R v Barrie, Anthony

[2009] NSWDC 96

CITATION:	R v Barrie, Anthony [2009] NSWDC 96
HEARING DATE(S):	06/11/2008, 18/12/2008 and 30/01/2009
JUDGMENT DATE:	27 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Charge: Use carriage service: - convicted, sentenced to 4 1/2 years imprisonment with None Parole Period of 2 and 1/2 years; Charge: Sexual intercourse with person aged 14 years but under 16 years: Convicted, sentenced to minium term of imprisonment for 2 years; balance of term 1 year 5months Charge: Sexual intercourse with person 14 years but under 16 years plus Form 1 matters (x6) Convicted; sentenced to Minium term 2 1/2 years; balance of term 2 years 8 months. Overall result: Head sentence 5 1/2 years balance of term 2 years 8 months.
CATCHWORDS:	Criminal Law - Sentencing - use carriage service to procure underage person to engage in sexual activity - sexual intercourse with person aged 14 but less than 16 (x2) - predatory behaviour - past record including jail time for sexual offending - worrying psycho-sexual profile.
LEGISLATION CITED:	Crimes Act 1914 (Commonwealth) Crimes Act 1900 (NSW)
CASES CITED:	R v Gladue (1999) 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Tector v Regina [2008] NSWCCA 151 [90] Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305 R v Pearce (1998) 194 CLR 610
PARTIES:	Regina Anthony James Barrie
FILE NUMBER(S):	2008/00002123
COUNSEL:	J Booth (Public Defender)
SOLICITORS:	Crown: Mr G Coles

