Director of Public Prosecutions v Roberts

[2018] VCC 485

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-01330

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY ROBERTS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	17 April 2018
CASE MAY BE CITED AS:	DPP v Roberts
MEDIUM NEUTRAL CITATION:	[2018] VCC 485

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. S. Devlin	Office of Public Prosecutions
For the Accused	Mr. A. Pyne	Victoria Legal Aid

HIS HONOUR:

1Geoffrey Allan Roberts, you were found guilty on 16 April after a short trial by a jury on four charges of indecent act with a person under the age of 16 years, and three charges of sexual penetration of a person under the age of 16 years.

2You are 59 years of age.  You do not get the benefit of a plea of guilty and in these circumstances, bearing in mind the provisions of the Sentencing Act in terms of how the trial was run, it is my view that you have no remorse whatsoever. 

3In terms of defending this matter, through your counsel, you called one of the victims a liar and basically asserted that the other one was mad. 

4Accordingly, you do not get the benefit which is so often significant in these matters, of that plea of guilty, either in remorse or the utilitarian effect of it.  You do have a significant number of prior convictions and I will be going through some of those in a moment.  I simply point out that until 1989 you had no prior convictions of a sexual nature. 

5On each of these charges, because of the sentences I am to impose, and because of your criminal history, you will be sentenced as a serious sexual offender and I direct that that be entered in the records of the court. 

6I am aware that the sentences are to be cumulative, unless otherwise ordered, and I will be ordering concurrency. I am not asked to give a disproportionate sentence and in your situation would not have done so in any event.  I am aware that the principal sentencing purpose becomes community protection.

7Because of the offending, even though you already are, you will be placed on the Sex Offender's Register and I must advise you the reporting conditions will be for life, so I will get you to sign this if you could, Mr Pyne.  If you could go with my associate please.  Thank you for that.

8The circumstances of the offending need to be seen in the context of your history.  As I have indicated, there is no sign of any sexual offending by you until around January of 1989.  In June of 1990, you were taken into custody and were dealt with on 18 September 1990, for sexual offending against a number of young victims.  You there received, from Judge McNabb, a sentence of seven years' imprisonment with a minimum term of four and a half years' imprisonment. 

9The circumstances surrounding that offending were that the victims were all aged around about the 12 to 13 mark. There were 8 of them.  You, as was led in the trial for these matters have, over a period of years, had clearly a sexual interest in pubescent and teenage boys and the tendency notice used by the Crown in the trial indicates that you have interfered with sons of female partners and friends of theirs; it is clear that on occasion you groomed, or did groom victims with alcohol and cigarettes.  You spoke to various boys about trusting you and in those circumstances assaulted them.

10They were the circumstances of that offending, which occurred over a period of around about 18 months.  You were given that sentence by Judge McNabb and you were paroled in November of 1993. 

11You were able to then remain at liberty until January of 1996.  Your parole was then breached and you were taken into custody.  I understand that was in relation to, and I have not been given the details and I do not need to know them, in relation to one Aidan Leake[1] who is your next victim as I will describe it. 

[1] Name is a pseudonym.

12

You were kept in custody, again as I am told, till 18 December of 1996 when you were released again on parole and that sentence lapsed in early 1997.  You were taken into custody again in September of 2007 and sentenced on

24 October of 2007. 

13There were two victims, insofar as that matter was concerned, and His Honour Judge White sentenced you to be imprisoned in total for a period of 10 years and six months with a minimum term of 8 years.

14There were two victims; one was Aidan Leake the son of your partner during that period of time.  The offending against Aidan Leake on the material, the sentencing remarks that I have been provided, would appear to have occurred between 1995 and 1997. 

15That being the case, for at least as I then calculated it, 11 months of that period of time, you were in custody, so you offended against him before going into custody and it would appear, offended against him upon being released from custody. 

