R v Barake

Case •

[2020] NSWDC 937

•

09 April 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Barake [2020] NSWDC 937
Hearing dates: 15 October, 13 December 2019, 31 January and 28 February 2020
Date of orders: 9 April 2020
Decision date: 09 April 2020
Jurisdiction:Criminal
Before: Hoy SC DCJ (Trial – Maiden SC DCJ)
Decision:

(1) Convicted on all counts.

State offences – Counts 3, 5, 7 and 8:

(1) Aggregate term of TWO (2) YEARS imprisonment commencing 27 January 2019 and expiring 26 January 2021.

(2) Non-parole period of ONE (1) YEAR commencing 27 January 2019 and expiring 26 January 2020.

Commonwealth offences – Counts 1, 2, 4 and 6:

(1) Aggregate term of FIVE (5) YEARS imprisonment commencing 27 January 2020 and expiring 26 January 2025.

(2) Non-parole period of THREE (3) YEARS commencing 27 January 2020 and expiring 26 January 2023.

Catchwords:

SENTENCING – State and Commonwealth offences – grooming – incite child to commit act of indecency – use carriage service to send indecent material to child – possess child abuse material

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Court Suppression and Non‑publication Act 2010 (NSW)

Criminal Code Act 1995 (Cth)

Crimes Act 1900 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1914 (Cth)

Cases Cited:

R v RTI (2003) 58 NSWLR 438

R v Kent NSWCCA (unrep. 8 October 1998)

Kostov v Ypol Pty Limited [2018] NSWCA 306

DPP (Commonwealth) v Swingler [2017] VSCA 305

Minehan v R [2010] NSWCCA 140

R v De Leeuw [2015] NSWCCA 183

R v Melham [2011] NSWCCA 121

R v Cross [2012] NSWCCA 114

R v SVR [2012] NSWCCA 233

Martin v R [2014] NSWCCA 124

R v Martin [2014] NSWCCA 283

R v Rajeskar [2017] NSWCCA 113

R v Nahlous [2013] NSWCCA 90

R v Meadows [2017] VSCA 290

R v Engeln [2014] QCA 313

R v Elias (2013) 248 CLR 483

Hili v R (2010) 242 CLR 520

Power v R (1974) 131 CLR 623

DPP (Vic) v Swingler [2017] VSCA 305

Fasciale v R [2010] VSCA 337

DPP (Cth) v Beattie [2017] NSWCCA 301

Putland v R (2004) 218 CLR 174

R v M.A.K; R v M.S.K. [2006] NSWCCA 381

Texts Cited:

Nil

Category:Sentence
Parties: Regina
Tony Barake (Offender)
Representation:

Counsel:
S Talbert (Crown)
G Foster (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Phillip A. Wilkins & Associates (Offender)
File Number(s): 2016/00050575
Publication restriction: Non-publication orders with respect to the identity of or any material that may tend to identify each or any of the Complainants/victims and/or any other young persons referred to in this judgement – s 15A(1) and (5) Children (Criminal Proceedings) Act 1987 (NSW) and s 7 Court Suppression and Non-publication Orders Act 2010 (NSW)

JUDGEMENT

  1. HIS HONOUR: At the outset I confirm the non-publication orders pursuant to s 15A s(1) and (5) of the Children (Criminal Proceedings) Act 1987 (NSW) together with the provisions of s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW) with respect to the identity of or any material that may tend to identify each or any of the Complainants/victims and/or any other young persons referred to in this judgement.

  2. The Offender Mr Tony Barake appears before me today for sentence for the following offences:

Counts 1, 2 and 4: “use carriage service to groom a child” – s 474.27(1) Criminal Code Act 1995 (Cth) (“the Commonwealth Act”) – maximum penalty 12 years imprisonment;

Counts 3 and 5: “incite child under 16 to commit act of indecency” – s 61N(1) Crimes Act 1900 (NSW) (“the State Act”) – maximum penalty 2 years imprisonment;

Count 6: “use carriage service to send indecent material to a child” – s 474.27A(1) Criminal Code Act – maximum penalty 7 years imprisonment; and

Counts 7 and 8: “possess child abuse material” s 91A(2) Crimes Act – maximum penalty 10 years imprisonment.

  1. None of these offences carry standard non-parole periods. The maximum penalties confirm the seriousness of the offences and the maximums are reserved for those that fall into the worst category. The punishment must fit the crime. The gravity of each offence is to be assessed by reference to its objective seriousness.

  2. The Offender was found guilty of each of these offences on 12 March 2019. This was after a three week jury trial before Judge Maiden SC. Ms Talbert appeared as Crown Prosecutor and Mr Foster for and with the Offender. Since the verdicts the matters have had an unfortunate history of delay before resolution finally today. As to this I apologise to the Offender, the parties and the community. There were, as can be seen a number of unforeseen occurrences that intervened. Apparently the matter was first listed for sentence after those verdicts on 17 May 2019 before his Honour Judge Maiden SC. It did not then proceed as he was unavailable. The matter was adjourned until 19 July 2019. Again it did not proceed. I know not why. It was again adjourned until 9 August 2019. That date was also vacated, apparently because there was no Sentencing Assessment Report. It was adjourned until 15 October 2019. In the meantime Judge Maiden SC had left the Court and was unavailable to finalise the proceedings. The matters therefore then came before me.

  3. On 15 October 2019 the parties indicated the sentence hearing would take about two hours including reading time. The Offender gave evidence. This however stimulated some additional challenges to the parties and added time and complexity to the sentencing exercise. Whilst I will turn to the Offender’s evidence in a moment, simply put he gave a previously undisclosed at trial explanation for the offending behaviour, essentially saying that which was recited in a psychological report of Mr Istvan Schreiner, clinical psychologist dated 1 May 2019 and which had been tendered on his behalf. Therein Mr Schreiner opined that the Offender exhibited delusional thinking in bizarre thought patterns claiming that he was the victim of a conspiracy and that they were the result of “half humans” called “greys” controlling others and influencing their decision making. Mr Schreiner provided further details of these delusional thoughts in his report. Notably the Sentencing Assessment Report dated the preceding day, 14 October 2019, also described the Offender giving similar attribution to his offending behaviour stating he had “no memory of the commission of the current offences” and that there “is a conspiracy against him by the greys, alien-like creatures and as a consequence he is currently before the Court”. In that report he also relevantly acknowledged that there was a possibility that he had committed the offences and stated “if I did it I am very sorry”.

  4. Acknowledging that I was not the trial Judge and thus not privy to the evidence, the parties advised that the Offender did give evidence in his trial and that at no stage were these explanations offered or referred to as a part of the defence case. Indeed the parties indicated the defence was that the offences did not occur and that prior to or during the trial no issue as to fitness to plead arose, whether related to this apparently latent explanation or not. The parties also agreed that this may have been a relevant consideration under the Mental Health (Forensic Provisions) Act 1990 (NSW) and in the circumstances, having regard to the Offender’s then evidence together with the psychological and Sentencing Assessment reports, there was a possible issue as to fitness and/or possible psychiatric or psychological issues relevant to the sentencing exercise. Upon my inquiry the parties could not confirm whether the Offender had actually been convicted or not and notably the Court record gave no hint other than confirming, as did the parties, the jury verdicts for the nominated counts. At the request of the parties and mindful of the defence submission that they may or may not be able to receive Legal Aid funding for a further psychological or psychiatric assessment I sought an urgent psychiatric assessment from NSW Justice Health and Forensic Mental Health Network attached to the Corrective Services Commission. I adjourned the matter for this to occur until 13 December 2019 and invited Mr Foster for the Offender, if he wished, to also obtain further psychological material.

