Regina v Barry

060707/99 DOWD J SMART AJ Friday, 10 August 2001 REGINA v MAXWELL RAYMOND BARRY JUDGMENT

1 SMART AJ : Maxwell Raymond Barry seeks leave to appeal against the following concurrent sentences of imprisonment on each of the counts mentioned: Counts 5 and 10, buggery, 8 years with a non-parole period of five years; count 12, buggery, five years fixed term. The initial notice of appeal also covered the other counts on which the applicant was sentenced, but Mr Wetmore for Mr Barry has said that he is concerned with the sentences on the buggery counts and in particular with the minimum terms which he submits are excessive. The other counts included counts 1 and 6, indecent assault, six months fixed term; count 2, assault, six months fixed term; counts 3, 7, 8, 9 and 11, indecent assault, two years fixed term; count 4, indecent assault, nine months fixed term; count 13, indecent assault, one year fixed term; counts 14 and 15, commit act of indecency, one year fixed term.

2 All sentences on all counts commenced on 13 August 1999. The applicant had pleaded not guilty to all charges and was convicted by the jury after a ten day trial. He was represented by very experienced Queen's Counsel at trial. In three days time, that is by Monday, 13 August, 2001, all sentences save those for buggery will have been served. As Mr Wetmore remarked, the other sentences are now but of academic interest.

3 The offences were committed during the period 1979 to 1982 on two brothers; W aged about 11, and P aged about 8 when the offences began. The victims lived with their mother at Birchgrove. She was separated from her husband and their father.

4 The following summary of the facts is taken from portions of the remarks of Judge Ainslie-Wallace. In 1979 W met the applicant at the wharf near his home. The applicant struck up a conversation with W, befriended him, and asked to take W on outings. W took him home to meet his mother. Thereafter the applicant took W out frequently to the beach and to lunch, gave him money and bought him presents. W spent time at the applicant's house watching television. He also spent nights there. He enjoyed being at the applicant's house because he was afforded more freedom than at home.

5 In time P was also taken out by the applicant, and the two brothers and the applicant spent time together. The applicant became friendly with the mother of the victims. After some time, and at the applicant's suggestion, she left her job at Birchgrove Hospital and went to work for the applicant in a restaurant he was operating in a hotel near Blakehurst. The applicant found accommodation for the mother and her two sons near the hotel and assisted them to move. The applicant had, about this time, moved to live in that general area as well.

6 After the move the applicant continued contact with the victims. As to W, that ended in 1982 when he was taken into the care of the State. As to P, contact ended immediately after the applicant subjected him to anal intercourse, P ceasing such contact.

7 As to the first charge of indecent assault, P and W were taken by the applicant to Lady Jane Beach. They took off their clothes and lay on a rock. The applicant fondled P's penis by stroking and jerking it. P was aged 8. After the incident they left the beach and went to a department store where the applicant bought P some lego for Christmas.

8 Count 2, common assault, occurred when P was about 8. The applicant refused to believe that P had been given some money by a man in a nearby park, and hit P across the face and head and beat him.

9 Count 3, indecent assault, occurred on the same day after they both went to the park to find the man. While in the park the applicant instructed P to "suck my dick". P did so because he was afraid the prisoner would hit him again if he did not do so.

10 Count 4, indecent assault, occurred when P went to the applicant's flat after completing his paper run, to look for W. The applicant asked P to come and lie on top of him. P did so. The applicant put his arms around P, unzipped his trousers, put his penis between P's legs and kissed P's face and neck.

11 Count 5, buggery, occurred immediately afterwards. The applicant said, "Now I am going to show you what a real fuck is like", and instructed P to take off his clothes, which P did. The applicant inserted his hard penis into P's anus. Despite P's request to stop because it was hurting, the applicant persisted for an estimated 15 minutes. P passed blood when he went to the toilet. P did not go back to the applicant's home and did not see him again until the family moved to Blakehurst. P lived with his mother for another six months after the move to Blakehurst. Then he was taken into the care of the State.

12 Count 6, indecent assault, occurred in the applicant's vehicle. He leaned over to close the passenger side door. The victim, who had been swimming, was dressed in a T-shirt with only a towel around his waist and legs. The applicant's hand brushed across the victim's penis over the top of the towel.

13 Count 7, indecent assault, occurred when W was in the shower at the applicant's home. The applicant came in and began washing W. W returned to the applicant's bedroom. The applicant, after removing W's towel, massaged W's penis with some oil.

14 Count 8, indecent assault, occurred shortly afterwards. The applicant massaged W's penis. The applicant rubbed his penis between W's legs.

15 Count 9, indecent assault, followed almost immediately. The applicant rubbed a lubricant around W's anus and inserted his fingers. W complained to the applicant that this hurt.

16 Count 10, buggery, followed as the applicant inserted his penis into W's anus. W complained that this hurt and pulled away.