JUDGMENT
1. Anthony Barrie was thirty-four years old when he first had penile/vaginal sexual intercourse with EF, then almost twenty years his junior; that was on 26 February 2006. Between that day and 14 April 2009 he had penile/vaginal sexual intercourse on seven other occasions. During EF’s absence in Brisbane he used the Internet to proposition EF’s fourteen-year-old friend TW.
2. Today he is to be held accountable for his criminal conduct, that conduct is encapsulated in an indictment charging two counts of sexual intercourse with EF, she then being between the ages of fourteen and sixteen years. He is further charged with using a carriage service to transmit a communication with TW with the intention of procuring her to engage in sexual activity with him at a time when he believed her to be under the age of sixteen years.
3. When sentencing for the first offence I have been asked to take into account six further occasions of sexual intercourse between this offender and EF. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this court committed by this offender harming these victims in the Newcastle community; R v Gladue [1999] 1SCR 688 [80].
4. My initial task requires an assessment of what is called the objective criminality of the offences before the court. I will also need to have regard to matters personal to the offender known as subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the court relating to the offence and to the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly.
5. There is an offence against the laws of the Commonwealth. Section 16A of the Crimes Act 1914 (Cwth) requires a sentencing court to take into account a number of specific matters. These s 16A matters have the advantage of providing a useful checklist of matters relevant to sentencing. Where a term of imprisonment greater than three years is to be imposed, as indeed must be in this case, the length of the non-parole period must also be determined.
6. Before any sentence in respect of State matters can be determined there are likely to be technical questions relating to; deterrence, discounts, whether special circumstances are to be found, the Form 1 matters that I have just referred to and finally of course the ultimate length of the term of imprisonment or other penalty to be imposed. None of these things can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus, the protection of the community will also need to be determined, see R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740.
Facts
7. A statement of facts has been prepared by the Crown. The defence does not contest any of the allegations made in the document. In those circumstances I am prepared to accept it as fairly setting out the facts and circumstances of the offence. In early 2006 the offender began to contact EF, then aged fifteen years, by means of the Internet. He was a member of the Internet café and gaming centre in Hamilton and another business known as “The Battleground Newcastle Internet Café”. He talked to EF online and later by contacting her on her mobile phone. He told EF that he was twenty-five years old, when in fact he was thirty-four years old. On 22 February the two met and he drove her to Blackbutt Reserve near New Lambton. There he began to talk about sex, asking her, “Are you looking for a boyfriend or sex at all?” She asked him how old he was. And he replied, “Twenty-five years old.” She told him she was fifteen.
8. I turn now to the facts and circumstances supporting the first count on the indictment. On 26 February 2006 he again met her and drove to Mount Sugarloaf. After talking in the car for a short time he said, “Do you want to lay down on the grass or the blanket I bought? I’ve brought condoms and lubricant.” He led his victim to a secluded area where they had penile/vaginal intercourse. She experienced pain, he ejaculated into the condom. She bled from her vagina and remained sore for four to five days. She continued to meet him and they began an ongoing sexual relationship.
9. The facts and circumstances supporting the second count, which is to be remembered comes towards the end of their relationship. During a night in March 2006 he and she visited a friend of his. While at the house she learnt his real age when another resident asked her what she was doing going out with a thirty-five year old man. That night EF drank alcohol and later had penile/vaginal intercourse with him. While in bed he said to her, “If I told you my real age on the Internet would you have met up with me?” And she answered, “Probably not.” The words “probably not” end these facts and circumstances relating to the second count.
10. The other offences are more summarily summarised, they are to be found on the Form 1 document. Between 26 February and 14 April they had penile/vaginal intercourse late at night in the back seat of a white Daihatsu Charade while parked in the beach area of Memorial Drive at Bar Beach. The second of the matters to be taken into account is his having penile/vaginal intercourse with her late at night inside public toilets located in a public park in Ulrick Street, Merewether.
11. The third matter to be taken into account occurs on 29 March 2006. He drove her to his home. Police as it happened attended having received information from a neighbour that he had a young person in his premises. He denied to police access to the premises, but they did note that he had red marks on his neck, no doubt consistent with what are commonly known as love bites. Police left the premises. The complainant says that when police attended she and he were engaged in penile/vaginal intercourse. Once police left he told her to get into the boot of his car - remember it is a Daihatsu Charade - and drove her from his premises.
12. The fourth matter on the schedule is she and he had penile/vaginal intercourse on tables near a basketball court at Kotara High School during a weekend. The fifth matter on the schedule also occurs between 26 February and 14 April where they had penile/vaginal intercourse in his vehicle parked on this occasion outside his home. And the final matter on the schedule is between those dates he and she had penile/vaginal intercourse in the mining display area of the Newcastle Regional Museum.
13. On 14 April she went to Brisbane to stay with her father for a period of time. While in Brisbane she learnt that he had commenced phoning and emailing other girls. After learning this she ceased all contact with the offender and reported the matter to police. On 16 June 2006 police executed a search warrant at his home. There they located a letter in his bedroom written by EF detailing sexual acts that had occurred between he and her. At the time he claimed that the letter was from an ex-girlfriend aged eighteen.
