Director of Public Prosecutions v Barry (a pseudonym)
[2024] VCC 161
•23 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK BARRY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | La Trobe Valley | |
DATE OF HEARING: | 21 February 2024 | |
DATE OF SENTENCE: | 23 February 2024 | |
CASE MAY BE CITED AS: | DPP v Barry (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 161 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – Plea of Guilty.
Catchwords: Sexual penetration of a child under the age of 16 – indecent act with a child under 16 – sexual penetration of a child under 12 – sexual assault of a child under the age of 16 – repeated offending – seven year period – breach of trust – significant admissions – Doran discount – genuine remorse – general deterrence.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:R v Doran [2005] VSCA 271; Verdins v R (2007) 16 VR 269; Brown(aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; McPherson v The Queen [2021] VSCA 53; Tobin (a pseudonym) v The Queen [2021] VSCA 180; Hinch (a pseudonym) v The Queen [2021] VSCA 214; DPP v Cunningham [2022] VCC 2201; DPP v Morris [2023] VCC 1753; DPP v Aneterea (a pseudonym) [2019] VCC 1721.
Sentence: Total effective sentence 6 years and 3 months with non-parole period of 3 years and 9 months; 6AAA: 11 years and 8 months and non-parole period of 7 years and 9 months; SORA registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | P. D’Arcy | Office of Public Prosecutions |
| For the Accused | J. McGarvie | Sullivan & Brahm |
HIS HONOUR:
1Patrick Barry,[1] you pleaded guilty to three charges of sexual penetration of a child under the age of 16 (Charges 1, 3, 4), three charges of indecent act with a child under the age of 16 (Charge 2, 5, 6), one charge of sexual penetration of a child under 12 (Charge 7) and one charge of sexual assault of a child under the age of 16 (Charge 8).
[1] A pseudonym.
2The agreed facts for your offending are set out in the Prosecution Opening dated 14 February 2024, which I adopt.
Circumstances of offending
3In summary, between 2008 and 2015 you were in a relationship with the complainants’ mother, who I will call ‘Kerri Henderson’.[2] The complainant who I will refer to as ‘Claudia Gilbert’[3] was one of two children from your ex-partner’s previous relationship. You separated in 2015 but remained close with the family including with Ms Gilbert who continued referring to you as 'Dad'.
[2] A pseudonym.
[3] A pseudonym.
4One night between 1 January 2015 and January 2017, when the complainant was between 4-6 years old, she and her sister stayed over at your address in Noorinbee. They each slept in different bedrooms. During the night, you entered the complainant’s bedroom, pulled her pyjama pants down and licked her vagina (Charge 1 – sexual penetration of a child under 16). About 30 seconds later she told you to stop, which shocked you and you promptly returned to your bedroom.
5Ms Gilbert asked you the next day why you licked her 'rude spot'. You told her that if she told anyone you would go to jail.
6A few months later Ms Gilbert and her sister came to stay with you again for the weekend. One night during that visit, you entered the complainant’s bedroom while she was asleep. You pulled her underwear down and touched her vagina for about five minutes (Charge 3 – sexual penetration of a child under 16). You masturbated while doing so until you ejaculated (Charge 2 – indecent act with a child under 16 years).
7In January 2017, when the complainant was 6, you moved into a different house in Noorinbee and continued to have her and her sister stay with you. On another occasion, she stayed over and slept in your bed. During the night you put your hand into her underwear and rubbed her vagina with your fingers (Charge 4 – sexual penetration of a child under 16). You masturbated while you did so (Charge 5 – indecent act with a child under 16 years).
8On another occasion at the new address you pulled the complainant’s underwear off and licked her vagina for about two minutes while she was sleeping. You also rubbed her vagina with your hands while masturbating (Charge 6 – indecent act with a child under 16).
9Between 2019 and 2022, the complainant would stay with you at your bungalow in Stratford. On two occasions, you rubbed her vagina while masturbating yourself. (Charge 7 – sexual penetration of a child under 12 years (rolled up count covering both of those occasions)).
