R v Barlow, Charles Cameron

[2015] NSWDC 422

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Barlow, Charles Cameron [2015] NSWDC 422

Hearing dates:

20 February 2015, 2 April 2015

Date of orders:

13 April 2015

Decision date:

17 April 2015

Jurisdiction:

Criminal

Before:

King DCJ

Decision:

Convicted.

 

Indicative sentences:

 

SEQ 007: Cause GBH to person with intent:
Imprisonment for 7 years - NPP 5 years. Special circumstances in re totality only, as the offender is already serving a sentence of 18 months imprisonment
SEQ 8: Use etc offensive weapon to prevent lawful detention:
Imprisonment for 3 years and 6 months
SEQ 9: AOABH in re Mr GS:
Imprisonment for 2 yrs
SEQ 10: Aggravated take/detain person with intent to obtain advantage:
Imprisonment for 4 yrs and 6 months
FORM 1 – SEQ 4: Maliciously destroy/damage property:
Taken into account on sentence for SEQ 7 (and aggregated sentence)

 

Aggregate sentence

 

Sentenced to a term of imprisonment for 7 years and 9 months comprising of a NPP of 5 years and 6 months to commence on 19/8/14 and to expire on 18/2/20 and a balance of term of 2 years and 3 months to commence on 19/2/20 and to expire on 18/5/22. Eligible to be released to parole on 18/2/20.

 s166 – SEQ 3: Contravene prohibition/restriction in AVO (Domestic):
Sentenced to a term of imprisonment for 18 months to commence on 19/8/14 and expire on 18/2/16.

Catchwords:

CRIMINAL LAW – Sentence – relevant factors – offences against the person - nature & circumstance of offender - domestic violence – assault with intent to do grievous bodily harm – aggravated detain for advantage – actual bodily harm – use offensive weapon to prevent lawful detention – contravene Apprehended Domestic Violence Order

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Mitchell; R v Gallagher [2007] NSWCCA 296.
AM v R [2012] NSWCCA 203 at 78
Ashe v R [2010] VSCA 119
R v Tuta [2014] NSWCCA 40
R v Allen [2010] NSWCCA 47
Mendez v R [2012] NSWCCA 103
R v Richards (1981) 2 NSWLR 464
Callaghan v The Queen, [2006] NSWCCA 58
R v Fernando (1992) 76 A Crim R 58

Category:

Sentence

Parties:

Regina (Crown)
Barlow, Charles Cameron (Defendant)

Representation:

Counsel:
Mr M Smith (Crown)
Mr P Winch Defendant)

  Solicitors:
Director of Public Prosecutions (Crown)
Mr W Tuckey (Defendant)

File Number(s):

2013/00251005

Publication restriction:

Pursuant to non-publication orders there is to be no publication of anything that identifies or is likely to lead to the identification of the victims.

SENTENCE

1. HIS HONOUR: Charles Barlow appears for sentence in respect of four offences, the first being assault occasioning actual bodily harm to GS contrary to s 59(1) of the Crimes Act. The maximum penalty provided is five years imprisonment.

2. The second offence is use offensive weapon with intent to prevent lawful detention, to wit, a knife, contrary to s 33B(1)(a) of the Crimes Act. The maximum penalty is 12 years imprisonment.

3. The third offence is aggravated detain for advantage, the aggravation being actual bodily harm contrary to s 86(2)(b) of the Crimes Act. The maximum penalty is 20 years.

4. There is no standard non-parole period provided in respect of those three offences.

5. The fourth offence is cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1) of the Crimes Act. The maximum penalty provided is 25 years. There is a standard non-parole period in respect of that offence of seven years. When sentencing in respect of the offence of cause grievous bodily harm with intent to cause grievous bodily harm, the Court is asked to take into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 an additional charge listed on a Form 1, being intentionally damage property at the Campsie Police Station, the property being a telephone. The offence is contrary to s 195(1)(a) of the Crimes Act. There is a maximum penalty provided of five years imprisonment. That offence will be taken into account when sentencing for the offence of cause grievous bodily harm with intent to cause grievous bodily harm.

6. In respect of each of the offences that the offender is to be sentenced for, he entered a plea of guilty on 15 October 2014 at the Burwood Local Court. It is accepted that he entered the pleas of guilty at the earliest opportunity, and is entitled to a 25% discount for the utility alone of the plea in each case as referred to in Thomson and Houlton (2000) 49 NSWLR 383.

7. The date of the offences was 18 August 2013, and the offender was arrested on that date. At the time, he was the subject of a number of s 9 bonds for two years for offences of contravening an Apprehended Domestic Violence Order and two offences of destroy or damage property. He was also on conditional liberty in respect of an offence of reckless wounding, committed on 23 June 2013. He was on bail in respect of that offence.

8. Since being taken into custody as a result of the commission of these offences, he has been sentenced for the offence of reckless wounding to a term of imprisonment of two years to date from 19 August 2013, with a non‑parole period of 18 months which expired on 18 February 2015. Since that date, he has been in custody in respect of these offences alone.

9. I also note that at the time of the offence, he was the subject of an Apprehended Domestic Violence Order, the offence being committed in circumstances where the order was breached. That offence is contained on a s 166 certificate.

10. The facts have been agreed, and are as follows.

BACKGROUND

11. At the time of the offence, the victim, Mrs TW, resided with her daughter, Ms TW and the offender’s son, YW, in Kensington Street, Punchbowl. The child has been diagnosed as autistic.

12. At the time of the offence, an Apprehended Domestic Violence Order was in force for the protection of Ms TW. The order was made by the Burwood Local Court on 30 September 2011 and was operative for a period of two years. In addition to the standard orders that the accused must not harass, molest, threaten, intimidate or stalk Ms TW, there was an additional condition preventing him from entering or loitering near the premises in Kensington Street, Punchbowl.

EVENTS OF 18 AUGUST 2013

13. On 18 August 2013, the victim Mrs TW was at home with her grandson. Ms TW was at work.

14. At about 3pm, a family friend, GS, rang and spoke to the victim, who invited him to dinner later that night.

CONTRAVENE APPREHENDED DOMESTIC VIOLENCE ORDER

15. At some stage during the afternoon, the victim went into the backyard to collect some clothes. The offender was in the backyard. The victim spoke to him and told him to leave as he was not welcome. There was an argument between them about the child, the offender indicating that he wanted to take the child from the home.

16. The offender hit Mrs TW hard to the head. She told him not to hit her as her grandson was around and she did not want any violence in front of the child. The accused continued to hit the victim to the head and face.

17. At about 5pm, GS arrived at the home of the victim. He noticed the front flyscreen door mesh had been ripped out and was lying on the front porch. He knocked on the front door a number of times and heard a muffled response from the victim telling him to push the front door. Mr GS pushed the door open. The door was unlocked but had a lounge pushed up against it.

18. He found the victim lying on the lounge against the door. She had dried blood on her face and was bleeding from her forehead near her temple. Her right eye was starting to become swollen. Mr GS asked the victim what had happened.

