R v Barrett

Supreme Court of NSW|2021-02-09|Before: Wilson J

Judgment

HER HONOUR: On about 22 April 2016, the offender murdered 25 year old Mengmei Leng in a brutal knife attack. Although he tried to conceal his crime, it was discovered, and he was subsequently charged with Ms Leng's murder and other offences. He was sentenced in this Court on 15 December 2017 pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Crimes (SP) Act") to an aggregate term of 46 years imprisonment, dating from 29 April 2016 and expiring on 28 April 2062. A non-parole period of 34 years and 6 months, expiring on 28 October 2050, was fixed: R v Barrett [2017] NSWSC 1802 ("the first sentence judgment").
The offender appealed against that sentence, but his appeal was dismissed by the Court of Criminal Appeal ("CCA") on 14 February 2020: Barrett v R [2020] NSWCCA 11.
In the period after the offender's appeal had been heard but before judgment was delivered by the CCA, NSW Police obtained further evidence of the events of April 2016 which established without doubt that the offender had, in addition to the previously known crimes he had committed against Ms Leng, also sexually and indecently assaulted her on multiple occasions prior to murdering her.
The CCA having declined to re-open the appellate proceedings to receive the newly discovered evidence, the offender was charged with the previously unknown offences. The matter proceeded as a committal for sentence to this Court rather than, as is usual, to the District Court, because of the relationship between the fresh charges and the matters already finalised.

When arraigned on the indictment dated 1 October 2020, the offender entered a plea of guilty to each count. He acknowledged his guilt for those offences that were before the Court on the Form 1 documents, and asked that his crimes be taken into account when sentence was imposed for the relevant count, pursuant to s 33 of the Crimes (SP) Act.

