R v Barrett; R v Duncan

[2020] NSWDC 558

District Court

New South Wales

Medium Neutral Citation:

R v Barrett; R v Duncan [2020] NSWDC 558

Hearing dates:

18 September 2020

Date of orders:

18 September 2020

Decision date:

18 September 2020

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Both offenders sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years.

Catchwords:

Criminal law- sentencing – especially aggravated detain for advantage - co-offenders – Bugmy Principles- finding of special circumstances - form 1 offences

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen 249 CLR 571

R v Newell [2004] NSWCCA 103

Category:

Sentence

Parties:

Regina
Noel Barret (Offender)
Matthew Duncan (Offender)

Representation:

Counsel:
Barrett: Mr Johnson

Solicitors:
DPP: Mr Thomas

Duncan: Mr Cooper (ALS Solicitor advocate)
Ms Winn

Barrett: Mr Lamond

File Number(s):

2020/00019180, 2020/00019182

Judgment - EX TEMPORE

INTRODUCTION

1. Matthew Duncan and Noel Barrett are co-offenders. The genesis of the offending relates to past relationships, drugs and vigilantism. The victim Dylan Perinoni had an intimate relationship with two different women, Jess Hammond and Frankie. Matthew Duncan had previously been in a relationship with Jess Hammond with whom he had a child. Noel Barrett had previously been in a relationship with Frankie with whom he had a child. The victim subsequently had a relationship with Frankie and had a child with her while Noel Barrett was serving a prison sentence between November 2017 to August 2019.

2. Mr Barrett had been staying at Hammond’s residence. The victim made contact with Hammond asking her to supply him with drugs and was annoyed with him for asking. The victim was staying at “The Palms”. It was not an oasis but rather a 13 room boarding complex at 320 David Street, South Albury.

3. On Sunday 19 January 2020 at about 5am the victim was asleep on a couch inside unit 11. He awoke to the sound of loud voices outside the unit. He heard his name called out. Both doors to the unit were open. He saw Mr Barrett and Mr Duncan standing inside the unit armed with weapons.

4. Mr Barrett had a tomahawk and Mr Duncan had a .22 calibre firearm. They all knew each other. Duncan pointed the firearm at the victim’s knees and said,

“You are going on the ground”.

5. Barrett said,

“You’re coming with us”.

6. The victim was led from the unit to a motor vehicle. He sat in the rear passenger seat of the vehicle. Duncan sat in the front passenger seat and Barrett sat in the driver’s seat. The victim pleaded not to be harmed. Duncan punched him to the face causing his mouth to bleed. The offenders accused him of stealing money and demanding drugs from a friend of theirs and the mother of one of his children. Barrett said,

“Make sure the safety is on”,

referring to the .22 calibre firearm.

7. The car was driven to Mungabareena Reserve. The vehicle slowed. The victim grabbed the barrel of the firearm and began wrestling with Duncan. Barrett stopped the vehicle and exited which unlocked the doors. The victim kicked the door open pushing Barrett backwards. He tried to run away. Barrett struck the victim’s left arm with the back of the tomahawk. The victim ran through bushland and jumped into the Murray River. Ten minutes later he exited the river and located a fisherman who called police. The victim was taken to hospital. He had minor cuts, scratches, abrasions and minor bruising.

8. The offenders have pleaded guilty to one charge of especially aggravated detain for advantage contrary to s 86(3) of the Crimes Act with a maximum penalty of 25 years imprisonment. There is no standard non-parole period. The maximum penalty is an important guide in the assessment of sentence.

Form 1 Offences - Barrett

9. The offender asked that I take into account on sentence pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 two offences listed in a form 1, namely drive unregistered motor vehicle contrary to s 68(1) of the Road Traffic Act, and reckless driving contrary to s 117(2) of the Road Traffic Act.

10. The facts of the offending are at about 4.20pm on 20 January 2020 police observed the offender Barrett driving a black Holden Cruze out of Park Avenue, Albury. At the time Barrett’s drivers licence was of a disqualified status. Barrett approached the intersection of Macauley Street cross of Guinea Street, which is governed by a traffic island which permits traffic on Macauley Street to only turn left onto Guinea Street. Barrett drove the motor vehicle around the traffic island to continue driving south on Macauley Street. Barrett continued south on Macauley Street where he approached the intersection of Macauley Street cross of David Street, which is also governed by a traffic island which again only allows a left hand turn onto David Street. Barrett disobeyed the traffic island and drove around it before continuing south on Macauley Street.

