Director of Public Prosecutions v Barrow (a pseudonym)
[2025] VCC 313
•25 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MASON BARROW (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2025 | |
DATE OF SENTENCE: | 25 March 2025 | |
CASE MAY BE CITED AS: | DPP v Barrow (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 313 | |
REASONS FOR SENTENCE
---
Subject:Criminal law – Sentence
Catchwords: Attempted rape – Procuring sexual act by threat – False imprisonment – Victim an intimate partner – Family violence – Prior criminal history – Subsequent matters relating to the same victim – Principle of totality Youth – Plea of guilty – Disadvantaged background giving rise to Bugmy considerations.
Legislation Cited: Crimes Act 1958 (Vic); Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Azzopardi v The Queen (2011) 35 VR 43; R v Mills (1998) 4 VR 235; Bidong v The Queen [2022] VSCA 33; Bugmy v The Queen (2013) 249 CLR 571; DPP v Smeaton [2007] VSCA 256.
Sentence: Total effective sentence of 4 years and 9 months’ imprisonment with a non-parole period of 3 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter (Plea) Ms I Abdulnour (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr J Barreiro | Adrian Paull Criminal Lawyers |
HIS HONOUR:
Introduction
1Mason Barrow, [1] following a sentence indication,[2] you have pleaded guilty to the following three charges on Indictment number P11006305:
· Charge 1 – attempted rape contrary to ss 321M and 38(1) of the Crimes Act 1958;
· Charge 2 – procuring sexual act by threat contrary to s 44(1) of the Crimes Act; and
· Charge 3 – false imprisonment contrary to Common Law.
[1] A pseudonym.
[2]The sentence indication hearing took place on 10 December 2024. The indication of a total effective sentence of 4 years and 9 months’ imprisonment with a non-parole period of 3 years, was given on 30 January 2025. The indication was accepted and the arraignment took place on 12 February 2025.
2Attempted rape carries a maximum penalty of 20 years’ imprisonment. Procuring sexual act by threat and false imprisonment each carry a maximum penalty of 10 years’ imprisonment.
Circumstances of the offending
3An agreed prosecution opening dated 6 March 2025 was read aloud in Court.[3]
[3]Exhibit A.
4You were 21 years old at the time of the offending.
5You and the victim commenced a relationship in December 2021 and started living together in the victim’s home soon after you met. Within the first month of your relationship the victim fell pregnant with your child. You found out about the pregnancy in the middle of January 2022.
6In the early hours of 2 February 2022, you and the victim were in your bedroom when you armed yourself with a knife and threatened to self-harm. You were wearing underpants and the victim was curled up on the bed wearing a T-shirt and underpants. Two of the victims’ children were in the adjacent bedroom.
7You walked around the bedroom with the knife in your hand threatening to slice your wrists. You told the victim that it was her fault because she did not love you or show you any affection.
8You sliced your wrists and told the victim the next one would be on your throat. You told the victim that you would kill yourself because of her. She repeatedly asked you to stop it. She asked you to move so she could go next door and call an ambulance and the police.
9Later in the morning when you were sitting on top of the victim on the bed, you told her that you were taking off her pants now and “that is what is going to happen”. She told you no to which you replied, “you have no choice cunt”. The victim was crying and told you to stop, and you told her to not make you do it. You said to her “you’re getting raped dog” and slapped her across the face. You then spat in her face and forcibly ripped her underpants off.
10You told the victim that she disgusted you and that it was all her fault because she could not love you. You also told her she was going to be raped and bashed “just like her uncles used to do”. You then took your underpants off and told the victim to “shut her mouth and spread her legs”. The victim said to you “You’re raping me” and you replied “Yeah I am ya dog, you want to play this game? I’m going to fuck you up, cunt.” (Charge 1 – Attempted Rape).
11After you told the victim to spread her legs and she refused, you told her that you were going to shove your penis down her throat. She replied that she did not want to do anything. You then said to her “Bitch, fuckin’ put it in your mouth right now, dog.”
12When the victim continued to refuse to put your penis in her mouth, you raised a metal drink bottle above your head and threatened to hit her with it. You said that if she did not put it in her mouth within 5 seconds, you were going to hit her with the bottle to her head where she had previously been injured. The victim’s head was still swollen from the previous injury. The victim then placed your penis in her mouth for about 5 seconds. (Charge 2 – Procure Sexual Activity by Threat).
