Director of Public Prosecutions v Roberts

[2022] VCC 1044

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00997

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHANIEL ROBERTS

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2022
DATE OF SENTENCE:	5 July 2022
CASE MAY BE CITED AS:	DPP v Roberts
MEDIUM NEUTRAL CITATION:	[2022] VCC 1044

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sexual penetration of a child under the age of 16 – Serious sex offender – Aggravating factor –  Pregnancy – Young offender

Legislation Cited: s49B Crimes Act – s5A, s5B, s6B, s6D, s6E, s6F, s11A Sentencing Act

Cases Cited:Brown v The Queen [2019] 59 VR 432 – DPP v Amaral [2020] VSCA 290 – Worboyes [2021] VSCA 169 – Tokava [2006] VSCA 156 – Verdins [2007] VSCA 102 – DPP v O'Neill [2015] 47 VR 395 –  Brown v The Queen 62 VR 491 – Dalgleish (2017) 91 ALJR 1063 – Gordon v The Queen [2013] VSCA 342

Sentence:5 years and 6 months imprisonment – Non-parole period of 3 years imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms I. Ellis
For the Accused	Mr J. Connolly	Ms M. Paynter

HIS HONOUR:

1Nathaniel Roberts, is now 26, he was 24 at the time of this offending, having been born in March 1996.

2The plea in this matter was entered on 4 April when Mr Roberts was represented by Mr Connolly, as he is today, and the DPP was represented by Ms Fargher,
Ms Ellis appears today.

3Mr Roberts pleaded guilty to the four charges on the indictment. Each of those charges being, pursuant to s49B(1)(a) and (b) of the Crimes Act, sexual penetration of child under the age of 16.

4Pursuant to sub-s(2), the seriousness of this crime is indicated by the fact that the maximum penalty imposed by Parliament for this offence is 15 years' imprisonment.

5The facts, as set out in Exhibit A, were accepted by Mr Connolly as the facts which I have to take into account in this sentence.  This offence not only has the maximum penalty prescribed, but has also been declared by Parliament to be a standard sentence offence.  Pursuant to sub-s(3) of 49B the standard sentence applicable to each of these charges is one of six years' gaol.

6Given such determination by Parliament, the provisions of sub-s5A, 5B and 11A of the Sentencing Act apply here, as well as all the other sections in s5 and all other relevant sentencing principles.

7Hence, in each charge in sentencing you, Mr Roberts, for such standard sentencing offence, I must take the standard sentence of six years into account.  This is what is described by the Court of Appeal as a legislative guide post and is one of the many factors which I must take into account in regard to your sentence, see Brown v The Queen [2019] 59 VR 432, [55] to [57].

8Mr Roberts, you will already understand why I said to you there is a lot of material to go through, and a lot of technical jargon unfortunately.  It is necessary for me to go through that, in order to ensure that you are given a just sentence.  The details will be explained to you subsequently.

9Also, s6B(1) of the Sentencing Act applies, as each of these offences are sexual offences as defined, Schedule 1, clause 1, sub-paragraph 49. That means that after a sentence is pronounced in regard to Charges 1 and 2, the provisions relevant to serious sexual offences become applicable. That is pursuant to s6D of the Sentencing Act, protection of the community becomes the primary purpose of the sentence in regard to Charges 3 and 4.  However it must be said that there is no submission put to this Court that a disproportionate sentence is applicable.

10Section 6E also becomes applicable, that the sentence imposed in Charges 3
and 4, must unless directed otherwise be served cumulatively on any other sentence passed this day.

11And finally, s6F which says that serious sexual offender status is to be noted in the records in regard to Charges 3 and 4.

12Also, I should add and this should be done now, and should have been done first, I am sorry, but you are also subject to the sexual reporting provisions for life.  That is not something pronounced by this Court, but is a provision of Parliament.  It is necessary for the Court to give you a document which you are required to acknowledge and you might attend to that now, Mr Connolly.

13MR CONNOLLY:  May I approach Mr Roberts, Your Honour.

14HIS HONOUR:  Yes.  Mr Connolly all we need is an acknowledgement at this stage.

15MR CONNOLLY:  Yes.

16HIS HONOUR:  You can explain the details in due course.

17MR CONNOLLY:  All right, yes.  Your Honour he's indicated he understood and acknowledges.

18HIS HONOUR:  But I think we need a signed acknowledgement.  Mr Connolly you will explain as I have said to your client, that this has nothing to do with the Court, this is prescribed by parliament.

19MR CONNOLLY:  As Your Honour pleases.