11. Police continued to follow Barrett until the motor vehicle became stationary at a red light on the intersection of Hume and David Street, Albury. At the same time, a fully marked highway patrol vehicle pulled behind Barrett and activated its lights and sirens. Barrett proceeded through the red light at speed. Sequence 7, drive reckless, form 1. The highway vehicle did not engage in a pursuit. The motor vehicle which Barrett was driving was unregistered with the registration expiring on 4 November 2019. Sequence 6, drive unregistered motor vehicle, form 1.

12. I note that having availed himself of this arrangement that the offender has the benefit of not facing separate punishment for the additional offences. I have reviewed the principles enunciated in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The Court is to impose a sentence for the totality of the criminality before it reflected in both the offence for which the offender is to be sentenced and the offences taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone. However, in this case the penalties for the summary offences will be subsumed in the sentence of imprisonment for the take and detain.

Plea Discount

13. The matter is subject to the EAGP scheme. Both offenders are entitled to a 25% discount.

Statutory Aggravating Factors

14. Barrett was on parole for an aggravated break and enter at the time of the offence. Duncan was on a Victorian community correction order, which was imposed on 29 July 2019 for a period of 18 months, at the time of the offence. Other aggravating factors are the use of weapons and the taking occurring in the home of the victim.

Objective Seriousness

15. In assessing the objective seriousness of the offence of aggravated detain with intent to obtain advantage (being in company and occasion actual bodily harm) I have regard to the general principles enunciated in R v Newell [2004] NSWCCA 103. I have taken into account the following factors:

1. The period of detention. Mr Johnson who appears for the offender Barrett submits that the distance from The Palms to the reserve is approximately 6 kilometres. He submits the Court should accept that the offence occurred over a period of 20 minutes. I accept that submission. However, when someone escapes the period of detention is of limited assistance.

2. The nature and extent of physical violence inflicted upon the victim during the detention. The victim was punched to the mouth and was hit by the back of the tomahawk to his left arm.

3. The nature and extent of the actual bodily harm occasioned during the detention. The injuries included minor cuts, scratches, abrasions, and minor bruising. The Crown concedes that the injuries sustained are at the lower end of the scale for actual bodily harm injuries, and there is no evidence before the Court of any long term impairment.

4. The purpose of the detention was to intimidate the victim over perceived wrongdoing by him which, according to the facts included stealing money and demanding drugs from Hammond.

5. Each offender was armed, one with a tomahawk, the other with a firearm. There is no evidence that the firearm was loaded. The bearing of arms to effect the detention elevates the seriousness of the offending. The gun was pointed at the knees of the victim on one occasion.

6. During the detention the victim would have been fearful for his safety. He was 24 years of age.

7. The victim was known to both offenders.

8. The offending took the form of vigilante justice. Courts have explained that resort to criminal conduct as a response to some misconduct or crime committed (or believed to have been committed) by the victim is to be severely discouraged.

16. The Crown submits that the objective seriousness falls around the midrange of objective seriousness. Mr Johnson on behalf of Mr Barrett submits,

“That the objective seriousness of the offence falls just below the midrange. Whilst it involved the threatened use of a firearm and the actual use of the back of a tomahawk the event was short-lived and the victim’s injuries were minor. It was conceded that the victim would have been fearful and the event only ended when he managed to escape”.

17. Mr Cooper, who appears on behalf of Mr Duncan, submitted that the offending is below midrange. I assess the objective seriousness as slightly below the midrange. It is the Crown’s submission that each offender played an equal role in the offence, each armed with a weapon, and therefore will attract a similar degree of culpability for the conduct. I accept that submission.

NOEL BARRETT

18. Tendered on behalf of Mr Barrett were reports from Anna Robilliard Forensic Psychologist dated 5 October 2016, being exhibit BA, and a report from Dr Rodriguez dated 4 September 2020, exhibit BB. Exhibit BA informs me of the following: the offender was born in Albury. He was the sixth in birth in order of a family of eight children. His father was a Barrakee man. His parents separated when he was about seven years of age. Before his parents separated he and his family lived in Albury. He said family life was marred by frequent arguments and conflict between his parents, that his father drank alcohol heavily and his mother was “on something”. Sometimes there was no food and his elder sister could obtain food for them although he does not know how she did it. He said he and his siblings were essentially raised by his elder sister.

