Director of Public Prosecutions v Roberts
[2025] ACTSC 53
•26 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Roberts |
Citation: | [2025] ACTSC 53 |
Hearing Date: | 12 February 2025 |
Decision Date: | 26 February 2025 |
Before: | Christensen AJ |
Decision: | See [87] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – indecent assault on male – historical offences – teacher and pupil – recidivist child sexual abuse offender – advanced age and ill health of offender – delay in prosecution not mitigatory so as to override other sentencing purposes – good character of offender – s 34A Crimes (Sentencing) Act 2005 (ACT) – otherwise good character – sentence of imprisonment imposed with partial suspension |
Legislation Cited: | Corrections Management Act 2007 (ACT) ss 53, 54 |
Cases Cited: | Bidgood v The Queen [2016] NSWCCA 138 |
Texts Cited: | Explanatory Statement, Crimes Legislation Amendment Bill (No 2) 2017 |
Parties: | Director of Public Prosecutions ( Crown) John Vincent Roberts ( Offender) |
Representation: | Counsel S Janackovic ( Crown) P Skinner ( Offender) |
| Solicitors ACT Director of Public Prosecutions Daniel Wakim Law Firm ( Offender) | |
File Numbers: | SCC 324 of 2024 |
CHRISTENSEN AJ:
Introduction
1․John Roberts, the offender, is to be sentenced for three historical sexual offences against a child. I say ‘historical’, but the offences are not historical in any sense for the victim, who continues to feel the effects of the offending to this day, and will do so into the future.
2․The offences are observed as being ‘historical’ having regard to when they occurred, the charge, the maximum penalty that therefore applies, and because the period of time since the offending occurred results in particular considerations in the sentencing exercise. The offending occurred between 10 March 1982 and 11 March 1983.
3․The offending involves three offences of indecent assault on male contrary to s 81 of the Crimes Act 1900 (ACT) as it then applied, namely:
Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to imprisonment for five years.
The offending
4․The offending that occurred was set out in detail in an agreed statement of facts.
5․The offender was employed at Saint Edmunds College as a drama teacher at the time the victim attended the school. The school was at that time a boy’s school run by the Congregation of Christian Brothers. The offender was a member of this Congregation and resided at the school accommodation used to house Christian Brothers. This accommodation was attached to the school.
6․At the time of the offending, the victim was a high school student and was aged 15 years. The offender began to befriend him. The offender would show him favouritism above other students at the school and on some occasions, he went to the victim’s family home and had dinner with the victim’s parents and some of his siblings. On one occasion, the offender left a note addressed “to [victim], from Brother Roberts” at the victim’s family home.
7․When the victim was aged approximately 15 years, the offender offered to teach him how to drive a car outside of school hours. The offender arranged to pick the victim up for these driving lessons outside of school hours and from a location that was not the victim’s home or school.
8․The offender, as an employed teacher, was aware of the victim’s age and was aware that he was not yet old enough to drive. The victim felt excited by this opportunity and agreed to the driving lessons, despite not being old enough to hold a learners driver permit. The offender used a station wagon that belonged to the Christian Brother’s to conduct the driving lessons. In the back of the vehicle was a foam mattress, a blanket, and a brown paper bag containing multiple adult male-female pornography magazines. The paper bag with the magazines was kept underneath the blanket and the victim recalls the pornography being quite explicit.
9․The driving lessons occurred on at least six occasions over a one year period, between 11 March 1982 and 10 March 1983. During the driving lessons, the offender would sexually assault the victim, in the same way, and at the same location.
10․On all six occasions, the offender would approach the victim towards the end of the school day, while no teachers or students were around, to ask if the victim wanted to go for a driving lesson after school and a time was arranged.
11․After collecting the victim, the offender would drive the car along the main roads until he reached a certain secluded intersection where he stopped the car. The offender would then let the victim drive the car the rest of the way, along dirt roads, towards Corin Dam. Once the victim took over the driving, the offender would let him drive to a certain secluded location along a dirt track. The offender would then ask the victim to park the car. There were never any other vehicles around this area.
12․The offender would then ask the victim to lie down on the mattress in the back of the vehicle. The victim would lie on his back, and the offender would lie on his side, facing the victim.
