R v Roberts [2005] ACTSC 43 (5 May 2005)

Last Updated: 8 June 2005

R v John Michael Roberts

[2005] ACTSC 43

SENTENCE - indecent act - multiple offences - guilty plea - prisoner outstandingly remorseful - high prospects of full rehabilitation - large discount applied.

No SC 34 of 2005

Judge: Madgwick J

Supreme Court of the ACT

Date: 5 May 2005

IN THE SUPREME COURT OF THE )

) No SC 34 of 2005

AUSTRALIAN CAPITAL TERRITORY )

R

v

JOHN MICHAEL ROBERTS

ORDER

Judge: Madgwick J

Date: 5 May 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The plaintiff be convicted of the offences and sentenced to the following terms:

(i) For the act of indecency, 2^nd degree/self on 22 December 2002, 12 months' imprisonment, to commence from 1 December 2004.

(ii) For the act of indecency, 2^nd degree/self on 31 January 2003, 18 months' imprisonment to commence from 1 December 2004.

(iii) For the act of indecency, 3^rd degree/self on 11 March 2003, two years' imprisonment to commence from 1 December 2004.

(iv) For the act of indecency without consent on 31 October 2003, two years' imprisonment to commence from 1 December 2004.

(v) For the act of indecency without consent on 3 November 2003, two years' imprisonment to commence from 1 December 2004.

(vi) For the offence of unlawfully confining a person on 3 November 2003, three years' imprisonment to commence from 1 December 2004.

(vii) For the act of indecency, 3^rd degree/self on 15 November 2004, three and a half years' imprisonment to commence from 1 December 2004.

(viii) For the offence of unlawfully confining a person on 15 November 2004, four and a half years' imprisonment to commence from 1 December 2004.

2. A non-parole period of two years be set, to expire on 30 November 2006.

AND THE COURT RECOMMENDS THAT:

1. The prisoner be immediately assessed as to whether he is at risk within the New South Wales prison system and if so, appropriately dealt with.

2. The prisoner be sympathetically and urgently considered for inclusion in the CUBIT program conducted at the Long Bay Correctional Centre or in some like program within the New South Wales prison system.

3. Regard be had to the prisoner's outstanding intellectual capacities and that he be afforded every opportunity to undertake university level studies in a field of his choice.

4. As the prisoner is likely to have, and to benefit from, the close support of his family, that this be taken into account in deciding where to locate him.

IN THE SUPREME COURT OF THE )

) No SC 34 of 2005

AUSTRALIAN CAPITAL TERRITORY )

R

v

JOHN MICHAEL ROBERTS

Judge: Madgwick J

Date: 5 May 2005

Place: Canberra

REASONS FOR JUDGMENT

MADGWICK J:

1. Before me for sentencing is a man who has pleaded guilty to the following offences: (i) two acts of indecency in the second degree, pursuant to s 58 of the Crimes Act 1900 (ACT) (`the Act'), the maximum penalty for each of which is twelve years' imprisonment; (ii) two acts of indecency in the third degree, pursuant to s 59 of the Act, the maximum penalty for each of which is ten years' imprisonment; (iii) two acts of indecency without consent, pursuant to s 60(1) of the Act, the maximum penalty for each of which is five years' imprisonment; and (iv) two offences of unlawfully confining a person, pursuant to s 34 of the Act, the maximum penalty for each of which is ten years' imprisonment.

2. The prisoner is now aged 32. He was born on 10 March 1973. His early criminal record is suggestive of a disturbed young man involved in relatively minor crime, which escalated to an offence of armed robbery in 1993 for which, after a Crown appeal, he was sentenced at Queanbeyan District Court on 24 May 1994, to three years' imprisonment with a minimum term of one year. He was released after the year and complied with his probation obligations quite satisfactorily.

3. One of the bizarre aspects of this matter is that he was in no criminal trouble thereafter for the period of about nine years from when he last offended. Further, the offence was of a remarkably different type. The only common thread is that armed robbery involves some violence and there was some relatively minor violence involved in all of these matters. Speaking of relativity, I do not, for a moment, overlook the violence as, at least in one case, an act of actual bodily harm, and it was quite sufficient to terrorise the victims on each occasion, as it did.

4. The prisoner is a young man of very considerable intelligence. He has, in terms of his intellectual capacity, it appears, made the realistic assessment that he could qualify as an actuary, which, of course, requires a great ability in mathematics and is generally recognised as being one of the professions which requires the greatest intellect as well as application.

5. The prisoner's early childhood had some unfortunate aspects. His natural father and his mother separated before he was born and the natural father appears to have displayed scant, if any, interest in the prisoner at all. This alone could well account for his running off the rails in his post-adolescence and difficulties that he had in high school. His mother remarried when he was three years of age. His stepfather is very supportive of him and is here today but, as is not uncommon, it seems to have been a difficult relationship and one has the impression that both the prisoner and the stepfather would wish that their earlier years had been easier. The family relationship had other dysfunctions characterised by fighting between the children and a somewhat different approach to discipline exhibited by his stepfather and his mother.

