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District Court 9 April 2020

R v Barake

[2020] NSWDC 937

Sexual offences
SENTENCING STATE AND COMMONWEALTH OFFENCES GROOMING INCITE CHILD TO COMMIT ACT OF INDECENCY POSSESS CHILD ABUSE MATERIAL

Citation: R v Barake [2020] NSWDC 937
Court: District Court of New South Wales
Date: 9 April 2020
Judge(s): Hoy SC DCJ (sentence); trial conducted before Maiden SC DCJ

Background

The offender was convicted by jury on 12 March 2019 following a three-week trial. The convictions related to using a carriage service to groom children, inciting children under 16 to commit acts of indecency, sending indecent material to a child via a carriage service, and possessing child abuse material. The offences spanned both Commonwealth and New South Wales legislation.

The sentencing proceedings were significantly delayed, commencing before the trial judge and ultimately transferring to Hoy SC DCJ after the trial judge left the court. Between the jury verdicts in March 2019 and the eventual sentencing in April 2020, the matter was adjourned on multiple occasions for reasons including the unavailability of a Sentencing Assessment Report and emerging questions about the offender's mental health.

At the sentence hearing, the offender gave evidence in which he attributed his offending to alleged interference by "greys," described as alien-like half-human creatures. This explanation had not been raised at trial. The sentencing judge noted that these claims were consistent with psychological and Sentencing Assessment reports describing delusional thinking, possible schizophrenia, depression, and anxiety. The unusual explanation prompted the court to obtain an independent psychiatric assessment from Justice Health and Forensic Mental Health Network, which raised a possible issue of fitness.

  • Whether a sentencing court has jurisdiction to conduct a fitness-to-plead inquiry after a jury has returned guilty verdicts
  • How the offender's diagnosed or possible mental health conditions (including schizophrenia, depression, and delusional thinking) should be taken into account at sentence
  • The appropriate sentences for multiple child sexual offences under both Commonwealth and State legislation, including the application of totality and concurrence principles

Decision

On the fitness-to-plead question, the court held that no jurisdiction existed to conduct a fitness inquiry after the jury's guilty verdicts. Both parties agreed with this position, relying on the NSW Court of Criminal Appeal's decision in R v RTI (2003) 58 NSWLR 438, which rejected a post-verdict but pre-sentence fitness hearing. That approach was confirmed more recently by the NSW Court of Appeal in Kostov v Ypol Pty Limited [2018] NSWCA 306. The sentencing court accordingly proceeded to sentence without conducting a fitness inquiry.

The offender's mental health nonetheless remained relevant to the sentencing exercise as a mitigating factor. Multiple psychological and psychiatric reports were before the court, reflecting diagnoses including schizophrenia, depression, and anxiety. The court noted that these conditions were to be weighed in the overall sentencing assessment, including in considering the offender's moral culpability and his prospects of rehabilitation.

After applying the relevant sentencing principles, including totality, concurrence, and the principle that the worst cases attract the maximum penalty, the court imposed an aggregate sentence of imprisonment. The overall effective head sentence ran from 27 January 2019 to 26 January 2025 (six years), with an effective non-parole period of four years expiring 26 January 2023. The court recommended that the Corrective Services Commission facilitate access to mental health treatment, sexual offending programmes, and vocational and educational programmes while the offender remained in custody.

Orders Made

The full sentencing orders as reproduced in the provided text are not entirely set out in the extract. However, the following key outcomes are recorded:

  • The offender was convicted on Counts 1, 2, and 4 (use of carriage service to groom a child, contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth), maximum 12 years)
  • Convicted on Counts 3 and 5 (incite child under 16 to commit act of indecency, contrary to s 61N(1) of the Crimes Act 1900 (NSW), maximum 2 years)
  • Convicted on Count 6 (use of carriage service to send indecent material to a child, contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth), maximum 7 years)
  • Convicted on Counts 7 and 8 (possess child abuse material, contrary to s 91A(2) of the Crimes Act 1900 (NSW), maximum 10 years)
  • Overall effective head sentence: 6 years imprisonment, commencing 27 January 2019 and expiring 26 January 2025
  • Overall effective non-parole period: 4 years, commencing 27 January 2019 and expiring 26 January 2023
  • The court recommended that Corrective Services Commission facilitate: mental health treatment (including medication for schizophrenia, depression, and anxiety); participation in sexual offending treatment programmes, including programmes designed for offenders who deny their offending; and access to educational, vocational, and work-related skills programmes
  • Non-publication orders were confirmed in respect of the identity of complainants, victims, and other young persons referred to in the judgment

Key Takeaways

  • Under R v RTI (2003) 58 NSWLR 438, confirmed in Kostov v Ypol Pty Limited [2018] NSWCA 306, a sentencing court in New South Wales has no jurisdiction to conduct a fitness-to-plead inquiry after a jury has returned guilty verdicts. The guilty verdicts themselves foreclose that inquiry.

  • A convicted offender's mental health conditions, even where they raise possible fitness concerns that cannot be explored post-conviction, remain a legitimate consideration in the sentencing exercise, including in assessing moral culpability and prospects of rehabilitation.

  • Where a convicted offender raises a new explanation for offending at the sentencing hearing that was not advanced at trial, the sentencing court must weigh that evidence carefully in context. Here, the court took the delusional explanation into account alongside the medical reports rather than treating it as a basis for reopening questions of guilt.

  • The District Court applied established principles of totality and concurrence when structuring sentences across multiple Commonwealth and State charges arising from the same course of conduct, reflecting the approach required by Hili v R (2010) 242 CLR 520 and R v Elias (2013) 248 CLR 483.

  • Significant sentencing delay, even where attributable to institutional rather than offender-caused factors, was acknowledged by the court as warranting an apology to all parties, though the judgment does not indicate that delay alone resulted in a sentencing reduction.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.27(1), 474.27A(1)
- Crimes Act 1900 (NSW), ss 61N(1), 91A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases:
- R v RTI (2003) 58 NSWLR 438
- Kostov v Ypol Pty Limited [2018] NSWCA 306
- R v Kent NSWCCA (unrep. 8 October 1998)
- Hili v R (2010) 242 CLR 520
- R v Elias (2013) 248 CLR 483
- Power v R (1974) 131 CLR 623
- DPP (Commonwealth) v Swingler [2017] VSCA 305
- Minehan v R [2010] NSWCCA 140
- R v De Leeuw [2015] NSWCCA 183
- R v Melham [2011] NSWCCA 121
- R v Cross [2012] NSWCCA 114
- R v SVR [2012] NSWCCA 233
- Martin v R [2014]