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District Court 19 October 2018

R v BARBARIN

[2018] NSWDC 508

Sexual offencesAssault & violence
CRIMINAL LAW 25% DISCOUNT 5 COMPLAINANTS WHO WERE STRANGERS TOUCHING OUTSIDE OF CLOTHING ON BREASTS OFFENCES OF SHORT DURATION OPPORTUNISTIC

Citation: R v Barbarin [2018] NSWDC 508
Court: District Court of New South Wales
Date: 19 October 2018
Judge: Tupman DCJ

Background

The offender, a 47-year-old French citizen who had lived and worked in Australia since 1997, appeared for sentencing on five charges of indecent assault committed in the Eastern Suburbs of Sydney between April 2016 and February 2017. Each offence occurred in a public street or at the entrance to an apartment complex. The victims were all young women of Asian descent who were strangers to the offender.

The assaults involved either touching a victim's breast over her clothing or, in one instance, lifting a victim's skirt to expose her clothed buttocks. Each incident was of very short duration before the offender fled. The offender was arrested in November 2017, refused bail, and remained in custody. He pleaded guilty to all five charges in the Local Court on 29 March 2018 and was committed to the District Court for sentence.

The offender had no relevant prior convictions. He had a documented history of psychiatric illness, including bipolar disorder, which was not being appropriately treated at the time of the offending. Evidence was provided by family members in France, and a plan for ongoing psychiatric care was put before the Court.

  • What discount from sentence was appropriate to reflect the utilitarian value of the early guilty pleas?
  • What was the objective seriousness of the individual indecent assault offences?
  • Whether the s 5 threshold for imprisonment under the Crimes (Sentencing Procedure) Act 1999 was met, given the nature of each individual offence?
  • How should the sentences be structured across five separate offences involving separate victims, having regard to the principle of totality?
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio?

Decision

Tupman DCJ applied a 25% discount to each sentence to reflect the utilitarian value of the guilty pleas, consistent with the Court of Criminal Appeal's guideline judgment in R v Thomson and Houlton. The judge found the pleas were entered at the earliest available opportunity, given that the DNA evidence was not available until late November 2017 and the full brief had only recently been served before the pleas were entered in March 2018.

On objective seriousness, the judge characterised the offences as falling towards the bottom of the range for indecent assault, which is itself towards the lower end of sexual assault offences as a category. The assaults were of very short duration, opportunistic, and involved touching over clothing or lifting a skirt rather than any more serious physical contact. The judge accepted a joint submission from both the Crown and defence that the offences were towards the bottom of the range in objective seriousness.

Despite the relatively low objective seriousness of each individual offence, the judge found the s 5 threshold for full-time imprisonment was reached by reason of the overall criminality involved across five separate assaults on five separate strangers over an extended period. The judge weighed significant mitigating factors, including the absence of relevant priors, the offender's good work history, genuine remorse, strong personal references, the role of untreated psychiatric illness, and a low assessed risk of sexual offending recidivism.

On totality, the judge declined to make all sentences fully concurrent, given that five separate victims were involved over a lengthy period, but also declined to accumulate them fully. An aggregate sentence of three years was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, with special circumstances found to justify a non-parole period shorter than the standard ratio. The special circumstances included the offender's first time in custody, his prior good record, and the need for early community-based psychiatric treatment, ideally in conjunction with a return to France.

Orders Made

  • Aggregate sentence of 3 years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 17 November 2017 and expiring 16 November 2020.
  • Aggregate non-parole period of 18 months, commencing 17 November 2017 and expiring 16 May 2019.
  • Parole period of 19 months commencing 17 May 2019 and expiring 16 November 2020.
  • Release to parole directed at the expiration of the non-parole period, subject to the offender's deportation and immigration status.
  • Indicative sentence of 18 months recorded for each of the five individual offences (sequences 2 to 6).

Key Takeaways

  • The District Court confirmed that a 25% discount for guilty plea utilitarian value applies where a plea is entered at the earliest available opportunity, even where that opportunity arises some months after arrest due to the timing of evidence becoming available and brief service.
  • A series of individually low-seriousness indecent assaults can collectively satisfy the s 5 threshold for full-time imprisonment where the overall pattern of offending against multiple strangers over an extended period reflects sufficient cumulative criminality.
  • Untreated psychiatric illness at the time of offending, combined with evidence of a concrete post-release treatment plan, can carry significant mitigating weight in the sentencing exercise.
  • Special circumstances justifying a reduced non-parole period ratio were established on the basis of the offender's first period of custody, prior good record, and the rehabilitative need for prompt access to community psychiatric treatment.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence allows a court to account for totality without fully accumulating or fully concurring individual terms where offences share a common character but involve separate victims over a protracted period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61L (indecent assault, maximum 5 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for imprisonment), s 30, s 53A (aggregate sentencing)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383 (Court of Criminal Appeal guideline judgment on guilty plea discounts)