13․The offender would then show the victim pornography, asking that he look at it with him. They would sit on top of the blanket while doing this, and the offender would commit the sexual offences. The agreed facts provide that on all six occasions, the offender would masturbate while next to the victim, viewing the pornography.
14․The offender would wear loose pants while conducting the driving lessons. On the first few occasions, the offender inserted his hands inside of his pants to masturbate himself. The offending progressed to the offender exposing his genitals and masturbating himself in front of the victim. The offender would masturbate himself until he ejaculated and cleaned himself with tissues afterwards. The victim recalls seeing the offender’s genitals during this.
15․On some occasions, the offender would ask the victim to touch his penis and to allow him to perform fellatio on the victim, which the victim declined.
16․The offending would often last for about twenty minutes to half an hour. The offending would often cease after the offender had ejaculated. After the offending had ceased, the victim would drive back to the intersection where the offender would take over, driving the victim the rest of the way back. While the victim was driving, the offender would give him instructions on driving, such as when to apply brakes and where to turn.
17․The charges involve:
(a)On some occasions, either before or after the assaults, the offender would use his hand to touch the victim’s genitals and rub up and down his legs. The victim recalls that the offender would kiss around his belly button and play with his penis (CAN 2024/2441);
(b)On one occasion, while viewing the pornography with the victim, the offender masturbated himself until he ejaculated onto the victim’s belly. The offender then used tissues that were in the car to clean his ejaculate off of the victim. The victim has a strong recollection of this particular incident (CAN 2024/2443); and
(c)On at least four or five of the six occasions, while viewing the pornography, the offender pulled the victim’s trousers down to his knees and masturbated the victim until he ejaculated while viewing the pornography. The victim recalls that the offender had an erection while he was doing this (CAN 2024/ 2444).
18․The agreed facts provide that the victim was in a situation where he could not get out and leave given the distance from Canberra, and that it was getting dark. The offending would cause the victim to feel as though he was removed from his own body. The victim felt petrified during the offending and froze. He felt like no one would believe him if he told them what was happening.
19․On one occasion, while the victim was driving the car along a fire trail off of Corin Road, the left wheel got caught in a gutter. This caused the car to collide with an embankment, damaging the left hand headlight and indicator. The victim recalls the offender becoming angry and stating, “how am I going to explain this?”. The victim took this to mean that the offender would need to explain to the other Christian Brothers that shared the vehicle how it was damaged.
20․This was the last occasion that the victim went for a driving lesson with the offender. After this, their interactions were cordial and student-teacher like.
21․On 7 January 2004, the victim reported the matter to the ACT-NSW Catholic Church Professional Standards Unit. The victim verbally relayed the complaint to a member of that unit, who wrote the complaint down on a proforma titled ‘statement of complaint’. The victim signed each page of the complaint. The matter was subsequently assigned to a Christian Brother to investigate.
22․On 2 June 2004, the victim received a typed apology letter from the Christian Brother assigned to investigate, on behalf of the Christian Brothers. The victim requested to receive the apology from the offender directly.
23․On 23 August 2004, the victim received a typed apology letter from the offender. The letter states:
Dear [victim’s name], I have seen [investigating Christian Brother’s] letter of apology of 2 June 2004. I convey my apology and regret in respect of all hurt and harm suffered to you as a result of my actions. I have had over a period of some years now a great deal of professional assistance and I regret very much the consequences of my actions in years gone by. I hope you can accept this is a genuine apology and I wish you all the best and you will be in my prayers. Yours sincerely, John Roberts.
24․On 4 January 2017, the victim made a formal complaint to ACT Policing in relation to the offences committed against him by the offender.
25․On 10 April 2024, the offender was summonsed in relation to these offences and he has spent no time in custody in relation to them.
Assessment of the offending
26․These were serious offences. Not only in terms of the sexual conduct involved, but given the manner in which the offending was able to occur. The offender ingratiated himself with the victim and his family, and took advantage of the trust that was placed in him. He abused his position as a teacher, and as someone who was meant to assist the victim in building his life, rather than destroy it. He did so in isolated and secluded areas, enhancing the victim’s vulnerability. There is a particular iniquity to the offending such that the offender’s moral culpability is elevated.
