R v Barker

POLICE PURSUIT, NOT STOP, DRIVE DANGEROUSLY:

On the attendance of police and being requested to stop while assaulting his partner, the offender then attempted to decamp by picking up a bicycle and eventually getting into the silver Nissan sedan and locking the doors, continuing to ignore police commands to exit the vehicle before then driving away in such a fashion that the officer's right leg was inadvertently struck. In his desperation to evade arrest, he then drove the car back and forth, colliding with a stationary Land Rover and causing damage to the front driver's side bumper. He then further reversed into the police car, causing significant damage to it, at which point, the police pursuit was called off.
Although the police pursuit was only over a relatively short distance within the Redfern suburb, it is accepted that it is a well‑populated area, and that the pursuit occurred at a time shortly after 4.35pm, when it could be expected that many members of the community including children would be using the roads and footpaths. He drove on streets which are, to my knowledge, major routes of traffic both into and out of the CBD, and at 4.35pm they are always well‑occupied by pedestrians and particularly motor vehicles. The element relied on as the dangerous driving was driving on the incorrect side of the road. I find that that falls at the lower end of seriousness for offences of this type, particularly as the police pursuit was called off very quickly because of the high level of danger.
As to the driving in a manner dangerous, the offender was driving at a high speed before crashing into a street sign and then travelling the wrong way down a one‑way street. In my view, this is a serious incident of driving in a manner dangerous, particularly as it was at a time when the one‑way street was highly likely to have significant traffic flowing in the proper direction, although the facts are silent as to that fact.
Having dealt with the objective seriousness of each of the offences, it is relevant to note that there is a statutory aggravating factor in relation to this offending. At the time of the aggravated break, enter and steal in company, the offender was then on conditional liberty, being parole in respect of a number of offences, being robbery armed with an offensive weapon, robbery in company, robbery in company causing wounding/grievous bodily harm, robbery and aggravated robbery, in respect of which he had been sentenced to an aggregate term of seven years and six months' imprisonment with a non‑parole period of five years commencing on 11 June 2015 and ending on 10 December 2022. The non‑parole period had expired on 10 June 2020, some five months before the commission of the current offence. He had been released on parole on 10 June 2020.
Exhibit 1 contains relevant documentation in relation to the revocation of his parole. It is clear from that documentation that on 10 November 2020, a breach report had been prepared for consideration of revocation of parole. That report notes that although his parole included a provision that he report to a Community Corrections officer at times and places as directed, that he had failed to report on some six consecutive occasions, and in addition, while he was required to comply with all reasonable directions from Community Corrections officers about the place where he would live, numerous attempts had been made to contact him, including by telephone and home visits at the premises that had been approved, without success. He had also failed to respond to voice messages left for him or calling cards left at the place he was supposed to be accommodated at. The report indicates: "Mr Barker's non‑compliance and total disregard to his parole order is of serious concern to Community Corrections. Perusal of Community Corrections records highlights a history of non‑compliance in regard to his supervision, which on many occasions has resulted in re‑offending. Mr Barker's current whereabouts are unknown, and it is considered that risks to the community are heightened."
It was recommended that his parole be revoked.
On 25 November 2020 his parole was revoked as of that date. The commission of the offences on 28 and 29 November 2020 were in circumstances where he had not yet been brought back or dealt with in relation to the revocation of parole. So, he was, in effect, still on a form of conditional liberty, his parole having been revoked, but he not having been located and arrested.

SUBJECTIVE MATTERS:

The offender at the time of the offending was 40 years of age; he is now some 42 years of age. In respect of subjective matters before the Court, there is the following: as already referred to, a number of reports from the State Parole Authority as to his breaches of parole and revocation of parole, and a Balance of Parole Report dated 17 September 21, and a number of other documents I will not refer to specifically in respect of that. His criminal history and a NSW Department of Corrective Services Convictions, Sentence and Appeals Report.
Tendered on his behalf, a psychological report under the hand of Bradley Jones dated 27 January 2022, a letter from the offender, undated but being part of Exhibit B1, and the offender's oral evidence on sentence.
Subjective matters are drawn from that material.