13You then left the room before returning a short time later and getting into bed and cuddling the victim. During the incident the victim repeatedly told you that she wanted to leave and call the police. You positioned yourself between the victim and the bedroom door each time she requested to leave to prevent her from leaving. (Charge 3 – False imprisonment)
14During the incident there was a security camera in a charging dock on a bedside table in the bedroom. It was a camera that you made the victim carry around because you believed that she was seeing other men. Unbeknown to both you and the victim the incident was recorded by the camera.
15On 7 February 2022 the victim reported another matter involving you to the police.[4] At the time she made the report she was at her ex-partner’s father’s home. When the victim was making the report about the other matter, she reported some of the details of this incident occurring on 2 February 2022. The victim also told the police at this time that some of the incident was caught on camera. A police officer attended the victim’s home and obtained the 3 video clips that captured some of this incident.[5]
[4]See paragraphs [22] to [27] of these reasons.
[5]Exhibit B.
16The victim initially declined to make a formal complaint to the police regarding this offending. However, on 1 January 2023, she told a police officer that she had been thinking about the incident and now wanted to make a formal complaint. A Visual and Audio Recorded Evidence (‘VARE’) was conducted with the victim on 14 February 2023.
17At the time of your arrest and charge, you were serving a term of imprisonment. You refused to be interviewed by the police in relation to the allegations made by the victim relating to 2 February 2022.
Victim impact
18While there is no victim impact statement, it is clear from the video clips of the offending that you subjected the victim to a prolonged and horrifying incident. It is clear that she was absolutely petrified of you.
Criminal History
19You have a criminal record dating back to 2015. Between 5 January 2015 and 13 May 2019, you appeared in the Children’s Court on eight occasions. This has included appearances in respect of violent offending, comprising offences of threat to inflict serious injury, make threat to kill, assault with weapon, unlawful assault and affray. You also have a prior matter for false imprisonment in respect of which, alongside three offences of make a threat to kill, you were sentenced on 19 August 2016, to four months’ detention in a Youth Justice Centre. In the Children’s Court, you have also been sentenced in respect of criminal damage, contravention of family violence intervention orders, weapons and some dishonesty offences.
20Between 9 July 2018 and 23 November 2021, you have appeared before the Magistrates’ Court on seven occasions. This has involved appearances in respect of offending similar to that before the Children’s Court, including offences of make threat to kill, threat to inflict serious injury, unlawful assault, criminal damage, reckless conduct endanger life, stalking and contravention of a family violence intervention order. You have been sentenced to short terms of imprisonment and Community Correction Orders. You have subsequently appeared before the Magistrates’ Court in respect of contravening Community Correction Orders.
21You have no prior appearances before this court and you have no history of sexual offending.
Subsequent appearance before Ballarat Magistrates’ Court
22It is pertinent to note that your subsequent appearance before the Ballarat Magistrates’ Court on 30 August 2022 was in respect of offending relating principally to the same victim as the offending now before me.[6] At the time of reporting this offending the victim also reported other non-sexual violence related matters involving you (“subsequent offending”).
[6]There were two other victims subject to your offending in the subsequent appearance.
23In respect of this subsequent offending, you were arrested and remanded in custody on 7 February 2022. You pleaded guilty to contravening a family violence safety order, intentionally cause injury, make threat to kill, without authority/excuse enter a private place, criminal damage and four offences of common law assault.
24I have seen a document setting out the circumstances of the subsequent offending.[7] I note the subsequent offending occurred only a matter of days after the offending for which I am to sentence you. At the time of her report on 7 February 2022, the victim chose not to formally report the matters before me. She indicated she was not ready to do so.
[7]Exhibit D.
25In respect of the subsequent offending, you were sentenced on 30 August 2022, to 20 months’ imprisonment with a non-parole period of 14 months.
26I was told by your counsel, that as you were about to become eligible for parole, you were charged with the matters before me and remanded in custody. As a result, you served the full 20 months and have remained in custody since 7 February 2022. Therefore, you have now been in custody for over three years. Having served the 20 month sentence, you have accumulated pre-sentence detention totalling 569 days.
27This subsequent matter is relevant to the question of totality, and I will return to it later in these reasons.
Personal circumstances
28I have had regard to your counsel’s written submissions which set out your background.[8] Your background is also set out comprehensively in Mr Simon Candlish’s Psychological Court Report dated 11 June 2024.[9]
[8]Exhibit 3 at [4] to [11] (Defence Outline of Submissions on a Sentence Indication dated 6 December 2024).
