DPP v Barnes [2007] VSCA 51

1 I invite Nettle JA to deliver the first judgment.

2 On 17 October 2006, the respondent, Bryan Barnes, pleaded guilty before a judge of the County Court at Melbourne to two counts of taking part in an act of sexual penetration with a resident of a residential facility, contrary to s 52 of the Crimes Act 1958. Following a plea in mitigation of penalty, on 31 October 2006 the judge sentenced the respondent to one year of imprisonment on each count, to be served concurrently, by way of an intensive correction order of 12 months' duration.

3 The Director of Public Prosecutions now appeals against the sentence, pursuant to s 567A of the Crimes Act 1958, on grounds that the individual sentences, the total effective sentence and the order that the sentence be served by way of intensive correction order have resulted in a sentence which is manifestly inadequate. In particular, the Director contends that the sentence failed to reflect the gravity of the offence generally, and in this case failed to give proper weight to the need for general deterrence, failed to give proper weight to the need for specific deterrence, and gave too much weight to factors going to mitigation and too little to the maximum penalty, the respondent's breach of trust and the effect of the offending on the victim and his family.

4 The facts of the matter appear in the judge's sentencing remarks and in the respondent's record of interview. The complainant was a young man of 22 years of age who had sustained a brain injury in November 2003 when hit by a motor car. As a result, he suffered moderate to severe deficits in memory, cognition, behaviour and emotions and had decreased movement on the right side of his body, necessitating the use of a wheelchair for at least some of the time. At the time of the offences he was living in a shared group home with two other people with similar disabilities.

5 The respondent was 43 years of age and for the last three months before the commission of the offences he had been employed at the facility on a casual basis as a carer. Prior to that he had had some 13 years' experience on and off as a carer, and he was close to completing a Certificate 4 in Disabilities by way of part-time traineeship through one of the Institutes of Technical and Further Education. His duties at the facility included assisting in administering medication, cooking, domestic duties, maintaining exercise routines for the residents and assisting the residents with showering, toilet and community access and rehabilitation.

6 On the night of 10 April 2006, the respondent was rostered on as the only carer for the night and therefore was alone with the three residents in the facility. The complainant was in his room watching pornographic DVDs on a laptop computer and, it is said, masturbating as he watched. Apparently the DVD malfunctioned several times and, on each occasion that it did, the respondent went into the room and rectified the problem, while the complainant for at least some of those times continued to masturbate. On the last of the occasions that the respondent went into the room to rectify the DVD, the respondent fellated the complainant until he ejaculated and then the victim fellated the respondent until the respondent ejaculated.

7 The next morning, the complainant complained to the supervisor of the facility and the police were called in. A VATE interview was conducted. The complainant proved a poor and unreliable historian because of his significant memory problems and there were significant inconsistencies between the versions of events he gave to the police and those which he had given to the supervisor of the facility. Nevertheless, the fundamentals were sufficient for the police to arrest the respondent and interview him under caution. The respondent said that he had been a practising homosexual since he was 19 years of age and he made admissions that he had engaged in the conduct alleged, that he recognised that he had breached his duty as a carer, and now recognised that he had broken the law in doing what he had done, and that after complaint was made he had resigned his position with the facility because he did not consider that he could any longer trust himself with the residents.

8 The maximum penalty for the offence which is committed by a worker at a facility who takes part in an act of sexual penetration with one of the residents is ten years' imprisonment.[1] It is the same as the maximum penalty for taking part in an act of sexual penetration with a 16 or 17-year-old child who is under the offender's care, supervision or authority.[2] In effect, in each case, the essence of the offence is a breach of trust constituted of taking unprincipled sexual advantage of the limited intellectual or emotional capacity of the victim. The offence of taking part in an act of sexual penetration with a resident of a residential facility is therefore a serious offence in the punishment of which denunciation and general and specific deterrence are likely to be the foremost considerations.

