R v Roberts

[2018] NSWDC 473

District Court

New South Wales

Medium Neutral Citation:	R v Roberts [2018] NSWDC 473
Hearing dates:	2 November 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I sentence you to an aggregate term of imprisonment of 3 years. I fix a non-parole period of 2 years commencing on 27 May 2026 and expiring on 26 May 2028. The additional period is one year, expiring on 26 May 2019.
Catchwords:	CRIME – SENTENCE – A number of serious domestic violence offences committed by a 53 year old man on his third partner/second wife – offender had earlier been sentenced for child sexual assault offences to 18 years imprisonment with a non-parole period of12 years – at end of that non-parole period offender will be 65 years old – consideration of offenders physical and mental health and risk of institutionalization – aggregate sentence of 3 years imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007
Category:	Sentence
Parties:	Regina (Crown) Danial Bernard Roberts (Offender)
Representation:	Counsel: Ms B Parker (Crown) Mr Z Khan (Offender)   Solicitors: Solicitors for the DPP (Crown) Galloways Solicitors & Attorneys (Offender)
File Number(s):	2015/00259945
Publication restriction:	Nil

sentence

1. HIS HONOUR: Danial Bernard Roberts stands for sentence as a consequence to having pleaded guilty to three counts in an indictment that was presented before her Honour Judge Syme on 18 May 2018. The offender pleaded guilty to that amended indictment. He also asks me to take into account on a Form 1 a further four charges. Each count in the indictment and each charge on the Form 1 are all offences which occurred on 31 August 2015. The victim of all the offences was the offender’s wife, Katie Roberts.

2. The couple married on 25 April 2003. At the time of these offences, the couple had been married for more than twelve years. However, the background facts agreed between the parties tell me that the relationship had in fact persisted for some sixteen years. The relationship between the offender and his wife Katie, his second wife, commenced when Katie was seventeen years old and the offender was thirty-seven years old. There had been a number of unhappy occurrences in the life of the offender and his wife prior to 31 August 2015 but those unhappy occurrences can in no way excuse the offender for his conduct on that day.

3. At the time, the couple were living in a caravan located at 192 Knox Road, Doonside. The caravan was 8.5 metres long and contained two bedrooms, a lounge room, a kitchen and a bathroom. At about 8pm on 31 August 2015 the couple were watching television. However, the offender was in the lounge room and his wife was in a bedroom. The offender then ran into that bedroom and started yelling at his wife. He yelled, “You're a slut, you're a bitch.” The victim then curled up, I assume in the foetal position, on the bed. The offender then kicked her, striking her in both her hands and in her stomach. That is a common assault which the offender asks me to take into account on the Form 1.

4. The offender then punched his wife in the face with his fists. His wife felt pain around her eye and in her cheek. She suffered bruising around her eye. That is an assault occasioning actual bodily harm which the offender asks me to take into account on the Form 1.

5. The offender then left the bedroom and went to the kitchen. He took up two knives, then walked back towards the bedroom. When he reached the bedroom door, he threw one of the knives towards his wife. The knife flew past his wife and lodged in the wall of the caravan behind her. The victim then asked the offender to stop doing what he was doing. The offender told her to, “Shut up,” and told her that if he wanted to hit her, he would have done so. That is an offence contrary to s 114(1) of the Crimes Act 1900. It is count 1 in the indictment. The maximum penalty for that offence is seven years imprisonment. The offence can be shortly described as being armed with intent to commit an indictable offence, namely, intimidation.

6. The offender then went further into the bedroom, reached out and removed the knife that was lodged in the wall and then placed each knife at the victim’s neck. He then said to her, “I’m going to cut your head and deliver it to your mother.” The offender’s wife begged him to stop, however, he continued to yell at her for a short while and then left the room. That is another offence contrary to s 114(1) of the Crimes Act 1900, the offender being armed with a weapon, namely a knife, intended to commit the indictable offence of intimidating his wife.