20HIS HONOUR:  All right.  Coming then to the offences themselves as detailed in Exhibit A.  Each of these acts of intercourse were committed upon the victim with no condom.  In those circumstances, even though, for example in Charge 1, the ejaculation took place on the sheets, there must always be a risk of pregnancy and of the passing on of disease.

21Charge 2 is agreed to be aggravated by the fact that at the age of 15, the victim fell pregnant to Mr Roberts. That aggravating fact, as to Charge 2, is accepted by both parties.  See the principles detailed in such circumstances in DPP v Amaral
[2020] VSCA 290. However, one must make the point that the circumstances in that case of Amaral are much more serious than we're dealing with here. However, the point is, which I will come to later when I talk about the victim impact statement, as the Court remarked at [34], the profound long-term effect that such pregnancies have on young women.

22Charges 3 and 4 are both rolled-up charges.  In each, they relate to two separate acts of intercourse, which happened within 24 hours of each other.

23There is a clear age difference in these circumstances.  At the time of this offending, as I said, you were 24, the victim was 15, hence there is a considerable age difference.  As the case of Amaral shows there are cases where there are higher age differences, however, the age difference I find is significant in this case, given you are dealing with a 15 year old child.

24There was no violence involved in these charges, indeed the sexual intercourse in each of the instances was willing in the sense that the victim was a willing participant.  Obviously, the legislation is designed to protect young children, there can in law be, of course, at no stage consent.

25The other factor was there was no breach of trust.  Again, compared to Amaral for example, the sexual intercourse that took place in that instance took place with an uncle upon a child aged a similar age as the victim here.

26Again, taking the background from Exhibit A, Mr Roberts and the victim met on 12 August 2020.  The sexual relationship that they entered into thereafter took place over a relatively short period of 11 days.  On 12 August, the victim and a friend stayed at Roberts' home for the night and both slept in his bed.  They were still there the next day drinking an excessive amount of spirits, to the extent that they became extremely intoxicated. 

27That apparently was the first time they had sex.  He is not charged for that matter, the ejaculate was apparently passed onto the bed.  In discussions the victim told Mr Roberts that she was 15.

28Charge 1 occurred some seven days later on 19 August, again at Mr Roberts's home, when the victim came to his home again willingly, engaged in sexual intercourse willingly and stayed at the home for a number of days.

29The subsequent circumstances take place in the period 28th to 29 August 2020, when apparently the victim came and stayed at the premises for a week.  There were multiple acts of sexual intercourse and digital penetration of the victim's vagina during this period.

30Charge 2 relates to the particular occasion when the victim remembers
Mr Roberts ejaculating into her vagina, again by way of unprotected sex.  As I said, it has been agreed between the parties that this is the instance when she became pregnant.

31Charges 3 and 4 take place in the same period.  They are rolled-up charges and both of them relate to two acts of intercourse in each rolled-up charge.  During such time there was further discussion between both the victim and Mr Roberts about her age, about the risk of having intercourse with a child of her age, and indeed there was apparently a form of agreement whereby they said they would not tell anyone about their sexual liaison.

32As fate would have it, within the month, unfortunately, the victim missed her period, and by 28 September had reported to her mother this fact.  Shortly thereafter, the mother reported the matter to the doctor.  The pregnancy was confirmed.  The doctor pursuant to his obligations reported the circumstances when he was apparently advised by the mother that the father was of a certain age, and the victim was aged 15.

33Subsequent to those disclosures, Mr Roberts was interviewed and made full admissions.  In regard to this sentence it is obviously of importance that prior to this time, Mr Roberts had no priors, and comes before the Court as a person of good character.

34The prosecution tendered as Exhibit B, the victim impact statement of the victim.  I point out to any person from the Fourth Estate reporting this matter that the victim remains a child, and obligations as to reporting obviously apply.

35As I said, the victim impact statement was dated the first day of April 2022.  At p7, she reports, given her age, that she did not realise that what she was doing was wrong.  She reports on the impact upon her for life, the hardship, the difficulties raising a child, albeit she loves her child very much.  But particularly on p12 she recounts the restrictions and difficulties on a young girl, having the obligations to raise a child.  And the restrictions she talks about at p12 are exactly the restrictions which form the basis for Parliament passing this legislation.

36The victim impact statement is demonstrative of the need for protection of young women and that is the reason why this protective legislation was passed, to protect young women from elder men having sexual congress with them, and to protect them from the consequences of such intercourse, when men such as Mr Roberts decide to have that intercourse in an unprotected situation.  It is hard to imagine how stupid one can be, but there we are.  As a result of such stupidity Mr Roberts is before the Court and the victim has a child to care for.

