R v Barber - [2023] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v BARBER
[2023] SASC 57
Judgment of the Honourable Justice McDonald
12 April 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
Mr Barber was remanded to the Supreme Court from the District Court pursuant to s 57 of the Sentencing Act 2017 (SA) due to an application made by the Director of Public Prosecutions that Mr Barber be detained in custody until further order on the basis that he is either incapable or unwilling to control his sexual instincts. Mr Barber first appeared in the Supreme Court on 4 April 2022. On that occasion the Court ordered two legally qualified medical practitioners prepare a report in relation to whether Mr Barber is incapable of or unwilling to control his sexual instincts.
The matter first came on for submissions on 29 November 2022. I determined that the most appropriate course of action was to first sentence Mr Barber and then give consideration to the s 57 application.
Mr Barber was sentenced to 9 years imprisonment with a non-parole period of eight years and six months. That was backdated to when he was first taken into custody on 18 March 2020. I reached the view that given the length of the sentence imposed, it is premature to determine whether an order should be made pursuant to s 57 of the Sentencing Act. Mr Barber will remain in prison for at least a further four years and six months before being eligible for parole – potentially longer should he not be granted parole.
In all of the circumstances, I decline to make an order pursuant to s 57. It remains open to the Director or the Attorney‑General to make a further s 57 application once Mr Barber approaches his release date, when it will be appropriate for the Court to make an assessment of the risk that Mr Barber poses to the community.
Criminal Law Consolidation Act 1935 (SA) s 19 and s 56; Sentencing Act 2017 (SA) s 57; Summary Offences Act 1953 (SA) s 23, referred to.
R v Hoare [2017] SASC 7, considered.

R v BARBER
[2023] SASC 57
Criminal: Application
McDONALD J:

The Director of Public Prosecutions (‘the Director’) has made an application pursuant to s 57 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) that Mr Barber be detained in custody until further order of the Court on the basis that he is either incapable or unwilling to control his sexual instincts.
I have determined to dismiss the application. These are the reasons for arriving at that decision.
The circumstances in which the application was made
On 31 August 2021 Mr Barber was arraigned in the District Court on an information containing one count of indecent behaviour in a public place,[1] aggravated threatening to cause harm,[2] and aggravated indecent assault.[3] Mr Barber entered pleas of not guilty. On 26 October 2021 he was re-arraigned in the District Court sitting in Mount Gambier. On that occasion, pleas of guilty were entered.
[1]    Summary Offences Act 1953 (SA) s 23(1).
[2]    Criminal Law Consolidation Act 1935 (SA) s 19(2).
[3]    Criminal Law Consolidation Act 1935 (SA) s 56.
Sentencing submissions were delayed for some time awaiting a psychiatric report. On 18 March 2022 counsel appearing on behalf of the Director advised the Court that the Director was making an application pursuant to s 57 of the Sentencing Act, that is, an application that Mr Barber be detained in custody until further order on the basis that he is either incapable or unwilling to control his sexual instincts.
As a consequence, pursuant to s 57(2) of the Sentencing Act, the District Court was required to remand Mr Barber to the Supreme Court to be dealt with under that section.
Mr Barber first appeared in the Supreme Court on 4 April 2022. On that occasion the Court ordered “that two legally qualified medical practitioners who are nominated by the prescribed authority for the purposes of providing a report pursuant to s 57 of the Sentencing Act 2017 inquire as to the mental condition of the accused and report to the court on whether he is incapable of controlling or unwilling to control his sexual instincts”.
The matter came before me for submissions on 29 November 2022. By the end of submissions it was apparent that there were three options open in terms of how to dispose of the matter. The first was to simply make the order that Mr Barber be detained in custody until further order of the Court. The second was to sentence Mr Barber and order that at the completion of the sentence he be the subject of continued detention. The third was that Mr Barber be sentenced in the conventional manner with no order for him to continue being detained in custody.