9 Plainly enough, the sentencing judge was mindful of the gravity of the offences. Her Honour referred to them as inherently serious because of the nature of the relationship between the offender and the victim, the vulnerability of the victim and the breach of trust involved in the commission of the offence. But her Honour thought it also to be significant that there were not present aggravating features such as acts of physical violence or the use of physical restraint or threats of actual violence, or indeed threats of any sort, and that the offending was spontaneous and opportunistic. As the judge put it:

"The sorts of aggravating features that are not present in your case are acts of physical violence or the use of physical restraint, nor are there any threats of actual violence or of any sort for that matter. I also take into account that your conduct was spontaneous and opportunistic. Nevertheless, principles of general deterrence, denunciation and just punishment are important sentencing considerations."

10 The Director suggests that the judge's observations reflect a misconception. Counsel for the Director submits that, if there had been aggravating features of the kind referred to by the judge, it is likely that they would have led to additional charges and more than likely to the laying of charges of sexual abuse of a more serious nature. So, in counsel's submission, the absence of such features is really beside the point for the purposes of assessing the gravity of the offences with which the respondent was charged. Counsel for the Director also submits that the judge appears to have been in error in assuming as well that all offences under s 52 involve a breach of the carer-cared relationship and thus in failing to comprehend that, because these offences did indeed breach that relationship, they were more serious examples of the offences than might be others committed by persons who were not carers.

11 Perhaps that appears to be so. But I am not persuaded that the judge did misconceive the effect of the section. Arguably it is correct to say that if there had been those aggravating features of which her Honour spoke they could have resulted in additional charges and in the commission of a sexual offence more serious than that with which the respondent was charged.[3] The point is also well made that if the activities in which the respondent engaged with the complainant had not been consensual they would have amounted to rape. But I do not take the judge to have suggested anything different to that. It appears to me that her Honour was simply making the point for the benefit of the respondent that while the respondent may not have done anything violent or threatening, he had still committed serious offences.

12 The Director next contends that, although the judge was reminded that the maximum penalty for the offence is ten years' imprisonment, and her Honour referred to the importance of principles of general deterrence, denunciation and just punishment, the ultimate sentence of only one year's intensive correction order simply does not reflect the gravity of the offences. In the Director's submission, it is difficult to see how a sentence that is only ten percent of the maximum carries with it any elements of curial denunciation or general deterrence; and, as counsel for the Director submitted, even if the individual sentences are within the range, the order for concurrency has produced a total effective sentence which is wholly disproportionate to the respondent's criminality.

13 In my view, there is more force in that submission. Although the respondent's offences were not amongst the most heinous examples of a worker taking part in an act of sexual penetration with a resident of a residential facility,[4] they were not at the bottom of the range either. Other things being equal, a sentence of only one year's duration implies that the judge perceived the offences as being towards the bottom end of the scale, which in my view they clearly were not, and furthermore it is difficult to see why at least some degree of cumulation was not warranted despite the close connection in point of time between the two offences. Plainly, it needs to be borne in mind that the respondent made full admissions, in effect at the first opportunity, and that he pleaded guilty, and, as the judge observed, that plea of guilty carried added weight because of the difficulties of proof which the Crown would otherwise have faced. As counsel for the Director fairly conceded, it is not at all improbable that there would have been no prosecution without those admissions. The judge found, too, that the respondent had accepted full responsibility for his actions, that he had no relevant prior convictions, and had demonstrated remorse which was true and sincere, and had already been punished to some extent by reason that he would probably never again be able to work as a carer. But even allowing for a substantial discount for the plea of guilty and for the other mitigatory considerations which her Honour mentioned, it seems to me that individual sentences of only one year on each count, with no cumulation, were extraordinarily lenient.

14 The Director also refers to evidence adduced on the plea that the respondent had a serious and long-standing drug and alcohol abuse history and indeed had smoked cannabis shortly before going to work on the night in question, which, because he knew it to have a disinhibiting effect, might be regarded as an additional aggravating circumstance.[5] It followed, in counsel's submission, that, accepting all of the matters which were urged in mitigation of penalty, specific deterrence was still a matter to be addressed in the sentencing synthesis, and yet neither the sentencing remarks nor the sentence imposed suggest that her Honour gave the need for specific deterrence any real consideration.