  5. A report from a Dr Gerald Chew, consultant psychiatrist from Justice Health and Forensic Mental Health Network dated 11 December 2019 was subsequently received. It raised a possible issue as to fitness. Consequently Mr Foster sought a further adjournment so as to consider that report, relevant authorities and possibly pursue further psychiatric reports. Crown did not oppose that application and again the matter was adjourned. This time until 31 January 2020, essentially for mention and/or update. On that day defence again sought an adjournment because they were still awaiting psychiatric reports. By consent the matter was again adjourned. At the time Crown also helpfully provided some authorities relevant to fitness to plead, confirming in particular there was no basis for challenge as to fitness post-conviction, which at that stage both parties notably agreed was constituted by the guilty verdicts of the jury.

  6. On 28 February 2020 the sentence hearing again continued before me. I was then provided with the anticipated psychological reports on behalf of the Offender, being two reports from a Mr Sam Borenstein, clinical psychologist dated 19 and 25 February 2020. I also received and heard further submissions. By that time Ms Talbert had moved on and Mr Kelly, her instructing solicitor, continued as prosecutor.

Consideration of Fitness to Plead Post-Verdict

  1. The parties have helpfully provided assistance insofar as any potential issue of fitness to plead is concerned. Whilst acknowledging the contents of each of the reports and in particular the varying diagnoses and opinions given, both submitted that there was no jurisdiction for a court to hold a fitness hearing after conviction see R v RTI (2003) 58 NSWLR 438 (“RTI”). The parties also agreed that the jury verdicts of guilty prohibited an inquiry as to fitness by a sentencing court; in particular RTI rejected that which had occurred in R v Kent NSWCCA (unrep. 8 October 1998) where a question of fitness did arise after trial but before sentence. The trial judge there refused to pass sentence and instead then conducted a fitness hearing. This of course parallels to a degree the present situation and as I say, that approach was rejected by the NSW Court of Criminal Appeal in RTI. This approach has also been more recently approved by the New South Wales Court of Appeal in Kostov v Ypol Pty Limited [2018] NSWCA 306. Overall the parties submitted and I agree that the issue of fitness does not arise post-jury verdicts.

Submissions and Material Tendered

  1. In addition to the material already mentioned learned Crown provided a comprehensive sentencing bundle within which there was a copy of the Indictment, a resume of facts agreed as consistent with the guilty verdicts, three tables describing the child abuse material relevant to Counts 7 and 8, the Offender’s criminal and custodial services record and further documentation describing a fraudulent workers’ compensation claim that was prosecuted in the Local Court and did not appear on his record. It was agreed he was convicted, sentenced to imprisonment and thereafter, consequent to a District Court severity appeal, ordered in lieu to serve a 12 month Intensive Correction Order. I am told that was subsequently breached and he then served four and a half months full time custody. All of that was essentially to fill in the gap in the record that was handed up by the Crown. I have also received the Sentencing Assessment Report dated 14 October 2019.

  2. On behalf of the Offender I have received psychological reports of Mr Istvan Schreiner dated 1 May 2019 together with two reports of Mr Sam Borenstein, clinical psychologist dated 19 and 25 February 2020.

  3. I was also given two bundles of Public Defenders’ case summaries concerning past appeal cases with respect to s 91H of the State Act and s 474.27(1) of the Commonwealth Act. Both Crown and Mr Foster on behalf of the Offender have provided very helpful written submissions and supplemented them orally.

Record

  1. The Offender has a limited criminal record. He has some summary matters including entering enclosed lands, malicious damage, goods in custody, false instrument, possess drugs and two assaults. For these matters he has received fines and/or s 9 good behaviour bonds. There is also the Workcover prosecution to which I earlier referred. He has no matters similar to the present or prior sexual matters. He does not have any prior prison disciplinary offences.

Time in Custody

  1. The Offender has been in custody for these matters alone for over 14 months. It is agreed by the parties that I should backdate his sentence to take all time so served into account. As of today the parties agree he has therefore been in custody for a total of 439 days. It is therefore agreed that I backdate his sentences to commence on 27 January 2019 to take this time into account.

Not Guilty Pleas

  1. The Offender pleaded not guilty to each count at trial. He was unsuccessful. He is not to be penalised for those pleas. He was entitled to defend the charges. He does not however therefore receive the benefit of any discount that might otherwise apply should he have admitted his guilt. Similarly he is not to be penalised or criticised for any absence of contrition or remorse. The simple situation is that he denied his guilt and he is not to be penalised for that stance. As to the present position, he does not admit his guilt and indeed there are those factors that I have earlier referred to in the reports as to the attribution of the offending behaviour, noting however the concession I referred to which I take into account, “if I did it I am very sorry”.

Fact Finding

  1. I have been provided with a document headed “Facts after Jury Trial” which the parties agree are consistent with the jury verdicts and upon which I should sentence. As I raised with the parties, this exercise is particularly important against the background of me not having been the trial Judge and therefore not having seen or heard from each of the witnesses including the Offender during the trial and upon which I might form views as to reliability with particular regard to decisions concerning facts on sentence. Hence I am grateful for the assistance and agreement by both parties as to the facts upon which to sentence.

  2. During submissions certain aspects of the Agreed Facts did arise and these were later clarified by a further Agreed Fact Addendum document which has been marked Exhibit F by consent.

Facts

  1. Accordingly the facts and details of the offences are as follows.

  2. The Offender was aged between 45 and 47 at the time of offending and they essentially occurred within about a two year period between 7 February 2014 and 18 February 2016.

  3. As to Counts 1-6, there were four separate victims:

Count 1: MK, aged 14 or 15,

Counts 2 and 3: GT, aged 14 or 15,

Counts 4 and 5: TGS, aged 12 and

Count 6: IH, aged 13 or 14.

  1. As to Count 1, between 7 February 2014 and 18 February 2016 the Offender contacted the victim MK via Facebook and later Snapchat and telephone text messages. He described himself as having the name Tony Smith. He initially said he was 18 years of age but later changed this to saying he was actually 21 years of age. On one occasion when challenged by the victim as to his age he said he was sick and started coughing. The communications included him suggesting she had “nice boobs” and him asking for intimate photographs of her breasts and vagina. He told her he would love to have sex with her, would do it hard, she would scream and would love it. He sent her multiple photographs of penises. Prior to her fifteenth birthday he offered to visit her while she was living in country New South Wales, saying they could stay in a hotel together. He sent her pictures of what he proposed buying her, including jewellery and lingerie. On one occasion he asked her to participate in “phone sex”. Through their contact he also purchased her phone credits. He told her he would do anything for her and that she was beautiful and gorgeous. SMS mobile phone records indicated that between 21 and 25 December 2015 they exchanged 205 text messages.

  2. As to Count 2, which occurred between 18 March 2015 and 7 February 2016 and Count 3, between 26 November 2015 and 18 February 2016, the victim GT was in year 8. The Offender added her as a friend on Facebook, again using the name Tony Smith. He started communicating with her via Facebook messages, telling her he was 20 years of age. She told him correctly that she was then 15. The communications extended to Snapchat and later texts on her mobile phone. There were over 3,000 messages, almost daily between 18 November 2015 and 17 February 2016, with some 812 messages within a 12 day period. He also purchased phone credits for the victim and offered to buy her a ticket so she could travel from interstate to live with him in Sydney.

  3. As to Count 3, between 26 November 2015 and 18 February 2016, he asked her to send him sexual images of herself and to which she complied, apparently sending multiple sexually explicit photographs of herself. He also sent her sexually explicit texts, for example suggesting he was going to lick her pussy hard core and touch her favourite spots inside her pussy with his tongue. The communications have been agreed as including “sexting” and simulating sexual activity between them both. The parties also agreed that GT sent 21 images to the Offender. Explicit descriptions of each of those images are contained in the Schedule, Tab 3 of the Crown bundle (Exhibit A). These images are also constituents of Count 8, the possess child abuse material charge.