10During January 2022, Ms Gilbert and her sister stayed with you for a few nights in a caravan at Nowa Nowa. One night during the trip, at about 1 am, while her sister was asleep in the same van, you reached into the complainant’s underwear and touched her vagina for about a minute (Charge 8 – sexual assault of a child under 16 years). Afterwards, once you were asleep, Ms Gilbert walked to the communal toilet block where she sat and cried before returning to the caravan.
11In her victim impact statement dated 16 January 2024 (Exhibit A) Ms Gilbert speaks of her feelings of worthlessness, lack of motivation and isolation since your offending. She struggles to keep focused at school and at time refuses to do schoolwork because “[she] feels school no longer matters to me anymore because my future feels so bleak and unclear”. At home, she has disengaged from speaking with her mother and playing with her sister. Throughout each day she carries “so much guilt and shame towards myself” and has resorted to self-harm. As a result, she now takes anti-depressants and receives ongoing therapy and medical treatment from her GP.
12Ms Henderson also provided a victim impact statement dated 16 January 2024 (Exhibit B). She speaks as a mother of the pain she feels seeing her daughter become withdrawn, depressed and anxious. In short, a “completely different person”. She also speaks of how the family unit is now “broken”. Ms Gilbert’s younger sister has also been impacted by what has happened. Since your offending she has struggled with school and “cannot understand why her father … has ruined their family”. Financially, the family has suffered. In October 2023 Ms Henderson left her job due to a decline in mental health and she can no longer cover the cost of her own psychologist appointments.
13You should appreciate the breadth of impact that your offending has had on others, particularly Ms Gilbert and her family. That impact is an important consideration when I take into account all the matters in fixing sentence to be imposed on you.
Procedural history
14In October 2022 Ms Gilbert began self-harming and explained to her stepfather that it was because you had been touching her sexually.
15Two months later in December 2022, your ex-partner visited you to talk about the self-harming and that her daughter had said it was because you had sexually assaulted her. You readily admitted what you had done. Unbeknownst to you, that conversation was being recorded.
16Police then arrested you and interviewed you on 5 January 2023. You answered their questions and you made full and frank admissions. You did so not knowing that your previous admissions had been recorded. I find that this demonstrates the sincerity of your confessions.
17On 8 September 2024, you were committed without contest at a very early stage in the proceeding and you indicated that you would plead guilty.
18Your plea demonstrates your acceptance of responsibility and your willingness to facilitate the court processes. It spared those involved and the wider community the burden of a trial. This is particularly significant because it means Ms Gilbert was not the subject of significant distress which would have been caused by having to relive the trauma of those events and to endure cross-examination.
19In addition, the resolution has helped reduce the backlog of trials caused by the COVID-19 pandemic and I will reduce your sentence accordingly.[4]
[4] Worboyes v The Queen [2021] VSCA 169, 35; Papagelou v The Queen [2022] VSCA 53, 28.
Personal Circumstances
20You are now 55 years old and you were between 46 and 53 over the period of offending.
21You grew up in stable circumstances in Mildura. You report that your parents were supportive, there was no alcohol or drug abuse in the home and you did not engage with negative peers. You suffered social anxiety but faced few difficulties at school. You left after completing year 10 to find work.
22You have a strong work history and that is to your credit. You completed an apprenticeship in pastry cooking and subsequently worked in cake shops in Mildura. You've also worked in fencing and bulldozing during the 2000’s and from about 2008 you worked at bakeries in Gippsland where you moved and commenced a relationship with Ms Henderson. In early 2023 you returned to Mildura to care for your ageing parents, particularly your father.
23Prior to 2016, the year after your relationship ended, you had no history of alcohol or drug use. However, following the disintegration of your relationship with Ms Henderson, you began drinking heavily. It is in this context that your offending occurred over the following seven years.
24Psychologist Carla Lechner assessed you and provided a report dated 1 February 2024 (Exhibit 1). Consistent with what you told police you reported to Ms Lechner that at the time of the offending you were acutely isolated, lonely and drinking excessively. You were frank and open about your feelings and your offending, confessing that you were disgusted with yourself throughout those years, although not strong enough to stop offending.