The Facts of the Offences

The facts of the offender's crimes were set out in an Agreed Statement of them. What follows is a summary of the Agreed Facts, the contents of which the Court accepts. This summary should be read against the background provided by, and in conjunction with, the facts as described in the first sentence judgment.
In November 2019, when the offender was awaiting the delivery of the judgment of the CCA in his appeal against the first sentence judgement, a USB memory stick was handed in to police by a resident of Strathfield, the stick having been found in that area. The memory stick was examined by police, and found to contain files of recordings made on 22 and 23 April 2016 that showed the detention of Ms Leng, and subsequent offending against her by the offender. The kidnapping offence was one of the offences charged against the offender in 2016 and dealt with by the Court in 2017. The files additionally depicted other, uncharged, offences.
The USB holds 13 photographs and 9 video files. Of the 13 photographs, 11 are photographs that were recovered by the police from the offender's mobile telephone upon his arrest in 2016. These images were the subject of charges already dealt with by the Court in the first sentence judgment. The remaining two photographs on the USB show the screen of Ms Leng's mobile telephone, one having been taken on 22 April 2016, and the other the following day.
The nine video files were, for the most part, recorded using more than one digital recording device, with views shown from both the head and foot of Ms Leng's bed, the bed upon which she had lain naked, bound, and gagged. A compilation of the files prepared by police officers with expertise in digital forensics produced a recording with a duration of about 60 minutes, in which the offender recorded himself as he sexually assaulted Ms Leng over and over again on 22 April 2016.
The commencement of the footage depicts the offender's detention of Ms Leng, a detention for which the offender has been convicted and sentenced. The footage additionally provides the detail of the crime that was not known at the time of the 2017 sentencing. It shows the offender entering Ms Leng's bedroom and her query to him about his actions. Plainly, she was both shocked and alarmed by his entry into her bedroom, and did not want him there.
After some movement during which the recording device fell to the floor, the recording is of sound only, for 13 minutes duration. Ms Leng can be heard querying the offender, protesting at his presence in her bedroom and his actions, and then struggling and screaming, crying out, "My arm". The offender is heard telling her not to move. The sounds that follow are those of duct tape being pulled from a roll, Ms Leng coughing and protesting that she can't breathe, and then pleading with her attacker. The heavy breathing reflecting the offender's exertions are also audible.
After eight minutes Ms Leng fell silent, and the offender was able to right the recording device, which recorded Ms Leng lying on her stomach on her bed, her wrists and hands bound behind her with black duct tape. Ms Leng's mouth was gagged and her pyjama pants had been pulled down, inferentially by the offender. The bindings to her hands and wrists were so tight that, at one point, the offender noticed that her hands were colouring purple, and he stopped and cut the tape off before rebinding her hands with tape. Used to cut the tape, and kept in his presence throughout, was a large hunting knife.
The first of the previously uncharged offences committed and digitally recorded by the offender is the indecent assault which the offender has asked to be taken into account when he is sentenced for count 1, another charge of indecent assault, and the next chronologically to be committed by the offender.
Form 1 to Count 1: On having Ms Leng well secured, with the too-tight binding to her wrists and hands, the offender kissed and licked Ms Leng's face and neck, before kissing, licking and sucking her nipples. Necessarily her torso was now exposed, in addition to her lower body. He then lowered his head between her breasts and, using his hands, pushed her breasts against his face, shaking his head about. Ms Leng sobbed during these acts.
Count 1: The offender moved his mouth along the length of Ms Leng's naked body before rubbing a hand up and down her vagina. Taking up the recording device, the offender zoomed in on her genitals. Ms Leng continued to cry. The recording ended at that point.
Count 2: Having photographed Ms Leng naked, bound and gagged, acts already dealt with by the Court in 2017, the offender sexually assaulted Ms Leng, reflected by count 2, a charge of aggravated sexual assault. He kissed her breasts and stomach and then, pushing her legs apart and her knees up and onto her torso, he put his mouth to her vagina and sucked upon it. Ms Leng continued to cry. After taking more photographs of Ms Leng, with a focus on her genitals, (as noted in the 2017 proceedings) he then pushed Ms Leng's legs apart and returned his mouth to her vagina. Ms Leng cried throughout this continuation of the act of cunnilingus that, with its commencement, makes up count 2.
Count 3: is constituted by the offender's next act. Using his hand to spread Ms Leng's legs, the offender inserted a finger into her vagina. Ms Leng, who continued to cry, resisted to the extent she could. When the offender removed his finger, he wiped it on Ms Leng's leg.
Count 4: reflects another act of penetration. Spitting into Ms Leng's vagina the offender rubbed his exposed penis back and forth between the outer lips of her genitals. His attention drawn by Ms Leng's pained moans, the offender observed the discolouration of his victim's hands. It was at this point that, using the hunting knife, he cut her bindings and rebound her hands and wrists. He then asked her, "Now, where were we?"
Moving to a position adjacent to Ms Leng's head, the offender slapped his penis against her forehead at least 18 times. This is reflected by count 5. Further acts by the offender of rubbing and slapping his penis on her head and face in excess of 20 times; and slapping Ms Leng's breast with his penis, are reflected by the two charges of indecent assault to be taken into account against count 5. The offender masturbated on occasion at around this time.
An offence of aggravated sexual assault, to be taken in to account against count 6 followed. When he again pushed Ms Leng's legs apart, she said it hurt her and tried to close her legs. Telling her to "shut up", the offender parted her legs, masturbating as he did so. He raised Ms Leng's hips to better allow him to push his penis into her vagina. When she moved her legs and her crying intensified the offender told her "Come on, I barely got my knob in".
The offender pulled on Ms Leng's body to move her into position so that he could penetrate her vagina with his penis and thrust it repeatedly inside her, despite her tears. The recording captures the sounds of the offender grunting and moaning, and slapping Ms Leng as she cried.
Count 6: occurred after the offender ceased that conduct and, moving Ms Leng again, pushed her legs up over her shoulders. Spreading her buttocks with his hand he made a comment about "the guy you fucked" having "had a small cock", because "he didn't fucking break you". As he made these repugnant comments the offender moved away momentarily to get a towel, which he placed under Ms Leng's buttocks. This was apparently prompted by the fact that blood was flowing from her genital area.
Kneeling before Ms Leng whilst masturbating, he told her, "That means this ain't gonna be as easy as you think, it's gonna hurt". He then thrust his penis into her vagina, moaning as he moved. When his penis fell from Ms Leng's vagina after a period of time, he pushed it back in and continued to thrust inside her, telling her to "stop doing that" and "put your pussy down". Forcing her knees to her chest by leaning over her, he thrust himself inside Ms Leng repeatedly.
This was followed by the second aggravated sexual assault to be taken into account against count 6. Returning to a position kneeling before Ms Leng, the offender masturbated, calling Ms Leng "bitch" as he did. Picking her up from the bed by her hips, the offender pushed his considerable weight down onto her. Ms Leng screamed and tried without success to prevent the offender from parting her legs. He pushed his penis inside Ms Leng's vagina and began to thrust his hips against her. She yelped in pain and tried to push him away from her with her bound hands.
Count 7 is an offence of attempted aggravated sexual assault which occurred when, ceasing to penetrate Ms Leng vaginally, the offender dragged her body around the bed to position her on her stomach so that he could penetrate her anus with his penis. During this manoeuvring, Ms Leng's face was positioned directly in front of a recording device and her distress is plain. The offender dragged her again on the bed to move her so that the focus of the camera was on her genitals. Parting her buttocks with his hand he filmed her anus. Groaning, the offender then masturbated before getting on top of her and trying to force his penis into Ms Leng's anus. Although, apparently urging either himself or Ms Leng on with exhortations to "Come on", he failed to effect penetration.
Using his finger, the offender digitally penetrated Ms Leng's anus, and rubbed his penis in the area. This aggravated sexual assault is to be taken into account on sentence against count 8. The offender was unable to maintain an erection and began cursing as he slapped Ms Leng and masturbated.
Count 8 reflects the offender's return to his attempts at penetrating Ms Leng's anus with his penis, commenting "yours is tight" before thrusting against her again and again. When his penis entered Ms Leng's anus she was heard to say "it hurts". Disregarding the pain he was occasioning to Ms Leng, the offender continued to thrust his weight into her anus, as she cried out in pain. Ms Leng was able to move a leg in an apparent attempt to dislodge the offender, telling him "it hurts". He continued regardless.
A further offence to be taken into account against count 8 followed. Removing his penis from her, he pushed his fingers into Ms Leng's anus. Ms Leng was crying, and kicking out with shaking legs.
The last of the offences to be taken into account on sentence, in this instance against count 9, reflects the offender's act after removing himself from Ms Leng. Again, moving her body on the bed to suit his purposes, he pushed pillows and a towel under her stomach and manoeuvred her buttocks so that they were raised into the air. The recording shows blood on Ms Leng's vagina and buttocks, and on the towel on which she was placed. The offender then positioned himself to again penetrate Ms Leng's anus, before thrusting himself into her vagina.
The final horror in this sequence of events is reflected by count 9. Repositioning himself to straddle Ms Leng, and pinning her down with his weight, the offender penetrated her vagina, thrusting inside her until he ejaculated into Ms Leng's vagina. When he removed himself he left the recording devices activated, recording Ms Leng bound, gagged, lying face down on her bed, with her legs open to the camera, exposing her genitals to its lens. The offender appeared to take separate photographs of her.
Throughout these events, the offender was both repeatedly masturbating in an effort to maintain an erection, which he could not do; and directing a series of demeaning sexual remarks to Ms Leng, querying her in crude terms about her experience of sexual acts. Since he had gagged her, the offender instructed Ms Leng to answer his degrading monologue by nodding her head.
It was after these disturbing events that the offender murdered Ms Leng, stabbing her to death with multiple blows to her body. He cleaned up the scene of his crimes and later threw Ms Leng's body into the ocean.
On 18 December 2019, the offender was arrested and charged with the present offences. He refused to speak to the police about his crimes.

