R v Barbarin

[2018] NSWDC 508

District Court

New South Wales

Medium Neutral Citation:	R v BARBARIN [2018] NSWDC 508
Hearing dates:	4 October 2018, 19 October 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Criminal
Before:	TUPMAN DCJ
Decision:	Aggregate term of 3 years; NPP 18 months; Indicative sentences of 18 months (RE Seq 2-6).
Catchwords:	CRIMINAL LAW – Committal for Sentence after please of guilty in Local Court – 25% discount – Indecent assaults on mainly young Asian women in the street in the Eastern Suburbs of Sydney – 5 complainants who were strangers – Touching outside of clothing on breasts – Offences of short duration – Opportunistic – Below mid range objective seriousness – S 5 threshold reached because of overall criminality – Offender 47 year old French citizen resident and working in Australia since 1997 – No relevant prior convictions – Good work record – History of psychiatric illnesses including bipolar disorder – Not being appropriately treated at time of offending – Impressive evidence from family in France with plan for ongoing psychiatric care when he returns – Genuine remorse and contrition – Very positive personal references – Offending out of character – Low probability of sexual offending recidivism – Special circumstances – In custody bail refused since arrest – Sentence backdated.
Legislation Cited:	Crimes Act 1900 (NSW), s 61L. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30, 53A.
Cases Cited:	R v Thomson and Houlton (2000) 49 NSWLR 383.
Category:	Sentence
Parties:	Jean Francois Barbarin The Crown
Representation:	F/W- Mr Wrench Cr- Mr Tembe
File Number(s):	2017/00348378
Publication restriction:	Pursuant to s 578A Crimes Act 1900: No publication of material identifying the victims is permitted.

Judgment

1. HER HONOUR: The offender, Jean Barbarin, is before the Court for sentence for five separate charges of indecent assault which occurred in the Eastern Suburbs of Sydney between 5 April 2016 and 22 February 2017. Each of the charges is brought contrary to s 61L of the Crimes Act 1900 (NSW) and, as such, each carries a maximum penalty of 5 years’ imprisonment in this Court. They are offences capable of being dealt with in the Local Court where the jurisdictional limit for each offence would be 2 years.

2. The offender pleaded guilty early to each of these offences in the Local Court, on 29 March 2018, and was committed for sentence to this Court. There is a significant utilitarian value because of the timing of these pleas of guilty. There has never been a need to prepare any of these matters for trial, resulting in a significant utilitarian value to the State, but perhaps more importantly, meaning that it has not been necessary for any of the individual complainants to come to Court to relive their experiences, with all the ongoing trauma and inconvenience that that entails. In accordance with the dicta of the Court of Criminal Appeal guideline judgment of R v Thomson and Houlton (2000) 49 NSWLR 383, I will discount the sentences by 25% to reflect this utilitarian value.

3. When referring to the charges and the facts, I will not identify the complainants but use initials. Specifically, the charges in chronological order are as follows:

4. Sequence 6, that at around 8pm on 5 April 2016 at Kingsford he indecently assaulted the complainant LH by lifting her skirt and exposing her buttocks.

5. Sequence 2, that between 8.50 and 11pm on 8 December 2016 at Kingsford he indecently assaulted YS by touching her left breast on the outside of her clothing with his right hand.

6. Sequence 3, that around 7.30 to 8pm on 12 February 2017 at Randwick he indecently assaulted LW by touching her right breast on the outside of her clothing with his left hand.

7. Sequence 4, that around 6.30pm on 19 February 2017 at Randwick he indecently assaulted CR by touching her right breast on the outside of her clothing with his right hand.

8. Sequence 5, that around 8.30pm on 22 February 2017 at Kingsford he indecently assaulted JL by touching her left breast on the outside of her clothing with his right hand.

9. Each of the victims of these indecent assaults was a young or relatively young woman of Asian descent and appearance. At the time of the offending the offender was aged either 45 or 46 and was living in Kingsford in the vicinity of the offences.

