Director of Public Prosecutions v Barry

[2023] VCC 2244

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00407

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT BARRY

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JUDGE:	KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2023
DATE OF SENTENCE:	1 December 2023
CASE MAY BE CITED AS:	DPP v Barry
MEDIUM NEUTRAL CITATION:	[2023] VCC 2244

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              Plea of guilty – Aggravated rape – Historical offending – DNA analysis – Delay – Serving of interstate sentence – Guarded prospects of rehabilitation – High moral culpability – New non-parole period

Legislation Cited: ss 5, 6AAA, 6E, 14 Sentencing Act 1991; s 11 Sex Offenders Registration Act 2004; ss 27, 28, Prisoners (Interstate Transfer) Act 1993

Cases Cited:Braddock v The Queen [2021] VSCA 201; DPP v Avci [2008] VSCA 256; Jayne Allen v The Queen [2015] VSCA 89; Lawrence (a pseudonym) v The Queen [2021] VSCA 291; Mill v R [1988] HCA 70; Morgan v The Queen [2013] VSCA 33; Mush v The Queen [2019] VSCA 307; R v Mangelen [2009] VSCA 63; R v Piacentino [2007] VSCA 49; Stalio v The Queen [2012] VSCA 120; Thomas v The Queen [2020] VSCA 107

Sentence:                  Imprisonment for a period of 7 years and 6 months; 4 years cumulative on current sentence undergoing, resulting effectively in TES of 16 years imprisonment. 

New non-parole period 12 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Victoria Legal Aid

HER HONOUR:

1Robert Barry, you have pleaded guilty to one charge of aggravated rape. 

Circumstances of the offending

2The circumstances of your offending are outlined in the summary of prosecution opening dated 10 November 2023.

3You were 22 years of age at the time of your offending and lived in Traralgon.  You were known as Robert Johnson. Later in the early 1990s you changed your name from Johnson to Barry.

4Your victim was Bethany Myers,[1] now known as Bethany Atkins.[2]  She was 24 years of age at the time of the offence.  You were not known to each other. 

[1] A pseudonym.

[2] A pseudonym.

5On the evening of Saturday, 25 August 194, Ms Atkins was out with friends at a bar in Traralgon. She left the bar at about 10.30 pm, planning to meet another friend at the Traralgon City Soccer Club. She walked along Franklin Street and was approaching the intersection with Davidson Street, when she had to go to the toilet. She walked to a garden area beside a gymnasium and squash centre that was on the corner and was walking towards a tree in the garden when she noticed a male running towards her. That male was you, Mr Barry. She had not heard you because you were running on the grass. You were running from the direction she had come from and appeared to be using the same path that she had been using. You stopped at the intersection of Franklin Street and Davidson Street and appeared to be looking around. 

6You looked at her while she was under the tree and continued to walk in an easterly direction along Davidson Street.  She waited under the tree, waiting for you to leave the area. She then continued to walk towards Davidson Street.

7As she began to walk you grabbed her from behind. She was frightened and 'just froze.' 

8You put your right hand across her mouth and your left arm around her chest forcefully pinning her arms to her body. You dragged her backwards into the garden area and pushed her down onto her back. You pushed her head to the side so that she could not look at you, and said, 'Don't look at me.' 

9You then removed her jeans and underwear and inserted your penis into her vagina, moving it in and out of her vagina.

10You then attempted to turn her over. Ms Atkins struggled with you and attempted to get away from you by crawling as fast as she could. You then pushed her down and repeatedly bashed her head against a wooden sleeper, which was being used to contain the edge of the nearby garden bed. Ms Atkins lost consciousness. 

11After an unknown period of time, Ms Atkins regained consciousness. She made her way to a nearby house wearing only her windcheater. She banged on the door and was assisted by an unknown male resident who gave her a blanket to cover herself and contacted the police. She was then taken to the Traralgon police station. 

12The next day Ms Atkins telephoned a friend of hers who later visited her at home.  Ms Atkins was in bed and unrecognisable. She had bruising around both eyes, one of which was closed because of the swelling. She had cuts around her mouth and found it difficult to talk. Ms Atkins told her friend what had happened; that a man came up from behind her, pushed her over, hit her and raped her after pushing her down. Ms Atkins was distressed when relaying this detail and showed her friend her injuries. She was observed to be covered in bruises, particularly around her stomach, vagina, back, buttocks and thighs. She also had bruising around her arms. Ms Atkins later also recounted the incident to another friend and said that you bashed her head on some rocks or garden edging.

