Director of Public Prosecutions v Roberts

[2021] VCC 201

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01435

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY ROBERTS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 March 2021
CASE MAY BE CITED AS:	DPP v ROBERTS
MEDIUM NEUTRAL CITATION:	[2021] VCC 201

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Guesdon	Office of Public Prosecutions
For the Accused	Mr A. Malik

HIS HONOUR:

1Bradley Roberts, you have pleaded guilty to one charge of causing injury recklessly, five charges of rape one charge of attempted rape and seven charges of persistent contravention of family violence intervention order.  Those crimes carry maximum penalties of five years, 25 years, 20 years and five years respectively.  You pleaded guilty to a settled indictment and must get the benefit of that.  You are now 34 years of age.  Your plea of guilty has had a significant utilitarian effect and I accept, although I hear what the Crown have to say about that, that your plea indicates a level at least of remorse and I take that into account.

2You do have one matter in the past in July of 2014, which again involved circumstances of breaching orders such as this and I am putting that as simply part of the pattern.  That is a prior conviction for some of the charges and a post-conviction for one of the others.  So I am careful how I adopt it, but it seems that that was the reason that the partnership originally resulted in an intervention order and I simply take it into account in that way.  Because of the sentences that I am to impose, from Charge 4 on, in the sexual matters, you will be treated as a serious sex offender.  No disproportionate sentence has been called for by the Crown and I believe the cumulation is what occurs, unless I order otherwise, totality demands I order would otherwise and I am aware that community protection becomes the principal sentencing purpose.

3In your situation, I am satisfied the general community suffers no risk from you and on the material that has been provided to me, it would seem that the risk, insofar as your former partner is concerned would be minimal as long as there is no contact and I will deal with that again briefly later.  Totality obviously has to play a significant part.  Charge 5 is a rolled up charge, even though the two incidents occurred within a very short period of time. 

4I direct that the Crown opening which has been exhibited will remain on the court file, which means that I can summarise it in fairly brief form and anyone with a genuine interest can of course see the original document.  The offending is alleged to have occurred between November of 2011 and March of 2018.  The victim is your former partner, Anna[1], who was 31 years of age at the time of the offending, you were 32.

[1]A pseudonym.

5The two of you had been in a relationship from 2000 to 2017.  You had three children together.  There is Dean[2] who is seven, Bobby[3] eight and Glenn[4] who is now ten.  During that period of time, the relationship ended and resumed on a number of occasions.  On 11 November 2011, the two of you were standing near the refrigerator in the house.  In the end, you threw a bag which had a couple of stubbies in it and it struck her, she fell to the floor.  After that she felt pain, but did not lose consciousness and 000 were called and you conceded that she had thrown something and hit her on the head.  The injury is the cut to the head.  That is Charge 1 of recklessly cause injury.

[2]A pseudonym.

[3]A pseudonym.

[4]A pseudonym.

6Your relationship ended in around about 2014 for all intense and purposes and that gives rise to the prior matter where an intervention order was issued and made final on 2 July of 2014.  Over the next few years, the two of you continued to see each other and would appear that you were seeing the children.  Following the breakdown in the relationship, she moved to a house a town east of Melbourne with the children and you were living in a town east of Melbourne.  You began seeing each other again on a regular basis in November or December of 2016 and without going into detail, it would appear that there was, apart from the matters that are referred to here, consensual sex from time to time.  But in any event, in March of 2017, the two of you moved into a house in a town east of Melbourne, which was an address owned by your grandmother.  Within a week of moving in, the relationship deteriorated quickly and she was carrying the full financial burden, paying the bills, rent and food.  The relationship ceased around about a week after she moved in and the two of you were sleeping in different areas in the house from that point on.  One would sleep on the couch and the other in the bedroom.  From March of 2017, the relationship deteriorated and it is said that is due to abusive behaviour by you towards the victim.  There were a number of arguments where you would push and shove her and you would walk into the bathroom whenever she was in the shower naked. 

7I do not go into this in detail, there is clearly - a number of other matters that have been referred to in the Crown opening, which simply go to context. In reality, you are being sentenced for an overall course of conduct that obviously I have to impose an appropriate sentence for each of the charges that are actually before me.

8On a day between 1 March 2017 and 31 March 2017, you were in the master bedroom and the three children were in bed.  The victim was sleeping on the couch and decided to sleep on the bed.  She went into the bed and laid next to you.  She was wearing a pair of pyjama pants and top, but no underwear.  You were wearing only underpants.  Soon after getting into bed, she was lying on her back and you rolled over and got on top of her.  She immediately cried out 'stop' and 'get off me'.

