Director of Public Prosecutions v Robertson

[2018] VCC 171

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01747

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN ROBERTSON

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 February 2018
CASE MAY BE CITED AS:	DPP v Robertson
MEDIUM NEUTRAL CITATION:	[2018] VCC 171

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – indecent act with a child under 16 (1 charge) – sexual penetration of a child under 16 (1 charge)
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Crimes Amendment Act 2000 (Vic)
Cases Cited: Director of Public Prosecutions v Graham Clark [2015] VCC 1247; R v SBL [1998] VSCA 144; Gordon v The Queen [2013] VSCA 343; Matheas [2017] VSCA 330; R v CJK [2009] VSCA 58; DPP v EB [2008] VSCA 127; Zhao v The Queen [2018] VSCA 28
Sentence: Convicted and sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of 8 years, beginning on 7 August 2015, when the initial term of imprisonment was imposed by Judge Carmody

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Dunn	Solicitors for the Office of Public Prosecutions
For the Accused	Mr P. Stefanovic	Mike Wardell & Associates

HIS HONOUR:

1Mr Robertson, what I am going to do is go to a number of matters that have been raised by your counsel and the prosecutor, which I will go through in your interest, mainly so that you fully understand the reasons for the sentence I am giving you.  You are not inexperienced in this, but at any rate the Court has to go through this process I will ask you to stand when I am going to sentence you.

2The first thing I want to mention is that this plea was conducted at Ballarat on 14 February 2018.  The matter was adjourned to the last week at Ballarat for sentence and unfortunately due to issues that arose in Ballarat, was not able to be completed there.

3Mr Robertson is now 70 having been born on 26 January 1947.  As I say,
Mr Stefanovic appeared for him at the plea and appears today.  Mr Bourke was the prosecutor, and Ms Dunn appears today.

4Mr Robertson is a truck driver. He pleaded guilty to two charges on indictment H11052792, the first of those charges being an indecent act with a child under the age of 16. It was laid under s.47(1) of the Crimes Act and was a representative charge, the maximum penalty for such provided is ten years.

5Mr Robertson also pleaded guilty to a charge of partaking in an act of sexual penetration of a child under the age of 16. In that instance it was an act of fellatio, and was aggravated by the fact that the victim, who is present by way of video and listening to this sentence, was under the care, supervision and control of Mr Robertson. That therefore puts the crime into the category where the maximum penalty prescribed under the legislation is 15 years, the relevant legislation being s.45(1).

6I might say that I was somewhat concerned the particular section under which made up the second charge. I thank the prosecution for the assistance, and forwarding to me of the relevant transitional provision in which the Crimes Amendment Act and the provision which related to s.45, which was subject to such amendment, that is Crimes Amendment Act 2000, which makes it clear that the appropriate charge was indeed the charge as set out in the indictment.

7Exhibit A was the prosecution summary.  The offending in this matter took place over a period of one year from July 1994 through to August 1995. 
Mr Stefanovic accepted that the facts as detailed in the prosecution summary were the facts upon which Mr Robertson is to be sentenced. 

8The victim, who was then a child, was 11 at the time.  During such period Mr Robertson, who I said was a truck driver, was between the ages of 47 and 48.

9The circumstances in regard to both of these crimes were that Mr Robertson and his partner were friends of the victim's family and as a result babysat for that family.  That is how the victim came into the care and supervision of Mr Robertson.

10As detailed the offending took place over a year.  Insofar as Charge 1, that is the indecent act, it involved in totality a number of acts such as rubbing of
the victim's penis, the holding of the victim's testicles, mutual masturbation leading to ejaculation of Mr Robertson.  Charge 1 is representative of three further occasions which occurred in that year.

11Six weeks after Count 1 occurred, Count 2 occurred, which was an act of penetration of a child under the age of 16.  That act of penetration was one of fellatio.

12The victim, then complained subsequently to his mother about this and what Mr Robertson had been doing to him.  Unfortunately as this Court often observes, given that Mr Robertson was a friend of the family, essentially as we understand it, the victim's mother simply did not believe the complaint.

13Exhibit B was the victim impact statement which was read to the Court in Ballarat by the victim, if I might say, in quite a moving manner.  I have re-read this victim impact statement and it seems to me to contain no exaggeration and is consistent with what one understands is the impact of these crimes.

14There is no expert evidence before me, and I obviously am not an expert, but I accept the matters put forward by the victim.

15As to the admitted priors, there are two relevant.  The first is a matter that occurred by way of conviction in Devenport on 3 February 1976, when
Mr Robertson was convicted of the indecent assault of a girl and was given four months' gaol. The subsequent conviction was recorded in this Court by Judge Carmody, [2015] VCC 1247, handed down on 11 August 2015. It is to be noted that a pseudonym is used in that case. That is, it is the Director of Public Prosecutions v Graham Clark.