  4. As to Counts 4 and 5, both occurring between 13 and 16 February 2016, the Offender contacted the victim, TGS, initially via Facebook and thereafter with telephone text messages. Over a two day period there were some 500 points of contact between them. He initially described himself as “Tony from FB”. The victim falsely indicated that she was 15 years of age. She was actually 12. She told him that she lived in a refuge and he confirmed that it was around the corner from where his parents lived. Text messages from 14 February 2016 included offers that she could come and live with him when she turned 16 and that it was their destiny that they had found each other. As to Count 5 specifically he also asked her for nude selfies and photographs so that he could see her “clit up close”, her “arse” and “titties”. He also asked her to feature her face in the photographs and that he wanted to see inside her. She initially refused however within hours complied and sent him multiple sexually explicit photographs of herself including partial and full nude shots of her and with another young person. He also sent back a photograph of a penis. The parties agree that TGS sent eight images to the Offender and explicit descriptions of each of those images are also contained in the Schedule at Tab 3 of the Crown bundle (Exhibit A). Those images are also constituents of the Count 8, the possess child abuse material charge.

  5. The text of 14 February 2016 also included him telling her on multiple occasions that he loved her. He also suggested that they should have a secret password between them so that when they were talking they knew they were talking to the correct person. The next day the victim also indicated she was trying to get a new phone and the Offender offered to buy her one. A trip was also arranged for her and the other young person to meet him, however upon the latter reneging the victim said she did not want to go alone. He did offer to meet her and take her to a public place, however she declined.

  6. As to Count 6, the victim IH, who was then 14 years of age and in year 9, received a random Facebook Messenger request from the Offender, again using the name “Tony Smith”. She did not know him. The chat between them led the victim to conclude she knew him from school. She told him she was 14 and he told her he was 16. They became Facebook friends and chatted about a number of things for about a month. The offence occurred between 21 August 2015 and 16 February 2016, just under six months. During this time there were also mobile telephone text messages and again reference was made to the earlier modus operandi of using a code word so as to ensure he was not communicating with anyone else. He started asking her for photographs of herself including in the nude. She sent photos of a face but no nude ones. From time to time he bought phone credits for the victim. As to the specific count, the Offender also sent her a few photographs of a penis via Snapchat.

  1. At the time the victim was living interstate. The Offender also offered to pay for her to visit him in New South Wales. She declined. On 16 February 2016 police executed a search warrant at the address where the Offender was living. They found and seized his two mobile telephones, an iPhone 5 and an iPhone 6. Upon subsequent forensic analysis each revealed child abuse material upon which Counts 7 and 8 are based. As to Count 7 there were two copies of one image which is described as falling within the Interpol Baseline Categorisation Level 1.

  2. The image is in black and white and depicts a close up standing image of the external genital areas of two pubescent female children under 10. The Combatting Paedophile Information Networks in Europe (“COPINE”) scale describes Category 1 as “images depicting erotic posing of children with no sexual activity”. As to Count 8, there were 64 images which were described as falling within the Interpol Baseline Categorisation Level 2. Reference to the COPINE scale describes 55 of the images as Category 1 (see above) and 9 in Category 2, that is “images depicting sexual activity between children or solo masturbation by a child”. Of these images there were 31 of the victims referrable to Counts 3 and 5 including by way of example, images of naked buttocks, genitals including the vulva, pubic areas and self‑penetration of the vagina digitally and with a glass bottle. Others showed selfies of female children no older than 14 years showing their torsos, developing breasts, external genitalia including exposed buttocks and vulva, nipples and various sexual poses.

  3. After arrest the Offender also endeavoured to have a friend persuade one of the victims, GT, to lie should police speak to her. He also asked another under-aged male friend to admit to some of the grooming offences on his behalf. All these matters are obviously serious.

Subjective Features

  1. The Offender Mr Barake gave evidence before me on 15 October 2019. He adopted the contents of the report from the psychologist Mr Schreiner dated 1 May 2019 although made some changes to his recorded history. He confirmed he was born in Tripoli rather than Sydney and that he came to Australia at the age of five. He also confirmed that he was originally married in April 2000 rather than 2009. He indicated that whilst presently on remand, he was within what was known as Pod 18, a mental health unit attached to the MRRC at Silverwater. He said that whilst in custody he keeps to himself and only talks to a few people. He confirmed a willingness to attend and participate in any courses if requested, however noted that whilst on remand none were available. He said that since being in custody he had been seen by a psychiatrist on maybe five or six occasions and a psychologist maybe three times.

  2. He said he was unaware of the diagnosis of schizophrenia that had been relayed in the Sentencing Assessment Report. He did confirm some of the revelations within the report of Mr Schreiner, particularly at [2.1.3] where he considered himself to be the victim of a conspiracy and that the current charges related to an effort to silence him and shut down any internet presence. He says that he was always endeavouring to uncover the threat of Zionism and as a result half-humans or “greys” endeavoured to control him and influence his decision-making. He said the best way to avoid them was to empty his mind of thoughts and in the past he did so by taking excessive amounts of prescribed medication including endone and/or valium. He indicated that he also had two GPS devices implanted under his skin and the scars to show it. He disagreed with the suggestion by the psychologist that his thinking was delusional or bizarre.

  3. In the present proceedings he agreed that when giving evidence at his trial for which he was subsequently found guilty and now faces sentence, he did not raise these matters, including being influenced by “greys”. Instead he attributed commission of the offences to another underage person. For the sake of anonymity I use the initials “CD”, who he says was using his phone and sending the messages. He said he did not mention the “greys” at trial because he thought the jury would think he had lost his marbles. He also said that he did not raise it with police when arrested because he did not wish to talk with them.

  4. As to his offending behaviour he said he could not recall it at all and that he has wracked his brain about it with no result. He said he cannot recall anything about it and/or whether it may have related to his excessive use of medications at the time. He did however confirm that he told the psychologist and/or the Community Corrections officer that if he did commit the offences, he was “very sorry” that he did so. He further confirmed to me that he understood how serious it was. He said he was still visited by the “greys” every night and the best way to get rid of it was to empty his mind and fill it with thoughts of large expanses of water or fields covered in flowers. He did not agree with the diagnosis of schizophrenia but appreciated and understood my concerns that further inquiries should be made. He seemed to me to appreciate the seriousness of the conduct for which he had been found guilty.

  5. The Offender told me that in the past he had been admitted to a mental health unit attached to Bankstown Hospital, both at the behest of his sister, in 2016 for about three weeks and later in 2018 for about three to four days. He said this apparently arose from her concern and on occasions where he took too many prescription drugs, again which he says was not an attempt at self-harm but to repel the intrusion by the “greys”.

  6. In the future he proposes to return to work as a truck driver in whatever position he can obtain. He has accommodation either with his sister or elderly parents. He says that they all remain supportive of him. He further agreed that in cross-examination at the trial he did not raise these thoughts when he gave his evidence.

  7. Whilst I have already referred to some aspects of the various reports further details follow.

Psychological Report – Mr Istvan Schreiner dated 1 May 2019

  1. The report from Mr Schreiner is of assistance. Together with the Sentencing Assessment Report it gives helpful familial and general background information. Both confirm he is the eldest of four siblings and has the ongoing support and a close relationship with his remaining siblings and mum. He is her carer. He was married for about 15 years although now separated. From that relationship there are three children, one of whom suffers from a difficult medical condition. Due to Family Court orders he regrettably has no contact with them.