I determined that it was appropriate to first sentence Mr Barber and then give consideration to the s 57 application. Given the seriousness of the offences Mr Barber, the victim and the community are entitled to know the sentence that he has received for these crimes.
The sentence imposed
The maximum penalties for the three offences to which Mr Barber pleaded guilty are three months imprisonment or a fine of $1,250 for the offence of indecent behaviour, seven years imprisonment for aggravated threatening to cause harm, and 10 years imprisonment for aggravated indecent assault.
All three charges arose out of events that occurred on the morning of 18 March 2020. At about 6.30am that day the victim of these offences left her home to walk to the Millicent Museum, where she worked as a volunteer.
As she was walking along Mount Gambier Road she noticed a male coming towards her on the same side of the road. This was Mr Barber. As he passed her, he stopped and appeared to look at his phone.
This caused the victim to feel uneasy so she crossed the road and continued to walk to the museum, picking up two sticks along the way in case Mr Barber continued to follow her. She arrived at the museum at about 6.55am where she waited for her employer to arrive.
A short time later Mr Barber approached the victim and started to talk to her. He sat down next to her causing her to tell him that he was sitting too close. This resulted in Mr Barber standing up and moving slightly away.
At about this point in time the victim noticed that Mr Barber had his hands in his pockets and he was moving them backwards and forwards in the area of his groin.
The victim got up and walked to a nearby public toilet block in an attempt to get away from him. Whilst inside a cubicle within the toilet block, the victim heard Mr Barber approach. She then exited the toilet cubicle carrying with her the two sticks that she had already armed herself with. As the victim moved towards the basin to wash her hands, she saw Mr Barber in the entrance of the female toilets. He was holding his exposed erect penis. This conduct is the subject of count 1.
Mr Barber then asked the victim to suck his penis and she responded by saying “I am not that kind of person”.
At that point Mr Barber rushed at the victim pushing her in the chest, causing her to stumble backwards into a wall. She unsuccessfully attempted to knee him in the groin. He then produced a screwdriver, pointed it at the victim and said that he was going to stab her. This threat is the subject of count 2.
Mr Barber then pressed the screwdriver into the victim’s groin and also touched her vagina with his hands on the outside of her clothing. This conduct is the subject of count 3.
In an attempt to get him off her, the victim bit Mr Barber on the chest. She held one of the sticks under his chin and repeated the words “I am not that kind of person”. At that point in time Mr Barber’s penis was still exposed out of the top of his pants.
The victim managed to get out of the toilet block and away from Mr Barber. She contacted her employer and told him what had happened. He in turn contacted the police.
Shortly thereafter Mr Barber was arrested at a local service station. When initially confronted by the police he refused to comply with a direction that he “get on the ground”. Mr Barber argued back. It was only after the arresting officer produced his taser that Mr Barber became compliant and lay down. During the process of being handcuffed in that position, a screwdriver fell from Mr Barber’s sleeve.
When interviewed by the police, Mr Barber denied having committed the offences. He claimed that he had been wandering the streets during the early hours of the morning as he could not sleep because he had been using drugs. When asked about the injuries that he had that were consistent with the victim’s account, Mr Barber offered an alternative explanation and said that he had sustained them when he had attempted to jump from one side of a ditch to the other.
These offences were clearly very serious.
In order to appreciate the full gravity of this offending, it is necessary to consider it in the context of the days and weeks leading up to it.
At some point in late 2019 Mr Barber relocated to Millicent with his sister. Other than a brief trip to Mildura to visit his mother, Mr Barber continued to reside in Millicent up until the time of his arrest.
It is worth noting that Millicent is a small town in the south east of South Australia, with a population of about 5,000 people.
Soon after his arrival in Millicent Mr Barber became known to the three supermarkets as a prolific shoplifter and consequently he was barred from two of them.
It was in that context that on 1 February 2020 he was reported by a female police officer, Senior Constable AM, for the offence of disorderly behaviour which occurred in the Millicent Woolworths. It would seem that somehow as a result of this interaction Mr Barber acquired Senior Constable AM’s personal telephone number.