The offender is an Indigenous person, one of two children born of his parents' union; his sibling of that union is a sister. He has a further six or seven half‑siblings from his father's later relationship, and a further six half‑siblings from his mother's later relationship. His half‑siblings range in age from 28 to 46, and his sister is currently aged approximately 39. He refers to always having had a good relationship with his sister. He lived most of his childhood with his father and half‑siblings, although he also lived from time‑to‑time with his mother and his half‑siblings through her. He claims to have maintained good relationships with all his siblings throughout his life, speaking with them regularly. He was born in Kempsey and then raised in Minto and Redfern. His parents separated when he was an infant, and he met his mother for the first time when he was approximately ten years of age. He has had an ongoing but on‑and‑off relationship with her in the intervening years.
He also had a step‑mother who he grew up believing to be his biological mother and he maintains a close relationship with her and describes her as "loving" and "supportive". His father passed on in 2014 at the age of 66, and he reported a relatively good relationship with his father throughout his life, describing him as a fair disciplinarian. His father is said to have been actively engaged in his life and they mutually enjoyed going to football games and fishing. He also described his father and step‑mother as sharing a relatively good relationship and ensuring that the family was always cared for. The psychologist states that he indicated that he never witnessed any conflict between them, and although they separated when he was aged approximately 17; they remained relatively friendly thereafter.
Although the psychological report contained nothing in relation to violence between his father and his step‑mother, in his oral evidence he said that his step‑mother and his father had a relationship in which he had observed his father to hit his step-mother, and he was with them between the ages of four or five and 12. He also referred to his father as using alcohol and drugs, although mainly alcohol, and indeed eventually dying as a result of cirrhosis of the liver; a common sequalae to a lifetime of overconsumption of alcohol.
When he was approximately 12 years of age, he moved out of the home he was then residing in at Minto because of his association with delinquent friends, to live with his aunt in Redfern. Although he described living there as "good", after six months he was caught in possession of cannabis and was sent back to Minto to live. It was around this age that he commenced to engage in delinquent behaviour and his parents' attempts to discipline him failed. He described himself as being "headstrong" and going against his parents' expectations and requests. He described his childhood as "difficult" as he spent a lot of time in and out of juvenile detention centres. He first got into trouble when he was approximately ten years of age, and by the time he had reached 18 years of age, he had been in juvenile detention on approximately ten occasions: at a variety of Juvenile Justice Detention Centres. He claims to have been both assaulted and sexually assaulted while in Juvenile Justice detention.
He reported having two long‑term intimate relationships in his life, the first for a period of approximately six years, which resulted in the birth of two children, a daughter, 19 years of age and a son, now 15 years of age. However, his ongoing criminal behaviour and periods of incarceration eventually ended that six‑year relationship. He commenced another relationship in approximately 2005 which lasted for approximately 12 years, terminating when he was incarcerated for a period of six years. That relationship resulted in the birth of a son, now aged approximately eight years. Although he has had ongoing contact, particularly by telephone, while in custody, with the son and daughter from his first relationship, he has no ongoing contact with his youngest son from the second relationship as that son now lives in Western Australia where he has been placed in Family and Community Care.
As to his education, he attended a number of educational institutions in Campbellfield, Blacktown, and Redfern, and describes himself as an academically below‑average student with poor behaviour, having been suspended on 11 occasions for fighting with peers. He performed poorly at school and struggled with reading and writing, although his letter to the Court indicates that he could read and write reasonably well. His education was marred by his having to change schools on several occasions when alternating between living with his mother and living with his father.
He has never been gainfully employed in the community, although when incarcerated he has had work from time‑to‑time in such areas as powder coating, packing and as a sweeper. The "Balance of Parole Report" of 17 September 21 includes the following in relation to his employment: "Mr Barker commenced employment 1 March 2021, working since in the following areas: unit cleaner, leading hand, shopfitting and joinery, and is now a unit cleaner. SCNSW records indicated he willingly resigned his position in shopfitting and joinery due to disparaging remarks he made about others in his work area and their protection status."
As to alcohol and drug use, he first commenced the use of alcohol when he was approximately 14 years of age with friends on rare or limited social occasions. He does not regard alcohol as being a fundamental part of his life, and in his recent period of liberty before being arrested in relation to these offences, he said that he had one drinking episode in the approximately five or six months he was in the community. He reported first smoking cannabis at the age of ten when introduced by other children. He recalled smoking seven or eight cones per day, three or four times per week. That behaviour remained constant until he was approximately 14 when he began smoking heroin and he continued to smoke cannabis when at liberty during his adult life.