  2. He has had an unremarkable education but does have a good work history, primarily self-employed and more recently as a delivery driver. From a physical health perspective he has been diagnosed with type 2 diabetes and high blood pressure. Since surgery and weight loss these conditions have been very much alleviated. There are no illicit drug issues although as a younger man he did experiment with cannabis. He has no issues regarding alcohol. The principal aspects of Mr Schreiner’s report relate to his psychiatric and psychological history and present circumstances.

  3. The report of Mr Schreiner recites the Offender exhibiting delusional thinking and bizarre thought patterns. I have identified some of these, many of which were attested to by Mr Barake in his evidence before me. Mr Schreiner also suggests that he has symptoms of emotional difficulties, sleep difficulties, lethargy, low self-esteem, anxiety and significant depression. He confirmed the Offender’s past marriage and that he and his former partner have the three children, albeit him being estranged from them. He also indicated that he actually did very well at school. Mr Schreiner indicates that at the time of the Offender’s marriage breaking down, his family recommended he undergo psychiatric assistance. He rejected this and self-medicated in lieu, apparently immersing himself in endone and valium.

  4. There have been past hospitalisations in mental health units that were short-lived. Psychological testing reveals the Offender suffers from severely elevated levels of depression, anxiety and stress and is sadly plagued by thoughts of worthlessness, hopelessness and personal failure. He is also troubled by feelings of sadness and a loss of self-pleasure. He does not report any distress from thoughts of self-harm and apparently controls his anger. The psychologist also said that at the time of assessment he was experiencing a major depressive episode coupled with signs of delusional beliefs and thoughts. Mr Schreiner indicated he was uncertain whether the self-reports were genuine representations of a delusional disorder such as paranoid schizophrenia or whether he was intentionally trying to portray himself as someone experiencing delusions. Essentially Mr Schreiner indicated that due to the short period of time available for assessment he was unable to evaluate serious psychological disorders such as schizophrenia. Whilst reporting notable delusions concerning the charges he said the Offender otherwise presented as a coherent and rational individual, which in his view was inconsistent with a diagnosis of schizophrenia.

  5. Overall Mr Schreiner opined that the Offender was most likely suffering from a delusional disorder, however in fairness considered his assessment was inconclusive. He did however recommend continued assessment sessions with a psychologist or psychiatrist concerning possible schizophrenia together with regular psychological counselling and cognitive behaviour therapy to help deal with his depression and tension.

  6. It was this report together with the Offender’s evidence that prompted the forensic psychiatric report from Dr Chew dated 11 December 2019. He provided that at my request. Copies were provided to the parties. He interviewed the Offender and had access to his custodial health records. He noted the history of the Offender, reporting he was visited each night by “the greys” and that since his admission into the custodial mental health unit the visits had continued and included aliens entering his cell, “the greys” and that half the patients within the unit were also hybrid aliens. Dr Chew considers the Offender has a chronic psychotic illness, that is schizophrenia and that he could be classified as treatment resistant having regard to past medicinal efforts. He proposed the Offender be considered for clozapine treatment.

Psychological Reports – Mr Sam Borenstein dated 19 and 25 February 2020

  1. Mr Borenstein provided two reports at the request of the Offender. The first details the Offender’s beliefs as to the jury being influenced by “the greys” and Zionists, all of which he sees as a conspiracy to remove his presence from the Internet and/or social media platforms. The Offender relayed to him that he sees himself as part of an anti-Zionist resistance movement and his various beliefs about who he was in past lives. Mr Borenstein relays that the Offender is aware of the diagnosis of delusional schizophrenia but disagrees that he has any issues although he takes medication. He confirms that Mr Barake has been admitted to mental health services on past occasions, most recently for what he categorised as a suicide attempted in 2018. He also confirms the Offender relays suffering from auditory and visual hallucinations which he attempts to escape from by picturing large bodies of water and/or sunflowers.

  2. When questioned as to the present offences, Mr Barake says he has no memory of ever committing them and has no interest in young girls. He says he was taking a variety of medications leading up to the offences including endone, valium, oxycontin and serapax together with consumption of alcohol. As to his employment history, the Offender apparently reported having owned a nightclub and a brothel, both of which he says he sold and went to the USA to build allies for the anti-Zionist cause. In relation to his marriage he says splitting up with his wife occurred after being framed by the “hybrids” for rape.

  3. As to his observations about the Offender he reports evidence of perceptual disturbance and a chronic delusional disorder, although says he was oriented as to time, place and person and cognitively intact. He reports that in his opinion the Offender is genuine in his conspiratorial beliefs in relation to “greys” and Zionism. Finally Mr Borenstein states that he believes Mr Barake lacks insight into the extent and nature of his offences and would not accept the finding of the Court, which he believes is being manipulated by “the greys” and/or “Zionists”. He also states the Offender is incapable of providing proper instructions for sentence and that his psychiatric condition existed in the periods covered by the present Indictment. He says the Offender’s condition may have played a part in his offending behaviour even though he denies any recollection and his belief that the electronic evidence was tampered with.

  4. Mr Borenstein’s second report of 25 February 2020 clarifies his opinion as to whether the Offender’s psychiatric condition played a role in his offending. He confirms the Offender behaved in a manner which reinforced his conspiratorial beliefs that he was a victim of the “Zionists” and the “greys”. He opines that this may have led to the Offender denying any involvement in the offences and his belief that the perceived manipulation extends to the Court. He concludes that the Offender has suffered schizophrenia and a complex delusional disorder before and during the offending period, which would have “interfered with his ability to form proper judgements, make sound decisions and in turn interfere with his behavioural choices”.

  5. The psychological report from Mr Borenstein promotes a diagnosis of schizophrenia with a complex delusional disorder. Crown challenges the conclusion as to delusional disorder and points out that Mr Schreiner suggested such a diagnosis is likely although qualified this by stating his assessment was inconclusive. I am also reminded that Mr Borenstein embraces Mr Schreiner’s suggestion as an accepted conclusion. Crown emphasises that Mr Schreiner qualifies the opinion by saying he revealed signs of delusional beliefs and thoughts however thereafter conceded it was unclear whether they were genuine representations or whether he was intentionally trying to portray himself as someone experiencing delusions. Crown submits therefore that Mr Borenstein’s diagnosis or opinion is to be regarded very lightly and indeed suggests I would be very cautious in accepting any such proposed diagnosis. Crown adds that the diagnoses have only arisen post-guilty verdicts.

Sentencing Assessment Report dated 14 October 2019

  1. The Sentencing Assessment Report of 14 October 2019 is also helpful. It gives familial and personal background, noting again that Mr Barake has the support of his sister and family and that until about 2015 he was in regular employment and more recently the sole carer for his mum. The report refers to his lack of memory as to the offending behaviour, claiming that at the time he was abusing prescriptive medications and attesting to the influence of “the greys”. He says and confirms that if he did commit the offences, he is very sorry.

  2. The report writer says the Offender has displayed an understanding of the long term impacts of his offending behaviour upon the victims and says he is willing to access interventions to address his sexual offending, mental health issues and substance use. He notes however that his mental health presentation may impact on his ability to access relevant interventions. There is apparently a history of past hospitalisation due to overdose and at the time of offending, the Offender confirms he thinks he was abusing prescribed medications. He has been assessed by the officer as having a medium risk of re-offending according to the Level of Service Inventory Revised (“LSI-R”). His overall risk of offending is 2-3 (high) due to him being assessed as above average risk of re‑offending using the Static 99R Sex Offender Assessment Tool. Risk management was also suggested, in particular focussing on mental health treatment, increased insight and compliance, as well as substance misuse. It is recommended he also be referred to the sex offender programme whilst in custody however this requires further assessment against the background of the diagnosis of schizophrenia. Helpful supervision plans have also been identified upon release.