10. The facts relevant for each of the offences are that around 9pm on 5 April 2016, the victim LH, who was a 38-year-old woman of Asian descent, was walking from the University of New South Wales campus on Anzac Parade, Kingsford, to her car. She walked into Willis Lane and the offender hugged her from behind and attempted to put one of his hands over her mouth. She turned around thinking that it was a friend trying to surprise her, but after she realised what was in fact occurring she tried to move her head to free her mouth. The offender then grabbed the sides of her skirt and lifted it up, exposing her buttocks.

11. Whilst the facts are silent about this, I infer that she was wearing underwear, so that in fact he exposed her clothed buttocks. She began to scream and tried to twist herself out of his grip by dropping her body weight to the ground and the offender tried to pull her skirt higher. After a short time he let go and ran away.

12. As a consequence of dropping to her knees, the victim scraped her knee. She apparently reported the matter to the police who took a tape lift from the bottom of her skirt, which was ultimately matched to the offender by way of DNA, but not immediately.

13. On 8 December 2016 about 8.55pm, the victim YS was walking to her home in Kingsford from the University of New South Wales campus. She was a 25‑year-old woman of Asian descent and appearance. The offender approached her from behind and caught up with her. She stopped walking and took a step away from him. The offender grabbed her left breast over her clothing with his right hand. She screamed and turned around to get away from him. He pushed her from behind and she fell to the ground, causing her to bump her head and right arm. The offender then fled. As a result she suffered a bump on her head and scratches on her right elbow.

14. On 12 February 2017 at about 7.30pm, the victim LW was walking to her home in Randwick. She was an 18‑year‑old woman of Asian descent and appearance. The offender approached her and asked if he could help her with her bags, saying that they looked heavy and that he was going the same way. She declined and continued walking. She approached the front door of her unit complex and stopped, looking for her keys. The offender approached her and said something which caused her to turn around. He then said, “Can I have sex with you?” He stepped towards her and, according to the facts, gripped her right breast over her clothing and continued talking. She brushed his hand away and he fled. She reported this to the police who obtained a tape lift from the right breast area of her shirt, which ultimately was matched to the DNA of the offender.

15. The next offence occurred at about 6.30pm on 29 February 2017 when the victim CR was walking towards the front door of her unit complex on Alison Road in Randwick. She was an 18-year-old woman of Asian descent. She was pushing a trolley full of groceries up the driveway and then pushed the intercom for her flatmate to let her in. The offender, who was apparently standing behind her, grabbed her by the shoulder and turned her around. He reached out and squeezed her left breast on the outside of her clothing and said, “Nice tits”. She said, “Get away” and pushed him and he fled the scene. She reported it to the police who again obtained a tape lift from the left breast area of her jumper, which was ultimately matched to the DNA of the offender.

16. The last of the five offences occurred on 22 February 2017 at about 8.30pm. The victim JL approached the front door of her unit complex in Kingsford. She was a 21‑year‑old woman of Asian descent and appearance. She was looking for her keys when the offender approached and asked her, “Do you live here?” She turned and face him and said, “Yes”. He reached out with his right hand and grabbed her left breast on the outside of her clothing and squeezed. She screamed and he fled. Shortly afterwards police obtained a tape lift from the left breast area of her shirt, which ultimately was matched to the DNA of the offender.

17. Ultimately, several months later on 17 November 2017, the offender was arrested by police at his address and charged with these offences. He was refused bail and has been in custody bail refused ever since. There were one or two mentions of the matter in the Local Court, during which time the results of the DNA analysis became available in late November. Then, once the whole brief had been served, the offender indicated that he would plead guilty to the offences and, as I have said, did so on 29 March 2018. It is for that reason that I regard the plea of guilty as having been entered at the earliest available opportunity, and thus entitles the offender to the full 25% discount for the utilitarian value of the plea.

18. Turning then to the objective seriousness of these offences, they are of course all serious offences because each of them falls within the general classification or definition of a sexual assault offence. These particular offences of indecent assault, however, are towards the bottom of the range of offences capable of being described as sexual assault offences, which is clear at the very least from the fact that the maximum penalty of imprisonment is 5 years.

