R v Barker [2017] NZDC 10162 (17 May 2017)

Last Updated: 26 September 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-003038 [2017] NZDC 10162
_{THREE STRIKES WARNING}

THE QUEEN

v

_{ROSS CHRISTOPHER TONY BARKER}

Hearing:	17 May 2017
Appearances:	S McColgan for the Crown R Samuel for the Defendant
Judgment:	17 May 2017

_{NOTES OF JUDGE A E KIERNAN ON SENTENCING}

[1] Ross Christopher Barker, you are here for sentence in relation to two offences which occurred on 26 March last year, 2016, as you know. There is an indecent assault on a child under 12, the maximum penalty is 10 years’ imprisonment, and a breach of intensive supervision in that you consumed alcohol on the same date and there is a maximum there of six months or a fine.

[2] I gave you a sentence indication on 7 April and I indicated to you I would take a starting point of 18 months for the indecent assault and I would impose a

12 month uplift because of your previous criminal history and the fact that the sexual offending was committed whilst on a term of intensive supervision for similar offending so that would take a sentence to two years and six months. Then I gave you a 20 percent discount I indicated for your guilty pleas if you chose to make them and I said a final sentence would be two years. I included the breach of

_{intensive supervision in that indication. You accepted that and you pleaded guilty.}

R v ROSS CHRISTOPHER TONY BARKER [2017] NZDC 10162 [17 May 2017]

What is not recorded at the time you pleaded guilty is a conviction and I did not enter that because I need to give you a warning under the three strikes legislation and I am doing that now at the time of sentence so I just need to give you that warning now, Mr Barker.

[3] Given your conviction for indecent assault on a child under 12 you are now subject to the three strikes law. This is now your final warning which would explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists serious violent offences.

[4] This is what I am required to say to you and you will get it in writing: If you are convicted of any serious violent offence other than murder or manslaughter then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust.

[5] If you are convicted of manslaughter committed after this warning then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years’ imprisonment unless the Judge considers it would be manifestly unjust to do so in which case the Judge must order you to serve a minimum of at least 10 years’ imprisonment.

[6] If you are convicted of murder after this warning then you must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole unless it would be manifestly unjust to do so. If the Judge finds that it is manifestly unjust to do so then the Judge must impose a minimum period of imprisonment of at least 20 years unless that would be manifestly unjust in which case the Judge muse sentence you to a different minimum period of imprisonment.

[7] If you are sentenced to preventive detention you must serve the maximum term of imprisonment of the most serious offence you are convicted of unless a Judge considers that would be manifestly unjust.

[8] I know it is hard to digest all of that, Mr Barker, but can I just summarise it in this way, and you will be given a document setting it all out and you will need to

sign it; that is a very serious warning. So if you came to Court again, especially for an offence of this sort, you are looking at a long period of imprisonment without parole. That is really what the warning means so I hope that will not happen but that is what I am required to warn you of today.

[9] I just need to refer to the facts of the offending that you have accepted. The afternoon of [date deleted] March last year, a boy aged six was playing in the playground at [location deleted] with [his brother and friend ages deleted]. At about half past three you walked through the primary school. You saw the children playing in the playground and you approached them. You asked them where the parents were and they told you. You also asked them if they wanted to play. The mother of the [the victim] was less than 150 metres away but out of sight. As the six year old was climbing a ladder on the playground you stood behind him and pulled down his pants and underpants. You then took your penis out of your pants and held it behind him. The boy and his brother ran to their mother and she called the police. You made a spontaneous admission to the police that you tried to sodomise the victim. You said in explanation that you “get horny” when you are intoxicated. So those are the facts of that matter, as you know, Mr Barker.

[10] The breach of intensive supervision is because you were under the influence of alcohol at the time this happened and one of the conditions of that intensive supervision sentence was not to consume alcohol. You have accepted responsibility for those two offences.

[11] There is a victim impact statement from the mother of the child. She says you took the innocence of her six year old son. It changed their lives, she says forever. It was an extremely distressing time. She says that he had many sleepless nights after this happened and it has impacted on his ability to trust adults. His brother and friend were also affected. I took that into account, of course, when I gave you the indication.