27․The offending was predatory and premeditated in nature. It was persistent, with two of the charges representing a course of conduct (per s 33(1)(c) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)). The incidents of offending were of long duration. It involved a significant age gap between the offender and the victim. The conduct involved multiple forms of sexual contact, including to the point of ejaculation, constituting, as submitted by the prosecution, a serious violation of the victim’s bodily integrity and autonomy. It was motivated by the offender’s own self-gratification, and extended to inviting the victim to partake in other sexual activity which would have added to the victim’s discomfort.
28․In addition, the offending occurred without the consent of the victim, both being a child unable to consent to sexual activity with an adult, and further in the context of implied non-consent to the activity. Having regard to the provision as it existed in 1982, which contemplates both consensual and non-consensual sexual activity between males, this increases the seriousness. The victim was also of a young age, being under the age of 16 years. Given the offence provision as it existed was not restricted only to offences against children, this is a further aggravating factor, again increasing the seriousness of the offences.
29․As to the assessment of the offences, on behalf of the offender it was submitted that, while the crime of indecent assault covers a very wide range of offending, “this offending is definitely below the mid range of seriousness”. Putting aside what I consider to be the limited value of an assessment on such a scale in this matter, I do not accept this submission. The offending here has, as outlined, aspects that elevate its seriousness. The persistent and repeated nature of the conduct, the predatory nature of it, and the gross breach of trust involved are such that, if required to, I would assess the offending as above the mid-range of seriousness.
Effect on the victim
30․The victim described the profound effect on him from the offending in a victim impact statement that was read out to the Court. The victim expresses that he feels that his life has been mostly dealing with depression as a result of what he went through. He has been left feeling that there is very little meaning left in life, with no escape from the suffering that is with him every day.
31․The victim expresses that his life is not what he was dreaming of as a child. He says:
I was preyed upon, used and tossed aside like a piece of garbage, for me this is hell on earth. Nothing can change what happened, I am forced to live with it. I would hope that there is help out there that someone does care, not only for me but all the others that are living this hell.
32․The impacts on the victim have not only been from the offender’s conduct, but also from the response the victim has experienced since he came forward to report the offender’s conduct. The victim describes that he felt he was alone in having to deal with the impacts of what happened. He expresses that he was:
[B]etrayed by not only the Catholic Church but the very people who were supposed to help me cope and deal with this. I was treated like a criminal, interrogated and made to feel I was the one with issues and I needed to be treated.
33․The victim impact statement describes what I understand to be a despondence from feeling like he is forgotten with nowhere to turn, and that he doesn’t belong. He expresses that there is no ongoing support, and that he feels like “no-one cares or gives a damn”.
34․To the extent that this sentencing exercise can provide any consolation to the victim, he can be assured that this Court has heard his pain, and has understood that there have been enduring effects on him from the offender’s conduct. To the extent that it can be of any consolation, the Court, through this sentencing exercise, assures the victim that there are institutions and people who do care and who do hear him.
Subjective circumstances
35․The offender is now almost 83 years of age. He was aged 40 to 41 years at the time of the offending. He was born and raised in Sydney. He describes a positive childhood with two siblings. He maintains occasional contact with his sister and has a supportive relationship with a niece.
36․At the age of 18, the offender joined the Christian Congregation, and he remains a member to date. After he joined the Congregation, he obtained a teaching certificate and post-graduate qualifications in education. He remained in the workforce in that capacity until 2016. From 1994, after he was convicted of sexual offences which I will come to, he was permitted to continue teaching, but only with adults.
37․When he became a Christian Brother, the offender took a vow of chastity, therefore he never entered a relationship or had children. He describes his first intimate experience as having occurred with a male teacher when he was in his early twenties.
38․The offender resides in a cottage provided by the Christian Congregation, where he
co-resides with two other Christian Brothers. He has no income of his own and the Christian Congregation pays all of his expenses. His social circle consists of other Christian Brothers, as well as two long-term friends from school. He enjoys reading and is writing an autobiography, and has regular medical appointments to attend. He has a daily routine that commences and ends with a prayer.
