R v Roberts

FACTUAL BACKGROUND

1. The offender is now 77 years of age. He and his wife had 3 children, a daughter, to whom I will refer to as "Kim Roberts", who was born in September 1968, and two sons who were born respectively in 1970 and 1973.
2. In 1977 the Roberts family moved to a farm property on [redacted] near Taree.
3. The Agreed Facts recite the offending conduct according to the chronological sequence in which complaints were made to the Police. I propose to deal with the offending, broadly, in the chronological order in which the criminal conduct occurred.
4. The first offence arose at a time prior to the offender and his family moving to [redacted].
5. The offender had a sister, to whom I will refer to as "Gina Roberts", who resided in Taree. Gina had a daughter, to whom I will refer to as "Connie Pearson", who was born in November 1954. She was the offender's niece and referred to him as "Uncle George". In August 1965, Connie Pearson's mother, the offender's sister, was admitted to hospital in Taree. She was subsequently transferred to hospital in Sydney where she remained until the end of September 1965.
6. During that period of her mother's absence in 1965, when Connie Pearson was 10 years old, her father on occasion collected her from school.
7. She recalls a specific instance when the offender came to their home. She recalls at one point that afternoon being alone in the front bedroom with the offender who picked her up and put her on top of himself.
8. While the Agreed Facts do not state the incident with any clarity, it is said the offender's penis touched the outside of the 10-year-old victim's vagina. She said that she was not wearing underwear and the offender moved her back and forth on top of him until he ejaculated. She recalls it being quite "messy".
9. This incident was an isolated one in relation to this victim. It is the basis for a charge of indecent assault on a female contrary to the provisions of section 76 of the Crimes Act 1900. In 1965 such an offence carried a maximum penalty of 3 years imprisonment, which was subject to an increased maximum penalty of 5 years imprisonment if the female was under the age of 16 years. 5 years is, accordingly, the relevant maximum.
10. Connie Pearson subsequently told her General Practitioner about the incident when she was in her mid-twenties, which I presume was in the late 1970's. In due course she made a formal complaint and police statement in November 2022.
11. The Court Attendance Notice for this offence was Sequence 3 in H623105991. The victim is identified as Victim #5 in the Agreed Facts.
12. The second victim, to whom I will refer to as "Danielle Turner", was born in July 1963. She lived with her parents at [redacted]. She regularly played with her cousins, the "Roberts" children, at their residence. Her mother was a sister of the offender and Danielle Turner was the offender's niece.
13. I should make one observation in passing with respect to the offences described by this particular victim in the Agreed Facts. The description of her playing regularly with the Roberts children at their residence and the frequency of interaction with the offender is strongly suggestive of the Roberts family residing nearby [redacted]. However, the incidents which she describes occurred in 1970 and in the years following. The Agreed Facts indicate that the Roberts family did not move to live on [redacted] until 1977. In light of the offender having entered a plea of guilty, I will assume that he must have been visiting to [redacted], perchance to his parent's home on [redacted] or to his sister's.
14. In 1970, when the victim, Danielle Turner, was 6 or 7 years old, she was walking along a street on [redacted] when the offender, her uncle, stopped beside her on a motorbike. He said he would take her for a ride, so the child got onto the motorbike. The offender pushed the child's hands into his pants and down onto his penis. He made her grab his penis as they rode on the motorbike. His penis was hard, and he kept her hand on his penis while they rode.
15. Over the following years there were other occasions when the offender pushed the victim's hands under his clothing and onto his penis, including while going for other rides on his motorcycle. He would also hug her and touched her inappropriately over her clothes. He made comments like: "Have you got any little titties yet?"
16. The described incident in 1970 ultimately led to a charge of assault with an act of indecency in forcing her hands to hold his penis. This was similarly charged as a contravention of section 76 of the Crimes Act 1900 and, by virtue of the victim being under the age of 16, carried a maximum penalty of 5 years imprisonment.
17. The victim first complained about the abuse she suffered as a child when she spoke to a counsellor when she was an adult. She made a formal complaint and a statement to Police in November 2021.
18. The Court Attendance Notice for this offence was Sequence 1 in H496465992. The victim is identified as Victim #3 in the Agreed Facts.
19. The third victim in the sequential chronology of offending, to whom I will refer to as "Lisa Watson", was also a niece of the offender. She was Danielle Turner's younger sister. As a child she spent a lot of time at the offender's house. (I interpolate that I do not repeat my earlier observations regarding the date at which the offender's family is said to have moved [redacted], although I do note that the Victim Impact Statement refers to regular visits to the children's grandparents' home on [redacted].)
20. A course of ongoing conduct occurred when Lisa was 9 or 10 years of age, in 1975. When she was alone with her uncle he would play and wrestle with her, and in the course of wrestling with her he started touching her on her breasts and her vagina, initially on top of her clothes. In due course he progressed to touching her breasts and vagina under her clothing.
21. During 1975 she described a particular incident when she was at the offender's house. During that visit the offender wrestled the child under a table and touched her genitals over her clothes. He then pulled her pants down and touched her vagina.
22. The offender then took off his own pants and grabbed the victim. He lay on top of her and touched the outside of her vagina with his penis. He rubbed his penis up and down on the outside of her vagina. The offender held his hand over her mouth while he did this.
23. The rubbing of his penis on the child's vagina lasted for approximately 10 minutes before he stopped. This action of rubbing caused the victim some soreness to her vagina.
