R v Roberts [2000] VSCA 46 (23 March 2000)

Last Updated: 18 April 2000

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 33 of 1999

THE QUEEN
v.
RAYMOND LEONARD ROBERTS

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JUDGES:	CHARLES and CALLAWAY, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2000
DATE OF JUDGMENT:	23 March 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 46

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Criminal law - Sentence - Rape and related offences against children - Psychiatric report obtained after plea adjourned - Application for adjournment of further hearing for submissions on report - Procedural fairness - Sentences quashed - Exceptional circumstances justifying remitting matter for rehearing - Crimes Act 1958 s.568(5).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr R.J. Marron	Victoria Legal Aid

CHARLES, J. A.:

1. The applicant, who was born on 9 October 1945, pleaded guilty on 27 November 1998 in the County Court at Melbourne to a presentment containing one count of rape (count 1), one count of assault with intent to commit an indictable offence (count 2), and one count of committing an indecent act with a child under the age of 16 (count 3). The applicant also pleaded guilty to four charges of loitering, pursuant to s.60B(2)(b)(ii) of the Crimes Act 1958. The plea hearing was adjourned part-heard for the purpose of obtaining a psychiatric report, the preparation of which was ordered by the judge. The judge reserved to counsel for the applicant the right to address him on the report.
2. On 25 February 1999, the judge sentenced the applicant to imprisonment on count 1 for six years, on count 2 for six months, on count 3 for one year and on charges 4 to 8 to three months' imprisonment on each charge. His Honour directed that three months of the sentence on count 2, six months of the sentence on count 3 and one month on each of charges 4 to 8 all be served cumulatively on the sentence imposed on count 1. The total effective sentence was therefore seven years and one month, and his Honour fixed a non-parole period of four years.
3. The applicant now seeks leave to appeal against sentence on the grounds that -

1. he was denied natural justice by the failure of the learned judge to allow the applicant's counsel to put submissions on the psychiatric report and respond to the submissions of the prosecutor on sentence. 2. the sentence was manifestly excessive in all the circumstances.

4. The circumstances giving rise to the offences were as follows. On 28 March 1998 AC, a six year-old girl, went with her mother and grandmother to the toy department on the 6th floor of Myer's store in Lonsdale Street, Melbourne. They arrived there at about 4.50 p.m. And AC began to play with toys on the floor in an area around which boxes were piled. The applicant was at first seated on a display unit next to the boxes and then sat down beside AC with his left arm around her. He rubbed her waist with his left hand for a number of minutes and then pulled the child closer to him, using both his arms to hold her with his right arm around the front and rubbing her upper left thigh just below her waistline. AC's mother and grandmother were not in a position to see what was happening to the child, but after a few minutes AC came up to her mother and grandmother, holding the front part of her body, and crying. She said to her mother that "A man put his finger up my bottom". Her mother then took her to the toilet, and noticed that she had spots of blood on her underpants. After leaving the toilet, AC told her mother that "He put his finger up my bottom six times". She said she was frightened and did not run away because the man was holding her. AC was taken to the Royal Children's Hospital where she was medically examined, the doctor discovering blood on her underpants and abrasions on the hymen, including petechia. The applicant was interviewed on 6 July 1998 in relation to this matter and denied any knowledge of the rape or being at Myer's store on this occasion. He made no admissions to the police about this or any other matters. These events gave rise to count 1.
5. Count 2 related to an assault on EF with the intention of committing an indecent act. EF, a girl aged 10, was in the North Melbourne Library on 20 June 1998, when the prisoner came up to her and pulled up a chair. The applicant asked EF her name and whether she had any brothers or sisters, and then asked her to sit on his knee, which she declined to do. She tried to get away but the applicant blocked her path with the chair. EF then made off in a different direction and went to her mother. EF said that the applicant grabbed her around the stomach area, in fact on the hips, when he was behind her.
6. Count 3 arose from a further incident at the North Melbourne Library. EW, a girl aged six, was in the library looking for a video and returning another video. She went to give back the video and, as she moved away, the applicant came up to her and spoke to her and then put his hand on the girl's pants. EW said the applicant put his hand down her pants and she said "Then he put something on my bum", demonstrating how his left hand went inside the back of her pants, touching her skin. EW told the applicant to stop it.
7. The four charges of loitering involved one charge of loitering in Myer's store in Lonsdale Street, Melbourne on 5 July 1998 and three charges alleged to have occurred at the North Melbourne Library on 8 July 1998, 21 July 1998 and 22 July 1998.
8. When the applicant was interviewed by the police in relation to these loitering offences, he said that he was a member of the library and went there only to borrow books. He said that on 22 July 1998 he had drunk four litres of wine and was intoxicated. He denied being in the children's area of the library and denied approaching any young children there. He also denied having been in the library on 20 June or putting any girl on his knee. He said then that the police allegations were rubbish and that he was not guilty.
9. When the matter was before the judge on 27 November 1998, both the prosecutor and Mr Marron, counsel for the applicant, asked the judge to order that a psychiatric report be obtained. The exchanges between Mr Marron and his Honour show that it was assumed that the report would be made available to the parties, and that afterwards a further hearing would occur at which Mr Marron would make further submissions to his Honour in relation to the contents of the psychiatric report. Mr Marron said to the judge on 27 November that "There would be matters that I'd want to put to you once the psychiatric report had been obtained, because I would want - that's a significant factor, and it would be matters that I would want to cover at that time." Mr Marron on several occasions said that these further matters could really be dealt with only when the report had been obtained, and the judge expressly said that he would give counsel leave to address him, restricted to the psychiatric report.
10. The report was received by the applicant's Legal Aid solicitor, Mr Andrew Denison, on 18 February 1999, some three months after the adjournment, according to an affidavit sworn by Mr Denison on 17 March and placed before this Court. Mr Denison states that the judge's associate then advised him that the matter would be listed for a further plea. Mr Denison then forwarded the report to the applicant's counsel who was at the time part-heard in a trial in the County Court at Morwell. The matter was listed for hearing on Wednesday, 24 February, but Mr Marron successfully sought to have the matter listed on a subsequent date to enable him to attend and appear. The matter was further listed for Thursday, 25 February, but Mr Marron unfortunately had not then completed the trial in Morwell (the jury had retired on 23 February and had still not reached a verdict) and asked to have the matter adjourned one further day to Friday, 26 February, to enable him to appear and make submissions. When this request was referred to the judge by his associate, his Honour was not prepared to adjourn the matter a second time and, through his associate, informed the applicant's representatives that the matter would not be further adjourned and that the solicitors should arrange for somebody else to appear for the applicant on 25 February. That day different counsel (Mr Backwell) who had been briefed only on the morning of Thursday, 25 February, appeared before the judge to make an adjournment application, and informed his Honour that the applicant's counsel had further matters that he wished to put on behalf of the prisoner. His Honour stated that counsel should either have been present or should have arranged to have somebody there, and decided that the hearing of the plea should continue forthwith. The judge asked Mr Backwell "Have you seen the material at all?" and was told that the latter had not seen anything. His Honour then continued -

