R v Roberts

LOWER COURT District Court JURISDICTION : LOWER COURT 07/03/2003 FILE NUMBER(S) : LOWER COURT Stewart ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60220/03

LEVINE J HOWIE J SMART AJ

TUESDAY 11 NOVEMBER 2003 REGINA v Bruce ROBERTS Judgment

1 LEVINE J: I agree with the orders proposed by Howie J and with his reasons therefor. 2 HOWIE J: On 17 April 2002 the applicant pleaded guilty before Acting Judge Stewart to three counts on an indictment: the first count being an offence of buggery committed with LH between 1 January 1972 and 31 December 1972; the second, an offence of buggery with DB between 1 January 1976 and 31 December 1977; and the third, an offence of indecent assault on GS between 1 January 1976 and 31 December 1977. The maximum penalty for the offence in each of the first two counts was 14 years imprisonment and, for the offence in the third count, 5 years imprisonment. 3 The indictment came to be formulated in this way as a result of an agreement reached between the Crown and the defence. The applicant had been convicted after trial of seven offences against DB. Judge Stewart sentenced him for those matters on 9 February 2001. Those convictions and the accompanying sentences were quashed on appeal. At the time that the Crown was preparing to reindict the applicant with the original seven counts, there were a further eight charges of a similar nature, relating to two other complainants, then before the Local Court. The agreement between the parties was that, if one of the original counts and two of the new charges were placed on an indictment, the applicant would plead guilty to those three charges and ask that the remaining matters be dealt with under s 33 of Crimes (Sentencing Procedure) Act. As a result of this being done, there was before his Honour a Form 1 containing twelve matters relating to sexual offences committed on the three victims named in the indictment between 1971 and 1978. These matters were to be taken into account when the applicant was sentenced for the first count on the indictment. 4 On 7 March 2003, Judge Stewart sentenced the applicant as follows: in respect of count 1, and taking into account the Form 1 matters, imprisonment for 8 years with a non-parole period of 6 years; in respect of count 2, 7 years imprisonment with a non-parole period of 4 years; and, in respect of count 3, a fixed term of imprisonment for 18 months. The sentence for count 2 was cumulative on the sentence in respect of count 1. The sentences for the first and third counts were to commence on 17 October 2000 and the sentence for the second count is to commence on 17 October 2006. The overall sentence imposed was, therefore, imprisonment for 13 years with a non-parole period of 10 years, the applicant being eligible for release to parole on 16 October 2010. 5 The applicant seeks leave to appeal against the sentences imposed on the following grounds:

The sentencing judge erred in finding that the applicant had little prospect of rehabilitation.

The sentencing judge erred in his approach to the Form 1 offences.

The sentencing judge erred in failing properly to take into account the sentence imposed on the applicant in 1979.

The sentencing judge erred in failing properly to take into account sentencing patterns at the time the offences were committed.

The sentencing judge erred in failing properly to take into account the applicant's subjective circumstances.

The sentencing judge failed properly to discount the sentence imposed by reason of the pleas of guilty.

The sentencing judge erred in imposing a wholly cumulative sentence in respect of count 2.

The sentencing judge erred in failing to reflect his finding of "special circumstances" in the sentence imposed in respect of count 1. 6 The first count and three of the matters on the Form 1 related to LH, who at the time of the offences was aged eight or nine years. The offences were committed between 1971 and 1973 when the applicant was in his early twenties. The matters on the Form 1 comprised two indecent assaults and the commission of an act of indecency. It is unnecessary to set out the facts of the matters in detail. The statement of facts contained the following passage:

The [applicant] took [LH] along with other boys of similar age to the circus, roller skating, motor bike riding and treated them with ice cream and food. When at the [applicant's] home he would engage in playful activity with the boys which involved physical contact. 7 The second count and six matters on the Form 1 related to DB who at the time of the offences was aged 7 or 8 years. The offences were committed between 1976 and 1978. The matters on the Form 1 involved an offence of buggery, three indecent assaults, and an assault. The assault related to an incident in which the applicant administered ether to the complainant. These charges arose from complaints made by DB in 1997 after he saw the applicant in Queensland in company with a young child. 8 The third count and three matters on the Form 1 related to GS who was aged seven or eight years at the time of the offences. The offences were committed between 1976 and 1978 when the applicant was aged between 25 to 26 years. The matters on the Form 1 involved an indecent assault, procuring an act of indecency and an assault. The applicant was arrested for these offences on 31 July 2000. 9 The applicant was aged 52 years at the date of sentence. He has a record that relevantly includes two offences of buggery and two offences of attempted buggery. The applicant was sentenced in January 1979 to three years imprisonment with a non-parole period of 6 months for the offences of buggery. In November 1983 he was placed on a Griffith remand for an offence of attempted buggery. In June 1984 he was placed on a bond for 5 years for an offence of attempted buggery. Since that date the applicant has only one offence recorded against him for shoplifting in June 1998 for which he was fined. 10 The applicant has a severe hearing disability apparently arising from his employment for a number of years as a welder. He was described by his Honour as "almost stone deaf" but he can participate in conversations with the assistance of hearing aids. He is otherwise generally in fair physical health but does suffer from arthritis and migraine. He has been in custody since October 2000 and has been held in protection because of threats of attacks upon him as a result of the nature of the offences he committed. 11 A psychiatric report was prepared in May 2002 at the request of the District Court. The applicant told the psychiatrist that his last sexual relationship with a male child was in 1982. He had a history of anxiety and depression that was then under control by the use of medication. The psychiatrist noted that, although statistics suggested that persons such as the respondent had a significantly high risk of re-offending, the risk could be diminished by psychological, or if necessary, pharmacological intervention. 12 A psychologist, Mr Diment, in May 2002 reported that the applicant suffered from long-standing depression and anxiety that would require "appropriate psychiatric monitoring". He was said to be "at strong risk of suicide". The psychologist found him to be remorseful for what he had done. The applicant reported being assaulted in gaol in 1982 and he was fearful of further assaults while in prison. The report contained the following:

[The applicant] has had a difficult life, sustaining a head injury while very young, resulting [in] long-term learning difficulties and physical abuse at the hands of an alcoholic father. Dr Walker's report is enlightening in this regard and she has assessed his cognitive functioning as somewhat below average…`he has chronically low self-esteem and suffers episodes of Major Depression with strong suicidal impulses. In clinical presentation he is simple and childlike and he is ill-equipped to cope alone in the adult world.' he has looked to long-term counselling and involvement with community support programs and the Salvation Army for direction and support…………

The reference to " Dr Walker's report " is a reference to a report prepared on 6 December 2000 and which was before Judge Stewart when he originally sentenced the applicant. 13 The sentencing remarks by Judge Stewart were brief on this occasion but his Honour annexed to his remarks the agreed statement of facts and his sentencing remarks given when he sentenced the applicant following the earlier trial. His Honour stated during the course of the more recent remarks on sentence;

I have taken account of the sentencing principles of deterrence, denunciation and protection of the public, and of course prospects of rehabilitation. In the case of this offender there is, I am sad to say, little prospect of rehabilitation. He is a predator who either does not know the harm he has caused or does not want to know; but like-minded people must be deterred, and the public, particularly vulnerable children, must be protected.

14 This passage of the sentencing remarks gives rise to the first ground of appeal. The argument in support of this ground, at its simplest, is that his Honour was in error in using the words "he is a predator" to describe the applicant at the date of sentencing in 2003, when the evidence was that the applicant had not committed any like offence since 1982. The complaint has merit. True it is that there was little evidence to indicate that the applicant would be rehabilitated in the sense that he might receive treatment of some kind or other to avoid committing offences against young boys. Further, there was little true contrition or insight into his behaviour. Although the applicant had expressed remorse to Mr Diment, much of his concern seemed to be for himself and his mother. 15 However, the evidence was that his avoidance of offending over the last two decades was because of his fear of gaol and the threat of further violence as he suffered in 1982. The court is not so concerned with why a person is unlikely to re-offend in the future: it may be because the offender has reformed by the date of sentence, or because the person has good prospects of rehabilitation. Or it might be, as in the case of the applicant, a fear of being caught and returned to prison which is so strong that it overcomes his impulses to offend. The important point was that the offender is unlikely to re-offend and the sentence had to reflect this undisputed fact. 16 The material before his Honour should have led to a finding that there was little, or no, need for specific deterrence in determining the appropriate sentence. Nor did the applicant himself any longer pose a threat to the public so that it was unnecessary to impose a sentence that contained an element of preventative detention. However, his Honour was, with respect, correct insofar as he recognised that there was still a need to both denounce the applicant's conduct and to provide for general deterrence. The ground of appeal is made out. 17 Senior Counsel for the applicant abandoned the second ground during the course of oral submissions. 18 There is no merit in the next two grounds which deal with the relevance of the applicant's prior convictions and the sentences imposed in 1979 and 1982. The third ground was not pressed during argument. The fourth contends that the sentences can be taken as examples of the type of sentences imposed at the time of the applicant's offending and indicate that the sentences imposed by Judge Stewart were manifestly excessive by that standard. But the Court knows nothing about the facts or circumstances surrounding those offences or the applicant's subjective features at the time of sentence. For example, it may be the case that, in determining not to impose a gaol sentence in 1983, one of the matters taken into account by the court was the fact that the applicant had been assaulted in custody prior to the sentence being imposed. Nothing can be gleaned from these sentences as to the pattern of sentencing at the time the present offences were committed. 19 The Crown produced to the Court a treatise entitled Sentencing Sex Offenders in New South Wales, An Interim Report by Ivan Potas and published by the Australian Institute of Criminology in July 1977. In respect of the offence of buggery, the following was stated:

As with rape, the offence of buggery may attract heavy custodial sentences. Generally, where the offender has committed the offence by the use of considerable force or violence, he may expect sentences in excess of 5 years, even though the maximum penalty for the offence is 14 years' penal servitude…………..