24. This conduct was similarly charged as an assault with an act of indecency contrary to the provisions of the then section 76 of the Crimes Act 1900. The offence was committed in 1975 and accordingly attracted an increased maximum penalty of 6 years pursuant to an amendment to the Crimes Act 1900 in August 1974.
25. Lisa recalls that when she was in her mid-20s the offender spoke to her and told her that he was going through counselling. He said that part of his counselling was to apologise to people who he had hurt when he was younger.
26. The victim responded to his apology by calling him "a prick". She told him: "It's all good for you to come and apologise, but it hurt me more than it hurt you."
27. Lisa made a formal complaint and provided a statement to Police in November 2021.
28. The Court Attendance Notice was Sequence 19 in H496465992. The victim is identified as Victim #4 in the Agreed Facts.
29. The next victim sequentially was a woman to whom I will refer to as "Kelly Hughes". She lived with her parents and her siblings in a house on a farm property on [redacted]. The Roberts family lived nearby in a shed on the property. Kelly and her siblings spent a lot of time with the Roberts children.
30. In 1977 or 1978, when Kelly was between the ages of approximately 8 and 10 years, she was in the offender's shed. As she went to leave, the offender called out to her. She stopped and turned around and saw the offender wearing just a towel and exposing his erect penis. The child tried to avoid looking at his penis and asked: "What?". The offender kept repeating an affectionate nickname that he called Kelly.
31. She left and walked back to her home.
32. This incident was charged pursuant to section 76A of the Crimes Act 1900. In the 1974 amendments to the Crimes Act, Parliament had introduced a new section dealing with an act of indecency "with" or "towards" a female under the age of 16. This separate offence carried a maximum penalty of 2 years imprisonment.
33. This offence was charged as Sequence 18 in H496465992 and has been placed on a Form 1 document which the Court is asked to take into account in passing sentence with respect to a separate substantive offence which also relates to Kelly Hughes.
34. The substantive offence for sentence with respect to Kelly Hughes related to an incident which occurred in 1980 when Kelly was 11 or 12 years old. She regularly went swimming with the Roberts children in the Manning River at the location of the nearby oyster farm.
35. The offender would often join the children and teach them how to swim and how to dive off the wharf. On a number of occasions prior to the specific incident in 1980, the offender touched Kelly on her breasts and pulled her towards his crotch while they were swimming. She was aged 10 or 11 years on the occasions of this conduct.
36. The particular charged incident which she described having occurred in 1980 was an occasion when Kelly Hughes and the offender's daughter Kim Roberts were both swimming. The offender was demonstrating rescue techniques with the victim. He was demonstrating the technique of holding her chin with one hand and keeping her head afloat in a simulated rescue.
37. At one stage while they were still in the water, the offender moved his hand down the stomach of the victim and to the vicinity of her vagina. The Agreed Facts state that the offender pushed his hand into her swimmer bottoms. However, while the offender admitted having rubbed his fingers on the outside of her vagina, the Crown case was that he had inserted a finger into her vagina.
38. This was denied by the offender, and as a consequence, a disputed facts hearing proceeded with respect to this specific issue.
39. Kelly Hughes, who is now a mature 55-year-old woman, gave sworn evidence that the offender's hand had gone down into her swimmer bottoms and that "it felt like he put his finger inside me." She described feeling something inside her vagina and that it was sore the next day.
40. In cross-examination she agreed that in her statement she had described his finger going inside her and the finger being "moved around". She refuted a suggestion, put in the course of cross-examination which counsel described specifically as in accordance with instructions from the offender, that she was wearing a one-piece swimming costume.
41. She was adamant that she and Kim Roberts were both wearing bikinis. She said that she did not even own a one-piece costume and was able to describe in detail the colour of the matching bikinis that she and Kim each wore.
42. She was resolute and firm with respect to the insertion of a finger, as she was with respect to the nature of the costume she was wearing.
43. Nothing in the two pretext telephone calls between the offender and his own daughter regarding what had happened with Kelly Hughes and between the offender and Kelly Hughes herself, which were tendered on the disputed facts hearing, undermines an acceptance of the evidence given by Kelly Hughes.
44. As a circumstance which aggravates the objective seriousness of the offending, the onus of proof, on the Crown, is beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; (1999) 166 ALR 330.
45. I am satisfied beyond reasonable doubt that her account was truthful and accurate and that the offender did insert a finger into her vagina.
46. However, notwithstanding the prior ongoing conduct, this incident was the only occasion on which the offender inserted a finger inside that particular victim's vagina.
47. This conduct was charged as an assault with an act of indecency contrary to the provisions of section 76 of the Crimes Act 1900. Having occurred in 1980, the offence carried a maximum penalty of 6 years imprisonment by virtue of the victim being under the age of 16.
48. Kelly Hughes told her parents what had happened the following year, but they did not believe her.
49. In her evidence before me, and also in her victim impact statement to which I will refer later, she indicated that she had told numerous people about the offender's conduct over many years.
50. In due course, and after conversations with the offender's own daughter, she made an official complaint and provided Police with a statement in June 2021.
51. The Court Attendance Notice with respect to this substantive offence, to which the earlier matter on the Form 1 attaches, was Sequence 10 in H496465992. Kelly Hughes is identified as Victim #2 in the Agreed Facts.
52. The last victim in the sequential chronology of offending was Kim Roberts, the offender's own daughter. The Agreed Facts state that the Roberts family moved into a shed at [redacted] when Kim was 8 years old. This is consistent with the move to [redacted] occurring in 1977.