37It is clearly the reason why Parliament has prescribed a 15 year maximum sentence for this crime, because this is protective legislation.  Such demonstrates the view of Parliament, and the community, that sexual intercourse with a child in these circumstances is a significant and substantial criminal offence.

38The prosecution also tendered as Exhibit C, its sentencing submissions and essentially raised many of the things that I have already referred to and submitted that there should be a head sentence with a non-parole period passed.

39The plea of Mr Connolly involved the tendering of the defence outline of submissions.  They were dated 1 April 2022, and the psychological report of
Ms Sandra Cokorilo, dated 5 December 2021.

40Mr Connolly spoke firstly as to mitigating factors, being firstly the guilty plea of his client, that comes upon a totally cooperative record of interview.  There was no committal required in this matter, saving of course, the victim having to give any evidence, and clearly the plea is to be seen as utilitarian, and an indication of his acceptance of guilt.

41Mr Connolly also referred to the principles of Worboyes [2021] VSCA 169, [39]. No doubt, it would have been hoped in the community, that those principles are not still applicable, unfortunately they still are. Given the difficulties that the justice system is under, a plea in these circumstances is enhanced and calls for extra mitigatory consideration in the manner prescribed by the Court of Appeal.

42As I have already said, fundamentally important is that Mr Roberts comes before the Court with no priors.  I accept the submission of Mr Connolly that Mr Roberts has a good chance of rehabilitation, given his relative young age.  I accept that the principles of Mills and indeed Tokava [2006] VSCA 156, [4] and [24], are appliable to this sentence.

43I also accept the proposition that gaol, given the totality of his medical conditions, will be much harder for him than the average person, and that he will suffer vulnerabilities.

44Coming to the offending, Mr Connolly pointed out that there was no assaults involved in this matter, apart from the obvious connection.  But there was no assaults as we know it, that there was no grooming.  That it wasn't a situation as I have already said, in Amaral, where there was a position of trust abused.  It was submitted by Mr Connolly that there was not a significant age gap, that is nine years between 15 and 24, and by way of comparison to the case that I have already stated, of Amaral.

45However, in my view in the particular circumstances of this case, nine years dealing with a 15 year old girl is still seen in my view as significant.  There are longer, it was 15 years in Amaral, I have already mentioned the difference in that case of a breach of trust and of course the sexual offending was considerably more protracted in that case than here.

46There is of course a clear differentiation to be made between Charge 2 and the other charges, that is Charge 2 being aggravated by the pregnancy.  And of course, as I have already indicated, also Charges 3 and 4, the serious sexual offender provisions have to be taken into account.

47Mr Connolly also submitted that all limbs of Verdins [2007] VSCA 102, [32] apply. In support of that, he tendered Exhibit 2 which is the psychological report of Sandra Cokorilo dated the 5th day of December 2021. Specifically, her conclusions as to Mr Robert’s client's mental condition as of today, being set out at [73] and [83] and her opinion as to the impact of such, at the time of this offending.

48Despite Ms Cokorilo's opinion, I note:

(1)that the depression that he was suffering was in the context of long-standing drug addiction, which began at the age of 17;

(2)that he had never been treated at any stage with any form of psychotropic medication;

(3)that at [35] he reports, that he has no medical issues and he is in good health;

(4)

that the first time an issue of self-harm arose, in fact occurred prior to this offending in July of 20, when there was apparently a risk conveyed to him of being potentially involved in a gaol sentence related to some alleged assaults.  This risk of self-harm was exacerbated in particular once these crimes were reported, and he became particularly concerned as to the consequences of his actions.  Those matters are fully set out at

[33] of the report;

(5)he has a history of ecstasy abuse between the ages of 15 to 17.  Up until 2020 was a regular weekly user of MDMA, GHT[sic], amphetamines, cocaine and/or LSD;

(6)at the time of the offending he was both drug and alcohol affected, see [44];

(7)at the date of the examination he was coherent in thought and had no perceptual disturbance or thought disorder;

(8)albeit that he is described as being of low intelligence, the actual testing shows him to have an IQ of 97, which the psychologist takes the view is similar to his age-related peers.

49

As to the role of the totality of his mental condition as described in

[79], and its relationship to the Verdins principles, I am not satisfied that such opinion is sufficient to enliven limbs 1 to 4.