[9]Exhibit 1.
29It is plain that you have endured a particularly dysfunctional childhood and adolescence. Your father, a member of an outlaw motorcycle gang, abused alcohol and illicit substances. He was physically abusive towards you and your mother. You grew up fearing your father. You have an older brother and an older half-brother. You came to the attention of Child Protection at a very young age. You were only a toddler when placed into state care, and later on, you were placed into residential care.
30Your parents separated when you were seven years old. You went to live with your father. You describe your father’s home as a “drug house”.[10] Here you were introduced to illicit drugs, observing associates of your father partake in drug use. In this environment you tried to act older and would use drugs with these people.
[10] Exhibit 1 at [33].
31Your mother had a number of relationships with other men. One of her partners would supply you with drugs. He was also violent towards your mother. You were placed permanently into the care of the state at the age of 14. You report being sexually assaulted at the age of 15 by male workers while in residential care.[11]
[11]Ibid at [37], [38] and [65].
32Your difficult home environment resulted in further issues at school. You report your education was limited to the completion of primary schooling. You were expelled from two secondary schools and did not engage in education beyond the age of 13.
33You were diagnosed with Attention Deficit Hyperactivity Disorder and had the assistance of a teacher’s aide throughout your primary school years. You struggled with concentration and had a short fuse. Accordingly, you would often act out if you did not understand what was being taught.
34You associated with the wrong crowd, would get into trouble, and were often truant from school. You began using methamphetamine at the age of nine and became a regular user by the age of 14. You were also binge drinking and smoking cannabis by the age of 14. You have used many other illicit substances, including cocaine, MDMA, GHB, LSD, heroin and prescription pain killers.
35Other than some brief labouring jobs, you have never worked.
36You became sexually active at a young age and became a father at the age of 14. You have three children to three different women. Your first relationship lasted two years and your second five years. You describe your third relationship, being your relationship with the victim, as “very toxic”.[12]
[12] Exhibit 1 at [75].
Gravity of the offending
37I am sentencing you in respect of three grave offences. The maximum sentences for each offence make clear the seriousness with which each offence is viewed.
38You offended against a vulnerable intimate partner who, as you knew, was pregnant with your child. If the written description of the offending does not adequately convey the terror your victim endured, the video clips make it absolutely plain.
39The terrifying ordeal is properly characterised as family violence. In DPP v Smeaton [2007] VSCA 256, Justice Dodds-Streeton observed the following at [21]:
Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil.
40You imprisoned your victim in her bedroom over a significant period.[13] You instilled fear in her by threatening to kill or seriously harm yourself whilst armed with a knife. You prevented her from leaving when she told you she wanted to leave to call the police and an ambulance. You engaged in acts of cruelty and violence towards your victim. Your conduct degraded and humiliated her. You slapped her, ripped her underwear off, spat on her face, called her a dog and a cunt, and reminded her of her past exposure to sexual violence. In respect of charges 1 and 2, you had no regard to her distressed state or her protests. In respect of charge 2, the threat of violence involved you raising a metal drink bottle and threatening to hit her with it in her head region, which was already swollen from a previous injury. In the face of a real and immediate threat from you, you forced your penis inside her mouth for some 5 seconds.
[13]From 1.34 am until at least 3.00 am.
41The offending conduct occurred in the victim’s home where she was entitled to feel safe. It occurred whilst her children were close by in the adjacent room.
42This offending occurred shortly after your release on 23 November 2021, having served a 21 day sentence of imprisonment. At the time of this offending you were on a Community Correction Order (“CCO”) for offences including family violence.
43In sentencing you, I denounce your conduct in the strongest of terms. The sentence I impose must deter others who may be inclined to use sexual and physical violence, and coercive control upon their partners and former partners. The message must go out loud and clear that such cowardly and abhorrent conduct will not be tolerated.
44Your history of violence, including family violence, and the fact you were subject to a CCO at the time of this offending means the sentence must specifically deter you from re-offending in a similar manner in the future.
45Protection of the community and just punishment also assume importance.
46Any sentence I impose must also take into account your rehabilitation. However, the more punitive aspects of sentencing take precedence.
47Subject to what follows later in these reasons, I regard your moral culpability for this offending as high.[14]
[14]Although moderated on account of Bugmy considerations.