16Insofar as the other victim was concerned, that was the sentence of Judge White was imposed, that was for four charges of rape included in one incident against an 18 year old victim that was by jury verdict. It is extremely concerning to note that the time frame of that series of rapes was between 15 December 1996 and 25 December 1996.  You were released from prison on 18 December 1996 so accordingly, that rape must have occurred within a week of you being released.

17In any event, that is of real concern but you are not to be sentenced for the same matters twice. It does not give one much confidence at all in any prospects of rehabilitation. 

18I will not go into all the details in regard to the offending against Aidan Leake.  It was similar sort of concepts of grooming and the child of a partner and you being opportunistic and breaching trust insofar as he was concerned.

19The sentences for the rape was 5 years, and accordingly, by simple mathematical calculation, you were given an extra five and a half years with regard to Mr Leake, though I note that you pleaded guilty insofar as he was concerned and you were sentenced as being a person in authority.

20Then, sometime around about 2012 onwards, two more victims came to light.  That was Mr Hennessy[2] and Mr Holt[3].  They made allegations against you and you elected to contest those allegations in front of a jury. 

[2] Name is a pseudonym.

[3] Name is a pseudonym.

21

The witnesses gave evidence.  I thought Mr Hennessy was an extremely impressive witness and gave evidence from the court room itself.  The other was Mr Holt who was not in this state but gave evidence via video-link.  He is clearly a very damaged man, he says, because of your offending, and I have no reason to doubt certainly in his mind, that that is the case.  He was

cross-examined at length and again, I found him to be, insofar as the actual allegations were concerned, a compelling witness indeed. 

22But in any event, the circumstances of all this were that between 1996, it has to be December of 1996 onwards and 2001, you and the two complainants lived in Gormandale.  Mr Holt was aged 10 years at the time and was a friend of the step-son of yourself.  Mr Hennessy was around 13 to 15 years at the time of the offending, and he was a friend of Mr Holt.  You were around 37 to 42. 

23I accept, as the jury undoubtedly did, that you would give each of these victims alcohol and cigarettes and that was done as part of a grooming process, certainly so far as Mr Holt is concerned.  I have no doubt that you developed an emotional relationship with him, in a father-figure way as he described it, by talking about trust and, "Mates do things for each other" and the like.

24Mr Holt said that you would give him beer and cigarettes in the shed that you had, and I do not have to go through all that detail about the geography of it all. You would speak about trust and he would talk to you about that. 

25The first time that you offended against Mr Holt was sitting on a couch in the shed which you frequented. You took off his pants, began to masturbate him and said, "This feels good, doesn't it?" 

26I am doing this from the Crown opening, rather than try to trawl through the trial transcript.  I do not think there is any significant differences in terms of what I am describing. 

27He said, and these are uncharged acts of course, that that happened on a number of occasions and again you would speak about trust.  On the last of those few occasions, you performed oral sex on him and that gives the rise to the first charge of sexual penetration. 

28Again, I do not think I need to go through all the details of this, but it is quite clear that there were uncharged acts of oral sex.  There is another charge of indecent act when Mr Holt saw, as he believes, Mr Leake walking towards the house, having perhaps seen what was occurring.  Bearing in mind what you had done to Mr Leake prior to that, if he did see it, it is no wonder that he did nothing about it. 

29There was a further occasion of, as I indicated, oral penetration which gives rise to a charge and that last charge concluded with you telling Mr Holt that he had to, effectively "suck you off" because that is what friends do.  Mr Holt said that freaked him out and that was the last time that any of that sort of conduct took place.  Again, there is much more detail to it than that, but I do not propose to go through complaints or anything along those lines.

30The second complainant was Mr Hennessy.  He again gave evidence, as did others, about the cigarettes and the alcohol.  He said when he was about 13 years of age, he was at an evening at your premises.  He felt tired and unwell.  He was taken inside and put in a bedroom and you lay on the bed and masturbated him.  You made the comment to him that he had no, or very little, pubic hair and you continued to masturbate him.  That is a charge of indecent act.

