R v Roberts

[2019] NSWDC 234

District Court

New South Wales

Medium Neutral Citation:	R v Roberts [2019] NSWDC 234
Hearing dates:	16 April 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Sentenced to an aggregate sentence of eight years imprisonment with a non-parole period of six years
Catchwords:	SENTENCING — historical child sexual offences — aggregate sentence of imprisonment
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120 R v Egan [2016] NSWCCA 285
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) David Clive Roberts (Offender)
Representation:	Counsel: A Cassels (Offender)   Solicitors: R Kanakaratne (Crown)
File Number(s):	2018/000180137
Publication restriction:	Statutory non-publication order concerning identity of complainants

SENTENCE

1. The offender pleaded guilty in the Local Court and adhered to those please before me to the following four offences, that between 1 January 1999 and 31 December 1999 at Penrith he assaulted AA and at the time of the assault committed an act of indecency on AA in circumstances of aggravation, namely, that at the time of the offence AA was under the age of 16 years, namely, aged 11 or 12 years.

2. There is a second offence in relation to AA and that is, that between 1 January 1999 and 31 December 1999, the offender assaulted AA and at the time of the assault committed an act of indecency on him in circumstances of aggravation in that at the time of the offence, AA was under the age of 16 years, namely 11 or 12 years of age. Both of the offences which involved the victim AA are offences under s 61M(1) of the Crimes Act. At the relevant time, they had a maximum penalty of seven years imprisonment and there was no applicable standard non-parole period.

3. The two remaining offences concern the victim BB. The first is an offence between 1 January 1998 and 31 December 1998 at Penrith, the offender assaulted BB, a person then under the age of ten years, namely, seven or eight years of age and at the time of the assault committed an act of indecency on BB. That is an offence under s 61M(2) of the Crimes Act and at the relevant time, had a maximum penalty of ten years imprisonment and there was no applicable standard non-parole period.

4. The second offence involving BB was an offence that between 1 January 1998 and 31 December 1998 at Penrith, the offender had sexual intercourse with BB who was, at that time, under the age of ten years, namely, the age of seven or eight years. That was an offence under s 66A of the Crimes Act. There was at the time a maximum penalty of 20 years imprisonment with no applicable standard non-parole period.

Facts of the offending

5. The facts are agreed and the following is taken from the agreed facts. AA was born in 1987 and BB was born in 1990. They are half-brothers. They have different fathers but the same mother.

6. In around 1994 their mother moved to Penrith. She was living with her husband, the father of BB and their two sons CB and BB. AA was about eight years of age at that time and he would visit and stay during the holidays. He was living with his father on the South Coast. At that time, the offender was living a short distance away in Penrith.

7. The children would often play in the front yard of their house and the offender would come and play with them or take them to the nearby sporting ovals.

8. In the late 1990’s, the victim’s mother was working in Penrith and this entailed shift work. Her then husband was also working full-time and the couple would often organise for their children to be baby-sat. The victim’s mother and the offender came to an agreement that he would baby-sit the two victims. He did not receive any money for this service. The victim’s mother says this arrangement came about when the offender found out that she was paying a babysitter.

9. In 1999, the victim’s mother moved to another address in Penrith which was not far from the previous address. At some time in the early 2000’s when BB was about eight years of age, he approached his mother and grabbed her on the crotch. She asked BB what it was that he was doing and told him that his behaviour was inappropriate. BB told his mother that the offender would do that to him. His mother asked him when was this happening and BB said it was happening when he would stay at the offender’s home.

10. In terms of the first in time offence and the indecent assault offence concerning BB, on a day in 1998 when BB was seven or eight years of age, he was at the offender’s house with his brother. He was watching TV and the offender was sitting next to him on his right. The offender reached over with his left hand and placed it down BB’s pants underneath his underpants. He masturbated BB for a few minutes.