  3. There are two tranches of offences under separate jurisdictions. Counts 3, 5, 7 and 8 are under the State legislation whilst Counts 1, 2, 4 and 6 are under Commonwealth legislation. Different statutory regimes apply and the higher Courts have recognised that sentencing in such circumstances is not without difficulty. This is particularly so when considering and reconciling principles of totality, accumulation and/or concurrency, see DPP (Commonwealth) v Swingler [2017] VSCA 305 at [63]. As also submitted by the parties, that authority provides some direction as to the manner of integrating the two jurisdictions. Specifically, joint submission is made that I adopt a process of dealing with the State sentences first and then those from the Commonwealth.

  4. In State matters, maximum penalties and standard non-parole periods where applicable are “legislative guideposts” to be considered along with other established sentencing practices both at common law and legislatively under the Crimes (Sentencing Procedure) Act 1999 (NSW) where applicable. There should be reasonable proportionality between the sentence and the circumstances of the crime and the relative importance of objective facts and subjective features will vary in every case. Due weight must be given to the objective circumstances and throughout, the Court retains a process of that oft-used phrase, “instinctive synthesis”.

  5. The State offences, and in particular Counts 3 and 5, involve the inciting of two of the victims, GT and TGS, to commit acts of indecency. They did so by sending sexual images of themselves to the Offender. Through this the Offender was endeavouring to coerce or attempting to liaise with them. His conduct was persistent, occurring over nearly three months and three days respectively, unrelenting and opportunistic. The victims were otherwise strangers, one living in a refuge, both vulnerable. Fortunately neither succumbed to his invitations to meet personally. They were both of a young age with related immaturity. The Offender was considerably older, just shy of 50. As a result of his actions, GT sent 21 images and TGS sent 8 images. Added to this and apparently upon detection, the Offender then endeavoured to persuade another young person to accept responsibility.

  6. His contact with each of the victims escalated to extraordinary numbers; Count 1, some 205 text messages in 4 days. Count 2, over 3,000 messages in less than 12 months (almost daily between 18 November 2015 and 17 February 2016) and 812 in a short 12 day period and Count 4, some 500 instances of contact within 2 days. The age differences throughout were again significant. The possession of child abuse material, that is the further State matters, Counts 7 and 8, were a consequence of his earlier predatory conduct, interwoven with his earlier communications with the victims, some responding by forwarding images to him. There are also other images, apparently acquired separately. Notably the images have been categorised as falling within the lower scales of seriousness and against the background of many instances of that type of offending there was only a small number of images. Furthermore I confirm the Offender did not personally meet or have any physical contact with any of the victims. These of course fall within some of the recommended criteria to be considered when assessing objective seriousness, as spelt out in the well-known case of Minehan v R [2010] NSWCCA 140. It is trite to say that actual children were depicted and indeed the majority or at least half the images, emanated from his contact with two of the victims. As far as I understand his position it was for his own personal use rather than for sale or dissemination. The victims do not appear to have been paid however offers were made. There was a degree of planning although upon obtaining the images they were relatively naively, if not obviously, stored within his iPhones.

  1. In all the circumstances I consider Counts 3 and 5, the incite child to commit acts of indecency charges, as falling below the mid-range but above the half-way point between low and mid-range. As to Counts 7 and 8, having regard particularly to the limited number of images and their lower categorised levels of indecency, each falls at the lower range.

  2. As to the Commonwealth matters and in particular the grooming offences, Counts 1, 2 and 4, the first two offences occurred over an extended period of time and were persistent. The latter was over three days and just prior to detection. The age differences however remain dramatic; the victims 14-15, 15 and 12 respectively and the Offender just shy of 50. The Offender deployed calculated subterfuge, using false names and pretending to be of a younger age. His conduct was manipulative, insidious and deceptive. He was using social media; firstly Facebook, then Snapchat and then direct contact via telephone messages to manipulate, coerce and encourage the victims to engage with him. Once tapping into them, he recommended secret passwords to preserve anonymity, secrecy and to resist detection, clearly understanding the wrongfulness of his actions. There were also promises of reward. The messages were lewd and sexualised, sometimes accompanied by photographs to and fro of genitalia.

  3. As to all the matters involving each of the victims directly, the offences spanned over various but significant periods of time. Having regard to the outer parameters it was just over two years within which the course of misconduct occurred. It involved a series of ongoing criminal acts, many of the same character. The offending conduct escalated towards the end and apparently ceased with detection and investigation. As to the grooming offences, that is Counts 1, 2 and 4, I consider them to be very serious and fall above the mid-range of objective seriousness. I include Count 4 because despite being of a shorter period it involved a younger child. Count 6 involved the random targeting of a young person, albeit interstate and sending what has been described as a few photographs of a penis to her, again calculated and predatory behaviour. My added concern is the payment for phone credits. Again there were significant age differences, the child 12. This count also falls above mid-range.

  4. Without endeavouring to comprehensively cover the submissions of either party I firstly confirm that on behalf of the Offender it was conceded that the s 5 threshold as to the State matters has been reached. Whilst not conceded I am also satisfied that as to the Commonwealth matters and under s 17A of the Crimes Act 1914 (Cth) and having considered all other available sentences, there is no other sentence appropriate in all the circumstances than a sentence of imprisonment. As to the Commonwealth matters, Crown submits that each is very serious and that a full time sentence is obligatory. The number and nature of communications were emphasised as well as the multiple victims and duration, particularly with regard to the victim GT, of the offending behaviour. I am also reminded of the content of the communications and their indecency if not explicitness together with the Offender’s deliberateness in pursuit and encouragement.

  5. I am also referred to R v De Leeuw [2015] NSWCCA 183 wherein the Court confirmed it was only in exceptional circumstances that a sentence of imprisonment would not be warranted. While some of the aggravating and mitigating factors under the State legislation have already been covered I firstly confirm that no matters that are constituents or elements of the offence or otherwise inherent characteristics are to be taken into account as aggravating factors. Indeed, none are put forward by the Crown. As to mitigating factors, it is submitted on behalf of the Offender that the injury, emotional harm, loss or damage caused by the offences was not substantial. Against the background of the inherent harm that results from offences of this nature and without in any way diminishing the seriousness of these offences and their obvious consequences, without further evidence I am minded to accept this factor in his favour. I do not however accept the Offender is a person of otherwise good character as against his past criminal record. Nor am I satisfied that he has good prospects of rehabilitation and/or that he is unlikely to re-offend in the absence of what I consider to be appropriate insight into his offending behaviour. I do however accept he understands the consequences and against the background of these offences occurring in the manner that they have, being deliberate and calculated over a significant period of time and now apparently subsumed by a burgeoning mental condition I am not satisfied of these factors in his favour, even on balance.

  6. As to all matters I am reminded of the importance of general deterrence as a primary sentencing consideration together with the public interest in protecting children. As to the former and on behalf of the Offender, whilst no causal connection between his apparent psychiatric condition and his offending behaviour is promoted or sustained, the diagnosis may be taken into account as having affected perhaps his decision‑making and behavioural choices at the time of offending. More importantly, regard ought be had to reducing the need for general deterrence and/or in conjunction, a basis or constituent for a finding of special circumstances. That is also, I presume, relied upon in consideration of an appropriate non-parole period with respect to the Commonwealth offences. I note Crown does not oppose a finding of special circumstances arising from the mental condition.