Other Evidence in the Crown Case Against the Offender

The offender's criminal history was before the Court as Ex. A10. At the time of the commission of these offences the offender had no criminal convictions recorded against him.
His custodial history, derived from the records of Corrective Services NSW ("CSNSW") shows that the offender entered custody on 30 April 2016 when he was charged with Ms Leng's murder and related crimes. He has been continuously in custody since that date, initially as a remand prisoner for the offences charged against him in April 2016 and, after being sentenced on 15 December 2017, as a sentenced offender.
A victim impact statement was received by the Court, written on 3 November 2020 by Ms Leng's mother, Mei Zhang (and later translated). Ms Zhang is a resident of China and, in light of the current restrictions affecting international travel, she was not able to be present for these proceedings.
The extent of shock and distress caused to Ms Zhang by this additional blow, brought by the news of the further torments now known to have been suffered by her daughter before her murder, has been communicated very effectively across the miles in writing. The knowledge of what Ms Leng endured before her death has exacerbated the horror and grief Ms Zhang has already experienced, making her loss even harder to bear. As she said to the Court, how could any mother accept such news. The simple answer is that no mother, no parent, no decent person, ever could.

Psychiatric Evidence

The balance of the evidence tendered by the Crown was from Dr Richard Furst, forensic psychiatrist.
Dr Furst assessed the offender in 2016 at the request of his legal representatives, and was called to give evidence in the offender's case at the sentence proceedings in December 2017. His report of 29 November 2016 was tendered to the court by him, and the doctor's evidence was referred to extensively in the first sentence judgment.
The Crown tendered the same report in these proceedings (Ex. A13), together with a later report prepared by Dr Furst at the request of the Crown, a report dated 23 November 2020 (Ex. A14). Dr Furst was called by the Crown to give evidence in person before the Court.
A summary of Dr Furst's earlier evidence can be found at [78] - [99] of the first sentence judgment. In his November 2020 report, Dr Furst noted the extensive range of material that he had access to in preparing his report and reaching his conclusions. That material did not include the notes Dr Furst had made of an interview he had with the offender on 10 December 2017 and a report he prepared of the same date. Legal Professional Privilege was claimed by the offender over that material.
Dr Furst set out the offender's background (consistently with the information in his earlier report) and noted the offender's claims to have been regularly using methylamphetamine, or "ice" in late 2015, in an approximate amount of four grams each week. He claimed that his use of the drug escalated substantially in 2016 prior to his arrest, to between 15 and 20 grams per week. Dr Furst noted the inconsistencies in the accounts of drug use given by the offender to others following his arrest, and referred to his own opinion that the offender may not have been truthful about this subject.
The doctor referred to his tentative or preliminary conclusion from 2017 that the offender was a sexual sadist, a view now greatly strengthened by the fresh evidence of the sexual degradation the offender subjected Ms Leng to before he murdered her. Referring to his 2017 opinion, Dr Furst said: "I was unable to expand upon potential sadistic sexual arousal; however, the new recording recovered from the USB in 2019, which is the basis for the multiple further sexual charges and current sentencing proceedings, indicate Mr Barrett recorded multiple sexual assaults, penetration and humiliation of the victim who was tied up and helpless at the time, obviously in pain, indicative of sexual sadism driving his offending, both in relation to the multiple sexual assaults upon the victim and in relation to killing the victim with approximately 30 brutal stab wounds. Therefore, it is now obvious from all the available material, including the video recording he made of sexually assaulting the victim on multiple occasions on 22/04/16 and the photographs he took that Mr Barrett enjoyed what he was doing, was sexually aroused by his offending actions, and achieved sexual gratification at the expense of a nonconsenting victims [sic], which is indicative of a paraphilic disorder/paraphilic disorders."
Dr Furst reviewed the notes of the offender's incarceration held by CSNSW. Of those notes post-dating the 2017 sentence proceedings, there are records of the offender complaining of feelings of depression although, as with accounts of his drug use, there are inconsistencies in the accounts given over time and Dr Furst concluded that the offender likely exaggerated his symptoms. At around the time his appeal to the CCA was on foot, and when divorce proceedings by his wife were also underway, the offender was prescribed an antidepressant medication by a general practitioner who had not examined him.
When assessed in March 2019, the offender did not exhibit any signs of depression, although his medication was continued. He was working in custody five days per week, and engaging in counselling sessions with a psychologist.
In June 2019 his condition seemed improved, and he was engaged with work and vocational study. His weight had increased and a drug was prescribed to him to assist with weight loss.
His mood deteriorated as the finalisation of his appeal against sentence drew near and the dose of antidepressant medication was increased. The treatment had good effect.
Nothing in the CSNSW notes points to any psychosis or disorder, other than situational depression. Whilst the offender has continued to give an account of his horrendous crimes as driven by drug use and lack of sleep, Dr Furst noted that his accounts have been inconsistent, and may be unreliable. In a February 2018 account to CSNSW the offender: "[…] was unable to offer any clear explanation for his violent actions when killing the victim, who was his step-niece. He said that people don't understand that he "didn't want to do it", that it was a "one bad episode" and that he was "not a psychotic killer," indicative of Mr Barrett's relatively poor insight into his offending and the reasons for his offending, and/or elements of denial minimisation."
His lack of insight and acknowledgement continued in July 2019, when he was assessed for a bi-annual review. Dr Furst noted that the offender: "[…] continued to blame 'ice' for his offending and then maintained that he did not remember his offending and 'had no idea why he was there' when he 'woke up in a prison cell', assertions that lack veracity and indicate an ongoing lack of insight and/or denial/minimisation [in] relation to […] the actual motivations for his offending and the purposeful actions committed around the time of the offending, namely by consistently trying to present himself as having suffered from some type of drug-related 'blackout'."