53. The first offence occurred during 1977. The offender was in the shower in the shed in which the family was residing at the time. He called out to Kim, who was 8 or 9, to "come here". The child went into the bathroom where the offender was standing under the shower, naked. He had a cake of soap in his hand.
54. He said words to the effect of: "I want you to wash me like this." The offender put his hand on his penis which was erect and rubbed his hand up and down his penis. The victim put her hand onto the offender's penis and moved her hand up and down. The offender asked her if she liked "doing this" and the victim nodded. After a few minutes the offender said: "you can go now."
55. This incident has been charged as an indecent assault on a female contrary to the provisions of section 76 of the Crimes Act 1900. Having taken place after 1974, the maximum penalty was 6 years imprisonment.
56. The Court Attendance Notice was Sequence 15 in H496465992. Kim is identified as Victim #1 in the Agreed Facts.
57. A second offence against Kim occurred shortly after the first incident. She was still only 8 or 9. They were in the shed and the offender was standing near the TV with a towel wrapped around the bottom part of his body. He removed the towel and said: "I want you to put powder on me." He was naked and had an erection.
58. The offender put baby powder on his hand and onto his penis. The victim put her hand on his penis. He put his hand on top of hers and moved her hand up-and-down his penis. After a while he said: "that's enough, you can go now."
59. This second offence against Kim has similarly been charged pursuant to section 76 of the Crimes Act 1900.
60. The Court Attendance Notice was Sequence 16 in H496465992.
61. The next specific incident which Kim recalled occurred at the Oyster Shed [redacted] where the offender worked. It was during 1979 when the victim was 10 or 11 years old.
62. The victim was in the shed storage area with the offender. He put his hand down the front of her pants and moved his fingers around the outside of her vagina for a few minutes.
63. While he was moving his fingers around he asked Kim: "Do you like it? Do you want to touch me?". The child said: "No, I don't want to touch you." The offender then stopped and told her: "Don't tell anyone we are doing this."
64. This incident is a substantive count before the Court, again pursuant to the provisions of section 76. It was charged as Sequence 7 in H496465992.
65. The offender and Kim then got into his car and drove home. She was sitting on the passenger seat. The offender again put his hand down her pants and touched her on the outside of her vagina.
66. He asked her: "Do you like me doing this?". The child responded "Yes". She thought this was what the offender wanted her to say.
67. The incident in the car was similarly charged as an offence contrary to section 76. It was Sequence 8 in H496465992 and has been placed on a Form 1 which I am asked to take into account in determining the appropriate sentence with respect to Sequence 7.
68. The next specific incident occurred in the first half of 1981, shortly after the family moved into a new house at [redacted]. Kim was 12 years old.
69. The offender was having a shower and called out to the victim to come to him. She went to the bathroom where the offender asked her to wash him. He was standing under the shower naked, with an erect penis. He handed Kim the soap and she started to rub the soap on his penis. He asked her to "rub it up and down like this". He took her hand and moved it up and down his penis.
70. After a few minutes he told her she could stop.
71. This incident has also been charged pursuant to the provisions of section 76 as an indecent assault on a female under 16.
72. It is before the Court as a substantive offence for sentence. It was charged as Sequence 17 in H496465992.
73. The Agreed Facts state that the charged offences before the Court were not the only offending by the offender against the victim. The offender continued to indecently touch Kim, and to have her touch his penis, on a regular basis until she was approximately 16 years old.
74. In 1988 when Kim was 20 years old, she told her boyfriend that her father had molested her as a child.
75. Shortly after this disclosure, she told Kelly Hughes that the offender had done something to her. Kelly told Kim at that time "I told my parents Uncle George had molested me, but they never believed me."
76. Later the same day, Kim told her mother that the offender had molested her on multiple occasions. Her mother initially indicated that she would leave the offender, but subsequently told Kim that he had apologised. The offender and his wife remained together.
77. In June 2021, Kim Roberts and Kelly Hughes went together to the Police and made formal complaint and provided statements.
78. As indicated earlier, Danielle Turner and Lisa Watson both provided statements to Police in November 2021.
79. Police obtained a surveillance device warrant and subsequently a number of recorded phone calls were conducted with the offender. In March 2022 he engaged in recorded phone calls with his daughter, Kim Roberts. In April 2022 he had a further recorded phone conversation with Kelly Hughes.
80. In the course of those calls he made admissions to "molesting" each of the four victims who by that stage had gone to Police, namely Kim Roberts, Kelly Hughes, Danielle Turner and Lisa Watson.
81. The offender was not asked about the fifth victim, Connie Pearson, who at that time had not yet provided a statement to Police.
82. On 17 April 2022, the offender was arrested and charged with respect to the first four victims.
83. In November 2022, the remaining victim, his niece Connie Pearson, made a Police statement. The offender was again arrested and charged in relation to the offending against her on 29 December 2022.
84. The offender remained at large having been released on bail following his initial arrest.
85. He pleaded guilty in the Local Court on 24 July 2023 with respect to each of the 10 offences which are now before this Court - eight as substantive offences for sentence and two on the Form 1 documents to which I have referred.
86. His bail was revoked pursuant to section 22B of the Bail Act 2013 (NSW) and he has remained in custody since 24 July 2023.
87. The fact of his guilty pleas being entered in the Local Court, entitles him to the statutory 25% discount on an otherwise appropriate sentence with respect to his offending.