19. He could remember watching his older brothers “getting flogged” when they tried to stop their parents fighting, and he added that he was scared. His father was ultimately arrested and charged with domestic violence. His father served a prison term and never came back. When his father was imprisoned he said DOCS stepped in and took the four youngest children into care and they were placed with an uncle and his family in Narrandera, while his sister was placed with a foster family for two years and then joined them at his uncle’s home.

20. He seldom attended primary school in Albury as his parents “didn’t make us go”. He stopped going in year 8. He often wagged school because he was unable to read or write and was embarrassed about it. He has a son who lives in Albury with his biological mother and they are in contact. He was 15 years old when the child was born and his partner was aged 18. At about the age of 14 he said he would drink “anything I could just to get drunk”. He said he stopped abusing alcohol at age 16 “because I got on ice”. At age 14 he tried cannabis, at age 16 he commenced using crystal methamphetamine.

21. Under the heading of “Risk assessment and management” the self‑appraisal questionnaire, SAQ, was administered. The offender had a total score of 43 which placed him just into the high risk of reoffending range. I note that the report was written in 2016. The opinion that he was a high risk of reoffending is borne out by the current offence. Psychometric tests were conducted. The author says,

“There is a high likelihood he could be classified as demonstrating mild intellectual disability”.

She went on to say,

“Corroborative information about his adaptive functioning would be required to make a confident diagnosis”.

22. He has a background of cumulative disadvantage. The family unit was unstable. He was exposed to excessive substance use and violence. He was placed into out-of-home care, and he lacked appropriate controls and limits within his family of origin. During a period in early adolescence when his mother reappeared he was engaging with delinquent peers, he was introduced to crystal methamphetamine and developed a perceived dependence.

23. The report of Dr Rodriguez, exhibit BB, informs me of the following,

“That Mr Barrett was a poor historian and was ill-equipped for elaborating on any issues”.

Under the heading of “Account of offence” the report says,

“When asked about the offence Mr Barrett reported that he kidnapped Dylan because when he was in prison the victim assaulted his son. He said that Dylan punched his son on the mouth. He was angry with the victim and admitted that he planned to seek revenge on the victim. He said, ‘I was really angry and stuff’. At the time of the offence he said, ‘I really wasn’t thinking. I was angry and stuff’. He said that his co-accused Duncan punched the victim in the face for his own reasons that ‘had something to do with his own dramas’. He said that the victim was ‘not a nice person for hurting a child’. He said that ‘anyone would kill for their kids’ although stated that he had never planned to kill the victim, although admitted to wanting to seek some retribution by force. He admitted to hitting the victim’s legs with an axe (a tomahawk). Mr Barrett said he was remorseful about committing the offence. He said he was sorry for having perpetrated any violence towards the victim whom he felt sorry for as ‘kidnapping was not a nice thing to do’.”

24. Under the heading of “Diagnosis” the report says that Mr Barrett’s history of substance use meets the diagnostic manual of substance use disorder (methamphetamines). The report goes on to say his history suggests he meets criteria for a mild intellectual disability. However, although Ms Robilliard was of the view that,

“There is a high likelihood he could be classified as demonstrating mild intellectual disability”

she went on to qualify and said,

“Corroborative information about his adapted functioning would be required to make a confidential diagnosis”.

25. Under the heading “The link between his condition and circumstances of the offending” the report says it is likely that his decision-making was significantly affected not only by his background and intellectual disability but also by the effects of ice use and his inability to deal with anger. He was apparently angry with the victim for assaulting his son. The victim had a relationship with his former partner and fathered a child with her. It is probable that Mr Barrett was unable to regulate his emotions and acted in retaliation in a planned fashion.

26. I do not accept the psychologist’s opinion that it is likely that the offender’s decision-making was significantly affected by his intellectual disability. Dr Rodriguez did not administer any testing or assessment to determine the intellectual capacity of the offender. It would appear that he has relied upon the report of Ms Robilliard. Ms Robilliard’s opinion was qualified with the need for corroborative information about his adapted functioning which would be required to make a confident diagnosis. Although Dr Rodriquez says that the offender meets the criteria for mild intellectual disability I am not satisfied on balance, without further testing as suggested by Ms Robilliard, that the offender in fact has a mild intellectual disability.