6. In high school when he was in Year 10, the prisoner was apparently sexually assaulted over some period by a teacher. Until then he had been doing very well, consistently with his intellect, at school. This led to changes of schooling and difficulties and he did not achieve in his high school years the success which less troubled times would probably have produced for him, given his abilities.

7. Although he was an enthusiastic user, on occasions, of drugs and alcohol, he fortunately escaped addiction and he was assessed by Dr Lucas, psychiatrist, as not having had a significant problem with drug or alcohol abuse.

8. In general, Dr Lucas has done his best to understand what occurred on the part of the prisoner. He had developed an obsession with big breasted young women and in a way that was quite out of control. He would "cruise around shopping centres and indulge in voyeurism on a very regular and time-consuming basis" and on occasions, rather opportunistically, would take advantage of those situations where he was likely to encounter women to accost, with a view to feeling their breasts, if necessary by force, as well as looking at them, and also on occasions when a victim happened by at a place where he might do these things without being caught. The account that he gave to Dr Lucas really only serves to increase one's sense of the strangeness of the behaviour. It seems that any gratification that he had actually was "fleeting, over before it was done" as Dr Lucas puts it.

9. He had, after his earlier release from prison, been a good worker and was usually employed, though at jobs much under-utilising his intellectual capacities. He appears to have had an underlying sense of unfulfilment, which may have contributed to his behaviour in some way. Dr Lucas concluded that the prisoner -

"does not have a psychiatric diagnosis. He has no history of a major psychiatric disorder such as schizophrenia or mood disorder. There was nothing to suggest cognitive impairment for any cause.

It is clear from his history and his offences that there has been a disturbance of sexual conduct over the last couple of years. The exact nature of this and its origins require further investigation during treatment. He developed an interest in looking at women and began approaching some [of them] with large breasts. There is a fetishistic quality to his conduct, which can be explored during treatment.

Psychosocial factors important to the understanding of the commencement and continuation of his conduct include various dissatisfactions in the relationship with his de facto wife, the pressures from his employment prior to June 2003, his strong need to improve his education and, it seems, a long-standing unhappiness about his life and achievements. It is unclear whether resentment or hostility towards women was a motivating factor."

10. In Dr Lucas' opinion, the sexual abuse he suffered at the hands of his teacher "does not seem to have been a direct contributing factor in the commission of the offences. Further assessment is required to understand its importance in his sexual development". Dr Lucas considers that there are treatment programs within the New South Wales correctional system "from which he could be expected to benefit". He said:

`I would think Mr Roberts would satisfy the criteria for inclusion in a program such as CUBIT conducted at the Long Bay Correctional Centre. When he returns to the community follow-up treatment can be arranged while he is under supervision.

Following any prison sentence Mr Roberts will require a reasonably substantial period of supervision, a requirement that he accept treatment. I believe he is likely to cooperate with treatment and benefit from it.

Mr Roberts's acceptance of responsibility for his behaviour and his willingness and clear ability to discuss it and relevant background factors suggest that treatment will be useful. Other factors in his favour include family support, the end of a stressful relationship, his gaining university entrance and his good work record. All these factors, if appropriately used during therapy and rehabilitation should substantially reduce the risk of reoffending.'

11. The prisoner pleaded guilty to, among others, at least two offences in relation to which, had he gone to trial, he stood excellent prospects of being acquitted by reason of the apparent paucity of adequate identification evidence. This is greatly to his credit. He has, apart from abiding legal advice to say nothing for a while, at all times, been entirely frank and open with the police, with the assessing probation officer, with Dr Lucas and, I am quite satisfied, with the Court.

12. The sincerity of his expressions of remorse is far from that which might be expected of a merely intelligent and cunning person who knows how to make his pleas of guilty look good. I had first thought that might be a possibility with him but, as best I can judge the matter, that suspicion must be firmly put aside. Indeed, I have rarely, if ever, been as impressed with the sincerity of remorse expressed by a prisoner awaiting sentence.

13. He has read the Victim Impact Statements. He said he was disturbed to understand that a considerable time after the offences there have, in the case of at least some of the victims, been severe continuing adverse psychological results for them, in some cases of a debilitating character. He is supported by his two sisters, young women. He has enough imagination to be appalled to think that anybody might do to them what he has done to six young women himself. He has a young daughter for whom he cares and it is inconceivable that he would not feel the same abhorrence for the sort of conduct he has perpetrated if it should be directed against his own daughter.

14. He appears, to me, as Dr Lucas says, on account of his frankness and intelligence, to be about as good a candidate to benefit from a sex offenders' course as one could find. His educational potential for a prisoner is outstanding. The realisation of that potential, as it seems to me, is likely to make him, generally, a much happier person and thereby contribute to his rehabilitation and the safety of the community.