OBJECTIVE SERIOUSNESS

1. It needs to be borne in mind that at the time of the offending against the five various victims, section 76 encompassed all sexual contact with a female child with the exception of "carnal knowledge" - that is, penile/vaginal sexual intercourse.
2. Relevant factors with respect to an assessment of objective seriousness include the age of the child relative to the threshold age of 16; the age of the offender and the differential with the age of the child; the relationship of the offender to the particular child; and the nature and circumstances of the respective indecent assaults.
3. The first victim in time was Connie Pearson in 1965. She was his niece and the offending conduct occurred in her home. She was 10 years of age and her mother was in hospital in Sydney. He was 18 years of age of the time. She was not wearing underwear during the incident where the offender rubbed his penis up and down on the outside of her vagina. He ejaculated. This was serious offending.
4. The defence concedes that it falls in the mid-range of objective seriousness. I agree.
5. The second victim, Danielle Turner, was also a niece of the offender. She was the daughter of one of his other sisters. She was 6 or 7 years of age in 1970. The offender forced the child's hands onto his erect penis while riding behind him on his motorcycle. He was 23 or 24 years of age at the time.
6. The defence similarly submitted that this offending also falls in the mid-range of objective seriousness. The Crown describes it as serious offending. I agree with that description but would assess it, given the broad range of offending contemplated under section 76, as falling just below the mid-range.
7. The third victim, Lisa Watson, was the younger sister of Danielle Turner. Obviously, she was also the offender's niece. The offending took place during 1975 when this victim was 9 or 10 years old. He was about 28 or 29. The offence involved running his penis up and down on the outside of her vagina for approximately 10 minutes. The offending caused soreness to her vagina.
8. The Crown submits that this offending was particularly serious. The defence submits that it falls below the mid-range. I do not agree. Similarly to the earlier offending, in my assessment this offence falls within the mid-range.
9. The fourth victim was Kelly Hughes. The first offence committed with her took place in 1977 or 1978, about 2 or 3 years after the last-charged offence with one of the offender's nieces. This involved exposing his erect penis to the child when she was between 8 or 10 years of age. This was charged as an act of indecency towards the child and has been placed on a Form 1.
10. The second incident with this victim related to the digital penetration of her vagina on the occasion of the swimming incident in about 1980. Kelly was 11 or 12 years old when this occurred. She was the child of adjoining neighbours and was in the care of the offender at the time. He was more than 20 years older than her and was aged 33 or 34.
11. The Crown submits, in the event of the Court's satisfaction regarding digital penetration, that this is a particularly serious example of offending against section 76. The defence submits, that in that circumstance, the objective seriousness falls at or above the mid-range. In my view, this incident falls above the mid-range of objective seriousness.
12. The fifth victim was the offender's own daughter. While the offending conduct continued over a period of some 7 to 8 years, the objective seriousness needs to be assessed by reference to the individual incidents with which he is charged.
13. The first offence (Sequence 15) occurred when Kim was 8 or 9 years old in 1977. The offender was 30 years of age, and the victim was his firstborn child. The conduct took place in the family home and clearly involved a gross abuse of his position of trust and authority. It involved forced masturbation for a "few minutes", albeit without ejaculation. In my assessment this falls below the mid-range of objective seriousness for offences coming within the umbrella of offending contemplated by section 76.
14. The second offence (Sequence 16) was of similar forced masturbation involving the application of baby powder. It similarly falls below the mid-range of objective seriousness.
15. The third charged offence (Sequence 7) committed on the offender's daughter involved placing his hand inside her clothing with his fingers on the outside of her vagina for some minutes. As with each of the offences against his daughter this involved a gross abuse of his position of trust and authority. It falls within the mid-range of objective seriousness.
16. The repetition of this act during the drive home from the oyster farm has been placed on a Form 1. It does not factor into the assessment of objective seriousness for Sequence 7, although it does operate to increase the appropriate sentence consistent with the judgment in Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) ACT 1999 No 1 of 2002 [2002] NSWCCA 518 at [42].
17. The fourth charged offence with respect to his daughter (sequence 17) took place in 1981. The victim was 12 years of age and her father was 34. This was a further episode of forced masturbation which again did not include ejaculation. It falls below the mid-range of objective seriousness for offences covered by section 76.

VICTIM IMPACT STATEMENTS

1. The court has been provided with Victim Impact Statements which eloquently and emotionally describe the impact of the offender's criminal conduct upon each of the victims when they were young and innocent children.
2. The courts have long recognised the profound and continuing effects upon victims who had been subjected to sexual abuse as children. Such effects have been recognised in the legislative amendments passed by Parliament.
3. The impact on each of the respective individual victims in the present matter is underscored in the personal effect that each of them has described in their respective statements. This has variously included the need for psychological counselling and support, difficulties in relationships and marriages, and in some instances the need for medication including for depression.
4. The particular effect on at least one of the victims is reflective of the type of "benefit" which an offender receives during the course of delay in the truth being revealed and accepted by others. The one victim who was not a blood relative of the offender did make complaint, initially to her parents, when she was 12 or 13 years of age. They spoke with the offender who denied any wrongdoing. The victim's parents believed the offender and disbelieved their daughter.
5. The extreme destabilisation of her life was exacerbated from that point as a consequence of the loss of the trust of her parents. She described being called a "slut" and a "whore" by her parents and by other persons in the community, including some members of the offender's family.
6. Her attempts to "rally another victim" to press charges against the offender when she was in her 20s, some 30 years ago, failed. Her feelings of isolation and helplessness continued throughout her adult life. She describes having been called a trollop and a whore even after the offender was charged and court proceedings commenced.
7. Those who doubted the veracity of her accusations, and perchance some of the others, should reflect on what is now established beyond reasonable doubt, namely that there is not just one victim who was telling the truth, there are now revealed to be five, including his own daughter and three of his nieces. Any residual reservations that such persons may have continued to hold should be totally evaporated by his admissions of guilt and his confessions which were recorded by police in the telephone calls to which I have earlier referred.
8. The destruction of the innocence of the victims' childhoods is detailed in some of the impact statements.
9. The court acknowledges their bravery in preparing and reading the victim impact statements and will take the matters raised by them into account in the instinctive synthesis which is required in determining appropriate sentences for the offender's conduct.

