R v Robinson

NATURE AND CIRCUMSTANCES OF THE OFFENCES, SECTION 16A(2)(a)

1. A statement of agreed facts is before the Court as part of the Crown bundle. That statement sets out agreed facts of 29 paragraphs. Additionally, as part of the factual matrix the Court has exhibit B which is a transcript of text messages between the offender and his ex-wife, the relevance of which will emerge. I do not propose, because the facts are agreed and extracted, to read all of those facts onto the record but rather, for purposes of determining the nature and circumstances of the offences, extract material that is consistent with my characterisation of the offender's role.
2. As I have indicated in relation to count 2, which is the matter that I consider more serious of the two counts on indictment partly because of the maximum penalty provided for that offence but also because of the actions undertaken by the offender, I propose to deal with that matter first. As I have indicated, the circumstance of aggravation relied on in relation to that offence is that the offender was in a position of trust or authority over the victim.
3. From about the age of 11, the victim and her mother received intermittent financial support from the offender. They first met in person when the victim was around the age of 14 years. The factual background is that the offender, being an Australian citizen at all relevant times, in August 2003 met a woman who lived in a city in a particular Indonesian province. From about 2005 he and that person developed an online relationship and between 2005 and 2014 Mr Robinson sent that person money. From time to time they visited each other, including that person flying to Australia in 2017 and Mr Robinson flying to Indonesia in 2008 and 2009. During the first of those trips Mr Robinson married that person, who I will now refer to as his ex-wife. In 2011 the offender and his ex-wife, while still married, bought a house together.
4. While the offender remained in Australia, his ex-wife sent him a message about the child in question indicating that she had met the child and the child's mother, the child's mother (being widowed) and the child were selling cakes to make ends meet. At that stage the victim was about 11 years old and she had not attended school since she was nine years old. The family needed money to help educate the child. The ex-wife wanted to foster the child to help educate her and the ex-wife asked the offender to send her money for purposes of the child's education. The offender regularly thereafter sent sums of money to the ex-wife to fund the child's education and living costs.
5. In May 2014, the offender left Australia for Indonesia and ultimate moved into the house I have described with the ex-wife and the ex-wife's mother. The child regularly came to those premises to keep the ex-wife's mother company. In June 2015, the ex-wife asked the offender for a divorce and they were divorced according to Islamic law and she moved out of those premises. The offender continued to live there. In about August or September 2015, the offender had a conversation with his ex-wife about the possibility of the child entering into a sexual contract with him in which he would not marry her but effectively pay her for sex. The ex-wife did not take him seriously. She told him at that time that the child was 15 years of age.
6. In about October 2015, the offender rented the house next door to his premises for the child and her family being her mother and her younger brother to live in. The child at that stage knew that the offender was paying the rent. The child's mother cooked for the offender from time to time and considered herself to be a part of his domestic staff. The child often accompanied her mother to those premises when she cooked for the offender.
7. In around November or December 2015, the offender began to demand that the child shower him. The child did not want to do that but the offender said to his ex-wife words to the effect; "I pay her rent, she can do it and if she does not want to do it she can move out". Thereafter the child bathed and dried the offender on about four or five occasions while her mother was in a different room of the home. On one of those occasions, the offender touched the complainant's breasts with his feet but asserted that it was accidental.
8. In assessing the nature of count 2, I take into account that from the age of about 11 the child had received intermittent financial support from the offender. In Commonwealth DPP v Beatty [2017] NSWCCA 301, the Court considered sentencing principles relevant to these broad classes of offences, and held that matters that ought to be included in assessing the objective seriousness of these classes of offence include the age of the child or the children, the gravity of the sexual offence, the extent to which there was any cruelty or physical harm occasioned to the child, the vulnerability of the child or children to sexual exploitation including the country in which the child resides and the child's impoverished circumstances and among other things, the degree of planning or organisation employed by the offender.
9. In the circumstances of this case, there was one only victim who was 15 at the time of the offending. The acts of sexual activity other than sexual intercourse that are relied on comprise two acts of indecency, one of touching of the victim's breast with the offender's feet on 21 December 2015 at a time that he was naked and a touching of the victim's buttocks on 23 December 2015. Each of those acts took place over a relatively short period of time even though in each circumstance the offender was himself naked, the child was clothed. In each instance, the touching took place either during or after the child having showered the offender. As I have said, the offender was naked and the child's mother was in the house but in another room.
10. On the second case, the facts disclose that the door was bolt locked and the offender reported to his ex-wife that the victim "did not flinch". At the relevant time the offender was 50 years of age. Both then and now, the offender was morbidly obese with limited ability.
11. I have already dealt with the age of the child and the gravity of the sexual offence. In terms of authorities like R v AJP [2004] NSWCCA 434 and the like in the Court of Criminal Appeal in a different context, the courts have recognised that although there is not necessarily a hierarchy of particular acts being more serious than others, across the range of material that could constitute sexual activity short of sexual intercourse, these matters fall towards the lower end of the range in terms of the actions themselves. There is no material to suggest that there was any cruelty or physical harm as one of the potentially relevant factors identified by the Court in Beatty in terms of the vulnerability of the child to sexual exploitation including the country in which the child resides and the child's impoverished circumstances.