19. These particular indecent assault offences, on their own facts, are themselves well below the mid range in terms of objective seriousness. It has been submitted on behalf of the offender and adopted by the Crown that they are towards the bottom of the range in terms of objective seriousness. I accept that joint submission. They were all of very short duration, maybe no more than a few seconds, albeit that the one involving LH went for a slightly longer period. For the offence involving LH, that matter on the evidence before me did not even involve the offender actually touching her body but rather indecently assaulting her by lifting her skirt to expose her clothed buttocks. All of the other offences involve the offender’s touching or pinching the victim’s breast on the outside of her clothing for a very short period of time before running off. There can be no doubt that each of them was committed for the sexual gratification of the offender but that does not aggravate the offending as it is an essential part of the offence of indecent assault that the assault must involve a sexual component.

20. There is no evidence from which any finding could be made that the offender would have taken these indecent assaults to any higher level and in fact in each case, when rebuffed or repelled by the victim, it would appear that he fled. However that would not have been known or understood by any of the victims, who must have been terrified by their experience. In each case they were doing nothing more than going about their ordinary lives, coming home from university, coming home with the shopping or just coming home in the early evening alone, in some cases outside their home, trying to find keys to open the door to get in and then being confronted by this offender in the way that I have outlined.

21. The victim LH suffered a minor injury when she dropped to the ground to get away from the offender but I do not accept that it is appropriate to view this injury to her as an aggravating feature. It was not directly caused or intended by the offender.

22. The offence involving YS on 8 December 2016 however is in a slightly different category. After that victim screamed and turned around the offender pushed her and she fell to the ground, hitting her head causing a bump and causing scratches on her elbow. That use of force, albeit not significant force, somewhat elevates the objective seriousness of that offending.

23. No doubt each of the victims was very frightened and more probably than not each of them suffered, at least for a time, from some ongoing adverse reaction. The Court does not need formal evidence to be satisfied that a person who has been the victim of an indecent assault of this type is likely to experience increased fear and vigilance and to have her confidence shaken.

24. There is one victim impact statement from the victim LH who read it in Court. Much of the document goes further than the provisions of s 30 of the Crimes (Sentencing Procedure) Act 1999 and further than the agreed facts before the Court. Therefore whilst I have read, listened to and considered the whole document, there are portions which I will not be taking into account. I do accept however that that victim has had a very serious adverse reaction to the assault on her. Whilst there is no psychiatric evidence as such, I do accept that she has suffered from the symptoms of post-traumatic stress disorder and other symptoms of depression, both of which have had an ongoing adverse impact on her life and the life of her family and that this is likely to be continuing for some time. I do not accept however that there is evidence before the Court that would enable a finding that for that charge the injuries amount to a circumstance of aggravation and I do not understand that to have been argued on behalf of the Crown.

25. It is because of the actuality and ongoing nature of the psychological impact of sexual assault that sentences for offences such as these must reflect a degree of general deterrence so that the community understands that even though an individual case may not be towards the top of the range of objective seriousness, nonetheless in most cases, full time gaol sentences will result where people assault others in an indecent manner for their own sexual gratification. As I have said, however, I accept that each of these individual indecent assault offences is towards the bottom of the range in terms of objective seriousness.

26. In an appropriate case, if sentencing for one of these offences alone, with the relevant facts here, it may be the case that the s 5 threshold for imprisonment is not reached and some form of alternative community order would be appropriate. However that is not the case here. It is conceded on behalf of the offender that the s 5 threshold has been reached and that full time custody is necessary to reflect the objective seriousness of his offending taking totality into account. In any event, as a matter of fact, he has been in custody full time since his arrest on 17 November 2017.

