 2007 you commenced a relationship with Debra Barrett.[2] At this time Ms Barrett had a two-year-old daughter Belinda Moss,[3] who is the victim of your offending. Belinda has since changed their name to Stephen.[4]
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
5You moved to live with Debra Barrett and in 2011 you and Ms Barrett had a son, Damon.[5] In November 2013, you and Debra Barrett married. At this time, you became Stephen’s stepfather and formalised the parenting relationship you had with them.
[5] A pseudonym.
6Stephen states that at about seven years old, you would play games with them (including ‘play fighting’). Stephen states that, on a regular basis, you would take off their pants and touch them on the vagina. You are not to be sentenced for these actions, they are relevant to put your charged offending into a realistic context.
7When Stephen was about six – seven years old, they had two friends stay over at the Wyndham Vale house for a weekend. Ms Barrett drove the two friends to their homes at the end of the weekend, and Stephen was upset their friends had left. You started ‘play fighting’ with Stephen, but they did not want to play.
8Stephen entered the kitchen to get a drink, and you then chased them into Ms Barrett’s bedroom. You picked Stephen up and pushed them onto the bed. You pulled Stephen’s leggings down and tickled them. You then pulled down Stephen’s underwear and placed a finger against their clitoris. You did this for several minutes.
9Stephen heard Ms Barrett’s vehicle return, at which time you stopped and told them to get up. Stephen went to their bedroom and put their clothes back on. (Charge 1)
10On an occasion when Stephen was about eight years old, they were asleep on the top bunk at home in Wyndham Vale. Stephen woke up because you were moving them. You were standing on the ladder next to the bed, wearing only black underwear, you had positioned Stephen so that their legs were facing you.
11You removed Stephen’s pyjama pants, spread their legs, and looked at their vagina for a couple of minutes. You then pulled Stephen’s pyjama pants back up and left the room. Stephen was scared and felt they could not complain for fear of Damon being taken away. (Charge 2)
12On 15 April 2016, when Stephen was 10 years old and living in Manor Lakes, they awoke at around 4 am to find you on their bunk bed, pushing the middle part of their pyjama shorts to one side. You were underneath the blanket and had activated the torch light on your mobile phone.
13For several minutes, you looked at Stephen’s vagina. They screamed at you to get out of their room and then kicked you. As a result you fell down the ladder of the bunk bed and left their room.
14Julie Stanley,[6] Stephen’s grandmother, heard them scream and came into their bedroom to check on Stephen. They were crying and told their grandmother that you had looked at their vagina with a light on. (Charge 3)
[6] A pseudonym.
15You went to the bedroom you shared with Ms Barrett and woke her up. You told her that you had woken the victim and thought you had scared them. Ms Barrett could hear Stephen screaming so went to their bedroom. Stephen told Ms Barrett that you had been looking at their vagina.
16Ms Barrett confronted you about what Stephen had said. You told her that you were checking on Stephen when you received an email. You used your phone light to read the email underneath the Stephen’s blanket. Ms Barrett told you the marriage was over. You left the home on that morning and did not return. Before leaving, you told Stephen, “I’m sorry”.
17The next day, Ms Barrett contacted the police, however Stephen was too upset to make a VARE statement. Stephen received counselling for some years and then on 3 December 2019, Stephen made a VARE statement with the police.
Arrest and procedural matters
18On 6 February 2020, you attended the Werribee Police Station where you were arrested by appointment. You participated in a record of interview and made some admissions. It was not until 20 July 2021 that you were charged on summons. On 23 November 2021 you made an offer to enter plea negotiations with the prosecution. No negotiation took place until after the cross-examination of Stephen at a special hearing, which occurred in February 2022 and after several pre-trial rulings which were made in December 2022. Your matter finally settled shortly before trial.
Victim Impact Statements
19It was clear to all who witnessed Stephen reading their victim impact statement that your offending has had a profound affect upon them. Stephen described how they have felt sick, betrayed and unsafe for many years as a result of your offending. They still have nightmares and feel as though they are a burden on family and loved ones. Stephen said the fact that you were their stepdad, someone they loved and trusted, made the betrayal even worse. Stephen remains traumatised, angry and hurt by what you have done.
20Debra Barrett also provided a victim impact statement. Ms Barrett described how you broke promises and broke up the family as a result of your offending behaviour. She also described how her own life has been significantly impacted because of Stephen’s response to your offending. Ms Barrett has had to resign from her work and move house. Your offending has caused her to question herself as a parent and she can no longer trust other adults around Stephen and Damon. In short Ms Barrett stated that your offending has traumatically impacted the whole family.