12. It must be said that in this matter which is something that is relevant to the matter on the form to s 16BA and count 1 as well, the child was deeply vulnerable to sexual exploitation. She lived in an impoverished country and it is clear that her family circumstances at least at the time that she was 11 years old were entirely impoverished and over time the child and her family had become virtually wholly dependent on the beneficence of the offender.
13. Moving to the degree of planning, organisational sophistication employed by the offender, whilst the actual physical actions were relatively unsophisticated, against the backdrop of the offending disclosed by the grooming offence and the offence of count 1, it must be said that there was a significant degree of planning a high level of communication between the offender and his ex-wife. It is very hard to define each of their roles but it must be said that the offender relied on the ex-wife effectively to procure the child for his attentions and then to help him assess the success of his movement towards desensitising the child to sexual touching.
14. In terms of the impecuniosity of the family, apart from the fact that apparently at age 11, she and her mother were selling cakes to survive, it will be noted that her father, who might be understood to be a principal male protector, was dead and that she only had one other sibling who was younger than herself. The whole of the circumstances, in my view, serve to increase the overall objective seriousness of the touching, and as I have observed, the penalty for this offence, must be increased, having regard to the grooming offence on the 16BA Schedule.
15. The matters that are relied on by the Crown, which I accept constitute the grooming, include the offender attempting to win the victim's confidence by paying her compliments, kissing her and continuing to escalate the physical proximity between them. It is clear on all the material, that his ultimate goal was to secure a sexual alliance with the child, notwithstanding her tender age.
16. The grooming, in this case, is very hard to separate from the criminality at count 1 and given the observations that I propose to make in relation to count 1, I assess the objective seriousness of the grooming for that reason, to be toward the lower end, given that there are only certain matters that can be identified as grooming over and above the actual sexual activity for count 2, or the preparing or planning to engage in sexual intercourse, for the purposes of count 1.
17. As to count 1, it is to be observed that the principal evidence of an intention to prepare or plan to engage in sexual intercourse with the child, was the creation of a sexual agreement which is extracted in full at para 23 of the statement of facts. The text messages between this offender and his ex‑wife, disclose specific references to the offender's desire to enact the sexual agreement. It is relevant in terms of the degree of planning and a sign of the offender's consciousness of guilt at the relevant time, that when he forwarded a further copy of the sexual agreement to his ex‑wife, in circumstances where she asserted, whether rightly or wrongly, that she did not retain a copy, the offender substituted the words, "the woman", in exchange for the first name of the child, which had been inserted in the original copy.
18. There is nothing to suggest that the child or the child's mother was in fact ever confronted with, or invited to adopt, the sexual agreement. However the communications between the offender and his ex‑wife, make it clear that that was the goal in mind. In short, the statement provides that for a rent free (currently costing in Indonesian rupiah 275,000 per week in lost income) stay in that current house, "the woman" agrees to the following. That she stays or sleeps in that house and is not expected to sleep in the offender's house - I am going to insert the word, "the child", for where the formal agreement provides, "the woman", because that was the effect of it: "The child alone, is responsible for the cleaning and cooking for me in this house. The child continues to shower me daily. I am also willing to pay each fortnight, the child 20,000 Indonesian rupiah per day for 2 hours a day. In other words Indonesian rupiah at 10,000 per hour, Monday to Friday and Indonesian rupiah 25,000 per day and 12,500 per hour on the Saturday and Sunday, with the rest of the day being up to her discretion. That the child agrees to have a sexual relationship only with me. I remain sexually faithful to her only. Sex can be in the form of (a), foreplay, (b) vaginal sex, (c) oral sex, (d) anal sex."
19. There is notation that, "hugging other people is mutually accepted". Condition 4 is that: "The child continues to shower with me but she too is naked in the shower. We wash each other and may have sex in the shower. The 2 hours per day are for sex with me throughout the day. This might only be just lying in each other's arms. I will also agree to remain available to assist the child's family in any (non‑financial way), e.g, occasionally driving them around to shops, school, et cetera."
20. There are numerous references to the offender's desires, in relation to the child in the text messages, including for instance, a message of 19 December, a reference, "washing my feet, suck my dick, and make it complete". There are various references to the possibility of "sucky‑sucky", which I take to be a reference to the child ultimately performing oral sex on the offender.
21. As I have indicated, both the extraction of the agreement in the first place, the changing of the wording of the child's first name to, "the woman", as a possible attempt to avoid detection, and the significant amount of communications between the offender and his ex‑wife, it would have to be said that the activities that account for count 1, took place over an extended period of time, being between 6 August 2015 and 28 December 2015. It is noted that within that period, is subsumed the period that relates both to the grooming offence and to the offence of count 2. The level of planning and intent was significant. The comments that I have already made about the vulnerability of the child and her general circumstances, have application here, and the objective seriousness of this matter, to my mind, falls at about the midrange of objective seriousness.