9She realised the children were asleep and quietened her voice, but kept telling you to stop.  She tried to get out from underneath you.  You pulled down her pyjama pants and grabbed her arm, held it above her head and inserted either one or two fingers into her vagina.  That gives rise to Charge 2 on the indictment of rape.  She continued to tell you to stop and was using her body to try and get you off.

10After that particular occasion, there were a number of occasions where you either raped or attempted to rape her.  Some of the time you would ask for sex and other occasions you would not ask and would just forcefully have sex with her.  Most of the time she says that you would use your weight to hold her down on her stomach or her back.  She would tell you to stop or get off and the usual approach was to start by inserting one or two fingers into her vagina, before even inserting or attempting to insert your penis.  Again, as I have already indicated, it would appear that on occasions there was consensual sex.

11She says that there are only a few occasions where you were actually able to penetrate her vagina and she would simply stop fighting and submit, which of course is not consent.  She, while this was going on, discussed your behaviour with your mother and was told 'when they want to do it, just lay there, let them do it and then they are done'.  Around about the same time, she disclosed the offending to your sister and said that you had been raping her.

12On a date between 1 August 2017 and 30 September 2017, she was showering in the en suite at McDonald Court.  You walked in completely naked.  You cornered the victim between the shower and the wall. Her towel dropped to the floor and you are then standing behind her as she was facing the wall.  You put one hand on her upper back and were forcing her forward from the hips.  She was thrashing around trying to fight you off and you are attempting to insert your penis, but were unable to do so.

13She was screaming for you to stop and you were holding her so tightly that it was hurting her body.  That went on for a couple of minutes, before she managed to break free from you and run into the bedroom.  You followed her into the bedroom, pushed her in the back, causing her to fall face first onto the bed.  You then got on her back, held her down with all your weight.  You held her face down into the pillow and she could not breathe.  At that time she was screaming 'help me'.  You inserted your fingers inside her vagina and she kept screaming 'help me' at the top of her lungs.  You then stopped what you were doing.  That is Charge 3 of rape.

14The next incident, again it is a date between 1 August and 27 September of 2017.  She was asleep on the couch in the lounge room, you walked into the lounge room and she told you to go away and said 'I'm not having sex with you'.  You went over to the couch and got on top of her.  You immediately tried to remove her pants, she began yelling for you to get off.  You forcibly pulled her to the floor, so her knees were on the floor and her body was bent over the couch.  You then pulled her pants down so they were below her knees, lifted your fingers and inserted them into her vagina for around about two minutes.  She was continually telling you to stop and 'get off me'.  That is Charge 4 of rape.

15In that particular situation, which I regard clearly as an aggravating feature, the children could obviously - well one certainly - of the children could hear what was going on.  Your son Glenn yelled from his bedroom 'get off her Dad'.  He said to police that he just remembered going in and you were fighting, he said not like in punching, but holding her down on the couch and clearly the child was frightened by that.

16There were text messages the following day which she accused you of rape and in no uncertain terms and you simply said 'if you can't cope, stay at your mum's'.  At around about ten to one in the morning of 27 September 2017, she was lying in bed at the master bedroom in the house in a town east of Melbourne.  The three children were asleep in their bedrooms.  You entered the master bedroom, went into the bed.  She pressed record on her mobile phone because she knew you were going to rape her.

17Her reason for recording the incident was due to her feeling powerless and hoping it would get you to reconsider what you were doing.  That tape has been provided to the police and it has been tendered.  For the reasons discussed with counsel, I have not listened to that tape or the other tape.  I think in these circumstances I do not need to and it will be of no real benefit for me to do so.

18In any event, you climbed onto her back as she was lying face down on the bed, used all of your weight to hold her down and this is all, as I say, on tape.  You grabbed her arms, placed them above her head, you grabbed both wrists with one hand, held so tight she could not break your grip.  You reached down with the other hand, pulled down her pyjama pants, you then spat on your fingers before inserting them into her vagina.  You pulled your fingers out after a short period, then forcibly placed your penis inside her.  That gives rise to Charge 5, which is a rolled up charge of rape.

19You continued to assault her for a number of minutes, by that stage she was crying, distressed and panicked and can be heard apparently on the tape pleading for you to stop.  During this period of time, one of the children yelled 'stop, I can't sleep', then another time 'Mum, Mum, Mum, Mum'.  She screamed and pleaded for you to stop and get off her.  You did not ejaculate inside her and she fought you off and broke free.  You slapped her after she had done that.  She picked up the phone on which she recorded this and went into your son's bedroom and calmed him down and put him back to sleep.  You remained in the bedroom.  Again, a situation where it was clearly audible to the children, there may well have been other occasions that are not before me that that was the case.