14. I come now to the third count. In March of 2006 TW was fourteen years old and in Year 9 at Kotara High School. Around March of 2006 TW was aware that her friend EF was involved in a relationship with this offender. One Wednesday afternoon TW and a friend of hers were walking home from school. They were both wearing school uniforms. EF alighted from a small white car that had pulled up beside them. She then introduced the offender, who was seated in the car, to TW. He later asked her, that is EF, how old TW was and she told him, fourteen.
15. On 3 April 2006, and I note that is, I understand it, eleven days before EF travelled to Brisbane, TW received an email addressed to her. The email subject heading had “SX". The text read, “Was wondering now that I’m single you interested in some casual sex?” It was of course sent by the offender to TW. TW did not know how it came to be that the offender had her email address. She printed out the email and later handed it to police. From April 2006 the offender made telephone calls to TW inviting her to his home for alcohol and sex. She had a caller identification facility on her phone and was able to recognise who it was that was calling her.
16. On one occasion she recorded a portion of that conversation on her mobile phone, the reason for that may become apparent later. On every occasion she declined the offender’s invitation to meet him. On 29 May 2006 TW attended Newcastle Police Station with her uncle to report what was happening to the station officer. She made a statement on 25 July that year. On 18 October 2007 police went to the offender’s home, he was arrested in relation to the complaint made by EF, taken to the police station, thereafter he remained in custody. On 2 November 2007 police attended Silverwater in relation to the complaint by TW. He has subsequently been charged with matters that are before the court.
17. Consent is not an element of these sexual intercourse offences, that is because of a power imbalance in favour of the offender arising from his maturity, adult status and twenty-year age advantage. That is to say consent from young girls in those circumstances very frequently is very easy to obtain. Nonetheless it would appear the complainant was aware from the outset of the accused’s predatory interests in her. While it is unlikely she saw it as a predatory, and again that will become apparent later, he was forcing his sexual intentions upon her openly from the outset.
18. She did not appear to be unwilling or even reluctant to engage in the activity he was proposing, that situation only highlights her need for protection intended by the law. In October 2006 this offender was charged with possession of child pornography, that of course has no bearing upon the criminality I am dealing with, but it does bear upon a finding in relation to rehabilitation prospects.
19. In early 2007 he decided, in respect of that charge, to seek help from a forensic psychologist, Rhonda Murray. Prior to being sentenced for the child pornography offence he had seen her on some six occasions. He also indicated a willingness to engage in a CUBIT program, an intensive sex offenders’ program designed for prisoners serving a sentence. I will return to the question of rehabilitation prospects later in these remarks.
Objective criminality
20. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in these cases with the criminality of offences of similar kinds. It is in that way that some estimate of the objective seriousness of the criminality of these offences can be evaluated. Objective criminality has an important impact on the overall sentencing outcome.
21. I turn firstly to the Commonwealth offence using the Internet and phone, both of which are carriage services, for the purposes of procuring TW to engage in sexual activity with him. The circumstances of the initial contact between EF and TW on the one hand and the offender on the other, clearly demonstrate a predatory interest by this offender in girls barely past or perhaps not yet through puberty. The use of the carriage service, while it may be the first time he has been charged with this offence, does not represent an isolated incident. Indeed his first contact with EF had been via the carriage service.
22. Thus it is not an isolated incident of this form of abhorrent behaviour being engaged in by him for predatory purposes. His predatory intentions initially revealed in his sending TW an unsolicited email was further demonstrated by telephone calls commencing after 3 April and continuing a number of times. It is not clear from the facts the number of occasions he used the phone, but both use of the phone and email constitute use of a carriage service. In that sense this offence becomes an ongoing offence. The ongoing persistent nature of the offence, the offender’s predatory demeanour both are aggravating features of the offending.
23. On the other hand the calls do not appear to be lurid or punctuated with offensive language or offensive imagery. He was known to the victim as being associated with her friend, EF. The gravamen of this offence is conduct by an adult directed at children under sixteen undertaken with the specific state of mind by way of encouraging, enticing, recruiting or inducing a child under sixteen whether by threats, promises or otherwise to engage in sexual activity; Tector v Regina [2008] NSWCCA 151 [90].
24. The nature of the sexual activity should it be disclosed may reveal a more specific intent that may increase the criminality. Against that background the following may be noted:
· There is no suggestion the length of any one communication or its tone was in any way overbearing, arduous or prolonged or contained threats.
· In this case, however, the offence was ongoing in that there were numerous communications.
· There was no threat made or money offered. However, there was a promise of alcohol extended.
· The approach by the offender was speculative and predatory.
· The age gap, and hence the power imbalance, was one of twenty years.
· The recipient of the communications was fourteen years. The level of maturity and psychosexual maturity between a fourteen-year-old girl and one close to sixteen is substantial. On the other hand his victim was not in the tender age below, say, twelve years.
· There was no attempt by the offender to hide his identity, cover his tracks or avoid detection.
· The period of ongoing criminality in respect of this offence is to be measured in weeks rather than some greater measure.