19. The victim was incoherent. Mr GS attempted to assist her to stand. She was unable to stand. He observed that the house was untidy and that there were clothes strewn about, and that the lounge had been moved from its usual position, that there was blood on the carpet and the linoleum underneath where the carpet had been pushed up.

20. Mr GS noticed that the child was not then present.

21. Mr GS cleaned the victim up. The victim asked where her grandchild was. Mr GS looked for the child in the rooms of the home but could not find him. He observed chairs in the hallway that were turned on their side, which he righted and then assisted the victim to bed. Mr GS suggested that a call be made to Ms TW, the victim’s daughter. However, the victim asked him not to call. Mr GS insisted that the victim go to a hospital and the police be called to find the child.

22. Mr GS searched the house for the victim’s phone. The victim returned to the lounge. She appeared calmer and able to stand. The victim and Mr GS went into the kitchen to make a cup of tea.

23. Whilst they were in the kitchen, Mr GS noticed the offender and the child standing in the lounge room of the house.

24. The victim shouted out, “Oh YW, YW” being the nickname for the child.

25. The offender screamed, “He is my son” and kicked the victim to her stomach. The offender hit the victim to the head with a closed fist, using both hands. The victim fell to the floor. The offender continued to kick the victim in the stomach. The victim was crying and saying, “No”.

ASSAULT OCCASIONING ACTUAL BODILY HARM TO GS

26. Mr GS grabbed hold of the offender’s hands and tried to stop him assaulting the victim. The offender fought with Mr GS, and with a free hand pulled open the kitchen drawer, from which he grabbed a barbeque fork. The offender wrestled Mr GS to the floor and tried to poke Mr GS in the face with the barbeque fork. The offender jabbed the fork towards Mr GS. However, he was able to get free of the offender. Mr GS went into the lounge room where he noticed the victim was bleeding and silent. He attempted to go to the victim, but was prevented by the offender wrestling him away. The offender was still armed with the barbeque fork. The offender pushed Mr GS, and he fell to the ground. The offender said, “Stay down”.

27. Mr GS stood back up, and he and the offender wrestled. They ended up on the front porch of the home. The offender again pushed Mr GS, who fell backwards and landed on the concrete steps at the front of the house.

28. Mr GS got up and ran to a neighbour’s home, but as there was no response, he ran up the street where he found a woman who assisted him to call Triple-0 at 5.34pm. Mr GS returned to the victim’s home. However, the offender came back out the front, and Mr GS then ran from the home.

USE OFFENSIVE WEAPON TO PREVENT APPREHENSION

29. Police arrived at the premises at 5.47pm in response to the Triple-O call made by Mr GS. Constable Dirani went to the front door of the home. As he was about to knock, he saw the offender in the front window of the home. The offender was naked from the waist up and holding a knife in his right hand. The blade of the knife was about 20 centimetres long. Next to the offender at the time was the child. The offender closed the curtains to the front room.

30. The offender opened the curtains and appeared, holding the child. He moved the knife towards the child, holding it five to ten centimetres from the child’s throat, and yelled:

“I’ve barricaded the house. Fuck off or I’ll kill them all”.

31. The offender again closed the curtains. Two officers moved towards the back of the house, while another two officers remained at the front of the house. Further police assistance was requested.

CAUSE GRIEVOUS BODILY HARM WITH INTENT TO CAUSE GRIEVOUS BODILY HARM TO MRS TW

AGGRAVATED DETAIN FOR ADVANTAGE

32. Police could hear the offender inside the home, yelling out:

“I’ll kill them. I want (Ms TW) and Channel 7 here now or the bitch is dead.”

33. Officers were able to look through a window at the back of the home. They observed the victim, covered in blood and leaning back against the cupboard. She was observed by one of officer to be moving.

34. An officer called out to the offender requesting that they be allowed to help the victim, the offender said, “This cunt is going to die tonight if you don’t get me (Ms TW).” Police talked to the offender in an attempt to calm him down. The offender continued to make threats to kill the victim. At one stage, police were able to hear the victim yell out, “Help me, he’s going to kill me.” Police continued to talk to the offender and questioned him about Ms TW. The offender informed police that Ms TW’s number was on his phone, however, it was flat.

35. An officer observed the offender move towards the victim, who was sitting propped against the cupboard. He heard a number of soft thudding noises which sounded like the offender striking the victim. The offender said, “I’ll kill this cunt, she fucked my life, get Ms TW here.”

36. Police continued to try to persuade the offender to let the victim and the child leave.

37. Specialist police arrived at the premises. The offender had barricaded the doors to the home with items of furniture, but police were able to open a rear sliding door to the home. They pulled back a curtain to get a better look inside the home.

38. The offender was standing next to the victim holding the knife. An officer un-holstered his Taser. The offender said, “Put the Taser away, cunt, or I’ll kill her.” The offender threw his mobile phone to police and said, “Here, cunt, you find it, the number is in there.”

39. The offender grabbed the victim by the hair and held her up as a shield in front of his body. He walked back towards a sofa in the living room and sat down on it. At this time, police observed the child sitting quietly on the floor looking at an iPad.

40. The offender pulled the victim into his lap and held the blade of his knife at her throat. He screamed, “Fuck off. I’ll cut the cunt’s throat.” The offender pushed the blade of the knife towards the throat of the victim so that it was touching her skin. The victim reached up and attempted to grab hold of the blade being held at her throat. The offender pushed the knife towards her chin or throat area. A police officer called out, “No, don’t hurt her, stop.” The offender dragged the victim across the lounge room floor. The victim slumped to the floor and the offender began to kick, punch and elbow her. She was moaning. This continued for a couple of minutes.

41. The offender said, “There’s no way out for me, that’s what that’s for” and pointed to a loop of rope suspended from the ceiling. The offender was then swigging from a soft drink bottle.

42. Police repeatedly asked the offender to release the child and the victim. He refused to do so. Police asked the offender to place the child in a bedroom towards the front of the house. The offender picked up the child and dragged the victim by her hair with him into another bedroom. He placed the child on a bed in the room. The victim was slumped on the floor in the hall, just outside the door to the bedroom. Police moved around the house to establish a line of sight into the area of the home where the offender and the victim were now situated.

43. The victim’s hair was matted with blood. Police spoke to the victim; she did not respond to them but attempted to crawl very slowly in their direction.

44. The offender moved towards police, who were then standing on furniture looking into the bedroom through a window. He had a knife in his hand. As he passed the victim, he struck her a number of times with his fist and feet. Police asked him to leave her alone. He walked towards the police and appeared to be agitated.

45. The offender alternately placed the knife in the front of his shorts and on a chest of drawers. The offender approached the victim and again, kicked and punched her. The victim continued to move towards police.

46. The offender requested a cigarette, and police passed him a cigarette. The offender closed the curtains to the window where the police were standing. The police pulled the curtains open again. The offender showed police a frame which contained the foot and handprints of his and Ms TW’s two year old son, who had died some years previously.

47. The offender continued to abuse the victim, saying, “This soulless cunt she has ruined my life.” The offender said, “I don’t give a fuck, I’m going to kill this cunt.”