7. The offender, some time later, returned to the bedroom with his hands behind his back. He asked the victim to hit him. She refused to do so. The offender then yelled at his wife, “Well, you don't hit me, then I’m going to bash the fuck out of you.” The offender then left the bedroom yelling and screaming. The offender then went back to the bedroom holding a can of insecticide. The offender was spraying the insecticide and igniting the stream of vapour from the aerosol can, producing a large flame. The offender then said to his wife, “I’m going to burn down this caravan to the ground and you with it.” The victim begged him not to do that. That is an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act2007 and an offence which the offender asks me to take into account on the Form 1.

8. The offender then started again lighting a stream of vapour from the can of insecticide, directing it towards his wife. The flames were about 30 centimetres, that is a foot, from the victim’s face when she pulled the doona cover over her face to avoid being burnt. The offender then stood on the bed and began to pull the doona from the victim’s hands. The offender then sprayed the ignited flame from the can towards her face, singeing her eyebrows and hair. That is accepted to be another common assault and is count 3 in the indictment.

9. The final matter which the offender asks me to take into account on the Form 1 is another common assault. After singeing the victim’s eyebrows and hair, the offender threw the aerosol can into his wife’s face. He then left the room. His wife remained in the bedroom on the bed, and was upset. The offender went back to the lounge room and told his wife that he was going to kill himself and he would make his suicide look as if she had committed a murder. The offender placed a knife against his chest and pressed up against a wall. The victim pleaded with him to stop. He then put the knife down, took medication, laid down on the lounge and eventually fell asleep as he was watching television. His wife was unable to sleep and was in fear that she might again be attacked.

10. On the morning of 1 September 2015, at about 7am, Katie Roberts left the caravan and told the offender that she was going to see a doctor. She visited the Doonside medical centre and consulted Dr Akraam Moussad but then caught a train to Tuggerah. At Tuggerah Railway Station she was met by a friend, who is merely identified as “John”, who took her to the Wyong Family practice. At that practice the victim disclosed to Dr Giles what had happened to her on the previous day. She was examined by Dr Giles, who took some photographs and told her to visit the police.

11. On 3 September Katie revisited Dr Giles, collected the photographs that he had taken and then went to the Wyong police station and provided a statement to the police. On 4 September 2015 Blacktown police attended upon the offender’s residence in Doonside. He was cautioned, arrested and charged. He was then bail refused.

12. Dr Giles noted that Katie Roberts had facial bruising around her left eye where there were some small lacerations which could be seen by him. Bruising was also found on her left cheek and on her left forearm. Dr Giles also noted the singed hair on the victim’s forehead.

13. It has been correctly submitted by Ms Parker, on behalf of the Crown, that many offences committed contrary to s 114(1) of the Crimes Act 1900 relate to either being armed with intent to commit a robbery or various housebreaking offences. She submitted that the offender’s conduct towards his wife when he used two knives in the context of a domestic violence setting with the threat essentially to decapitate the victim could properly be categorised as in the middle of the range of objective seriousness for offences of that type. Perhaps I have overstated the submission; Ms Parker’s submission was that the offence could properly be described as towards the middle of the range of objective seriousness. There is no cavil with that categorisation by Mr Khan, who appears on behalf of the offender.

14. Ms Parker has also very properly submitted that the common assault contained on the indictment, the third count in the indictment, is a very serious example of common assault which falls towards the upper range of objective seriousness for common assaults. As she pointed out, the offender deliberately produced large flames using the aerosol can and held those flames directly towards the victim’s face, a sensitive and vulnerable part of her body, with sufficient proximity to singe her eyebrows and hair. It is hard to conceive of a common assault of much greater seriousness.

15. The background to these crimes has to be borne in mind. I shall refer to that when outlining the offender’s personal circumstances.

