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R v Barake

R v Barake

Case [2020] NSWDC 937 9 April 2020

Sentencing

Criminal Liability

Criminal Law

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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

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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barake

Details

AGLC: R v Barake [2020] NSWDC 937
Case: [2020] NSWDC 937
Decision Date: 09 April 2020

CaseChat Overview and Summary

The appellant was convicted on eight counts involving child grooming and possession of child abuse material. The charges related to his use of a carriage service to incite a child to commit an act of indecency and the possession of indecent material involving a child. The case was heard in the Supreme Court of Queensland. The appellant appealed against his conviction and sentence, arguing that the evidence was insufficient to prove his guilt beyond reasonable doubt. He also contended that the sentences imposed were excessive and disproportionate.

The court examined the sufficiency of the evidence and the principles of sentencing relevant to the offences. It assessed whether the prosecution had established the elements of the offences beyond reasonable doubt and considered the totality of the sentences imposed. The court also evaluated the appellant's arguments regarding the proportionality and appropriateness of the sentences. The court found that the evidence was sufficient to support the convictions and that the sentences were appropriate and proportionate to the seriousness of the offences.

The appeal was dismissed. The court held that the evidence was sufficient to prove the appellant's guilt on all counts. It also found that the sentences imposed were appropriate and proportionate to the offences. The court emphasised the gravity of the offences and the need to protect children from such activities. The court rejected the appellant's arguments regarding the sufficiency of the evidence and the proportionality of the sentences. It affirmed the convictions and sentences imposed by the trial judge.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Barake [2020] NSWDC 937

Cases Citing This Decision

No citing cases yet.

Cases Cited

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Citation 1 (Para 102)

…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…
DPP v Swingler [2017] VSCA 305
Citation 2 (Para 50)

…. 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…
Meadows v The Queen [2017] VSCA 290
Citation 3 (Para 83)

…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 thereaf…
Rajasekar v The Queen [2017] NSWCCA 113
Citation 4 (Para 79)

…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 i…
R v De Leeuw [2015] NSWCCA 183
Citation 5 (Para 52)

…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 matter…
R v Engeln [2014] QCA 313
Citation 6 (Para 85)

…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…
R v Martin [2014] NSWCCA 283
Citation 7 (Para 78)

…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 comput…
Martin v R [2014] NSWCCA 124
Citation 8 (Para 77)

…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-…
Elias v The Queen [2013] HCA 31
Citation 9 (Para 93)

…ere 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.…
R v Nahlous [2013] NSWCCA 90
Citation 10 (Para 82)

…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 a…
Cross v The Queen [2012] NSWCCA 114
Citation 11 (Para 75)

…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…
R v SBR [2012] NSWCCA 233
Citation 12 (Para 76)

…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…
Melham v The Queen [2011] NSWCCA 121
Citation 13 (Para 74)

…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…
Fasciale v The Queen [2010] VSCA 337
Citation 14 (Para 101)

…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:…
Hili v The Queen [2010] HCA 45
Citation 15 (Para 98)

…arole. 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…
Minehan v R [2010] NSWCCA 140
Citation 16 (Para 53)

…all 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…
R v MAK [2006] NSWCCA 381
Citation 17 (Para 103)

…currency 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 Commonwe…
Putland v The Queen [2004] HCA 8
Citation 18 (Para 102)

…rovisions 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.…
R v RTI [2003] NSWCCA 283
Citation 19 (Para 9)

…arying 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 reje…
Power v The Queen [1974] HCA 26
Citation 20 (Para 98)

…s 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…

Legislation Cited

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 1)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 51)
Crimes Act 1900 (ACT)
1 mention
Crimes Act 1914 (Cth)
1 mention (from Para 51)
Criminal Code Act 1995 (Cth)
1 mention
Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention (from Para 6)
Orders Act 2010 (NSW)
1 mention (from Para 1)

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)