48. The victim had managed to pull herself upright. The offender bent over her and head-butted her to the head so that she again slumped to the floor. The offender said, “That’s it, this cunt needs to die. I’m going to fucking cut your throat.” The offender grabbed the victim by the hair with his left hand, pulling her upright and exposing her throat. He then began to lower the knife to the throat of the victim.

49. An officer drew his firearm and pointed it at the offender, and said, “Charlie, drop the knife, leave her alone.” The offender paused and dropped the knife, and shoved the victim back to the floor. The offender then picked the knife back up and put it down the front of his shorts. He kicked the victim before walking out of the room.

50. Whilst this was occurring, police at the back of the home had managed to move a table that was blocking entry. They entered and continued to move furniture to allow greater access to the home.

51. Police pulled open the hall door. However, it had been tied up with cord or rope preventing it from being opened. They cut the cord and moved into the hallway. They observed the offender hiding behind a shower curtain in the bathroom. The offender moved his hand towards his shorts.

52. Police discharged a Taser at the offender, who fell backwards and was arrested by police at 6.34pm.

FORM 1 OFFENCE INTENTIONALLY DAMAGE PROPERTY

53. The offender was taken to Campsie Police Station. During his detention he damaged the telephone at the police station.

VICTIMS

54. As a result of the offences, YW, Ms TW’s son, was found by police on a bed in the home in a state of distress, holding a pillow over his head. He had not been physically injured.

55. Mr GS suffered an impacted transverse fracture of the distal left radius. This fracture did not require surgery and was managed conservatively.

56. Mrs TW was taken by ambulance to Liverpool Hospital. She had a wound measuring around 10 cm at the top of her head. The wound began at the margin of the forehead and extended back towards the middle of the scalp. There was no evidence that the wound had penetrated the skull. Based on an examination of the wound, it was determined that it was possibly an incised wound caused by the use of a cutting implement such as a knife, but more likely to have been a laceration caused by contact with a blunt object. If that is the case, it would not have been caused by a blow with a fist or head-butt but more likely caused by a blow with a hard object or colliding with a hard object as a result of a fall, or being pushed hard into something.

57. Mrs TW also sustained a wound on her chin. It is unclear whether the wound was a laceration inflicted by some form of blunt force trauma or an incisive wound inflicted by the use of a cutting implement such as a knife. It is not inconsistent with Mr Barlow holding the knife to her chin or throat area as observed by the police.

58. The victim had a wound on her left forearm which appears to be an incised wound caused by a sharp cutting implement.

59. She also suffered fractures to her left second, third and fourth ribs.

60. CT scanning revealed left anterior temporal lobe intraparenchymal haemorrhagic contusion. This contusion was as a result of significant blunt force trauma. A fracture to the victim’s right orbital wall was also noted, being a fracture to the thin bones of the eye socket in its medial and inferior aspects. The fracture required reconstructive surgery, and was most likely caused by a reasonably heavy blow to that area by a punch or head-butt.

61. As a result of the contusion to the temporal lobe, the victim was diagnosed with a traumatic brain injury. The victim was treated in the Intensive Care Unit for 14 days.

62. As a result of the brain injury, the victim suffered amnesia for a period of 30 days which was consistent with a severe traumatic brain injury. She was discharged home in the care of her daughter on 27 November 2013.

54. The victim’s current prognosis is unclear. She suffers from ongoing issues with mood, and has lost her functional independence. It is likely that she will make some further recovery; however, she will have long term impairments as a result of her injuries.

55. In addition to the Agreed Facts, a report from the Brain Injury Rehabilitation Unit of the Southwest Sydney Local Health District, located at Liverpool Hospital, has been provided. The report indicates, inter alia, that her post traumatic amnesia of 30 days was consistent with a “very severe traumatic brain injury.” The report notes that prior to her injury, she had lived in Department of Housing accommodation and had worked part time in the Bankstown Community Resource Group facilitating Aboriginal playgroups, and was also involved in caring for her grandson.

56. At the time of her discharge from the brain injury in-patient program she had ongoing issues with mood and behaviour management, anger management, adjustment to change, relationship dynamics with the family, anxiety, difficulty coping with stressful situations, difficulty multi-tasking, difficulty following complex instructions, difficulty dealing with crowded environments and group situations, reduced attention and poor short term memory. She also required supervision, prompting and assistance in completing housekeeping tasks.

57. After discharge, on 27 November 2013, she was regularly reviewed until being unable to attend her last clinical appointment on 12 February 2015. The last clinical review was on 20 November 2014. At the time she continued to live with her daughter and grandson. She did not feel confident of being able to live alone again. She had ongoing issues with mood and behaviour although she was able to self-regulate to a greater extent. She continued to have difficulty with short term memory, for which she was using various memory strategies. She continued to avail herself of counselling support from a local practitioner, and at around the time of the legal proceedings, she had increased emotional distress. She continued to need the support of her daughter for completing domestic chores, and she took longer than previously to complete her personal care. She also had neuropathic pain and altered sensation on the right side of her face, and was on medication for that as well as remaining on medication prescribed for her mood. The report concludes:

“In summary, (Mrs TW) suffered a very severe traumatic brain injury (based on initial Glasgow scale score, CT scan findings and PTA duration). While she has made a reasonable recovery, she continues to suffer from ongoing issues outlined above. The most significant impact of this event has been her loss of independence and changed family relationship dynamics. At 18 months post injury she has made most of her recovery. Although some improvements may be expected in the next 6 months, given the severity of her TPA, some of the above impairments are likely to be permanent.”

67. A Victim Impact Statement by Mrs TW was provided to the court. The victim had required some assistance from her sister in order to prepare the Victim Impact Statement.

68. She refers to herself as before the accident having been very independent and full of life, that she reared her daughter by herself and sometimes worked two different jobs to make sure they did not go without.

69. At the time of the offence, she said she was working as an Aboriginal Liaison Officer at Bankstown Community Resource Centre for two years and felt good about herself and the work she was doing in the community. She liked her job and the people she worked with, and she now missed that as she cannot work anymore as a result of the offender‘s conduct. She also worked as a weekend relief manager for Aboriginal Hostels Limited. She had also looked after her grandson, YW, while her daughter worked, training as a chef. She said that they had been doing “real good and everything was starting to pick up for us”. As a result of the impact of the offences on her, the domestic situation had of necessity changed. Her daughter was unable to work anymore, because she now needed to work full time in looking after the victim and also her child. She said that the right side of her face aches because of the metal plate under her eye and the area around her top lip goes numb. She also notes that at times she cannot control what she says, and that she has blurted out some nasty things to members of her family. She said she was not nervous before, but she now did not trust anyone outside her own family. In particular, she did not trust males, with the exception of members of her own family. Her daughter now had to do all of the cleaning and cooking. She herself could only cope with a quick shopping trip to the local area and she no longer went out with her friends.

70. Before the offences were committed, she had not needed tablets for anything but said that she was fit and healthy, leading a very active lifestyle. She now has to take medication every day, and she was still attending appointments with a psychologist and brain injury doctor, as well as seeing a counsellor as of 20 February 2015.