27. I now turn to the relevant subjective factors. The offender is now 47. He is a French citizen who grew up with his family, including one older sister, in Angers, a town in the Loire Valley. His parents separated when he was in his teens and he moved to live with his father in Brittany. He initially trained in and worked in the hospitality industry, working with his father managing a restaurant owned by his father. He comes to Court with no relevant criminal history and no criminal convictions. There is one PCA matter on his record disposed of without conviction and in any event that would have no relevance to the sentence here. I regard him as a person with no relevant convictions in Australia and I accept the evidence given by his sister that he has no convictions in France. He is entitled to have his prior good character taken into account as a mitigating factor on sentence. He did some compulsory military service in France and then worked in England for two years. He came to Australia in 1997 and worked mainly in private restaurants throughout Australia and as I understand it mainly in Sydney. He was married by that stage to a woman of Chinese heritage who had lived in Australia since she was 5. It is clear, and I accept, that he has always been attracted to women of Asian appearance and that much is reflected by the identity of those who were the victims of these offences. He had a daughter with his first wife who is now aged 15. That marriage failed but he remained in regular contact with his daughter from the time of the marriage breakdown up until the time he was arrested. Since then his relationship with his daughter has been problematic and he recognises that she is shocked by his behaviour and arrest. He remarried a woman from Japan but that too failed. He was in that situation, namely a person who came from two failed marriages at the time that he committed these offences.

28. There is a report from Dr Olav Nielssen, psychiatrist before the Court which I have read. Dr Nielssen is a well-recognised forensic psychiatrist regularly briefed by both the Crown and accused persons before the Court and I accept that his opinions are those which can be given weight. I accept that the offender has reported a psychiatric history to him, particularly in the nature of depression, which commenced in 2012. He was prescribed medication and referred to a psychologist and then recovered for a period. He then met his second wife and remained relatively well for a period of 4 years until 2016.

29. He had used cannabis for a period from 2011 but stopped in 2015. He had relapsed into cannabis use in October/November 2016 at the time the earliest of these offences occurred. There is no evidence of other drug use or excessive alcohol use.

30. I accept from Dr Nielssen’s report that at around the time the offences took place, the offender had been seeking medical treatment for the possibility of bipolar disorder. He had been prescribed an antipsychotic medication in mid-2016 to deal with sleep deprivation and agitation occurring at the time. In September of that year, he was prescribed a mood stabiliser and an anti‑depressant as well. He was seeing a psychologist in September 2016 and then changed to another psychologist in October 2016. That psychologist told him that he did not think he suffered from bipolar disorder and advised him to stop taking the medication, which he did in the period just before the last of the offences before me. As will become clear, I accept that in fact he does suffer from bipolar disorder and was suffering from bipolar disorder at the time. Ceasing his medication was not helpful in stabilising his psychiatric condition at the time.

31. He saw another psychiatrist in July 2017 who again realised the possibility of bipolar disorder and prescribed appropriate medication. He did not tell any of these doctors about the offending behaviour, but this period of stop and start medication and disruptive treatment was occurring at the time of the offending.

32. He reported to Dr Nielssen periods of abnormally elevated mood interspersed with periods of depression. I accept that the abnormal mood elevation took the form sometimes of his staying awake for very lengthy periods, not sleeping well, obsessive and excessive cleaning of his flat, going on spending sprees on the internet and the like and that during the periods of depression, he would suffer from fatigue, would withdraw from the company of friends, would engage in uncharacteristic tearfulness and have a general loss of enjoyment from life.

33. I accept Dr Nielssen’s opinion based on his assessment of the offender and a consideration of the history given to him and previous treatment that the offender in fact does suffer from bipolar disorder and I accept that he was suffering from the disorder at the time he committed the offences.

34. There is a somewhat curious disconnect between the fact that the offender reported to Dr Nielssen that he was in the depressed phase of this condition at the time he committed the offences and Dr Nielssen’s opinion, which I prefer that such abandoned behaviour, especially sexually abandoned offending, is more often connected with the manic phase of the disorder. There is no evidence in the report from which I could make a finding that his offending behaviour occurred as a direct result of his psychiatric condition however.

1. However, he is a person who I accept does suffer from a psychiatric or mental illness, namely bipolar disorder and as such he is a somewhat lesser vehicle to reflect general deterrence than others who come before the Court. He has been receiving treatment since going into custody but mainly for depression and not necessarily appropriately for bipolar disorder. I do accept, however, that his mood has stabilised and that he is now in remission for this condition.

2. He will likely remain in remission on release provided he receives and accepts appropriate psychiatric treatment for bipolar disorder, including medication. Perhaps most importantly I accept Dr Nielssen’s opinion that he has a low probability of further offending and does not present with the main risk factors for sexual recidivism. I also accept that whilst not necessarily causative of this offending, his untreated mental illness at the time was related to an extent to his offending so that if he receives and accepts appropriate treatment on his release to the community, his risks of recidivism are even further reduced. I accept Dr Nielssen’s opinion also that he does not present with any form of paraphilia or disorder of abnormal sexual interest.