SUBJECTIVE FEATURES

1. The offender did not give evidence in the sentence proceedings. Material relating to his subjective circumstances has been provided through the medium of a psychiatric report from Dr Richard Furst dated 26 October 2023.
2. The psychiatric report was prepared following a 60-minute audio-visual link interview conducted with the offender on 12 September 2023.
3. At that time the offender was described as a 76-year-old male who had been married for 54 years. Born on [redacted], he is now 77. He has been with his wife Lucy for a total of 57 years. There are three children of the marriage, his daughter Kim who is now 55, and two sons who are respectively 53 and 50 years of age. There are four grandchildren. The offender is a retired oyster farmer.
4. The offender was the seventh of nine children born to a German father and an Anglo/Australian mother. He was born in Taree and attended primary school at [redacted]. He did not continue on to High School.
5. His father and his grandfather had both been oyster farmers. The offender followed in that career and worked as an oyster farmer for his entire working life with the exception of 12 months when he was 21 years of age.
6. He described to the psychiatrist having never had a good relationship with his mother. He had problems with bed-wetting as a child and said that his mother would punish him by giving him a "hiding" and/or making him wear a dress.
7. He described his younger brother being treated very favourably and not being punished. He said: "The way she hated me, I wish I was never born. I've looked after my mum, a lot more than my younger brother did."
8. He told the psychiatrist that he found his mother's treatment of him demeaning and that it had been very hard to cope with at the time. He was tearful when describing these childhood experiences.
9. The offender married his wife when he was 21 years of age. He described having had three extra-marital affairs which he said were relatively short.
10. He had no history of mental health problems and he had never had any prior contact with the criminal justice system.
11. He did see a psychologist at Port Macquarie in the 1980's and had about six sessions with the psychologist. At that time there was some stress in the marriage or some other life stressors that were said to have subsequently resolved.
12. Dr Furst's report describes the offender having felt guilty during the following years about his actions with the children. The report notes however, that he "did not talk to anyone about them or disclose his actions to anyone either."
13. I am left a little uncertain with respect to the reference to the offender having seen a psychologist in the 1980's. As I noted with reference to the factual background of the offending, the offender had contacted his niece, Lisa Watson, when she was in her mid-20's and offered her an apology. Given her date of birth in 1965, this may well have been in the 1980's. He had told her that he was going through counselling and that part of his counselling was to apologise to people he had hurt when he was younger.
14. Absent any report or notes from the unidentified psychologist, it is unclear what the ambit of that counselling was or may have been and what, if any, disclosure had been made regarding his earlier offending.
15. The offender described himself to Dr Furst as having been a hard-working and generally prosocial member of society. He described a number of events in his life where he said that he had helped others who were either in need or in danger.
16. He also related to the psychiatrist what were described as inappropriate sexual experiences when he was a young boy at the hands of two of his older sisters.
17. The first of these occasions was when he was 6 or 7 years of age and involved what was somewhat opaquely described as "sexual contact/sexual exposure of his sister to himself." The nature of that sexual contact or sexual exposure was not further described. He told the psychiatrist that he was too young to understand what was happening or what she was doing.
18. The offender also described a second occasion when he said he was about 12 years of age. This occasion was apparently with a different sister who was about 15 or 16 years of age at the time. He said that there was "sexual activity" that he did not initiate. He said that "it just happened". The nature or detail of the alleged sexual activity was not further described.
19. There is no evidence as to which of the offender's six sisters were the perpetrators of this described sexual interaction, nor whether there is any correlation between what is alleged to have occurred with the two sisters when the offender was a boy, and either or both of the two sisters of the offender whose daughters were respectively victims in some of the offending before this court for sentence.
20. In the ultimate, and on an acceptance that the described incidents had occurred, Dr Furst expressed the opinion: "It is quite likely that those experiences had a negative impact on his psychosocial and psychosexual development and 'primed' Mr [Roberts] for later sexual contact with his daughters" (sic) "and other young girls, i.e. created the foundation or substrate for such attraction developing towards underage girls in his earlier adult life, some 40 - 50 years ago."
21. Dr Furst also expressed the view that sexual abuse perpetrated by older girls on boys is probably less psychologically harmful and traumatic than the type of abuse typically perpetrated on boys or girls by predatory adult males.
22. I make the following observations regarding this evidence.
23. Firstly, it is a narrative of past subjective matters relating to the offender which are presented to the court through the medium of a third party report. The well-established reservation applicable to materials advanced in such a fashion must apply in the absence of evidence from, or cross examination of, the offender. In this respect see R v Qutami [2001] NSWCCA 353 and the more recent remarks of Bellew J in Lai v R [2021] NSWCCA 217.
24. Secondly, accepting the truthfulness of the account, it is unclear whether such vaguely described sexual activity might more appropriately be perceived as childish or juvenile "sexual experimentation" or "exploration" rather than categorised as "sexual abuse."
25. However, Dr Furst specifically noted that a statistical correlation in relation to boys who are the victim of sexual abuse or exploitation having a much higher rate of offending in their adolescence and/or adult life compared to adolescents and adults who have never been the victim of sexual abuse victimisation, is a correlation that assumes the sexual contact described by the offender with his older sisters constitutes "sexual abuse". Dr Furst expressed the opinion that it "likely does" fall within such a description.
26. Notwithstanding relative estimates of harm which may be subjective, Dr Furst was ultimately of the view that the sexual interaction described by the offender between himself and his sisters most likely assists in explaining the offending behaviour of Mr Roberts.
27. Significantly, while providing a possible explanation for the commission of the offending, there is no suggestion from the psychiatrist of any mental condition which might have a causal connection with the commission of the offences.
28. The offender described having felt "terribly ashamed" and that his behaviour had been "stupid".
29. The young age of the victims and the circumstance of the offender telling at least one of the victims not to tell anyone are clear indicators that he was conscious of the wrongfulness of his behaviour. He was not a juvenile having sexual interaction with a younger sibling. He was an adult in a position of trust and authority who abused that position with his own daughter, with the daughters of two of his sisters, and with a family friend in his care from an adjacent residence.
30. If accepted as having occurred, the circumstances of sexual involvement when he was a boy, as described to Dr Furst, do not operate to reduce his moral culpability.
31. Dr Furst expressed an opinion that the offender had a very low risk of future offending. He stated: "He has now gone for about 42 years without reoffending, and he is very unlikely to reoffend in the future, such that consideration of reoffending and preventing reoffending is not really a live issue anymore." That assessment appears to have been based on an acceptance of the objective fact that the sexual offending was of an historic nature and that there had been no suggestion of any more recent offending.
32. Given that the offender is now 77 years of age and that he will remain incarcerated for a period of time into the future, I accept that there is an unlikely risk of future offending.
33. In addition to the subjective factors set out in the psychiatric report from Dr Furst, a certificate indicating that the offender had completed the Positive Lifestyle Program conducted by the Salvation Army within the prison system was tendered. It certified that the subjects which he had completed included: Self Awareness; Anger; Depression & Loneliness; Stress; Grief & Loss; Assertiveness; Self Esteem; and Future Directions.
34. Also tendered was a letter from his General Practitioner stating that the offender was an elderly man with a multiple number of medical issues. He has had two significant spinal surgery procedures and the GP said he "still has ongoing pain." I do observe from the attached medical notes that the spinal surgery relates to a lumbosacral fusion carried out in 1976 and 2017.
35. He was described as having flat feet which were being managed with orthotics and a brand of Brooks running shoes with excellent effect which it would be unwise to change. The diagnosis of flat feet was determined in 2023.
36. He was also due for a colonoscopy in 2024 and similarly needed a cardiac review this year. He was also using a sleep apnea machine that needed to be in place and functional.
37. The letter from the General Practitioner was dated in November 2023. The offender had been in custody since July 2023.
38. The Court has been given no information or evidence as to whether or not Justice Health have been able to provide for the health of the offender in conformity with that letter.
39. While there does not appear to be anything raised that could not be dealt with by Justice Health, I accept that conditions of custody are likely to be more onerous for the offender then for a younger prisoner with less medical issues.

