R v LF

THE OFFENCES

1. Counts 1, 2, 3 and 4 were in respect of the complainant identified in the Crown's submissions as AH (1) and count 5 was made in respect of the complainant identified as AH (2). The allocation of these identifiers arises because both children, although of different given and family names, ultimately have the same initial for both their given and family names, and therefore they have been identified by way of their initials with the number 1 and 2 respectively.
2. The counts in respective of AH (1) are as follow. Count 1: "Between the first day of January 2017 and the 31st day of January 2019 at Valentine in the State of New South Wales [the offender] did intentionally sexually touch AH (1), a child under the age of 16 years. This offence is contrary to s 66DB(a), Crimes Act 1900."
3. Count 2 alleged that the offender: "Between the first day of January 2017 and the 31st day of January 2019 at Valentine in the State of New South Wales did have sexual intercourse with AH (1), a child under the age of 14 years, in circumstances of aggravation, namely, she was under his authority. This offence is contrary to s 66C (2), Crimes Act 1900."
4. In the alternative to that charge, the Crown included count 3, alleging an offence of intentional sexual touching contrary to s 66DB(a) Crimes Act 1900. The jury returned a verdict of guilty to count 2 and therefore there was no verdict required in respect of count 3.
5. Count 4 alleged that the offender: "Between the 1st day of September 2019 and the 11th day of November 2019 at Valentine in the State of New South Wales did intentionally sexually touch AH (1), a child of or above the age of ten years and under the age of 16 years."
6. This offence is contrary to s 66DB(a) Crimes Act 1900. The jury returned a verdict of not guilty in respect of that charge.
7. Finally, count 5 alleged that the accused: "On 10th day of November 2019 at Belmont in the State of New South Wales did incite AH (2) to commit a sexual offence; namely, to enter into an agreement with him to produce child abuse material by promising to give her a mobile phone if she would allow him to take photographs of her naked when she was 13 years old."
8. This is conduct made punishable by force of s 91A(2) Crimes Act 1900 in conjunction with s 80G Crimes Act 1900.
9. At the close of the Crown case there was no evidence called in the accused's case. The accused did not give evidence in the trial.
10. The jury, after addresses and my summing‑up, returned verdicts of guilty to count 1 to count 2 and to count 5. It is therefore my task now to determine the sentences that ought to be identified as appropriate for each of these allegations. It is my task to form my own view of the facts according to the evidence presented in the trial, consistent with the verdicts returned by the jury. I am not bound to make findings of fact that are more favourable to the offender, but those advanced in respect of misconduct alleged of him must be established to the criminal standard of beyond reasonable doubt in accordance with various authorities that are well known: Cheung v Regina (2001) 209 CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v The Queen (1995) 183 CLR 1; Regina v Isaacs (1997) 41 NSWLR 374.

