DPP v Roberts [2025] VCC 1314

1. Charges 1, 2, and 4 have been 'rolled up' into one charge each for the purposes of sentencing.
2. You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 7 July 2025, which I note is an agreed document.[3]

1. At the time of the offending, you were between 31 and 36 years of age. The first complainant is your adopted daughter, Jodie Kemp.[4] The second complainant is Jodie's close friend, Carol Perkins.[5]

1. When Jodie was between five and seven years of age, she and Carol were with you at your family home.
2. The three of you were lying on the bed in the main bedroom, with you in between the two girls. Whilst Jodie was lying on the side of the bed nearest the window, you leant over and used your hand to touch her vagina over her underwear (Charge 1).

1. One Sunday afternoon in the loungeroom, you were sitting on the couch with Jodie sitting on your lap. Jodie had a blanket over her and you touched her vagina area whilst you were watching television together (Charge 1).

1. When you and Jodie were lying in her mother's bed, you took her hand and put it on top of your penis.
2. Her hand was too small to properly fit around your penis, so you placed your hand over hers and moved her hand up and down on your penis, increasing your speed (Charge 2).
3. When her hand slipped out from under yours, you placed her hand at the base of your penis and placed your hand over hers. You then used your other hand to masturbate until you ejaculated.

Offending between 1 January 1986 and 31 December 1987

1. On this occasion Jodie was in her bedroom on her top bunk bed facing the wall. You called her name out several times, but she didn't respond. You then shook her to wake her up. She said she was sleeping.
2. You took her from her top bunk and into her mother's bedroom. You removed her pyjama pants and then began masturbating whilst hovering over her (Charge 4).
3. You began rubbing your penis over her pubic bone region. She pulled her legs together linking her ankles, but you managed to move them apart with your hand that wasn't touching your penis. You then placed your penis on the outside of Jodie's vulva and moved it around (Charge 3).

1. One day you and Jodie were in your bedroom and Jodie's younger sister was in the corner on a bassinet. The bedroom door was open, and the heater was on.
2. You used one of your hands to touch Jodie on her vagina (Charge 1), whilst masturbating yourself with her hand at the base of your penis (Charge 4). When Jodie mentioned something about her mother, you replied, "she doesn't need to know".

1. After you and Jodie's mother separated, you often stayed with your friend named Bob.
2. One night when Jodie and her brother were staying at Bob's house in Wodonga, you were lying in bed with Jodie whilst her brother was sleeping on the floor.
3. Whilst you were under the blankets, you touched her vagina with your fingers and masturbated yourself by putting her hand under yours whilst rubbing your penis (Charge 1; Charge 2).

1. On a separate day when visiting Bob's, you took Jodie to the shower at the back of the house. You handed her the soap and told her to wash you.
2. When she bent down to wash your legs, you made her stand up, lather her hands and stroke your penis whilst you were in the shower together (Charge 2).

1. One afternoon when visiting you at Bob's house, you took Jodie to Blockbuster video where you urged her to pick a video from the pornographic section. She chose one with a blonde woman who looked like Cinderella.
2. You returned to Bob's and once the boys (Jodie's brother and Bob's son) were outside playing, you put the video on and watched a few scenes with Jodie sitting on your lap (uncharged act).
3. You began to get an erection, which she could feel. You then grabbed her hand and tried to place it on your penis. She then slid off your lap and sat next to you on the arm of the chair.
4. You then turned to face her and removed her pants and underwear. Whilst rubbing your hand up and down on your penis over your pants (Charge 4), you then used your other hand to rub Jodie all around her vulva and vaginal region.
5. You then inserted one finger into her vagina (Charge 5), causing her pain as your fingernail scratched her. When you tried to rub her clitoris region, she told you it hurt. You then said to her, "you'll like it when you're older".
6. This incident finished when the boys came inside and wanted to watch their own video. Jodie recalls the incident taking about half an hour in total.

