R v Proberts [2022] NSWDC 737

District Court New South Wales

Medium Neutral Citation: R v Proberts [2022] NSWDC 737 Hearing dates: 18 November 2022 Date of orders: 25 November 2022 Decision date: 25 November 2022 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [53-54] Catchwords: CRIME — Sexual offences — Have sexual intercourse with person greater than or equal to 14 years & less than 16 years. Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: R v Wong [2003] NSWCCA 247 Jolly v R [2013] NSWCCA 76 WB v R [2020] NSWCCA 159 R v AB [2022] NSWCCA 3 R v Mauger [2012] NSWCCA 51 Texts Cited: N/A Category: Sentence Parties: Rex (Crown) Alfred James Proberts (offender) Representation: Counsel: Franklin (for the Crown)

Solicitors: Meech (for the offender) File Number(s): 2020/00082123 Publication restriction: N/A

Judgment

Introduction 1. Alfred James Proberts ("the offender") appears for sentence in respect of one offence, that in breach of section 66C(3) of the Crimes Act 1900 he did on 10 December 2005 have sexual intercourse with the victim of the offence who was then a child above the age of 14 years and under the age of 16 years. 2. The case is with respect a relatively straight forward one, and the outcomes argued for by the parties as being appropriate, albeit not their primary positions, are not too distant from each other. Despite that, the conduct of the matter has been somewhat fiercely fought, and a range of issues ventilated, and it assists to raise some of those various issues at the outset. 3. On 5 August 2022 Jay Healey was sentenced in respect of a charge under the same section of the Crimes Act. Mr Healey and the offender were charged separately, with no allegation made of them being engaged in a joint criminal enterprise. The facts below will show there is little to distinguish between the offending factually. What is different is that at the time of the offending Mr Healey who was born on 28 November 1988 was 17 years and 12 days old and the offender was 18 years 5 months and 15 days old, having been born on 25 June 1987. The victim was 14 years 9 months and 16 days old, having been born on 24 February 1991. The age disparity between the two offenders and the victim was 2 years 2 months and 26 days in the case of Mr Healey and 3 years and 8 months (less 1 day) in the case of the offender. In the conduct of the sentence of Mr Healey, and until the receipt of an additional submission by the Crown after the sentencing hearing of the offender, all parties had proceeded on the basis that section 80AG of the Crimes Act was in force as at 2005. That section provides a defence to a person who has sex with a child aged over 14 if the person is within two years in age to that of the child. That section was not in force as at the date of the offending. 4. The point that had been made for Mr Healey was that but for a very short period of time there would have been no offending; the point is obviously not so persuasive for the offender though reference was still validly made to the age disparity between the victim and the offender, which the Crown referred to at [7] of its written submissions as being a relatively small age disparity. 5. I proceed on the basis of section 80AG not being in force as at the time of the offending on the basis that such legislation is not usually considered retrospective, and there seems to be no provision suggesting that is not the position here. The insertion of s80AG does show that the law concerning sex between people in the age range of 14 to 16 as one party, and the other party within 2 years in age of the other, has changed; what was once an offence is no longer an offence. As neither Mr Healey nor the offender fits the provision in any event the matter is academic, save for one matter. That matter is that the point being made by the offender is to emphasise the age disparity as being favourable to him. Whilst relatively speaking that age difference can be seen to be of some note, it nevertheless can also be said that both the victim and offender were teenagers. The concession of the Crown noted above is a fair and reasonable one. 6. Another aspect that emerged from these facts was whether the principle of parity had any work of significance to do given that when Mr Healey was sentenced much was made of the fact that the delay in his sentence meant that he was unable to be dealt with in line with the principles of sentencing for children but nevertheless with the consequence that when he was sentenced consideration was given to the fact that he was a child at the time of the offending and the sentencing process should reflect that. The point the Crown makes is that the same does not apply to the offender who was an adult at the time of the offending. 7. The oddity here is that parity does not assist the primary submission of the offender, something recognised at [46] of his submissions, where it was said that the section 10 result is open "even taking into account the issue of parity", remembering that Mr Healey was convicted and a CCO imposed. Yet in answer to the Crown's initial submission that parity does not apply, which if accepted added weight to the argument for a custodial sentence, the offender went to some lengths to argue the principle of parity applied, doubtless to firm up the fall back position he adopted of seeking a CCO outcome, as received by Mr Healey. Ultimately as I understood the Crown's position it was accepted that there was some merit in the offender's later submission. With respect I accept the submission made by the offender and note its reliance upon R v Wong [2003] NSWCCA 247 at [35], as set out in the offender's submissions. That passage both aids and hinders the offender noting as it does that it is relevant to have regard to a sentence imposed by the children's Court on a co-offender but then noting the limitations of that comparison given the sentencing objectives that apply in the children's Court. As already noted, both offenders here are being dealt with at law but with the approach to Mr Healey being that as indicated. 8. Further in my view although the two offenders are not co-offenders charged with the one criminal enterprise, I do consider that the marked similarity in the facts to the point of being nearly identical but for the age disparity and that it was the offender who first had sex with the victim results in it being necessary to take into account the principle of parity. 9. A further issue was how the delay in the determination of the matter should be taken into account. One aspect of the argument as to delay for the offender was that the years since the offending has allowed the offender to show himself to be a pro social member of the community and unlikely to reoffend. The offender also submitted that he was disadvantaged because had he been sentenced earlier it would have been at a time when sentencing practices were more lenient, something now prevented by s25AA. The Crown argues that the offender has been able to enjoy years of a life in the community to which he was not entitled. I accept that the offender has been able to enjoy his life to date without having to account for his actions, but that fails to take into account the impact that the sentence will now have on his life, which it would not have had if imposed earlier. Simply put, the punishment and crime would likely be well behind him by now had there been no delay, and the impact on his life by being sentenced now is greater than had it occurred earlier. The best example of this is the impact on his work life. 10. This issue of delay feeds into considerations of rehabilitation and likelihood of reoffending, matters which loomed large in the Crown case. This aspect, and the consideration of the psychologist's report is dealt with below. 11. I note that the maximum penalty for the offence is 10 years imprisonment. There is no standard non parole period. I take the maximum penalty into account as a legislative guidepost, indicating the legislature's view of the seriousness of the offending so as to assist in arriving at the appropriate sentence. 12. The plea of guilty was not entered at the first opportunity. The Crown proceeded by way of a primary charge under section 61J and with the current charge being in the alternative. Putting aside the arguments that might emerge as to the reasonableness of withholding a plea in those circumstances, the parties agree section 25D dictates that the discount available for the guilty plea is 5%. I note Mr Healey had the benefit of a 10% discount. 13. There are no matters to be dealt with by way of the Form 1 procedure nor are there any matters to be dealt with by way of a section 166 certificate. 14. The offender was served with a court attendance notice on 2 March 2020, more than 14 years after the offence.