71. Considering the nature of the assaults and the injuries caused, I have no difficulty in accepting the victim’s Impact Statement as being an accurate reflection of the significantly adverse effects that the offender’s conduct has had on Mrs TW.

72. The Court has also been provided with a Victim Impact Statement in respect of the child who was also a victim, YW. The statement was in fact made by the child’s mother, Ms TW. It indicates that the child is autistic. The content of the Victim Impact Statement refers to the child as having autism and a mild developmental delay. While the document purports to be a Victim Impact Statement, it contains in effect no further information in respect of the child or any effect that the offences may have had on the child. There is no information before the Court as to the child’s degree of autism or as to how his presence during the course of this conduct, including having a knife presented at his throat by his father, may have impacted on him, if it impacted at all.

73. I note in respect of the child that at least at the time when the police were able to obtain access and the offender having been arrested, the child was then observed to be in a distressed state and hiding his head under a pillow. Clearly, the events had some impact but the extent of that impact and its duration is not information before the Court.

74. The Victim Impact Statement by Ms TW on behalf of her son is in reality not a Victim Impact Statement. Almost the entire content relates to the effect on Ms TW, who was not a primary victim, including the effect on her as a result of the significant changes to her mother which have had adversely impacted on the domestic situation.

75. As pointed out to counsel when the Victim Impact Statement was tendered, the Victim Impact Statement in my view does not come within the provisions with respect to such statements as provided by s 30 of the Crimes (Sentencing Procedure) Act 1999. However, the document was tendered by consent, and after the issue as to its admissibility had been raised by me, Mr Winch, counsel, on behalf of the offender, submitted the Court should limit what it drew from the statement as to the impact on the child’s life as a result of the overall impact on the family as a result of the offences..

76. He further submitted that the Court could not use the impact on Ms TW as an aggravating factor with regard to s 28, in those circumstances. I accept that submission as correct, and will limit the use of the Victim Impact Statement as submitted.

77. In respect of the impact on Mrs TW, as previously noted, the impact has been substantial, and is continuing, at least in respect of the sequelae as a result of the traumatic brain injury. While her injuries are not the only factor to be taken into account in respect of the sentence to be imposed for the offence of cause grievous bodily harm with intent to cause grievous bodily harm, it is a very significant factor in determining the objective seriousness of the offence. R v Mitchell; R v Gallagher [2007] NSWCCA 296.

78. In AM v R, Johnson J set out some of the other applicable sentencing principles relevant to an offence contrary to s 33, and noted;

“The absence of planning and premeditation is relevant to objective gravity, although this feature may be diminished (as a factor favouring the offender) given the requisite intention of a s 33 offence: R v Zamagias at (14). This is expressly so where the attack is sustained and there are opportunities for the offender to desist from the attack but he does not do so: R v Westerman [2004] NSWCCA 151 at (17). Likewise, where the offender does not voluntarily end the attack, but it is necessary for another person to pull him away to protect the victim: R v Zamagias at (13); R v Mitchell at 101 (28).

The fact that a s 33 offence involves an unprovoked, uncalled for and unjustified attack elevates the subjective gravity: Matzick v R [2007] NSWCCA 92 at (23). An attack upon an innocent citizen who is going about his ordinary business is a crime of increased seriousness: R v Woods (NSW 9 October 1990 Lee CJ at CL Allen and Badgery-Parker JJ unreported).”

79. All of those principles referred to by Johnson J are apposite to the current matter. In addition, this was a persistent attack involving escalating violence on a deteriorating victim, which increases its objective seriousness. Ashe v R [2010] VSCA 119; AM v R [2012] NSWCCA 203 at 78.

80. In addition, this was a matter involving domestic violence.

81. In determining the sentence in respect of this offence, the Court is required to remain mindful of both the maximum sentences and the standard non-parole period, as they remain guideposts. It is well recognised that a standard non-parole period may be more significant where there is little that operates in an offender’s favour by way of mitigation; R v Tuta [2014] NSWCCA 40 at 49.

82. I have referred to the injuries suffered by Mrs TW, which are summarised as wounds, fractures, and a traumatic brain injury: her brain injury resulting in significant impairments, diminishing the quality of her life, and likely to be permanent. I accept the Crown’s submission in respect of this offence: that it falls at the upper end of the midrange of objective seriousness for offences of this type.

83. There are also a number of aspects that increase its objective seriousness:

1.   The assault on the victim was sustained over the course of at least one and a half hours.

2.   The offender struck the victim to the head and face.

3.   The assault occurred in her home while she was going about her ordinary everyday life.

4.   The assault occurred, at least in part, in the presence of her grandson, who was then 4 years of age.

5.   The victim was kicked after she fell to the floor.

6.   During the assault the offender threatened to kill the victim on multiple occasions.

7.   He armed himself with a knife during the course of the assault, which he both presented at her and used as part of a threat to kill her.

8.   Although he ceased assaulting the victim on a number of occasions, he subsequently recommenced the assaults.

9.   There was a significant degree of gratuitous violence.

10.   The assault also constituted a serious example of domestic violence, the offender and the victim having previously resided together for an approximately two year period.

84. Those matters also contribute to the finding as properly characterised as being at the high end of midrange of objective seriousness. In respect of this offence, there is nothing that operates in the favour of the offender, and for that reason, the standard non-parole period has a greater significance in the sentencing exercise.

AGGRAVATED DETAIN FOR ADVANTAGE

85. The aggravation is assault occasioning actual bodily harm.

86. Latham J in R v Allen [2010] NSWCCA 47 at 20, made the following apposite observations:

“A combination of factors relevant to an assessment of the objective gravity of an offence under s 86 of the Crimes Act were identified by this Court in R v Collett and Robson (NSWCCA, unreported, 7 June 1979), per Roden J, as the duration of the detention, the extent of fear or terror occasioned, the manner of treatment and what is demanded of the victim by the offender, the purpose of the detention, and the extent (if any) to which third parties were subjected to ordeal or anguish by reason of fear for the welfare of the victim.”

87. The circumstance of aggravation is the infliction of actual bodily harm, which has a comparatively low threshold. The injuries referred to here were serious ones. The period of detention from the time of arrival of Mr GS and until the incident was terminated was approximately an hour and a half. The incident, however, had commenced at an earlier unknown point in time in the back yard of the premises.

88. During the time of the detention, the victim was periodically assaulted, each assault involving gratuitous violence on a defenceless victim. During the detention, the offender also used Mrs TW as a shield, threatening to kill her in an effort to avoid being apprehended by the police.

89. While the victim had post traumatic amnesia for 30 days, it is clear from the facts that she suffered a significant degree of terror during her detention, as is indicated alone by her pleas for the offender to cease and for the assistance of police. I accept on the Crown’s submission that the manner in which Mrs TW was dragged along the floor and kicked while she was on the ground and threatened reveals a manner of treatment that borders upon the sadistic. Her injuries far exceed the infliction of actual bodily harm, and I do consider them as being a factor further aggravating the offence.