GENERAL DETERRENCE AND DENUNCIATION - SECTION 16A(2)(k)(ja)

1. In R v Wicks [2005] NSWCCA 409, at para 39, McClellan CJ at CL, with whom the balance of the Court agreed, observed that general deterrence is of paramount importance in sentencing offenders for child related sexual offences.
2. In particular in this class of offence the difficulty of detection of this kind of offending in overseas jurisdictions is well recognised. That means that general deterrence has more particular emphasis in these types of cases. This behaviour by the offender means any sentence imposed on the offender needs to deter those who would behave in a similar way and denounce his conduct.

CIRCUMSTANCE OF ANY VICTIM OR VICTIM IMPACT STATEMENT SECTION 16A(2)(d) AND (ea)

1. Here there is no victim impact statement and I cannot draw any implication from the absence of such a statement. It is well understood that offending against minors, whatever prevailing community attitudes exist overseas, is deleterious to their health and the circumstances of this particular victim make it clear that if she, in fact, apprehended the sexual trespasses being made towards her, it is likely to have had a negative impact on her.

PLEA OF GUILTY SECTION 16A(2)(g)

1. Since the determination of Xiou v R [2018] NSWCCA 4 it has become clear that courts in Federal matters are entitled to identify discrete sentencing discounts on the basis of an offender's willingness to facilitate the course of justice and which have utilitarian value. In the circumstances of this case a trial date was vacated by the Crown and before the matter proceeded to trial the offender pleaded guilty before me. It is conceded by the Commonwealth that a lengthy trial that would have involved the travel of various witnesses from overseas was avoided. Although the strength of the Crown case may mean the plea has less work to do in terms of independent evidence of remorse, it is clear that the utilitarian value of the plea while late was not insignificant and I propose, in due course, to and in my discretion, employ a sentencing discount because of the offender's willingness to assist the course of justice of around 15%.

CO-OPERATION WITH AUTHORITIES SECTION 16A(2)(h)

1. The offender participated in an interview with investigating authorities notwithstanding his right to silence and he made partial admissions which made the Crown case easier to establish. He is to have some account taken of the degree to which he co-operated with the authorities in that way.