COMPARATIVE CASES AND JIRS STATISTICS

1. No comparative cases or statistics were provided to the Court by the parties. As the Crown correctly pointed out, the recent amendments in 2022 to the Crimes (Sentencing Procedure) Act 1999 requiring a court sentencing for historical offences to sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing (s 21B(1)), and the earlier amendments which imposed the same requirement, at that time limited to historical child sexual offences (s 25AA(1)), mean that statistics and comparative cases prior to 2018 are of little or no assistance. The Crown indicated that there were a handful of District Court cases which all turned on their own facts. Accordingly, none were provided to the Court.
2. Notwithstanding the considerable circumspection and caution that must attend an examination of statistics and comparative cases, particularly bearing in mind the requirements of the amendments, the Court has had recourse to both the JIRS statistics and to some of the cases which are cross-referenced.
3. The statistics with respect to section 76 are confined to sentences imposed after the introduction of s 25AA(1) in September 2018. However, clearly section 76, as I have already indicated, was an omnibus or umbrella offence which embraced acts from comparatively minor assaults involving an act of indecency, up to sexual acts involving digital penetration, fellatio, or cunnilingus which would now, of course, be classified as sexual intercourse.
4. No doubt as a consequence of the wide range of differing sexual offending covered by the now-repealed section 76, the statistics similarly reveal a wide range of outcomes. Of 27 cases dealt with under the old section 76 since 2018, 9 cases or approximately 33% resulted in Community Correction Orders; one matter resulted in an Intensive Correction Order; and 17 or approximately 63% resulted in full-time terms of imprisonment. The aggregate or effective terms of the head sentences ranged from 12 months up to 8 years. The aggregate or effective terms of the non-parole periods similarly demonstrated a very wide range from a minimum of two months (rounded to 6 months in the statistical chart) up to 5 years non-parole in the matter with the 8-year head sentence.
5. These raw statistics provide no useful assistance.
6. I have perused a number of the decisions to which reference is made from the JIRS data.
7. Kelly v R [2021] NSWCCA 154 was the matter in which an aggregate sentence of 8 years was imposed with a non-parole period of 5 years. The female victim was sexually assaulted by the offender in a variety of different ways over a period of more than 8 years between March 1969 and July 1977. The victim was aged between 7 and 15 years. The offender had been aged between 22 and 31 during the period of the offending. When he appeared for sentence, he was 72 years old.
8. The offending conduct commenced with offender feeling the victim's genital area on the outside of her clothes with similar touching occurring on other occasions. The victim was a ward of the State and had been placed in the care of a foster mother who was the biological half-sister of the offender. She was told to call the offender "Uncle Greg."
9. The victim regularly went with the offender to his apartment and on at least some occasions he took nude Polaroid photographs of her. In 1973, while the victim was still 11, she was introduced to a teenage girl at the offender's apartment who was about 14 years of age and heavily pregnant. The teenager removed the victim's clothes and the two naked girls had a sexual encounter involving mutual touching. The offender took photographs of this encounter.
10. In 1975, by which stage the victim was 13, she went with the offender to a new apartment. The same teenager with whom she had had the sexual encounter some two years earlier was present. The victim was told to take her clothes off and she was joined on a bed by the naked teenager. The applicant took photos of both girls naked on the bed. He then rubbed the victim's naked breasts with both hands.
11. There then followed a series of sexual assaults which included digital penetration and the insertion of a candlestick and then a dildo into the victim's vagina. These three acts would clearly have constituted more serious charges with substantially increased maximum penalties had they occurred more recently.
12. However, each of them was charged as an indecent assault on a female person under the age of 16 pursuant to section 76.
13. On the same occasion, the offender directed the victim to have "lesbian sex" with the teenager while the teenager sucked the offender's penis at the same time. The ensuing acts were charged as incitement to commit an act of indecency contrary to section 76A and carried a maximum penalty of two years.
14. A threat warning the victim not to say anything about the incident was reinforced by the brandishing of a pistol. A charge relating to that circumstance was placed on a Form 1.
15. The incident with the teenager was not an isolated incident and similar events followed thereafter.
16. The last offences occurred in 1977 when the victim was 15-years-old. At that time she was living in a halfway house and was 7 ½ months pregnant. The offender went to the premises where he slapped her in the face and took photographs of her squatting over and lowering herself onto pop-up air fresheners which were inserted into her vagina. The offender took photographs of the victim doing this. He then directed the victim to suck his penis. When she refused he slapped her across the head and threatened to shoot her if she told anyone about what had occurred.