On 14 February 2020 Mr Barber called that telephone number several times and left a voice message stating “… going to fuck your brains out you little slut”.
An analysis that was conducted on Mr Barber’s telephone subsequent to his arrest showed that he had also conducted some relevant internet searches after he had left that voice message. On 1 March 2020 he searched the term “Sexy police forced by terminator” and “police woman forced”. Then on 18 March 2020, the day of the sexual assault at the Millicent museum, Mr Barber used the search term “[AM] fucking in her house”.
Over the days leading up to the sexual assault there was an escalation of calls coming into the Millicent police station concerning a man following women and on one occasion, a female child. There is no dispute that this person was Mr Barber.
Affidavits were obtained from a number of witnesses about Mr Barber’s conduct over this period.
EO gave an account of being followed by Mr Barber for about 30 minutes as she was exercising at about 7.00am on 14 March 2020. EO was so concerned about Mr Barber’s conduct that she took three photographs of him.
At about 8.45am on 14 March 2020, SM was walking home from the IGA in Millicent. Mr Barber followed about two metres behind her all of the way to her home address, which was a distance of about one kilometre. When she arrived home Mr Barber remained standing in her driveway as she entered into her house.
At 10.33am that same day JB was walking along Williams Road in Millicent. Mr Barber followed about 20 metres behind her. Such was the nature of his behaviour that a driver of a 4 wheel drive who observed what was happening, pulled over and offered JB a lift to get her away from him.
Four days later, on 18 March 2020 at about 6.30am, JB again observed Mr Barber following her. He followed her for about 80 metres.
There was also an occasion over this period when Mr Barber was seen to be following a female child. At about 2.33pm on 15 March 2020 JW was out the front of her house. She observed a young female aged about 10-12 walking along Williams Road. Mr Barber was following close behind her. The child looked scared. When Mr Barber saw JW watching, he crossed the road, moving away from the child.
This history of the days leading up to the relevant events of 18 March 2020 make it plain that Mr Barber’s decision to sexually assault was not a spontaneous decision made when an opportunity presented itself. This history suggests that something far more sinister was at play with Mr Barber fixated on sexual violence and effectively being on the hunt for a victim over a number of days.
That inference is further reinforced by internet searches that he had undertaken on his telephone. That analysis showed that in the 45 days leading up to the offences Mr Barber had regularly used his telephone to access pornographic material. He demonstrated a particular interest in forced sex, sex in public toilets, incest and non-consensual sex.
Between 2 February 2020 and 18 March 2020 there appear to have been over 500 searches of this nature. Of particular significance, on 18 March Mr Barber used the following search terms:
4.05am“sex in toilet”
4.26am“young teen forced”
4.26 – 4.27am “[AM] fucking in her house”
6.23am“Son forced mum”
6.24am“Mum pleads son not to do it”
Criminal antecedents
Prior to the 2020 offences Mr Barber had an extensive history of serious violent offending and serious violent sexual offending. Mr Barber first came before the court for offences of theft, unlawful assaults, assault with a weapon and criminal damage when he was 13 years old. He was first sentenced to a term of imprisonment on 22 May 2001 when he was only 16 years old.
Subsequent to that, he continued to offend with some regularity throughout the entirety of his juvenile and adult life. He has committed numerous offences of dishonesty, violence and property damage. He has also committed numerous sexual offences. It would be fair to say that his criminal record reflects a lifetime of disregard for the law and other members of the community.
Personal circumstances
Given the nature of Mr Barber’s offending it is unsurprising to learn that he experienced a dysfunctional, troubled and disrupted childhood, marred by family breakdown, physical abuse, learning difficulties and early onset substance abuse.
