R v Barker
[2017] VSC 271
•19 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0171
| THE QUEEN |
| v |
| DYLAN BARKER |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 March 2017 |
DATE OF SENTENCE: | 19 May 2017 |
CASE MAY BE CITED AS: | R v Barker |
MEDIUM NEUTRAL CITATION: | [2017] VSC 271 |
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CRIMINAL LAW – Sentence – Murder – Jury verdict – Shooting in public street – Offender mistakenly believed that victim had just stabbed offender’s friend - Little premeditation – Mid-range example of the offence of murder – Deprived and abusive upbringing – Criminal antecedents – Some prospects of rehabilitation, given relative youth – Importance of just punishment, denunciation and deterrence (general and specific) – 21 years’ imprisonment with non-parole period of 17 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Lewis | Office of Public Prosecutions |
| For the Accused | Mr J Hannebery | Paul Vale & Associates |
HIS HONOUR:
Introduction
Dylan Barker, the jury found you guilty of murdering Paul Cochrane.
Circumstances of offending
You committed the offence at approximately 11pm on 9 February 2016 in Anakie Road, Bell Post Hill, not far from where Mr Cochrane resided with his girlfriend Olivia Kennedy, at her mother’s home. You knew both Mr Cochrane and Ms Kennedy.
By way of background, Mr Cochrane had been behaving erratically during the day. According to Ms Kennedy’s police statement, at one point he was crying and told Ms Kennedy that he needed to go to ‘Swano’, a centre for people with mental health issues.
Ms Kennedy went out to pick up her 14 year old daughter.
Soon after she returned with her daughter, Mr Cochrane went out, taking Ms Kennedy’s mobile. Ms Kennedy and her daughter went out looking for Mr Cochrane.
You drove by in a car which belonged to your friend Jeramie Marendaz. You stopped to talk with Ms Kennedy. You took Ms Kennedy and her daughter back to your place, which was nearby, as Ms Kennedy wanted to obtain some ‘ice’ from you.
Ms Kennedy’s daughter waited in your garage with Mr Marendaz whilst you took Ms Kennedy inside the house to get her some ‘ice’.
Whilst you were getting the ‘ice’, Mr Cochrane called Ms Kennedy’s daughter and spoke angrily to both her and Mr Marendaz, after which Mr Marendaz volunteered to drive Ms Kennedy and her daughter home in his car.
As they drove up to the roundabout at the intersection of Anakie Road and Braund Avenue, quite close to Ms Kennedy’s mother’s home, they saw Mr Cochrane standing in the road, blocking their path. Mr Marendaz stopped his car. His driver side window was down. Mr Cochrane lunged through the open window with a knife and tried to stab Mr Marendaz. Luckily, Mr Marendaz was not harmed. He quickly moved across to the passenger side and got out of the car. Ms Kennedy and her daughter also got out of the car and tried to placate Mr Cochrane, who got into the driver’s seat for a short time.
When he got out, Mr Marendaz got back in the driver’s seat and drove off.
A short time later, you drove up in your own car. Ms Kennedy was still trying to placate Mr Cochrane. I am satisfied on the evidence that you spoke to Ms Kennedy who told you, mistakenly, that Mr Cochrane had just stabbed your friend, Mr Marendaz.
You saw Mr Cochrane approaching your stationary car. I am satisfied that he was not brandishing the knife at that point in time but he still had it on him, probably tucked in his pants.
When he got to within a metre or two of your front bonnet, you reversed your car a short distance.
You then stopped your car, pointed a gun in the direction of Mr Cochrane out the driver’s side window and fired one shot, wounding him fatally.
Mr Cochrane dropped to the ground. You drove off around him.
You later told police that you went home for a short time and then drove to the home of your sister, Melanie Barker. You told police that on the way to her place that you threw the gun, which you had disassembled, out the window. The gun was never recovered.
When you got to your sister’s place, she let you in. You indicated to her that you thought you may have killed someone.
You left your car — the car which you had been driving when you shot Mr Cochrane — parked around the corner from your sister’s place and caught a taxi home.
On 11 February 2016, you were arrested and interviewed. For much of the interview you claimed that you were not the shooter. You set up a false alibi. Only when the police began to confront you with the evidence that they had gathered did you admit to being the shooter. You said you were told shortly before you shot Mr Cochrane that he had stabbed Mr Marendaz. You spoke to the police about having let Mr Marendaz down once before when he was assaulted by someone else and you did nothing. You also asserted that you did not actually intend to hit Mr Cochrane, that you thought the cartridge only contained glass fragments, not lead pellets, and that you fired the gun in self-defence.