Investigation

13Ms Atkins was taken to the Central Gippsland Hospital where she was examined by Dr Bernard Rooney in the early hours on Sunday, 26 August 1984. During the examination, Dr Rooney took a blood sample from Ms Atkins, a number of swabs of her vagina, and prepared two microscope slides. Police subsequently collected the items which had been obtained during the examination of Ms Atkins, including blood samples, vaginal and vulval swabs.  Police also attended at the scene of the crime and seized a pair of underpants with a sanitary napkin and a pair of jeans.

14On 27 August 1984, the swabs, slides and blood sample from Ms Atkins taken during the medical examination were submitted to the State Forensic Science Laboratory for analysis. About a month later, her clothes were also submitted for examination.

DNA analysis

15On 18 October 1984, the swabs, slides and blood sample were received by a forensic officer. They were examined and later placed into a freezer.

16On 22 March 2012, these items were taken from a freezer for DNA analysis.

17The items were examined by Kate Outteridge, an expert biologist at the Victorian Forensic Science Service.

18The analysis revealed intact spermatozoa on the microscope slide. The DNA profile of the sperm fraction in the vulval swab was a single source DNA profile.  Analysis revealed that it was a hundred billion times more likely that your DNA was the source of the DNA in the mixed profile than a person chosen randomly from the community.

19The analysis also revealed intact spermatozoa on the microscope slide. The DNA profile of the sperm fraction of the vaginal swab was a single source DNA profile.  Analysis revealed that it was a hundred billion times more likely that you were the source of the DNA in the mixed DNA profile than a person chosen randomly from the community.

Renewed investigation

20On 27 September 2016, investigators attended at Canningvale in Western Australia. You had moved to Western Australia (WA) to live in the mid-1980s.  You were arrested and interviewed.  During the course of the interview you relied on your right to make no comment, however you did participate in a forensic procedure and provided a sample of DNA by way of a mouth swab.

Victim impact

21In a powerful statement, Ms Atkins outlines the impact of your offending.  She states,

'The emotional impact is so hard to put down on paper, as the highs and lows of it can be subtle to terrifying. The impact has been far reaching and debilitating.' 

22Soon after your offending she states,

'I had to leave my home as I could not stand the thought of people seeing me and thinking what had happened to her. I hated the fact that my parents had to look at me and what might be going through their heads.'

23The effects have been ongoing. She has experienced anxiety, depression and has had 'terrifying nightmares for a long period of time’ and still does to this day. The impact of your offending has affected her relationships, her ability to work and function, her social life and her sense of trust and safety. She wonders how different her life would have been had you not offended against her. Demonstrative of her courage and resilience she states, 'The worst thing is it will never go away, but I am determined to live my life.'

Gravity of offending

24

Mr Barry, the objective gravity of your offending is very high. You randomly attacked your victim in a public place at night. You grabbed her from behind and then forcefully covered her mouth and pinned her arms to her body. You then dragged her into a garden area and pushed her head aside, telling her not to look at you and then raped her. You did not use a condom, thereby exposing

Ms Atkins to the risk of pregnancy or sexually transmitted disease. She tried to crawl away from you, you responded by pushing her down and repeatedly bashing her head against a wooden garden sleeper, causing her to lose consciousness.

25The ‘aggravating circumstances’ is the significant personal violence surrounding the rape. As a result of the assault, Ms Atkins was so injured as to be unrecognisable. She sustained black eyes, one of which was swollen closed. She had cuts around her mouth and found it hard to speak. Her body was badly bruised.  Your offending against Ms Atkins was terrifying, degrading and an invasion of her bodily integrity. 

26The sentence imposed, needs to properly reflect the violent nature of your attack.  The high maximum penalty that applies to this offence, which back then was 20 years, reflects the community's abhorrence of this crime. Such offending strikes at the most basic values of a civilised society, where people should feel safe on our streets and women should not fear such unprovoked brutality.

27In all the circumstances, I assess your moral culpability as high. It was not suggested that there were any relevant personal circumstances which might mitigate your culpability.

28It is evident from the victim impact statement of Ms Atkins that your offending has had a profound and long-lasting effect on her.

Procedural history

29I will now turn to the procedural history of your case, which is important.

30On 25 August 1984, as I have just outlined, you offended against Ms Atkins.

31On 17 May 2016 you were arrested in WA for offending committed in 1991 and 1993 where you were identified as the perpetrator some years later by DNA. You have remained in custody since this date.