Health conditions and age
39․On the offender’s behalf, medical information was tendered which provides:
(a)the offender has ischaemic heart disease, and he suffered a myocardial infarction in 2022;
(b)he has osteoarthritis and has restricted mobility, requiring a four-wheel frame and elevating his falls risk;
(c)he has loss of vision in one eye; and
(d)the offender has various other conditions including mild cognitive impairment, dermatitis, gastro-oesophageal reflux disease, anaemia, glaucoma, carpal tunnel disease, and vitamin D deficiency.
40․In late 2022 the offender was advised by an orthopaedic surgeon to have a right hip and bilateral knee replacement, but he did not undergo the procedures as he was too embarrassed due to the ankle tracking bracelet he wears as part of parole conditions.
41․In terms of medical treatment required, the medical information provides that the offender’s necessary treatments include:
(a)examination by a urologist;
(b)prompt investigation to exclude a malignancy in the gastrointestinal system;
(c)dental care;
(d)eight-weekly injections to the left eye;
(e)some seventeen different medications daily;
(f)occasional appointments with a physiotherapist; and
(g)treatment for his osteoarthritis, pending surgery required within the next 12 months.
42․The offender himself, to ACT Corrective Services, described his physical health as involving arthritis which significantly restrains his mobility. He assessed his mental health as stable, with no past issues, and stated that he attends counselling. This is said to be for the purposes of exploring his sexuality and he is described as responding positively to these sessions.
43․To consultant physician and geriatrician, Dr John Obeid, in a report dated 11 January 2025, the offender described that he is capable of independence in showering and drying, and that he can dress, toilet, and shave himself. He makes his own bed, does his own laundry, and reheats meals when others cannot assist him with this. He manages his own medication. Most other domestic tasks are attended to by his housemates.
44․Dr Obeid opines that the offender’s life expectancy is, on a “best case scenario”, 6.3 years, with, subject to further medical investigations, it more likely that his life expectancy is around 2.5 years.
45․Dr Obeid further opines that the offender’s previous period in custody resulted in a deterioration of his medical conditions of osteoarthritis and dentition loss. Dr Obeid opines that unless the medical treatments he has recommended can be undertaken in the prison setting, further time in custody will have a significant deleterious impact on the offender’s health.
46․The prosecution assisted with information as to what is available through Justice Health Services and highlighted ss 53 and 54 of the Corrections Management Act 2007 (ACT).
47․The on-site physical health services at the Alexander Maconochie Centre include all of the services that the offender is described as requiring, including optometry, physiotherapy, and complex care management. It was also emphasised by the prosecution that whilst advanced age and ill health are relevant considerations, these factors cannot override the sentencing exercise such that other sentencing purposes are not reflected. The prosecution relied on what was said by the Victorian Court of Appeal in Lee v The King [2024] VSCA 258 at [36]:
[T]he authorities make clear that the advanced age and ill-health of an offender are relevant to the exercise of the sentencing discretion, but cannot be determinative of the length or severity of the sentence. Although the fact that an offender is likely to spend the whole or a very substantial portion of the remainder of his or her life in custody is a “weighty consideration”, sentencing considerations other than age and ill-health — including just punishment, proportionality and general and specific deterrence — may influence the sentence to the extent that an offender may well be required spend the whole of his or her remaining life in custody. Age and ill-health cannot justify the imposition of a disproportionately lenient sentence.
48․On behalf of the offender, it was submitted that the justice system in our culture allows a common humanity to extend a greater deal of mercy to someone whose period of “life on this planet” is likely to be not much longer than three years, and during which they will be taking medication. No authority, or legislative reference, was cited for this proposition. As I understood the submission on behalf of the offender, it was that his advanced age and ill health are strongly mitigating on sentence.
49․I accept this to the extent that it is plain that the offender’s physical ill health and advanced age will result in hardship to him from any period in fulltime custody. I accept that it has a prospect of advancing the end of the offender’s life, in circumstances where he already has a short life expectancy. But it remains that other sentencing purposes, including the imposition of a sentence that reflects the gravity of the offending, must be reflected in the sentence to be imposed.