Psychiatric assessments
By the time I came to sentence Mr Barber I had before me three psychiatric reports. These were a report of Dr Lim dated 7 March 2022 that was prepared to assist in sentencing submissions, and reports from Dr Craig Raeside dated 18 August 2022 and Dr Amisha Jayawant dated 12 October 2022. Whilst these latter two reports were ordered to specifically address considerations arising under s 57 of the Sentencing Act, they were of some assistance in the sentencing process.
Dr Lim
In her report Dr Lim expressed the opinion that Mr Barber has developed a Conduct/Oppositional Defiant Disorder during his childhood as a result of his mother’s shortcomings as a caregiver. She opines that he is also likely to have suffered from a reactive attachment disorder which is the basis of his problems with anger and aggression when he was in the foster care system and under the Guardianship of the Minister.
Dr Lim went on to say that as a consequence Mr Barber has led an antisocial, semi-transient and substance-fuelled lifestyle in the wider community since his teen years, which has in turn perpetuated his involvement in the criminal justice system throughout his life. Mr Barber’s antisocial personality features, which include his significantly poor impulse control, callousness, a disregard for social and legal norms and boundaries, poor victim-empathy, pro-violent attitudes, and his struggles with emotional regulation, have consequently become exacerbated and entrenched over time. Dr Lim expressed the view that Mr Barber is at risk of developing institutional syndrome in that context.
In terms of Mr Barber’s prospects of rehabilitation, Dr Lim was far from optimistic. She said:[4]
In terms of his risk for violent and/or predatory sexual re-offending, I believe Mr Barber will remain at ‘High’ risk in the foreseeable future given his entrenched, dysfunctional personality features, his ongoing minimisation of his offences, as well as his lack of remorse and victim empathy. In my opinion, his prospects for rehabilitation and his prognosis are guarded, as he presents with virtually no protective factors (e.g. stable housing or prosocial supports) at present that might help to mitigate against some of his criminogenic risk factors. Furthermore, he has apparently not received any psychological intervention for his antisocial attitudes and substance abuse in the past. In my opinion, the safety of the community is therefore likely to remain acutely compromised if he is released from prison in the near future, especially in the absence of any professional and psychological supports (e.g. stable housing) as well as case management and intensive supervision by the Department of Correctional Services (DCS).
Dr Raeside
[4] Report of Dr Loraine Lim dated 7 March 2022 at 11.
In his report Dr Raeside described Mr Barber’s offending history in the following terms:[5]
Mr Barber has shown significant preoccupation with violent sex, not only with previous indecent behaviour and assaults, but also more recently through internet searches, communications over various media, and stalking behaviour. Whilst it is likely that drugs and alcohol increase his sexual desire and disinhibit him in his control, this would not account for his deviant sexual interests. Obviously, particularly concerning is that he has acted out the things he has searched for online.
[5] Report of Dr Craig Raeside dated 18 August 2022 at 8.
Dr Raeside diagnosed Mr Barber as having an antisocial personality disorder, a mild intellectual disability and a substance abuse disorder. He expressed the view that Mr Barber represents a high risk of violence both generally and particularly for sexual violence. He said that whilst Mr Barber has attempted to attribute his problems in this area to his substance abuse, it is likely that his problems are more deep-seated. In Dr Raeside’s opinion Mr Barber clearly has significant underlying personality pathology which at least in part is a consequence of his early life trauma. This is likely to have had a marked impact on his psychosexual development. Whilst alcohol and drugs can have an effect on Mr Barber’s sexual drive, as well as disinhibiting his behaviour, this does not account for the deviant nature of his sexual attraction, as evidenced by his internet searches, social media communications and general behaviour.
Dr Jayawant
Dr Jayawant expressed a similar view in his report. He observed that Mr Barber had many risk factors for sexual recidivism and raised concerns that if he is released back into the community with no or inadequate treatment, he is at significant risk of reoffending.