90. The offence was further aggravated by the fact that the victim’s grandson was present throughout the entire period of the detention, and that despite police pleas for the child to be released, he was not.

91. There was at least some degree of planning in that the offender had attended at the premises in breach of the Apprehended Domestic Violence Order and in that during the course of the detention he barricaded various areas of the house with furniture, tied one of the doors shut and installed a noose. I accept that they are all indicative of some degree of planning, although it may not have preceded the commencement of the offences by any substantial period.

92. In respect of the offence of detain for advantage, I accept, as submitted by the Crown, that it can properly be characterised as at the high end of the mid‑range of objective seriousness.

USE OFFENSIVE WEAPON WITH INTENT.

93. The weapon was a large kitchen knife with a 20 centimetre blade, capable of causing significant injury. At one point during the stand-off with police, the offender held the knife to the victim’s throat and threatened to kill her. At another point, he began to lower the knife to the victim’s exposed throat. She sustained a wound under her chin that was “not inconsistent with Mr Barlow holding the knife to her chin/throat.” The use of the knife to deter police entry prolonged the terror that was experienced by Mrs TW, and prolonged the exposure of her grandson to the events the subject of the charges. In those circumstances, I accept the Crown’s submission that the offence of use offensive weapon also falls into the upper end of the mid-range of objective seriousness.

ASSAULT OCCASIONING ACTUAL BODILY HARM TO GS.

94. Mr GS was going about his ordinary life, attending the premises because he had been invited to dinner, and he only became involved with the offender in an attempt to stop the offender from committing further assaults upon the already obviously injured Mrs TW. During the course of the assault upon Mr GS, the offender armed himself with a barbeque fork and attempted to “poke” Mr GS in the face with it. After their wrestling continued onto the porch, the offender pushed Mr GS so that he fell backwards, landing on the concrete steps at the front of the home. That would appear to be most likely point at which Mr GS sustained a broken wrist.

95. Mr GS’ injury did not require surgery and was managed conservatively. There is no information before the Court as to any sequelae, and there is no Victim Impact Statement from Mr GS. It would appear most likely that the injury was sustained when Mr GS, as a result of the push, fell backwards and landed on the concrete steps. I accept the Crown’s submission that the offence can be regarded as falling at or about the mid‑range of objective seriousness for offences of this type.

SUBJECTIVE MATTERS.

96. At the time of the offence, the offender was 22 years of age. He is now 24 years of age. The offender did not give evidence on sentence. Subjective matters are drawn from the following material: his criminal history, a report of Dr Olav Nielssen, psychiatrist, dated 21 September 2013, a report of Mr Patrick Sheehan, a psychologist with the firm Big Picture Psychology, dated 14 February 2015.

97. The offender is an indigenous person. He was one of five children to his parents; he was born in Walcha, but grew up “all over the place”. His parents separated when he was young and he did not meet his father until he was approximately 16 years of age, which was after his mother was released from a period of imprisonment, his mother having apparently been incarcerated when he was approximately one year of age as a result of what is said to be a charge of murder. He was looked after by his maternal grandfather, while his siblings went into what is referred to as “welfare” and were later placed in foster care with various relatives.

98. He attended several primary schools in the country and left school either in Year 8 or in Year 9. He is not certain of what school year he left in but was certain that he had not commenced Year 10.

99. His grandfather died when he was approximately 14 years of age, and he resided with an aunt until he was approximately 16 years old, when his mother was released from custody. He then lived with her. He informed the psychologist that she “likes to have a drink every now and then”, and that she had no subsequent problems with the law and was generally stable.

100. When he was 18 years of age, his father, who had also been serving a term of imprisonment, was released and came to reside with the family. According to the offender’s assessment, his father was bipolar and a bad alcoholic who was aggressive when intoxicated and would engage in bouts of violence until such time as the offender defeated him in a fist fight. As to all of his siblings, they are said to all be doing well and have not turned to crime.

101. He stated that after changing primary school at one time that he had then taken up at the new school with a population of indigenous children who did not apply themselves to study or homework, and that he followed that example. He was apparently never suspended or truanted. When in high school, he was placed in a special class which he claims had no syllabus and the students were generally permitted to watch movies instead of focussing on learning. He is able to read with comprehension but is halting in his reading.

102. Since leaving school, he has never been employed. His period of residence with his grandfather was interrupted after the age of 11, due to a number of periods in Juvenile Detention facilities. He informed Dr Nielssen that he did not usually drink alcohol, having observed the adverse effects on others, but that he, however, “self‑medicated” with cannabis from around the age of 12, and smoked the drug constantly whenever he was at liberty. He had also apparently used methamphetamine and the opiate medication, OxyContin, until he had met Ms TW, when he said that he stopped using those drugs during that relationship. (As previously indicated, he resided for approximately a two year period with Ms TW and Mrs TW and his autistic son.)

96. However, after the relationship broke‑down, he said, “I got back on it and went hard”. He did not report any use of cocaine or MDMA. I note that at the time of his consultation with the psychologist, he had been medicated with methadone approximately half an hour before the interview. The psychologist, on testing, indicated that there was a significant difference between the offender’s verbal comprehension and perceptual reasoning skills. His verbal intellectual skills were said to be on the cusp of the low/average to average range and his perceptual reasoning and intellectual skills were said to be in the upper end of the average range. The psychologist stated that:

“Mr Barlow may function above the level suggested by his presentation, particularly given that he was dosed on methadone immediately prior to testing and the testing environment was suboptimal (hot room, lawnmower operating nearby).”

104. In respect of Dr Olav Nielssen’s report, I note first of all, that the report was for the primary purpose of determining whether he was fit for trial. The final paragraph reads:

“A limitation of this report is that it is based on a single interview without witness statements, medical records or other corroborative information about Mr Barlow’s upbringing and mental state around the time of the offences.”

105. Dr Nielssen’s report is dated 21 September 2013, and there is no updated report. Dr Nielssen’s report, in those circumstances, must be regarded as having some limitations, as conceded by him.

106. In respect of the offence itself, the offender claimed that he had no memory of the events. He said, “I don’t know what I am going to plead...I can’t even remember what I did”. When asked to explain the background of the offences, he said:

“All I remember is coming back to Sydney...I got in touch with my girlfriend...She came for a night and left...I tried to see my son and she (Ms TW) would not let me in...I slept outside...She still would not let me in.”

107. He said, “I went back to town and got a handful of pills and had something to drink...It was the first time I took them and I don’t normally drink”. He said:

“I just remember going to the park with my mum...I was drinking red wine...One of the boys came and had pills on him...I was feeling depressed so I took some.”

108. He said that the tablets were the potent anxiety relieving sedative, Alprazolam (Xanax). He said that he did not remember how many tablets he took but said, “It was a handful...Close to ten, maybe”. He said that he did not remember how much wine he consumed that day. He said that he was at Mawson’s Park at Campbelltown and had no memory of travelling to his former partner’s family house in Kensington Street, Punchbowl, and had no memory of threatening to kill Mrs TW. He said:

“I used to stay with them until my son passed away...They are way different...When I met her daughter, I left the gang life and stopped dealing and started cleaning...I don’t even know why they treated me this way...I did everything for them.”