  7. Whilst there are no Victim Impact Statements there is a presumption of harm resting with children who are victims of offences such as these. The Offender has shown limited remorse and contrition. At its highest, it seems to be against the background of having no memory of the current offences and acknowledgement to the Community Corrections officer that “if I did it, I am sorry”. There is however the further revelation recited in the officer’s report where it is also indicated that the Offender has an understanding of the long-term impacts and a willingness to participate in interventions to assist and address his offending. I take these factors into account as a constituent with respect to both the penalty overall and more specifically within a finding of special circumstances.

  8. The Offender does have relatively good character despite his past record although in the present matters character carries far less if not minimal weight. Against the pleas of not guilty there is no suggestion of cooperation or assistance. That is understood. I have limited material but accept the Offender is otherwise a carer to his mother and his ongoing custody carries unfortunate consequences for her and his immediate family. I have limited material to suggest prospects of rehabilitation. I accept the benign record and his past favourable work record however he has now been convicted of these offences and with his mental condition, at whatever level it is, and in light of the available treatment regimes that have been suggested, it is unknown whether that which he undertakes will be constructive or not. All of this to my mind neutralises any finding as to prospects of rehabilitation and/or likelihood of re‑offending. I thus remain neutral as to both.

Statistics and Comparatives

  1. I have considered the statistics in relation to each of the charges faced by the Offender both as to general profiles and those, as best I can, applicable to this Offender both pre and post-sentencing reforms of 24 September 2018. Firstly dealing with the Commonwealth offences, s 474.27(1): use carry service to groom a child under 16.

  2. Pre-sentencing reforms, using the profile parameters of an individual, no Form 1 matters or the Commonwealth equivalent, several offences, different priors, not guilty plea and aged between 41 and 50 there are no matching cases. Take away the profile factors and there are 84, of which 1 received a s 20(1)(a) recognizance. 26, that is 31%, received s 20(1)(b) release orders and 12, 14%, received Intensive Correction Orders. The remaining 45, 53.5%, were given full time custody with aggregate sentences ranging from 9 months to 7 years, non-parole periods from 6 months to 4 years. Terms for that as a principal offence range from 9 months to 4 years and non-parole periods of 6 months to 2 years.

  3. Post-sentencing reforms and using the same profile there are again no recorded cases. Take away the profile factors there are 9 cases. 1 received a s 20(1)(a) recognizance, 3 received s 20(1)(b) release orders and 5, just over half, received full time custody. The aggregate terms ranged from 18 months to 2 ½ years and non-parole 6 to 18 months. The principal offence range of sentences was 18 months to 2 ½ years. Again the non-parole periods were between 6 and 16 months.

  4. Turning now to the other Commonwealth offence, that is as against s 474.27 27A(1), use carriage service to send indecent material to a person under 16.

  5. Pre-sentencing reforms, there are again no recorded cases encapsulating this Offender’s profile. Take away the profile and there are 23 cases of which 2 received s 20(1)(a) recognizance. 9, that is 40%, received s 20(1)(b) release orders, 5, 21%, received ICO’s and 7, 30%, received full time custody. The range of aggregate sentences there was 18 months to 5 years, non-parole periods 6 to 42 months. Terms for this as a principal offence were between 13 months and 3 years and non-parole periods of 4 to 12 months.

  6. Post-sentencing reforms, there are no recorded cases with a like profile again. Take away the profile and there are 6 cases, 2 of which received s 20(1)(b) recognizances. 2 received s 20(1)(b) release orders and 2 received full time custody. The aggregate sentences were 12 and 30 months, effective non-parole periods 6 and 12 months respectively. Terms for the principal offence were 12 months with a non‑parole periods 4 months to 2 years.

  7. Turning now to the State offences. Those against s 61N(1), incite commit act of indecency, child under 16.

  8. Pre-sentencing reforms there are no cases using this Offender’s profile. Take away the profile there are 6. 3, 50%, received s 9 bonds and 1 received a Community Service Order. Another 2 received full time custody and the aggregate sentences there were 12 and 18 months with corresponding non-parole periods of 6 and 12 months. The terms for the principal offence in this category were 9 months with a non‑parole period of 4 months and 18 months with a non-parole period of 12 months. Post-sentencing reforms, there are no recorded cases.

  9. Turning now to the s 91A(2) matters, that is disseminate, produce or possess child abuse material.

  10. Pre-sentencing reforms there are again no cases paralleling the Offender’s profile. Removing those parameters gives 175 cases. 7 received s 9 bonds and 15, that is 8%, received suspended sentences ranging from 12 months to 2 years. There was also 1 case that received periodic detention which is no longer available, nor indeed are suspended sentences. The balance, 139 cases, received full time custody, that is 80%. The aggregate sentences there ranged from 3 months to 6 years and the non-parole periods 3 months to 4 years.

  11. Post-sentencing reforms, again no cases with the Offender’s profile. Take away the profile gives 17 cases of which 3, 17%, received Community Correction Orders and the balance of 14 cases, 82%, received full time custody. The aggregate terms for those sentences were 9 months to 4 years and 9 months. The related non-parole periods ranged from 8 months to 3 years and 4 months. The terms of imprisonment for the principal offence only ranged from 9 months to 4 years with non-parole periods ranging from 8 months to again 3 years and 4 months.

  12. On behalf of the Offender I was supplied with a series of schedules of Public Defender’s tables as to the State and Commonwealth offences. As to the s 91A(2) offence, that is possess child abuse material, the schedule gives me 31 case summaries. Pleasingly, in submissions, Mr Foster honed them down to six cases.

  13. In the first, R v Melham [2011] NSWCCA 121 the offender apparently had over 45,000 images and the activity occurred over ten years. That Offender was a person of otherwise good character. He was dealt with in conjunction for other Commonwealth offences and pleaded guilty. His total sentence was four years and three months with a non-parole period of three years. This was after a discount of 25% and the severity appeal was dismissed.

  14. In R v Cross [2012] NSWCCA 114 the offender there again pleaded guilty and was also dealt with in conjunction with other State and Commonwealth offences. He apparently made a 17 minute video of an eight year old boy and also had 300 images and videos falling at Levels 4 and 5. His sentence was a total of seven years with a non-parole period of four years and three months. The sentence was reduced on appeal to five years and six months with a non-parole period of two years and nine months.

  15. In R v SVR [2012] NSWCCA 233 there was also a related produce child abuse material charge together with a Form 1 offence. That offender also pleaded guilty and was given a discount of 12.5%. The photographs were of his 12 year old female cousin while she was asleep. There were 235 images. It was considered to be at the lower end of seriousness and a fixed term sentence of 18 months was imposed and suspended. It was upheld as against a Crown appeal.

  16. In Martin v R [2014] NSWCCA 124 there were a multitude of offences against the background of previous similar priors. The offender pleaded guilty and was given the maximum discount. He was found in possession of 60,000 images, videos and documents. He received a total sentence of six years and six months with a non-parole period of four years and six months. This was reduced on appeal to five years and three months with a non-parole period of three years and seven months.

  17. In another case of R v Martin [2014] NSWCCA 283, that offender also pleaded guilty to like offences together with some Commonwealth matters. There were 13,000 different images together with videos and he also shared 47,000 images. The various categories ranged from Level 1 to 3 and 4. The images were found on computer storage devices. After a Crown appeal, the initial total sentence of three years with non-parole of 18 months was increased to five years with a non-parole of three years and six months.

  18. I am also referred to another case which was not in the schedule, R v Rajeskar [2017] NSWCCA 113. That appellant had one like count and three of use carriage service to engage in sexual activity and groom under the Commonwealth legislation. He pleaded guilty at first instance. He received a fixed term of 12 months imprisonment for the s 91H(2) matter and lengthier periods of imprisonment for the Commonwealth matters, which resulted in an overall sentence of five years and nine months with a non-parole period of three years and four months. The severity appeal was dismissed. The specific State offence constituted 40 videos of children engaged in sexual acts and another 167 images falling into Categories 1, 2 or 3 of another accepted categorisation scale.