31The second incident involving Mr Hennessy occurred a couple of years later as I understand it.  There had been incidents where he had been at your premises and nothing of a sexual nature had happened. 

32But on this particular occasion, when he was around 15, I think probably 14, you went to the State Forest near Yarram, to chop wood which is something you had done with other victims as I understand it, and returned to your house where you were drinking.  You began to touch him through his pants before taking his pants off altogether and you then masturbated him.  That is Charge 7 of indecent act.  You then performed oral sex on him until he ejaculated. You commented that he now had pubic hair.

33When you were interviewed ultimately in regard to all these matters, you made no comment, which of course, was your right.  During the course of the trial by reason of a ruling made a judge other than myself, the Crown relied on tendency evidence and a lot of that material was before the jury. 

34As I say, the jury obviously completely accepted the evidence that had been given by your two victims and it was a decision that you made to contest it all. 

35A victim impact statement has been provided by Mr Hennessy and as I indicated at the start of the plea, the evidence given by Mr Holt was a sufficient impact statement in itself.  They clearly and eloquently described - Mr Holt in some detail - the consequences on young boys of this sort of offending.  The self-guilt said Mr Holt, describing the sense of blame which he was still hanging onto until his late 20s, it would seem from what his sister had to say. You have, in effect, whilst not ruining two lives, come pretty close to it. 

36What you have done is that as far as this offending is concerned, two young men will have, in all probability, a battle for survival for the rest of their lives.  I have indicated the way the trial was run and I simply take that into account in confirming my view that there is absolutely no remorse at all. 

37The offending is obviously serious and calls for general and specific deterrence as well as denunciation, appropriate punishment and community protection.  A significant gaol sentence is the only available option.

38Where it becomes difficult in your particular situation as a sentencing proposition, is that you were given the ten and half with an eight by Judge White back in September of 2007.  You did every day of that, I am told, and were not granted parole.  The sentence expired at around February of this year.

39In around January of this year and the exact dates do not matter, an interim order was made against you in the usual terms for an extended supervision order.  That matter is listed for final hearing later this year and I would have thought they were waiting to see what I have done.

40The fact of the matter is, that there is such an order in place, and it requires you, as did your bail conditions, indeed in respect to this matter, to reside at Corella Place. 

41Submissions were made on your behalf insofar as totality is concerned and whilst I always find that an interesting concept to argue out, the fact of the matter is that you have now been detained for over ten and a half years. 

42On the material before me, you will be detained at Corella Place, albeit that not being a prison or not gazetted as a prison as I understand it, for the indefinite future.  I will be imposing a custodial sentence and I do not know what the effect of that will have.  However, I think I can only sentence on the basis that your detention will be either in gaol or at Corella Place for an indefinite and extended period of time. 

43As I understand recent authority if you go to Odyssey House and that type of detention, that that is a matter I believe I have to take into account, and I have mitigated your sentence because of it.

44Also, despite my teasing your counsel, so far as totality is concerned I do take into account that had these matters been dealt with back in 2007, even though you would have pleaded, I have to assume, not guilty to it, there would have been an element of concurrency on whatever sentence was imposed, and I do take that into account in this sentencing process.

45Your history is an unfortunate one and bearing in mind our respective ages, one that I am very accustomed to, you as a 11 year old, were put in Baltara.  Your father was a docker in Geelong.  Your mother clearly had emotional, and I would suspect, drug problems by what I have seen here, and you remained a Ward until you were about 17. 

46You were at Turana from around the ages of 12 or 13 on, and again, I am well aware of the young men who were in Turana at that period of time in the history of this State, who went on to much better and greater things. 

47In any event you - I accept - were sexually assaulted whilst a Ward, and that would have been on a number of occasions and I would have no doubt about that.  You are so typical of the Baltara graduates, that you did not get past Grade 6.  By 18 you were getting adult prison sentences having had YTC sentences earlier.  Between 18 and 25, you received a number of sentences but for property offences.