109. He confirmed that Ms TW had taken out an Apprehended Violence Order against him. He said, “They’ve treated me like shit and I’ve ended up losing it”. He said he had no memory of being Tasered by the police. He said, “I just remember waking up in the cells at Surry Hills”. It is noted from that report that he claimed to be affected by alcohol and Xanax. He claimed to Dr Nielssen that he had not taken anxiety relieving sedatives such as Xanax until the day of the offence.

110. When seen by Mr Sheehan on 11 February 2015, he again claimed not to remember anything of the offences, and claimed that he was heavily using methylamphetamine and buprenorphine for some months up to his arrest and that on the day of the offences, he was affected by a combination of alcohol, methylamphetamine, cannabis and a number of benzodiazepine tablets. That is contrary to the report of Dr Nielssen where he only referred to alcohol and Xanax. As to the quantity of alcohol, he informed the psychologist that he had consumed a bottle of red wine prior to the offences. As indicated, the offender’s claim of alcohol and drug use at the time of the offences has escalated over time, as the sentence approached. There is no independent evidence that confirms that he was affected at the time by alcohol or drugs. Considering the period of time and the reference to one bottle of red wine, taken some time before going to the premises and the duration of the events, it would not appear that alcohol would have been a significant contributing factor in his offending, nor does Xanax, if taken, provide any excuse for his conduct. Dr Nielssen reports that although the offender stated that he had been previously diagnosed with schizophrenia and treated with an anti‑psychotic medication, Seroquel, while in Juvenile Justice, but at the time of these offences, he did not report any recent symptoms of psychosis and there were no objective features of chronic mental illness evident during Dr Nielssen’s interview with him. Dr Nielssen expressed the following:

“Mr Barlow reported, at the time of the offence, he was affected by a combination of a quantity of wine and as many as ten tablets of Alprazolam, which is an anxiety relieving sedative that reduces inhibition and also affects memory formation. The combination of alcohol and benzodiazepine medication can have an additive affect that increases the intoxicating effect of both drugs.”

111. I note of course that that is phrased as being a possibility of “an additive affect”. As I have previously indicated in respect of Dr Nielssen’s report, it was based on a single interview without witness statements, medical reports or any other corroborative information about Mr Barlow’s upbringing and mental state around the time of the offences.

112. In any event, I note that pursuant to s 21A (5A)(a) of the Crimes (SentencingProcedure) Act that the offender’s self-induced intoxication cannot be taken into account as a mitigating factor, if he was in fact intoxicated. To the extent that his cognition may have been in any way reduced, it was not such as to deprive him of the capacity to form the requisite intent necessary for the offence contrary to s 33 or 33B(1) of the Crimes Act as is implicit in the plea of guilty.

113. As noted by the Crown, there are a number of aspects of the facts which are inconsistent with an assertion that the offender was heavily intoxicated by alcohol or drugs, including:

1. The offender’s placement of the furniture around the premises prohibiting police access.

2. The offender’s use of a rope to secure a door to prevent police access.

3. The offender having sufficient situational awareness to place the knife down when a firearm was finally drawn by one of the police officers and pointed at him.

4. His dialogue with police in connection with contacting his partner.

114. Where there is voluntary ingestion of drugs or alcohol prior to offending conduct it may serve to aggravate the offence rather than to operate in mitigation, as stated in Mendez v R [2012] NSWCCA 103 at para 75. I note in that respect that I have difficulty in accepting that the offender, in relation to what he has said to either Dr Nielssen or to Mr Sheehan, was being truthful in the absence of any sworn evidence and cross-examination. In that regard, it might be said that those assertions, having made that statement, neither assist him nor hurt him on sentence.

115. Before turning to the offender’s criminal history, I note that the psychologist, Mr Sheehan, on the offender’s medical and psychiatric history stated that he had no medical history of significance, although Mr Barlow had stated that he had been diagnosed with schizophrenia while in a juvenile justice facility and treated with an antipsychotic medication, but this was after he had been engaging in heavy amphetamine use. The only psychotic symptom was paranoia, with no hallucinations, ideas of reference or thought disorder. Mr Sheehan offered the opinion that his symptoms at that time were attributable to an amphetamine binge and lack of sleep.

116. Mr Sheehan stated that it was likely that he would meet the criteria for substance use disorder (moderate and impartial remission in a controlled environment) and that he otherwise met the diagnostic criteria for an antisocial personality disorder which would “appear to be attributable to his disadvantaged childhood environment where he described a collective acceptance that this approach to life was considered nominative and inevitable.” That is, a pattern of antisocial conduct, impulsivity, recklessness, irritability and aggression, irresponsibility and a failure to learn through consequences throughout adolescence and early adulthood.

117. Dr Nielssen opined the following psychiatric diagnosis:

1. Substance dependence and abuse disorder.

2. Conduct disorder.

3. Possible learning disorder.

4. Possible drug-induced psychosis.

118. I note the limitations of Dr Nielssen’s report, as I have previously referred to it, and also to his diagnosis involving learning disorder and drug-induced psychosis as being referred to as “quite possible” and that there is no further relevant information.

119. The offender has a significant and lengthy criminal history. I quote the summary of that history as provided by Mr Sheehan:

“Mr Barlow’s criminal history/bail report reveals an extensive history of mostly petty crime commencing from 2002 at the age of 11 years, and there are court dates for every year thereafter. The charges are mostly contained to personal violence (including domestic violence) and property theft or damage. I note many breaches of conditional liberty. Most of his convictions have been dealt with by way of bonds, supervision or control orders with a few custodial sentences not exceeding one year.

Mr Barlow recently incurred a conviction for reckless wounding (15 July 2014) for which he is currently serving a total sentence of two years. During the interview he stated that this was in relation to a knife wound sustained by an associate in Moree. However he stated that he was not guilty and that the wound was not caused by him. This was during the period of chaotic drug use and emotional distress preceding his index offence.”

120. With the exception of the expression of Mr Sheehan’s understanding of the reckless wounding offence, his summary is a reasonably accurate reflection of the offender’s past criminal history.

121. I will refer to the types of offences, noting in advance that I will endeavour to avoid repeating offences of the same type where the record contains a repeated offence.

122. In the Children’s Court in 2004 he was dealt with for a number of offences including destroy or damage property; throw or release etcetera object or substance to damage property, enter prescribed premises of any person without lawful excuse. In 2005, offences of: shoplifting, possess ammunition without holding licence, permit or authority, enter enclosed lands, receive, dispose of stolen property, be carried in a conveyance, break and enter building, steal value less than $15,000. In 2006, he was charged and subsequently dealt with in 2007 for offences of: common assault, steal property in dwelling house, enter building/land with intent to commit indictable offence. In 2008: behave in an offensive manner in or near a public place or school. I have missed some offences. In 2007, destroy or damage property, three counts of larceny and possess implements to enter/drive conveyance, enter vehicle or boat without consent of owner/occupier, two counts of common assault, a further enclosed land not prescribed premises, entering enclosed lands without lawful excuse. In 2008, as previously stated, behave in an offensive manner in or near a public place or school, be carried in conveyance taken without consent of the owner. In 2009, goods in personal custody suspected of being stolen, stalk, intimidate intend fear of physical or mental harm. In 2011, assault occasioning actual bodily harm. In 2013, he was dealt with for offences committed in 2012: common assault, contravene a prohibition/restriction in an AVO, destroy/damage property, more than one count, and two further counts of contravene a prohibition/restriction in an AVO. (I note that I may need to correct some of those references to criminal offences as a result of the confusing way in which criminal records are now provided to the Court.)