3. He is, I accept, also genuinely remorseful and contrite for this offending. He has said so to his sister who gave evidence on this sentence. She also provided written references to the Court and there are a number of other references from family and friends. I accept from that combination of evidence that he is genuinely sorry for having committed these offences, although I accept that he cannot even today explain why it is that he acted in the way he did.

4. As I have said, the offender’s sister gave evidence on sentence. She came from France to do so. She is a successful businesswoman in Paris. I found her evidence impressive and that she did not have an unrealistic view, either of the offender’s situation or of what was needed to effect his rehabilitation. She had in fact come to Australia not long after he was arrested and saw him in custody to provide him with comfort and support from his family. All of his family, apart from his daughter, still live in France. As I have said, his sister then came out two weeks ago to give evidence on sentence. I accept from her evidence, as I have said, that he has expressed genuine remorse to her including appropriate empathy for the victims of his offending.

5. The offender’s proposal is to return to France once he is able and his family has put a plan in place to enable that. Their proposal is that he will return to live in Angers where his mother still lives and his sister will continue to contact him frequently.

6. There is evidence of a psychiatric care plan in place which will be implemented once he returns to France and I accept that he will undertake this psychiatric care and that will assist his prospects of rehabilitation.

7. He will likely be deported once he is eligible for release to parole and will never be able to return to Australia again. One of the flow-on consequences of that will be a reduction of his opportunity to have an ongoing relationship with his daughter who lives in Australia. That is clearly enough an unintended consequence of this sentence but it is in fact one matter that will occur as a result of his deportation.

8. I also take into account the number of positive references written for him and tendered. This behaviour, although it occurred over a period of time, I accept was out of character for him at the time and he has a number of friends both here and family in France who speak highly of him up to the time of his committing these offences.

9. I then turn to determine the appropriate sentences for these matters. It seems to me that in reality none of these individual offences is so glaringly different from the other that the penalty for any one should be different to any of the others. The possible exception to that is the offence involving LH which went perhaps for slightly longer after she resisted and the psychological consequences to her have been somewhat more serious. However, the indecent assault itself was very much towards the bottom of the range, lifting her skirt to expose her clothed buttocks, and not even touching her body. Otherwise it seems to me all of the offences are sufficiently similar that it is appropriate that the same sentence be imposed for each of them.

10. I have concluded that for each of them, without taking into account the 25% discount, a term of imprisonment of 2 years would be appropriate. Therefore, for each of them, a term of imprisonment of 18 months is appropriate. If they were each accumulated on the other, that would give rise to an overall term of 7 1/2 years which is excessive for the criminality involved. There should be some partial accumulation. These are all separate offences involving individual victims. To some extent they represent one episode of criminality but over a significantly lengthy period of time, but they are not so sufficiently connected to each other that each should be entirely concurrent with the other. However, it is necessary to consider the total criminality involved so that whatever the end result of the sentence is, that takes into account that issue of totality.

11. For these reasons I have decided to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 3 years with an aggregate non-parole period of 18 months. There are special circumstances in my view, namely that this is his first time in custody, that he has a prior good record and the need for release to the community as soon as possible to commence appropriate community based psychiatric care, hopefully in conjunction with a return to France to be with his family. The indicative sentence for each of the individual offences is therefore 18 months.

12. For those reasons I make the following formal orders. I impose an aggregate sentence pursuant to s 53A of 3 years commencing 17 November 2017 expiring 16 November 2020 with an aggregate non-parole period of 18 months commencing 17 November 2017 expiring 16 May 2019 with parole thereafter of 19 months commencing 17 May 2019 expiring 16 November 2020.

13. I direct release to parole at the expiration of the non-parole period subject to his deportation and immigration status. As I have said, the orders will reflect an indicative sentence of 18 months for each of the individual sequences 2 to 6 inclusive.

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Decision last updated: 29 August 2019