27. There is limited opinion offered as to the actual effects, if he has a mild intellectual disability, causes upon him apart from a reference to an inability to deal with anger and regulate emotions. The conclusion that Mr Barrett meets the criteria of mild intellectual disability is not well grounded on the materials. I am not satisfied on balance that any mental health condition contributed in a material way to the offending. It is, however, part of the circumstances of the case to be taken into account as part of the instinctive synthesis of sentencing.

28. Under the heading “Prospects of rehabilitation” the report says,

“Mr Barrett’s prognosis is poor. He has an extensive substance use history. He seems to have few supports. He appears to have criminal associates who use substances. He is unlikely to cope in the community when released and would be a high risk for relapse into substance use without considerable clinical services and supports. Mr Barrett would need to seriously address his substance use disorder and remain abstinent to have any chance of rehabilitation”.

Prospects of Rehabilitation

29. Dr Rodriguez is of the opinion that his prognosis is poor and I assess his prospects of rehabilitation as poor.

Contrition/Remorse

30. I accept that the offender has expressed remorse to Dr Rodriguez and that the remorse is genuine.

Criminal History

31. The offender has a relatively lengthy criminal history. He first appeared in the Wodonga Children’s Court at age 14 in 2012. He has since appeared regularly in both Wodonga and Albury juvenile courts and adult courts. He has numerous convictions for driving offences, car stealing, break and enters, and stolen property offences. He has received two short custodial sentences in Victoria and is presently serving his third sentence in New South Wales. His record disentitles him to leniency.

Deprived Upbringing

32. The Crown accepts that Mr Barrett has had a deprived upbringing. Bugmy principles are enlivened,

“The effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. It is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision”: Bugmy v The Queen 249 CLR 571 at [44].

33. I accept that Mr Barrett has had a deprived and disadvantaged upbringing, reducing his moral culpability. I give full weight to his deprived background in the sentence I impose.

Special Circumstances

34. I find special circumstances. There is a need for a lengthy period of suspension to reintegrate him into the community due to his addiction to drugs.

Commencement Date of Sentence

35. The Crown submits that the offender breached parole and it was revoked. The offender was in custody from 28 January 2020 for unrelated offences. He has served six days in custody referable to this offending. The Crown submits that the commencement date for sentence should be 12 September 2020. Mr Johnson submits that the offender has been in custody since 20 January 2020. His combined non-parole fixed terms expire on 12 November 2020. He submits that the offender has spent all but approximately ten months of the last four and a half years in custody. He submits that it would be open to provide a generous backdate given his entire period in custody since 20 January 2020.

36. Mr Crown, in oral submissions, conceded that it was open for me as the sentencing judge to backdate the sentence less than what he had suggested in his written submissions. I intend to backdate the sentence in relation to Mr Barrett to 12 June 2020.

MATTHEW DUNCAN

37. Tendered on behalf of Mr Duncan is a report of Dr Calvin, a forensic psychiatrist, exhibit DA. One of his sources of information was a psychological report by Carla Lechner dated 22 May 2018. This report was not tendered. The exhibit informs me of the following: Mr Duncan is a 25 year old single Aboriginal man from the Albury-Wodonga area. He is the father of two children to two different women. His six year old son lives with his mother while his two year old daughter lives with Mr Duncan’s sister. The mother of the two year old is currently in custody in Victoria. He is currently placed in the high security wing of the Goulburn Correctional complex after his involvement in a riot at the Shortland Correctional Centre. He now has other additional charges since entering custody.

37. He has a history of depression and anxiety for the past five to six years. He reported psychotic phenomena such as hearing voices, seeing visions and flashbacks in the context of recreational drug use. He has used all drugs except heroin. He stated that he first started using drugs at the age of 12, smoking cannabis with friends. He started using ecstasy at the age of 18. Mr Duncan said that his life went downhill after he began using crystal methamphetamine, known as ice. Initially at the age of 18 he was smoking half a gram daily but this escalated to almost one and half grams per day and using it on most days. He has never been able to stop drugs, but more recently has been considering a trial of opioid replacement such as depot revival injections.