11. In terms of the sexual intercourse offence in relation to the victim BB, on a day in 1998 when the victim was seven or eight, he was at the offender’s house in the afternoon for a visit. BB was watching TV while seated on the lounge. The offender licked his hand and placed it down BB’s pants and started to rub his penis. The offender rubbed his penis for a few minutes. The offender then laid BB down on his back and performed fellatio on him for some minutes. The victim continued watching TV while the offender performed fellatio upon him moving his head in an up and down motion on his penis.

12. A car drove into the driveway and the offender stopped. The offender told BB to pull his pants up and not to tell anyone about what had happened. A male came to the front door and BB left the premises a short time later.

13. In terms of the first incident concerning AA, on a day in 1999 AA aged then eleven or twelve was with the offender in his vehicle. This was a day where the offender was babysitting the victim and his brothers. AA was sitting in the driver’s seat of the four wheel drive while it was stationary, playing with the CB radio, which was fixed to the dash of the vehicle. The other boys were playing somewhere else at the offender’s house and not in the immediate vicinity of the vehicle.

14. When AA was playing with the radio, the offender kept leaning over him to change the channel on the radio and would swipe his hand across AA’s lap making contact with his groin before leaving his hand to rest on his lap. The offender then slid his hand up AA’s pants, under his underwear, and began to masturbate him. After a minute or so, the offender took hold of AA’s right hand and placed it on his crotch. AA could feel that the accused’s penis was erect underneath his trousers. The offender began to rub AA’s hand on the offender’s penis. This lasted for about a minute until someone came outside of the house. The victim was confused about what had happened to him and decided not to tell anyone about it.

15. In terms of the second indecent assault offence concerning AA, about a month or so after the first offence, AA again aged eleven or twelve, was at the offender’s house with his brothers CB and BB. On that night, each of the boys slept on a mattress that was placed on the lounge room floor. AA fell asleep while lying on the mattress. At some point during the night, he was awoken with the offender lying next to him. The offender had his pants on, however, his penis was exposed and he had placed AA’s hand onto his, the offender’s, penis. The offender began to stroke AA’s back and side. After a couple of minutes, AA pretended to be asleep. The offender reached around AA’s body and undid the drawstring of his shorts. The offender then pulled down AA’s shorts past his buttocks, exposing his entire bottom. AA could feel the offender’s penis against his buttocks. The victim panicked, sat up and ran to the bathroom. He remained there for a short period of time before returning to the lounge room. The offender was sitting on the lounge and his brothers were still awake on the other mattresses.

16. In terms of the offences coming to the police attention, on 4 May 2017, AA was at Penrith Panthers Leagues Club when he noticed the offender working at the club in a maintenance role. He confronted the offender and security staff intervened and the police were called. AA then made a statement to police on 7 May 2017. BB then gave a statement on 10 May 2017 and on 4 May 2018. The offender voluntarily attended the Penrith Police Station in relation to the allegations.

Assessment of objective seriousness

17. I turn then to my assessment of the objective seriousness of the four offences. In relation to each of the offences, I am satisfied that the offending involved a breach of trust and that aggravating factor under s 21A(2) is present here in relation to each offence. The offender was, in effect, a babysitter of the two children, having been engaged by their mother to do so on a non-paying basis.

18. The first in time offence involving BB involved the offender masturbating the victim for a few minutes. The victim was seven or eight years of age at the time. There was skin on skin touching of the boy’s penis. The victim was very young but towards the upper end of the age limit for such offending. The fact that an indecent assault on a child is of relatively short duration is not something which necessarily reduces the level of objective seriousness of an offence, see R v Egan [2016] NSWCCA 285. There is no suggestion the victim’s brother was aware of what occurred. I assess the objective seriousness of that offence as being a little below a notional mid-range offence.

19. The second offence involving BB involved the offender performing fellatio on the boy who was seven or eight years of age. It was preceded by the offender rubbing the boy’s penis for a few minutes. Again, the boy was young but his age was towards the upper end of the age range for a victim of such an offence. The incident ended when a car pulled into the driveway of the home of the offender. The offender told the boy not to tell anyone about what had happened.