AGE CHARACTER AND ANTECEDENTS OF THE OFFENDER SECTION 16A(2)(m) AND SPECIFIC DETERRENCE PHYSICAL AND MENTAL CONDITION REHABILITATION SECTIONS 16A(2)(j)(n)(m)

1. I deal with all of these factors at the one point of these proceedings because they have interrelationships one with the other. The offender is now 54 and he was 50 years of age at the time of the offending. He has no criminal record either here or elsewhere. The offender is somebody who suffers from a significant degree of ill health. As can be easily observed both looking at him in court and during the time that he gave evidence before me he is somebody who is morbidly obese. He has a range of other co-morbid conditions.
2. His background is extracted in an assessment of him by consultant forensic psychologist Tim Watson-Munro. I am prepared to give weight to the history because the offender gave evidence before me and adopted the history given to Mr Watson-Munro and so that the principles as set out in R v Qutami [2001] NSWCCA 353 and other authorities are not engaged in the circumstances of this case. The offender had a difficult upbringing in the sense that his parents separated at the time that he was five years old and he was raised, with his siblings, by his mother alone.
3. In due course his mother eventually died of bladder cancer in 2004. He has very limited contact with his father. He was educated to year 12 standard but because he was already overweight as a young man and a teenager, his schooling was marred by continual bullying. In addition to that, when he was about 19 years of age, he had a significant motorcycle injury that had him hospitalised in intensive care for a number of weeks and he then took a decent period of time to rehabilitate, to the extent to which he was able, from the injuries visited upon him.
4. Between 1986 and 2005 he secured and maintained employment at the Australian Tax Office. Since the end of that employment he has been largely isolated in the home in which he lives with one of his brothers. Although he had a couple of long term relationships as a younger man, his only marriage has been to the person that I have described as the ex-wife in these remarks. I will briefly indicate that it is clear that he lives alone with his brother (who is hearing impaired) in order to take into account whether the imprisonment of an offender will have an effect on a family member.
5. The threshold is one of exceptional circumstances although I accept that the offender's brother will find it both lonely and more difficult to cope if the offender is incarcerated. The evidence discloses that he managed during the period that the offender lived in Indonesia for an extended period and including the period of the offending and I am not persuaded that his brother being deprived of the offender's care or company represents an exceptional circumstance.
6. Mr Watson-Munro, who gave evidence in support of his opinions and who was tested by the Crown, indicated that the offender presented as a cooperative although psychologically troubled man. Dr Tanveer Ahmed who assessed the offender in August 2017 observed that the offender was diagnosed with depression in 2005 and that he spent a period of time on antidepressants.
7. As a consultant psychiatrist Dr Ahmed assessed in 2017 that the offender showed no evidence of mental illness, nor was there any clear mental illness at the time of the offence. Relevantly it was also Dr Ahmed's opinion that the offender did not suffer from a sexual disorder such as paedophilia and he relied in part on the history of the offender having past relatively normal relationships.
8. In terms of Mr Watson-Munro's indications that he considered that the offender, without making a formal diagnosis, suffered from depression, anxiety and low self-esteem. He identified both his significant physical deficits and the unlikelihood of him being provided with appropriate psychological attention as meaning that there would be a severe escalation of the offender's symptoms if he were to be deprived of his liberty.
9. The offender gave evidence before me, although he had a tendency at one point to move away from the integrity of his plea in terms of the sexual activity by suggesting that the touching of his feet to the child's breast was inadvertent, he affirmed his plea. On balance, I am prepared to accept that he is remorseful. There is no question that he feels some animus towards his ex‑wife.
10. Whether that is because he considers she entrapped him in this behaviour or whether it is because he considers that she (availably) was also an offender and has not been brought to justice, is beside the point. Ultimately when I asked him questions myself as he gave evidence he was able to appropriately indicate that he felt disgusted by his conduct and he could articulate in an unfeigned fashion the likely effects of his behaviour towards the child. As I said, I am satisfied that he is remorseful.
11. There is no question that he feels sorry for his current predicament but I do not see that that undercuts the sincerity of his remorse. On the balance of all the psychological and physical material, I take the view that he is unlikely to re-offend, particularly given his advancing age. It is relevant that Dr Ahmed considers that he is not a paedophile. There is nothing to suggest in all the material before me paedophilic compulsion in terms of the offender's behaviour towards the child.
12. Although it is an artefact of his offending that she was a minor, it seems to me that the whole passage was designed as an opportunistic mechanism to take advantage of somebody who may in due course have sexual relations with him. It is inevitable to arrive at a view that the reason for those sexual relationships would have been the physical and perhaps psychological dependence on him, rather than on any earnest genuine sexual desire.