Offending between 1 January 1984 and 31 December 1988

1. Carol grew up in Wodonga and became best friends with Jodie as their mothers were already very good friends. Carol would spend 3-4 days per week visiting Jodie's house. Sometimes this would include sleepovers where you would be the only adult in the house.
2. Between 1984 and 1988, Carol was between 6 and 10 years of age. You would often take her from the bed she shared with Jodie and put her in 'the big bed,' so she was comfortable.
3. On the first occasion Carol's pants were on, and you touched her "a little bit" around the clitoris and asked her if she liked it (Charge 6).
4. On another occasion, you tapped her shoulder and told her to come to the big bed. You then took her pants off and touched her on the vagina with your fingers and hands. Whilst doing this you asked her if she liked it and if it felt good (Charge 6).
5. On the final occasion, Carol's parents went out socialising with Jodie's mother, leaving you at home. Both Jodie and Carol were staying in the loungeroom with their younger siblings, including Carol's younger sister, who was around 2 years of age at the time.
6. Later that evening, you woke Carol up and said, "it's your turn". Despite protesting that she didn't want to go, she ended up in the big bed where you began to touch her on the vagina (Charge 6). On this occasion you were hurting her, and she told you to stop. You said to her "you've got to relax or it will hurt".

1. In 1989 when Jodie was 10 years of age, she went to the pool with her family friend. Upon returning to her house, Jodie and her friend had an argument.
2. Jodie's mother spoke with Jodie, who described her as 'a mess like I never seen before.'
3. Jodie disclosed to her mother that you had been "playing with her private parts" and that you put your hands into her pants and your finger inside her vagina.

1. On 16 March 2022, Jodie reported the incidents to the Westgate Sexual Offences and Child Abuse Investigation Team.
2. On 22 June 2022 she provided a statement to Detective Senior Constable Julia Williams.
3. On 11 July 2022, and then later on 9 October 2023, Carol provided statements to police outlining her recollection of the offending.

1. On 30 December 2022, during a telephone conversation Jodie asked you about the offending. You apologised for the things that you had done back then but you couldn't remember exact details. When Jodie discussed the offending against Carol, you acknowledged molesting both children. You extended that apology to Carol as well.

1. On 3 March 2023, you were transported to Wodonga Police Station to be interviewed.
2. When interviewed by police, you provided a sketch of the way you remembered the home you lived in with Jodie and her mother.
3. You denied the allegations, stating that you didn't touch Jodie on the vagina nor make her touch your penis.
4. You later stated you might have done one thing to Carol, but it was nowhere near as significant as alleged by her. You otherwise denied the allegations made by Carol.
5. However, you also said with regards to Jodie:

"I'm admitting to whatever the charges are and what's been said and I'm not denying none of it, because the damage is done now, so even if I was innocent, it's -the damage is done."

1. You later said you might have sexually assaulted Jodie once when she was asking you about her body. You did not claim that either of the complainants were lying.

1. Charges 1-5 involve offending against your adopted step-daughter Jodie. You began sexually offending against Jodie within a year of marrying her mother. At that time Jodie was four years old. Your offending continued until she was eight, by which time you had sexually offended against her for half of her life. During this period you were aged between 31 and 35.
2. Charges 1-4 are rolled up charges. Charge 1 involves 4 occasions; charge 2 involves 2 occasions; charge 3 involves 2 occasions and charge 4 involves 5 occasions.
3. Generally speaking, a rolled-up charge will attract a higher sentence than a single charge to reflect the additional criminality.
4. The most serious charges are charges 4 and 5. Charge 4 involved you masturbating in the presence of Jodie on 5 occasions. Charge 5 involved penetration of Jodie's vagina in a manner that caused her pain.
5. The most aggravating features of your offending against Jodie are the gross betrayal of trust involved and its sustained nature. This was not isolated offending.
6. Jodie's mother trusted you with her daughter's care and you abused that trust in the most egregious manner imaginable.
7. You also took advantage of Jodie's friend, Carol. Carol's parents allowed her to have regular sleepovers at your house. On three occasions, you sexually offended against Carol. These are rolled up into charge 6.
8. In the absence of any evidence of what motivated your offending, I can only assume that you engaged in this conduct purely for sexual gratification. Your moral culpability for the offending is therefore very high.