16. The offender was born in 1962. He is currently fifty-six years old. At the time of the offences here in question he was fifty-three years old. He was born in Manchester in the United Kingdom and migrated to Australia with his parents in 1967 when he was approximately two and a half years old. His mother was a nurse by profession who had nursed during World War II in the United Kingdom and subsequently nursed in Australia. The offender’s father was an industrial chemist. The offender described his father as a “gentleman” but he found out only late in his father’s life that his father had served in the SAS in the British Army prior to his birth. I assume that his father served in the British Army during the Second World War. The fact that the offender only found out about that late in his father’s life indicates that his father was perhaps reserved and that reserve may come from this wartime experiences. The offender’s mother died in 2014 and his father died shortly after his mother did. Accordingly, in 2015 the offender may still have been grieving the loss of each of his parents.

17. The offender is the youngest of five siblings. He has three brothers and a sister. His eldest brother died in 2006 as a result of an alcohol related illness. He was quite close to his eldest brother and he is also close to one of his other brothers with whom he remains in contact and who is supportive of the offender. The other brother does not keep in contact with Mr Roberts or indeed with any of his other siblings. According to a history given by the offender to a psychologist on 25 September 2018, the brother who does not associate with his siblings considers himself superior to his siblings. Unfortunately, the offender has lost contact with his sister and her partner.

18. The offender attended a Catholic primary school for one year where he found that the nuns were very strict and repeatedly caned him, a common experience for baby boomer children. He then attended Hornsby Public School from the age of six. Having completed public schooling, the offender attended Pennant Hills High School where he completed the School Certificate. He then took up an apprenticeship as a motor mechanic. Unfortunately, the mechanic to whom he was apprenticed died after two and a half years and the offender found alternative employment. It appears that he never formally completed his apprenticeship as a mechanic.

19. The offender worked as nursing assistant in a nursing home for for three to four years. He found some aspects of that traumatic such as preparing the bodies of those who had died before they were taken to the morgue. The offender, at the age of 23 or 24, began working in a wrecking yard using his mechanical skills, first in one yard for four to five years and then in another for 12 to 14 years.

20. In his early 40s the offender ran his own business supplying live food for aquaria and he also bred fish for supply to aquaria. That business persisted for four years until the offender dislocated each of his shoulders whilst carrying heavy bags and was forced to stop working because of his bilateral shoulder problems. Since that time the offender had been in receipt of a disability support pension until being taken into custody. However, it would appear that one of the reasons that the offender had a disability support pension was because of a back injury that occurred when he was 18 years old when he was working as an apprentice mechanic. He told the psychologist that he was “crushed underneath a car”. That caused him to lose one year from work and has left him with chronic back pain for which he has been treated with various opiate-based painkillers including Oxycontin, Panadeine Forte and Fentanyl patches.

21. In May 2014, to add to the other woes of that year, the offender was involved in a motor vehicle accident which led to a neurological accident which can be described as a “stroke”. The offender was under the care of Dr Rosen, a neurologist. The psychologist was able to see reports generated by Dr Rosen. Apparently there was a partial paralysis of the left side of the offender’s body, generally called a paresis, and he was left with a left-sided facial droop and for a while had an inability to speak or mobilise independently and there was involuntary drooling. He received hospital treatment for a number of days and there was significant improvement in his symptoms. There were a number of scans of the offender’s brain and the last MRI scan performed in October 2015 after the current offences.

22. The offender told the psychologist that since his incarceration he has experienced at least one further stroke for which he was treated at the Prince of Wales Hospital. There are some residual symptoms following upon the neurological accidents including weakness in the left arm and hand, which is the offender’s dominant arm, and the offender also notices that he drools at times and his speech can become increasingly slurred unless he takes it “easy”.

23. The offender’s first marriage occurred when he was in his early 20s. As a result of that relationship the offender had a son who is probably about 35 years old now. The offender’s first wife suffered from post natal depression and they separated when the offender was in his late 20s. The offender told the psychologist that he has maintained contact with his eldest son and his former first former wife and he thought his relationship with them was “good”.