CSNSW assessments in 2020 found the offender to be polite and co-operative, and without issues connected with his mental state. Although he had lost his job in custody due to some comments he made about officers at his work place, his mood was stable. A July 2020 assessment recorded that the offender claimed to have "limited memory" of Ms Leng's murder, and denied the sexual offences he had been charged with more recently, telling the officer he spoke to that he had been in "a consensual relationship" with Ms Leng, an obvious falsehood. He blamed his wife for an asserted "drug addiction" and was noted to display little victim empathy, leading Dr Furst to observe that: "[…] little has changed in relation to Mr Barrett's attitudes towards his offending and denial, excuses and minimization of his offending over the last four years, notwithstanding his guilty pleas."
As to the issue of future dangerousness, Dr Furst conducted a literature review concerning homicides and sexual homicides. He noted that research suggests that: "the most frequently reported underlying motivation of sadistic sexual killers is to exert power, control and domination upon their victim for sexual pleasure and gratification".
Overall, Dr Furst was of the view that, whilst the offender may have a possible Autism Spectrum Disorder, or a Schizoid Personality Disorder, he does not and did not have a Drug Misuse Disorder, even though the offender may have used illicit drugs occasionally in the past. The many inconsistent accounts of drug use over time and, particularly, the complete absence of any drug seeking behaviour since entering custody, support that conclusion. Having regard to the evidence now available, and bearing in mind the previously known offences involving the sexual surveillance and recording of Ms Leng and the offender's step-daughter, which pre-date Ms Leng's murder by many months, Dr Furst regards the offender as having "an enduring pattern of sexual deviance", and as meeting the diagnostic criteria for a Voyeuristic Disorder and a Sexual Sadism Disorder.
The presence of these two disorders, and the fact that the offender acted upon his perverted desires in such a brutal and destructive way on 22 April 2016, suggests that his risk of homicide reoffending is between 10 and 100 times greater than that of an individual without his criminal background.
As Dr Furst said in the evidence he gave to the Court on 9 December 2020: "[…] the key factor is the index offence itself. Like what was done at the time of the actual offending. And this was both sexual, and extremely violent in nature. So, repeatedly raping the victim, and stabbing her about 30 times or more. The second thing which predicts worst outcome would be the presence of a paraphilic disorder, and in this case there is a voyeuristic disorder and sexual sadism. And then the third thing I flagged would be the social and emotional deficits, which I've said could be either the autistic spectrum we talked about, or schizoid personality disorder of traits [sic]. The reason for that is to do with difficulty forming close and meaningful relationships. So as in ‑ we think as a group, in psychiatry, psychology, you're more likely to offend potentially if you can't form a stable relationship longer term" (T26:38 - 50; 9.12.2020).
Dr Furst regards the offender's claims of drug affectedness at the time of the sexual assault and murder of Ms Leng as inconsistent with the overall evidence and likely untruthful; his denial of a conscious awareness of his deviant acts highlights the offender's lack of insight. Lies and minimisation are ways of avoiding responsibility for his crimes. Dr Furst pointed to the offender's false claim to have been in a consensual relationship with Ms Leng as an example of the offender's minimisation of the reality of his conduct. As the doctor observed, there was no consensual relationship, and the offender's false claim: "[…] is a kind of example of how he could use words to try and convey nothing much was happening when in actual fact the truth is so different to that" (T23:10, 9.12.2020).
As to the offender's prospects for rehabilitation, they are very guarded in Dr Furst's views. He told the Court: "[…] he's a fairly passive and compliant‑type person superficially. So, I suspect that he'll probably go through the motions of engaging in a sex offender programme, and telling me he has no memory of what happened, and it was all drugs, and that kind of thin[g], but he'll go through the programme anyway, and listen to what is said, and do his homework. That's what I imagine will happen. My problem with ‑ the problem I have with these programmes is they don't actually reduce the risk of offending; […]. Although we would like to think that the programmes help, the evidence is lacking, that sex offender treatment programmes, and violent offender treatment programmes actually decrease the risk of future re‑offending. So I guess I'm saying I think he'll likely comply, and do those programmes, but I think we're stuck with the cohort of risk factors which I've flagged already" (T27:15 - 27; 9.12.2020).

The Gravity of the Offending

These horrendous crimes can only properly be regarded as amongst the most serious examples of such offences that the courts have seen or are likely to see. Ms Leng's personal integrity was cruelly defiled by an offender who took pleasure in hurting, humiliating and degrading her. Each sexual and indecent assault was committed at a time when Ms Leng was fully exposed, bound and gagged with - initially at least - the bindings to her hands so tight that swelling and discolouration were occasioned to her, a feature of the previously dealt with detention offence that was not known when sentence for that offence was imposed. The assaults took place over a prolonged period, despite Ms Leng's attempts to fight the offender off and struggle against him; despite her pleas, tears, and cries of pain; despite her visible distress, her pain, and the bleeding from her genital or anal area. The offender manipulated Ms Leng's body as if she were a worthless inanimate object, and treated her with the most callous and injurious contempt.
This horror had clearly been planned, as had the offender's conduct in recording what he did for his later pleasure. The offender had prepared for his crimes by securing a large hunting style knife to ensure Ms Leng's compliance through fear, by obtaining duct tape to bind her, and by readying recording devices able to be positioned to capture the full detail of what she was subjected to.
It occurred because the offender deliberately gave vent to his perverted and sexually sadistic desires, assaulting and degrading Ms Leng for his own depraved enjoyment. He did not use a condom and ejaculated inside her vagina. That he intended to relive that enjoyment later is clear from the recordings the offender took trouble to make, and his actions in transferring them to a USB stick, an act which has, ironically, put him back in the dock of this Court to answer for his despicable crimes.
Ms Leng suffered greatly at the offender's hands. She was hurt, put in great fear and pain, humiliated and degraded.
One can conjure many adjectives to describe the extreme gravity of what this offender did to his wife's niece in the bedroom of Ms Leng's own home, including "heinous", a word with all of the meaning attributed to it in R v Arthurell (unrep, 3/10/97, NSWSC), by Hunt CJ at CL. Suffice to say that each offence charged against the offender, and each offence to be taken into account on sentence, is as serious as it is possible for such crimes to be. His moral turpitude is as high as it is possible for it to be. It matters not that it might be possible to imagine a worse example of such crimes: R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18].