  19. As to the offences against the provisions of s 474.27(1), that is the Commonwealth charges regarding grooming, the schedule contained ten cases. I was specifically referred to the following three.

  20. The first was Rajeskar to which I earlier referred. With respect to the Commonwealth charges, the offender was sentenced to partially cumulative and concurrent periods of four years and three years. That was cumulative in conjunction with the State offence. An overall sentence of five years and nine months with a non-parole period of three years and four months. The grooming offences were somewhat similar to the present in that they involved an Offender creating and using false social media identities to engage in online chat with children. He posed as a teenage girl and boy, using fake identities, grooming them for sex by soliciting nude photographs. The offences involved five children and extended over about 11 months. He pleaded guilty. There was apparently some remorse, albeit limited insight. He also had in his favour good character.

  21. In R v Nahlous [2013] NSWCCA 90 after a plea of guilty, the offender was given an 18 month sentence suspended upon entering into a three year recognizance. He had pleaded guilty to the exchange of messages which took place over six days on Facebook with a 14 year old neighbour. He was however honest about his age and also had good character. The Crown appeal against that sentence was dismissed.

  22. R v Meadows [2017] VSCA 290 involved a single count where there were 12 online conversations between an offender and a 12 year old female recipient. There was no intention to meet up and the offender pleaded guilty. A 12 month sentence with three months to serve upon release was reduced to three months and thereafter nine months on recognizance.

  23. As to offences against s 474.27A I was again referred to R v Nahlous.

  24. The final case referred to is R v Engeln [2014] QCA 313, wherein the offender engaged in sexually explicit conversations with two 14 year old girls, both actually undercover police, and sent images of himself masturbating to one of them. The offender also travelled to meet one of the girls at a hotel. He pleaded guilty to a number of grooming-type charges and his severity appeal against an overall three year sentence of imprisonment with release after nine months was dismissed. The specific sentence relating to the like offence to the present was 12 months imprisonment with release after nine months on a three and a half year recognizance order. That was also dismissed.

  25. The higher Courts confirm that statistics are of assistance in establishing a range of sentences but do not constitute the outer bounds of permissible discretion. They are more a yardstick upon which to examine the proposed sentence. They also have less value where the offences are not frequently prosecuted or where there is a small number making up the set. They have been referred to as a “blunt instrument” and/or as an “opaque tool”.

  26. Comparable cases as decided by intermediate Courts of Appeal also provide useful guidance. A multitude of cases have been referred to covering similar offences, albeit well distinguishable by their individual circumstances. The range of sentences reflected is extensive and their variation shows a wide range of individual circumstances, both subjective and objective. Issues such as methodology, contact, repetition, deception, precise interaction, related detail and/or pleas of guilty or not guilty are amongst the many factors to be taken into account in addition to those which otherwise specifically relate to Mr Barake, the Offender. That said the material that has been provided together with the related submissions is of assistance. However, at the end of the day, the present case must be considered and decided in light of its own unique circumstances.

  27. As I understand the submissions on behalf of the Offender with regard to the referred cases it is not that custody ought not be imposed but that an overall sentence reflecting approximately a three year non‑parole period may well be appropriate. Learned Crown however disagrees with that characterisation and submits overall that as the course of conduct covered a multitude of child victims with what is submitted was significant planning and deception, a lengthy period of imprisonment is appropriate.

  28. The sentencing exercise presents some considerable complexity, not only because of the variation of the offences and offending behaviour but also that the offences fall into both Commonwealth and State jurisdictions. Consequently, separate statutory and common law sentencing considerations apply. Naturally enough, the subjective factors are consistent throughout and have been taken into account.

  1. In the Commonwealth matters, Counts 1, 2, 4 and 6, I give consideration, albeit not exhaustively, to the factors referred to in s 16A of the Crimes Act (Cth). I am to impose a sentence of severity appropriate in all the circumstances and in particular take into account those factors within s 16A(2).

  2. In the State matters, Counts 3, 5, 7 and 8, consideration is to be given, again not exhaustively, to the factors referred to in the provisions of the Crimes (Sentencing Procedure) Act where applicable. There is naturally enough considerable overlap between the respective statutory factors to be considered. From the State perspective, s 3A of the Crimes (Sentencing Procedure) Act sets out the purposes for which a court may impose a sentence on an offender. They are:

“(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender and

(g) to recognise the harm done to the victim of the crime and the community.”

  1. These are to be considered in conjunction with the Commonwealth provisions to which I have referred. As to each of the tranches of offences, all include significant weight attaching to general and specific deterrence, particularly for offences of this nature together with accountability and denunciation for such behaviour and to protect our community. I again confirm that I have made some reduction, indeed adjustment, as to general deterrence carrying lesser weight, having regard to the Offender’s acknowledged mental condition insofar as schizophrenia is concerned.

  2. Factors bearing on the determination of sentences often pull in different directions and in balancing all those factors there is a process that I earlier described of “instinctive synthesis”. I must balance those many different and conflicting features, see R v Elias (2013) 248 CLR 483.

  3. S 5 of the State Act also requires me to be satisfied that imprisonment is the last resort and having considered all possible alternatives, no penalty other than imprisonment is appropriate. For the reasons expressed, I have come to the view that no penalty other than imprisonment is appropriate. S 17A of the Crimes Act (Cth) provides a similar restriction in that the Court must not impose a sentence of imprisonment unless having considered all available sentences, it is satisfied that no other sentence is appropriate in all the circumstances of the case. I am so satisfied.

  4. These offences reflect continued predatory behaviour. It was surreptitious and behind the cloak of social media and electronic communication. The deception was maintained constantly and was no doubt motivated by personal sexual gratification. The victims, four of them, were electronically stalked, pursued and interacted with, often overlapping; the victims as to Counts 1, 2 and 6, over months. The victim in Counts 4 and 5 was much briefer, but still focussed and obsessive, albeit halting only with detection and arrest. Children, whether willing participants or not, are to be protected. They are vulnerable and immature. The communications were highly sexualised, both in texts and photographs. Whilst the offences reflect an ongoing course of illicit conduct they involve separate and distinct acts, calculated and manipulative. The conduct, in my view, was abhorrent. The sentences imposed need to reflect denunciation, recognition of the harm done, protection of our community and specific deterrence.

Special Circumstances

  1. Brief submission is made on behalf of the Offender for a finding of special circumstances. The basis is the Offender’s mental illness. In particular it is submitted that treatment is better and more effective outside custody than within. No further material has been provided in support of this submission. The suggested condition is that of schizophrenia in conjunction with a delusional disorder. In my view the latter condition is not substantiated by Mr Schreiner or by Mr Borenstein. As Mr Schreiner says, his assessment as to that was inconclusive and Mr Borenstein suggested that he was known to be suffering from a delusional disorder. I have relayed and agree with the concerns submitted by the Crown. It seems to me that this is not made out to a sufficient level. Dr Chew from Justice Health does however indicate the Offender is suffering from schizophrenia and should be considered for classifying treatment. The doctors are otherwise unanimous in their view as to the schizophrenia. I accept that.

  2. Learned Crown, whilst not in any way conceding that treatment is unavailable in custody, does acknowledge that the mental illness nominated may contribute to a finding of special circumstances. Having regard to that concession and taking into account the Offender’s past good work record, relatively good record, that these are his first offences of this nature, accumulation and concurrency of sentences and the need for him to have an extended period of rehabilitation to facilitate his assimilation back into the community, I propose to make an overarching adjustment between the effective non-parole and parole periods.