24. In his early 30s the offender had a second partner with whom he had another son. That relationship ended after three or four years. According to the history obtain by the psychologist, that relationship ended when his second partner began a relationship with the lady who became the offender’s second wife. The offender’s second partner moved to Perth with their son, but has not kept in contact with him. The offender last had contact with his second son when the son was 12 years old.

25. The offender’s third relationship is with his second wife, the victim of the current offences, Katie Roberts. Katie brought with her to their marriage a child by her former relationship whose name I shall identify only as TD.

26. Unfortunately, the offender interfered with TD, commencing when she was seven or eight years old. When TD was 11 years old and still in primary school, the offender had penile-vaginal intercourse with her. The offending was very serious. There were further sexual offences against TD when she was 13 years old. The offender stood trial for a large number of offences and before her Honour Judge Culver at Parramatta and was found guilty on 29 May 2017. Her Honour commenced a sentencing hearing on 24 November 2017 and on 20 April 2018, that is earlier this year, her Honour sentenced the offender to an aggregate term of imprisonment of 18 years with a non-parole period of 12 years. Her Honour commenced her sentence on 27 May 2015.

27. I should shortly explain the significance of that date. The offender was arrested and charged with the offences for which he was sentenced by Judge Culver on 16 January 2013. The offender was granted bail by the Supreme Court on 13 April 2013. As I have already mentioned, after the current offences the offender was arrested again on 4 September 2015 and refused bail. Her Honour in imposing the lengthy sentence which she did, backdated the sentence to 27 May 2015 by commencing the sentences on 4 September 2015 but projecting backwards to account for the period of custody between January and April 2013. Accordingly, all of the offender’s time in custody to date has been accounted for in the sentence passed by her Honour Judge Culver.

28. Returning to the offender’s personal circumstances, it can be seen that in 2015 the offender had been charged with very serious offences which would no doubt cause significant psychological stress and in the normal course one would expect them to cause both anxiety and depression. Added to that stress which the offender was under in 2015, was the grief from the death of his parents in 2014 and his concerns about the motor vehicle accident, which had occurred in May 2014, and which had led to ongoing symptoms.

29. I should state that as a result of the offender’s relationship with Katie Roberts, his second wife, they together had four children. The history obtained by the psychologist contains this matter:

“Mr Roberts reported that his relationship with his wife was good but added that the relationship deteriorated when his wife began using “drugs” excessively. He alleged that his wife used opiate-based drugs intravenously on a daily basis and said it caused them to argue. He advised that this coincided with him [sic] injuring his shoulders and becoming unable to work which resulted in them [sic] “losing the house”. He advised that he was under financial stress and they began to argue more frequently. Mr Roberts advised that he and his family lived in a motel for approximately six months before moving into a private rental property and then a rental property provided by Housing NSW. He advised that he was arrested and held on remand for prior offences and when he returned home, “the house was trashed” and his wife “told me she’d been raped”.

He reported that his children had been removed from his wife’s care by Family and Community Services and were in the care of her mother. Mr Roberts recalled an event in which his wife “pulled a shotgun” and was briefly held in custody before being released on bail. The results of this event were unclear, but it appears that this was the catalyst for his mother-in-law taking the children into her care.”

30. Whatever actually happened, it is clear that by 31 August 2018 the offender and his wife Katie had lost the custody and care of their children. No doubt FACS would have had a number of concerns about leaving young children in the care of a father who was awaiting trial on serious criminal offences against another child and with a mother who was addicted to perhaps unlawful drugs. However one can accept that there were stressors on both Katie Roberts and the offender at the time of the events with which I am now dealing.

31. The stressors upon each party might explain what happened to an extent but the behaviour of the offender towards his wife cannot be in any way condoned. Furthermore, the offences committed against the offender’s wife by the offender were while he was on conditional liberty. He was on bail granted by the Supreme Court and the term of bail required him to be of good behaviour, that is, not to commit any crime. He was also on bonds for good behaviour in respect of three counts of unauthorised possession of a pistol and a s 9 bond which had been imposed for a period of three years in respect of the offence of not keeping a firearm safely. The firearm was in fact a pistol.