25. The objective criminality on the two indicted and 6 matters of sexual intercourse on the Form 1, involves recognising the criminal features associated with what is euphemistically called “underage sex”. Foundational to any argument is an understanding that children, including those between fourteen and sixteen, are psychosexually, physically, emotionally and in every other way immature. Related to this is the absence of experience in judgment making and understanding what will damage their psyche, body and mental and sexual health in the long term. Hence the protection offered by the legislation is not lost or vitiated by issues relating to consent.

26. Sexual conduct, particularly predatory sexual conduct, that takes advantage of the range of immaturities for the sexual gratification of the offender is antisocial and hence criminal conduct of a high order.

27. Also foundational to any assessment of criminality is the power imbalance that necessarily must exist between a mature, experienced thirty-four year old male and an immature, still developing, insecure fifteen-year-old girl. For a male in such a position to take advantage of such a girl for his own sexual gratification is antisocial conduct of a high order. It is for that reason that it also constitutes criminal conduct of a high order.

28. In the first offence the sexual intercourse pursued was penile/vaginal intercourse. Notwithstanding the use of lubricant the complainant experienced pain, the intrusion of a fully adult male penis entering her caused her to bleed from her vagina, pain during the intercourse and soreness for four to five days. These are consistent with EF being a virgin when the intercourse occurred. The injury, pain, soreness and loss of virginity all constitute aggravating features of this first offence. His use of deceit with an immature and apparently gullible girl by lying about his age to reduce the age gap and increase his chances of enticing her to intercourse also constitutes an aggravating feature of his criminality.

29. His taking advantage of her in circumstances where she has used alcohol in at least two counts is a further aggravation of the criminality I am dealing with overall in this offence. The offender’s denial of police access to premises in circumstances where they had come to rescue the complainant from him notwithstanding that he had the right to do so, nonetheless constitutes a feature of aggravation. See Form 1 item 3 of that offence; his humiliation of her by requiring her to hide in the boot of his car as they left the premises together with his concealing evidence from police I also regard as aggravating the criminality of the offence.

30. His having intercourse with the complainant in public places where there were prospects of her being discovered during the act of intercourse are matters that no doubt were thrilling for him but aggravate the criminality of the conduct nonetheless. That occurs in five of the six Form 1 charges. There is only one reported occasion on which it is said he has worn a condom. The proved absence of a condom would constitute a serious matter of aggravation. It would constitute a threat against public health. Who is to know what diseases would be conveyed by him to her in the absence of a condom. The condom worn in the first count is mentioned. The facts on each other occasion are silent. My own view is it is likely he did not wear a condom. Failure to offer the victim protection must constitute an aggravating feature that needs to be proved beyond a reasonable doubt. In these circumstances of this case, because in the first offence one was worn, I cannot be so satisfied. My own view is it was likely he was grooming her to taking him without the condom.

31. “Sexual intercourse” in the Crimes Act 1900 (NSW) takes a number of forms. Some of those forms are more intrusive and invasive than other forms. In the circumstances of this case I regard penile/vaginal intercourse as constituting the second most serious of the potential forms of sexual intercourse known to the Crimes Act, all other things being equal.

32. While I reviewed the criminality associated with all eight episodes of the sexual intercourse, I remind myself six of them are to be taken into account when I sentence for the first offence. It is important that I acknowledge I am not sentencing for all seven offences, only for the first offence, but taking into account the criminality of the other ones. The sentence I set cannot be beyond what is available for the first offence standing on its own. Nonetheless the effect of taking all six matters into account will drive upwards the sentence for the first offence.

33. The Chief Justice speaking for the Court of Criminal Appeal in a recent guideline judgment on the proper approach to Form 1 matters made clear the rationale for the increase in penalty. He said, the court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which an accused has engaged. The second is the community’s entitlement to extract retribution for serious offences, which are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. Attorney General’s application under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305.

34. I regard the criminality of the six offences such that I will be sentencing this offender towards the top of the range I regard as being available for the first offence standing on its own. The second offence is not incumbered as is the first. The criminality of this offence stands to be assessed on its own. Nonetheless there will be an accumulation between the second and first offence to comply with R v Pearce (1998) 194 CLR 610.

Victim Impact Statement

35. I have received a victim impact statement. The material contained in the statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement I recognise they are not those of a qualified expert. The victim impact statement is not to be taken into account until the offender has been convicted. For the purposes of the exercise I regard the offender - although I will formally do so shortly - I regard him as though convicted.