21
Lastly, Julie Stanley, Stephen’s grandmother, made a victim impact statement.
Ms Stanley said you have destroyed what was once a happy home. Further, she said that you have hurt Stephen who was once a fun-loving little girl. Stephen and her family have had to live in constant anguish because of your actions.
22I have taken into account the impact your offending has had upon not only Stephen but also their mother and grandmother in the formulation of the sentence I am about to impose.
Nature and gravity of offending
23As has been conceded by your counsel, any offending of a sexual nature against a child is serious. Sexual offending against children is abhorrent and must be sternly denounced by this court. Children are one of the most vulnerable groups in our society and must be protected.
24The maximum penalties applicable to your offending, are both the starting point and an important yardstick when considering the objective seriousness of particular offending. In this regard the maximum penalty for the charge of indecent act with a child is 10 years' imprisonment.
25In assessing the nature and gravity of your offending I take into account that you were responsible for the love, care and protection of your victim. They were entrusted to your care by virtue of your relationship as their stepdad. You abused this trust in a gross way and in doing so have destroyed what was your family unit. Your offending is particularly egregious because it occurred in the victim’s home, and on two occasions it occurred, in their bed. Both are places where they were entitled to feel safe. Their sense of personal space and privacy was violated.
26As submitted by your counsel, the age of a victim of sexual offending, the duration of the offending and the degree of physical contact are relevant in assessing where, on the spectrum of seriousness, the offending lies.[7]
[7] Phillips (a pseudonym) v The Queen [2018] VSCA 114.
27
In this case your victim was aged between six and 10 years at the time of your offending. You offended over a four year period between 2012 and 2016. I accept that each of the three incidents to which you have pleaded guilty was short-lived and involved very limited or no skin-to-skin contact. Further, I accept that there was no threat, aggression or even active participation or involvement by your victim. There was no physical pain inflicted, nor was the victim exposed to any risk of physical injury. For these reasons, I accept the submission of your counsel,
Ms Beech, that your offending is not at the high end of the spectrum of seriousness for similar offences.
Personal circumstances
28You were born in December 1986, and you are now 36 years old. At the time of the offending, as I have said, you were aged between 25 and 29 years old. During the offending period, you were either in a de facto relationship with Debra Barrett or married to her.
29You are the younger of two children born to your biological parents. Together with your older brother, John,[8] you were raised in the outer western suburbs. When you were approximately seven years old your father became gravely ill with bowel cancer. After two years of suffering he passed away at the age of 38 years. This was utterly devastating for you and had a significant impact upon your childhood and later development. Your mother subsequently remarried a man who had been a family friend, and you then lived with your mother, stepfather, old brother and several stepsiblings.
[8] A pseudonym.
30Your relationship with your stepfather was difficult, he was emotionally cruel and this had a lasting effect on your self-confidence and happiness. Although your mother remained supportive, the issues between you and your stepfather have had a negative impact on your relationship with your mother.
31Despite this problematic relationship, you worked with your stepfather for several years, until a recent falling out caused you to cease contact with your stepfather and by default, your mother. You retain the support of and contact with your stepsiblings and older brother, John.
32Regarding your education, you attended local schools in the outer western suburbs. You did not experience any significant social or behavioural problems, nor did you struggle with your school work. After completion of your VCE, you undertook an apprenticeship as a refrigeration mechanic, a field you worked in until 2013. It was then that you obtained employment with your stepfather in a transport and logistics company. You completed a Certificate IV in Business Management and Leadership to assist you in this role. After your resignation from your stepfather’s business, you have gained employment with Vic Roads.
33You do not have any drug or alcohol addictions. You are a social drinker currently, and although you have experimented with MDMA, amphetamine and cocaine during your late teens you have not used any illicit substances since this time.
34For the past five years you have been in a relationship with Sharon Greene.[9] You are living together, and have been for the last four years. Ms Greene has been with you as you have negotiated these court proceedings. Obviously, she is aware of your offending and remains supportive of you. A testimonial from Ms Greene was tendered on your plea and I have taken this into account in your favour.
[9] A pseudonym.
35Over several years you have been involved with the Boat Club.[10] You have volunteered your time at the club for a considerable period and five years ago you started as executive race secretary until you had to resign due to these criminal proceedings. You remain an active member of the club. A testimonial from the commodore of the Boat Club was also tendered at your plea. They detailed how your hard work has been extremely beneficial to the club. I take into account your significant voluntary contribution to this club over several years.
[10] A pseudonym.