20On 25 September 2017, you sent her messages effectively saying 'want to have sex?' and she replied 'fuck off, I'll stab you, I brought a knife to bed'.  You then sent some more messages.  When they were received, she was lying in bed in the master bedroom.  The three children were asleep in their bedrooms.  After the messages, you walked into the master bedroom and laid on top of her.  Your full body weight was on her.  She pressed record on her mobile phone because she knew you were going to rape her.  Again, I have not listened to that tape.  As I have already indicated that it is clear what occurred. 

21You then grabbed her arms, placed them above her head, grabbed both wrists with one hand so she could not break your grip, pulled down her pyjama pants and you took off your underwear and were completely naked.  You then inserted your fingers into her vagina.  She continued to struggle in an effort to get out from underneath you.  You tried to force her legs open and she was trying to keep them closed.  You attempted to insert your penis into her vagina, was touching the labia and clitoris area near the opening of her vagina.  You ejaculated onto her stomach, before you were able to fully penetrate her.  You grabbed a towel and began to wipe the semen off.  She snatched the towel off you and wiped it off and you then left the bedroom.  Later that evening, she tried to confront you about the events and you told her to 'fuck off'.  That gives rise of Charge 6 of rape and Charge 7 of attempted rape.  In these circumstances, these incidents were so close together that I think total concurrency is called for between days, but certainly not with the others.

22We then have a situation where, and I understand why there is a number of charges and timeframes on which they have to be laid, but there was then over a period of time, a significant period of time, a large number of messages from you which were threatening, which were abusive and clearly constitute a persistent contravention of family violence notices or orders.  Again, the Crown opening is on file.  I do not need to go through all of that and also what I will do with the Crown opening is I will make sure that the appendixes remains on the file as well, which is a full list of all those phone calls.  It was common and abusive and deserving of imprisonment.

23When you were arrested, you were in Queensland and you were deported, I am assuming by agreement, back to Victoria.  I understand from your counsel, the reason you were in Queensland was at the, effectively invitation of the victim and it was to see the children.  These matters were brought to light, again as I am told from the Bar table, when you endeavoured to have the children taken - lawfully have the children taken back to Victoria and she then spoke to Queensland or Victoria Police and you were arrested and deportation came about.  You have been in custody ever since and that amounts to a period of 972 days.  I think that is all I really need to do, so far as the offending is concerned. 

24I have read a number of decisions that were placed before me by counsel and they were certainly of assistance.  I have to note firstly of course, that those were all matters where the accused had pleaded not guilty and was convicted by a jury.  So there is a significant difference bearing in mind, the utilitarian aspect of remorse of your plea, but they give an indication of how seriously the courts and the community regard such offending.

25Overall, it is just a situation which one sees sometimes, where you have got your understanding of some sexual claim of right over her. You effectively had sex with her when you felt like it.  You obviously did not particularly care whether she felt like it or not and it went on for a period of time.  There is no victim impact statement before me, but one does not need a victim impact statement to know what the effects of such abuse can be and the sense of overall powerlessness for a woman to do anything about these circumstances.

26I accept that there are matters that mitigate to a certain extent, or do not aggravate at least. There are no weapons involved.  There was violence.  Rape is always violent, but there were aspects of striking her.  Two of the charges, as I say, were clearly within the hearing at least, and one, probably the view of at least one child and probably all of them and you have to be sentenced on that basis. 

27It calls for the application of general and specific deterrence.  Specific deterrence as I have indicated, I think the chances of you reoffending in this way should be fairly low, if not minimal.  It obviously calls for denunciation and calls for appropriate punishment.  Insofar as community protection is concerned, as I have again indicated during the course of discussion about the Sex Offenders Register, I think it is conceded by the Crown that you do not pose a threat to the community, but a sentence must be imposed which shows the, nowadays at least, public and attitude towards such serious offending.

28Sensibly, your counsel has agreed that no sentence other than a gaol sentence, with a non-parole period would be appropriate.  He has argued that this is a situation where I should give a non-parole period, which is somewhat shorter than might otherwise have been the case and the circumstances where you have been on remand for that whole time, I am prepared to do that.  The prospects of your rehabilitation are really up to you and the risk of you reoffending is as I have described.