123. In any event, what the record shows is a continuing contempt for the law and, indeed, the extent that the offender has on occasions failed to comply with the conditions of his release and has been called up in relation to offences even where he has had the benefit of s 12 suspensions.

124. As previously referred to, one of the offences in relation to which he was on bail at the time of this offending was the offence of reckless wounding. The fact sheet in respect of that matter has been provided as Exhibit 3. It is the offence that I previously referred to as having been referred to in Mr Sheehan’s report with the particular version given to him by the offender. The facts to which he had pleaded are apparently that there was on 23 June 2013 a fight between unknown persons at which a large number of persons had gathered at Moree. A person was being set upon by the offender and a co-offender, or co‑accused. The victim intervened to attempt to assist the person being set upon, who was his cousin. This offender approached the victim and stabbed at him with a yellow and black handled screwdriver, which pierced his neck causing a small laceration to the left side. I note that it appears to be in respect of that matter, although it is difficult to tell from Mr Sheehan’s report because it refers to a date of 15 July 2014, that it was in relation to a knife wound sustained, in respect of which the offender was not guilty.

125. In any event, the relevance of the previous offence is only that the offence that he was on conditional liberty in respect of was an offence in relation to the infliction of a wound with an implement.

126. I am not sentencing him in respect of that matter. He has already been sentenced for that matter, but it is of some significance that within a period of approximately two months of the commission of the reckless wounding offence, and while on bail, that he committed these offences.

Mr Tuckey, is there some matter in relation to that?

TUCKEY: I think to clarify that, I think Mr Barlow was convicted after a hearing at Moree.

HIS HONOUR: After hearing?

TUCKEY: Yes, and the way--

HIS HONOUR: Sorry, the criminal record doesn’t indicate whether it’s been a hearing or not, but I will take that in--

TUCKEY: I don’t think it causes a problem because of the way your Honour said that he’s going to use it, but I’m not sure if that was the--

HIS HONOUR: I will correct that.

TUCKEY: Yes, I’m not sure on what basis the magistrate sentenced there, but that was the allegation.

HIS HONOUR: There is a long line of authority that the commission of offences while on bail is a serious aggravating factor as expressed in R v Richards (1981) 2 NSWLR 464 by Street CJ at 465: The protection of the community from those who abuse their liberty on bail to commit further offences calls for ‘severely deterrent sentences’, which would ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence to be passed, or passed for the original offence.

127. For the purpose of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and must take account of the aggravating factors and mitigating factors as outlined in s 21A(1) and (3) of that Act as are present, and any other relevant factor.

128. Any sentence imposed must reflect the objective seriousness of the offence and ensure that any time spent in custody by the offender reflects all of the circumstances of the offence, including the need for general deterrence and specific deterrence, as well as meeting the fundamental purpose of punishment: that is, the protection of society.

129. In this matter both specific deterrence and general deterrence are significant factors to take into account.

130. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate. So much has been appropriately conceded by Mr Winch, counsel for the offender, on sentence.

131. I intend to proceed by way of an aggregate sentence and I am required in those circumstances to state indicative sentences for each of the individual offences.

132. In respect of the offence of assault occasioning actual bodily harm, the indicative sentence is two years. In respect of the offence of use offensive weapon with intent to prevent lawful detention, the indicative sentence is three years six months. In respect of the offence of aggravated detain for advantage, the aggravation being actual bodily harm, the indicative sentence is four years and six months.

133. In respect of the offence of cause GBH with intent to cause GBH, and taking into account the Form 1 offence, the indicative sentence is seven years, it being a standard non-parole period offence, the indicative non-parole period is one of five years, that is, three months less than the statutory relationship, as, if I were imposing separate sentences, I would have needed to take into account a degree of accumulation between each of the individual four offences and the totality of the sentence, and also the fact that the offender is currently serving a sentence in respect of which he has already served the 18 months non-parole period provided. That is the sole basis for finding special circumstances.

134. In determining the aggregate sentence, I have had regard to the fact that the offender is already serving a sentence. In R v Callaghan, [2006] NSWCCA 58, Simpson J indicated that in circumstances such as this, the Court has a discretion to backdate sentences to be imposed where there is already an imposed sentence to be entirely concurrent, partially concurrent or entirely accumulated on the past sentence imposed.

135. In this matter, I will backdate the aggregate sentence to be imposed to commence one year after the commencement of the sentence he received for the offence of reckless wounding.

136. The aggregate sentence is seven years and nine months.

137. The non-parole period will be five years and six months, commencing on 19 August 2014. He will be eligible for parole on 18 February 2020.

138. For the benefit of the parties I will indicate that that represents a reduction to the statutory relationship of some three months and 23 days of the overall sentence, taken into account with the sentence that he is already serving.

139. The balance of the sentence is two years and three months, commencing on 19 February 2020, it will expire on 18 May 2022.

Has anyone missed any dates, or want a repetition?

Mr Barlow, that means that you will be first eligible for parole now on 18 February 2020. Whether you are released on that date will entirely depend on your conduct while in custody. As you would be aware from your previous history/ if, when released on parole at whatever time, you fail to abide by the conditions of parole you will no doubt be returned to custody.

For the benefit of counsel, I will just indicate to you that taking into account the time at which he commenced to serve the sentence for the reckless wounding, the total term is one of some eight years and nine months; that is, the seven years and nine months added to the one year of that sentence, and the non-parole period would accordingly be six years and six months of that total term, although the period for these offences is five years and six months.

There is, I think, something in the vicinity of a 21 day reduction from the statutory relationship to provide for what is in effect, including the previous sentence, eight years and nine months with a six year and six months non-parole period. If you do not follow, I will happily explain it.

TUCKEY: I follow, your Honour.

HIS HONOUR: Yes, are there any matters that I have omitted or misstated?

BRYAN: Yes, your Honour, there is on the s 166 certificate an offence of contravene Apprehended Domestic Violence Order.

HIS HONOUR: Yes.

BRYAN: That’s the first matter, your Honour, and in relation to the second matter--

HIS HONOUR: Well, I haven’t misstated that because it’s on the s166 certificate.

BRYAN: Yes, your Honour, I understood from--

HIS HONOUR: I could refer it back to the Local Court. However I’ll deal with it, yes.

BRYAN: Thank you, your Honour, and just while your Honour is doing that, there is just a brief second matter. I notice that there are some people up at the back of the court taking notes. I just seek a non‑publication order in relation to the child, YW.