32On 27 September 2016, Victorian police attended upon you in custody in WA and interviewed you in relation to this matter.

33On 17 February 2017, you were sentenced by the District Court of WA in relation to the offending that was committed in 1991 and 1993, when you were aged 29 and 30. 

34Charge 1 was an indecent act on 3 August 1991, where you exposed yourself and masturbated in a public place.

35Charges 2-5 involved offending on 27 September 1991, against a 17-year-old female. There was one charge of unlawful and indecent assault, one charge of attempted aggravated sexual assault, and one charge of aggravated sexual assault. Briefly, your teenage victim was walking through a car park when you grabbed her from behind, threatened her, stated that you had a knife and then committed a number of sexual acts against her including violently anally penetrating her. You received terms of imprisonment on all charges including three years for the attempted sexual penetration and five years for the aggravated sexual penetration. After orders for concurrency and cumulation the total sentence was eight years.

36Charges 6-8 involved offending against a 15-year-old female on 25 March 1993.  There was one charge of deprivation of liberty, two charges of aggravated sexual penetration without consent, representing oral and penile/vaginal penetration.  Again, in a public place, you grabbed your young victim around the neck, dragged her to nearby toilets and forcefully penetrated her. You received separate terms of imprisonment on all charges, totalling, after orders for cumulation, eight years.  The sentences were backdated to the time of your arrest and the global total effective sentence set was 12 years' imprisonment, with eligibility for parole. 

37On 5 December 2017, the DPP recommended that charges be laid in respect of the present matter.

38Between 2017-19 there were extradition proceedings from WA.

39On 14 August 2019, you were brought into custody in Victoria, still serving the WA sentence.

40On 16 August 2019, there was a filing hearing for the present matter, which was originally joined with other charges, involving a separate complainant. Various procedural dates thereafter were adjourned because of COVID-19.

41On 17 September 2021, the current charge and the charge relating to the separate complainant were severed by way of pre-trial ruling, resulting in two separate indictments.

42On 9 December 2021, you were arraigned and pleaded guilty to the current charge.  Your plea was adjourned to await the outcome of the separate matter which was to be contested.

43The separate matter was listed for several further procedural dates and then a judge alone trial. The trial proceeded in August of 2023 and on 5 September 23 you were found not guilty on those charges. Your plea of guilty on the current matter was listed soon after on 14 November 23.

Factors in mitigation

44While your plea of guilty was not an early one, it is still a plea that does entitle you to an important discount in sentence. Your plea of guilty has utilitarian value and as it was entered during the pandemic, it attracts a more pronounced amelioration of sentence.[3] I take into account also that by your plea of guilty you have spared your victim the further distress of giving evidence in court and having to relive the traumatic events of 1984. Your plea of guilty represents an acceptance on your part of responsibility.

[3]Worboyes v The Queen [2021] VSCA 169.

45I am also required to take into account the delay in your case. This is not a reference to the delay between your offending and apprehension. As the higher courts have stated, it would be incongruous to suggest that an accused person in your position should derive benefit because they were able to effectively evade justice or detection for decades and continued to enjoy their liberty[4]. Also, it is important that the effluxion of time does not result in a sentence that devalues the gravity of the offending or the significant harm it has caused.

[4]Mush v The Queen [2019] VSCA 307, [98].

46In your case I take into account the delays outlined in the chronology from when you were first interviewed in respect of this matter in 2016. Charges were not recommended until over a year later, extradition occurred, some delays resulted from COVID-19 and other procedural hearings and you were arraigned almost two years ago in December 2021 while awaiting the outcome of other matters. It is well-established that there are two limbs to the consideration of delay, unfairness and rehabilitation[5]. With respect to this delay, I take into account that the matter has now been effectively 'hanging over your head' - without resolution or outcome - for a substantial period of time and that you have been in custody serving a sentence during that period.

[5]R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444; R v Merrett, Piggot and Ferrari [2007] VSCA 1;

(2007) 14 VR 392.

47Your counsel, Ms Swiney, also relies on your relative youth at the time as you were 22 years of age. There are well settled principles in relation to youthful and young offenders and I take these matters into account. I consider however that given the serious nature of your offending, your youth at the time is to be given lesser weight.[6]

[6]Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372.