Mental health
36A comprehensive and informative psychological report from Dr Matthew Barth was tendered at your plea. Dr Barth provided a number of opinions including:
(a) You were suffering from mild anxiety mainly in reaction to the legal proceedings. This anxiety was not sufficiently severe to meet diagnostic criteria for a mental disorder;
(b) You function with the normal range of intelligence and there were no indications of any form of thought disorder or psychosis;
(c) You suffer from poor self-esteem and your social skills are not well-developed;
(d) In the past you resorted to behavioural means to manage stress and became pre-occupied with viewing pornography as a method of self-soothing using pornography as an escape;
(e) You had persistent sexual fantasies of pre-pubescent female children however, you have not experienced any deviant sexual fantasies for several years. In this regard you have been able to display some insight into your previous sexual fantasies of children, but you have been unable to apply this understanding to your offending against the victim in this matter.
(f) You are a low risk of sexual recidivism;
(g) Ongoing psychological treatment and support would be beneficial. Although you have previously participated is offence-specific treatment further specialist sex-offender treatment is warranted to help you overcome your denial and gain better insight;
(h) You previous commitment to treatment bodes well for your ongoing potential for rehabilitation. Provided you engage in an active manner and are able to improve your insight into your offending behaviour there are some grounds for optimism in your case.
37I accept the opinions of Dr Matthew Barth and have taken them into account in the sentencing synthesis.
38I also take into account the materials received under subpoena from both Barwon Health and Forensicare. The Barwon Health notes reveal just how seriously you have taken this matter and just what impact the court proceedings have had upon you. As recently as January 2023 you seriously contemplated taking your own life and as a result have required follow up psychological care.
39Whatever the motivation for your introduction and participation in the problem behaviour clinic at Forensicare, I consider this to be a very important mitigatory factor in your favour and I will refer to this shortly.
Delay
40In general delay can be an important mitigatory factor in sentencing. There are two potential effects of delay. First, there may be considerations of fairness and second, there may be considerations of rehabilitation. In my view both limbs have application in your case.
41First, it is apparent from both the report of Dr Barth and the notes from Barwon Mental Health that having had this matter hanging over your head for a significant period of time has caused you considerable anxiety, stress and uncertainty for your future.
42Second, it is now between seven and 11 years since your offending. On 15 April 2016, which was the date of your last offence, your offending was exposed. It was not until 3 December 2019 that a formal report and VARE statement was made to police. You were interviewed on 6 February 2020 and not charged until 20 July 2021. In offending of this nature the period between the offence date and interview is often not given any mitigatory weight. This is because it is well recognized that there are multiple reasons why a victim of sexual abuse may fail to report such offending, or delay reporting such offending. In your case, however, there are several reasons why this entire period of delay should be considered.
43Although there was no police action taken at the time your offending came to light in 2016, police reports were made and the direct consequences were that you were expelled from your family home.
44In the context of family law proceedings and counselling in January 2017 you were assessed by Dr Ian Katz and advised that you required ongoing psychological treatment to address admitted issues of sexual arousal concerning at least one pre-pubescent female and a possible paedophilic disorder. As a result you self-referred to the Forensicare Problem Behaviour program on 30 January 2017.
45
From my reading of the notes from Forensicare, you diligently and openly applied yourself to offence-specific counselling. On 15 August 2018, after 18 months of treatment, where you completed 34 sessions, your therapy was ended, to quote Dr Kessous, “due to Mr Barrett’s [your] progress and capacity to maintain changes in line with the goals set out at the onset of therapy”. Importantly, this occurred prior to any formal report to the police and well before your record of interview.
Mr Barrett, not only did you engage in this treatment but you have been successful in achieving significant reform. According to Dr Barth you still have work to do, but your engagement and commitment to rehabilitation to date provides the court with confidence that you will actively participate and continue to make advances in terms of your insight and rehabilitation. In my view this will further reduce the already low risk that you will re-offend.
46Further, in terms of rehabilitation generally, I take into account the support you have from your partner, your solid work history, your lack of prior convictions and the lack of any subsequent offending.
Plea of guilty
47I accept your plea of guilty, although it came just before your trial, should be considered an early plea. This is because of the offer made by you to plead guilty to a factual scenario very similar to how your matter has now resolved. This offer was made within four months of you having been charged.
48Your plea has significant utilitarian value as it has spared the court the time and expense of what would have been an emotional and lengthy trial. This has to be seen in the context of the significant backlog of cases before the courts in the wake of the COVID-19 pandemic. Although there have been inroads made by the court into this backlog, what the Court of Appeal have said, and the principles in the case of Worboyes,[11] remain relevant. I therefore give greater weight in mitigation to your plea of guilty recognising that it is a plea that has eased the burden of the backlog of trials. Accordingly, I propose to allow a significant sentencing discount.