"Yes, well that seems a pretty deplorable state when they were on notice last night and they had made the application the day before for an adjournment and the matter was adjourned by consent over to today's date and then last night they were advised again that no adjournment would be granted."

11. Mr Denison, according to his affidavit, decided after discussion with the applicant's counsel that it was not in the best interests of the client to brief further counsel, both because of the short notice of the matter being re-listed, and on the grounds that Mr Marron had been briefed on the original plea and had established a relationship of trust with the applicant, from whom it had been difficult to obtain instructions, that Mr Marron would have no opportunity to discuss with any further counsel particular arguments that needed to be put, nor would new counsel have access to the transcript of the first plea, and on the further basis that the judge had specifically reserved to Mr Marron the right to address him in relation to the report. Furthermore, there was no question but that the applicant would receive a sentence of imprisonment, the intended adjournment was only a matter of a day or two and could not have impacted upon any sentence imposed or the administration of justice, not least since the applicant was in any event already in custody.
12. This Court has had the benefit of a long and comprehensive report from the judge explaining in full the circumstances which led to his Honour's decision not to grant the further adjournment sought. A consideration important to the judge was the fact that on 1 March his Honour was due to commence a civil circuit at Ballarat and would be absent from Melbourne from 1 March to 7 April 1999. His Honour's associate accordingly attempted to contact Mr Marron at 4.45 p.m. on Wednesday, 24 February to say that no further adjournment would be granted. Mr Marron's mobile telephone was not answered, but the associate left a message on Mr Marron's voice mail.
13. In these circumstances, the judge's decision to proceed with the hearing on 25 February is, with respect, entirely understandable. If those representing the applicant had had the courtesy to inform his Honour of the reasons why the decision had been made not to brief other counsel, his Honour would doubtless have taken a different course and may well have granted the adjournment needed to enable Mr Marron to appear. The learned judge was given every justification for annoyance at the failure of properly instructed counsel to be present on Thursday, 25 February. But I have no doubt, in all these circumstances, that the failure to hear counsel on the subject of the psychiatric report amounted to sentencing error: See R. v. Carlstrom[1]; R. v. Bishop[2]; R. v. Li[3]; R. v. Downie and Dandy[4]. The psychiatric report was of considerable significance in the present case. The report, by Dr Lester Walton, contained the following opinion as to the applicant -

"1. If it is correct that Mr Roberts' paedophilic proclivities did not emerge until 1996 then it is clear that the better part of his life has involved normal sexuality and, from a psychiatric viewpoint, it is very likely not a coincidence that this man's sexual misconduct has emerged in the context of substantial alcohol abuse. Nevertheless, this man's inappropriate sexual attention directed at children certainly now has been of sufficient duration that he would be properly diagnosed as a paedophile. I can find no evidence of psychiatric illness as such. He certainly would also qualify for a label of a substance abuser."

