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District Court 2 February 2023

R v Barnes

[2023] NSWDC 33

Sexual offences

Citation: R v Barnes [2023] NSWDC 33
Court: District Court of New South Wales
Date: 2 February 2023
Judge: Montgomery DCJ

Background

The offender, a man in his mid-thirties, owned and operated a martial arts gymnasium in Sydney where he taught Taekwondo and Jiu Jitsu to children. He was known to his students as "Master Chris." Both complainants, referred to by the pseudonyms AB and CD, were pupils in his classes.

Following a jury trial, the offender was convicted on five counts relating to two child victims. Counts 1 to 4 involved AB, a boy who attended classes four or five days a week from approximately age 9 to age 11. The offending against AB occurred on two separate occasions when the offender took AB to the bathroom, ostensibly to treat injuries sustained during training. Count 5 related to a separate incident involving CD on 26 October 2020.

The sentencing judgment required the court to establish the facts underpinning the offending, consistent with the jury's verdicts, and then to impose an appropriate sentence.

  • What factual findings were open to the sentencing court, given the jury's verdict of not guilty on the primary Count 4 (sexual intercourse involving penetration) but guilty on the statutory alternative of sexual touching?
  • What was the degree of culpability of the offender across the five offences?
  • What weight should be given to aggravating and mitigating factors, including the offender's position of trust and authority, prospects of rehabilitation, and the totality principle?
  • What was the appropriate aggregate sentence, including the non-parole period?

Decision

Fact-finding after jury verdicts

Montgomery DCJ applied the well-established principle that a sentencing judge must find facts consistent with the jury's verdicts, resolving any reasonable doubt in the offender's favour. The jury's acquittal on Count 4 (sexual intercourse) and conviction on the alternative count of sexual touching indicated that the jury did not accept, beyond reasonable doubt, evidence of penetration contained in AB's second child interview. The court accordingly relied on AB's first child interview of 12 January 2021, in which no penetration was described, as the factual basis for Counts 1 to 4.

Culpability and aggravating factors

The court found that the offending was opportunistic, arising from the offender's exploitation of his position of trust and authority as a martial arts instructor when attending to AB's injuries in the bathroom. Although the Crown did not press planning as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the defence conceded that the offender abused AB's trust. The environment of martial arts discipline, in which the offender held a position of authority over young children, was treated as a significant feature of the offending. The court noted that the offending progressed from what may initially have been legitimate coaching conversations about the child's growth and maturity.

Sentence and totality

The court imposed an aggregate sentence of 4 years and 3 months imprisonment, applying the totality principle across all five counts. The indicative sentences before aggregation were 8 months (Count 1), 14 months (Count 2), 21 months (Count 3), 18 months (Count 4 alternative), and 2 months (Count 5). The court varied the standard non-parole ratio under s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), setting a non-parole period of 3 years on account of the offender's genuine prospects of rehabilitation and the fact that this was his first period of full-time incarceration. The court noted unchallenged evidence that the offender had strong personal incentives to be law-abiding following release, relating to family hardship circumstances.

Orders Made

  • The offender is convicted.
  • Sentenced to a total term of imprisonment of 4 years and 3 months, with a non-parole period of 3 years.
  • Sentence commences 8 October 2022 and expires 7 January 2027.
  • Non-parole period expires 7 October 2025; eligible for parole consideration from 8 October 2025.
  • Directed to accept supervision and guidance of Community Corrective Services and obey all reasonable directions of that service.
  • Recommended for sex offender programs for which the offender is assessed as suitable.

Key Takeaways

  • A sentencing court's factual findings must be consistent with the jury's verdicts and resolved to the criminal standard; the acquittal of the offender on a charge of sexual intercourse involving penetration meant the court could not act on evidence of penetration when sentencing on the alternative sexual touching count.
  • Where a jury returns a not guilty verdict on a primary count but guilty on a statutory alternative, that verdict carries strong inferential weight about which elements of the evidence the jury rejected beyond reasonable doubt.
  • Abuse of a position of trust and authority over children, here a martial arts instructor exploiting injury-treatment situations, was a significant feature of culpability even where the Crown did not press planning as a formal aggravating factor.
  • The District Court applied the totality principle when imposing an aggregate sentence across five counts, with the final sentence representing a just and proportionate response to the overall criminal conduct rather than a mechanical accumulation of individual terms.
  • Under s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may depart from the standard non-parole ratio where genuine prospects of rehabilitation and a first experience of full-time custody are established on the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66DB(a), 66DE(1)(a), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2), 21A(3)(i), 21A(5A), 28, 44(2A), 53A

Cases
- Baines v R [2016] NSWCCA 132
- Bonwick v R [2010] NSWCCA 177
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- EG v R [2015] NSWCCA 21
- Hili v The Queen (2010) 253 CLR 58; [2010] HCA 45
- Katie Smith v R [2022] NSWCCA 88
- Peiris v R [2014] NSWCCA 58
- R v Allpass (1993) 72 A Crim R 561
- R v Fuller [2022] NSWCCA 203
- R v George Peterson (pseudonym) [2020] NSWDC 122
- R v Isaacs (1997) 41 NSWLR 374
- R v LL (pseudonym) [2022] NSWDC 208
- R v Martin (1981) 2 NSWLR 640
- R v NC [2020] NSWDC 547
- R v Neil Duncan [2022] NSWDC 543
- R v RB [2022] NSWCCA 142