PENALTIES

1. The maximum penalties to which the offender is now exposed are as follow.
2. For count 1, intentional sexual touching of AH (1), ten years' imprisonment. There is no standard non‑parole period specified for that offence.
3. For count 2, aggravated sexual intercourse of AH (1), 20 years' imprisonment with a standard non‑parole period of nine years' imprisonment.
4. For the offence of incite to commit a sexual offence, ten years' imprisonment.
5. The task at hand is to identify the facts upon which sentence is to be determined, and that involves consideration of the objective seriousness of the offending. In that regard, helpful passages are found in the Court of Criminal Appeal decision of Tepania v R [2018] NSWCCA 247 where Johnson J, beginning at para [110], articulated the various propositions arising from the legislation found in Part 4, Div. 1A, Crimes (Sentencing Procedure) Act 1999, identifying the matters that must be brought to account in standard non‑parole period offences for the assessment of objective seriousness and consideration of whether the standard non‑parole period should be applied in a particular case.
6. At para [110] his Honour confirmed that the provisions apply wherever a Court determines a sentence of imprisonment for a standard non‑parole period; the provisions must be read as a whole. The standard non‑parole period is a matter to be considered as part of a single‑stage process in determining the appropriate sentence without limiting matters that are otherwise required or permitted to be taken into account in the process of instinctive synthesis, discussed in decisions such as Markarian v The Queen [2005] HCA 25, specifically the judgement of McHugh J, also discussed in the decision Muldrock v The Queen [2011] HCA 39. The concept of the standard non‑parole period is an abstract one assessed upon the objective factors affecting the relative seriousness of the offence. The standard non‑parole period applies when the offence is found to be in the middle range of seriousness.
7. The process required of the Court involves a single stage approach assessing objective gravity and the subjective case presented on behalf of an offender, synthesising all relevant material, ultimately to come to a view as to the appropriate sentence, including an appropriate non‑parole period.
8. Pursuant to s 53B Crimes (Sentencing Procedure) Act 1999, I shall in due course impose an aggregate sentence; however, I am required to specify for the standard non‑parole period offence the notional non‑parole period I would have imposed had I been allocating and imposing a sentence for that offence otherwise. These provisions, as discussed by Johnson J, were amended to their present form after the decision in Muldrock v The Queen ibid, bringing to account the opinions of the High Court in that case.
9. The sentencing process blends of the concept of objective gravity or objective seriousness with the assessment of moral culpability of an offender. Thus, an offence might be objectively more serious or perhaps less serious, and in either case the court must also bring to account the extent of the offender's moral culpability in the commission of the misconduct. As Johnson J pointed out, the term, moral culpability, used in the various authorities and sentencing decisions, has involved a measure of flexibility, with a degree of overlap between the concept of objective seriousness determined upon objective factors affecting the relative seriousness of the offence and the concept of moral culpability, explaining, perhaps, the reasons why an offender might have engaged upon the misconduct alleged of him.
10. In this case there is no antecedent personal history that could explain why the offender might have engaged as he did with these victims. Although his father appears to have been an alcoholic and imposed a measure of psychological pressure upon him through his formative years, he does not advance any argument or submission, or any material upon which upon which it might be said that his decision to engage upon this misconduct can be attributed in any way to what might have been challenging circumstances brought by his father, a World War II veteran who ultimately was burdened with alcoholism.
11. The offender was in due course raised by his mother who survived to the age of 94, and although over the life that he has had, the offender has suffered one divorce, he is now a partner in what appears to be a strong marriage and has the strong support of his present wife and family members. This material is all forthcoming from a very helpful psychological assessment provided to the Court; I shall be called upon to discuss that in some greater detail when I deal with the offender's case.
12. I can indicate this point, though, that I have come to the view that the objective seriousness of these offences falls below mid‑range. It is always a matter of judgement as to where to place upon a scale of seriousness particularly misconduct, and minds will often differ as to the precise position upon which an offence might be placed in that hierarchy. But it seems to me that, bringing into account the matters that have been identified by the Crown and to which reference has been made by counsel on behalf of the offender, that I can comfortably come to the decision that these offences do fall below mid‑range of objective seriousness. I shall amplify the reasons for those decisions when I conclude my analysis of the facts.

PRE‑SENTENCE CUSTODY

1. The offender was denied bail from the point of arrest on 12 November 2019 but ultimately granted bail on 29 January 2020. Upon the return of the verdict of guilty, the Crown sought detention of the offender, which was unopposed, the concession made sensibly, in my view, that there was no real basis upon which the Court could be persuaded to grant bail, and that a custodial sentence was inevitable and the only available option upon the application of s 5 Crimes (Sentencing Procedure) Act 1999.
2. Thus, counting the days beginning on 12 November 2019 and concluding on 29 January 2020, there are 80 days to be brought to account as pre‑sentence custody, and taken back to before 6 April 2022, when bail was revoked, the commencement date for this sentence shall be 16 January 2022.