Form 1 Offences

Although the offences to be taken into account are also part of a continuing course of conduct, there is a need for some increase to the penalties that would otherwise have been imposed with respect to the principal offences, to give greater weight to the need for personal deterrence, and the community's entitlement to extract retribution for such serious sexual offending: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.

Evidence in the Offender's Case

The offender did not give evidence.
He tendered a copy of a handwritten letter penned by him and addressed to Ms Leng's mother (Ex. 4). In it the offender said, in part: "Every moment of my life I wish I could go back in time and take back that day that has caused so much pain. I let my own problems spill into the family home and they paid dearly as a result. This moment in my life has kept me awake at night in tears and I still have nightmares."
He continued: "[…] All I can do, in some small way, is to commit my life to trying to make up for what I have done in any way possible."
The offender tendered and relied upon reports from John Machlin, clinical psychologist, and Dr Olav Nielssen, forensic psychiatrist.
In his report of 2 December 2020, Mr Machlin gave a history obtained from the offender which was, in some regards, inconsistent with other accounts given by the offender of his background. Although he said he did not have a history of mental health intervention prior to going into custody, he described self-harming in his teens and a number of incidents where he actively considered suicide. He described long term depressive symptoms, and a history of drug use commencing when he was aged 13, and that became a "near daily" methylamphetamine habit.
The offender asserted that he had had a consensual sexual relationship of two years duration with Ms Leng prior to April 2016. He claimed to have been using methylamphetamine heavily in the months prior to attacking her, and to have become more sexually aggressive under its malign influence. He repeated his claims of having little memory of assaulting Ms Leng, or murdering her.
Under a heading "DSM-5 Diagnosis", Mr Machlin noted that the history the offender gave was consistent with a Substance Use Disorder and "a chronic depressive spectrum disorder". On the basis of that history, Mr Machlin concluded that the offender's "decline in mental health in the final year might have set the stage for his offences" and that his "actions appear largely attributable to his methamphetamine intoxication at the time". Mr Machlin is of the view that, together with the offender's protection status in custody, his "life-long proneness to depression will […] increase the hardship of detention".
Dr Nielssen prepared two reports that were tendered on sentence, respectively dated 24 November 2020 (Ex. 1) and 30 January 2021 (Ex. 3).
Of his offences the offender told Dr Nielssen, as recorded in Ex. 1, that he felt as if he had "lost everything because of a stupid weekend". He denied any sort of sexual infatuation [and made no mention of a consensual sexual relationship] with Ms Leng, saying he wasn't attracted to her "in that way". He gave an account of heavy methylamphetamine use leading to him not eating, not sleeping, experiencing hallucinations, and finding evidence of things he had done, such as filming the legs of women on trains, of which he had no memory. Despite his concern at this, he did not, he said, stop using drugs.
His only explanation for what he did to Ms Leng, offences of which he claimed to have no real recall, was that he had become "pretty perverted and schiz[ed] out" on drugs. He told Dr Nielssen "I have got a lot of hate for the drug that got me here"; "here" being prison.
Dr Nielssen reviewed CSNSW records noting that the offender reported and was assessed as having no significant mental health issues on entering custody. He was later prescribed an antidepressant because of situational stress and depression.
Dr Nielssen opined that the offender has a Substance Use Disorder In Remission, and a "Depressive Illness". He thought that he had experienced "episodes of toxic delirium" involving deviant sexual interest when under the influence of methylamphetamine.
Whilst the doctor thought predictions of the offender's future prospects were largely hypothetical given the length of his existing sentence, "his offences would appear to be the result of a disturbed state of mind arising from a period of methamphetamine [use], rather than a pattern of antisocial behaviour".
Dr Nielssen confirmed his opinion in his second report.
In his oral evidence, given from a rather noisy external veranda by audio-visual link, the doctor explained that, whilst he could not say if the offender had been depressed in 2016, he had seemed depressed on assessment in the course of legal proceedings, and his current lengthy incarceration was likely to lead to some depression. Further, Dr Nielssen considered it likely that any person who had used methylamphetamine would experience depression.
Dr Nielssen's diagnosis of Substance Use Disorder had been made on the basis of the offender's account of his use of methylamphetamine, and the doctor's opinion that any use of that drug is sufficient to constitute the disorder.
Referring to the opinion expressed in his report of 24 November 2020 that the offender had suffered from "toxic delirium", Dr Nielssen explained that the phrase described a state of fluctuating consciousness or perceptual disturbance that occurred after taking methylamphetamines over a number of days without sleep. It was conceded in cross-examination that the offender could only have experienced disturbances of that nature if his account of heavy and prolonged methylamphetamine use was accurate. Dr Nielssen had not considered the evidence that the offender's last reported use of methylamphetamines prior to the commission of these offences was around 1 April 2016.
The doctor was asked if he had regard to the inconsistent accounts given over time by the offender concerning his drug use; he responded in the negative. The following evidence was taken: Q. And to a large extent, your diagnosis, as you say, is based upon Mr Barrett's own account of how much he took? A. No, it is based on the fact that he took it (T14:03 - 05; 9.2.2021).
Dr Nielssen was not, however, able to recall any independent information that he may have had access to concerning the offender's use of methylamphetamine, other than histories obtained from the offender himself.
When asked about the conclusion expressed in his report of 24 November 2020 that the offences had occurred as a consequence of the offender's "disturbed state of mind arising from a period of abuse of methylamphetamine", Dr Nielssen stated that his concluding sentence was "a little bit loose". He conceded that there were "doubts about the [offender's] exact pattern and exact use" of drugs (T20:33; 9.2.2021) and, although he thought drug use had a role to play in the commission of the offences, he agreed that his opinion was heavily reliant on the veracity of the offender's claims about his use of drugs.
Dr Nielssen thought that consumption of "ice" could lead to a heightened level of interest in sexual activity, including activity of a nature that the individual would have no interest in if not affected by methylamphetamines, although he noted in cross-examination that drug use ordinarily enhanced a pre-existing sexual interest.
Dr Nielssen did not accept that the offender had a voyeuristic disorder, or even that such a disorder exists outside the realm of television crime dramas. Nor did he agree that the offender was a sexual sadist as, in his view, sadists only ever wanted to inflict pain and distress, and sadism was inconsistent with the offender having been married [notwithstanding the unusual nature of the marriage]. He conceded however, that the offender's crimes involved cruelty and the infliction of suffering, and that such conduct was sexually sadistic.
Dr Nielssen thought that discussion of future risk was pointless, as that future was so far off in time.

