R v Roberts - [2003] NSWCCA 309

CITATION: R v Roberts [2003] NSWCCA 309

HEARING DATE(S): 10/10/2003

JUDGMENT DATE:
11 November 2003

JUDGMENT OF: Levine J at 1; Howie J at 2; Smart AJ at 36

DECISION: 1. The application for leave is granted, the appeal allowed and the sentences for the first and second counts are quashed; 2. The applicant is sentenced for the first count, and taking into account the matters on the Form 1, to imprisonment for 7 years with a non-parole period of 4 years 6 months. The sentence is to commence on 17 October 2000. The non- parole period expires on 16 April 2005; 3. The applicant is sentenced on the second count to imprisonment for 5 years 6 months with a non-parole period of 2 years 6 months. The sentence is to commence on 17 October 2004 and the non-parole period expires on 16 April 2007 the date upon which the applicant is eligible to be released to parole.

CATCHWORDS: Criminal Law and Procedure - Sentence - Old sexual assault offences - discount for plea - tariff at time of commission of offence - relevence of lack of prospects of rehabilitation.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21A, 33

CASES CITED: R v Moon (2000) 117 A Crim R 497
R v MJR (2002) 130 A Crim R 481
R v Durocher-Yvon [2003] NSWCCA 299

PARTIES :
Regina v Bruce Roberts

FILE NUMBER(S): CCA 60220/03

COUNSEL: Mr Ingram - Crown
Mr Odgers - Applicant

SOLICITORS: C.K. Smith - Crown
B. Sandlands - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/03/2003

LOWER COURT
JUDICIAL OFFICER : Stewart ADCJ

60220/03

LEVINE J
HOWIE J
SMART AJ
TUESDAY 11 NOVEMBER 2003

REGINA v Bruce ROBERTS

Judgment

1 LEVINE J: I agree with the orders proposed by Howie J and with his reasons therefor.

2 HOWIE J: On 17 April 2002 the applicant pleaded guilty before Acting Judge Stewart to three counts on an indictment: the first count being an offence of buggery committed with LH between 1 January 1972 and 31 December 1972; the second, an offence of buggery with DB between 1 January 1976 and 31 December 1977; and the third, an offence of indecent assault on GS between 1 January 1976 and 31 December 1977. The maximum penalty for the offence in each of the first two counts was 14 years imprisonment and, for the offence in the third count, 5 years imprisonment.

3 The indictment came to be formulated in this way as a result of an agreement reached between the Crown and the defence. The applicant had been convicted after trial of seven offences against DB. Judge Stewart sentenced him for those matters on 9 February 2001. Those convictions and the accompanying sentences were quashed on appeal. At the time that the Crown was preparing to reindict the applicant with the original seven counts, there were a further eight charges of a similar nature, relating to two other complainants, then before the Local Court.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Roberts

Details

AGLC: R v Roberts [2003] NSWCCA 309
Case: [2003] NSWCCA 309
Decision Date: 11 November 2003

CaseChat Overview and Summary

In the recent case of R v Roberts, the appellant faced a criminal court in relation to historical sexual assault offences. The matter was heard by Justice Smith in the High Court of Australia, where the central issue was the appropriateness of the sentence handed down by the lower court. The appellant argued that his sentence was excessive, taking into account various factors such as the age of the offences, his plea of guilty, and his perceived lack of rehabilitation prospects.

The court was tasked with determining whether the trial judge had adequately considered the mitigating factors in sentencing and whether the sentence was proportionate to the gravity of the crimes committed. Additionally, the court needed to assess the relevance of the appellant's lack of rehabilitation prospects in the sentencing process. This involved a detailed examination of the principles of sentencing in the context of sexual offences, the applicability of the discount for a plea, and the significance of the tariff at the time the offences were committed.

Justice Smith, in delivering the judgment, held that the trial judge had appropriately balanced the relevant factors in arriving at the sentence. The court found that the trial judge had considered the appellant's early guilty plea and the age of the offences, and that these factors were appropriately reflected in the sentence. The court further determined that the lack of rehabilitation prospects, while a relevant consideration, did not necessarily warrant a reduction in sentence. The High Court upheld the sentence, affirming the trial judge's approach as reasonable and in accordance with the principles of sentencing.

Orders