FACTS

1. The Crown helpfully provided a summary of factual findings drawing upon the evidence presented in the trial, including the JIRT interview with AH (2). I am satisfied that this summary is an accurate representation of the evidence that was led, and I have come to the view that I should find facts accordingly for the purposes of the determination of sentence.
2. There has been nothing said to me to challenge the accuracy of the information provided in this document.
3. The offender faced five counts; he did not give evidence in the trial; upon the return of the verdicts of guilty to counts 1, 2 and 5 respectively, the jury acquitted the accused of count 4, relating to AH (1).
4. The evidence adduced relevant to count 4, if in fact accepted, might well have supported a verdict of guilty, but my view is that the jury were correct in concluding that it was not possible to find beyond reasonable doubt that the offender committed the offence. It does not follow from that that there was no contact over the clothing as was described by the complainant. I am satisfied that the jury were correct in their decision to return a verdict of not guilty to that charge, because it could not be said that the evidence established beyond reasonable doubt a sexual purpose in the alleged touching.
5. The background of the offending is that the offender has been married to his present wife for some 25 years. She has two children, a girl, and a boy from a prior relationship.
6. AH (1) was born in 2008 and is the daughter of the offender's stepdaughter.
7. AH (2) was born in 2006 and is the daughter of the offender's stepson.
8. He is thus the non‑biological step‑grandfather of these victims who are in turn cousins.
9. As I noted, the evidence led in the trial began with that relevant to count 5 because it was that matter that was exposed first in time, and which ultimately led to the investigation of the misconduct alleged by AH (1).
10. The facts supported by the evidence given in respect of count 5, inciting the child to produce child abuse material, are as follow.
11. The offence occurred on 10 November 2019, a Sunday, when AH (2) was aged 13. About 11am the offender picked her up from her home. They drove to a car wash in Belmont. They there waited behind other vehicles to avail themselves of that service. As they waited, the offender asked her why she did not have her phone. She said that her mother had confiscated it. This was confirmed in evidence by her mother; it had been confiscated earlier in the week. The offender said, "Well, we can change that", but for him to buy her a new phone it would need to be fair and she would need to do what AH (1) does; that is, allow him to take nude photographs and be involved in massages after his wife went to sleep. Otherwise it was not possible for her to have a phone.
12. The offender told her he had given AH (1) rewards depending upon what she did, that no‑one knew about the rewards, and that AH (1) was not to tell anyone. AH (2) believed upon those representations that the offender had secretly rewarded AH (1) with an iPhone 8.
13. Later that day, AH (2) had access to the offender's phone and saw a recent photograph of AH (1) holding the iPhone 8. The offender allegedly told her that he took naked photos of AH (1) and stored them in his computer so that no‑one else could view them and massaged and touched her at night. He said this happened many times without AH (1) arguing and so he got her the phone. He said he would store photos of AH (2) in the same way. The conversation, according to AH (2), made her feel uncomfortable and sick.
14. After spending the day at the offender's home, where the offender's wife was also present, the offender drove AH (2) home. During the trip, he brought up the same topic. About 6pm they arrived outside the victim's home. Just before she alighted, he gave her an iPhone SE which he removed from the driver's side door. He told her he would give her this phone and would buy her a new one if she let him do things. She said, "no". He said, "I'm going to let you think about it" and gave her the phone. This phone belonged to his wife who did not use it. He arranged to meet AH (2) the following afternoon outside her high school in Warners Bay for her to return the phone to him and to confirm her decision.
15. That evening, the victim used the phone to contact a friend, RL; she told him what had happened. Her mother walked in whilst she was on the phone and became upset because AH (2) was not supposed to have a phone at that point. The AH (2) became emotional and "pretty hysterical". She eventually disclosed what her step‑grandfather had said and expressed concern about what the offender told her he had been doing with her cousin, AH (1). Thereupon her mother contacted the police and informed them about the allegations relating to AH (1). AH (2) participated in an interview the following day, 11 November 2019.
16. Evidence admitted as tendency evidence at the trial included allegations of uncharged conduct.
17. The Crown relied upon two earlier incidents later recalled by AH (2) to establish a tendency to have a particular state of mind; namely a sexual interest in his granddaughters, at the material times aged 8‑13 years.