16As a result of sustained and serious sexual abuse of his step-son, over a nine year period, Mr Robertson was given a sentence of six and a half years with a minimum period of four years to serve.  What is of course important is that he was 37 over that period.  The offending that I am dealing with actually occurred shortly after that offending.

17Despite what is obvious from the sentencing remarks of Judge Carmody, the matters put to him by Robertson's counsel on that day were not correct.  It is quite clear that the Judge was lied to by Mr Robertson.

18As a result of that sentence, Mr Robertson was declared, and is for the purpose of this sentence, a serious sexual offender and, such provisions apply.  Also the reporting provisions provided for by Parliament have been activated as a result of the sentence of Judge Carmody, and again I do not have to make an order in that regard.

19Insofar as the plea was concerned, I had Exhibit 1 which was the written submissions of Mr Stefanovic and he spoke to those.  He submitted that there was, I should find, given the age and health of Mr Robertson, no relevant risk, which I accept, of further sexual offending.  I also accept that it was a situational circumstance, he is not going to find himself in such a situation again.

20I accept that in the circumstance it was also an early plea, and ultimately he admitted his guilt despite the initial record of interview.  He was charged on
6 April 2017, and indicated an intent to plead guilty on 31 August 2017. 

21I also accept that Mr Robertson currently is not of good health and was not of good health at the time of Judge Carmody’s sentence.  He is a person who suffers from obstructive lung disease.

22I also accept given the materials which I have read again being Exhibit 4 and 5, that is, the psychological reports, firstly of Mr Simon Kennedy dated 24 July 2015, Exhibit 4, and secondly the general practitioner Mr Rahman dated 4 August 2015, that is Exhibit 5.

23Mr Robertson, as a result of perusal of those reports, clearly is a person of low IQ.  He has issues with depression.  The purpose of those matters being put are to simply indicate matters relevant to the sentence.  It was not a Verdins proposition.

24What has been put is despite these criminal convictions, he does, and did have, a good work record, subject to his health for the 20 years that follow this offending.  It is also perhaps somewhat remarkable that his partner, who was with him at the time of these crimes, still stands by him and supports him.

25As to the actual offending for the purpose of the sentence, objectively both of these crimes are serious offences.  In regard to Charge 1 there is a clear breach of trust.  There is a significant age difference and as I have indicated we are dealing with and sentencing on Charge 1 as a representative matter in regard to those three other occasions.

26It is important however to remember that when sentencing in such circumstances, the principles set out by Batt AJ in R v SBL [1998] VSCA 144, [17] and [69] apply.

27These were recently gone over again in Gordon v The Queen [2013] VSCA 343, in particular at [74] and most recently in Matheas [2017] VSCA 330, at [46]-[50].

28I quote in particular the reference at [39] thereof, where there was reference made to R v CJK, when the Chief Justice with whom Vincent and Neve AJ’s agreed, summarised as follows:

"In my view it is a process to be cautious about the use of a term such as 'aggravating' in sentencing.  I do not consider that a representative count should be seen as aggravating per se.  Nor should the representative nature lead to an inappropriate sentence.  However a sentencing judge is permitted to look at the whole picture including the conduct which is represented in the count. 

In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances.  If those circumstances render the offence more serious and lead to a higher sentence that would otherwise have been imposed in the absence of the representation, then it is not unreasonable or erroneous to observe it as an aggravating feature even if only colloquially.  However, it would be desirable to avoid the expression in the context of sentencing in a representative count."

29Then further, Nettle AJ as he then was, was referred to in paragraph 40 of that case, in regard to a case in which he was involved, DPP v EB, where he said:

"The relevant counts are representative counts which made it appropriate to impose a higher sentence in relation to those counts than would be in relation to an isolated count.  Admittedly that notion is not without its conceptual difficulties because of the principles that a person is not to be punished for uncharged acts, but as Batt AJ explained, [and I have already made this reference in the case of R v SBL], the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and additionally it enables the offence to be seen in its full circumstantial context.  Thus a representative offence is likely to attract a greater sentence than an isolated offence."

30It is with those principles in mind that I sentence of course in regard to Charge 1. 

31In regard to Charge 2, as I have said, it is in fact aggravated by the fact that the child was in the care, supervision and authority of Mr Robertson, and indeed the sentence is set accordingly pursuant to the dictates of the CrimesAct.

32The learned prosecutor, despite Mr Robertson already being a declared serious sexual offender and these being relevant offences, did not seek a disproportionate sentence.  Section 16 of course applies.  There was no issue by counsel on behalf of Mr Robertson, that imprisonment was not appropriate, given the seriousness.

