R v Roberts - [2019] NSWDC 510

District Court

New South Wales

Medium Neutral Citation: R v Roberts [2019] NSWDC 510
Hearing dates: 3 May 2019
Decision date: 08 May 2019
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found – offender is a former army & correctional services officer, & has severe PTSD with short term memory loss, 1st time in custody.
Indicative Sentences:
Count 1 (SEQ 001) – 18 months’ imprisonment
Count 2 (SEQ 002) – 18 months’ imprisonment
Count 3 (SEQ 003) – 18 months’ imprisonment
Count 4 (SEQ 007) + Form 1 – 18 months’ imprisonment
Count 5 (SEQ 009) + Form 1 – 2 years’ imprisonment
Aggregate Sentence:
Sentenced to a term of imprisonment for 3 years comprising of a non-parole period of 2 years to commence on 6/5/19 and to expire on 5 May 2021, and a balance of term of 1 year to commence on 6 May 2021 and to expire on 5 May 2022.

Catchwords: CRIMINAL – sentence - indecent assaults – historic sexual offences, 3 against child & 2 against same complainant as an adult - effect of change of legislation in interim – belated pleas – subjective matters
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AJB v R [2007] NSWCCA 51
Henderson v R (2016) NSWCCA 8
Moon v R [2000] NSWCCA 534
MPB v R [2013] NSWCCA 213
R v MJR [2002] NSWCCA 129
Category: Sentence
Parties: Regina
Anthony John Roberts
Representation:
Counsel:
Crown: Mr P G Hogan
Defence: Mr P Johnson
Solicitors:
Crown: Ms A Graylin
Defence: Ms B Kennedy
Legal Aid NSW

File Number(s): 2016/00188489
Publication restriction: NPO in respect of the name of the complainant and anything that might tend to identify her

Judgment

Anthony Roberts appears for sentence in respect of five offences. There are three offences of indecent assault upon CC at various times between 1 December 1973 and 30 June 1974. Each is contrary to s 76 of the Crimes Act, and the maximum penalty provided at the time of the offences was a term of imprisonment for five years. There was in the 1970s no relevant standard non-parole period.
In relation to each of those offences, I also note that the sentencing process is affected by the recent legislative amendment introducing s 25AA of the Crimes (Sentencing Procedure) Act, which requires a Court sentencing an offender for an historic child sexual offence to sentence “in accordance with the sentencing patterns and practices at the time of sentencing” and also to have regard to the trauma of sexual abuse as understood at the time of sentencing. I note that in child sexual offences, defined broadly as sexual offences committed against a person who was under 16 years of age at the time of the offence, that section took effect immediately upon proclamation. The two further offences are also indecent assaults upon CC at various times between 1 January 1978 and 30 September 1979.
In relation to the first three offences, the complainant was…

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 [2019] NSWDC 510
Case: [2019] NSWDC 510
Decision Date: 08 May 2019

CaseChat Overview and Summary

In the case of R v Roberts, the respondent faced charges for multiple indecent assaults. The complainant had been the victim of three separate assaults when she was a child, and two more when she was an adult. The case was heard in the relevant court, where the primary issue was the imposition of an appropriate sentence for these historic sexual offences. The court had to consider the impact of legislative changes that occurred during the interim period, as well as the respondent's belated pleas of guilt. Additionally, the court needed to take into account the subjective circumstances of the case, including the respondent's history as a former army and correctional services officer, and his severe post-traumatic stress disorder (PTSD) with short-term memory loss, which was a first-time experience for him while in custody.

The court acknowledged the need to balance the gravity of the offences with the respondent's personal circumstances, including his age and the fact that he had been in custody for a considerable period. The court also took into consideration the legislative changes that had occurred since the offences were committed, as well as the belated pleas of guilt. The court found that special circumstances were present, including the respondent's service as a former army and correctional services officer, and his severe PTSD with short-term memory loss, which was a first-time experience for him while in custody.

After careful consideration of the relevant factors, the court determined that an aggregate sentence of three years' imprisonment was appropriate, with a non-parole period of two years and a balance of term of one year. The court found that the respondent's belated pleas of guilt and his personal circumstances warranted a degree of leniency, but that the seriousness of the offences could not be overlooked. The court also took into account the need to deter similar offending in the future and to provide some measure of retribution for the victims. The court ordered the respondent to serve a term of imprisonment for three years, with a non-parole period of two years, and a balance of term of one year. The sentence was to commence on 6 May 2019 and to expire on 5 May 2022.

Orders

Orders of the court

Convicted.

Special circumstances found – offender is a former army & correctional services officer, & has severe PTSD with short term memory loss, 1st time in custody.

Indicative Sentences:

Count 1 (SEQ 001) – 18 months’ imprisonment

Count 2 (SEQ 002) – 18 months’ imprisonment

Count 3 (SEQ 003) – 18 months’ imprisonment

Count 4 (SEQ 007) + Form 1 – 18 months’ imprisonment

Count 5 (SEQ 009) + Form 1 – 2 years’ imprisonment

Aggregate Sentence:

Sentenced to a term of imprisonment for 3 years comprising of a non-parole period of 2 years to commence on 6/5/19 and to expire on 5 May 2021, and a balance of term of 1 year to commence on 6 May 2021 and to expire on 5 May 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Roberts [2019] NSWDC 510
Hearing dates:	3 May 2019
Decision date:	08 May 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – offender is a former army & correctional services officer, & has severe PTSD with short term memory loss, 1st time in custody. Indicative Sentences: Count 1 (SEQ 001) – 18 months’ imprisonment Count 2 (SEQ 002) – 18 months’ imprisonment Count 3 (SEQ 003) – 18 months’ imprisonment Count 4 (SEQ 007) + Form 1 – 18 months’ imprisonment Count 5 (SEQ 009) + Form 1 – 2 years’ imprisonment Aggregate Sentence: Sentenced to a term of imprisonment for 3 years comprising of a non-parole period of 2 years to commence on 6/5/19 and to expire on 5 May 2021, and a balance of term of 1 year to commence on 6 May 2021 and to expire on 5 May 2022.
Catchwords:	CRIMINAL – sentence - indecent assaults – historic sexual offences, 3 against child & 2 against same complainant as an adult - effect of change of legislation in interim – belated pleas – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AJB v R [2007] NSWCCA 51 Henderson v R (2016) NSWCCA 8 Moon v R [2000] NSWCCA 534 MPB v R [2013] NSWCCA 213 R v MJR [2002] NSWCCA 129
Category:	Sentence
Parties:	Regina Anthony John Roberts
Representation:	Counsel: Crown: Mr P G Hogan Defence: Mr P Johnson Solicitors: Crown: Ms A Graylin Defence: Ms B Kennedy Legal Aid NSW
File Number(s):	2016/00188489
Publication restriction:	NPO in respect of the name of the complainant and anything that might tend to identify her