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District Court 29 April 2019

R v Roberts

[2019] NSWDC 234

Sexual offences

Citation: R v Roberts [2019] NSWDC 234
Court: District Court of New South Wales
Date: 29 April 2019
Judge(s): Buscombe DCJ

Background

The offender pleaded guilty to four historical child sexual offences committed in Penrith in 1998 and 1999. The two victims, referred to as AA and BB, were half-brothers. Their mother had arranged for the offender to babysit the children on an unpaid basis while she and her husband worked shifts.

The offending involved two separate victims across the two years. BB was seven or eight years old when the offender masturbated him and performed fellatio on him in 1998. AA was eleven or twelve years old when the offender masturbated him in a vehicle, and on a second occasion exposed himself and pressed against the boy while he slept, in 1999.

The offences came to light in May 2017, nearly two decades later, when AA recognised the offender working at a local leagues club and confronted him. Both victims subsequently gave statements to police, and the offender voluntarily attended the police station in relation to the allegations.

  • What aggregate sentence of imprisonment was appropriate for four historical child sexual offences committed against two child victims?
  • How should the breach of trust involved in the babysitting relationship be reflected in the sentence?
  • What weight should be given to the applicable maximum penalties at the time of offending, against the requirement under the Crimes (Sentencing Procedure) Act to sentence according to current sentencing patterns and practices?
  • How should the mitigating factors (including guilty plea, remorse, and rehabilitation) be balanced against the aggravating factors (including prior similar convictions and the need for specific and general deterrence)?

Decision

Buscombe DCJ found that each of the four offences involved a breach of trust, as the offender had been entrusted with the care of both children by their mother. That breach of trust constituted an aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act in relation to every offence.

Her Honour assessed the objective seriousness of each offence individually. The first indecent assault on BB (masturbation) was placed a little below notional mid-range, noting the victim's young age and the skin-on-skin contact. The fellatio offence on BB was assessed as above mid-range, given the nature of the act and the child's age. The two indecent assaults on AA were assessed as around mid-range and above mid-range respectively, the second involving the offender pressing his exposed penis against the sleeping boy.

The court acknowledged mitigating factors including the guilty pleas, cooperation with police, evidence of remorse, and steps toward rehabilitation. However, the offender's prior convictions for similar offending meant that specific deterrence had to be reflected in the sentence. Her Honour applied the principle from Muldrock v The Queen that maximum penalties serve as legislative guideposts rather than as a primary determinant, and applied current sentencing patterns as required by section 25AA of the Crimes (Sentencing Procedure) Act, including the court's contemporary understanding of the lasting trauma suffered by child victims of sexual abuse.

Orders Made

  • Indicative sentence of 1 year and 10 months imprisonment for the indecent assault on BB (charge sequence 4)
  • Indicative sentence of 6 years imprisonment for the sexual intercourse offence on BB (charge sequence 6)
  • Indicative sentence of 1 year and 10 months imprisonment for the first indecent assault on AA (charge sequence 2)
  • Indicative sentence of 2 years and 6 months imprisonment for the second indecent assault on AA (charge sequence 3)
  • Aggregate sentence of 8 years imprisonment, with a non-parole period of 6 years, commencing 16 April 2019 and expiring 15 April 2027; non-parole period expires 15 April 2025

Key Takeaways

  • A breach of trust arising from a babysitting arrangement constitutes a statutory aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act, applicable even where the babysitting was informal and unpaid.
  • Under section 25AA of the Crimes (Sentencing Procedure) Act, courts sentencing for historical offences must apply current sentencing patterns and practices, including the court's evolved understanding of trauma experienced by child victims of sexual abuse, even when the applicable maximum penalties are those in force at the time of the offending.
  • The District Court confirmed, consistent with Muldrock v The Queen (2011) 244 CLR 120, that maximum penalties function as legislative guideposts informing the sentencing discretion rather than operating as a primary or mandatory benchmark.
  • Where an offender has prior convictions for similar child sexual offending, specific deterrence remains a significant sentencing consideration even in the presence of mitigating factors such as a guilty plea, remorse, and rehabilitation efforts.
  • Applying R v Egan [2016] NSWCCA 285, the relatively short duration of an individual act of indecent assault does not necessarily reduce the objective seriousness of that offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 25AA

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- R v Egan [2016] NSWCCA 285