15 That submission is not as persuasive. The judge referred at length to the respondent's drug and alcohol abuse and to his current mental condition. Her Honour noted that the respondent had begun using cannabis in his mid-twenties and that for a period of four years in the past he had regularly used approximately one ounce over each ten-day period. While he said that his consumption had declined to approximately two to three grams over a six-month period, there was evidence that he had been using marijuana as self-medication for depression until his mid-thirties. The judge referred to the fact that the respondent had used amphetamines over the last three years on what he described as a social basis, (albeit worth approximately $100 per week); that he had sampled ecstasy, valium and on occasion methamphetamine, and that he was a binge drinker, although he believed himself to be "gaining control". The judge noted also that the respondent suffered from depression, which ran in his family, and from insomnia, social isolation, lethargy and suicidal ideation, and that he would be a vulnerable prisoner if incarcerated.

16 It is true that the judge did not refer in terms to the need for specific deterrence, but it seems to me that the judge would not have mentioned the matters just referred to unless her Honour took them into account in assessing the need for it. Logically, it is also implicit in the conditions of the intensive correction order which the judge imposed that her Honour considered that the interests of specific deterrence were likely to be better served by medication, counselling, treatment for drug and alcohol abuse and sex-offender therapy than by incarceration in protection.

17 The Director next contends, however, that even if there be no specific error in the judge's sentencing synthesis, the end result is still a sentence which does not reflect the gravity of the proven criminality of the case. Counsel for the Director submits that, when one has regard to the profound effects of offences of this kind on people who are housed in residential facilities and on those who place them there in the trust of others, the need for general deterrence is critical. To that may be added, he said, the sad and disturbing effects of the offences in this case on the victim and his mother, as revealed in her and her son's victim impact statements, particularly given that this was homosexual activity practised on someone of heterosexual orientation. Counsel argues on both bases that persons in the health-care community must be given to understand that the courts will not tolerate the abuse of vulnerable victims who are placed in their trust.

18 One of the problems which the Court faces in this case is a lack of specific evidence about the exact extent of the cognitive impairment which was suffered by the victim. If there were more evidence of that and, in particular, if it were apparent that the victim's impairment deprived him of the capacity meaningfully to judge the significance of the sorts of sexual activity in which he engaged, I consider that this would be a case where an immediate term of imprisonment would be inevitable. But even without evidence of that kind, in my view a sentence of only one year's intensive correction order falls short of the sort of denunciation and general deterrence which offences of this kind plainly warrant. Put aside for the moment the plea of guilty and the admissions which facilitated conviction, I consider that the nature and gravity of these offences called for a sentence of significantly more than one year's imprisonment on each count, with some degree of cumulation. No doubt, after taking into account the plea of guilty and admissions and the other matters mentioned in mitigation, such sentences should be very significantly reduced. Even so, the nature and gravity of the offending was still such, in my view, as to warrant a significant immediate term of imprisonment with a not insubstantial non-parole period.

19 There is, however, a further problem in that it is now six months since the respondent was sentenced, and from all that appears he has engaged conscientiously in the intensive correction order which was imposed upon him. What is more, although I regard the sentence as inadequate to the point that this Court might in other circumstances be warranted in intervening, after allowing for principles of double jeopardy as they apply to a Crown appeal I do not think that the sentence which might ultimately be imposed would be a great deal more than a total effective sentence of 12 months. Given then that it is now almost six months since the sentence was imposed, and consequently that the respondent is close to half way through the intensive correction order,[6] and, as the judge said, he would be a vulnerable prisoner if he were incarcerated, I consider that the imposition at this stage of an immediate term of imprisonment upon him would be harsh punishment indeed.[7] Despite, therefore, the inadequacy of the sentence as I perceive it, in my view this Court should choose in the exercise of its appellate discretion not to intervene.[8]