20. While there is no actual hierarchy of sexual intercourse, it may generally be thought that fellatio on a boy is less serious than anal intercourse or forcing the boy to perform fellatio on an adult offender. I assess the objective seriousness of that offence as being a little below the mid-range level of objective seriousness.

21. In relation to the first offence involving AA, the victim was aged 11 or 12 years of age, so well below the upper age limit for a victim of such an offence. The offence involved the masturbation of the victim so there was skin on skin contact. The offender also caused the victim to touch his erect penis through his trousers and there was a forced rubbing of his penis by the child, again through the trousers. I have assessed the objective seriousness of this offence as being a little below the mid-range level of objective seriousness.

22. In relation to the second offence concerning AA, the offence occurred after the boy had gone to bed and fallen asleep and involved the offender placing the boy’s hand on his penis and the offender stroked the boy’s back and side. The offender undid the boy’s shorts and put his penis against the boy’s buttocks. Given the number of acts of an indecent nature towards the boy on that occasion, I consider the offence falls within the mid-range level of objective seriousness for such an offence.

23. There are two victim impact statements before me from the two victims. Clearly, the offences have had a significant effect upon the two victims and have affected them as they have grown up and in their relationship with others.

Offender’s subjective case

24. I turn then to the offender’s subjective case. He is currently 60 years of age. He was in his early forties as at the time of the offences. He does have a criminal history of some relevance here. In 1985, he was dealt with in this Court for ten counts of committing an act of indecency on a male under 16 years. He received a combination of Community Service orders and good behaviour bonds for those offences.

25. In 1994, he was again dealt with in this Court for an offence of committing an act of indecency with a male under 16 years and again received a good behaviour bond.

26. His criminal history, given the nature of the previous offences disentitles the offender to any leniency in this sentence.

27. He has spent no time in custody prior to when I heard the sentence proceedings on 16 April 2019 when I remanded him into custody. I will backdate the sentence to commence from that date.

28. There is before me a report dated 22 March 2019 by Ann Lucas, a consultant forensic psychologist. Essentially the subjective case for the offender is found in that document. I note the offender did not give evidence before me so the statements made by him to the psychologist remain untested.

29. In terms of his family background, prior to being remanded into custody the offender lived with his 85 year old mother in the offender’s childhood home. He told the psychologist that his mother had been a kind and caring parent but his father, now deceased, was a heavy drinker and could be aggressive towards him; he denied, however, being subjected to domestic violence when a child. He told the psychologist he had lived with his parents nearly all of his life except for the time period when the current offences were committed.

30. The offender told the psychologist that when he was a boy he was sexually abused by a priest while on a scout camp. According to the psychologist, the offender had difficulty recalling details of the incident including his age at the time but did recall the priest touching him on the genitals. He also told the psychologist he had been touched on the genitals by a work colleague when 17.

31. While there is no independent confirmation of these two incidents the psychologist considered that “the physical re-activity” displayed by the offender during the recounting of the incidents led credibility to his account of them. He maintained to the psychologist that he was sexually attracted to women but only recalled having a sexual relationship with one female when he was 16 years of age. He denied hebephilic or paedophilic interests. He told the psychologist that he spent most of his time with his mother or alone.

32. In terms of his education and employment history, he told the psychologist that he attended local schools and had left school at the end of year 10. He embarked upon an apprenticeship as a house painter. He completed that but told the psychologist he did not like that type of work and found employment as a cleaner at a leagues club where he worked for 20 years prior to the laying of the current charges. He left his employment following the laying of the charges and became his mother’s carer.

33. He provided to the psychologist no history of drug or alcohol misuse.

34. In terms of the psychologist’s assessment of the offender, the psychologist considered that he described symptoms which contained elements of traumatic response, particularly depression, but his symptoms did not support the diagnosis of post-traumatic stress disorder.

35. Psychometric testing was administered to the offender and revealed a significant elevation on the depression scale. The testing also revealed that on occasions he has thoughts of self-harm and was uncomfortable in most social situations. He did indicate he was willing to undertake treatment for his depression. Given his thoughts concerning self-harm the psychologist recommended that he be routinely monitored while in custody.