48Both counsel also referred to the principle of totality. While there are some conflicting authorities as to whether such interstate offences must be close in time and of a similar kind of the Victorian offence,[7] both prosecution and defence agree that it is a relevant matter. I agree that totality is an important consideration in your case. Where an offender is to serve multiple sentences, the effect of the totality principle is to require a sentencer to review the aggregate or overall sentence and consider whether it is ‘just and appropriate’.[8] The fact that there is no temporal or circumstantial connection between the WA offences and the Victorian one may bear upon the weight to be given to it.[9]

[7]Tsang v The Queen (2011) 35 VR 240; Morgan v The Queen [2017] VSCA 33; see also prosecution plea

submissions paragraph [22].

[8]Mill v R [1988] HCA 70 [80]; McIntosh (a pseudonym) v The Queen [2018] VSCA 321; The Queen v Mangelen

[2009] VSCA 63.

[9]Morgan v The Queen [2013] VSCA 33.

49The prosecution submit that while totality is a relevant consideration, if the current offence had been the subject of a plea at the same time as the WA offending, it would call for a substantial period of cumulation to reflect the serious and separate nature of the offending involved.

50Also, you are to be sentenced as a serious sexual offender as agreed between the parties and the principle of totality is to give way, to some extent, to the presumption of cumulation specified in s6E of the Sentencing Act.[10]

[10] R H McL v The Queen [2000] HCA 46.

51Presently you are serving a 12 year sentence imposed by the WA District Court. You therefore have no pre-sentence detention on this matter. Your current parole eligibility date is 6 March 2026, in other words two years before the expiry of this sentence. The end date for your entire sentence is 6 March 2028. I am mindful that on your current sentence assuming as I should, that you are required to serve each day, you will be approaching the age of 66 years upon your release.

52

As both counsel now agree, pursuant to the provisions of the

Prisoners (Interstate Transfer) Act

1993, the sentence imposed by the

WA District Court is, 'deemed to have been imposed’ by this Court and any non-parole period is likewise deemed to have been fixed by this Court. Therefore, pursuant to s14 of the Sentencing Act and 28 of the Prisoners (Interstate Transfer) Act, this court must fix a new global non-parole period[11].

[11] Eg Lawrence (a pseudonym) v The Queen [2021] VSCA 291; Bermingham  Corrective Services Commission

(1988) 15 NSWLR 292; Exhibit A-1, marked for identification, email to parties.

53I have read and considered the plea transcript and the sentence imposed by the WA District Court. You entered pleas at an early stage in those matters, which entitled you to a 25 per cent reduction of sentence. The sentencing judge accepted that you were remorseful and that you had changed and been of good conduct for many years, however, the sentence imposed needed to reflect the extremely serious nature of your offending. Your offending was quite properly described as, 'terrifying, degrading and shattering for the [young] two victims.'

54After careful consideration, I accept the prosecution's submission that while totality is an important consideration, substantial cumulation is required between the WA sentence and the present matter. It must properly reflect the distinct and separate nature of your offending, it’s gravity, long-term impact and the community's denunciation of your conduct.

55On your behalf your counsel also submits and I take into account, that you were in custody for the entirety of the pandemic and therefore subject to more restrictive and onerous conditions. I note that in custody while you require some dental work, you are in otherwise in general good physical health.

Personal history

56Turning now to your personal circumstances.  Your plea was conducted with a focus on general principles and the factors relevant to structuring your sentence.

57Counsel made clear, as she has today again confirmed, that she did not seek to put to the court any reports or to have a further opportunity to canvas any such issues. The details as to your background are relatively confined but some further insights are offered in the sentence of the WA District Court.

58In very brief terms, you were born in May 1962 in Victoria and you are now 61 years of age.

59You lived in the Traralgon area up until 1985. You then moved with your young family to WA where you remained up until your most recent arrest.

60Your parents are now in their mid-80s and live in the East Gippsland area and you have four brothers. You have weekly contact with your parents and continue to have contact with one brother who resides in Cranbourne. You were educated up until Grade 9. Growing up, apparently your home environment was a volatile one.  There is a suggestion that you were exposed to, and experienced different forms of violence during your childhood and formative years. It seemed this segued into your own aggressive and violent behaviours, poor attitude towards women and misuse, in particular, of alcohol.

61You were with your partner for some 33 years and you have three children together all of whom are now adults. You also have eight grandchildren. You were in a relationship at the time of your arrest, but the relationship has since broken down after your sentencing in 2017. You felt that you must relieve your family of the embarrassment and distress you have caused them and so you have ceased contact.