In his report Dr Jayawant said that Mr Barber fulfils the criteria for an antisocial personality disorder, having had a conduct disorder in childhood and a juvenile offending history extending into adult offending. He has a pattern of disregard for rules and social norms, a lack of concern for the feelings of others and a strong external locus of control. He also has a diagnosis of a polysubstance use disorder, which is in remission while he has been in prison and unable to access illicit substances. Mr Barber continues to attempt to attribute his offending to his substance use.
Consideration
Given the seriousness of the offending there was no suggestion that any sentence other than immediate custodial sentence was appropriate.

Given Mr Barber’s history of offending he was liable to be declared a serious repeat offender. That is because he had committed and been convicted of at least three serious offences committed on separate occasions. There was no dispute that Mr Barber is a serious repeat offender.
Two consequences flowed from that. The first is that it was necessary to fix a non-parole period which was at least four fifths the length of the head sentence, unless it was established by evidence on oath that exceptional circumstances existed and I determined that in all of the circumstances it was not appropriate that Mr Barber be sentenced as a serious repeat offender.
It was conceded by Mr Barber’s counsel that there were no special circumstances that would warrant a deviation from the normal approach of fixing a non-parole period that was at least four fifths of the head sentence.
The second consequence of making the declaration was that I was not bound to ensure that the sentence imposed was proportionate to Mr Barber’s offending. In the circumstances of this case however, I was not satisfied that a disproportionate sentence was needed for the proper protection of the community. The seriousness of Mr Barber’s offending is such that a sentence that is proportionate to his offending will reflect his criminal culpability and provide the community with sufficient protection.
Mr Barber was entitled to some benefit for his pleas of guilty. Given the timing of the pleas, the maximum discount that he could be given was 15 per cent for counts 1 and 2, and 10 per cent for count 3. There were reasons why in my view he should not receive the maximum benefit for those pleas. That was because those pleas were entered in the face of a very strong prosecution case and, further, the guilty plea did not appear to be a reflection of any true remorse or contrition on his part given the limited insight Mr Barber had and continues to demonstrate towards his offending.
I sentenced Mr Barber to nine years imprisonment. That sentence was reduced by six months to take into account his guilty pleas. That resulted in a head sentence of eight years and six months. I fixed a non-parole period of seven years and six months. The head sentence and non-parole period were backdated to 18 March 2020, when Mr Barber was first taken into custody.
The Director’s s 57 application
I turn then to consider the Director’s application that an order be made that Mr Barber be detained in custody until further order pursuant to s 57(7) of the Sentencing Act.
By virtue of s 57(7) and s 57(13) where, as in this case, any such further detention would be in addition to the sentence of imprisonment that I have imposed, the further detention is to commence on the expiration of the term of imprisonment. In R v Hoare[6] Hinton J undertook a thorough and detailed analysis of the statutory scheme and applicable legal principles in the context of an application pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA), the predecessor of s 57 of the current Sentencing Act. Both sections are substantively the same. During the course of that analysis. Hinton J made the following observations about the operation and purpose of such an order:[7]
[63]Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
[64]While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.
(Footnotes omitted).
[6] [2017] SASC 7 at [62]-[73].
[7] R v Hoare [2017] SASC 7 at [63]-[65].
Is Mr Barber incapable of or unwilling to control his sexual instincts?
Both Dr Jayawant and Dr Raeside have expressed a clear view that whilst Mr Barber is capable of controlling his sexual instincts, he is however unwilling to do so.
In order to assess whether Mr Barber is incapable of or unwilling to control his sexual instincts, Dr Jayawant utilised a structured professional judgement tool, the Risk of Sexual Violence Protocol (‘RSVP’). The RSVP facilitates the identification of risk factors, empirically associated with sexual recidivism. Clinical judgement is then used to provide an individualised risk assessment based on the person’s circumstances and identified risk factors. The RSVP defines sexual violence as “actual, attempted or threatened sexual contact with another person that in non-consensual”.