25Ms Lechner assessed you as having long-standing depression and an alcohol use disorder – because you used drinking to try to deal with your depression, a clear recipe for failure. Without treatment and change, you will remain at risk of using alcohol to cope with stress. You must change.
26You have never sought help for the depression, which Ms Lechner tested as being in the extreme range, particularly following the breakdown of personal relationships. As a consequence, you have not been diagnosed, nor have you received any professional supports for your mental health.
27As to risk of further sexual offending, Ms Lechner finds you to be a low, perhaps moderate, risk only. You have demonstrated considerable insight into the wrongfulness of your actions and how they came about. You are less able to understand the impact of your offending on Ms Gilbert and I accept these descriptions.
28The psychologist suggests you are an offender who offends against someone closest and most available to them, rather than someone who actively seeks out young victims. She reports that you present with symptoms of a paedophilic disorder, but the existence and extent of any ongoing deviant sexual interest needs to be further assessed. For all of this, I accept you express immense shame.
29I accept Ms Lechner’s opinion that ongoing psychological treatment that addresses your offending behaviour and which establishes more robust and effective coping mechanism to deal with stress and mood would reduce your risk of recidivism even more.
30You have a very limited criminal history, all without conviction, which the parties agree has no relevance to this case and I attach no weight to those matters.
Sentencing considerations
31The maximum penalties for charges 1, 3, 4 and 7, all of those involving sexual penetration of a child under 16, particularly one under 12, is 25 years imprisonment each. For charges 2, 5, 6 and 8, relating to sexual assault and indecent act in the presence of a child, it is 10 years each.
32Charge 7 is a category 1 offence under the sentencing Act and therefore I must impose a custodial sentence on this offence and you have properly conceded that I should do so in any case.
33Charge 7 also attracts a standard sentence of 10 years' imprisonment and Charge 8 attracts one of 4 years. That is, I must have regard to the standard sentence, which represents a mid-range example of this offence. I must not start with the standard sentence and then adjust the sentence by reference to other factors. Rather, I must factor-in the standard sentence, just as I will factor-in the maximum penalty as well as all the other sentencing criteria.
34In accordance with Part 2A of the Sentencing Act, once I impose a term of imprisonment on you for two charges, which I will, then you are to be regarded as a serious sex offender. I must then consider the protection of the community as the principal sentencing consideration and impose a disproportionately long sentence if necessary to achieve that goal. The prosecutor does not call for such a disproportionate sentence and in light of your risk assessment of being low-moderate risk, I do not propose to do so.
35For every sentence I impose on you as a serious offender, I must order that you serve that sentence cumulatively unless for good reason I permit a degree of concurrency so as to arrive at a total sentence that reflects both your serious offender status and the totality of your wrongdoing, and no more.
36Any sexual offending against a child is very serious. In your case, your offending was repeated, it occurred over about six to seven years between 2015 and 2022, albeit sporadically; the complainant was your step-daughter; you were at all times in a position of trust, a trust which you betrayed; and soon after the first incident you told the complainant not to tell anyone about what happened or you would go to gaol. That is a frightful burden to place on anyone, let alone a child of her age. On charge 8 you offended whilst her sister was asleep in the same caravan.
37While your offending as I have described, it including all of those factors, is very grave, you have done the best thing that you could have done once it has come to light. You confessed to your ex-partner as soon as she raised the issues with you, and you made full admissions to police soon after. In fact, you admitted matters that might not otherwise be known or have been able to be proven by the Crown.[5] In particular, this included the following:
(a) The offending in charges 1–3 in their entirety;
(b) The fact of penetration in charge 4;
(c) The offending in charge 5 in its entirety;
(d) Beyond the touching of the complainant’s vagina in charge 6, that you licked her as well and masturbated yourself whilst doing so;
(e) The fact of penetration in charge 7 and the second occasion rolled-up in that charge in its entirety.
[5] R v Doran [2005] VSCA 271.
38In these ways, the case against you is made out to a very significant degree by what you told police during your recorded interview
39In keeping with the principle in the case of R v Doran, I will give a demonstratable discount in the sentence on those charges. I note that reductions in sentence in the order of 30-50% have been recognised in such cases. An important purpose for doing so is to encourage others to make like admissions. In cases such as this, where a confession avoids the need for a child to give evidence about such incidents, it is easy to see why this is so important. Unlike you, those who offend in this way and yet seek to attack the child victim’s credibility and reliability in court, in the cynical hope that the child might not be believed, must see the heavy price of doing so.