62When you initially moved to WA, you started to work in a cement factory and then you went from one job to another. You continued working and held a permanent job for some time inspecting bridges. Prior to your arrest you were working for Amart All Sports as a furniture removalist. You did this work for some seven years working in the warehouse and delivering items over long distances.

63You have relevant prior convictions including in 1982 and 1984 for charges of wilful and obscene exposure and assault occasioning actual bodily harm.

64In the early 1990s you stopped drinking spirits and heavy beer. You describe yourself as a 'terrible drunk' as a teenager. You addressed your alcohol dependence through psychological intervention. It seems from the decision of the
WA District Court that at some stage you were placed on a community-based order, completed it successfully and took advantage of the counselling that was offered to you.

65You have not offended since around 1993 and since that time, as I have already noted, you have been working and living with your family in the community up until your arrest in May of 2016.

Future prospects and risk

66

There is no real explanation, Mr Barry, for what you did on the night of

25 August 1984, aside from a suggestion that you were intoxicated. This is concerning though it is hoped that you will be subject to sex offender treatment in custody, where you can fully explore your issues and behaviours. I note that you have already served six years in custody and while you have been working, you are yet to undertake any such courses.

67I take into account that you have not offended now for decades and were living and working in the community. I accept this bears upon your prospects of rehabilitation and suggests positive change. Also, on your eventual return to the community, you will be of more advanced years and will have served a substantial period in custody. There are all matters I take into account.  However, it is difficult to make any confident findings in respect of your rehabilitative prospects. There are no reports before the court as to your psychosocial composition or mental health, or any assessment as to your risk. This court is sentencing you for offending that dates back to 1984 but that is very serious in nature. Also, what is known is that you went onto commit further similar offences in 1991 and 1993.

68The WA District Court refers to the assessment of risk by a psychologist who previously saw you. While I have not relied upon this to arrive at my conclusion concerning risk as I do not have a copy of this report, the sentencing judge referred as follows:

'The psychologist notes that you are in a high risk category of re-offending.  The psychologist notes the significant lapse in time and that that means that some of the issues identified may not have as much relevance as they did 20-25 years ago.

She recommends that you undertake the sex offence treatment program and a cognitive skills program to develop better decision making and consequential thinking skills and she says that you need post-release support.'

69I consider that a specific sex offender treatment program and any other available programs are likely to assist in your rehabilitation and your reintegration back into the community. I note that you have apparently engaged in some discussion with Wimmera housing about accommodation prospects in the future and you are motivated to obtain your licence again.

Sentencing principles

70The basic purpose for which a court may impose a sentence, are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Given the seriousness and nature of this offending, I consider that punishment, denunciation and general deterrence are primary sentencing considerations. Taking into account all relevant considerations and notwithstanding the date of this offending, I consider that weight still needs to attach to specific deterrence and community protection. As you fall to be sentenced as a serious sexual offender, protection of the community is a primary sentencing purpose.

71The prosecution do not submit that a non-proportionate sentence is called for and I do not propose to impose one. I also do need to balance these considerations with promoting, to the extent possible, your rehabilitation which is also in the interest of the community.

72I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case.

73I must also have regard to ‘current sentencing practices’ which relate to practices current as at the date of sentencing.[12] The principle of equal justice also requires me to have regard to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. I note that it has not been submitted that there was a greater difference in sentencing practices at the relevant time.

[12]Stalio v The Queen [2012] VSCA 120.

74I have had regard to the current sentencing practices for rape which have assisted in the application of general principles and to the ‘non-standard sentences referred to by counsel. Of course, each case turns on its own particular facts and circumstances. While your case is a serious example of aggravated rape, some of the cases referred to, for example, have additional aggravating features which are absent in your case, such as the commission of rape in company,[13] the use of a weapon,[14] and multiple representative charges[15] and victims.[16]

[13]Braddock v The Queen [2021] VSCA 201.

[14] Eg Thomas v The Queen [2020] VSCA 107; DPP v Maynard [2009] VSCA 129.

[15]Mush v The Queen [2019] VSCA 307.

[16]DPP v Avci [2008] VSCA 256.

75As counsel have both submitted your case presents a difficult sentencing task. I must evaluate the overall criminality involved in all of your offences and ensure that the sentence is a just and appropriate one. I must endeavour notionally to approach the sentencing exercise as if I was imposing a sentence in the charge at the same time for the WA District Court.[17]

[17]Lawrence (a pseudonym) v The Queen [2021] VSCA 291.