  3. Turning now to non-parole periods. With respect to the Commonwealth matters, I confirm there is no requirement to identify a specific ratio between non-parole and parole. The critical consideration is a determination of the term of imprisonment that justice requires the Offender to serve in custody, see Hili v R (2010) 242 CLR 520 at 531. The non-parole period is to be the minimum period of actual incarceration that the Offender must spend in full‑time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crimes and the Offender’s subjective circumstances, see also Power v R (1974) 131 CLR 623 at 627-629. As I say, I have taken into account those factors under special circumstances in the State matters and similarly when I assess the non‑parole period for the Federal matters.

  4. Appellate courts throughout this country have recognised the very real difficulties in reconciling the principles that govern orders for accumulation and concurrency in relation to sentencing for combined State and Commonwealth offences. A number of approaches are recommended; in particular, see DPP (Vic) v Swingler [2017] VSCA 305 at [63]. From my perspective it seems, and as is submitted by the parties, the preferable option in the present case to adopt that suggested as option two in Swingler. That was the lead judgement of Weinberg JA and with whom Ferguson CJ and Maxwell P agreed. At [78] the Court stated:

“The judge can group all the State offences together upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at for example the expiration of the relevant State non-parole period. This avoids any gap in the custodial term and seemingly simplifies the process by ensuring that relevant rules as to accumulation and concurrency are applied appropriately and within the proper sphere of each sentencing regime.”

  1. Accordingly I propose to deal firstly with the State offences and then the Commonwealth offences. This will enable me to set a single non-parole period pursuant to s 19AV of the Crimes Act (Cth) against the background of the non-parole periods for the sentences imposed for the State offences.

  2. In respect of both tranches, I intend to impose aggregate sentences. This does not mean accumulation is no longer relevant. The ultimate sentence is intended to reflect the total criminality as to each and the total aggregate non‑parole periods represent the minimum periods of imprisonment to be served by the Offender having regard to the purposes of justice. Using this approach, I am also mindful of the observations of Weinberg JA in Fasciale v R [2010] VSCA 337 where he stated:

“It is well established that when sentencing for both State and Commonwealth offences separate sentences must be imposed. Moreover it is not possible to fix a single non-parole period in relation to both State and Commonwealth sentences. If a non‑parole period is considered to be appropriate a separate such period should be fixed for the State sentences and for the Commonwealth sentences and the commencement dates stipulated.”

  1. I am also assisted by the observations of Price J in the lead judgement of DPP (Cth) v Beattie [2017] NSWCCA 301, where the Court was there considering a Crown appeal in respect of an aggregate sentence imposed for a multitude of Commonwealth offences. In allowing the appeals and re-sentencing the Court noted there was a parallel State offence for which a custodial sentence had also been imposed however in relation to which there was no appeal. It was noted that the Court could not fix an overarching single non‑parole period in respect of both Commonwealth and State offences. Rather, the Commonwealth non-parole period was adjusted to commence at the conclusion of the non-parole period applicable to the State sentence (see [212]–[215]). Importantly, this decision also confirms that aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment pursuant to the provisions of the State legislation, that is s 53A of the Crimes (Sentencing Procedure) Act, see [141]–[146] of Beattie’s case and Putland v R (2004) 218 CLR 174.

  2. I have considered principles of totality and accumulation and as would be plain, there is a degree of accumulation and concurrency to be applied. In so doing, it is also my intention to avoid what might be described as a “crushing sentence”, see R v M.A.K; R v M.S.K. [2006] NSWCCA 381. It is therefore my intention to impose two aggregate sentences, the first with respect to the State offences and the second with respect to the Commonwealth offences in accordance with s 19 of the Crimes Act (Cth). The Commonwealth sentence will commence at the expiration of the non-parole period for the State offences.

  3. Firstly I confirm the Offender is convicted as to each count.

  4. With respect to the State offences, that is Counts 3, 5, 7 and 8, pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act I impose an aggregate sentence of TWO (2) YEARS imprisonment commencing 27 January 2019 and expiring 26 January 2021. The non-parole period is set at ONE (1) YEAR imprisonment commencing 27 January 2019 and expiring 26 January 2020. I impose a balance of term of ONE (1) YEAR imprisonment commencing 27 January 2020 and expiring 26 January 2021.

  5. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, the sentences I would have imposed are as follows:

Count 3: 9 MONTHS

Count 5: 9 MONTHS

Count 7: 6 MONTHS

Count 8: 9 MONTHS

  1. I find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act as referred to in these remarks. Shortly stated, they are: first time in custody, accumulation of sentences, mental health condition and necessity for an extended period of rehabilitation and re‑assimilation back into the community.

  2. I turn now to the Commonwealth offences. Those are Counts 1, 2, 4 and 6. Pursuant to the provisions of s 53A of the Crimes (Sentencing Procedure) Act I impose an aggregate sentence of FIVE (5) YEARS imprisonment commencing 27 January 2020 and expiring 26 January 2025. The non‑parole period is set at THREE (3) YEARS imprisonment commencing 27 January 2020 and expiring 26 January 2023. I impose a balance of term of TWO (2) YEARS commencing 27 January 2023 and expiring 26 January 2025.

  3. Pursuant to the provisions of s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999 the sentences I would have imposed are as follows:

Count 1: 3 YEARS

Count 2: 3 YEARS AND 6 MONTHS

Count 4: 3 YEARS AND 6 MONTHS

Count 6: 9 MONTHS

  1. I confirm the sentences are to be served partially concurrent and partially cumulative. The overall effective head sentence is therefore SIX (6) YEARS imprisonment commencing 27 January 2019 and expiring 26 January 2025. The overall effective non-parole period is FOUR (4) YEARS commencing 27 January 2019 and expiring 26 January 2023.

  2. Whilst in custody I recommend Corrective Services Commission assist the Offender:

(1) receive counselling and treatment including relevant medication from NSW Health, Justice Health and Forensic Mental Health network or any related health service provider as to his mental health including conditions of schizophrenia, depression and anxiety. I direct copies of the reports of Dr Gerald Chew dated 11 December 2019, Mr Istvan Schreiner dated 1 May 2019 and Mr Sam Borenstein dated 19 February and 25 February 2020 attach to the Offender’s custodial warrant for the assistance of Justice Health and Corrective Services,

(2) receive counselling and treatment as to sexual offending including referral to the CORE Treatment Programme and/or Sexual Offenders Treatment Programme for Deniers, the Think First Programme, the EQUIPS Programme, the SMART Recovery Programme, the Aggressions Pogramme and/or such similar programmes as available,

(3) obtain access to educational, training, work-related skills and vocational programmes.

  1. The Offender is eligible for release to parole at the expiration of the non‑parole period, that is 26 January 2023. That parole is to be subject to the supervision and guidance of the Parole Authority and as provided for by the standard conditions under the Regulations. Upon his release to parole it is recommended the Parole Authority direct the Offender accept the supervision and guidance of Community Corrections both generally and specifically as to:

(a) identification of and access to relevant social services and welfare agencies to facilitate assimilation back into the community and workplace,

(b) treatment and counselling as to sexual offending, the Think First Programme, the SMART Recovery Programme, the EQUIPS Programme, the Aggressions Programme and/or such similar programmes as available,

(c) mental health issues and related ongoing treatment and medication including the implementation of a Mental Health Treatment Care Plan as arranged and directed by a general medical practitioner or related health service provider,

(d) appropriate residential placement,

(e) vocational, educational, training and/or work-related skill programmes and related qualifications.

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Decision last updated: 12 September 2022

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Statutory Material Cited

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R v RTI [2003] NSWCCA 283
R v RTI [2003] NSWCCA 283
DPP v Swingler [2017] VSCA 305