38. His father is of Aboriginal heritage. He is the fourth child in a sibship of five. From an early age Mr Duncan recalled problems with authority figures, oppositional behaviours, and early onset of criminal activity to support his drug habit. Mr Duncan had issues at school from a very young age. He was unable to sit still in classroom, was hyperactive and impulsive, eventually leading to a diagnosis of ADHD. He had learning problems in all subjects except English. He had behavioural issues with frequent suspensions. He was expelled from school in year 7. Later he completed a certificate in carpentry and returned to school completing year 10.

39. Mr Duncan stated that the victim was a close friend and previous associate. The offending occurred in the context of Mr Duncan believing that the victim had had a relationship with his ex-partner. He stated that he should have handled things better and indicated that he did not have any adaptive skills to deal with conflict.

40. In relation to the report by Ms Carla Lechner, clinical psychologist, Dr Calvin says that a cognitive assessment had noted lower intellectual capacity and further evaluation was recommended. It was Dr Calvin’s opinion that Mr Duncan has an established diagnosis of major depression for which he is on antidepressant medication. It appears that with treatment his depression is currently well controlled. He displays characteristics of cannabis, opioid, and stimulant use disorder. The offending appears to have occurred in the context of interpersonal issues, lack of adaptive coping, and uncontrolled substance addiction. A combination of social disadvantage, developmental challenges including lowered intellectual capacity, combined with an inability to deal with life stress and heavy substance use, have all led to his current offending. Mr Duncan’s prognosis will hinge upon him maintaining abstinence from substance use, undergoing treatment for his drug addiction, development of adaptive coping skills, and involvement in a meaningful vocation.

41. The report predominantly focuses on Mr Duncan’s upbringing and disadvantage as an explanation behind the offending as opposed to any specific conclusion as to how his mental health is causally linked. Dr Calvin has relied upon Ms Lechner’s opinion of lower intellectual capacity; however, Ms Lechner recommended further evaluation. There is no specific reference as to how the mental health of Mr Duncan is connected to the offending.

42. I am not satisfied on the balance of probabilities that the mental health of Mr Duncan contributed in a material way to the offending behaviour. It is part of the circumstances of the case and I take it into account as part of the instinctive synthesis of sentencing.

Criminal History

44. The offender has a limited history in New South Wales. However, in Victoria he has had numerous appearances for antisocial behaviour including reckless injury, possession of drugs, threat to kill, assault with weapon, intentionally damage property. His first appearance was in the Wodonga Children’s Court on 18 December 2007. His last appearance was on 29 July 2019. His prior history disentitles him to leniency.

Deprived Upbringing

45. The Crown accepts that Mr Duncan has had a deprived upbringing. Bugmy principles are enlivened. I accept that Mr Duncan has had a deprived and disadvantaged upbringing reducing his moral culpability, and I give full weight to his deprived background in the sentence I impose.

Special Circumstances

46. I find special circumstances due to his addiction to drugs. A lengthy period of supervision is warranted for his reintegration into society.

Commencement Date of Sentence

47. It is agreed between the parties that the commencement date of sentence is 20 January 2020.

Sentence

48. The major sentencing considerations are general and specific deterrence. In coming to an appropriate sentence for each offender I have taken into account all the matters listed in s 3A of the Crimes (Sentencing Procedure) Act. Offences under s 86 committed as a form of vigilante action have come fairly regularly before the criminal courts. It has been necessary for the courts to take into account the need to condemn actions of this type and to reflect general deterrence on sentence. Crime, or perceived wrongdoing, is dealt with by the courts and not by individuals.

49. In sentencing of Mr Barrett, I sentence him to a head sentence of three years and six months commencing 12 June 2020. The sentence will expire on 11 December 2023. I set a non-parole period of two years. Mr Barrett will be eligible for parole on 11 June 2022.

50. In relation to the drive whilst disqualified I make an order pursuant to s 10A, that he is convicted and no further penalty.

51. In relation to Mr Duncan I sentence Mr Duncan to three years and six months commencing on 20 January 2020. The sentence will expire on 19 July 2023. I set a non-parole period of two years. Mr Duncan will be eligible for parole on 19 January 2022. In relation to the 166 matter I note that the maximum penalty is five years. I sentence Mr Duncan to four months imprisonment which is to be concurrent with the sentence that I previously announced.

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Decision last updated: 24 September 2020