The jury clearly rejected your claim that you did not intend to hit Mr Cochrane. I find, consistent with the jury’s verdict, that you intended to shoot Mr Cochrane and that you intended to kill him.
You shot Mr Cochrane in the mistaken belief that he had just stabbed Mr Marendaz. I find that the shooting was primarily an act of retaliation. Although I accept that you may have also felt threatened by Mr Cochrane as he approached your car, I am satisfied that you did not believe it was necessary to shoot him in self-defence.[1] What you should have done was driven away. You reversed a short distance before you shot him: you should have kept reversing, or gone around him.
[1]Your counsel did not take issue with these findings: see transcript of plea hearing (31 March 2017), 5.
As a consequence of your violent action, a relatively young man is dead. Mr Cochrane was only 36 years of age at the time you killed him. As the victim impact statements indicate, he leaves behind a grieving mother, older sister and young son, aged about 10, to whom I am told he was devoted. His son writes ‘I lost my Dad, he was special to me’.
Objective gravity of offending
It is necessary for sentencing purposes to consider where your offence falls on the spectrum of seriousness for the offence of murder. All murders are offences of the utmost seriousness but, of course, the maximum penalty — life imprisonment — is reserved for the worst examples of the offence.
The murder you committed had a number of aggravating features.
The offence was committed not long after you had been released from jail and whilst you were subject to a Community Correction Order (CCO). I will have more to say about your criminal history shortly. You discharged a firearm in a public street. Although there was very little premeditation to the murder — I find that you formed the intention to shoot Mr Cochrane only a few seconds before you fired — the fact that you kept a loaded gun in your car is of great concern.
You should not have allowed your anger over your mistaken belief that Mr Cochrane had just stabbed Mr Marendaz to rule you but I accept that your traumatic upbringing may have compromised your capacity for self-control. I will say more about your upbringing in a moment.
In all the circumstances, I find your offence to be a mid-range example of the offence of murder. The absence of significant premeditation, in particular, prevents it being categorised as an upper range example of murder.
Circumstances of offender
You were born on 26 July 1993. You were 22 at the time of the offence and are now almost 24.
Your parents separated before you were born. Your mother ultimately bore six children to four different fathers. You have a particularly close relationship to your sister Melanie, whom you visited shortly after the offence.
You were initially raised by your mother, in the Geelong area. It appears that she had problems not only with her partners but also with alcohol.
When you were about 5, you and the other children were taken into foster care. You were removed from home after the father of two of your half siblings tried to burn the house down with the children in it.
From 1998 to 2001, you were subject to a protective order, namely, a Custody to Secretary Order. Your second foster care placement was apparently abusive.
You were eventually placed in the care of your father and lived with him until you were 15. He had drug and mental health issues. You say that he also sexually abused you and that you no longer have a relationship with him.
Carla Lechner says in her psychological report on you:[2]
His exposure to trauma was chronic and he bears the hallmarks of complex developmental trauma, manifested by a low threshold for perceived danger/abuse/threat and associated anxiety, poor self-esteem, emotional dysregulation and difficulty in establishing close and trusting relationships.
[2]Carla Lechner’s report, dated 16 March 2017, 4.
As for your education, you attended four different primary schools. You left secondary school during Year 11.
You commenced but did not complete an apprenticeship as an electrician.
In January 2015, when you were 21, you commenced a relationship with a young woman who had two young children. Later that year, she fell pregnant to you with twins, but in January 2016, she miscarried. The two of you broke up sometime after you were taken into custody for the murder.
You have a longstanding poly-substance abuse problem.
Carla Lechner writes at page 7 of her report:
Mr Barker has abused substances from an early age as a means of managing his psychological distress. His involvement in this matter occurred when he was highly emotionally aroused and was using drugs on a daily basis.
By 14, you were smoking marijuana and, by 15, using 1 to 2 grams of marijuana a day. By 19, you were using ‘ice’. You have also used ecstasy, cocaine and GHB.
You told Ms Lechner that between your release from prison in November 2015 and the murder, you were using ‘ice’ every day. And you were drinking alcohol heavily.
Ms Lechner writes at page 7 of her report:
Mr Barker presents with symptoms of Major Depression (DSM 5), complex developmental trauma and Alcohol & Stimulant Use Disorder (DSM 5) …
She also reports that you experience high levels of anxiety and find it difficult to deal with your personal issues.
Because of your major depression and your high anxiety, jail is likely to be harder for you and I will take that into account.
