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District Court 25 November 2022

R v Proberts

[2022] NSWDC 737

Sexual offences
CRIME SEXUAL OFFENCES

Citation: R v Proberts [2022] NSWDC 737
Court: District Court of New South Wales
Date: 25 November 2022
Judge(s): Priestley SC DCJ

Background

The offender pleaded guilty to one count of sexual intercourse with a child aged between 14 and 16 years, contrary to section 66C(3) of the Crimes Act 1900. The offence occurred on 10 December 2005, when the offender was 18 years and five months old and the victim was 14 years and nine months old. The offender was not charged until March 2020, more than 14 years after the offence.

The offender had been at a party the same evening, became intoxicated, and walked toward a skate park with others including a co-offender (Mr Healey, who had been sentenced separately). The group encountered the victim and her friends. The offender and the victim ultimately had penile-vaginal intercourse at a nearby oval. The agreed facts were sparse, and the question of the victim's consent was treated as neutral by both parties.

The central sentencing dispute was whether the court should impose no conviction under section 10 of the Crimes (Sentencing Procedure) Act, a community correction order (CCO) with conviction, or a term of imprisonment.

Legal Issues

  • Whether section 80AG of the Crimes Act 1900, which provides a defence for persons within two years in age of a child over 14, applied at the time of the 2005 offending
  • How the 14-year delay between offending and sentencing should be weighed
  • Whether the victim's intoxication could be given significant weight as an aggravating factor
  • What the objective seriousness of the offending was
  • Whether the principle of parity applied, given the co-offender Mr Healey had been sentenced separately
  • Whether a non-conviction order under section 10 was appropriate
  • Whether a community correction order or a term of imprisonment was the appropriate sentence

Decision

Section 80AG and Age Disparity: Section 80AG, which provides a defence where the parties are within two years of age, was not in force in 2005 and could not operate retrospectively (at [3]-[5]). The age gap between the offender and the victim was approximately three years and eight months, meaning the provision would not have assisted the offender in any event. The Crown fairly conceded the age disparity was relatively small, as both were teenagers (at [5]).

Parity with Co-offender: Although the two men were not charged as participants in a joint criminal enterprise, the facts were nearly identical, and the court found it necessary to apply the parity principle (at [8]). Mr Healey had received a CCO, benefiting from sentencing principles applicable to children because he was 17 at the time of offending. The offender was an adult at the time of offending and could not claim the same approach, but his overall subjective case was found to be more favourable than Mr Healey's (at [52]).

Delay: The more than 14-year delay between the offence and sentencing was found to favour the offender. The punishment and its impact on the offender's life, including his employment, would have been far less disruptive had sentence been imposed years earlier (at [9]).

Objective Seriousness and Aggravating Factors: The offending was assessed as falling in the low range of objective seriousness (at [22]). The agreed facts did not permit significant weight to be given to the victim's intoxication as an aggravating factor; the facts stated only that she "felt intoxicated" without specifying the degree (at [20]).

Risk Assessment: The psychologist's static and dynamic risk assessments together placed the offender at low risk of future sexual offending, with the dynamic assessment classifying him as "low/routine" with no imminent risk (at [29]-[30]). A recorded telephone conversation between the offender and a friend, which included objectifying and disrespectful references to young women, was described by the psychologist as reflecting a tawdry attitude rather than evidence of sexual deviance or inability to control urges. The court accepted that assessment (at [37]-[38]).

Section 10 Non-Conviction Order: The court declined to impose a section 10 order. The working with children check system exists specifically to identify those who have committed sexual offences against children, and avoiding a conviction to sidestep that consequence would undermine the purpose of that regime (at [46]). General deterrence, denunciation, accountability, and recognition of harm to the victim together outweighed the offender's favourable personal circumstances (at [47]).

Sentence: A community correction order for two years was imposed rather than imprisonment. Custody would not serve rehabilitation, would not protect the community, and would likely cause harm to the offender's mental health, employment, and family circumstances (at [52]). The purposes of general deterrence and denunciation were sufficiently served by the conviction itself together with punishment in the community (at [52]). A 5% discount applied to the sentence for the guilty plea, which had not been entered at the first opportunity (at [12]).

Orders Made

  • The offender was convicted of the offence under section 66C(3) of the Crimes Act 1900.
  • A community correction order was imposed for a period of two years, commencing 25 November 2022 and expiring 24 November 2024.
  • Conditions: the offender must not commit any offence; the offender must appear before the court if called on to do so at any time during the term of the order.

Key Takeaways

  • Section 80AG of the Crimes Act 1900, which provides a defence for sexual intercourse between persons close in age (within two years) where the younger party is over 14, was not in force in 2005 and does not operate retrospectively to affect charges arising from that period (at [3]-[5]).

  • Where two offenders are charged separately but the facts of their offending are nearly identical, the parity principle may still apply even in the absence of a joint criminal enterprise; the District Court found this to be the case here (at [8]).

  • A conviction was held necessary for a sexual offence involving a child even where the offender's subjective case was strong, because the working with children check system is specifically designed to identify those who have committed such offences, and a non-conviction order would work against that legislative purpose (at [46]).

  • Sparse agreed facts as to a victim's intoxication, amounting only to an agreement that she "felt intoxicated" without any specification of quantity or degree, will not support a finding of significant vulnerability as an aggravating factor (at [20]).

  • Full-time imprisonment is not inevitably required for a low-range child sexual intercourse offence where the offender presents a low risk of reoffending, has demonstrated a pro-social life over many years, and the purposes of denunciation and general deterrence can be served by a conviction combined with a community-based order (at [52]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- R v Wong [2003] NSWCCA 247
- Jolly v R [2013] NSWCCA 76
- WB v R [2020] NSWCCA 159
- R v AB [2022] NSWCCA 3
- R v Mauger [2012] NSWCCA 51