36. He told the psychologist that as at the time of the offences he had rationalised his behaviour by thinking he was not doing any harm to the children and that they were “willing participants”. He claimed to the psychologist that he now had insight into his offending and that he has always felt guilty about the offences.

37. The psychologist also recorded that the offender had, no doubt because of his prior convictions, been involved in treatment for his offending in the past, although the precise nature of the treatment could not be ascertained. I do not have a sentence assessment report before me so I have no information about his performance under supervision when on the good behaviour bonds imposed in the past.

38. In terms of his attitude to the offending, the psychologist noted that the offender denied deviant sexual interest but also supplied information suggesting that he represses his awareness of sexual feelings towards children. I deduce from what is contained in the psychologist’s report that the offender does not fully accept that he has deviant sexual interests, which he clearly does have, and this impacts upon my assessment of his prospects of rehabilitation. The psychologist considered that in terms of his risk of re-offending he has a low to moderate risk. I note in that regard there is no suggestion he has re-offended since the offences I am to sentence him for.

39. He entered pleas of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his plea.

40. There is some evidence of remorse given his statements to the psychologist and his early guilty pleas. I consider, however, given his inability to acknowledge that he has deviant sexual interests that there is only limited remorse. While the psychologist considered that he has a low to moderate risk of re-offending, given his prior offences of a similar nature and the fact that he has not fully acknowledged his deviant sexual interest, I consider his prospects for rehabilitation are no better than reasonable. The fact that he has not come to notice since the offences I am to sentence him for justifies that finding.

41. I do not consider that there are special circumstances here.

Determination

42. I will utilise the aggregate sentencing provisions; if I had not done so there would have been some accumulation of the sentences because of the number of offences and the fact that there are two victims.

43. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Sexual offending against children is abhorrent to all right thinking members of our community. Children must be protected so that they can enjoy the joys of childhood free of sexual predators like the offender. General deterrence must feature significantly when sentencing for sexual offences against children. The sentences that are to be imposed must be of sufficient severity to be adequate punishment for this offender and to deter others from engaging in such wicked conduct. I note, given the offender’s prior convictions for similar offending, specific deterrence must also be reflected in the sentences I impose.

44. These offences occurred at the end of the 20th century; while the offender is to be sentenced on the basis of the maximum penalties that applied at the time of the offending, which are less than those which applied if the offences were committed now, I note s 25AA of the Crimes (Sentencing Procedure) Act requires me to sentence him in accordance with today’s sentencing patterns and practices and that I must consider the understanding the Court now has of the trauma children suffer who are the victims of sexual abuse. It is an unfortunate reality that due to the number of these types of cases coming before the District Court in recent years the Court is very much more informed about the level of trauma child victims suffer than it was previously. The maximum penalties have been taken into account as legislative guideposts as explained by the High Court by Muldrock v The Queen (2011) 244 CLR 120.

45. Please stand up Mr Roberts. You are convicted of the four offences to which you have pleaded guilty. I will firstly record the indicative sentences and then I will announce the aggregate sentence I am imposing. I have had regard to all the objective and subjective factors, discussed earlier, in arriving at both the indicative and aggregate sentences.

42. On charge sequence 4 being the indecent assault on BB there is an indicative sentence of one year and ten months.

43. On charge sequence 6 being the sexual intercourse offence on BB there is an indicative sentence of six years imprisonment.

44. On charge sequence 2, being the first indecent assault offence concerning AA, there is an indicative sentence of one year and ten months imprisonment.

45. On charge sequence 3, being the second indecent assault offence concerning AA, there is an indicative sentence of two and a half years imprisonment.

46. I impose an aggregate sentence of eight years imprisonment with a non-parole period of six years which commences on 16 April 2019 and expires on 15 April 2027. The non-parole period expires on 15 April 2025 and that is the earliest date that you may be released to parole. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

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Decision last updated: 06 June 2019