Director of Public Prosecutions v Perryman
[2018] VCC 1197
•7 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-02304
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BARRY PERRYMAN |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial 30 January 2018 - 9 February 2018 Plea 3 August 2018 |
| DATE OF SENTENCE: | 7 August 2018 |
| CASE MAY BE CITED AS: | DPP v Perryman |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1197 |
REASONS FOR SENTENCE
---Subject: Rape x 1 charge
Sentence: 9 years imprisonment with a non-parole period of 6 1/2 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Livitsanos (Plea) Mr D. Bosso (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr P. Smallwood with Mr Connolly (Plea) |
HIS HONOUR:
1Barry Perryman, after a trial lasting eight days, on the 9th February of this year a jury at Bendigo convicted you of one charge of rape. The maximum sentence for this crime is imprisonment for 25 years. Whilst you cannot be punished for having run a trial, you nevertheless cannot expect to receive a reduction in sentence that would normally apply had you pleaded guilty to the charge. You have maintained your innocence throughout and you have exhibited no remorse.
2You were charged on the indictment with the alternative charge of sexual penetration of a child under the age of 16 years. There was only one issue in the trial that was common to both the rape charge, and the alternative charge, that being whether or not you had penetrated the victim in the way alleged at all. Because of the way the trial was conducted on that one issue and because of the verdict that the jury reached on the rape charge it was not necessary for the jury to consider the alternative charge.
3I heard your plea last Friday the 3rd of August. The delay in the listing of the matter for plea arose from the fact that the court was advised that you had changed your legal representation since the trial, and it was necessary for the papers to be transferred to new practitioners and for a psychological report to be obtained. Mr Smallwood with Mr Connolly appeared on your behalf on the plea. Mr Livitsanos appeared to prosecute at the plea.
4You were born on the 25th March 1968. At the time of the offence you were aged 44 years. The victim in this matter was aged 15 at the time of the offence.
5The victim lived with her parents in Merrigum. In the period shortly before the offence she had been in a boyfriend/girlfriend relationship with your son. Through her parents she had arranged to come to your property at Tocumwal to learn better how to ride horses and she had transported her horses to your property for that purpose. Shortly before the offending the victim and your son had broken up and you and the victim communicated via Facebook. The victim wanted to speak with you about the break up with your son because she wanted to be able to continue to ride horses and learn riding at your property. An arrangement was made that you would meet her at the Merrigum Hotel at about 11.30pm for that purpose.
6You went to the hotel and met with the victim. You drove there in your utility. You gave her a can of coke and told her not to skoll it because it had alcohol in it. You drove to the McDonalds in Echuca where you purchased food and drink at about 1.10am. You mixed more alcohol with the coke and gave it to the victim.
7You then drove to an area on the river bank of the Murray River near the bridge. That area is known locally as the Onion Patch. The victim went to the toilet whilst you lit a fire and rolled out a swag between the ute and the fire. The victim sat down and removed her shoes. She had a headache, she laid back and she thinks she may have passed out for a short period of time. When she woke up you were on top of her and you started kissing her. The victim thought that you had removed her jeans whilst she was asleep as she felt cold and she couldn’t feel that she had her jeans on. You continued to kiss her and you removed her top and bra. You started kissing her neck. The victim asked you “Barry, why are you doing this?” to which you replied “Because you wanted me to”, or words to that effect. You then started touching the victim’s legs and you tried to spread her legs apart. You then penetrated the victim’s vagina with your penis hurting the victim. She asked you to stop but you did not. The victim started making noises because she wanted you to stop and she wanted to get away. She hoped someone would hear her and help her. You put your hand over the victim’s mouth to muffle the noise she was making. You said to her “Be quiet. I don’t want to go to gaol”. Whilst you raped the victim you continued to kiss her. The victim could not escape you because you were laying on top of her and your weight pinned her down. Whilst you had the victim pinned to the swag she vomited. When you had finished raping the victim, you got dressed and had a cigarette whilst the victim continued to lay on the swag and fell asleep. You woke her at about 4.00am.
8You drove the victim back to Merrigum. On the journey you kept asking the victim if she was all right. The victim recalls falling asleep in the car. You dropped her off at the Merrigum Hotel.