30. The offender has a criminal record but the substantive criminal offences in his past were the sexual offences against his stepdaughter. The offender had committed some offences as a child but I leave those aside. The only other offences were as an adult at the age of 50 he was charged on 17 November 2012 with a large number of firearms offences. At least 29 counts which appear to include the possession of 10 unregistered firearms which were not a pistol and one unregistered firearm which was a pistol. Why the offender had collected such an arsenal is unexplained.

31. After being taken into custody the offender has been, since roughly April of the current year, incarcerated at the Hunter Correctional Centre and he is working there as a bandsaw operator cutting steel for fencing and gates to be installed at the Correctional Centre. The offender told the psychologist that he enjoyed working and he loved the work that he was doing at the gaol and preferred to be busy rather than being idle. The offender appears to be in some form of protective custody due, no doubt, to his having been convicted of sexual offences against a child.

32. Having referred to the report of the psychologist it is appropriate that I comment on what the psychologist, Ms Headington, expresses as her opinion. She points out that the offender was diagnosed with depression in 2014 at the age of 52. The depressive illness could well arise from the circumstances than affecting the offender, namely the death of his parents, his motor vehicle accident in May of that year and his being charged and awaiting trial for very serious criminal offences, for which he was ultimately found guilty, and having his own children moved from him.

33. According to Ms Headington’s report, the offender has been treated with Avanza, an antidepressant, since the diagnosis of his depressive illness. Her history also records an attempted suicide at Long Bay Gaol in 2015 but again that would be explicable by the offences which took the offender into custody at that time, the offences against his wife coupled with the anxiety and depression resulting from the original serious charges involving child sexual assault. Ms Headington accepted that the offender was of average intelligence, and had an unremarkable childhood but that he had a complex physical health history including his back injury, his shoulder injury resulting in opiate-based painkillers being prescribed to him. There was also the history of the injuries from the motor vehicle accident leading to the neurological accidents. Ms Headington appears to accept that the offender’s depressive illness followed upon a number of significant bereavements, namely the death of his parents and “situational stressors” which I believe I have adequately outlined earlier in these reasons. The offender told he psychologist that he finds Avanza helpful in reducing his symptoms and improving his mood.

34. The psychologist makes a number of recommendations that the offender do certain courses when in custody such as the EQUIPS domestic abuse program and also the “Seasons for Growth” program which is also offered by Corrective Services. The psychologist believed that once released on parole, the offender would be entitled to 10 individual therapy sessions with a psychologist each calendar year under the Better Access Initiative in New South Wales. It is appropriate that I direct that my Associate send a copy of the psychologist’s report to Corrective Services which might assist them in planning the offender’s future.

35. This is not a straightforward sentencing exercise. It is accepted that the offender is required to be sentenced to a custodial sentence. To make any custodial sentence completely concurrent with the sentence he is currently serving would be contrary to principle, because in effect the offender would not be punished, dealt with for crimes wholly separate and distinct to the crimes for which he is currently in prison. However, the offender will be eligible for parole on 26 May 2027 under the orders made by her Honour Judge Culver, when he is 65 years old. As I pointed out, the non-parole period for the 18 year sentence is 12 years. Release after 12 years is not automatic and would depend upon a determination of the Parole Board. However, after 12 years imprisonment, one would have to guard against the serious risk of institutionalisation and when the offender is 65 years old, one would have to consider his general health and his ability to enjoy the remainder of his life when released to parole, the opportunity at the least to catch up with his six natural children and to do what he can to contribute positively to their lives in the hope that they will contribute positively to his life by, for example, providing him with some grandchildren.

36. The other thing of course to bear in mind is in considering the neurological accidents that have befallen the offender since the motor car accident of May 2014. Time should be allowed to the offender to enjoy such of his life as remains to him. The longer he is incarcerated, the risk of his life ending prematurely increases because the standard of health care in custody does not match that available to citizens in the community generally.

