R v Proberts

[2022] NSWDC 737

District Court

New South Wales

Medium Neutral Citation:

R v Proberts [2022] NSWDC 737

Hearing dates:

18 November 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [53-54]

Catchwords:

CRIME — Sexual offences — Have sexual intercourse with person greater than or equal to 14 years & less than 16 years.

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

R v Wong [2003] NSWCCA 247

Jolly v R [2013] NSWCCA 76

WB v R [2020] NSWCCA 159

R v AB [2022] NSWCCA 3

R v Mauger [2012] NSWCCA 51

Texts Cited:

N/A

Category:

Sentence

Parties:

Rex (Crown)
Alfred James Proberts (offender)

Representation:

Counsel:
Franklin (for the Crown)

Solicitors:
Meech (for the offender)

File Number(s):

2020/00082123

Publication restriction:

N/A

Judgment

Introduction

1. Alfred James Proberts (“the offender”) appears for sentence in respect of one offence, that in breach of section 66C(3) of the Crimes Act 1900 he did on 10 December 2005 have sexual intercourse with the victim of the offence who was then a child above the age of 14 years and under the age of 16 years.

2. The case is with respect a relatively straight forward one, and the outcomes argued for by the parties as being appropriate, albeit not their primary positions, are not too distant from each other. Despite that, the conduct of the matter has been somewhat fiercely fought, and a range of issues ventilated, and it assists to raise some of those various issues at the outset.

3. On 5 August 2022 Jay Healey was sentenced in respect of a charge under the same section of the Crimes Act. Mr Healey and the offender were charged separately, with no allegation made of them being engaged in a joint criminal enterprise. The facts below will show there is little to distinguish between the offending factually. What is different is that at the time of the offending Mr Healey who was born on 28 November 1988 was 17 years and 12 days old and the offender was 18 years 5 months and 15 days old, having been born on 25 June 1987. The victim was 14 years 9 months and 16 days old, having been born on 24 February 1991. The age disparity between the two offenders and the victim was 2 years 2 months and 26 days in the case of Mr Healey and 3 years and 8 months (less 1 day) in the case of the offender. In the conduct of the sentence of Mr Healey, and until the receipt of an additional submission by the Crown after the sentencing hearing of the offender, all parties had proceeded on the basis that section 80AG of the Crimes Act was in force as at 2005. That section provides a defence to a person who has sex with a child aged over 14 if the person is within two years in age to that of the child. That section was not in force as at the date…