HIS HONOUR: Yes, certainly.

I will make a non‑publication order in respect of the child, YW.

Madam Crown, it would seem to me that unless I also suppressed the victim and the child’s mother’s names, suppressing his name would have no utility.

BRYAN: Yes, your Honour, I would agree with that.

TUCKEY: No objection.

HIS HONOUR: I will also suppress the publication of the names of Mrs TW and Ms TW.

140. In respect of the offence contained on the s166 certificate, being contravening an Apprehended Domestic Violence Order, noting that he has a number of previous convictions in respect of such offences, I will indicate a term of imprisonment of 18 months commencing on 19 August 2014.

SENTENCE CORRECTION 17 APRIL 2015

141. I apologise to the parties and to Mr Barlow for having to bring him back. The reason for returning to the matter today is that on the last occasion I was not delivering my reasons from a prewritten document, and there were a number of matters I had intended to advert to but did not in fact advert to. I am uncertain as to whether I referred - when indicating the indicative sentence for the offence of cause grievous bodily harm with intent to cause grievous bodily harm to Mrs TW- as to whether I stated I had taken into account the offence on the Form 1 of intentionally damage property. For the record, I make it clear that I had in fact done so, so that automatically as a result of that, it was taken into account in relation to the aggregate sentence.

142. Secondly, I did not address the issue of remorse and contrition. In that regard, the offender did not give evidence on sentence. All that is before me, in effect, from which any conclusion can be drawn, is the report of Dr Olav Nielssen, psychiatrist, and the report of Mr Patrick Sheehan, psychologist. I am unable to detect in the report of Dr Nielssen, dated 21 September 2013, any significant indication of remorse or contrition. I note however that is entirely unsurprising since the report that was prepared by Dr  Nielssen was prepared for the purpose of determining whether the offender was fit for trial or not. In those circumstances, it is not surprising there is no clear mention of remorse or contrition having been expressed during Dr Nielssen’s consultation with him.

143. In the psychological report, the following is recorded on p 10:

“Mr Barlow stated that when he read the facts, he felt bad. He didn’t know that he was capable of such actions. He stated that he was sorry. He said his actions would have devastated everyone involved and hoped that the victim would make a full recovery. Mr Barlow’s current attitude to the offence marks an improvement from those detailed in a previous psychiatric assessment (Nielssen, 21 September 2013) where he seemed to express ongoing anger towards the family and took minimal responsibility.”

144. There is at least from that passage some indication that the offender regrets and is remorseful for his conduct. I accept that with reflection the offender has expressed remorse for his conduct, involving as it did the victim, Mrs TW, the grandmother of his child, and also his autistic son.

145. Reference was made in Mr Lynch’s submissions on behalf of the offender to the case of Fernando (1992) 76 A Crim R 58 and the principles that arise from that case. This offender was not raised in some isolated community but largely in the township of Moree. He informed the psychologist that his grandfather, with whom he had lived for a period, did not drink alcohol and tried to set some boundaries. There is no acceptable evidence the offender’s grandfather engaged in regular violent conduct during the offender’s formative years. He at least attended school until Year 8, and in relation to the remainder of his family, that is his siblings, they were raised in substantially different circumstances and had apparently not engaged in any criminal conduct. The evidence before the Court does not make this a case in which one can say clearly the Fernando principles apply. I accept his childhood and adolescence were characterised by misfortune and the lack of a stable home. The significant contributing factor to his adolescence was his separation from his parents when he was an infant, that is, initially from his father and then subsequently from his mother.

146. Dr Nielssen opines that the offender has suffered from a conduct disorder, which he states:

“… would appear to be the effect of a particularly severe form of intergenerational neglect and substance use which led to the separation of his parents when he was an infant, the separation from his mother soon afterwards, being fostered by substance using grandparents, his mother’s extended family, and being effectively homeless and having to care for himself from early adolescence.”

147. I have already noted what is said in the psychologist’s report as to his grandfather, which appears to be somewhat in conflict with what Dr Nielssen was informed.

148. The psychologist found he satisfied the criteria for substance use disorder and also for antisocial personality disorder, which he opined was:

“To a large extent the development of his personality pathology would appear to be attributable to his disadvantaged childhood environment where he described a collective acceptance of this approach to life was considered normative and inevitable.”

149. Even though I have said I do not find the principles referred to in Fernando to apply, there is however a significantly disadvantaged upbringing, as referred to in those reports. I accept that is a matter that must be reflected by the sentence and I have in fact reflected those reports in determining the sentences already indicated.

150. The other matter I omitted to refer to was the question of rehabilitation and the prospect of reoffending. The offender has a significant ongoing criminal history commencing as a juvenile and continuing on a regular basis up until committing these offences. He has regularly been called up for breaches of orders made in the past. Although orders have been made requiring some form of assistance in the community, there is no evidence of any improvement at any time in the offender’s general conduct.

151. As to rehabilitation, the psychological report of Mr Sheehan states as follows under the heading, “Summary Opinion and Recommendations”:

“Until Mr Barlow develops some sort of vision and belief, and is living a more functional life, interventions and punishment may have limited effect in altering his behaviour.”

152. In the light of his past offending and the serious nature of these offences it cannot be accepted there is a good prospect of rehabilitation. That is not to say there is no prospect of rehabilitation, and in that regard I particularly take note of the offender now being 24 years of age, and he is now to serve a significant sentence, a period of custody which may well assist him in taking stock of his life and making a determination to take the advantage of any interventions in the future, and to live what is referred to by the psychologist as “a more functional life”.

153. I have previously referred to special circumstances in imposing in particular the aggregate sentence, as having taken into account as a special circumstance the total period of custody including the period he was already sentenced to serve in respect of an earlier offence. The non-parole period in respect of the aggregate sentence, taking into account the earlier sentence, was reduced to make the overall sentence more accord with the statutory relationship.

154. I have already indicated I did not otherwise find special circumstances applicable in this matter. I particularly take into account the length of the parole period I have already specified, being some two years and three months. That is a substantial period of parole, and to have further reduced the non‑parole period provided in the aggregate sentence would have been to fail to reflect the seriousness of these offences.

155. I should also indicate that Mr Lynch, on behalf of the offender, argued the Court should accept the purpose of the offender’s attendance at the premises was to recover his child, if “recover” is the right word. It may indeed be the original cause for his attending at the premises but it is evident that shortly thereafter his attendance became for the purpose of seeking some form of retribution in respect of the victim, Mrs TW, through violence. His degree of hatred for her was clearly indicated not just by his physical conduct but by some of the statements he made during the course of the offending behaviour, such as, “The bitch is dead”, “This cunt’s going to die”, “She fucked my life”, and similar comments. Whatever may have been the original trigger for his attendance and contravention of the Apprehended Violence Order, his continued attendance at the premises was, as I have said, in my view, to obtain some form of retribution in respect of the victim, Mrs TW, who he appears to have blamed for what had gone wrong in his life in recent times.

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Amendments

24 April 2017 - Name of complainant removed in accordance with NPO.

Decision last updated: 24 April 2017