Criminal history
50․On 27 May 1994, the offender was sentenced in the Downing Centre Local Court for two counts of indecent assault upon a male. On each count, the offender was sentenced to a recognisance with five years of supervision. He was to accept counselling and not be in company with a juvenile without an adult being present. The criminal history does not detail when the offending the subject of this sentence occurred, but additional information provided on sentence provides that it occurred in 1976. It involved showering with and touching the genitals of a student at St Patricks College, Sutherland, where the offender was a teacher.
51․On 30 September 2016, the offender was sentenced in the Wollongong District Court for 11 sexual offences, seven of which were offences involving sexual intercourse with a male pupil who was 12 years of age and a student at the offender’s school. The facts from this offending were provided on sentence, and reflect similarities in conduct as occurred with the victim in this matter. That is, there were occasions when the offender drove the child to an isolated location and sexually abused him. This offending occurred between February 1989 and December 1989. The offender was sentenced to an aggregate term of 10 years imprisonment, with a nonparole period of 6 years.
52․The offender became eligible for parole from 29 September 2022. He was released on parole on 29 September 2022. The offender remains on parole in New South Wales (NSW), until 29 September 2026. His compliance with NSW community supervision is described as satisfactory.
Delay
53․The period spent in custody – for offences that post-date the offending here and for which the offender has spent a lengthy term in custody – informed a submission on the offender’s behalf as to the role of delay in the sentencing exercise. As submitted on the offender’s behalf, the offending took place some 43 to 44 years ago. The delay is attributable to the time at which a complaint was made to police, but also, I infer, a delay in charging the offender while he was incarcerated, and then investigated, in NSW.
54․No criticism of the victim is made for the period in which it took for him to make a complaint to police. It must be recalled that the victim did make a report to Church authorities in 2004, and that the offender was aware from that time of the complaint raised by this victim. Nonetheless, the issue of delay in this matter has relevance given that the sentencing exercise at this time involves a ‘subsequent prosecution’.
55․On behalf of the offender, it was submitted that there has been a delay to the offender’s punishment such that it will cause him a significant additional burden. In this regard, reliance was had on the authorities of R v Todd [1982] 2 NSWLR 517 at 519, Mill v The Queen (1988) 166 CLR 59 at 66, R v Hall [2017] NSWCCA 313; 271 A Crim R 162 at [62], and Sabra v The Queen [2015] NSWCCA 38; 257 A Crim R 33 at [40]. While not ignoring the well-established principles that these authorities provide, I find it of more assistance to consider the issue of delay that arises here with reference to the specific circumstances of historical child sexual abuse authorities.
56․To this end, on behalf of the offender, the Court’s attention was drawn to what was said by Hamill and Dhanji JJ, with whom Basten AJA agreed, in R v Obbens [2022] NSWCCA 109 at [20] (Obbens):
The determination of the sentence for the single offence in the present case gave rise to an important aspect of the totality principle which applies when there is a delay in the prosecution of multiple offences and a fragmentation of the sentencing proceedings. It can be readily accepted that in cases of sexual offending that remain undisclosed for many years, delay will not automatically operate as a mitigating factor. In such cases the offender will often have enjoyed the benefit of a place in the community to which (usually) he was not entitled. The situation is, however, quite different where a person is prosecuted and imprisoned for multiple offense and, some time after serving that sentence additional offending is brought to light. The delay between prosecution and imprisonment and a second prosecution is unlikely to be a period in which the offender went about life free from opprobrium. Further, the bringing of a subsequent prosecution, with the potential for a return to imprisonment, is an additional stress and disruption that would not have been suffered had all offending been dealt with together. The result is that a return to prison to serve a separate term of imprisonment is likely to involve a significantly greater punishment than would be the case had the first term of imprisonment been longer as a result of all the offences having been dealt with together.
(Citations omitted.)