Prosecution submissions
48On behalf of the prosecution, Ms Baxter filed written submissions dated 6 March 2025.[15] Ms Baxter submitted that your offending was objectively serious and attracted the sentencing purposes of general and specific deterrence, denunciation, and community protection. She submitted that these purposes assumed greater significance than your rehabilitation. Ms Baxter highlighted the features of your offending, as already outlined, that made it objectively serious.[16] She submitted that your offending was “abhorrent”, as it involved subjecting a terrified victim to a “sustained, violent and humiliating” incident.[17] Ms Baxter took no issue with the matters raised in mitigation but contended that these matters should be given lesser weight.
[15]Exhibit C.
[16]Ibid at [4] to [6].
[17] Ibid at [5].
Defence submissions
49Your counsel, Mr Barreiro, presented a plea in mitigation relying upon written submissions dated 9 December 2024,[18] and 6 March 2025.[19] He further tendered a psychological report dated 11 June 2024 prepared by Mr Simon Candlish,[20] and a letter of support from your mother.[21]
[18]Exhibit 3.
[19]Exhibit 4.
[20]Exhibit 1.
[21]Exhibit 2.
50Quite properly, Mr Barreiro conceded that a significant term of imprisonment involving a head sentence and a non-parole period would follow. In mitigation, Mr Barreiro relied upon the following matters:
(i)Your youth;
(ii)Your deprived upbringing giving rise to Bugmy considerations;[22]
(iii)Your plea of guilty; and
(iv)The principle of totality.
[22]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
Mr Candlish’s assessment and the application of Bugmy.
51Mr Candlish assesses your risk of sexual offending as falling in the Moderate risk category.[23] In terms of future violent offending against an intimate partner, he assesses your risk as High in risk scenarios one and two and Moderate in scenario three as outlined in his report.[24]
[23]Exhibit 1 at [118] to [136] and [147].
[24]Ibid at [137] to [143] and [151].
52Mr Candlish describes you as presenting as:[25]
…emotionally and socially underdeveloped. [You] revealed signs of lowered cognitive functioning such as concrete responses and poor recall as well as low self-awareness. [Your] account of [your] personal history revealed significant issues in [your] interpersonal functioning and self-direction as well as problems related to [your] identity and sense of self.
[25]Ibid at [12].
53In terms of your background, Mr Candlish states:[26]
[You] experienced significant childhood adversity and neglect. [You] were provided inadequate parental care and exposed to highly anti-social behaviour. [You] have a damaged attachment style.
[You] were not exposed to effective coping and developed similarly poor coping behaviours. [You] were sexually abused and sexualised as a child and developed sexualised behaviours. [You] emotionally detached as a way to cope with [your] adversity and [you] revealed pseudo-maturity. [You] lacked empathy as an adolescent and as a young adult due to the lack of empathy displayed towards [you] as a child. [You] felt powerless as a child contributing to strong anger and rage.
[You] relied on dysfunctional self-soothing and avoidance-based coping through substance abuse as well as frequent sexual activity. [You] pursued anti-social activity due to anti-social attitudes formed in childhood and [your] ongoing associations with anti-social peers. [You] used aggression as a means of emotional expression and release when heightened and emotionally dysregulated as well as to achieve anti-social goals.
[Your] attachment issues and personality impairment have created vulnerabilities towards relationship instability, conflict and distrust. [Your] substance abuse has exacerbated these underlying issues. [You] likely oscillate in an extreme manner between periods of idealisation and then devaluation of an intimate partner.
In the event that [your] current sexual offence charges are proven, such offending appears related to emotional dysregulation; substance disinhibition and destabilisation; hostile attitudes and poor empathy. [Your] sexual offence appears to reflect an expression of anger and hostility, in the context of [your] history of sexual aggressivity at times and use of sex to cope. [It] does appear to represent an extension of other forms of violence that [you] have engaged in towards past partners. It does not appear related to any deviant sexual interest in rape or sexual assault.
[26]Exhibit 1 at [153] to [157].
54In light of your background and Mr Candlish’s observations, there is no doubt that you have endured a particularly disadvantaged background. Your background explains your abuse of alcohol and illicit drugs. It also explains your sexual and violent tendencies.
55I accept that your background engages the Bugmy principle in a general sense. Your significantly deprived background, for which you are not responsible, allows the court to reduce your moral culpability, and give a slightly reduced emphasis on both general and specific deterrence, as well as denunciation.
56Conversely, your background and prior history requires the court to take into account the protection of the community. Protection of the community not only requires that a term of imprisonment be imposed, but to bear in mind the long term goal of assisting you with your rehabilitation in circumstances where you are still a relatively young man.