9Your offending is a serious example of the offence of rape. The victim was a child aged 15 years and 5 months and you planned how to rape her. You were almost 30 years older. The victim and her parents trusted you to teach the victim how to ride a horse properly. You took advantage of that trust. Because the victim trusted you she went with you in the middle of the night believing that you would talk about how she could continue to learn how to ride from you even though she had broken off her friendship with your son. You had other plans for that meeting which you executed. You took the victim to an isolated and lonely spot where you would be unlikely to be detected. You gave her alcohol mixed with coke, and when the victim was clearly affected from the alcohol and passed out, you engaged in sexual acts with her, kissing her and removing her clothing before pinning her down with your body and raping her. In the process you hurt her and spoke to her in a way so as to have her believe that she had led you on. This must have been a terrifying ordeal for the victim, having a grown man three times her age forcing himself on her whilst raping her and physically hurting her in the process.
10I admitted into evidence a victim impact statement from her. Mr Smallwood properly objected to the admissibility of parts of the victim impact statement and I have not had any regard to those parts. However, it is clear from the victim’s statement that your rape of her has had a profound adverse effect upon her which is likely to last for a very long time indeed. Mr Smallwood acknowledged this fact. In her statement the victim said amongst other things the following which I think sums up the effect which your offending against her has had:
11“My teenage years were destroyed, left in a haze of depression, anxiety and sickness. I never got to be a normal teenager and I cannot go back. I fear the enormity of what happened to me and what was taken from me is only beginning to reveal itself. As I get older and understand more there is more damage and hurt to discover. It is as if the rape is still happening over and over and never stops. Like a stone thrown in a pond the ripples will go through my entire life. Every decision I make, every time I doubt myself or judgement. I have no confidence in myself and suffer constant anxiety.”
12It is the experience of the courts that such adverse effects are common for victims of crimes such as this. In passing sentence I have taken the victim impact statement into account as I must.
13Your defence was that nothing happened and that the victim was a liar and made up the whole story. When interviewed by the police a year after the offending on the 21st August 2013 you told the police you met the victim when her parents had asked you to teach their daughter how to ride a bit better. Q89
14You told the police the victim was in a bit of trouble at school and was “just one mixed up kid” who had a lot of problems. That was false. You also said you would not have a clue how old she was. That was also false. Q119-120. Later in your evidence you falsely tried to attribute your knowledge that this was so to a conversation you said you had with the parents of the victim.
15At question 148 you were asked how the arrangement for the victim to come to Tocumwal for riding lessons came to an end. In the answers that followed you told police you had been told the victim had been sneaking out at night meeting boys and drinking and that she had been unruly and uncontrollable at home and her parents stopped her coming to Tocumwal. Q149-151.
16You denied ever having to been to McDonalds in Echuca with the victim. You denied ever having been to the Onion Patch. You denied having raped the victim.
17You gave evidence before the jury and you were cross examined by the prosecutor Ms Mahady. You denied meeting the victim in the middle of the night. You denied ever having gone to the Onion Patch with her. You denied ever having met with the victim at the Merrigum Hotel. You gave evidence that when you were contacted by the parents of the victim to retrieve her horses from you that you were told by the parents that the victim would not be coming to your property again because she had been misbehaving and sneaking out with boys. Both of the victim’s parents and the victim denied that such a conversation had taken place. You told the jury that when she came to collect her horses from you the victim apologised to you and hugged you. The victim denied that.
18There was DNA evidence that put you at the scene of the crime despite your continued denials. When the victim arrived home she was soon afterwards confronted by her mother who wanted to know where she had been. No doubt embarrassed by what had happened to her and thinking that she had caused the crime to occur the victim told her mother a lie. She told her that she had been out with boys and that she had been drinking. However, the following day, which was a Monday, the victim could not keep the fact that she had been raped by you to herself. She told two of her school friends what had happened to her. They both said the victim was upset and appeared in shock. They told her to go to higher authority, which she did. Soon after the victim’s mother was told of the victim’s complaint by the mother of one of her school friends and the victim’s mother immediately took the victim to the police. The victim was later forensically examined and also she was examined by her own general practitioner. The victim’s evidence was supported by a great deal of complaint evidence from very creditable witnesses that tended to confirm that the victim’s evidence was truthful.