18. The first incident was when AH (2) was in year 6, around 12 years of age. She was travelling from Belmont Hospital with the offender. He asked her, "Have you ever seen younger girls on the internet who were undressed?". She did not respond. This made her uncomfortable. The other occasion relied upon occurred in 2019, the same year in which the allegations arose and when AH (2) was 13. They were driving in Warners Bay. He asked her to send photographs of her coming out of the shower. She asked what he meant and asked, "In my new pyjamas?". The offender clarified with, "No, when you get out of the shower". This also made her feel uncomfortable.
19. The offending against AH (1) occurred on the one occasion.
20. The first count was intentional sexual touching of the child, ten years or older and under 16, and count 2 was aggravated sexual intercourse of a child over ten but under 14 years of age.
21. On 11 November 2019, AH (1)'s mother was contacted about 11am and asked to bring her daughter to the child abuse unit in Merewether. She picked up AH (1) from school around 2.30pm and they attended that location. There AH (1) participated in an interview with the Joint Investigation Response Team. As I noted previously, she initially denied any misconduct by the offender. By way of example, I am invited to answer 130 in that interview. The interview extended from some two hours. Her disclosures arose toward the end of it.
22. Context provided by AH (1) in this interview included that she had sleepovers at her grandparents' house about every fortnight; the last time sometime in October 2019. For Christmas 2018 the offender and his wife bought AH (1) a mobile phone, and between Christmas and AH (1)'s birthday in 2019 the offender approached AH (1)'s mother in relation to paying for the phone to be connected to a network as part of her Christmas present. AH (1)'s mother agreed to this.
23. Between January 2017 and January 2019 when the victim was either nine or ten, or ten or 11 and in year 4 or 5 at school, she was at the offender's house siting on the lounge watching a movie. The offender's wife was on a chair outside on the deck. The offender sat next to her and put his arm around her shoulders. He then touched her breasts beneath her clothing. This is the conduct found in count 1. He touched her vagina beneath her clothing. His fingers were moving a little bit and she could feel him touch both the inside and outside of her vagina. The victim said that she was uncomfortable and that it felt wrong. It was this conduct upon which count 2 was brought.
24. Conduct, admitted as tendency evidence in the trial, included a series of text messages between AH (1) and the offender, offered to establish that he tended to have a particular state of mind; namely, a sexual interest in his granddaughter, AH (1). These were downloaded from AH (1)'s phone and were sent between 1 February and 7 October 2019 when she was aged 11. These reveal that the offender proposed a coded text language. He shared with AH (1) that he used it to play a guessing game with her about what she was wearing, down to the detail of her underwear, and that he had ordered a new mobile phone for AH (1). He was purchasing in‑game currency for the online game, Roblox, for her use but instructed her to delete his messages about that topic. He downloaded the Minecraft game for her use and contacted her frequently encouraging her to come and visit him, telling her that she was his favourite girl.
25. During the arrest and investigation, on 12 November 2019, police attended the offender's home at Valentine. A search warrant was executed there and electronic items were seized. The offender was arrested and taken to Belmont Police Station. He participated in an electronically recorded interview. He conceded that he had given AH (2) his wife's mobile phone. He said he had prepared the phone to give it to her earlier that Sunday morning by placing it on charge. He admitted to having lied to the police during the search warrant about his knowledge of where the phone was located. His explanation was that he did so because his wife did not know where it was and he did not want her to know he had given it to AH (2) against her mother's wishes. He told the police that he had deleted the Snapchat and Messenger applications from the mobile phone the day before as he no longer wanted to use these "rubbish applications", as he described them. He admitted to ordinarily using these applications to communicate with the victims
26. He denied the allegations of sexual misconduct put to him in relation to both of his step‑granddaughters. The iPhone was seized. A Cellebrite download revealed that all his text messages had been deleted. The Cellebrite download did not locate any naked or inappropriate images of the step-granddaughters.
27. There was no further explanation before the Court regarding why he deleted that material from his iPhone; that is to say, the Snapchat and Messenger applications and the text messages. The fact that the Cellebrite download did not locate any naked or inappropriate images of the step-granddaughters is a matter of little significance in the assessment of the seriousness of this misconduct. One might draw inferences as to why he deleted these other items from the phone in terms that it was because of his concern about what might have been found on those recordings. The material, though, I do not bring to account for any such purpose. Ultimately, the assessment of this matter depends upon acceptance of the complainants as to truth and accuracy in the allegations they make against the offender.