13. Understandably, one of the focuses of the sentence hearing has been the physical problems of the offender. He has a range of difficulties that include, as I have indicated, morbid obesity and significant problems with his mobility wherein he is, to my observation, genuinely reliant on the use of a walking frame. He has had cellulitis, diabetes and a range of other comorbid medical conditions.
14. One of the focus of recent evidence in the case has been on the ability of either Justice Health and/or Corrective Services to furnish an appropriate level of both medical care and duty of care to somebody with reduced mobility in the fashion that he has on the basis of a capacity to treat the document which is exhibit D from Dr Jacque Ette. It seems to me that Justice Health is able to provide care for Mr Robinson both in relation to his obesity and the multiple comorbidities from which he suffers including cancer, diabetes, heart disease, hypertension, gout, obstructive sleep apnoea and osteoarthritis.
15. Additionally the affidavit of Renee Craft, which annexes a letter to the prosecutor at the Commonwealth DPP indicates both as to movement, clothing, appropriate mattresses, and various other equipment that Corrective Services is able to meet the offender's physical needs.
16. Having said that, it is unquestionable in my mind that somebody with Mr Robinson's range of physical problems and his highly reduced mobility, even if held in protective custody, will make his life in custody far more onerous than an able-bodied person.
17. I have ameliorated the sentence to some degree having regard to matters that touch on his unblemished prior record, his constructive work history, his sad personal life, and the range of physical difficulties that he presents with.
18. It was the real point of division between the parties in this case in assaying the objective seriousness of the offending and the matters that are personal to the offender what mode of penalty should be employed. The Crown provided a set of cases that were not said to be analogous but were to assist in terms of the potential range. It was made explicit in the Crown's submissions that the comparative cases were not said to be strictly analogous and it must be said that in relation to, for instance, Mr Hawke, who was sentenced in the Victorian County Court for a range of offences, and Mr Cole, who was sentenced in that same court for a range of offences, but each being sentenced for offences in breach of s 7272.0, that the offending in each of those cases was far more heinous and depraved than the offending here -notwithstanding the observations that I have made about this offender's criminality.
19. It was contended for the Crown that the objective seriousness of the matters, notwithstanding the matters that are personal to the offender, that it was inevitable that he should serve a not insubstantial period of time in custody serving his sentence without an immediate release order.
20. Mr Hughes, and then Mr Godkin in his lieu, both pressed that the Court could properly sanction the objective seriousness by marking out a period of imprisonment but either suspending it after a short period served or by an immediate suspension. There are clearly matters that, as I have indicated, serve to ameliorate the sentence that would otherwise be imposed, but given the nature of this offending, the level of the exploitation and vulnerability of the child in question, notwithstanding the restraint required by s 17A, I am persuaded that it is appropriate to sentence Mr Robinson to periods of full time imprisonment.
21. It is subject to s 68 of the Judiciary Act I propose to deal with the offender by way of an aggregate sentence. It flows that the utilitarian discounts that I have identified ought be applied to each of the indicative sentences before I arrive at an aggregate sentence.
22. I will not require you to stand, Mr Robinson.
23. In relation to both counts 1 and 2 you are convicted. In relation to count 1, but for the utilitarian discount the sentence would have been one of two years, and so accordingly the indicative sentence is one of 20 months and two weeks.
24. In relation to count 2, taking into account the offence on the s 16B(A) schedule, the sentence would have been three years but for the utilitarian discount, and so the indicative sentence is 30 months and two weeks.
25. In setting an aggregate sentence I am obliged to have regard to notional considerations of totality. Given there was distinct and discrete offending some degree of notional partial accumulation is appropriate. Having said that, because of the significant factual inter-relationship between all the offending, some degree of partial concurrence is also called for.
26. The aggregate sentence is one of three years to date from today, which means that it expires on 10 June 2022. I fix a non-parole period of two years which means that Mr Robinson's earliest date of potential release to parole is 10 June 2021.
27. I ought to say that I took into account both the character testimonials and the character evidence that was given on behalf of the offender. It is clear that those in the community, while not necessarily having a detailed acceptance or appreciation of the level of criminality, certainly consider that apart from this matter Mr Robinson is a person of prior good character.
28. I propose that Dr Ette's capacity to treat report, a medical certificate from Top Ryde Medical Centre, the affidavit of Renee Craft, and the reports of Dr Ahmed and Mr Watson-Munro should travel with him just to help get the authorities quickly up to speed on Mr Robinson's medical condition.

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: 27 April 2020