Although, like rape, custodial sentences are commonly imposed for this offence, unlike rape a large proportion of convicted offenders are released on recognizance………. The following Table also indicates the sentences imposed on persons who were brought before the Higher Criminal Courts for this offence. However, as the sample is small, only a very general trend may be inferred from the statistics.

The Table reveals that, of the 11 cases analysed for offences of buggery and bestiality dealt with in 1975, four persons received a recognizance, one received a sentence of imprisonment of between six months and one year, two persons received sentences of imprisonment of between two years and five years, and two persons received sentences of imprisonment of more than 5 years. The author noted that one explanation for the fact of the few cases coming before the courts was that the offence might involve little or no violence, especially where the offence was committed between consenting males. 20 In my view the statistical information available cannot assist in determining what sentences might have been imposed upon the applicant had he been before a court for the offences for which he was sentenced by Acting Judge Stewart shortly after the offences were committed. In those circumstances it is necessary to approach the matter in the way that I suggested in R v Moon (2000) 117 A Crim R 497 at 511 and which was approved by this Court in R v MJR (2002) 130 A Crim R 481 at [107] by Sully J (with whom the other members of the Court agreed). I said:

The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: ………………… , and be proportional to the criminality involved in the offence committed:………………….. . Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the Court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time."

21 This ground will thus be determined by a consideration of the length of the sentences imposed having regard to the maximum penalty, the subjective circumstances of the offender and the requirement of punishment notwithstanding the lengthy period of time that has expired since the offences were committed. As I have determined that there is an error disclosed in his Honour's remarks, it is unnecessary to determine this ground of appeal. 22 The fifth ground of appeal asserts that his Honour did not give full regard to the applicant's subjective circumstances. Senior Counsel for the applicant at the hearing of the appeal admitted that "this was a difficult ground". In effect the argument was that, by reason of the applicant's strong subjective case and the length of time that had passed since the commission of the offences, there was little need for the sentence to do other than act as a general deterrent and in that regard the applicant was not a suitable person upon whom to impose a sentence to achieve that purpose. 23 One of the difficulties for the applicant in succeeding on this ground is that Acting Judge Stewart set out the applicant's subjective case at length in his earlier sentencing remarks and, in particular, stressed the difficulties for the applicant in serving a sentence of imprisonment in light of his physical disabilities. But at the end of the day, this ground cannot be resolved simply by a consideration of the sentencing remarks. If there is error, as asserted, it will be manifest in a sentence which this Court finds to be unjustifiably severe having regard both to the seriousness of his criminal conduct and his subjective circumstances. In my view the sentence is excessive for reasons that will become apparent shortly. 24 The sixth ground asserts that his Honour failed to give sufficient discount for the plea of guilty, particularly so far as the first offence on the indictment was concerned. In respect of the offences against LH he had pleaded guilty at the first reasonable opportunity. Again the answer to this ground must be found in an evaluation of the sentences because his Honour did not indicate what discount, if any, he was giving for the pleas, at least by reason of their utilitarian benefit. However, his Honour mentioned the fact that the applicant had pleaded guilty and the pleas were not likely to have been overlooked given that his Honour was concerned at one stage as to whether he should accept them in light of the applicant's subsequent denial of guilt. The applicant did ultimately confirm his guilt of the offences personally before the court and Judge Stewart proceeded to accept and act upon the pleas. 25 Counsel for the applicant contended that his client was entitled to a discount of 25 per cent in respect of the first and third counts and about 10 percent in respect of the second count. 26 At one stage in his remarks his Honour referred to a discount of 25 per cent that he was applying to the sentence. But this seems to me to have been in the context of the fact that the applicant was going to serve his sentence on protection and because of the added difficulties for him caused by his hearing problems. Why his Honour should indicate a discount for those matters but not for the pleas of guilty, is not clear to me. His Honour's method of determining the sentence in this regard is also inconsistent with the line of authority against a two-step approach to sentencing; that is where the court quantifies the discount being allowed for subjective circumstances. 27 A nice question arose in argument on the hearing of the appeal as to how a court applies a discount to the sentence for an offence in respect of which matters are being taken into account. On one view the sentence for the offence should be determined and then the discount applied: on another view the discount should be applied to the sentence for the principal offence and then the matters on the Form 1 taken into account. It is unnecessary, in my view, for present purposes to resolve that question, if it is one of practical significance, which I doubt. Whatever mathematics are applied, it is the result that is important and at the end of the day the sentence must perform the functions required of it in endeavouring to fulfil the multiple, and sometimes competing, policy considerations. 