48In 1989, when you 30 years of age, you went to Wodonga and that is when you married a woman named Ms Gillman.  You offended against her child and you offended against obviously his friends over that period of time that I have already referred to. 

49During a period of time in gaol, you had, back in 1990s as I understand it, you had a foot crushed in effectively an industrial accident, and that has caused you to be unable to work since. The circumstances were that you were released in late 1996 and over a period of years you offended against these two young men in the way that I have described. 

50Balancing your unfortunate history against what you have been able to inflict upon others, and I am only referring to these two at this time, is a difficult task.   I have decided that to try and have differing cumulation between various offences in this matter would be an intellectual exercise which would achieve nothing. 

51There is no 6AAA because you have not pleaded guilty, and all I can really do is take into account that you will, in all probability, spend the rest of, the most, if not all of your life, in a custodial sort of environment and that you have already been in one for now approaching 11 years.  But, the sentence has to reflect what you did to these two young men and they, in a sense, have life sentences as well.

52In any event, taking all those matters into account, and sorry, the other thing on that is rehabilitation, risk of re-offending.  It is up to other people, not me, in this scenario.  I would have thought the prospect of your rehabilitation could only come about with age, but that is another matter. 

53Charge 1, 12 months;

54Charge 2, 36 months; that is oral penetration.

55Charge 3, 12 months;

56Charge 5, 36 months;

57Charge 6, 12 months;

58Charge 7, 12 months;

59Charge 8, 36 months.

60Charge 5 of 36 months relates to Mr Holt, and Charge 8 of 36 months relates to Mr Hennessy. 

61For the reasons I have outlined, I am constrained in the length of the sentence I might have otherwise have imposed, and accordingly, I will direct that 24 months of the sentence imposed upon Count 8 be served cumulatively upon the sentence imposed upon Count 5. 

62That gives in all this situation, an effective head sentence of five years.  I direct that the other sentences that I have imposed this day, be served concurrently with the sentence imposed on Charge 5.  There is no other rational way of going around it, and that imposes a significant sentence for each of your two victims, bearing in mind the degree of repetition of your offending against them.

63In the circumstances, though it is probably academic, I fix a minimum term of four years before you become eligible for parole and I direct that one day be reckoned as having been served under this sentence. 

64All right, there is no other orders I need to make, are there gentlemen?

65MR PYNE:  As the court pleases, no.

66MR DEVLIN:  As Your Honour please.

67HIS HONOUR:  All right, yes, you can him now.  Thank you, gentlemen. 

68MR PYNE:  Your Honour, I don't know whether Your Honour, just for the sake of completeness - - -

69HIS HONOUR:  No, no, just hold on a sec.

70MR PYNE:  Sorry, Your Honour.

71HIS HONOUR:  No, what do you want me to do?

72MR PYNE:  Your Honour said that the release date in 1996 was the 18th.  The information I have is that it was actually the 20th. 

73HIS HONOUR:  The 20th of December?

74MR PYNE:  Of December, that's right.  I said the 18th was the day parole was granted but the actual release was on the 20th.

75HIS HONOUR:  All right, yes, so it's within - - -

76MR PYNE:  I don't think it matters, I just thought I'd - - -

77HIS HONOUR:  Well that reduces the time frame to - - -

78MR PYNE:  That's right.

79HIS HONOUR:  - - - either his birthday or Christmas Day, take your pick.  All right, thanks for that.  Yes, you can take him now.  All right, there is nothing else I need to do?

80MR DEVLIN:  No, Your Honour.

81HIS HONOUR:  All right, can I simply say to Mr Hennessy who is sitting in court, that I thought your giving evidence the other day was very courageous and you did it very impressively.  A credit to yourself.  All right, half past nine tomorrow. 

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