50Such applications must be rigorously examined, DPP v O'Neill [2015] 47 VR 395, [71]. I am not satisfied, given the impact of drugs and alcohol at the time, that at the time of this offending the mental functioning, as described by Ms Cokorilo of which I do not dispute, was of such severity as to reduce the moral culpability of these crimes.

51In this instance, while I accept the evidence of the impediments as of today, I do not consider as of the time of this offending the necessary causal nexus has been established to the satisfaction of this Court.  See in particular in this instance, Brown v The Queen 62 VR 491, [70] to [72].

52

I should say that I do accept however, given the details set out in [33] of the report, and indeed the opinions in [99] and [92] that the principles in

Verdins

5 and 6 are applicable, that prison for him will create a risk of further exacerbation, and will create for him a greater burden than would be put upon a normal member of the community.

53I have read the details as to the ongoing help of his partner, while he has been on remand and worrying about gaol, and I note the opinions of the psychologist.  In those circumstances it seems to me that the officers should be given a copy of this report and that should be conveyed immediately to Corrections upon the carrying out of this sentence.  There is an established risk of suicide in this matter and I will make it clear to the Corrections Department the obligations that apply.

54As I have said to you Mr Roberts, and as I have tried to explain perhaps in somewhat difficult and technical language, you are sentenced upon the totality of all the factors that I have set out and taken account of.

55Pursuant to the provisions of Dalgleish (2017) 91 ALJR 1063, 1072, [49], a determination of the High Court of, you are entitled to individual justice, and a just sentence upon the facts of this case, which I will now pronounce. If you would stand please?

56On Charge 1, you will be sentenced to a period of imprisonment of two years.

57On Charge 2, a period of imprisonment of five years.

58Given those circumstances, the sentence of Charge 3 and 4 must be carried out on the basis that you are to be sentenced to each of those offences as a serious sexual offender.

59Taking those principles into account and the factors that I have already referred to, in regard to Charge 3, you will be sentenced to a period of imprisonment of three years.

60And in regard to Charge 4, a period of imprisonment of three years.

61As I have said, given the serious sex offenders provisions in the Sentencing Act, the sentences imposed on three and four must, unless otherwise ordered by me, be served cumulatively upon the other sentences.

62This creates of course a difficult tension, as was described by Redlich JA in Gordon v The Queen [2013] VSCA 342. I am required to evaluate the overall criminality involved in all of these offences, for which you are to undergo sentence to ensure that there is no disproportion between the totality of the criminality and the totality of the effective sentence imposed.

63I am also directed by Parliament to ensure, that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. As Redlich JA said, the tension between the policy underlying s6E and the principle of totality is difficult to reconcile.

64In these circumstances, I conclude that totality is such that full cumulation should not be effected.  Indeed for Charges 3 and 4, I intend to only order cumulation of 3 months for each charge upon Charge 2.  Making therefore a total effective sentence to be pronounced upon you, Mr Roberts of five and a half years.

65I then come to assess the minimum period that you must be sentenced to serve in gaol. Because this is a standard sentence, the provisions of s11A come to be taken into account. However, rather than applying that rigidly I fix, in the interests of justice, the period that you must serve, prior to being eligible for parole, as three years.

66The analysis as best I can do it, which would otherwise have applied had I followed 11A, is a period of three years, nine and a half months.  That is, pursuant to 5B of the total effective sentence of five and a half years.

67

I declare that you are sentenced as a serious sexual offender, in regard to

Charges 3 and 4, and such declaration will be entered in the records of this Court.

68I am required by Parliament to state to you the value of your plea.  I always find it a difficult thing to say when you are sentencing someone to gaol, but I am required by Parliament to explain to you the benefit of you pleading guilty.  That is demonstrated by Parliament asking me to tell you, that had you not pleaded guilty the sentence that you would have got, would not have been five and a half years with three as a minimum, but seven and a half years, with four and a half as a minimum.  And that is really an example set by Parliament, although, I find it very difficult to make those pronouncements in these circumstances.

69You can take a seat.  Either counsel have any queries?

70MR CONNOLLY:  No, thank you, Your Honour.  As Your Honour pleases.

71MS ELLIS:  As the Court pleases.

72HIS HONOUR:  Yes, I thank both counsel and your counsel for their assistance in this matter.  Mr Roberts, I wish you luck for the future.  I am sure that you will effect rehabilitation, despite having to be sentenced to this term for these four serious offences.  Yes.  Now, you can take the prisoner away.  You will go and see your client and explain what must seem very technical to him.

73MR CONNOLLY:  Yes, Your Honour.

74HIS HONOUR:  Yes, thank you.

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