1. In determining the appropriate sentence in your case, included in the matters to which the court must have regard are the impact of your offending on any of your victims, their personal circumstances; and any injury, loss or damage resulting directly from your offending.[6]
2. To assist a court in assessing these impacts, the law enables (but does not require) victims to make statements to the court setting out particulars of the impact of the offence on them and any injury, loss or damage they have suffered.[7]
3. The court received a victim impact statement from each of your victims. Jodie read her statement to the court; Carol's statement was read by the prosecutor.
4. In her detailed and eloquent statement, Jodie states that she will never know the little girl she could have been because of your abuse. She states that your actions have forever altered her emotional and psychological wellbeing. She has had trouble forming healthy relationships. After referring to her difficult life, Jodie states:

My life could have been profoundly different if I had been given the gift of a good father. A loving supportive father could have instilled confidence, modelled healthy relationships, and provided a security foundation. Instead of fighting to heal from your violations, I could have focused on thriving, pursuing my dreams, and forming a family without fear.

Because of you, I found it challenging to engage in life's milestones; my friends would talk about their crushes, first kisses and sexual experiences; this would make me think of the sexual abuse you had perpetrated on me; you took away the joy and excitement of my first experience with an age-appropriate person of my choosing.

1. According to Jodie, 'the ripple effects of your abuse have tainted every aspect of [her] family life'.
2. Carol referred in her statement to a history of self-harming as a way of coping with the emotional pain caused by your offending. She has lived with depression and intense social anxiety for most of her life. Your crimes have affected her family relationships.
3. I have taken the profound impact of your offending on your victims into account in determining the appropriate sentences to impose.

1. You are now 73 years old and live in Bellbridge with your wife of 29 years, Annette.
2. You have 4 biological children and 2 adopted children. The complainant Jodie is one of those adopted children. You have a good relationship with the two children from your first marriage. You have not seen Jodie for over twenty years.
3. Whilst your mother was supportive and nurturing, your father was frequently intoxicated and was physically and emotionally abusive toward you and your mother.
4. You left school after completing Year 9 and worked full-time for Coles for 3-4 years. You joined the Army Reserve in 1969 and continued to serve part-time for 23 years finishing in about 1992.
5. Between 1986 and 2019 you worked as a contractor to the Australian Defence Force in transport and logistics, at which point you retired.
6. You now receive the aged pension. You have had some difficulty adjusting to retirement and the sense of isolation it brings after a busy working life.

1. The most significant matter are your pleas of guilty which were made before your case was transferred to this court. By pleading guilty you accept responsibility for your offending. You save your victims and other witnesses from the anxiety and trauma of giving evidence at your trial. This is a very significant utilitarian benefit. You are entitled to a tangible sentencing discount as a result.
2. You have no prior criminal history nor has there been any subsequent offending over the past four decades.

1. It is difficult to assess your rehabilitation prospects with any confidence. There is no materials before the court to explain your offending. You do not appear to suffer from any mental health conditions.
2. It is significant that you have not re-offended in the many years that have passed since this offending.
3. In the circumstances, I assess your prospects of rehabilitation as good. You are unlikely to re-offend.

1. Your counsel Mr Morgan quite properly conceded that a term of imprisonment is the only appropriate sentence. However, having regard to the date of the offending, he submitted that the sentence could be partially or wholly suspended.
2. Mr Morgan referred the court to Henry v The King,[8] in which the Court of Appeal upheld a wholly suspended sentence imposed by this court. The accused had been found guilty by a jury after a trial on four course of conduct charges of indecently assaulting his 13 year old sister-in-law. As Mr Morgan readily accepted, there were powerful matters of mitigation including very lengthy delay associated with the criminal process (in addition to the delay associated with the historical nature of the offending) and the application of Verdins principles.[9]
3. Mr O'Doherty, counsel for the Director, submitted that only a head sentence and a non-parole period adequately reflect the objective seriousness of the offending. While the prosecution accepted that, as matter of law, it is open to the court to suspend part or all of any term of imprisonment it imposes, the objective seriousness of the offending is such as to make a suspended sentence inappropriate. Mr O'Doherty referred in this regard to the compelling evidence of victim impact especially that provided in the statement of Jodie.