He claims to have not been engaged in illicit substance use since his arrest and while in custody has been placed on the Suboxone program. I note the Community Corrections report indicates that he has previously had the benefit of a methadone program while in custody and some of his offences have been dealt with through the Drug Court unsuccessfully. His evidence on sentence in respect of assistance in respect of prohibited drugs was initially, in chief, that he had "never done any before but would if directed to do so by Community Corrections". However, in cross‑examination he accepted he had done a drug program at Parklea for some 14 months, and although he had progressed through some stages in the Drug Court program, he had regressed to lower stages on occasions; on the basis of his evidence, not because of anything that he had done, but because of other persons ‑ that is, because something was found in his cell at one stage, being "steroids or something", which were not his, and on another occasion, because "someone else" had tobacco and asserted that it was his. What is clear, however, is that any attempt to assist the offender in the past in relation to his use of prohibited drugs has failed, as he has continued to use and had in fact returned to using drugs during the period of parole before committing these offences.
Having first smoked heroin at the age of 14 or 15, he commenced smoking it daily and then injecting daily from the age of 15 and continued to do so until he was some 33 years of age. He ceased injecting when he was imprisoned for a period of time at 33 years of age. He first smoked and injected methylamphetamine or "ice" when he was approximately 38 years or 39 years of age, after being released on parole as previously referred to. He blames his partner, the victim in the common assault charge, for introducing him to this drug. He informed the psychologist that he recalled smoking or injecting methamphetamine or "ice" on at least 20 occasions during October and November 2020 while on parole and referred to using approximately twice weekly.
He has no history of mental health issues or ever having received mental health treatment and reported to the psychologist that he has not experienced any suicidal ideation or deliberate self‑harm behaviour. That is contrary to his evidence on sentence, when he said he had attempted to commit suicide on one occasion. He claims to have been sexually abused on approximately five occasions by Juvenile Justice officers while in Juvenile Justice detention between 1994 and 1998, variously, at Bidura, Cobham and Mount Penang detention centres. Like many other juvenile offenders, he now, as an adult, is seeking compensation through legal action.
As to his mental status, it was estimated that his level of cognitive function was in the below‑average range with a limited level of insight and judgment. He was found to be experiencing clinically severe levels of anxiety and clinically moderate levels of depression. Anxiety and depression are commonly associated with the abuse of prohibited substances and common sequelae in relation to offenders who find themselves in custody awaiting sentence.
He described his offending behaviour in relation to the aggravated break and enter in company as being because of his substance abuse and a lack of financial capacity to fund that abuse. He was assessed by Mr Jones as being a high risk of re‑offending and requiring a high level of intervention and supervision. Mr Jones stated that his most likely risk scenario would be if he were to return to the community and relapse into substance use, be without employment or family support and if he were to associate with anti‑social and substance‑using peers.
I note that while he claims to have ongoing relationships with relatives and a supportive sister, it is clear that any family support in the past has failed to really assist him, and I note that he has never been employed while at liberty. In his evidence on sentence, he referred on more than one occasion to his offending in the past having been the result of his connecting or re‑connecting with an offending peer group. That is, in my view, merely a way of deflecting his own tendency to offend onto others.
Mr Jones found that he suffered a cannabis use disorder and an amphetamine‑type substance use disorder, in each case of moderate severity, but was in remission while in a controlled environment. I accept that, particularly noting that the New South Wales Department of Corrective Services Convictions, Sentences and Appeals Report, which demonstrates that his custody as an adult from approximately February 2001 to date contains no record of any breach of prison discipline or regulations at any time, which, in my view, is something very much in his favour. There is a strong inference that he is able to control himself and abide by prison regulations despite the fact that when released into the community he cannot desist from committing criminal offences and in that regard, criminal offences of a serious nature. His criminal history demonstrates that he has a very significant history of criminal offending and offending of a like nature to the offences concerned here, particularly robbery‑type offences.
Apart from a significant juvenile history of offending, which resulted in a number of periods of juvenile detention, as an adult he has a criminal history which includes property offences such as aggravated robbery, steal from the person, robbery in company, robbery armed with an offensive weapon, robbery in company cause wounding, larceny, and offences of personal violence such as assault with intent to rob, assault occasioning actual bodily harm and common assault, and driving offences, as well as a number of offences in relation to resisting police and/or assaulting police. He has received a number of significant terms of imprisonment in the past as a result of serious offending.