57․More recently, Obbens was distinguished in Richards v R [2023] NSWCCA 107 (Richards v R), with Beech-Jones CJ at CL (as his Honour then was) observing at [4] that “perpetrators of sexual offences against children are not entitled to a discount because their victims do not all come forward at the same time”. Her Honour Adamson JA observed that the statements in [20] from Obbens are not to be elevated to the status of a “principle” (at [91]). In the circumstances of that matter, her Honour observed, at [94]:
It is not uncommon for there to be a significant delay in the reporting of child sex offences, with the consequence that an offender may be at liberty for many years following the initial offending, with the opportunity to commit further offences, which, in turn, may not be the subject of charges for decades afterwards. The delay in the present case can be taken to be the consequence of the nature of the offending (sexual abuse of children, in this case, boys), which typically renders the victims loath to report the matter to authorities because of the fear, trauma and shame associated with it.
58․The prosecution submitted that the delay should not operate in mitigation of the sentence.
59․On behalf of the offender, it was emphasised that there has been a change in the offender’s circumstances that warrants a mitigation in sentence from the delay. This is submitted to be the period in custody that the offender spent in NSW, with conditional liberty following. It was also submitted that the offender’s incarceration in the ACT will involve an additional level of punishment with it being imprisonment in a jurisdiction away from his existing support networks.
60․I accept that, in the circumstances of this matter, the delay occasioned here involves the additional stress and disruption from a subsequent prosecution, which was not pursued expediently upon complaint to police. But, as with the offender’s advanced age and ill health, it remains that all sentencing purposes are to be fulfilled.
Pleas of guilty
61․Pleas of guilty were entered by the offender in the Magistrates Court. This was after an initial plea of not guilty to all charges, as well as to a more serious charge that was initially laid. A brief of evidence was prepared. Negotiations with the prosecution resulted in the pleas of guilty being entered and the matter committed for sentence to the Supreme Court.
62․On behalf of the offender, it was submitted that a full reduction for the pleas of guilty is warranted. It was submitted that the brief of evidence was not received until after the point of negotiations. I disagree that a full reduction is appropriate. As the prosecution submitted, and not inconsistent with what was said by Mossop J in Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 at [40]-[42], there has not been full utilitarian value given the procedure that the pleas of not guilty triggered. I assess the appropriate reduction for the pleas of guilty to be in the order of 20 per cent.
Remorse and insight
63․The offender’s pleas of guilty also, I accept, evidence his remorse. There is other material that supports this finding.
64․ACT Corrective Services describe the offender as not having disputed the Statement of Facts. The pre-sentence report says that:
He accepted responsibility for his offences and demonstrated an appropriate level of victim empathy. The offender extended empathy to the victim’s family and acknowledged the
long-term harm his actions had caused to everyone involved.65․The offender reported to Corrective Services that in early 2000 he had engaged in treatment with the clinic “Encompass” which was established by the Church in response to numerous accusations of child sexual abuse.
66․The offender prepared a statutory declaration dated 12 February 2025 that was directed at the victim. In this, the offender does demonstrate a depth of insight into the wrongness of his conduct, and the impacts of it on the victim. The offender expresses to the victim that “as a child you were unwillingly put into a most dreadful position from which you could not escape. I, the perpetrator, had deliberately manipulated the circumstances so that I could sexually abuse you”. The offender says that:
My sin and illegal behaviours have cast upon you and all those who love you… a cloud of evil destruction and suffering. For all of these, I am remorseful with all my heart.
67․A Christian Brother that lives with the offender has provided a letter in which he speaks of his observations of the offender’s remorse. He says, “he certainly is full of remorse for what he has done” and that the offender “has really tried to face the mistakes he has made in the past and to live a life that is full of good intentions”. The offender is described as a prayerful person that asks for the Christian Brother to pray for him when he goes to Church.
68․Additionally, a long-term associate of the offender has provided a letter on his behalf. He speaks of knowing the offender through school, and then through the ‘Encompass’ program that the offender participated in from early 2000. The associate had a role as facilitating treatment through that program. The associate describes the offender as having expressed remorse for his grave moral failings in engaging in abusive conduct and for the lasting damage that his conduct caused to his victims. The offender expressed an intention to apologise to the victims, should opportunities arise, and to avoid doing them further harm by admitting to his conduct in any prosecutions instituted against him.
69․Similarly, another long-term associate of the offender, a friend from school, provided a letter on the offender’s behalf. This friend speaks of the offender’s apparent remorse when he was charged with the offending in NSW. In relation to the current proceeding, the offender’s friend says that he accepts the offender’s assurances that he is truly sorry for his actions.