15. As is often the case, contrary to the views of the simple lifers who have never had to sentence anybody, there are difficult and contrary-tending factors to be brought into account in sentencing this man. On the one hand, the seriousness of his crimes is such that a sentence must be pronounced which, on behalf of the community, denounces his conduct in strong terms and reinforces for him, by way of individual deterrence, that should he, contrary to everyone's hopes, re-offend in future, a very, very heavy sentence indeed would be the result.

16. On the other side of the ledger stand the utilitarian advantages of his having pleaded guilty, including to crimes of which, had he chosen to contest them, he might likely have been acquitted. It must be recognised, further, that the truth is that he is an outstandingly contrite and remorseful person, is well placed to continue, with help, to investigate his motivations and to remedy them. Likewise, his educational potential, far above that of most people who fall to be sentenced, indicates very high prospects of full rehabilitation.

17. I approach these matters, as I said in the course of argument, to indicate, as transparently as I can, my thinking, so that if I have erred it can be corrected. Had the prisoner been convicted of these matters after trials, it seems to me that, making all due allowances for the fact that he had never committed offences of these kinds before, and that he had a period of nine years without any attraction of the criminal law at all, effective head sentences in aggregate totalling eight years would nevertheless be an irreducible minimum. His subjective features entitle him to as much of a discount from that standard as can reasonably be allowed.

18. In other words, I think he should have what I would regard as the maximum defensible discount. It cannot, however, reach 50 per cent, and so I intend to impose sentences which will provide, in my view, an effective head sentence as a package for his crimes, of four and a half years.

19. As to the non-parole period, again, there is the difficulty of reconciling conflicting and contrary factors. The matters standing to his subjective credit would really entitle him to as low a non-parole period as could responsibly be set. On the other hand, the objective seriousness of the crimes indicates that nothing but something that could be regarded as a guarantee of a substantial period of imprisonment could responsibly suffice. Doing my best with it, I think that a non-parole period of two years meets the case. I bear in mind, as to the period of his imprisonment, that his experience in Belconnen Remand Centre, as to which I have rarely heard any complaints by any prisoner in this Court, would indicate that his time in the prison system may approach, in difficulty, that of a paedophile, which he is not. On the other hand, this is not his first term of imprisonment and he will have learned some useful survival skills in prison through his former experience there. I will make the recommendations that I indicated at the outset.

20. Difficult questions, as the Crown prosecutor acknowledged, of concurrency and partial or entire accumulation arise. There is no practical way to deal with these matters, except to have regard to my overall impression and to understand that questions of concurrency and accumulation do arise and beg that the sentences imposed be viewed, as I intend them, as part of an overall package.

21. I convict the plaintiff of the offences.

22. I will take the matters chronologically. In relation to the offence of 22 December 2002, I impose a sentence of 12 months imprisonment to commence from 1 December 2004. In relation to the offence of 31 January 2003, I sentence him to a period of imprisonment of 18 months to commence on the same date, and in respect of the offence of 11 March 2003, I sentence him to a period of two years' imprisonment to commence from 1 December 2004. In relation to the offence of 31 October 2003, I sentence him to the same period of imprisonment and from the same date. In relation to the two offences of 3 November 2003, as to the offence of commit act of indecency under s 60, I sentence him to two years' imprisonment to commence from 1 December 2004 and, in relation to the unlawful confinement matter, I sentence him to a period of imprisonment of three years to commence from that same date. In relation to the final matters he committed on 15 November 2004, I sentence him to three and a half years for the assault with intent to commit an act of indecency to commence from 1 December 2004. In relation to the unlawful confinement offence, I sentence him to a period of imprisonment of four and a half years to commence from 1 December 2004.

23. In respect of all offences in relation to which the period of imprisonment would exceed two years, I order that he not be released on parole before two years from 1 December 2004 so that he will be eligible for release on parole on 30 November 2006.

24. I recommend to the prison authorities:

1. that he be - and this is to be endorsed on the warrant taking him to prison -immediately assessed as to whether he is at risk within the New South Wales prison system and if so, appropriately dealt with;

2. that he be sympathetically and urgently considered for inclusion in the CUBIT program conducted at the Long Bay Correctional Centre or in some like program within the New South Wales prison system;

3. that regard be had to his outstanding intellectual capacities and that he be afforded every opportunity to undertake university level studies in a field of his choice;

4. that as he is likely to have, and to benefit from, the close support of his family, that this be taken into account in deciding where to locate him.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Madgwick.

Associate:

Date: 6 June 2005

Counsel for the Plaintiff: Ms J Whitbread

Solicitor for the Plaintiff: Director of Public Prosecutions

Counsel for the Defendant: Mr J Jasinski

Solicitor for the Defendant: Legal Aid

Date of hearing: 5 May 2005

Date of judgment: 5 May 2005