The Role of Drug Use

As he did when facing sentence in 2017, the offender has sought to distance himself from his crimes by blaming their commission on his use of drugs. As the Court did in imposing sentence in 2017, that claim is rejected.
Although it is possible that the offender was an occasional drug user in early 2016, the only evidence that he was experiencing a "toxic delirium" when he attacked Ms Leng is based upon the offender's assertions to that affect. His assertions must be viewed against other, entirely contradictory, statements he has made, such as on admission to CSNSW custody in 2016; in light of the evidence of planned and purposeful conduct the USB recordings provide; and in the context of the lies the offender has told about his conduct over the years, including one of his more recent inventions, that he had been involved in a sexual relationship with Ms Leng.
Any statement or claim made by this offender must be approached with the degree of caution merited by an inconsistent historian who chose not to subject himself to cross-examination. That choice may have been made because, on any view of it, the offender paid scant regard to his oath when giving evidence to the Court during the 2017 proceedings on sentence. He appears to continue to say whatever he thinks will most advantage him, regardless of any connection his statements may have with the truth.
There should be no surprise that a man who would do what this offender did to another person would also lie about it. In my conclusion, he has comprehensively lied and his account of events cannot be accepted, unless it happens to correspond with independent, and more credible, evidence.
For that reason, the opinions of Mr Machlin and Dr Nielssen can attract no ameliorating weight. Neither witness gave any real attention to the possibility that the offender may have lied when speaking with each respectively, or lied to others in giving other histories. The opinions of each rest either wholly or heavily upon acceptance of the truth of the offender's claims. They are flawed as a consequence. I prefer the evidence of Dr Furst, who approached his assessment of the offender's claims and overall circumstances with appropriate circumspection.
In any event, voluntary self-induced intoxication cannot mitigate crime: s 21A(5AA) Crimes (SP) Act. Other than insofar as the offender's continuing protestations about the role of drugs in his conduct is relevant to questions of remorse and rehabilitation, I intend to set this issue to one side.

The Plea of Guilty

In some circumstances, a plea of guilty is clear evidence of remorse; for example, where the Crown would have struggled to establish its case against an offender beyond reasonable doubt. Those circumstances have no application here: after the discovery of the USB stick, and the Crown having decided to bring charges against the offender, the only course reasonably open to the offender was to plead guilty.
The pleas of guilty, entered in the Local Court, are still relevant to the determination of sentence. Division 1A of Part 3 of the Crimes (SP) Act applies to these proceedings and s 25D(2)(a) provides for a 25% sentencing discount on any sentence that would otherwise be imposed, subject to s 25F(2) which provides: (2) Exception to application of discount - level of culpability The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines, on its own motion or on the application of the prosecution, that the discount should not be applied or should be reduced because the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount.
The Crown served notice on the offender prior to committal that it would submit that any discount should be reduced to one of no more than 10%, and that was the Crown's position before this Court. The offender submitted that his crimes are not so extreme as to fall within the operation of s 25F(2). He also relies to a degree upon the opinions of Mr Machlin and Dr Nielssen as to the relationship between intoxication and the offences, and the offender's prospects for the future, to support that submission.
The Court has already determined that the opinions of Dr Nielssen and Mr Machlin have very limited value because of their reliance upon the untested and likely untrue assertions of the offender. As to the gravity of the offending conduct, the Court has assessed each as being of the highest level of gravity. It follows that to allow the offender a discount on sentence of any more than 10%, in recognition of the utilitarian value of his pleas, would prevent the Court from imposing a sentence capable of reflecting the extreme seriousness of the offender's crimes.