1. Section 5(2)(b) of the Sentencing Act 1991 (Vic) ('Sentencing Act') requires that the court take into account, as one of many factors, 'current sentencing practices' in determining the appropriate sentences to impose. This is to achieve a reasonable degree of consistency in sentencing.
2. 'Current sentencing practices' in section 5(2)(b) refers to practices current at the date of sentencing and not the date of offending.[10] As already noted, your offending took place between 1984 and 1988. It has taken 40 years for your case to come before the court for sentencing.
3. In the case of Stalio v The Queen, the Court of Appeal stated that, when sentencing an individual after a significant delay since the time of the offending, the principle of equal justice requires that regard also be had to sentencing practices at the time that the offence was committed.[11] As the Court there recognised, '[i]t would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time'.[12]
4. Given the passage of time, the sentencing practices from the period 1984-1988 are difficult to ascertain. In the circumstances, the Court of Appeal has recognised that 'the best that a sentencing judge [can] do in such circumstances [will] be to have regard to the fact that the range of sentences imposed for this offence were generally lower than the present range of sentences for the same or similar offences.'[13]
5. I have adopted this approach. I have imposed sentences that are lower than would be the case if your offending occurred in the recent past and reflect the sentences that would have been imposed if you had been sentenced at the time of your offending.
6. The court was referred to Henry v The King,[14] Bernard (a pseudonym) v The King[15] and DPP v Hilt.[16] I have summarised the first of these cases earlier in these reasons.
7. In Bernard, the offender was found guilty after a judge-alone trial, in respect of 4 charges of indecently assaulting his adopted child over a three year period between 1973 and 1975. His victim was aged between 10 and 13 during this period. At the time of sentencing in 2022, the offender, who had no prior convictions and had not offended subsequently, was 78 years of age. He was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months.
8. The appeal decision is of particular assistance as the Court of Appeal examined a number of sentences imposed in similar cases between 1964 and 1982[17] as part of its application of the Stalio[18] principle. The Court concluded that 'overall, sentences for offending of this kind were generally less substantial then, than they are today'.[19] This is no doubt partly a function of the lower applicable maximum penalties.[20]
9. The Court of Appeal upheld a defence appeal and reduced the sentence to 3 years' imprisonment with a non-parole period of 21 months.
10. Finally, in Hilt, a former school teacher pleaded guilty to seven historical charges of indecent assault against his school student who was aged between 11 and 14 at the time. The offending was undoubtedly serious as it involved penetrative sex.
11. There were very strong matters in mitigation including age (the offender was 81 at the time of sentencing), serious physical and mental health concerns making the custodial experience very difficult and lengthy delay in the criminal process. It was the last consideration that ultimately 'tipped the balance in favour of a wholly suspended sentence'.[21] The case was also decided at a time when Worboyes[22] discounts for pleas of guilty were being given.
12. I have been assisted by consideration of these decisions while acknowledging the limited benefit that a sentencing court can obtain from previously decided cases.[23]