28 The Crown conceded that no discount appears to have been applied in sentencing for the second offence on the indictment but relied upon his Honour's statement that he was granting a 25 per cent discount in answer to the ground of appeal so far as the other two counts are concerned. As I have indicated, I do not believe that what his Honour said about a discount related to the pleas of guilty. If his Honour had given a 25 percent discount for the plea of guilty to the first count and a discount of the same magnitude by reason of the onerous conditions of the applicant's custody, his Honour must have started with a sentence close to, if not exceeding, the maximum penalty. This ground has been made good. 29 The seventh ground is that his Honour erred in imposing a wholly cumulative sentence for count 2. In my opinion this ground has been made out. One of the difficulties in the present matter was that the Crown elected to put all the matters to be taken into account on the one schedule to the Form 1 and asked that the matters be taken into account in respect of the first count. This approach was taken regardless of the fact that there were three different complainants involved, three different sets of offences and there was a count referable to each of the complainants on the indictment. That situation made it difficult for his Honour to sentence in a logical and appropriate manner. By proceeding in that way, the Crown caused an overlap between the offences on the indictment which would not have occurred had their been three separate Forms 1, one in respect of each complainant. As his Honour was taking into account serious offences in respect of DB on the Form 1 in sentencing for the offence in count 1, it seems to me to have been inappropriate to make a wholly cumulative sentence for count 2 which related to an offence against DB. In my view the manner in which the Crown proceeded by taking all matters on the one Form 1 was illogical and inappropriate. The practice, if there is one, should be discontinued. Senior Counsel for the Crown on the hearing of the appeal conceded as much. 30 In my opinion the sentences are manifestly excessive having regard to the pleas of guilty and the subjective circumstances of the applicant. The sentences for the first and second counts were excessive in themselves even before they were totally accumulated. 31 The last ground is that his Honour failed to reflect his finding that there were special circumstances in the over-all non-parole period specified. His Honour found special circumstances by reason of the fact that the applicant was to be held in protective custody and that the sentences were to be cumulative. However, the total non-parole period is 77 per cent of the total head sentence. I do not believe that this is the result intended and I assume that the sentencing judge has failed to have regard to the necessity of adjusting the non-parole period on the cumulated sentence to ensure that at least the statutory relationship is preserved unless the judge intends to fix a non-parole period of more than 75 per cent. 32 There would be a strong argument to support a finding that in the present case there are no special circumstances. As his Honour found, there was no likelihood of rehabilitation but none was required in order to ensure that the applicant would not re-offend. Although the applicant was being held in protective custody, that fact had been taken into account in reducing the sentence by 25 per cent. To reduce the non-parole period to again reflect that fact and the applicant's hearing difficulties would be to double discount for those matters. I do not accept the applicant's submission that such matters are primarily to be reflected in the non-parole period. They are principally to be taken into account in fixing the overall sentence because, firstly, the offender may have to serve the whole of the sentence imposed, and, secondly, because by reducing the overall sentence, the non-parole period will also be reduced: see R v Durocher-Yvon [2003] NSWCCA 299. While the applicant was, by reason of his protective status, deprived of participation in courses, and that fact in many cases will result in a finding of special circumstances, it was of little relevance in the present case because the applicant had little prospect of being assisted by any course that might otherwise have been available to him. 33 However, a finding of special circumstances was made and the Court should give the applicant the benefit of that finding. But the reduction in the non-parole period should not be substantial otherwise the minimum term that the applicant is to serve as punishment for his crimes might fail to reflect the objective seriousness of the offences he committed. 34 In redetermining the sentences to be imposed upon the applicant I have taken into account the matters of aggravation and mitigation set out in s 21A of the Crimes (Sentencing Procedure) Act. 35 I propose that the following orders be made: 1. The application for leave is granted, the appeal allowed and the sentences for the first and second counts are quashed. 2. The applicant is sentenced for the first count, and taking into account the matters on the Form 1, to imprisonment for 7 years with a non-parole period of 4 years 6 months. The sentence is to commence on 17 October 2000. The non-parole period expires on 16 April 2005. 3. The applicant is sentenced on the second count to imprisonment for 5 years 6 months with a non-parole period of 2 years 6 months. The sentence is to commence on 17 October 2004 and the non-parole period expires on 16 April 2007 the date upon which the applicant is eligible to be released to parole.

It is intended by these orders to impose a total sentence of 9 years 6 months to date from 17 October 2000 and an overall non-parole period of 6 years and 6 months from the same date. 36 SMART AJ: I agree with Howie J.

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