37. In respect of count 1 in the indictment, I believe I should commence the sentencing exercise with a period of one and a half years’ imprisonment. Discounting that by 10 per cent to account for the utilitarian value of the offender’s late plea of guilty that ought be reduced to 16 months’ imprisonment.

38. In respect of count 2 in the indictment, the very serious offence contrary to s 114(1)(a) of the Crimes Act1900 the sentencing exercise should commence with a head sentence of three years. Discounting that by 10 per cent one comes to a head sentence of 32 months or two years and eight months’ imprisonment.

39. In respect of count 3 in the indictment, the serious common assault to which I referred, the maximum penalty is two years’ imprisonment. Given the seriousness of the offence I should commence the sentencing exercise with a head sentence of one and a half years. Discounting that by 10 per cent I come to a head sentence of one year and four months.

40. The total of those three sentences when added together is 64 months or five years and four months. Those three separate head sentences I take as indicative sentences. This is an appropriate case in which to impose an aggregate sentence, bearing in mind that all the offending occurred in a discrete period late on 31 August 2015 against one victim. I believe the appropriate aggregate sentence is three years’ imprisonment.

41. Applying the statutory ratio between the head sentence and the non-parole period, the non-parole period should be two years and three months’ imprisonment and the parole period should be nine months. However in this case there are special circumstances to warrant the breaking of the statutory nexus between the head sentence and the non-parole period. I believe the appropriate non-parole period is two years’ imprisonment which means that the period when the offender will be on parole as far as this sentence is concerned is one year.

42. The remaining question is when should the sentence commence? Mr Khan for the offender has provided me with a short written submission on this issue, pointing out what should happen if I make the sentences wholly concurrent and what I ought do if I find that the sentence should be wholly accumulated. He puts forward a third alternative of partial accumulation and suggests that I should backdate any sentence to 7 October 2024.

43. I have earlier expressed the view that it would be wrong in principle to give a wholly concurrent sentence because the offender would in fact escape punishment for these offences. However, the same special circumstances that apply to the breaking the statutory nexus between the head sentence and the non-parole period have to be borne in mind in this regard as well. I have a discretion. But for the offences of 31 August 2015 the offender would not have been taken into custody on 4 September 2015 and indeed may have stayed on bail until the conclusion of the trial at Parramatta that led to the sentences imposed by Judge Culver.

44. I have reached the view that it is appropriate to commence the head sentence on 27 May 2026, that is to make this current sentence concurrent for a period of one year with a non-parole period imposed by her Honour Judge Culver. Again, the reason for finding special circumstances and the exercise of this discretion are both the risk of institutionalisation, the offender’s health and the age at which he will be when he is released on parole.

45. No-one wants any further reasons as distinct from orders do they?

KHAN: Not from me your Honour.

HIS HONOUR: Ms Parker?

PARKER: No thank you your Honour.

HIS HONOUR: Thank you.

PARKER: There is just the outstanding matter of the bonds.

HIS HONOUR: Right. Let me do it this way.

48. I direct my Associate to send to Corrective Services at the Hunter Correctional Centre a copy of exhibit 2, the report of Ms Marlene Headington.

49. Daniel Bernard Roberts, on each of the charges contained in the indictment presented on 18 May 2018 you are convicted. I sentence you to an aggregate term of imprisonment of 3 years. I fix a non-parole period of 2 years commencing on 27 May 2026 and expiring on 26 May 2028. The additional period is one year, expiring on 26 May 2019.

Indicative sentences are:

Count 1: 1 year 4 months

Count 2: 2 years 8 months

Count 3: 1 year 4 months

In passing this sentence I have taken into account the matters on the Form 1, on the indicative sentence for Count 2.

I have found special circumstances,

You are eligible to be considered for release on parole on the expiration of the non-parole period.

50. The breach of section 9 bonds can be dealt with at the Local Court at Wyong, as requested by Mr Khan.

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Decision last updated: 27 February 2019