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District Court 27 March 2009

R v Barrie, Anthony

[2009] NSWDC 96

Sexual offences
CRIMINAL LAW SENTENCING PREDATORY BEHAVIOUR WORRYING PSYCHO SEXUAL PROFILE.

Citation: R v Barrie, Anthony [2009] NSWDC 96
Court: District Court of New South Wales
Date: 27 March 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a man aged 34 at the time of the offending, made contact online with a 15-year-old girl (referred to as EF) through internet cafes in the Newcastle area. He deceived her about his age, claiming to be 25, and initiated a sexual relationship with her that began in February 2006 and involved eight occasions of sexual intercourse at various locations around Newcastle, including a museum, a school, and public toilets.

While EF was temporarily absent in Brisbane, the offender used the internet to contact her 14-year-old friend TW with the intention of procuring her to engage in sexual activity. EF later ceased contact with him and reported the offending to police.

The offender faced an indictment containing two counts of sexual intercourse with a child aged between 14 and 16 years (relating to EF), and one Commonwealth charge of using a carriage service to transmit a communication intending to procure a person believed to be under 16 years of age (relating to TW). Six further occasions of sexual intercourse with EF were placed on a Form 1 schedule, meaning they were taken into account in sentencing without resulting in separate convictions.

  • What was the appropriate assessment of the objective criminality of each offence, having regard to the nature of the conduct and the vulnerability of the victims?
  • What weight should be given to subjective factors, including the offender's guilty plea, his criminal history (which included prior imprisonment for sexual offending), and his psycho-sexual profile?
  • Whether special circumstances existed to justify adjusting the standard ratio between minimum (non-parole) and additional terms of imprisonment.
  • How the sentences for Commonwealth and State offences should be structured and how totality should be applied across multiple charges, including Form 1 matters.
  • What discount, if any, was warranted for the guilty pleas, and how deterrence should be reflected in the overall sentencing exercise.

Decision

The court assessed the objective criminality as serious. The offending against EF was predatory in nature: the offender deliberately misrepresented his age, targeted a significantly younger victim, and engaged in repeated sexual conduct with her over several months in a variety of locations. The court noted that EF experienced physical pain on the first occasion and that the relationship was built on deception from the outset, as confirmed by the offender's own words when he asked EF whether she would have met him had she known his real age.

The offender's subjective circumstances significantly aggravated the overall picture. He had a prior criminal record that included imprisonment for sexual offending, and the sentencing judge described his psycho-sexual profile as "worrying." These factors weighed heavily against the mitigating effect of his guilty plea, which nonetheless attracted a sentencing discount.

On the Commonwealth charge relating to TW, the court imposed a sentence of four and a half years imprisonment with a non-parole period of two and a half years. On the two State counts, sentences of three years and five months and five years and two months (after guilty plea discounts) were imposed respectively, with special circumstances found on the second count. The sentences were structured to run partially cumulatively, producing a total effective head sentence of five and a half years with an additional term of two years and eight months.

The court recommended that the offender be accepted into the CUBIT program, a specialist rehabilitation program for sex offenders within the NSW correctional system.

Orders Made

  • Commonwealth charge (use of carriage service to procure TW): Convicted; sentenced to 4 years and 6 months imprisonment commencing 18 October 2007, with a non-parole period of 2 years and 6 months expiring 17 April 2010.
  • First State count (sexual intercourse with EF, 26 February 2006, Mount Sugarloaf), with six Form 1 matters taken into account: Convicted; minimum term of 2 years and 6 months commencing 18 October 2010, expiring 17 April 2013; balance of term 2 years and 8 months expiring 17 December 2015.
  • Second State count (sexual intercourse with EF, March 2006): Convicted; minimum term of 2 years commencing 17 April 2009, expiring 16 April 2011; balance of term 1 year and 5 months expiring 16 September 2012.
  • Overall effective sentence: Head sentence (minimum term) of 5 years and 6 months; additional term of 2 years and 8 months.
  • Recommendation for acceptance into the CUBIT program.

Key Takeaways

  • The District Court treated the offender's deliberate deception about his age as a significant aggravating feature, reflecting the calculated and predatory nature of the conduct.
  • A prior record of sexual offending, including prior imprisonment, substantially limits the mitigating weight available to an offender at sentencing for subsequent sexual offences against children.
  • Where multiple offences span both Commonwealth and State jurisdiction, the sentencing court must address the Commonwealth statutory checklist under section 16A of the Crimes Act 1914 (Cth) while also resolving State-law questions such as special circumstances, Form 1 matters, and the application of the totality principle.
  • Special circumstances were found in this case, permitting an extended additional (supervisory) term beyond the standard statutory ratio, which the court linked to the offender's rehabilitative needs.
  • A guilty plea attracted a sentencing discount, but the court calibrated that discount carefully against the serious objective and subjective features of the case, including the disturbing psycho-sexual profile identified in the evidence before it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including section 16A
- Crimes Act 1900 (NSW)

Cases:
- R v Gladue [1999] 1 SCR 688
- 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
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305
- R v Pearce (1998) 194 CLR 610