19When the victim and her mother went to the police on the 14th August the victim took the police to the crime scene, pointing out where the fire had been located and where she had been raped by you. The whole scene was photographed and items including a partially burnt McDonalds drinking cup and a straw were photographed in situ and taken away for forensic examination. The photographs went into evidence.
20DNA evidence was given by Dr Goray. She said that a straw found at the crime scene two days later identified extremely strong evidence that you were a contributor to the mixed DNA profile found on the straw. The victim was excluded as a contributor to that DNA profile. A partially burnt McDonalds drinking cup was also examined from the crime scene, which when examined showed a mixed DNA sample of which there were two contributors and you and the victim could not be eliminated as contributors to the mixed DNA profile found on the outer surface of the cup. There was extremely strong support found for the victim to have contributed to the mixed DNA profile and moderate support for you having contributed to the mixed DNA profile detected on the cup. This was evidence that placed both you and the victim at the crime scene.
21The informant Detective Gildea gave evidence at T321-323 relating to the delay in bringing this matter before the court. The delay cannot be in anyway attributed to you.
22There were two previous informants who did not advance the matter expeditiously before Detective Gildea took charge. He gave evidence he received advice that the area where the victim had described the crime as having occurred was legally regarded as being in NSW. He said the NSW authorities had the area re-surveyed which showed that the place where the victim had said that the rape had occurred was some four metres above the high water mark, placing the crime in Victoria. Detective Gildea said that these inquiries which went to the appropriate jurisdiction to charge you delayed the charge being brought before the court in Victoria.
23Having received that advice you were charged on Summons in December 2015.
24By its verdict the jury clearly rejected your evidence and accepted the evidence of the victim, which was consistent with the evidence of the complaint witnesses and was corroborated to some extent by the DNA evidence. I am not surprised that the jury rejected your evidence. You told a number of lies that could be demonstrated by other evidence. The prosecution case here was in my view a strong one.
25Before empanelment I was asked to exclude evidence of post-offence conduct, the prosecution having given notice that it intended to rely on evidence that you had embarked upon a plan to kill the victim before trial. For reasons that I published I did not permit the prosecution to lead that evidence. I was told that you are likely to be charged with those matters in NSW. In passing sentence on you I have disregarded these allegations, which are just that, unproven allegations.
26Mr Smallwood and Mr Connolly filed a helpful outline of submissions in writing. They conceded that given the gravity of your offending no disposition other than a term of imprisonment with the fixing of a non-parole period is appropriate.
27On the plea you admitted a prior criminal history both in Victoria and in NSW for drug offences, driving offences and dishonesty. You have no prior convictions for offending of this kind and you have never before been to prison. You have now served 799 days' pre-sentence detention.
28Prior to being charged and remanded on this charge you lived with your parents on a 580 acre farming property near Tocumwal. You undertook most of the work to run and maintain the property and in between you worked as a truck driver transporting livestock. I accept that you have worked hard through your life doing mostly farming work, which has not been very financially rewarding for you.
29Your parents are elderly and have a number of health issues in the result that they cannot fully work the farm and they rely upon you to do that. Your father does his best to run the farm but he really relies on you to help. I received into evidence medical reports relating to the health issues confronting both your parents which I have taken into account. Since you have been remanded on this charge most of the farm horses and trucks have had to be sold. Your daughter and son are unable to assist. Your daughter is herself injured from a farm accident and your son lives elsewhere breeding dogs.
30Your time on remand has not been easy for you. You suffer from depression caused by the fact of this charge and the predicament you now find yourself in. You are treated in custody with an anti-depressant. Because of the nature of your crime you have been in protective custody since your remand. Although opportunities to engage in programs have been limited, I was told and accept you have undertaken a drug and alcohol course and a food handling course. You are a wheelchair billet at Hopkins prison and you have spent some time at Ararat prison.
31Mr Smallwood submitted that I should have regard to the delay in this matter coming to trial. The offence was committed on the 11th or 12th August 2012. You were not interviewed until the 21st August 2013 and you were not charged until December 2015 and you were arrested and remanded in custody on 30 May 2016. I have dealt with some of the reasons why there was a delay between the offence and charging above. There was further delay caused by the fact the trial could not be reached because of other court business in the Bendigo circuit. However, none of those reasons could be attributable to you in any way save that you failed to appear at committal mention. I accept that you have had this charge and the possibility of imprisonment hanging over your head for a long time during which you continued to work on the family farm and have not been charged with further offending. In passing sentence I have taken the fact of delay into account as I must.