Your criminal history sheet runs to 12 pages and includes approximately 60 prior convictions but these convictions were recorded at only three court appearances, commencing in 2014 when you were 20. Most of your priors are for dishonesty offences and traffic matters.
Your first sentence, in April 2014, was a combined sentence — 75 days’ imprisonment and a CCO, which you breached.
In June 2014, for the breach of that CCO and fresh offences, you received a total effective sentence of 6 months’ imprisonment.
In September 2015, you received an aggregate sentence of 4 months’ imprisonment and a CCO for 12 months. As mentioned, you were on that CCO when you committed the murder.
You have only one prior conviction for an assault type offence. That conviction was for assault by kicking and was recorded at Geelong Magistrates Court in April 2014. I was told that the victim of that offence was your sister Melanie. Also in April 2014, you were convicted of reckless conduct endangering life in relation to a car chase.
More significantly, you have three prior convictions for controlled weapons offences, all recorded at Ballarat Magistrates Court in September 2015. Your counsel informed me the weapons were two cattle prods and a machete.[3]
[3]Transcript of plea hearing (31 March 2017), 20.
Perhaps of most concern is a conviction, also recorded in September 2015, for possessing cartridge ammunition without authorisation. I was told by your counsel that it was just one .22 cartridge[4] but he resiled from that when the prosecution produced a police summary which indicated there were in excess of 20 rounds of ammunition.
[4]Ibid, 19.
I am guarded about your prospects of rehabilitation given the seriousness of your offending, the fact that it occurred not long after you got out of jail and whilst you were on a CCO, your criminal antecedents, your drug history and your unresolved issues from your abusive upbringing.
But you are still relatively young and, hopefully, not set in your ways. I accept that you have some prospects of rehabilitation. A lot depends on whether you abstain from illicit drugs in custody.
I also accept that you feel some remorse over the death of Mr Cochrane and the grief you have caused his family — but it is not a matter to which I can accord much weight in circumstances where you ran your trial and, after conviction, maintained falsely to Carla Lechner that you weren’t trying to kill or even seriously injure Mr Cochrane when you pulled the trigger.[5]
[5]‘He stated that he was acting in self-defence in the belief that the victim had stabbed his friend and was coming towards him in a threatening manner whilst holding a knife. … He stated “it was a fucked up situation … I got along with the person”. He stated he was aware that the victim “can be violent … bash, stab, pull guns on people”. Mr Barker stated that as the victim came towards him “I let off a round … just leant out the car without looking where I was shooting”. He believed that the gun was loaded with glass not ball-bearings. He further stated “Paul (victim) hunched over, I was shocked because I didn’t expect it to hit him, thought it might be his leg ... I didn’t think I’d do much damage … I felt fear and anger that he’d just stabbed one of my mates … I felt shit that I wasn’t there.”’ (Carla Lechner’s report, dated 16 March 2017, 4).
Current Sentencing Practices
I am obliged to take into account current sentencing practices for murder and I do so.
Your counsel relied on some statistics for sentences for murder produced by the Sentencing Advisory Council. Sentencing Snapshot No 171 indicates that the median sentence for murder during the period July 2009 to July 2014 was 20 years’ imprisonment and the median non parole period was 16 years. Your counsel submitted that, given your upbringing and youth, I should impose a merciful sentence ‘short of the recent median’.
Since your plea hearing, Sentencing Snapshot 198 has been published. It covers sentences for murder for the period July 2011 to July 2016. The results are similar. The median head sentence length was 20 years and the median non parole period was 17 years.
Sentencing statistics are of limited assistance. I note that the sentencing statistics do not take account of whether an offender pleaded guilty or not guilty. Each case has to be decided on its own facts, taking account of the particular circumstances of the offence and the particular circumstances of the offender. Had you pleaded guilty, I might have been amenable to your counsel’s submission as to the length of the head sentence and the non-parole period but you ran your trial. You are not to be punished for doing so — it was your right to plead not guilty — but you are not entitled to the substantial discount you would have received if you had pleaded guilty.
Purposes of Sentencing
Just punishment, denunciation and deterrence (both general and specific) are all important purposes that I must take into account in sentencing you. I keep in mind your rehabilitation too, especially given your youth. There will be a significant difference between the head sentence and the non-parole period in the interests of your rehabilitation, which also serves the protection of community.
Sentence
Please stand.
I sentence you to 21 years’ imprisonment with a non-parole period of 17 years.
I declare that you have served 463 days, not including today, by way of presentence detention.
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