33Indeed, in the submission, set out in Exhibit 1, at  [23] put to the court were the matters that I have already mentioned; Mr Robertson's continued poor health, issues of his childhood neglect and physical abuse and indeed abuse of himself as a young boy being background factors, the low risk of reoffending, which I have accepted. As to there being nothing pending, I do not accept, given the lies told to Judge Carmody, however, I do not make any negative conclusion as to that. The borderline intellectual impairment, which I have already remarked on, the long-term drug abuse at the time and the early plea of guilty and delay.

34As I said to Mr Stefanovic, delay of course in these circumstances has very limited impact given that Mr Robertson appeared before this court in August 2015, and portended to the Court there was no further matters.  Of course the delay comes about from the failure for it to be reported on.  So there is very limited impact in regard to delay in sexual matters.

35But importantly, the issue that was stressed, given the sentence of Judge Carmody, Exhibit 6, was the issue of totality. 

36Insofar as the appropriate considerations of totality are concerned, these matters again present difficulties to the Court given the intent of Parliament and in particular the provisions that relate to cumulation of offences when sentencing a serious sexual offender.

37Such was very recently referred to by Tate AJ in Zhao v The Queen which was reported last week while I was in Bendigo, [2018] VSCA 28.

38In regard to such reference, Her Honour at [19] referred to the comments made by Redlich AJ, where Redlich AJ said this:

"A sentencing judge must evaluate the overall criminality involved in all the offences which the offender is to undergo sentence ensuring there is no disproportion between the totality of the criminality and the totality of the effective length of sentence imposed. Judges are also required to ensure that totality principles apply in a manner that will not undermine the legislative policy inherent in s.6E of the Sentencing Act. This tension between the policy underlying s.6E and the principle of totality is difficult to reconcile.

Authority has thus far provided no clear guidance as to circumstances in which the statutory presumption of full cumulation under s.6E should override the principles of totality. However it may at least be said that as the objective total offending increases, so will the degree of cumulation which is ordered thereby producing a total effective sentence which will be more closely corresponded with both the legislative policy underlying s.6E and the principle of totality."

39I take those comments into account in this sentence. Please stand Mr Robertson.

40In regard to Charge 1 you will be sentenced to a period of imprisonment of three years;

41In regard to Charge 2, a period of imprisonment of five years;

42Taking into account the matters that I have just referred to in s.6E and the principle of totality and giving due weight to the intent of Parliament, I have determined that it is appropriate to add one year of the sentence imposed in regard to Count 1 to be served cumulatively upon the sentence imposed in Count 2, making a total effective sentence of six years.

43The minimum period to be served before being eligible for parole is determined by s.14 of the Sentencing Act 1991 and by the totality of the criminality in this matter.

44As I said the sentence imposed by Judge Carmody in August 2015 was six and a half years with a minimum of four.  Those four years therefore dated from
7 August 2015.

45Pursuant to s.14 I impose a new combined period to be served before parole eligibility of eight years, beginning on 7 August 2015. So effectively I have added another four years to his minimum term. The minimum term of eight years is to begin on 7 August 2015.

46The end result of that, Mr Robertson, is this.  For these offences you have been given a total effective sentence of six years gaol.  That means that in regard to your minimum sentence that you had, an additional four years has been added, so that from 7 August 2015 you are required to serve a period of eight years before being eligible for parole.  Any issues in regard to that?

47COUNSEL:  No, Your Honour.

48HIS HONOUR:  Yes, all right, Mr Robertson, thank you. 

49MR STEFANOVIC:  Your Honour, might I have one moment with my client?

50HIS HONOUR:  Yes.

51MR STEFANOVIC:  Thank you.

52MS DUNN:  6AAA?

53HIS HONOUR:  6AAA in these circumstances are almost impossible to comply with.  I do not know how Judges are supposed to comply with it just relating to simply the plea of guilty, but in the totality of these circusmtances all I can say is I would have given him more gaol.  I suppose I can put a figure on it.  Just for the record it would have otherwise been an eight with a six.

54I should explain that.  Mr Robertson, it is the request of Parliament that you be made aware of what it meant by pleading guilty and what impact it had.  Effectively I have given you a total aggregate sentence of six years and I have added four to your minimum period, which effectively means you have been given a six with a four.

55Pursuant to s.6AAA I indicate to you that had you not pleaded guilty, you would not have got a six with a four, you would have got an eight with a six.  So that represents an indication to you the benefit of pleading guilty.  That is about the best I can do to comply with what Parliament want Judges to comply with.

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