32I accept that concern for your parents, both as to their respective health situations and their ability to run the farm in a viable way, will weigh heavily upon you whilst in custody, making your time in custody more burdensome for you and I have also taken this fact into account in passing sentence.
33Because of the kind of crime you have committed against a child, it is likely you will be isolated from fellow prisoners because you will be in protective custody and you will likely be isolated by distance from your parents who because of where they live will be unlikely to visit you. In passing sentence I have also taken these matters into account.
34Mr Smallwood relied upon a psychological assessment of you prepared by Patrick Newton, who interviewed you via video link on the 23rd March of this year. It is not necessary that I summarise that report which I have read in detail except to refer to some matters in summary form. Mr Newton thought you to be suffering significant emotional distress in response to the jury’s verdict, though this is not extreme. He thought your symptoms would remit in large part once you have been sentenced and classified to a new prison. Mr Newton thought you not to be suffering from any diagnosable mental disorder. He thought your intelligence is unimpaired, your thought processes without significant defect and you can interact with others effectively. He thought you have good coping skills and your previous substance abuse issues referred to in the report to be in remission. He thought your long-term prospects for positive adjustment to be good.
35Mr Newton opined the most important rehabilitative factor for you would be your capacity to participate in an appropriate sex offender program whilst in custody and to maintain connections with mainstream society. Given that you maintain your innocence of the charge and the limitations that fact has on giving an opinion as to the risk you will re-offend in this way, Mr Newton thought you were not less than a moderate risk for recidivism. In passing sentence I have also taken all of this evidence into account.
36In sentencing for crimes such as this, the sentence imposed must have proper regard to the application of the principle of general deterrence. Those who would seek to offend as you have must be deterred from doing so by the sentences imposed by the courts. The courts must impose sentences that emphasise the need to protect children. Here the victim was still a child who came across your path in circumstances where you were trusted to teach her and you were nearly 30 years her senior. You were in a position of physical and mental power over her. The sentence I impose upon you must appropriately denounce your offending. I must also have regard to your prospects for rehabilitation. You have shown no remorse and I accept your right to continue to protest your innocence. But as I said before, this was a strong prosecution case and I formed the strong view that you tried to lie your way out of trouble. I fully agree with the jury’s verdict. Until you accept the jury’s verdict and express some appropriate remorse and empathy for the victim of your crime I am of the view that your prospects for rehabilitation are poor.
37On the crime of rape you are convicted and sentenced to a term of imprisonment of 9 years.
38I direct that you serve a minimum term of 6 and a half years before you are eligible for release on parole.
39I direct that 799 days pre-sentence detention be reckoned as having been already served under the sentence passed this day and be entered into the records of the court and deducted administratively.
40The crime of rape is a class 1 offence for the purposes of the Sex Offenders Registrations Act 2004. You are now a registrable offender within the meaning of that Act with reporting obligations for 15 years.
41I recommend that whilst in custody and before you are released on parole that undertake the sex offenders program.
42Are there any matters arising out of that?
43MR BOSSO: Your Honour, there are two ancillary orders, a DNA order and a disposal order.
44HIS HONOUR: Yes. I have ‑ ‑ ‑
45MR SMALLWOOD: They're not opposed, Your Honour.
46HIS HONOUR: Yes, for the reasons stated in the forensic sample order I have signed it. I think Mr Perryman has already given a forensic sample.
47MR BOSSO: I don't believe - oh, he must have, Your Honour, given that he's ‑ ‑ ‑
48HIS HONOUR: That was the basis of the evidence.
49MR BOSSO: Yes, he must have, yes.
50HIS HONOUR: Indeed he's given two. I think he gave one sample which was misplaced, then he gave another.
51MR BOSSO: Well, it'd be subject to automatic retention then, Your Honour, so the order's not necessary.
52HIS HONOUR: Yes. The other order is a disposal order which is not opposed and I've signed that.
53MR SMALLWOOD: As the court pleases.
54HIS HONOUR: Yes, remove the prisoner please.
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