29Tendered on your behalf were drug screens and it is clear that you have been clean in that regard and your counsel gave me some very helpful submissions.  There is certainly a delay in all this and I am not placing blame on anybody for that.  There have been very strange times that we have been living in.  I accept, as is pointed out in the authorities, that that is a stress on you, not knowing what was going to happen and I take that into account

30Insofar as your time in gaol so far has been concerned, it has been done under the COVID provisions.  I accept that you have no visits.  It has been very difficult for you to do programs because you have been on remand, even though you have to your credit, attempted to do or done a couple of courses and I do not know how much lockdown you have been in, but then that is a matter for the administration rather than myself.

31You, upon your release, will have somewhere to go, that is, as I understand it, to your mother's and you want to try and have contact with your children and you should have, when you do get released, work available.  The victim is in Queensland and there is an intervention order in place and if you are ultimately granted parole, which is a matter for them, not me, I am sure that they would be fully aware of any risks that were involved and will put in place the appropriate supervision.

32I then go to your background which in this particular circumstances can be done in very brief terms.  You were born in Latrobe Valley.  You grew up around a town east of Melbourne.  You had no contact with your biological father.  When you were young, your mother started a relationship with another gentleman and a couple of siblings were born.  You say that there was no abuse in the household whilst your mother was in the relationship and you felt a bit left out of all that.  Separate residences were obtained when she went into a relationship with another man, who apparently was aggressive, especially when under the influence of alcohol.

33During that time, your mother struggled financially.  You went to school.  You left school halfway through Year 11 at the age of 16 and commenced a plastering apprenticeship.  It is clear from the material before me that you completed that apprenticeship and up until the time that you were placed on remand for this, undertook plastering work and concreting work.  As I have just indicated, you do have a good work record and work will be available to you one hopes, upon your ultimate release.  You have since the age of 16 or 17, used cannabis, that appear to have no real relevance to this and you occasionally used ecstasy and methamphetamine, but denied any ongoing use.  You also had been using Adireti, which had a similar effect of the drug speed and you were, at the time of all this, a heavy consumer of alcohol, drinking daily.

34The relationship had been in existence for over a decade prior to this offending occurring and it is extremely unfortunate that it has occurred in these circumstances.  You pointed out to your counsel that the two of you would argue, that you would spend time in the shed smoking cannabis heavily at that point in time and that you have come in and out of the family home.  You spent times in motels as well as drinking heavily.

35I think I have already indicated, I have looked at the various authorities that were handed up by your counsel.  The submissions were that you have had hardship in custody, that ultimately the prospects of your rehabilitation should be good.  The risk of you reoffending certainly against the community, I have to regard as low.  So taking all those matters into account and imposing a sentence as best I can I think that all I can really do where one is imposing a sentence of this sort of significance, is to give the Parole Board, the first reasonable opportunity they have to grant you that parole.  Obviously the risk assessment will be, at that time, and I simply leave it to them.

36I do not think there is really anything else I can say in regard to this matter and I think when one looks at the authorities that have been handed up, the Court of Appeal has made very clear how serious this sort of offending is.  Though again, as I have said, totality has to play a part in this.  You did plead guilty and I will endeavour to sentence accordingly.  I have not made much differentiation between the charges, because I think it will become a little bit of an intellectual exercise, but in my view, what involved the children of Charges 4 and 5, I think has to be regarded as more serious, even though it is all serious.

37Accordingly, on Charge 1, seven days concurrent.  On Charge 2, four years.  On Charge 3, four years.  Charge 4, five years.  On Charge 5, five years.  On Charge 6, four years and on Charge 7, three years.  I direct that the sentence imposed on Charge 7 be served as wholly concurrently.  I direct that six months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4 and six months of the sentence imposed on Charge 6, be served cumulatively upon each other and upon the sentence imposed on Charge 5.

38On Charges 8 to 14, I give an aggregate sentence of two years and I direct that six months of that sentence be cumulative on the other charges, as well as on Charge 5.  On my calculation, that then amounts to a total effective sentence of seven and a half years.  In these circumstances I direct that you serve a minimum term of four years and three months before becoming eligible for parole.

39I direct that 972 days be reckoned as having been served under this sentence and pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, so that you appreciate the earlier parole period and the significant discount that you have been given, you would have been sentenced to be imprisoned for a period of 11 years with a minimum term of seven.  Are there any other orders I need to make?

40MS GUESDON:  No, Your Honour.

41HIS HONOUR:  Do you need to talk to your client Mr Malik?

42MR MALIK:  Briefly if that's all right.

43HIS HONOUR:  Yes, very well.

44MR MALIK:  Thank you, Your Honour.

45HIS HONOUR:  All right, thank you for that.  I'll leave the Bench.

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