Citation: R v Roberts [2019] NSWDC 510
Court: District Court of New South Wales
Date: 8 May 2019
Judge: King SC DCJ
Background
The offender, a man aged 68 at the time of sentencing, faced five counts of indecent assault against the same complainant, his sister-in-law. The first three offences occurred between December 1973 and June 1974, when the complainant was approximately 13 years old. The final two offences occurred between January 1978 and September 1979, by which time the complainant was approximately 18 years old.
The agreed facts described a pattern of escalating conduct. The early offences involved the offender exploiting the complainant's curiosity about puberty and using physical force to compel her to touch him sexually. The later offences, each accompanied by a related offence on a Form 1 (a document listing additional offences taken into account without separate conviction), involved conduct that included restraint and physical violence.
The matter was listed for trial in August 2018 alongside a further charge concerning a second complainant, the sister of the primary complainant. The offender entered guilty pleas to all five counts on the first day of the allocated trial. The remaining count proceeded to trial but resulted in a hung jury. The sentencing court made clear it placed no weight on the unresolved allegation.
Legal Issues
- What maximum penalties applied to each group of offences, given that the legislative regime changed between the first and second sets of conduct?
- Whether and how s 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires sentencing for historic child sexual offences to reflect current sentencing norms and an updated understanding of trauma, applied to the various counts.
- What discount, if any, was appropriate for guilty pleas entered on the first day of an allocated trial, in circumstances where the pleas were characterised as very belated?
- How the principle of totality should operate across five separate offences of differing gravity.
Decision
The court distinguished between the two groups of offences for the purpose of the applicable sentencing regime. The three offences against the complainant as a child attracted a maximum of five years' imprisonment under s 76 of the Crimes Act 1900 as it stood in the early 1970s. Importantly, s 25AA of the Crimes (Sentencing Procedure) Act 1999 applied to those counts, requiring the court to sentence in accordance with current sentencing patterns and to have regard to contemporary understandings of the trauma caused by child sexual abuse.
For the two later offences, committed when the complainant was an adult, the maximum penalty had by then been increased to four years' imprisonment. Section 25AA did not apply because the complainant was over 16 at the time of those offences. The court noted that the conduct in the final count was more serious in nature, involving restraint and violence, and that the overall pattern of offending had escalated over time.
The court allowed a discount of 10% for the guilty pleas, characterising them as very belated. Although the pleas were entered on the first day of the trial, they did spare the complainant from giving evidence in relation to those counts. The court treated the re-entering of pleas on the amended indictment, which corrected a technical drafting issue, as part of the same plea event rather than as a separate and later plea.
Applying the principle of totality, the court imposed an aggregate sentence of three years' imprisonment. The court indicated an 18-month notional term for each of Counts 1 to 4 and applied specific weight to the aggravated features of Count 5. The court also exercised its discretion to reduce the non-parole period by three months below the statutory ratio, primarily because this was the offender's first time in custody.
Orders Made
- The offender was convicted on all five counts.
- The Form 1 offences attached to Counts 4 and 5 were taken into account.
- An aggregate sentence of three years' imprisonment was imposed.
- A non-parole period of two years was set, with an additional term of one year.
- The sentence was backdated by two days to account for pre-sentence custody, with the non-parole period commencing 6 May 2019 and the first date of eligibility for parole set at 5 May 2021.
- The balance of the term runs from 6 May 2021 to 5 May 2022.
Key Takeaways
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Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires courts sentencing for historic child sexual offences to apply current sentencing norms and contemporary understandings of trauma, regardless of when the offending occurred. Critically, the provision operates only where the complainant was under 16 at the time of the offence.
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Where a single offender faces multiple historic counts committed across different legislative periods, each group of offences must be assessed against the maximum penalty and sentencing regime in force at the time of those particular offences.
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A guilty plea entered on the first day of an allocated trial, though characterised as very belated, may still attract a discount where it provides some utility, such as sparing the complainant from giving evidence. The District Court assessed that utility as warranting a 10% discount in these circumstances.
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Sentencing courts retain discretion to vary the statutory ratio between the non-parole period and the balance of term. Here, the court reduced the non-parole period below the default ratio on account of the offender's age and the fact that this was his first period of custody.
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In applying the totality principle across multiple offences of differing gravity, a sentencing court may indicate notional individual sentences while arriving at an aggregate term that reflects the overall criminality, including any escalation in the severity of offending over time.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA
Cases
- 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