20 I would for those reasons dismiss the appeal.

21 The conduct of the respondent involved a serious breach of trust, involving a victim with considerable disabilities. Unfortunately, the Court had no material before it concerning the level of mental age, mental disability or cognitive disorder of the victim. I find myself in difficulty, therefore, in acceding to the submission of Mr McArdle for the Director that these victims are akin to children, have a child-like disposition, or are like naughty children, in a position of particular vulnerability. There is difficulty, therefore, in my view, in seeing the matter fall outside the range of the authorities relied on by Mr Tehan for the respondent.[9] It might be that in

future cases such information would be of relevance and assistance. In this instance I am constrained by the circumstances and the material before the Court.

22 Save for these remarks, I agree with the reasons stated by Nettle JA and I, too, would dismiss the appeal.

23 As the learned trial judge recognised, the respondent was convicted of offences involving a serious breach of trust. The respondent's conduct caused severe psychological harm to the victim and forced his mother to remove him from the residential facility in which he was living. People who have an intellectual disability, or an acquired brain injury, are vulnerable to sexual exploitation, because they usually have to depend on others to help them with ordinary daily activities.[10] The sentences which are imposed for offences designed to protect them against sexual exploitation by those who provide them with services or care must give considerable weight to denunciation of such conduct, general deterrence and specific deterrence. Normally such conduct would require the imposition of a significant term of imprisonment on the offender.

24 In this case, it is clear that the respondent reacted spontaneously to the temptation in which he was placed, and that he was immediately remorseful about what he had done. Because of the difficulties which the victim in this case is likely to have had in giving evidence at committal and trial, it is unlikely a conviction would have been obtained if the respondent had not pleaded guilty.[11]

25 Despite these mitigating factors, I agree with Nettle JA that the offences warranted imposition of an immediate term of imprisonment and there should have been some cumulation between the sentence imposed for each offence. However, having regard to the principle of double jeopardy which applies on a Crown appeal, I do not think that the Court should alter the sentence. The respondent has been performing community work, has received drug and alcohol counselling and is about to participate in a sexual offender treatment program. He has served almost six months of the twelve-months intensive correction order. In these circumstances, I would dismiss the appeal.

2. A certificate under s 15 of the Appeal Costs Act 1998 is granted to the respondent.

[1] Crimes Act 1958, s 52(1).

[2] Crimes Act 1958, s 48.

[3] R v Simoni (1981) 147 CLR 393 at 389; R v Newman and Turnbull [1997] 1 VR 146; R v King [2007] VSCA 38 at [7].

[4] Cf R v Wu [1999] VSCA 209; R v Dove [1999] VSCA 80.

[5] R v Walker, unrep, VSCA 31 May 1996 at 5-9, per Smith AJA; R v Groom [1999] 2 VR 150 at 164 [22]; cf R v Angelopoulos [2005] VSCA 258 at [35].

[6] We were told by counsel for the respondent that the respondent is performing community service working at a tip for five hours on each of two days each week and attending weekly for drug and alcohol counselling; that he has been cannabis free since the commission of the offences; that he is engaged in the work-for-the-dole programme and is shortly to begin a course of trades instruction in cabinet making; and that he has been assessed and found suitable to begin a sexual offenders programme of six months' duration, which is about to commence.

[7] DPP v Best (1998) 100 A Crim R 127 at 132-3; DPP v Fevaleaki [2006] VSCA 212 at [26], per Redlich JA

[8] R v Boxtel [1994] VicRp 54; [1994] 2 VR 98 at 104-5; cf DPP v Gany [2006] VSCA 148; (2006) 163 A Crim R 322.

[9] R v Wu [1999] VSCA 209; R v Dove [1999] VSCA 80.

[10] Victorian Law Reform Commission, Sexual Offence :Law and Procedure Final Report [2004] [6.03]

[11] Ibid [6.5]