36. The victim impact statement comes from the primary victim of the first two offences. And I may, if I accept it as reliable, provide unsworn evidence as to the facts of the offences and their effect upon her. The function of statements such as this one is firstly to give victims the opportunity of being heard in sentencing proceedings by publicly identifying the impact of trauma visited on them by the actions of an offender. Secondly, it enables the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly, the victim impact statement contributes to an offender at least hearing first hand and perhaps gaining an insight into the impact his offending conduct has had upon the victim. And finally, it gives to the court some continuing reference of the impact crime has upon the ordinary men and women who are its victims.

37. The statement commences with her giving her name, which is not a name that is to be published, and she says:

“I am here today” - and she is here by virtue of her statement rather than I think in person - “to give my victim impact statement. I am eighteen years old now but at the time of the crime that Anthony James Barrie committed I was fifteen years old. I believe I am a victim due to the fact that Tony knew I was only fifteen at the time and he still wanted to have sex with me.

I did want to lose my virginity to someone due to personal reasons and I was willing to lose my virginity to Tony, that was before I found out that he was thirty-four at the time. He had told me he was only twenty-five. By the time I had found out his real age we had slept together many times.

At the time I hadn’t really cared because I thought I loved him. Thinking back now I am still hurt to think that I trusted him to take something special and in the end he broke that trust by not telling me how old he really was and I can never get my virginity back.

When I moved to Brisbane to live with dad, Tony and I were still together and I found out from TW that Tony had been ringing her and trying to meet up with her and trying to have sex with her.”

If I can just interpolate, I have already exposed the unreality that the girl was experiencing because he was already contacting TW eleven days before she left.

“I felt very betrayed and hurt, every night I cried myself to sleep. I had accused Tony of cheating on me but he had denied it. I stopped believing TW until I heard a voice recording of him talking to her.”

And that may well explain the voice recording I earlier referred to. That night, that is the night she heard the voice recording, she had some alcohol and marijuana and cut her wrists.

“I still have the marks. I felt so betrayed by Tony, I trusted him. After that night I was doing pot every day and night. For weeks I couldn’t concentrate at school and ended up dropping out.”

The understatement, “I don’t think it’s right what Tony did to me. I hope he gets some help to stop from happening to any other young girls.”

38. I turn now to the subjective matters. As I said at the outset I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it. Each offender coming before the court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the court some explanation and insight into the commission of these offences by this offender or some reason why a more or a less sentencing outcome is appropriate.

39. The offender is a single man, childless, aged thirty-seven. Since October 2007 he has been in continuous custody. He is the elder of two boys, his father works as a printer in Newcastle, his mother a sale consultant at a local shopping centre. The relationship with his father is distant, but otherwise the family environment during his upbringing was stable. He was a “loner” during childhood both at school and likely at home. The offender is close to his mother, who is caring and supportive and he regards her as “awesome”. The brother is also supportive. The offender was forced to leave home at eighteen when he was incarcerated for eight years; I will come to those circumstances shortly. There was a long term relationship between he and a mature lady between 2001 and 2005.

40. During his community based schooling he said he experienced severe bullying at school from the age of nine. Nonetheless he claims to have achieved a reasonable standard. He focused on studies and his life was books. His behavioural problems commenced during high school years. He was suspended in Year 10 for truancy. He did, however, obtain a school certificate although he was on “sick leave” during the last period so that he could sit the exams. He was advised not to continue after Year 10, not, I suspect, because of his intelligence but rather because of behavioural issues.

41. In custody he completed courses in anger management, stress management, landscaping, computers and hospitality. On release from custody in 1997 he enrolled in TAFE doing vocational courses and volunteered as the TAFE newspaper editor during 1998. The courses were not completed, although as I understand it he intends to resume them or some of them during his time in incarceration for these matters. He has held a number of unskilled positions but never for longer than six months, although I thought I saw a twelve month period somewhere in there.

42. Around the time of this incarceration he held two part time positions, that of bartending and working at a newsagency selling and delivering. He has been terminated from employment for occasions of drinking at work, rudeness and aggressiveness towards work colleagues.

43. He presents in court as somewhat overweight. He told Kate Seilder, a psychologist retained by the defence, he enjoyed good health. There is an absence of medical events, major illness or serious injury. There is nothing in his general health profile suggesting he should have any difficulties with rehabilitation.