Remorse

If the offender's claims of acting in a drug induced haze cannot be accepted, neither can his claims of having little memory of what he did. In my view those claims, like his claims of heavy drug use, are no more than a mechanism adopted by the offender to distance himself from his crimes. Dr Furst did not consider the offender's description of flashes of memory as consistent with any known experience of amnesia, and I am not persuaded that the offender's recall is impaired at all.
Planned and purposeful conduct, and the procedure of recording that conduct, later copying and saving it to a digital memory device to allow for later viewing, points very clearly to a planned attack, for a sexual purpose. It also points to an intention to revisit the conduct at future times to refresh or re-experience the sadistic pleasure the offender derived from what he did. Those actions are inconsistent with offences that occurred because of extreme intoxication, or drug-induced delirium, at a time when opportunity and disinhibition happened to coincide.
That the offender disposed of the USB stick, presumably when he feared that the investigating police were suspicious of him, is indicative of a desire not to be caught. It is not indicative of an individual with no conscious memory or understanding of his conduct.
The offender's continuing attempts to quarantine himself from his acts are not supportive of his claims to be remorseful. His most recent claim to have been in a relationship with Ms Leng involving consensual sexual activity with her further exemplifies the absence of remorse.
Ex. 4, the offender's handwritten letter, is also instructive in that regard.
Although the letter is addressed to Ms Leng's mother, it became clear during the course of proceedings that the offender had never done anything to deliver it to her. Whilst the offender claimed from the floor of the court that he did not try to send the letter as he believed he was prohibited from contacting Ms Zhang, that untested claim should be rejected.
Whilst common sense might have suggested to the offender that Ms Zhang would not receive a letter from him kindly, there is no evidence before the Court that there was any order preventing him from writing to her, as might be expected had he been at liberty subject to bail conditions, or in the community and restricted in his conduct by the terms of an apprehended domestic violence order.
Even assuming that some order was in force, or that the offender believed himself subject to restrictions of that nature, it is not unknown or even uncommon for a genuinely contrite offender to send a letter of apology to a victim or surviving relative, through an approach made to the Crown. That course was open to the offender; he did not take it.
Much of the content of the letter that can be contrasted with other information does not support its truth. The offender's claims to be unable to sleep and to be tormented with nightmares are not consistent with Justice Health records reviewed by Dr Furst, which do not record such problems. On the contrary, the brief references that are made to sleep are to the effect that the offender's sleep was "okay" or "improved".
The date on the letter also undermines the offender's reliance on it as evidence of remorse. It is dated 9 December 2020, that is, the very day of the sentence hearing for these matters. That of itself suggests that the purpose in writing the letter was not to convey it to Ms Zhang, but to provide it to the Court as evidence of remorse. Consistent with the caution that sentencing courts should adopt in approaching untested claims to third parties, I am not persuaded that the offender's letter says anything about genuine remorse: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; Imbornone v R [2017] NSWCCA 144.
To be accepted as such, real remorse requires more than the utterance of a few well-worn words. It requires a genuine acknowledgment of wrongdoing, and a deeply felt regret for it. It is hard to see how the offender could truly regret conduct he claims not to remember - I am satisfied falsely - and blames upon drugs.
It is useful to contrast the formulaic words in the letter, such as "I take full responsibility", with what the offender said to Dr Nielssen: "I have got a lot of hate for the drug that got me here".
The offender did everything he could to conceal his crimes and, when that failed, to minimise them and shift the focus of blame to a drug. That is not conduct consistent with remorse. I do not doubt he regrets the impact of events upon his own life and future, but that is to be distinguished from remorse.
Further, his apology to Ms Zhang, almost four and a half years after events which he would not accept on his affirmation in his 2017 evidence had even occurred, and which he only acknowledged when presented with incontrovertible proof of them, falls to be assessed in light of the conclusions I have already reached as to the offender's unreliability.
I am not persuaded on balance that the offender is remorseful or contrite for the sexual attacks upon Ms Leng.

Prospects of Rehabilitation

Much of the psychiatric evidence before the Court went to the issue of future dangerousness. Relying on the evidence of Dr Furst, the Crown argues that the offender is likely to pose an ongoing risk to the community, because of his sadism and voyeurism. Whilst the offender will have available to him and may complete rehabilitative programmes in custody, Dr Furst was of the view that his participation would be superficial, and unlikely to lead to genuine change.
The offender relied upon Dr Nielssen's opinion that his offences were the product of a drug disturbed mind, with no history of consistently antisocial behaviour, to submit that he had prospects of rehabilitation.
To some extent, any prediction about the offender's conduct decades into the future is little more than informed guesswork. However, the information that informs the prediction does not support any positive prognostication. The Court has already rejected the opinions of Dr Nielssen and Mr Machlin because they were formed substantially on the basis of the unreliable histories given by the offender. In that sense, steps taken by him to address drug use, such as the EQUIPS course that he has completed in custody, will not have the affect both thought would follow of mitigating risk. Sexual sadism was behind these crimes, and not some drug induced state. Unless the offender's sexual disorders are addressed, he will continue to be a risk to the community.
In circumstances where the offender continues to refuse to acknowledge his true motivation for these crimes, hiding behind self-serving statements of intoxication, it is hard to see that the risk he represents can be reduced, or his prospects for rehabilitation enhanced.
In short, on the evidence available to the Court at this time, I accept Dr Furst's opinion that, the offender having acted in a seriously depraved and violent way in the past, there must be a possibility that he would repeat such acts if given the opportunity.
Specific deterrence and the protection of the community is thus a feature relevant to the determination of sentence.

Matters in Mitigation

The pleas of guilty must mitigate the sentences to be imposed to the extent already referred to.
The offender can call on little else in his favour to ameliorate sentence, other than his former good character, and the operation of the principle of totality.
The offender had no criminal history prior to the commission of these and the related offences. He had been employed until late 2015. He had some computer skills. These were some of the features taken into account by the Court in declining to impose a life sentence on the offender in 2017, and I have given them some weight in the present proceedings.
There was some opinion evidence, in the report of Mr Machlin, that the conditions of the offender's custody will be such as to make them more onerous than those experienced by other prisoners. That opinion seems to have been based upon an understanding that the offender will serve the whole of his sentence in protection, that he has a lengthy or chronic history of depression, and that he will suffer as a result of those features. There is no evidence to support Mr Machlin's understanding of the offender's future custodial conditions, and only the offender's inconsistent history to support his opinion about the depression the offender will suffer. I do not accept either opinion on balance.