In the period from approximately August 1999 to 16 December 2020, that is, over approximately 21 years as an adult he has managed to spend only a total, on my calculation, of approximately three years, four and a half months at liberty in the community, and clearly, from the record, on many of those occasions he has committed further offences which have resulted in him being returned to custody. If not already institutionalised, he is clearly seriously at risk of becoming institutionalised. In my view, it is reasonable to infer that he has, in fact, become institutionalised; capable of behaving reasonably properly while in custody, but not when at liberty in the community, and unable to cease associating with other offenders and falling back into old habits of abusing prohibited drugs, and being incapable of maintaining relationships without being able to control anger and violence arising from jealousy. I accept Mr Jones' estimate that he is at high risk of re‑offending, particularly in the absence of being able to control his use of prohibited drugs.
In the light of his history, it is clear that he is unable to accept the supervision of Community Corrections, and that his prospects of rehabilitation cannot be described as good, but rather as poor or limited. That is not, of course, to say that there is no prospect that he can be rehabilitated, particularly as he has now reached the age of 42, and it may finally dawn on him that his life would be better if he could remain in the community rather than in custody. His record, however, disentitles him to leniency.
There is no dispute in this matter that his offending crosses the s 5 threshold, and so much has been conceded appropriately by Ms Connell on his behalf.
The question of the application of Bugmy v R [2013] HCA37 is a moot point; however, in my view, he has had a sufficiently difficult childhood with fractured relationships and accommodation, and exposure to alcohol and prohibited drugs and criminal offending that it is appropriate to find that this matter falls within the range to which Bugmy, Fernando and Millwood apply, and the factors referred to therein are relevant. I accordingly find that his moral culpability is reduced, and that the need for the sentence to reflect general deterrence is reduced. However, in view of his extensive and repeated criminal offending of a serious nature, specific deterrence remains an important factor to take into account.
I have taken all of those matters into account including the utility discount, and of course the concept of totality, but have yet to refer to remorse and contrition.
As to remorse and contrition, the psychological report of Mr Jones contains the following: "Mr Barker expressed his remorse and guilt for their (sic) offending behaviours, stating, 'Now that I've been clean for 11 months, I wish none of that ever happened. The drugs were bad. None of those people deserved what happened to them. Hurting people and stealing, I regret everything since I've been in gaol. I wish none of that ever happened'."
That was remorse and contrition as expressed during the course of an audio‑visual link consultation on 23 November 2021 to Mr Jones. In his letter to the Court, being part of Exhibit B1, in my view, he really only outlines factors that he regards as relevant to his developmental history and asks in particular for sympathy as he has three children, although as is obvious from his criminal history and the other material before the Court, he has no ongoing contact with one child, being the son in care in Western Australia, and only limited phone contact with his two older children and of course, such contact with his older children in particular has been limited to phone contact while in custody, particularly because of COVID.
I accept his general proposition, of course, that the presence of COVID in the community and in the gaols since 2020 and the offender going into custody has caused significant difficulties for prisoners while in custody, and that has no doubt had some adverse impact on the offender's quality of life. I take that into account. In his evidence on sentence in respect of remorse and contrition, and when asked in chief how he now felt about the offending, he stated, although these are not his precise words, "I know I shouldn't have done it, I would hate it if it happened to me, I apologise for that", and subsequently in cross‑examination and in relation to the offences for which he is now being sentenced, when he was asked whether he felt remorseful in respect of them, he said he did. When asked when he had started to feel remorseful, he first said a couple of days after; when asked whether that was after the aggravated break, enter and steal in company on 1 November 2020 or after the final offences on 29 November 2020, he eventually said that he felt remorseful straight after the fighting and assault charges, and at one stage, said that he had thought about surrendering himself as a result of this offending, but also gave evidence that in relation to any of his past offending, he had never thought of actually turning himself in.
The offender has a very significant criminal history, as referred to, and the Balance of Parole Report dated 17 September 2021 contains the following in respect of his attitude: "Mr Barker did not accept full responsibility for the most current charges now before the Court. He apportioned blame onto his then partner, alleging both were using methamphetamine daily. Mr Barker also reported he had limited recall of some events due to said illicit drug abuse. While on parole, it appeared that Mr Barker returned to an anti‑social lifestyle characterised by drug use, unemployment and excess idle time".
Under the heading of "Victim/Victim's family": "Mr Barker was dismissive with the Court [sic] as the current application for Apprehended Violence Order was discussed. He denied the domestic violence he perpetrated on his then‑partner (victim) through their short‑term, intimate relationship".
As to the question of revocation of parole: "Mr Barker appeared nonchalant when discussing the most current charges at his return to custody. He pointed out he had been in the community for approximately six months which he opined was a long time for him. Mr Barker understood the reasons why he had breached his parole order, however appeared unwilling to accept any responsibility."