Youth and rehabilitation
57At the time of the offending, you were 21 years old and you are now 25. I accept that your relative youth indicates that rehabilitation remains an important consideration. I have had regard to the well-known propositions articulated by the Court of Appeal in Mills,[27] and Azzopardi.[28] While your successful rehabilitation is in the community’s interest, your offending conduct requires the court to balance and give due regard to the punitive aspects of sentencing.
[27]R v Mills (1998) 4 VR 235 (‘Mills’).
[28]Azzopardi v The Queen (2011) 35 VR 43 (‘Azzopardi’).
58I am unable to express great optimism with regard to your prospects of rehabilitation. However, if you were to maintain your abstinence upon your release and are amenable to engaging with appropriate treatment, then you may begin to deal with the multitude of issues which have led to your continued offending. Ultimately, your ability to successfully reintegrate into the community will be dependent on your willingness to take the requisite steps to address your issues.
59On a slightly more positive note, Mr Candlish states:[29]
[You] show signs of improved receptiveness towards services that might assist [you] to manage [your] risk in the future. [You] appear to show some early signs of understanding the impact of substance abuse and the need for psychological support.
[29]Exhibit 1 at [158].
60Mr Candlish makes a number of recommendations in his report in order to assist you with your rehabilitation. Such recommendations include psychiatric intervention, ongoing therapy to address your emotional regulation, improving self-awareness and programs to prevent further drug use.[30]
[30] Exhibit 1 at [161] to [162].
Totality
61I have borne in mind the principle of totality. Here totality is not only to be applied when sentencing you for each of the three offences on the indictment, but I must also bear in mind that you have served a sentence of 20 months’ imprisonment imposed on 30 August 2022 for offending principally upon the same victim and occurring in the same time frame.
62In Bidong v The Queen, the Court of Appeal said:[31]
…Such application does not proceed by seeking to identify what total sentence would have been imposed had all the offending been before the court at the time when the person was first sentenced, and the making adjustments to that sentence. Rather, the prior sentences and time spent in custody are part of the applicant’s circumstances which are required by the principle of totality to be taken into account.
[31]Bidong v The Queen [2022] VSCA 33, at [33] (Maxwell P and Kennedy JA).
63As submitted by your counsel, I have moderated your sentence on account of totality.
64I note that during your current period in custody, you have lost three grandparents and missed out in paying them your last respects.
Plea of guilty
65In sentencing you, I bear in mind that following the sentence indication, you entered pleas of guilty. While not an early plea, your pleas have saved court time and the expense associated with a trial. Importantly, your victim has been spared the further ordeal of having to give evidence again before a jury. I accept that any trial would have been an unpleasant experience which would have involved questioning the victim about what is and what is not captured on the video recording of the offending. Your pleas of guilty have facilitated the course of justice and the victim has been vindicated. You must be given appropriate credit for the resolution of this matter. I accept that your pleas of guilty indicate at least a degree of remorse.
Sentencing
66While I bear in mind your age and the importance of rehabilitation, I must give prominence to other more pressing sentencing purposes. Your offending must attract the strongest of condemnation. Anyone minded to offend in the manner that you did, must understand that it will be met with a significant period of incarceration. The sentence must also seek to deter you specifically from further similar reoffending. You must be justly punished and our community protected.
67Having taken into account all relevant circumstances and factors, Mr Barrow, you are sentenced as follows:
· On Charge 1, attempted rape, you are convicted and sentenced to 3 years and 3 months’ imprisonment.
· On Charge 2, procuring sexual act by threat, you are convicted and sentenced to 3 years and 6 months’ imprisonment.
· On Charge 3, false imprisonment, you are convicted and sentenced to 2 years’ imprisonment.
68The sentence on Charge 2 will be the base sentence. I direct that 9 months of the sentence on Charge 1 and 6 months of the sentence on Charge 3, be served cumulatively upon each other and on the sentence on Charge 2.
69This makes a total effective sentence of 4 years and 9 months’ imprisonment.
70I direct that you serve a non-parole period of 3 years.
Pre-sentence detention
71Pursuant to s 18 of the Sentencing Act 1991, the period of 569 days of pre-sentence detention is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
72Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months.
Sexual Offenders Registration
73For completeness, I note that registration under the Sex Offenders RegistrationAct 2004, is discretionary. An application for registration was considered by the prosecution, but ultimately not pursued.
0
6
0