The importance his Honour gave to these observations is abundantly clear from the sentencing reasons, which contain repeated reference to the report. His Honour referred on several occasions to the applicant as a paedophile and also to the fact that "paedophiles such as you, Mr Roberts, represent a significant problem to our community." His Honour also said that it was the duty of courts to protect young people of the community from the unnatural and unwanted attention of predators.

14. In these circumstances, even if his Honour had not expressly given leave to counsel to address him on the subject of the psychiatric report, it was essential that a full and fair opportunity be given to properly instructed counsel appearing on the applicant's behalf to make submissions on the subject of the psychiatric report. Notwithstanding his Honour's understandable concern at the necessity to adjourn the further hearing of the plea because of the continued absence of Mr Marron in Morwell, in my view, the circumstances disclosed by the transcript on Thursday, 25 February demonstrate that the plea proceeded to its conclusion at a time when the applicant and his counsel were in no position to make submissions as to the contents of the psychiatric report. As the Full Court said in R. v. Carlstrom[5], it is fundamental that, save in exceptional circumstances, counsel for a prisoner should have an opportunity of seeing and commenting upon any material which is provided to the trial judge.
15. In all these circumstances, ground 1 of the application is, in my view, made out, and the sentences imposed should be quashed.
16. The question then becomes what course should now be taken by this court.
17. Mr Marron, for the applicant, submits that it was his intention at the expected further hearing of the plea that he would be in a position to present such information as was available from the prison hospital in relation to the condition and treatment of the applicant and the impact of a prison sentence on the applicant having regard to his age and medical condition. In relation to the evidence of Dr Walton, it had been his intention to submit that the judge should accept that the applicant's offending behaviour was related to his alcohol abuse and was of relatively short duration, suggesting a more favourable prognosis than that contained in Dr Walton's opinion. If the prosecution had taken issue with this position, Mr Marron argues that he would have sought to cross-examine Dr Walton on the matter and on other issues in the report. In all of these circumstances, Mr Marron now submits that the appropriate course is for the matter to be remitted to the County Court, to be heard before another judge.
18. In R. v. Webber[6], Winneke, P. drew attention to the fact that s.568(4) of the Crimes Act 1958 did not give this Court the power to remit a sentence under appeal for a fresh hearing by the sentencing court. In 1997, s.568 of the Crimes Act was amended by the addition of sub-ss.(5), (6) and (7), which now give this Court the discretion, in an appropriate case of an appeal against sentence, to quash the sentence passed at the trial and to remit the matter to the trial court. This is a power to be exercised sparingly and only in exceptional circumstances. The present case is, in my view, such a case, particularly having regard to the fact that the hearing of the plea was, in the circumstances I have set out, never concluded. Mr Kayser, who appeared in this Court for the Crown, did not submit that any other course should be follow; indeed, as I followed him, he accepted that it would be inappropriate for this Court to hear the plea and that the matter should be remitted for hearing in the County Court. No oral evidence was heard during the plea from which this appeal is now brought. Leave was reserved only in relation to the psychiatric report, but because it will be necessary for the matter to be re-heard by a different judge, that judge will be at large as to the hearing of the plea.
19. I would remit the matter to the County Court for hearing by a different judge.

CALLAWAY, J.A.:

20. I agree.

COLDREY, A.J.A.:

21. I also agree.

CHARLES, J.A.:

22. The orders that are proposed, gentlemen, and if you will indicate whether any other order is appropriate, is that the application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter and is allowed. The sentences passed below are quashed and the matter is remitted pursuant to s.568(5) of the Crimes Act 1958 for hearing by a different judge.
23. Are there any further orders sought?

(Discussion ensued.)

MR MARRON: There is no application for bail.

CHARLES, J.A.:

24. We will order that the applicant is remanded in custody pending the hearing of the plea.
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[1] [1977] VicRp 44; [1977] V.R., 366, at 367.

[2] [1998] 1 V.R. 531 at 536 , 537.

[3] [1998] 1 V.R. 637, at 643.

[4] [1998] 2 V.R. 517, at 520, 523.

[5] [1977] VicRp 44; [1977] V.R. 366 at 367.

[6] (1996) 86 A.Crim.R. 361, at 365.