NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-018784 [2013] NZHC 1929

THE QUEEN

v

WILLIAM GEORGE ROBERSON

Hearing:	27 May-5 June 2013

Appearances:	J L S Shaw for Crown
P H H Tomlinson for Prisoner

Judgment:	1 August 2013

SENTENCING NOTES OF COURTNEY J

R v ROBERSON  [2013] NZHC 1929 [1 August 2013]

[1]	William  George  Roberson,  you  appear  for  sentence  today  having  been

convicted on seven charges of sexual offending against children. These were:

          One charge of inducing a boy aged under 12 to do an indecent act, which

carries a maximum penalty of 10 years’ imprisonment. The victim of this

offending was a young boy, J;

          One charge of sexual violation by unlawful sexual connection, which carries a maximum penalty of 20 years’ imprisonment. The victim of this offending
was also J;

          Three charges of doing an indecent act on a girl under 12; this charge carries a maximum penalty of 10 years’ imprisonment. The victim here was T;Two representative charges of sexual violation by rape, which carries a maximum penalty of 20 years’ imprisonment. These charges related to two young
sisters, S and C.

[2]       The  offences  spanned  approximately  eight  years  between  mid-1998  and

2006.  The children that you offended against were aged between three and six years. They were the children of families who befriended and trusted you.  You were aged between about 20 and 29 when you committed these offences. You are now 36 years old. You have relatively few other convictions and no serious previous convictions.

[3]       I will shortly consider each of the offences separately, but at this stage there are some general matters that I need to cover.  When a judge sentences on offences such as these the main objectives are to hold the offender accountable for his offending, promote in him a sense of responsibility, ensure community protection, provide for the victims’ interests and denounce and deter such offending.   I am required to follow the principles set out in the Sentencing Act 2002.  Of relevance in cases such as this is the gravity of the offending, the seriousness of the type of offence, the effect of the offending on the victim and the need for consistency in sentencing between this and other cases.

[4]       In addition, the Court of Appeal has provided guidance for sentencing judges in cases such as this through its decision in R v AM.    When I come to fixing an appropriate sentence on each of the charges I do so by reference to the that case and also  to  other cases  that  bear some  similarity to  the present  offending  to  which counsel have referred me to in their submissions.

[5]       The  last  general  matter  that  I  touch  on  is  the  question  of  cumulative sentences.  Although the offending against each victim was distinct in terms of time and place and might, therefore, attract cumulative sentences, I am satisfied that this would lead to a disproportionately long term of imprisonment.   It is my intention, therefore, to impose concurrent sentences in respect of all the offences with an adjustment at the end to reflect the totality of your offending.

Offences against S and C

[6]       I turn now to consider that various offences.  I begin with the most recent of the offences, those that occurred in 2006.  I discuss those first because they are the most serious and I take them as the lead offence.

[7]       These offences were the sexual violation by rape of C, aged five, and S, aged three or four. The charges were both representative charges and the evidence showed that there were numerous instances of rape over the period between March and October 2006.

[8]       These girls were the children of a family for whom you used to babysit and then with whom you boarded.   You had very close contact with this family from
2003 and when they moved out of Auckland you went with them and continued to board with them.  During 2006 the children’s father was living apart from the family in a nearby rehabilitation centre while he dealt with difficulties in his life.  He was not permitted out of his residence until a specified time each morning.  During that period the girls’ mother was working and starting early in the morning.  She left her
daughters alone with you, believing them to be safe.  There was another adult living

on the property, the children’s uncle, but he occupied a sleep-out outside and also left early for work.

[9]       The evidence satisfied the jury and me that took advantage of these domestic arrangements and used  the opportunity you had when  you were alone with the children to offend against them in a most gross and serious way.   The children described  that  they would  come into  your bedroom  in  the mornings  after their mother had gone to work. You would make them lie on your bed, remove their pants and take off your underwear and sexually violate them by putting your penis into their vaginas until you ejaculated.  This happened regularly and frequently over the seven-month period.

[10]     There are several features of this offending that are relevant in identifying an appropriate sentence.   The first is the level of planning and premeditation.   The circumstances in which this offending occurred and the regularity with which it occurred satisfies me that this was not merely opportunistic offending on your part. This was offending you knew you could commit by taking advantage of the parents’ absence from their house each work morning.   This went beyond occasional opportunism and became a pattern.   Secondly, these girls were very young, one a pre-schooler and so especially vulnerable.  You were a man in his late 20s.  Thirdly, this offending represented a dreadful breach of trust.   You were a trusted family friend and boarder who was left to care for vulnerable young children while their mother was at work.  You lived as part of this family and it is difficult to imagine a worse breach of trust.

[11]     I consider that these features bring the offending within the lower range of band 4 in R v AM, which attracts a starting point between 16 and 20 years.  I take a starting point of 16 years on each charge.   Those charges are to be served concurrently.  I indicate now that one of those sentences of 16 years will be uplifted at the end of my sentencing to reflect the totality of the offending.

