c. Her Honour failed to give due and proper weight to the extraordinary impact the imprisonment of the applicant would have on his wife, for whom he was the principal carer.
13 Before discussing the submissions on appeal I should say something briefly about the applicant's background. The applicant was born in 1928 and is 80 years old. He was in the workforce for most of his adult life. He has been retired for 17 years and is receiving an aged pension. He has no prior criminal convictions of any kind.
14 The applicant has been married for 60 years. He and his wife have five adult children as well as numerous grandchildren and great-grandchildren. The victim of the current offences was his youngest daughter. The family has been completely split since these offences came to light. The great majority of family members have estranged themselves from the applicant and his wife. The few family members who have remained loyal to them have been ostracised by the others. This has made it extremely difficult, particularly for the applicant's wife. She has chosen to stand by her husband but at very considerable personal sacrifice. Both of them say that they have attempted self-harm because of the stresses associated with these offences.
15 I return to discuss the grounds of appeal. As will be seen from later discussion, I consider that there is substance in the first ground, particularly when taken in conjunction with the matters raised under the second ground. The third ground can be disposed of briefly. Under this ground the applicant submits that the sentencing judge failed to give appropriate weight to the impact of the applicant's imprisonment upon his wife, for whom he was the principal carer.
16 Her Honour had before her a report dated 12 March 2007 from Mrs Bradbery's General Practitioner. This described the various medical complaints suffered by Mrs Bradbery, including gastro-oesophageal reflux, dizziness, anxiety and depression as well as disabling osteoarthritis. Mrs Bradbery was dependant upon her husband to assist in performing almost all her activities of daily living. Her dependency upon her husband had been exacerbated by the abandonment of both of them by family and friends after the current offences came to light.
17 Her Honour in her reasons for sentence referred to Mrs Bradbery's dependence upon the applicant but concluded that this was not such as to amount to exceptional circumstances in mitigation of sentence.
18 There is no doubt that the applicant's wife will continue to suffer extreme hardship during the course of the applicant's imprisonment. However this is not sufficient to require an adjustment in sentence. As Gleeson CJ said (James and Ireland JJ agreeing) in Regina v Edwards (1996) 90 ACR 510 at 515):
"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment."
19 As the court confirmed in Regina v Dib NSWCCA 13 Sep. 1991:
"It is only in circumstances of exceptional hardship to the applicant's family the court will take into account that hardship in mitigation of sentence. The hardship must be so 'extreme' - going so far beyond the sort of hardship which inevitably results to a family when the breadwinner is imprisoned that a 'a sense of mercy or of affronted common sense imperatively demands that they (the sentencing judges) should draw back'."
20 In my opinion the hardship suffered by the applicant's wife as a result of his incarceration is not so exceptional as to enable it to be taken into account on sentence. Accordingly I can find no substance in the third ground of appeal.
21 I return to consider the first two grounds of appeal.
22 In relation to the first ground, Mr Haesler SC, who appeared for the applicant, submitted that her Honour did not have the benefit of sufficient information about the pattern of sentencing in the early 1970's. At that time, the maximum penalty for an offence under s 76 was five years imprisonment. Offences included under that section encompassed a wide range of conduct which now falls within the definition of "sexual intercourse" in s 61H of the Act. Indeed, all non-consensual sexual conduct other than penile/vaginal penetration was included within the offence of indecent assault. The applicant referred us to a number of statistics and other material relating to sentences for s 76 offences committed in the early 1970's, none of which was provided to her Honour. It was submitted that this information should have been available to the sentencing judge.
23 The Crown did not dispute that a sentencing Court dealing with old offences should, so far as possible, replicate the sentencing practices of the period when the offences were committed (See R v MJR (2002) 54 NSWLR 368). However it was submitted that her Honour did refer to the regime of that time, including the maximum penalty which then applied, and the fact that offences under s 76 included a more serious range of conduct than now applies. The Crown also submitted that, once the applicant conceded (as he was said to have done) that a custodial sentence was merited, the statistics provided little support for his submissions. Of the small sample of offenders making up the statistics, half of those who were imprisoned were sentenced to between two and four years imprisonment.