17. The victim reported the matters to police in 1998 but no charges were laid at that time. She subsequently gave evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse in 2016 and a fresh Police investigation was commenced in 2017. The offender was arrested and charged in 2018.
18. He entered guilty pleas shortly before his trial was due to commence in 2020 and went into custody at that time.
19. After allowing a 10% discount on sentence following the late plea of guilty, the sentencing judge, Huggett DCJ, indicated sentences of 12 months imprisonment against a maximum penalty of 5 years with respect to feeling the genital area on the outside of the child's clothes in 1969 (Count 1); 2 years and 3 months imprisonment against a maximum penalty of 6 years with respect to rubbing her naked breasts (Count 2); 4 years imprisonment with respect to inserting the candlestick (Count 3); and 4 years and 6 months imprisonment with respect to the actions with the dildo (Count 4, including taking into account the threat with the pistol on a Form 1), each of which were against a maximum penalty of 6 years; 15 months imprisonment against the maximum penalty of 2 years with respect to the incitement to commit an act of indecency, namely the "lesbian sex" (Count 5); a further 15 months imprisonment with respect to incitement to commit the act of indecency relating to the insertion of the air fresheners (Count 6); and 3 years 6 months imprisonment against a maximum penalty of 6 years with respect to slapping her in the head and directing her to suck his exposed penis (Count 7, including taking into account a separate common assault on a Form 1).
20. It can readily be perceived that the notional starting points for the indicative sentences, before taking into account a 10% discount, were approximately 14 months with respect to Count 1; 2 years and 6 months with respect to Count 2; approximately 4 years and 6 months with respect to Count 3; 5 years with respect to Count 4; approximately 17 months with respect to Counts 5 and 6; and approximately 3 years and 10 months with respect to Count 7.
21. As indicated earlier, the aggregate sentence was 8 years imprisonment with a non-parole period of 5 years.
22. One needs to bear in mind that the challenge on appeal with respect to severity was principally focused on the aggregate sentence which was imposed. However, in dismissing the various grounds of appeal, no criticism was made by the Court of Criminal Appeal (Price J; Payne JA and Wright J agreeing) of any of the indicative sentences or of their notional starting points, the heaviest of which reflected a starting point of 5 years against a maximum penalty of 6 years imprisonment.
23. Whilst the nature of the more serious sexual assaults in Kelly were clearly more objectively serious than any of the present matters for sentence, it is appropriate to observe that all of the offending was against one victim.
24. In R v Greenaway [2020] NSWDC 97, Weinstein SC DCJ (as his Honour then was) passed a very substantial aggregate sentence of 20 years following a jury returning verdicts of guilty with respect to 18 counts of predominantly sexual assault committed by the offender when he had been an officer at a number of institutions for girls. The offending conduct involved girls who were 17 or under and had occurred between 1965 and 1972. At the time of sentence the offender was 82 years of age.
25. The only relevance of this particular case is that one count related to an incident with a 13 year old where the offender had taken the hand of the female victim, placed it on his penis and made her masturbate him. He had ejaculated into her hand. This count had been charged under section 76 of the Crimes Act 1900 and had occurred in 1971 when the maximum penalty was 5 years.
26. The indicative sentence, which was without discount following a jury verdict, was 3 years.
27. In R v Roberts [2019] NSWDC 510, King SC DCJ passed sentence with respect to historical sexual offences committed against the same victim, initially when she was 13 years of age and the offender was 23, which had then continued to additional sexual offending against her when she was an adult.
28. Three charges related to similar factual offending when the victim was 13 and where the offender had forced the hand of the victim to masturbate his erect penis for short periods of time of 2 to 5 minutes duration. There was no ejaculation.
29. The offender was 68 years of age at the time of sentence. Judge King SC gave indicative sentences with respect to each of those charges which had been preferred under the old section 76, of 18 months imprisonment. They contributed, together with later offending when the victim was an adult, to an aggregate sentence of 3 years with a 2 year non-parole period.
30. While each of the cases to which I have specifically referred turns on their individual facts and the particular subjective features, they provide illustrations of the assessment by other judges of the objective seriousness of broadly similar offending and provide some better definition of the approach taken with respect to the length of indicative terms, than is provided by the raw statistics.