[11]Worboyes v The Queen [2021] VSCA 169 at [39]
Totality
49Your counsel submitted that I should take into account the total criminality involved in all of the offences for which you are to be sentenced. I agree I must impose a sentence that is just and appropriate by looking at your criminality as a whole.
Sentencing principles
50I consider that the relevant sentencing principles that must be applied in your case are general deterrence and just punishment. In addition, your offending must be denounced by the court, and I do so in the strongest terms possible. Further, I take into account the principles of parsimony, proportionality and rehabilitation. In my view considerations of specific deterrence should be given little to no weight given your commitment to rehabilitation and your lack of prior or subsequent offending.
51Mr Barrett, after consideration of all of the above matters, including the oral and written submissions of both your counsel and the prosecution, the victim impact statements from Stephen Moss, Debra Barrett and Julie Stanley, all of the tendered material, the Sentencing Advisory Council sentencing statistics, that is insofar as they are able to be of assistance and the comparable cases helpfully provided by your counsel, I have come to the view that the only just and appropriate sentence that can be imposed for the serious offending before the court is one that involves a suspended term of imprisonment and a community correction order. It is my view that community protection can best be achieved by not interrupting your progress towards rehabilitation but rather, by building upon the gains you have already achieved.
52I have had you assessed for such a community correction order, and you have been assessed as suitable. So, Mr Barrett, I would ask that you stand.
53In relation to the Charge 1, which I consider to be the most serious of your offending, you are convicted and I sentence you to four months' imprisonment. I order that this sentence be suspended for 12 months. This means you do not have to serve immediate imprisonment at this time. If you commit an offence punishable by imprisonment in the next 12 months you would need to show exceptional circumstances that have arisen since todays date in order to avoid serving the four months' imprisonment I have imposed.
54In relation to Charges 2 and 3, you are convicted and you are placed on a community correction order for a period of 18 months. The conditions of this community correction order include:
(a) Assessment and treatment in relation to mental health;
(b) Offending behaviour programs, in particular the sex offender program;
(c) Supervision by the Office of Corrections.
55
In addition to those conditions, there are some standard conditions that I have to tell you about. I am sure these were explained to you the other day when you were assessed by Corrections, but I need to repeat them. So first and foremost, you must not commit any offences punishable by imprisonment during the next
18 month period of the community corrections order.
56You also need to report within two working days to Geelong Community Corrections. You are required to advise your supervising Corrections office of any change of address where you are living or working within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without their prior permission. If you breach any of those conditions or you do not comply with those conditions, or the conditions I have imposed, it would be a contravention of the order. And it would mean that you could be brought back before me and you would be dealt with for breach and likely receive a term of imprisonment.
57Pursuant to s6AAA of the Sentencing Act[12] if not for your plea of guilty I would have sentenced you to six months immediate imprisonment with a corrections order in the same terms as what I have imposed today.
[12]Sentencing Act 1991 (Vic) s6AAA.
58Pursuant to s1 of the Sex Offender RegistrationAct 2004 I declare that you are a registrable offender as you have pleaded guilty to three Class 2 offences. Pursuant to s34 of the Sex Offender Registration Act 2004 you are required to report for life. Firstly we have got the community correction order ready and I will get my associate to show that to Ms Beech and have you sign that order. Secondly there is some paperwork that will have been generated about your obligations under Sex Offender Registration Act. We need you to sign an acknowledgment that you have received that information from the court. I do not need you to read through all of that and understand it straight away, and I expect you have been given some advice about that by Ms Beech.
59Mr Barrett, obviously you will have to, at a time that is appropriate, report to the police. They will then get a variety of information from you and you will have ongoing obligations and requirements for the rest of your life in relation to the sex offender registration scheme.
60Stephen, can I just say to you that I have really appreciated you coming and I think it is really important that you have been involved in this process. I consider that it was extremely brave and courageous of you to read out the statement that you read. It must not have been easy. I hope that now that the matter is over from this point of view - I do not expect that it will be over for you - but I hope that now that this part of things is over that you can move forward in some way, and I really wish you all the best in the future.
61So thank you very much to the parties. Thanks, Ms Beech, for very comprehensive sentencing submissions. Mr Barrett, I wish you all the best with the community correction order. I trust that you will stay out of trouble and I have every confidence that you will continue to move forward with your rehabilitation. Do not let me down. We will adjourn.
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