17 Count 11, indecent assault, occurred next. As W pulled away from the applicant, the applicant placed his penis between the victim's legs, rubbed it and ejaculated. W went to the shower. The applicant came in, told him that he loved him, and to check his underwear in case his mother did so. W said that these events occurred after he had known the applicant for about one month.

18 Count 12, buggery, occurred when W was at the applicant's house and lying in his bed. The applicant said that he wanted to "put it inside". W said, "No". The applicant rubbed lubricant around W's anus and then jabbed his penis into W. W cried out in pain and ran into the bathroom. He passed blood.

19 Count 13, indecent assault, occurred when W met the applicant at the Miranda Hotel. He drove W to Cronulla Breach. The applicant, after a visit to the public toilets, took W into a cubicle where there was a stranger who had his pants down and was masturbating. The applicant pulled W's pants down.

20 Count 14, commit act of indecency followed. The applicant instructed W to masturbate the other man, which W did.

21 Count 15, commit act of indecency, followed when the applicant required W to masturbate the applicant, which W did.

22 The judge observed that while individually some of these offences were relatively minor, they were part of the continuing course of conduct with W and P, which culminated in the acts of buggery mentioned.

23 The prisoner had some prior convictions. In 1979 he was convicted of gross indecency and fined $350. In 1984 he was fined $200 for stealing, and $200 for wilfully interfering with a telephone. In 1991 he was convicted on two charges of supplying prohibited drug. He was sentenced on one count to 500 hours community service, and on the second count he was fined $5,000 and placed on a three year good behaviour bond.

24 The record is not such as to disentitle the applicant to leniency. I disagree with the inherent suggestion to the contrary in the judge's remarks. The applicant has no convictions for a prior serious offence, and these relatively minor offences happened a considerable time ago, as did the offences the subject of the trial. Indeed they pre-dated the 1984 and 1991 matters.

25 The applicant was born on 27 October 1941. He has some health problems. He has elevated blood sugar for which he has to take medication. It is an illness of a chronic nature which will not abate. He has an aged mother in failing health. He holds a degree in engineering from an Australian university.

26 The judge took into account that the applicant would probably serve most of his sentence in protective custody, that at his age serving a sentence would be more onerous, and that this was his first prison sentence. Indeed, these matters formed the basis of the judge's finding of special circumstances.

27 Counsel for the applicant has told us today that the applicant has indeed spent his time in protective custody, and that his health condition has necessitated him being held in the Metro Medical Centre.

28 The applicant seems to have been gainfully employed during his life. He did not reveal much about himself to the Probation and Parole Officer. That report is guarded. The applicant denied the offences. The officer reported:

"The offender presented as a friendly though somewhat manipulative man who appears to have a need to be liked and accepted. He appears to retain a degree of low self esteem. His activities remain unknown, as does the extent, if any, of any potentially destructive behaviour related to drugs, alcohol and gambling. He continues to deny any proclivity towards young people".

29 The judge noted that there was no evidence of contrition or remorse. Having adverted to this and the applicant's maintenance of his innocence, the judge continued: "In these circumstances I cannot find that there is any prospect of rehabilitation in the absence of admissions. That is not to say that the prisoner is without hope of rehabilitation, but it is not a matter which I can take into account on sentence".

30 The difficulty which the judge faced was that the offences pointed to the applicant having serious problems as to his sexual behaviour, but there was no evidence of the cause of these, whether they could be treated, how they may be treated, and the likely duration of any treatment.

31 The applicant submitted that as the last of the offences was committed in 1982 and some 17 years had elapsed, it was apparent that the applicant had reformed and become rehabilitated. j, it does not follow that rehabilitation has occurred ust because there has been no conviction. It may have done so. The absence of any relevant conviction since 1982 is of major importance. It is a great pity that there was no other useful evidence on this point.

32 Complaint is also made that the judge did not correctly apply sections 44 and 45 of the Crime (Sentencing Procedure Act) 1999. She imposed a fixed term of five years for count 12 (buggery), and gave no reason for doing so. In view of the non-parole periods set on counts 5 and 10, (the other buggery counts), the reasons for the judge taking the course mentioned are obvious. Fixing a non-parole period in these circumstances on count 12 was otiose.

33 Before us this morning counsel for the applicant relied on the decisions in BJW (2000) 112 A Crim R 1, and Pritchard (1999) 107 A Crim R 88. He also relied upon the Judicial Commissions Statistics. The Judicial Commission Statistics relate to a small sample of matters and are not particularly useful in this case. Further, the offences in question have to be seen in the context in which they occur. BJW was a Crown appeal. In Pritchard the victim was not a child but a young man aged 18.

34 The complaints of the applicant would not lead me to intervene. The evidence revealed criminal conduct of a grave order. Without more, the acts of buggery upon these children who trusted the applicant and believed he cared for them compelled the sentences which were imposed. There is no good reason to reduce the non-parole period. Any lesser sentence would not have been adequate to reflect the criminality involved in this case. In my opinion the application for leave to appeal should be refused.

35 DOWD J : I agree, the orders will be as proposed by Smart AJ.

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