44. Since childhood years the offender has had trouble connecting with others on an emotional or intimate level. He found his father difficult to communicate or connect with. He has used prostitutes for sexual gratification rather than seeking intimacy with a sexual partner. He has worked as security in the sex industry, which is more about sexual prowess than connection with others. There were other early signs his sexual development was not pursuing normal paths. At fourteen he was breaking into homes seeking out women’s lingerie for masturbatory purposes. He would wear women’s underwear for sexual gratification. He viewed pornography in substantial quantities, he was into voyeurism in his adolescent years, he used “glory holes” for anonymous oral sex from males, he was into casual sex and one night stands with women. He used prostitutes and sought impersonal sex with women.

45. He has experimented with bondage and sadomasochism. So much of his sexual history is about sexual climax without connection, commitment or communication. For him sex is not about social or personal connection, it is about the experience of the orgasm. At the time of his arrest he was often spending several hours daily accessing a range of pornography. This included; child pornography, bestiality, “snuff” movies, homosexual material, but particularly young adult women engaging in lesbian or heterosexual sex.

46. He claims a sexual interest in women over a wide range from older adults to post pubertal adolescents. Despite these charges and his past practices he claims not to endorse paedophilic sexual interests or homosexual attraction. Kate Seilder opined:

“Mr Barrie demonstrated a satisfactory understanding of consensual and sexual boundaries and he did not endorse attitudes consistent with sexual abuse. Mr Barrie also demonstrated some albeit limited?, understanding of victim impact, consistent with the fact that he has not engaged in offence specific treatment to date.

In summary Mr Barrie’s psychosexual history is indicative of someone who is socially isolated and awkward, emotionally needy, with poor intimacy skills and who suffers from intense emotional loneliness. His sexual interests and experiences are to some extent indiscriminate and there is strong flavour of sexual curiosity and experimentation in his history.”

While there is no evidence of hypo-sexuality per se, Mr Barrie appears to have a high sex drive, although it is suggested that this is associated with the use of sex to meet emotional needs. In other words Mr Barrie appears to use sex as a means of emotional coping, providing him perceived emotional connections and intimacy, which he craves.

There is evidence of Mr Barrie having engaged in deviant sexual behaviours, including; transvestism and voyeurism. And this has brought him into contact with the law on a number of occasions. Moreover Mr Barrie’s sexual history has involved violent and coercive sex, which has resulted in criminal charges being used.

47. I should indicate the source of that is Dr Seilder 29 June 2008 paras 28 and 29. From my remarks thus far it would be seen that I do not agree entirely with Dr Seilder’s conclusion. Further material of Dr Seilder that is worth citing, came as a consequence of a letter from defence solicitors to Dr Seilder, para 6, terms of reference:

“You requested that the following terms of references be addressed specifically in this report;

· Is there any significance in the fact that whilst Mr Barrie has committed further offences, he is no longer acting violently to obtain sexual gratification?

This is certainly positive, however, the reasons for this are somewhat unclear. For example, it may be that Mr Barrie has had regular access to sex through prostitutes and other casual acquaintances, that he has needed less violence to meet his needs.

Moreover it is unclear how much violence Mr Barrie has engaged in with his consensual sexual encounters. The fact remains that Mr Barrie has continued to engaged in inappropriate sexual behaviour that is indicative of problematic intimacy and social skills.

Moreover some of the pornography he has accessed has been of a violent nature. Therefore although positive I would not be confident that Mr Barrie would not escalate the violence in his sexual behaviour if situational environment or psychological factors encouraged.

· Is there any significance in the fact that between 1998 and 2006 there was no offending then - “than” I think it should be - the more“‘passive’” offence of possessing child pornography?

Again this is positive and highlights that with age, maturity and reflection Mr Barrie has gained skills in controlling his behaviour and regulating his psychosexual state. However, as stated above his sexual functioning and social relationships are still disturbed and many of his risk factors remained unaddressed.

· Do you still recommend CUBIT program?

Mr Barrie requires intensive and offence focused treatment in order to address his criminogenic needs and to ameliorate his risk to the community.

