Citation: R v Roberts (a pseudonym) [2024] NSWDC 352
Court: District Court of New South Wales
Date: 26 April 2024
Judge(s): Sutherland SC DCJ
Background
The offender, referred to by the pseudonym "George Roberts," appeared for sentencing after pleading guilty to 10 offences of indecent assault and acts of indecency against female children, all under the age of 16 at the time. The offending was committed across approximately 15 to 16 years, from around 1965 to 1981, against five complainants: the offender's daughter, two nieces, and two family friends or associates.
All charges were brought under section 76 of the Crimes Act 1900, the provision in force at the time of the offending, which carried a maximum penalty of 5 years imprisonment (or 6 years for later offences). That section has since been repealed and replaced with offences carrying substantially higher maximum penalties. Eight charges were substantive offences; two further offences were placed on Form 1 documents, meaning they were taken into account during sentencing without separate convictions being recorded.
The offender was 77 years old at the time of sentencing and had no prior criminal record. Complaints were made to police between 2021 and 2022, meaning the offending came before the courts more than 40 years after it concluded.
Legal Issues
- What maximum penalties applied to the historical offences under section 76 of the Crimes Act 1900, and how should those penalties function as a sentencing yardstick?
- How should a court apply current sentencing practices, including the recognised long-term harm of child sexual abuse, when sentencing for historical offences with lower maximum penalties?
- What weight should be given to aggravating factors (abuse of trust, offending in victims' homes, multiple victims) against mitigating factors (age, no prior record, guilty pleas, low risk of reoffending)?
- Whether special circumstances justified a variation to the standard non-parole period ratio.
Decision
The court confirmed that, for historical sexual offences, the maximum penalty applicable at the time of the offence operates as the relevant guide or yardstick for sentencing. However, section 21B of the Crimes (Sentencing Procedure) Act 1999 requires courts to apply current sentencing practices, and section 25AA requires courts to take into account the harmful effects of child sexual abuse and the trauma it inevitably causes. His Honour drew on Court of Criminal Appeal authority in WB v R and Decision Restricted to confirm that greater contemporary knowledge of the long-term effects of child sexual abuse means it will often be easier to find substantial emotional harm, even where historical maximum penalties are lower than those now applicable.
His Honour identified several significant aggravating factors: the offender held a position of trust or authority over each victim (as uncle, father, or a trusted adult); much of the offending occurred in victims' homes; and the offending involved multiple victims over an extended period. Some of the conduct, such as acts of fellatio, would now constitute offences of sexual intercourse under current law and would attract far higher maximum penalties.
Mitigating factors included the offender's early guilty pleas, his advanced age (77), his first time in custody, the absence of any prior criminal record, and his low likelihood of reoffending. His Honour acknowledged the offender's apparent good character in the community but noted that this had to be weighed against the reality that he had been a serial child sexual abuser for over 16 years. General deterrence remained an important consideration, given the community's and courts' current understanding of the prevalence and serious long-term effects of childhood sexual abuse.
The court imposed a single aggregate sentence of 8 years imprisonment, with a non-parole period of 5 years. A finding of special circumstances was made to justify departing from the standard non-parole period ratio, reflecting the offender's age, his first time in custody, and the greater burden that imprisonment would impose on him.
Orders Made
- Aggregate sentence of 8 years imprisonment imposed.
- Non-parole period of 5 years (special circumstances found, varying the standard ratio).
- Sentence backdated to commence 24 July 2023.
- Eligible for release on parole: 23 July 2028.
- Additional (parole) term of 3 years, expiring 23 July 2031.
- Indicative sentences recorded for each individual offence, ranging from 1 year and 9 months to 3 years and 7 months, each reflecting a 25% discount for early guilty pleas.
Key Takeaways
- Under section 21B of the Crimes (Sentencing Procedure) Act 1999, a court sentencing for historical sexual offences must apply current sentencing practices, even though the maximum penalty at the date of the offence caps the applicable range.
- Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires courts to recognise the harmful effects of child sexual abuse; the Court of Criminal Appeal has confirmed this can make it easier to find substantial emotional harm even where historical maximum penalties are lower than those now in force.
- Where historical conduct would now constitute a more serious offence carrying a higher maximum penalty (for example, acts of fellatio now defined as sexual intercourse), the sentencing court may take that into account when assessing the gravity of the offending in context.
- A finding of special circumstances, justifying a longer parole period relative to the head sentence, may be supported by an offender's advanced age, their first time in custody, and the greater hardship that custodial conditions will impose.
- The District Court treated apparent good character and community standing as relevant mitigating factors, but gave them limited weight where the offender had concealed serious and repeated sexual offending against children over more than 16 years.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 76 (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21B, 25AA
- Bail Act 2013 (NSW)
Cases:
- WB v R [2020] NSWCCA 159
- Decision Restricted [2020] NSWCCA 275
- R v Cattell [2019] NSWCCA 297
- Kelly v R [2021] NSWCCA 154
- Lai v R [2021] NSWCCA 217
- RL v R [2015] NSWCCA 106
- R v Gommeson [2014] NSWCCA 159
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Qutami [2001] NSWCCA 353
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- R v Roberts [2019] NSWDC 510
- R v DW (No 1) [2020] NSWDC 461
- R v Greenaway [2020] NSWDC 97
- R v SW, NSWDC, Unreported, 10 September 2018