Those comments are consistent with my view of his evidence on sentence. Despite mouthing some words indicating remorse and contrition, he was not a convincing witness, and while I accept that he has significant regret in relation to his offending behaviour, I am not prepared to accept that he is genuinely remorseful or contrite.
As previously noted, this sequence of offending commenced while he was on parole. It has frequently been recognised that offences committed on parole involve a significant aggravating circumstance. "Parole is a privilege and abuse of that privilege calls for a higher punishment", R v McVittie [2002] NSWCCA 344. R v Fernando [2002] NSWCCA 28 at 42: "Offences committed while on parole demonstrate that rehabilitation, which parole is designed to assist, has failed and the Court cannot proceed on the same expectation of rehabilitation that is open in other circumstances".
Greg James J in R v Huynh [2003] NSWCCA 239 stated that: "...it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you had been liberated conditionally".
In R v Moffatt [1990] 20 NSWLR 114, it was held that the offender should not only suffer the revocation of his parole and consequently, to serve out the balance of the original sentence but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole.
I recognise that the sentencing discretion includes the ability to make sentences imposed in this matter concurrent, partially concurrent with or cumulative upon the sentence which the offender was serving as a consequence of the revocation of parole for the reasons referred to by Simpson J in Callaghan v R [2006] NSWCCA 58.
The offender was arrested on 16 December 2020 and has been in custody as a result since that time to date. That is a period of one year, two months and nine days, or 436 days. The revoked non‑parole period does not expire until 10 December 2022.
I have given careful consideration to the circumstances of this offender, his past offending, and his ongoing and current issues. I will give him the benefit of backdating the sentence, not as submitted by Ms Connell to the time at which he was arrested, but to the mid‑point of the period already served in custody. Accordingly, I intend to backdate the sentence by 218 days from today.
As I intend to proceed by way of an aggregate sentence, I am required to express the indicative sentences in relation to each of the offences.
In relation to the break, enter and steal the legislation provides a standard non‑parole period, although not particularly relevant in the circumstances of a plea of guilty, it does, however, remain as a relevant guideline, just as much as the maximum sentence does.
In respect of the aggravated break, enter and steal in company contrary to s112(2) of the Crimes Act, the indicative sentence is four years with a non‑parole period of three years.
In relation to the offence of assault occasioning actual bodily harm, s59 of the Crimes Act, the indicative sentence is two years' imprisonment.
In relation to the common assault (DV), s61 of the Crimes Act, the indicative sentence is one year.
In respect of the offence of police pursuit ‑ not stop‑drive dangerously ‑ s51B(1) of the Crimes Act, the indicative sentence is 18 months' imprisonment.
In relation to the offence of drive dangerously contrary to s170(2) of the Road Transport Act, the indicative sentence is five months' imprisonment. In respect of that offence, the automatic disqualification period of three years will apply.
Having determined those sentences, I have turned to the question of an aggregate sentence, particularly considering that the offending occurred on three separate occasions ‑ the 1st, 28th and 29th of November 2020, it involved offending against a business, two separate victims and the community in relation to the police pursuit and driving dangerously. There must be, in those circumstances, some accumulation to appropriately reflect the individual nature of the offences occurring on separate occasions and offences of a different or varying nature. Having backdated the sentence by the 218 days I have previously referred to, from today, the sentence will commence on 22 July 2021. The term of the sentence, that is the total term of the sentence, is six years' imprisonment and the non‑parole period is four years. Accordingly, the offender will be first eligible for parole on 21 July 2025, at the conclusion of the four-year non‑parole period. The total term of sentence will expire on 21 July 2027.
I have varied the statutory relationship between the non‑parole period and the balance of term by decreasing the non‑parole period in the offender's favour to take account of the total time in custody, including the 218 days in custody before the date on which I have commenced this sentence, and to ensure that there is a significant period of parole available should the offender be released at the earliest time to assist him with supervision to adopt a law‑abiding lifestyle in the community and to assist in relation to any ongoing treatment or rehabilitation that can be provided in relation to his consumption of prohibited drugs, in the absence of which, as I have said, I anticipate that when released, he will eventually return to the use of prohibited drugs and consequently, to criminal offending. For that reason, in addition to taking account of the full-time in custody since his arrest, I have provided a period of potential parole of two years.
I order compensation to CGU insurance in the amount of $2,511.77, pursuant to section 97(1) of the Victims Rights and Support Act.

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Judgment (11 paragraphs)

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Cases Cited (5)