REMORSE

1. The offender communicated a form of apology to at least one of his victims many decades ago. When confronted by that victim and also by his daughter in more recent years, he indicated a level of remorse. He similarly has recounted his feelings of remorse to the psychiatrist and entered early pleas of guilty to the charges preferred. He appears to have some insight into the effects of his criminal conduct. Notwithstanding the disputed facts regarding the digital penetration with respect to one of the victims which I have found did occur, I accept that he has genuine remorse.

RISK OF REOFFENDING AND PROSPECTS OF REHABILITATION

1. I have already indicated earlier in these Remarks, that given his age and the period in excess of 40 years without reoffending, the offender is unlikely to offend and has good prospects of rehabilitation which has been demonstrated subsequent to the offending.

DELAY

1. There is no doubt that sentencing, both in terms of principle and technicality, is much more difficult in circumstances where an offender appears before a Court for sentence many years after the commission of offences. Such difficulties inevitably occur in cases of the historical sexual abuse of children where, in many cases, complaint is not made about the offending until many years later.
2. Despite the fact that there are many reasons why a child victim may not complain, either immediately or even soon after such abuse, the common law position had a primary focus on justice to an offender, and, accordingly, to sentencing practices at the time of the commission of an offence. Similarly, the maximum penalty for an offence at the time of its commission was the relevant guide or yardstick. Subsequently-increased maximum penalties did not operate retrospectively: see s 19 of the Crimes (Sentencing Procedure) Act.
3. However, following the report of the Royal Commission into Institutional Reponses to Child Sexual Abuse, s 25AA(1) of the Crimes (Sentencing Procedure) Act was introduced. It requires that: "…a Court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence."
4. The distinction in principle and also application of this still comparatively newly introduced section involving a consideration of the sentencing patterns and practices at the time of sentencing and the consequences of delay in prosecution. This involves a consideration which is not without some tension in its resolution.
5. In R v Cattell [2019] NSWCCA 297, the Court of Criminal Appeal in the leading judgment of Price J gave extensive and appropriate guidance with respect to the significance of delay in a historical child sexual abuse case. Cattell involved an appeal by the Crown against the inadequacy of an aggregate sentence which had been imposed in 2019 in the District Court on a former priest. Cattell, by the time of his sentencing in 2019, had already on three prior, separate occasions, been sentenced by different judges of the District Court for offences which he had committed against children while he was an ordained priest. A chronological analysis of his offending which had commenced in 1968 and thereafter continued over a period of some 23 years until about 1991, has been set out in a chronological narrative derived from all of the separate cases which is set out in an earlier judgment of mine, R v DW (No 1) [2020] NSWDC 461 at [130] to [161].
6. In Cattell, Price J, noted that in historical sexual assault cases, a child sexual offender does not necessarily benefit from an extensive delay in the revelation of their offences. In the matter then before him of Cattell, Price J said at [136-137] in reference to the judge at first instance: "The judge appears to have overlooked the reasons for the delay in the complaints and the benefits the respondent enjoyed in escaping punishment for the serious crimes that he committed many years before."
7. Price J added by reference to that particular case: "The respondent used his position of trust and influence as a Catholic priest to sexually abuse vulnerable children and to avoid his offending being reported." In Cattell, Price J considered that the sentencing judge had elevated considerations of fairness because of delay and apparent rehabilitation of the offender to a "dominant role" in determining sentence and that, accordingly, this represented an error of principle.
8. The tension between appropriate punishment on the one hand and the circumstances of considerable delay on the other was referred specifically in RL v R [2015] NSWCCA 106, particularly at [6] and [46].
9. In R v SW (NSWDC, Unreported 10 September 2018), per Haesler SC DCJ, offending criminal conduct came before the District Court some 16 years after the offending had ceased. Judge Haesler SC considered s 25AA and said: "I do not read into section 25AA any intent to displace the rules that apply to the principle of delay because that practice of taking into account applies now, as it did back then. It remains a relevant sentencing consideration."
10. An appeal was brought against the severity of the sentence which was imposed by Judge Haesler SC. The Court, per Davies J, with whom Bathurst CJ specifically agreed with in his reasoning, and also Bell P (as his Honour the Chief Justice then was), made no criticism of the analysis of s 25AA by his Honour Judge Haesler SC at first instance. The Court specifically noted his Honour's references to that section.
11. Davies J noted that amongst the important factors in determining a proper sentence, the delay, together with the fact that the offender had been a child at the time of the offending in that case, were relevant considerations.
12. I am similarly not of the opinion that s 25AA was intended to displace the appropriate consideration of circumstances brought about as a consequence of the delay.
13. A consideration of the impact of delay, however, gives rise, as I have indicated, to considerations which pull in different directions. On the one hand the offender has had the spectre of complaint being made and pursued, in effect, "hanging over him" for decades. On the other hand, he has been able to live and be respected in the community as an apparent person of good character and be viewed as an upstanding member of the community.
14. To that extent, the type of benefit referred to by Price J is not insignificant.
15. On the other hand, he has been able to demonstrate apparent rehabilitation, and to cease the offending conduct which he had inflicted upon the members of his family, both immediate and extended, as well as the child of his neighbours extending over a period of more than 15 years.
16. Whilst not to be elevated into a position of dominant consideration, it is a factor to be taken into account.

CONSIDERATION

1. I have given careful consideration to the various relevant factors in determining an appropriate sentence. I have earlier referred to the objective seriousness of the individual offences which have been charged and to subjective factors with respect to the offender himself. I have also had regard to the particular impact on the lives of each of the five victims.
2. I take into account the fact there are multiple victims of his offending (see R v Gommeson [2014] NSWCCA 159).
3. Given the passage of time since the criminal conduct of this offender, his lack of offending in the ensuing years and his advanced age, the unlikelihood of his reoffending reduces the significance of specific deterrence to some extent. Those factors, which are a product of the delay in this matter coming before the courts, do not assume a dominant role in the sentencing process. They must be tempered by the appearance of the good character which the offender has enjoyed until the revelation of his true character, namely as a sexual abuser of children over a period of more than 16 years.
4. However, the significance of general deterrence remains important, particularly in light of the greater understanding which the community and the courts now have with respect to the prevalence and the profound effects of childhood sexual abuse.
5. I propose to proceed by the imposition of a single aggregate sentence with respect to all of the offending before this court. Accordingly, the court is required to indicate the sentence which would have been appropriate for each individual offence, if separate sentences were to be passed.
6. In each case the indicative sentence will reflect the statutory 25% discount as a consequence of the early pleas of guilty. They will reflect the applicable maximum penalty as at the time of the commission of the offences which therefore operates as a "guide" or "yardstick" in the assessment of an appropriate length of sentence. With respect to two of the sentences (sequence 10 and sequence 7) the indicative sentence also reflects the Court taking into account the separate offence included on a Form 1 in each case.
7. The indicative sentences by reference to the particular victim and the relevant sequence number, in order of the commission of the offences, are as follows: 1. Sequence 3 (Connie Pearson): 2 years and 3 months; 2. Sequence 1 (Danielle Turner): 1 year and 9 months; 3. Sequence 19 (Lisa Watson): 3 years; 4. Sequence 10 (Kelly Hughes): 3 years and 7 months; 5. Sequence 15 (Kim Roberts): 2 years; 6. Sequence 16 (Kim Roberts): 2 years; 7. Sequence 7 (Kim Roberts): 2 years and 7 months; 8. Sequence 17 (Kim Roberts): 2 years.
8. The aggregate sentence will be a period of 8 years. There will be a non-parole period of 5 years. That period reflects a variation on the statutory ratio as a consequence of a finding of special circumstances to some degree reflecting the age of the offender, the extent to which he will find the conditions of incarceration more onerous, and the fact that it is his first time in custody.
9. The sentence will be backdated to commence on 24 July 2023. He will be eligible for release to parole on 23 July 2028. The additional term of 3 years will expire on 23 July 2031. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2024