Accumulation and Concurrence

The present offences form part of a continuing course of criminality and, to some extent, there is commonality in the criminality of each offence. To that extent, the sentence to be imposed for one offence can comprehend in part the criminality of the balance of the crimes. The feature that is distinct to each offence, and which demands some separate penalty, is the fresh outrage against Ms Leng, and the further invasion of her body and sense of self inherent in each. That is a significant feature and cannot be ignored, or regarded by the criminal courts as simply more of the same. Thus, there will be some moderate level of accumulation in penalty.
The Court must be careful not to take into account those aspects of the offender's conduct which have already been penalised, including the detention of Ms Leng. I have approached the determination of sentence with that complexity in mind. The degree of concurrency of sentence to be afforded the offender is one mechanism to address that complexity.
It is also necessary to have regard to the 2017 sentence, and apply the principle of totality with respect to it when determining the present sentence. These crimes, although not taken into account in any sense in the 2017 sentence, form part of the course of offending that began with the violent detention of Ms Leng, and ended with her vicious murder. It is important to craft a sentence that will address the present criminality without including that of the earlier crimes, and which will comply with the principle of totality.
Overall, that will operate significantly in the offender's favour. Standing alone, the discrete term of imprisonment that the offender would have served would be much greater than that which he will serve additional to his present NPP. I would go so far as to say that, had the Court known the full extent of the offender's abuse and violation of Ms Leng when sentence was imposed in 2017, a life sentence would have been imposed. That sentence cannot now be imposed.
This is truly a matter where the whole of the offender's criminality and moral culpability is greater than the sum of its parts. Imposing sentence in two discrete parts, and paying heed to the principle of totality, the sentence to be handed down today, taken with the existing sentence, will not reflect that whole. It will reflect the sum of the parts.

Special Circumstances

Additional to the principle of totality, a further restraint upon the determination of the appropriate sentences imposed upon the offender is found in ss 44 and 54B of the Crimes (SP) Act, which provide for an ordinary statutory ratio of sentence. A sentencing court can vary the ordinary ratio if special circumstances exist to justify the variation.
Because of the need to have regard to the overall term of imprisonment that the offender will serve as a consequence of the two sentences imposed upon him, it is necessary to make a finding of special circumstances to allow some adjustment to the ratio of the sentence passed today. The NPP will be less than it would ordinarily be.
The effect on the overall minimum time spent in prison will, however, be to lengthen it.
Whilst the Act does not prohibit an overall NPP which exceeds three-quarters of the total term, it is not a usual outcome. In the offender's case, if he is to serve any additional term of imprisonment to reflect the high criminality of these offences, there must be some increase to the overall NPP. The effect of the present sentences of extending the overall NPP and reducing the overall additional term, is both recognised by the Court, and accepted as a necessary consequence of ensuring that the minimum term of imprisonment that the offender will serve adequately reflects the total criminality of his crimes. The length of the parole period that the offender will be subject to as a consequence of the imposition of this sentence, although reduced in overall proportion, remains adequate to supervise and assist him in his reintegration into the community.

Other Considerations

General deterrence must play a significant role in the sentence to be imposed. Too frequently men - and it is almost always men - treat women as no more than an object to be used for sexual gratification, disregarding the rights of women to personal integrity and choice. The offender must serve as an example to others that this attitude is very wrong, and crime that occurs as a consequence of it will be severely punished.
Having regard to the offender's sadism, specific deterrence must also weigh heavily into the mix.
It should not need to be articulated that the sentence should stand to comprehensively denounce the offender's conduct.

Sentence

It is appropriate because of the number of offences and the relationship each bears to the other to impose an aggregate sentence pursuant to s 53A of the Crimes (SP) Act.
Having regard to the maximum penalties provided by statute, and to the specified SNPPs where applicable, each operating as a guidepost, and taking into account all of the facts and circumstances I have outlined, had individual sentences been imposed for the offender's crimes, and rounding down upon the discount where necessary, they would have been as follows: 1. Count 1 taking into account the offence on the Form 1: 3 years and 7 months imprisonment; 2. Count 2: 10 years 9 months imprisonment with a NPP of 8 years; 3. Count 3: 9 years imprisonment with a NPP of 6 years and 9 months; 4. Count 4: 10 years 9 months imprisonment with a NPP of 8 years; 5. Count 5 taking into account the offences on the Form 1: 2 years and 3 months imprisonment; 6. Count 6 taking into account the offence on the Form 1: 16 years and 2 months imprisonment with a NPP of 12 years imprisonment; 7. Count 7: 7 years and 2 months imprisonment; 8. Count 8 taking into account the offence on the Form 1: 14 years and 4 months imprisonment with a NPP of 10 years and 9 months; and 9. Count 9 taking into account the offence on the Form 1: 16 years and 2 months imprisonment with a NPP of 12 years imprisonment.

orders

The Court makes the following orders: 1. Derek Barrett is convicted of counts 1 to 9 on the indictment of 1 October 2020. 2. The offender is sentenced to a term of 20 years imprisonment, to date from 28 April 2039 and expiring on 27 April 2059. There will be a non-parole period of 14 years, expiring on 27 April 2053.
The overall term, taking the 2017 sentence into account, remains the same, but there is a very modest increase in the overall NPP, of 2 years and 6 months. The offender's earliest release date is 27 April 2053. oo0oo

Amendments 18 March 2021 - Typographical correction to sentence dates on Cover sheet and those at paragraphs [137-138]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2021

At a glance

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Judgment (19 paragraphs)

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