70․I accept that the offender demonstrates genuine remorse and insight and will take this is into account on sentence. I observe though, that such insights at this late stage are unlikely to be of any consolation to the victim.
Good character
71․I also observe that to the extent that the letters tendered on behalf of the offender speak of his good character, s 34A(b) of the Sentencing Act is of application here. It provides:
For a sexual offence against a child, a court –
…
(b)must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence.
72․The letters tendered on behalf of the offender spoke in terms of his otherwise good character, with reference to the offender’s assistance in the past to migrants, and his commitment to his church. He also has no criminal history apart from his sexual offending. It is submitted on behalf of the offender that the Court can have regard to the offender’s good character other than that which relates to his role as a teacher, and Brother, prior to the offending.
73․The Explanatory Statement for the introduction of this provision in 2017 (Explanatory Statement, Crimes Legislation Amendment Bill (No 2) 2017 (Explanatory Statement)) provides some relevant insight into the intent of this provision:
(a)It was intended to implement the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse to exclude good character as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending;
(b)The Royal Commission noted that good character evidenced by a lack of prior convictions can be a fallacy, especially given the delays in, and lack of, reporting in child sexual abuse cases;
(c)The provision was introduced, after NSW and South Australia, which enacted similar legislation in response to the High Court decision of Ryan v The Queen [2001] HCA 21; 206 CLR 267 (Ryan);
(d)The effect of the provision means that good character is excluded as a mitigating factor in sentencing for child sexual offences where that good character “enabled” the offending; and
(e)The provision is intended to still operate in accordance with s 33 of the Sentencing Act, “which means that an offender’s good character can still be taken into consideration by a sentencing court when assessing factors such as the offender’s prospects of rehabilitation or re-offending”: Explanatory Statement, 23.
74․Authorities that have applied this provision in the ACT speak of it being concerned with prior good character: see DPP v King [2024] ACTSC 59 at [62] and R v King [2022] ACTSC 252. That is, the character of the offender prior to the offending which had a role in enabling the offending. I have not identified any authorities in the ACT that have considered in detail a circumstance where there is contended ‘otherwise’ good character and such character that post-dates the offending. In R v EN [2019] ACTSC 354, Elkaim J applied s 34A(b) of the Sentencing Act in ignoring the offender’s good character prior to the offences but found that “his good character since the offences can be taken into account” (at [23]). Similarly, in Police v Jewkes [2024] ACTMC 29 the Chief Magistrate applied s 34A(b) to prior good character, but found that “his subsequent good character is highly relevant in evidencing his rehabilitation, and consequently, the reduced need for specific deterrence” (at [61]).
75․The prosecution submitted that no leniency can be afforded to the offender on account of his character given there was ongoing sexualised offending against the victim, that the offender only gained access to the victim by way of his good character as a teacher, and having regard to the commission of further child sexual abuse offences subsequent to the subject offending.
76․On behalf of the offender, it was submitted that, consistent with the High Court in Ryan, applied in Bidgood v The Queen [2016] NSWCCA 138 (Bidgood), the offender is entitled to some leniency for his good character other than that which enabled him to commit the offences.
77․Bidgood was concerned with an offender being sentenced for drug offending. It does not grapple with the application of the provision in question here. I have found it of more assistance to consider what was said by the NSW Court of Criminal Appeal in Richards v R, which was, curiously, not brought to the Court’s attention by the defence counsel. This authority was concerned with the issue of good character in a sentence for historical child sexual offences. In Richards v R the NSW Court of Criminal Appeal, citing McHugh J in Ryan at [36], observed at [81] that “the weight to be given to character varies according to all of the circumstances of the case”. In Ryan, McHugh J said at [36]:
In considering a prisoner’s good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances of the case.
78․I conclude that in this matter, to the extent there is information of otherwise good character of the offender post his offending behaviour, and noting that there is limited information of this, it is of little consequence in the sentencing exercise. The overwhelming evidence shows that the offender has spent a not insignificant portion of his life sexually offending against boys in his care. It is of little comfort, nor a compelling mitigating factor, that he has otherwise provided some value to the community. Nevertheless, I do take this into account to a limited extent.