40Your admissions also reduce the need to deter you specifically and it indicates in my view genuine remorse for your actions.[6]
[6] Ibid, 14.
41You have given a candid account of your offending to the experienced forensic psychologist and I accept that your account demonstrates a genuine willingness to look back and to seek to understand what led to your offending. I accept Ms Lechner’s opinion that these incidents arose in circumstances where you were likely depressed and drinking to a diagnostically disordered level. While this was not said to make your offending less serious, I accept that you will likely find prison harder due to your depression at least until you are properly treated, and because alcohol withdrawal is hard, if not dangerous.[7]
[7] Verdins v R (2007) 16 VR 269, principle 5 only.
42The sentence is still aimed at deterring others from offending like you have, and denouncing such acts. It is also intended to punish you personally, the importance of which I understand you fully accept.
43In all the circumstances, I have not attached great weight to specific deterrence, and I find that your prospects for rehabilitation are very good.
44Your counsel directed me to a number of comparative cases where standard sentences apply, namely, McPherson, Tobin, Hinch, Cunningham, Morris and Aneterea.[8] I have read those and have had regard to their similarities and differences when compared to your case. I have been assisted significantly by the decision in McPherson, albeit that was a sentence following trial.
[8] McPherson v The Queen [2021] VSCA 53; Tobin (a pseudonym) v The Queen [2021] VSCA 180; Hinch (a pseudonym) v The Queen [2021] VSCA 214; DPP v Cunningham [2022] VCC 2201; DPP v Morris [2023] VCC 1753; DPP v Aneterea (a pseudonym) [2019] VCC 1721
45As you have rightly conceded, only a term of imprisonment that attracts a non-parole period will satisfy all of the sentencing requirements and I will impose such a sentence as follows:
(a) On charge 1, Sexual penetration of a child under 16 (where the child is under 12 years) – 2 years and 9 months;
(b) On charge 2, Indecent act with a child under 16 years – 12 months;
(c) On charge 3, Sexual penetration of a child under 16 (where the child is under 12 years) – 2 years and 10 months
(d) On charge 4, Sexual penetration of a child under 16 (where the child is under 12 years) – 2 years and 11 months;
(e) On charge 5, Indecent act with a child under 16 years – 12 months;
(f) On charge 6, Indecent act with a child under 16 years – 18 months;
(g) On charge 7, Sexual penetration of a child under 12 years – 4 years;
(h) On charge 8, Sexual assault of a child under 16 years – 18 months.
466 months of the sentence on charges 1; 7 months of the sentence on charge 3, 8 months of the sentence on charge 4 and 6 months of the sentence on charge 8 are to be served cumulatively upon the sentence in charge 7.
47I have stated it that way for clarity's sake. As I have indicated, I have determined that the remaining portions of each of those sentences ought in the circumstances be served concurrently with each other and the base sentence, having regard to Part 2A of the Sentencing Act 1991 (Vic).
48The total effective sentence therefore is 6 years and 3 months.
49I will fix a non-parole period of 3 years and 9 months, which is 60% of the head sentence.
50I declare that you have served 2 days' pre-sentence detention and direct that this be reckoned as a period already served under this sentence.
51In accordance with section 6AAA of the Sentencing Act 1991B (Vic), but for your plea of guilty (which in this case, I will take to mean but for your confessions and the operation of the principles in Doran) I would have imposed 11 years 8 months and fixed a non-parole period of 7 years and 9 months.
Ancillary orders
52Under the Sex Offenders Registration Act 2004 (Vic), charges 1, 3, 4 and 7 are class 1 offences and charges 2, 5, 6 and 8 are class 2 offences. As you have now been sentenced on these charges, you are a registrable offender and because you have been sentenced for two or more class 1 offences, you must comply with reporting obligations under that Act for the rest of your life. I note however that after 15 years, you may apply to the Supreme Court to have those obligations suspended.
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