76Ultimately, I have arrived at the conclusion that your offending on the charge before me demands a substantial term of imprisonment and cumulation as I've already stated. I must however still ensure that the mitigating factors relied upon on your behalf, including your plea of guilty, are reflected and that the overall sentence is not a ‘crushing’ one in its effect.[18]

[18]R v Mangelen [2009] VSCA 63.

Sentence

77After carefully considering all relevant matters, you are convicted and sentenced as follows.

78On Charge 1, you are convicted and sentenced to seven years and six months imprisonment.

79As I am sentencing you as a serious sexual offender unless I otherwise direct, the total sentence imposed will be served cumulatively upon your existing sentence.  I direct that three and a half years of this sentence will be served concurrently with the existing sentence. Therefore, it follows that four years of the sentence will be served cumulatively upon the sentence that you are currently serving which results (practically) in a total effective sentence of 16 years' imprisonment.

80Pursuant to s14 of the Sentencing Act I am required to set a new non-parole period in light of the global total effective sentence. Having regard to all of the circumstances in your case, I consider the minimum term that justice requires you serve, is a period of 12 years and three months' imprisonment.

81It is important that I make clear when it is that the new single non-parole period commences. There are two ways of doing this, as discussed with counsel today, either backdating it to the date of the sentence of the District Court or commencing it from today's date[19]. I declare that the new non-parole period of 12 years and three months will commence on 18 May 2016, which was the commencement date declared for the sentence imposed by the District Court on 17 February 2017. Pursuant to the Prisoners (Interstate Transfer) Act, that commencement date is deemed to have been stipulated by a Victorian court and the law of Victoria will apply to it as though that has been the case.  

[19] See also R v Rich (No 2) (2002) 4 VR 155.

82In other words, to make my intention abundantly clear, I have (practically) cumulated four years to the total effective sentence, which is now a total period of 16 years. I have added two years and three months to the non-parole period which is now a total of 12 years and three months. If my orders do not have this effect, then the matter should return to me for any necessary corrections or clarifications.  I will pause there for a moment.

83Counsel, is that clear and as I've structured it, I consider that it is in accordance with what is required of me, but do either of you wish to be heard?

84MS SWINEY:  No, Your Honour.

85MR GRANT:  No, thank you, Your Honour.

86HER HONOUR: There is no s18 declaration. Pursuant to s6AAA and I note that this is to a degree an artificial task or a difficult one given the operation of s14 in your case, but I can indicate that but for your plea of guilty, I would have sentenced you to some nine years and 10 months' imprisonment, and I would have cumulated six years and three months' on the WA sentence, arriving at a total of some 18 and three years and I would have set a non-parole period of 14 and 10 months' imprisonment.

87I enter into the records that you are to be sentenced as a serious sex offender.

SORA application

88

The prosecution has made application for you to be registered under the

Sex Offenders Registration Act

, pursuant to s11. The order is unopposed and it is agreed that if such an order is made the reporting period is life. The making of such an order is discretionary and ultimately a matter that the court needs to be satisfied of to the requisite standard.

89The prosecution submit that given the gravity of your offending and its repeated nature, the court ought to be persuaded of your ongoing risk and sexual risk or danger to the community. I have weighed up all the circumstances including your prior history, your conduct since the offending and that you have not reoffended for decades and your current sentence. I have considered whether it is reasonably necessary to make the order sought to give effect to the statutory purpose. This involves the consideration of the magnitude and nature of the identified risk to sexual safety, including the degree of likelihood of the risk eventuating and the gravity of the harm to be balanced against the serious consequences for you in terms of loss of freedom and personal autonomy[20].

[20]Bowden v The Queen [2013] VSCA 382; Sayer v The Queen [2018] VSCA 177.

90Taking into account all these matters and in particular the seriousness of your past offences and their repeated nature, I am satisfied beyond reasonable doubt that you do present as a danger to the sexual safety of a member of the community on your release and I order that you be registered and that the period of registration be life.  You will receive, Mr Barry, the necessary paperwork if you will just give us a moment.

91Counsel, is anything further required of me?

92MS SWINEY:  No, Your Honour.

93MR GRANT:  No, thank you, Your Honour.

94HER HONOUR:  Just one moment.  Mr Barry can you hear me?

95OFFENDER:  Yes, Your Honour.

HER HONOUR:  … Can I thank counsel for their assistance in this matter.  And also may I again thank Ms Atkins for her attendance today.

96MS SWINEY:  As Your Honour pleases.

97HER HONOUR:  We'll adjourn the court.

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