Offending against J

[12]     I turn now to consider the offences against the young boy, J.  J was four or five years old when these offences occurred in 1998 or 1999.  The time frame was a

little unclear from the evidence.  You were convicted of sexual violation of J and of inducing him to do an indecent act on you.   J’s aunt, with whom J and his father were living at the time, were neighbours of your family. You were frequently at their house and quite often left alone with J while his father was at work.  His aunt was taking the older children to school.  On the occasion of the offending only you and J were in the house.  The boy was watching television.  You came and took him to one of the bedrooms. You took off your pants and told him to do the same. You told him to put his penis between your buttocks, which he did.  You then had him lie on his stomach and you put your penis into his anus.   J described this being painful and described going to the toilet later and finding blood on the toilet paper.

[13]     I  accept  that  this  offending  was  not  planned  but  purely  opportunistic. However, this was serious offending against a vulnerable pre-schooler in breach of the trust that his family had placed in you, allowing him to be alone and in your care.

[14]     J  has  provided  a  victim  impact  report  from  which  it  is  clear  that  this offending has had a long term and profound impact on his ability to relate to other children, on his family life, on his family and on his own view of himself.  It is very sad to hear a teenager describe things that have interfered with his own development and which he had not, until his teenage years, been able to share with anyone.  He has had to bear this alone and I am sure he will continue to suffer the consequences of your offending for many years yet.

[15]     The offence of sexual violation falls within the higher end of band 2 of R v AM, being a single incident with aggravating features that I have mentioned.   It attracts a starting point of between seven and 13 years and I impose a sentence of 10 years on that offence and a sentence of six years on the indecency charge.  These are to be served concurrently with the sentences imposed in relation to C and S.

Offending against T

[16]     Finally, I come to the charges involving T.  These were charges of doing an indecent  act  on  a  girl  under 12.   They relate  to  three  discrete incidents  which occurred over the period 1995-1999.   T was J’s older cousin.   The first offence occurred when T was three or four years old and you were aged between 17 and 20.

You picked her up from behind and rubbed her against your groin with your pants partly down.  The second and third incidents occurred when T was aged five or six. In the second incident, you pushed her to the ground near her playhouse and tried to lie on top of her.  In the third incident, you tickled her and then indicated that you were ticklish, pointing to your groin area.

[17]     T has also provided a victim impact report in which she describes her feelings of embarrassment and the memories of these incidents.   She had great difficulty telling anyone about it.   She has always been afraid of being touched, even by a doctor and feels enormous guilt at discovering that you had offended later against other children and the feeling that she could have prevented that by speaking out sooner.

[18]     The first of the incidents is the most serious of the offending against T and I impose a sentence of five years’ imprisonment on that charge and sentences of 18 months’ imprisonment on each of the other charges, these to be served concurrently with the all of the other sentences imposed in relation to J, C and S.

End sentence and minimum period of imprisonment

[19]     The indicative sentence following the imposition of all of these various terms is therefore 16 years.  However, I must increase that to reflect the fact that this was sustained  offending  and  serious  offending  against  very  young  children  in  gross breach of trust and with undoubted long-term psychological consequences for the children concerned.  I have not had the benefit of a victim impact report in relation to C and S.   However, their parents gave evidence at your trial and it is abundantly clear that  their  family is  absolutely devastated  and  it  does  not  take very much imagination to envisage the effect on the very young girls of such serious offending at such a young time in their lives.  I consider that an uplift of two years is the least that I can impose to reflect the totality of this offending.  I increase the sentence to be served in respect of the sexual violation of S, the youngest victim, to 18 years.

[20]     Finally,  the  Crown  seeks  to  have  me  impose  a  minimum  period  of imprisonment.  Section 86 of the Sentencing Act permits me to impose a minimum period of imprisonment of up to two-thirds of the sentence if I am satisfied that the

otherwise applicable period of one-third would be insufficient to meet the sentencing purposes that I referred to earlier.

[21]     As I have noted, I am dealing with sustained, serious offending against four very young children.  The pre-sentence report describes you as a troubled man with no insight into your offending, no remorse and no interest in addressing the causes of your offending.  You have done no more than acknowledge the possibility of these offences occurred on the basis that you were using a lot of cannabis at the time and so you allow for the possibility that it might have happened.  You are assessed as being at high risk of further sexual offending against children because of these factors.

[22]     These aspects cause me enormous concern.  I am particularly worried about the future threat you pose to the community.  I am satisfied that I should impose a minimum term of imprisonment and that that term should be two thirds of the end sentence.

[23]     The  final  sentence  is  therefore  18  years  with  a  minimum  period  of imprisonment of 12 years.  Stand down.

Addendum

[24]     Mr Roberson, I have asked you to return because counsel has raised two matters with me that I need to deal with.

[25]     The first is that your counsel, Mr Tomlinson, has quite rightly pointed out that the maximum term of a minimum period of imprisonment that I can impose is
10 years and therefore I need to reduce the minimum period of imprisonment that I have imposed of 12 years to 10 years to reflect that limitation.  Do you understand that?

[26]     The second point is that Mr Tomlinson has asked me about the fact that I did not refer to any mitigating circumstances that might reduce the sentence, and that is true.  I have found that there are, in fact, no mitigating circumstances that I can take into account.   I know that your lawyer referred to your youth at the time of the

earliest offending, but the end sentence mostly reflects the very serious offending that you committed later against the two young girls, C and S, when you were in your late 20s and I cannot make any allowance for youth on that basis.  There are no other mitigating factors that I could take into account.  That is all I have to say, thank
you.

P Courtney J