1. As your offending occurred before 2014, the court has the power to suspend part or all of any term of imprisonment. A decision about suspending a jail term involves an assessment of whether the community's interest in the rehabilitation of the offender will be promoted by such a sentence.[24]
2. I am not convinced that yours is such a case. As noted, there is very little before the court upon which I can assess your prospects of rehabilitation and future risk of offending.
3. An unsuspended sentence of imprisonment is the most appropriate disposition.
4. Each of the offences to which you have pleaded guilty is a 'sexual offence' for the purposes of Part 2A of the Sentencing Act. You are therefore to be sentenced as a 'serious sexual offender' on charges 3, 4, 5 and 6. In fixing the sentences on those charges, the Court must regard community protection as the principal purpose for which sentence is imposed.[25] The prosecution did not seek a disproportionate sentence and I have not imposed one.
5. Further, the terms of imprisonment imposed must be served cumulatively on each other unless otherwise directed.[26] The principle of totality must still be applied albeit in a manner that is consonant with the statutory provisions.[27]
6. Finally, the court's records must record that you have been sentenced on charges 3-6 as a serious sexual offender.
7. The other important sentencing considerations are denunciation, just punishment and general deterrence.
8. Given your lack of other offending and my assessment of future risk, specific deterrence is a less important consideration.
9. The facts of your case are strikingly similar to those in the case of Bernard. The principal differences are that you offended against two young girls and not one as was the case there and you pleaded guilty whereas in Bernard there was a trial.

1. I make the following orders taking into account the maximum penalties and the other matters discussed earlier including all matters of mitigation:

(a) On charge 1, indecent assault of a person under 16, you are convicted and sentenced to 12 months' imprisonment;

(b) On charge 2, indecent assault of a person under 16, you are convicted and sentenced to 12 months' imprisonment;

(c) On charge 3, indecent assault of a person under 16, you are convicted and sentenced to 12 months' imprisonment;

(d) On charge 4, gross indecency with a person under 16, you are convicted and sentenced to 12 months' imprisonment;

(e) On charge 5, indecent assault of a person under 16, you are convicted and sentenced to 12 months' imprisonment; and

(f) On charge 6, indecent assault of a child under 16, you are convicted and sentenced to 9 months' imprisonment.

1. The sentence imposed in respect of charge 4 is the base sentence. Two months of the charge 1 sentence; two months of the charge 2 sentence; three months of the charge 3 sentence; four months of the charge 5 sentence; and five months of the charge 6 sentence are to be served cumulatively on the base sentence and on each other.
2. The total effective sentence is therefore 2 years and 3 months imprisonment.
3. You will be eligible for parole after you have served 16 months in custody.
4. Pursuant to section 6F of the Sentencing Act, you are sentenced on charges 3, 4, 5 and 6 as a serious sexual offender which is to be reflected in the records of the court.
5. Pursuant to section 18 of the Sentencing Act, I declare that the 16 days you have served in custody on remand are reckoned as pre-sentence detention.
6. Pursuant to section 6AAA of the Sentencing Act, had you pleaded not guilty, the total effective sentence would have been 3 years and 6 months' imprisonment. The non-parole period would have been 2 years.
7. You are a registered sex offender for life under the Sex Offenders Registration Act 2004 (Vic).

[1] As amended by the Crimes (Sexual Offences) Act 1980 (Vic).

[6] Sentencing Act 1991 (Vic) ss 5(2)(daa), (da), (db) ('Sentencing Act').

[7] Ibid ss 8K, 8L.

[8] [2023] VSCA 100 ('Henry').

[9] Henry (n 8) 22-23 [98]-[103] citing R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[10] Stalio v The Queen [2012] VSCA 120, 18 [39] ('Stalio').

[12] Ibid 24 [54] (emphasis added); see also Bernard (a pseudonym) v The King [2024] VSCA 293, 22 [93] ('Bernard').

[13] The Queen v AMP [2010] VSCA 48, 14 [34]; see also Bernard (n 13) 24 [99].

[16] [2023] VCC 821 ('Hilt').

[17] Bernard (n 13) 23 [95]-[99].

[20] If these offences were committed today, the maximum penalties would be 10 years' imprisonment on each charge.

[22] Worboyes v The Queen [2021] VSCA 169; Hilt (n 17) [35].

[23] DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41.

[24] Henry (n 8) 24-25 [105]-[106].

[27] DPP v Hum [2022] VSCA 57, 23 [113], 30 [134].