Dr Jayawant expressed the view that based on Mr Barber’s history and the assessment that he had undertaken, Mr Barber has many risk factors for sexual recidivism. Whilst in the current custodial environment Mr Barber may not reoffend due to the restrictions in place, if he is released with no or inadequate treatment, unstable accommodation or limited psychosocial supports, he is at a significant risk of reoffending. Dr Jayawant went on to say it is highly likely that Mr Barber will rely on prior maladaptive coping strategies such as using substances and reoffending. Dr Jayawant expressed the opinion that if given an opportunity to commit a relevant offence at this stage, Mr Barber is likely to fail to exercise appropriate control of his sexual instincts. Dr Jayawant concluded therefore within the meaning of s 57 of the Sentencing Act, he believed that Mr Barber is unwilling to control his sexual instincts.
Dr Raeside expressed a similar view. In his report he said:[8]
In my view, whilst I do not believe there is strong indication that Mr Barber is unable to control his sexual instincts (at least when not using illicit drugs and alcohol), I would support the view that he would be unwilling in respect of failing to exercise control if given opportunity. This also includes opportunity to use illicit drugs, knowing that this is likely to lead him to act in sexually offensive ways. In that respect, I also think that he is at high risk of resuming illicit drug and alcohol abuse upon his return to the community.
[8] Report of Dr Craig Raeside dated 18 August 2022 at 10.
Dr Raeside also suggested some treatment options for Mr Barber:[9]
It does not appear that Mr Barber has been assessed for participation in a prison based Sexual Behaviour Clinic (probably requiring the SBC-Me program due to his intellectual disabilities) or a Violence Prevention Program, let alone a substance abuse program. I would be confident that these would find him at high risk of further violent and sexual offending without treatment. He certainly would require these programs in custody prior to release. However, the history, the material in the documents, and the nature of his past repetitive sexual offending all suggest to me that it is very unlikely that his overall risk would decrease significantly. The obvious dynamic factor relates to his risk of substance abuse, but this is likely to be problematic for reasons already described.
[9] Report of Dr Craig Raeside dated 18 August 2022 at 10.
Counsel for Mr Barber took no issue with the conclusions of the experts that Mr Barber was unwilling to control his sexual instincts. The focus of his submissions was on the timing of this application. He contended that the making of such an order at this stage is unnecessary and premature. Given the length of the sentence that I have imposed, Mr Barber will spend a significant period in custody. It was submitted that in those circumstances much could change with the effluxion of time. During that time there will be the opportunity for Mr Barber to undertake appropriate treatment and rehabilitation programs. Mr Barber has said that he is open to undertaking sexual offending and drug and alcohol programs.
Counsel for The Director was unsurprisingly less optimistic about the prospects of Mr Barber’s risk to the community reducing regardless of how long the term of imprisonment. He relied on Mr Barber’s history as well as the observations made by Dr Raeside of there being little realistic chance of change. He also relied upon the fact that Mr Barber has had opportunities to rehabilitate himself in the past and he has either not taken advantage of those or they have been of little efficacy. Counsel for The Director made the point that even if Mr Barber did engage in treatment, given the nature of his current risk it is unlikely that it will make any significant difference to his risk profile given Mr Barber’s underlying psychopathology and his psychological compulsion towards sexual offending.
I have reached the view that given the length of the sentence that I have imposed, it is premature to determine whether to make an order pursuant to s 57 of the Sentencing Act. Mr Barber’s non-parole period has been set at seven years and six months, backdated to 18 March 2020, and as such he will remain in prison for at least a further four years and six months. In the event that he is not granted parole, it will be longer. Whilst I share some pessimism about any real change occurring during that period, with such a lengthy period in custody it remains open that Mr Barber may make some steps towards rehabilitation during that time.
If Mr Barber’s release was imminent I would have no hesitancy in making the order today, however, it is not. It will remain open to the Director or the Attorney-General to make a further s 57 application closer to Mr Barber’s release date. That is the time at which it is appropriate for the Court to make an assessment of the risk that Mr Barber poses to the community.