I also note that Mr Barrie himself has expressed a motivation for change and he requires the need for treatment. Therefore I will still recommend Mr Barrie participate in the CUBIT program in order to address his sexual offending behaviour.

· Would the recommendation of Dr Chenowith still be applicable?

It is appropriate that Mr Barrie access anti-androgen medication in order to reduce his sex drive. This in and of itself will not treat sexual offending behaviour, however, it will reduce the intense sexual drive that Mr Barrie may experience, which in turn will make it easier for him to engage in treatment and utilise the skills that he gains through this process.”

When before the court in May 1990 a report was tendered from Dr Bruce Chenowith, psychiatrist, that may establish the psychosexual profile I have been referring to is long established and of concern:

“He does not suffer from any mental illness. In all ways he is competent and responsible for his actions. He does, however, suffer from a personality disorders with features of low impulse control, particularly in the arena of his sexual desires, an inability to learn from past experiences and a need for fairly instance gratification where this is possible.

· Personality. Specifically compliant, polite and courteous he is basically a loner with a great fear of intimacy and close contact. Although he craves affection and a social network, he is quite unable to sustain the demands of such a relationship. He has no social skills with regards to the opposite sex and finds even talking with them very hard. It is an act of great courage for him to talk to a girl despite the fact that he has been in the Baptist Church Youth Group for two years meeting twice a week.”

I should interpolate here that this report was written when he was eighteen years old.

“He has never had a girlfriend and yet has taken enormous risks in obtaining sexual gratification from women’s underwear in houses he has broken into. It appears in sexual matters he prefers generally a voyeuristic solitary method of gratification through peeping and an underwear fetish.

I have never had any confidence that he could acquire a sensitivity to the feelings of women he may shock, offend or distress. Nor do I think that the consequences of his actions are at all a concern to him as a deterrent.

Unfortunately as time has gone by his trend is to physically attack individuals rather than move to solitary gratification of his needs. In other words he is becoming more of a threat to individual women, not less. He certainly does not appear to learn from previous experience but continues to act in a planned, premeditated way.

The other possibility that I am concerned with is that instead of doing violence he may be doing underage girls.”

Dr Chenowith’s remarks it must be remembered relate to events pre May 1990. While the violence may now be satisfied by his selection of Internet pornography there still appears to be a residual interest in violence. Presumably he is still being sexually stimulated in some ways or other by the violence he sees in the suspended reality of the Internet pornography.

48. The offender’s evidence was that he stopped himself from offending for some more than ten years. For the last eight to ten years he has tried to better himself doing programs especially inside gaol.

Alcohol and Drugs

49. The offender first consumed alcohol socially with his father when aged thirteen. After release from gaol it would appear his drinking was within modest bounds. After the breakdown of his relationship in 2005 he returned to the parents’ home. He claims depression as a result of this breakdown. His consumption of alcohol increased between 2005 and his arrest. He would drink to intoxication initially each weekend. Before his arrest though he was drinking to the point of intoxication daily. There is evidence he has been dismissed from employment because of drinking at work. These are all clear signs his alcohol raises issues needing attention.

Character and Criminal History

50. The offender is a repeat offender. But given the fifteen year gap between offending it may be premature to describe him as a recidivist offender. He is a single man, unskilled in the workplace but on occasions willing to work. He appears to have led a life in recent times obsessed with sexual gratification. It would appear other interests have been sacrificed to this cause.

51. His first court appearance appears to have been in 1987 before the Children's Court for assault. Since then he has answered to the court for; threaten to inflict actual bodily harm, act of indecency, entering enclosed lands, break, enter and steal (1988), escape custody, stealing (1989), break, enter and steal, break enter with intent to commit felony, malicious inflict actual bodily harm with intent to have sexual intercourse, common assault (1990) and use carriage service to access pornography (2007). As I said earlier this last conviction is only of relevance on the question of contrition and rehabilitation. I have also mentioned that for the 1990 offences he received an effective minimum term of seven or eight years.

Attitude to the Offence

52. The offender claims regret. The professionals who have seen him say his attitude is appropriate. My own view may be thought to be more cynical. It may be he is gaining some insight, but like the professionals I wonder if his all consuming interest in sexual gratification allows room for understanding the abuse of power and legacy of regret and damage he has left behind, particularly in the case of EF.