[12] I need to refer to your history again, Mr Barker. The most recent conviction was in March last year for offences of possession of offensive weapon and then there were also some burglaries which you were sentenced for. It was one year

five months imposed on 7 March with release conditions and I think it is clear, Mr Barker, you had been in custody awaiting sentence and indeed had only left the prison a couple of weeks before this occurred.

[13] Previously the relevant convictions which attracted first of all an intensive supervision sentence in June 2014 for two years included an offence of obscene exposure. Also back in 2014, indecent act, 2012 indecent act, and back in

2011 indecent assault, three indecent acts and another indecent assault so those are convictions which I had to take into account as you know in giving you that indication. It is because of those convictions and your history, Mr Barker, that I had to give you that second strike warning.

[14] Today the additional material I have got is in the probation report dated

10 May. As the probation officer points out, your offending has got more serious. Your risk of harm to others is assessed as high and your likelihood to re-offend also assessed as high.

[15] On this particular day you explained you had been drinking alcohol at AUT before your offending. You also said, and I am going to repeat this so it is in the notes, Mr Barker, you were disgusted with yourself when you thought about it and you deserved the two and a half years. You said you had been back in the community only 16 days before the offending and really in that time you had been constantly drinking and smoking cannabis.

[16] You mentioned your diagnosis of bipolar disorder and I know that from the papers that I read on the file, Mr Barker, and the reports, but you were not on medication at the time of the offending. You said to the probation officer that alcohol and drugs help you calm down and you acknowledge that is a huge problem for you and it really has contributed to all of your offending.

[17] You say you are motivated to address not just the alcohol and drug use but also the sexual offending and you would comply with any programme that is made available to you so I hope that is true, Mr Barker, for your sake but also for the sake of the community.

[18] You have been homeless in the past and I think you were homeless at the time of this offending. It is obviously important that you have support on release and you have heard me mention that today. You are on medication at the moment and it will be important for you that you continue that and that you keep away from alcohol and drugs.

[19] The probation officer has suggested some conditions and I have read them out in Court. I need to announce them shortly and I am going to impose those conditions. They will last six months beyond sentence end date. Conditions will apply immediately after release, but you will serve the full two years on sentence since you are subject to a first strike warning given in 2011. Mr Barker, the probation officer will be your main support and the accommodation you live at will need to be approved as well as you complying with all these conditions.

[20] Mr McColgan and Mr Samuel really had nothing to add this morning. Crown has emphasised the importance of special conditions to ensure your transition to the community and to remove the likelihood, I hope, of further offending.

[21] I am now going to adopt the sentence indication that I gave you so I am not going to change it. It is going to be two years’ imprisonment with special conditions of release six months beyond. The principles and purposes of sentencing that I said were important, and I just repeat them now, are punishment, deterrence, the least restrictive outcome, consistency with previous sentences and also taking into account your mental health issues and the other factors that I have referred to.

[22] I am now going to impose that sentence, Mr Barker. That will be imposed on the indecent assault under 12; a sentence of two years’ imprisonment with special conditions six months beyond sentence end date and those conditions will be:

(a) To attend and complete:

(i) An appropriate drug and alcohol rehabilitation programme. (ii) Any other treatment or counselling as directed.

(b) Live at an approved address.

(c) No contact with the victim or any other person without probation

officer’s consent.

(d) Notify before starting or changing a job.

(e) Attending and abiding by the conditions and requirements of mental health services including medication and treatment.

(f) Not to stay away overnight from the approved address between

10.00 at night and 6.00 in the morning unless approved.

(g) No alcohol or drugs. Mr Barker, a really important condition for you. (h) Not to go into parks or playgrounds.

[23] Those conditions will last for six months. Do you understand all of that? [Yes]

[24] On the breach of intensive supervision I am simply going to impose a concurrent sentence of three months’ imprisonment.

A E Kiernan

District Court Judge

Addendum:

These notes have been amended to include the fact that Mr Barker must serve the whole of the two year sentence without early release since he received a first strike warning in 2011.