Current sentencing practice
79․Despite the historical nature of the offending, the Court must sentence the offender in accordance with sentencing practice and patterns at the time of sentencing: s 34A(a) Sentencing Act.
80․The prosecution assisted the Court with authorities said to inform current sentencing practice, although appropriately acknowledged the limitations that such authorities provide. I have found the authorities decided after the introduction of s 34A(a) of the Sentencing Act to be of the most assistance. In particular, R v Marsh [2019] ACTSC 251 has been informative, with the offending involving a teacher sexually abusing an 11 year old student. For conduct involving touching of the genitals and masturbation, penalties of 19 months, and 16 months and 7 days imprisonment were imposed.
Consideration
81․It was submitted on behalf of the offender that the Court should impose a penalty that did not involve the offender serving any time in fulltime custody. It was submitted that this would meet the purposes of punishment, particularly in circumstances where the offender remains on conditional liberty in NSW. I do not accept that a fully suspended term is capable of being adequate punishment that is just and appropriate in this matter: s 7(1)(a) Sentencing Act.
82․As the prosecution submitted, general deterrence and denunciation are of paramount significance when sentencing for crimes involving the sexual abuse of children. The primacy of these principles does not diminish with time, as said by Vincent JA in DPP v Toomey [2006] VSCA 90 at [17]:
Often [victims of sexual abuse] experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years. Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards. Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration. Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators. They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.
83․I would add to this, in accordance with s 7 of the Sentencing Act, that sentencing purposes of accountability and recognising the harm done to the victim and the community warrants prominence in the sentences to be imposed. I accept though that specific deterrence and promotion of rehabilitation is of little relevance given the offender’s diminished ability to reoffend and the remorse and insight that he demonstrates.
84․The only appropriate penalty, having considered possible alternatives, is imprisonment. The periods to be served are to have regard to the differing levels of seriousness in the conduct. A level of concurrency is appropriate in an application of the totality principle. In considering the totality principle in this matter, there is also, as the prosecution submitted, an aspect of benefit to the offender in that he will serve the ACT sentence with a form of concurrency to the NSW sentence.
85․The gravity of the offending is such that the only appropriate manner in which that imprisonment is to be served is with a fulltime component. Nonetheless, I accept that the offender is of an age, and with medical conditions, such that he will experience hardship in the custodial environment. I also accept that, at this stage of his life and in his circumstances, he is, as has been found by ACT Community Corrections, a “below average risk” of further offending. It is necessary to also have regard to the circumstance of delay as it arises here. I decline to set a nonparole period as I consider it would be inappropriate having regard to the offender’s antecedents: s 65(4) Sentencing Act. Accordingly, the term to be imposed will be suspended after an appropriate period.
86․I propose to include a supervision component to the good behaviour order given the period his parole supervision will cease is at the end of September 2026. Regardless of the offender’s subjective circumstances, it will remain relevant for the authorities to have some oversight of a person who is a recidivist child sexual abuse offender.
Orders
87․For those reasons the following orders are made:
(1)On the charge of indecent assault on male (CAN 2024/2441) the offender is convicted and sentenced to 8 months imprisonment, reduced from 10 months imprisonment on account of the plea of guilty, to commence on 26 February 2025 and end on 25 October 2025.
(2)On the charge of indecent assault on male (CAN 2024/2443) the offender is convicted and sentenced to 12 months imprisonment, reduced from 15 months imprisonment on account of the plea of guilty, to commence on 26 August 2025 and end on 25 August 2026.
(3)On the charge of indecent assault on male (CAN 2024/2444) the offender is convicted and sentenced to 16 months imprisonment, reduced from 20 months imprisonment on account of the plea of guilty, to commence on 26 June 2026 and end on 25 October 2027.
(4)The total period of imprisonment of 2 years and 8 months, commencing on 26 February 2025 and ending on 25 October 2027, is to be suspended after 12 months, from 25 February 2026.
(5)John Vincent Roberts is required to sign an undertaking to comply with the offender’s good behaviour obligations pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 1 year, 8 months, and 1 day, from 25 February 2026 to 25 October 2027, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 27 February 2025 |
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