Rehabilitation Prospects

53. They are possibly better than they have been in the past. He has expressed a willingness to be involved in the CUBIT program; that program has a reasonably high success rate. I notice in the past he has agreed to participate in a prison based program notwithstanding his evidence to the contrary, but was placed out of that group and did not complete the course after some six weeks.

54. The sentence he is receiving leaves the question of parole to the Parole Council. Parole will not be automatic. He will need to persuade the parole authorities he is safe to release to the community. His chances of doing it without completing CUBIT must be virtually slim if not nonexistent. His failure to cooperate in the program will see him excluded from it. The choices are now for him to make rather than the Parole Board. He has good family support, he has good health. While he has an alcohol problem there are courses he can attend to address that. Thus far his conduct in custody is without blemish. On the other hand there are, as I have noted throughout these remarks, real risks of recidivism.

Custody

55. He has been in custody on my score since 18 October 2007. There is evidence his custody is not mainstream. His custody is PRLA, which I take to be some level of protective custody with limited association. Placed in mainstream gaol because of his offences, he would be a prime candidate for assault. In his present custody there are limited programs for him, limited access to the library, only weekly access to the oval and the gymnasium. He says that he is anxious in this custody. Some allowance needs to be made for these matters but in respect of the first offence and the criminality to be considered there the allowance cannot be great, in respect of the other offences the allowance may be more weighted.

Plea of Guilty

56. The plea of guilty appears to have been entered on arraignment or shortly after arraignment. The plea to these matters was not early entered. But I have indicated that I will give a discount of fifteen per cent in respect of the pleas to the State matters. I have also taken into account the assistance given to the administration of justice to the Commonwealth in fixing the sentence that I fix.

The State matters

57. The maximum penalty for those is ten years for each offence. The Commonwealth offence: the maximum for that, that is the use of the carriage service, is fifteen years. In respect of the State matters I find special circumstances based upon his need to do the CUBIT program and the accumulation of sentences as I have determined. I intend to sentence for the Commonwealth matter first. I should indicate that matters such as deterrence I have given weight to as will be seen in the sentence that I have set.

Formal Sentencing

58. Would you stand up Mr Barrie? Mr Barrie for the offence that you between 1 March 2006 and 31 May 2006 at Eleebana in the State of New South Wales being yourself over the age of eighteen years used a carriage service to transmit a communication to one TW with the intention of procuring her to engage in sexual activity with you at a time when you believed her to be under the age of sixteen years, you are convicted. In respect of that offence you are sentenced to four and a half years imprisonment to date from 18 October 2007 and to expire on 17 April 2012. I set a non-parole period for that offence of two and a half years to expire on 17 April 2010.

59. I am now sentencing you for the second matter. That you between 26 February and 16 April at Newcastle in the State of New South Wales had sexual intercourse with EF, a child then above the age of fourteen years and under the age sixteen years, for that matter you will be sentenced. But for the plea of guilty I would have set a sentence of four years imprisonment. When that is discounted it becomes a sentence of three years and five months imprisonment. I set a minimum term of two years to commence on 17 April 2009 and to expire on 16 April 2011. I set a balance of term of one year and five months to expire on 16 September 2012.

60. I come now to the first offence. I convict you that you on 26 February at Mount Sugarloaf in the State of New South Wales had sexual intercourse with EF, a child then aged above fourteen years but under sixteen years. I take into account the six matters on the Form 1. For that offence but for your plea of guilty I would have set a sentence of six years imprisonment. That sentence is discounted by fifteen per cent and on my calculation that becomes ten months discount, which makes it a sentence of five years and two months. I find special circumstances for the reason I have given. The minimum term will be one of two and a half years to date from 18 October 2010 and to expire on 17 April 2013. The balance of term of two years and eight months will expire on 17 December 2015..

61. The effect of the sentences that I am seeking to impose, just to make it clear for him, is five and a half years minimum term with a two year eight month additional term.

62. I recommend that he be accepted into the CUBIT program.