VICTIM IMPACT STATEMENTS

1. Victim impact statements were presented to the Court on the occasion of the sentence proceedings. AH (1) had her statement read by her mother, as did AH (2). The submission made on behalf of the offender is that these documents do not provide a basis upon which one could conclude there has been substantial psychological harm suffered by these victims. I agree with that submission. I do not take these documents and their content into account in aggravation of the offending or the sentence that must be identified as appropriate for each of the charges.
2. The presentation of a victim impact statement has two purposes predominately. First, it gives the complainant the opportunity to put onto the record in the presence of the offender the extent of the impact of the misconduct upon them. It allows the victim to articulate the effect of what they have suffered, and at the same time it allows them to confront the offender with the burden that they have suffered because of the misconduct. Although it does not extend to substantial psychological harm in either case, the outcome for these victims is regrettably, upon the description given, nothing less than negative for them and something with which they will need to come to terms as they mature through into adulthood.
3. AH (2) provided a statement of one page. She speaks of life‑changing experiences and what she thought she might anticipate as positive life‑changing experiences as she grew to become an adult. Her challenges as a normal schoolgirl were what she expected in her life, but from November 2019 matters changed for her. The experience was one she did not choose, she said, but was one with which she would now be required to live for the balance of her life impacting upon trust, loss of her sense of herself, and the loss of relationships with her family, including her father. She wrote: "The view I carried for a long time was not just around losing my family if I brought the truth out, it was as much about how hurt I knew everyone I loved would be. I felt afraid and sad. When I did find the courage to open up, I was betrayed again by the family that I felt responsible for protecting."
4. It is the fact that not only is the conduct alleged of the offender significant for this victim, but, consequently, the fact that she has perhaps had the courage to disclose and act upon what occurred to her has been destructive of the family unit, to which I shall come with reference to other material before me.
5. The victim impact statement provided by AH (1) is less than half a page, but it includes, significantly, representations as to confusion arising from the trust that she had placed in the offender, and that she could not do anything about what had occurred. Her sleep was impacted and she felt obliged to keep secret these events from her parents. She continues: "Because I had to carry all those painful moments by myself, I felt so lonely, I felt frozen like I could not move. I was not able to relate to people my age because of all those secrets. When I finally told the police, I felt relieved, it was like heavy burden were lifted from my shoulders (sic). I did not feel alone anymore, people were there for me, so I did not have to it all by myself anymore (sic). After it came out, I was very anxious, upset and scared."
6. She feels better now that these matters have been exposed. She hopes other young people will not keep something such as this a secret as she had done, and she looks forward to healing, and is continuing to find herself after these events.

THE OFFENDER

1. The offender is 76 years of age this year. He has no prior antecedent record, and although good character loses some significance in the light of the nature of the conduct of which he has been found guilty, it is still a matter upon which he can rely in the assessment of the punishment that he must now face.
2. He is not only before the Court for the first time with a criminal offence; he is strongly supported in references that were tendered in his case from people who have known him for significant periods of time in his life. These include his brother‑in‑law of some 35 years, a retired executive director from Corrective Services, who is the offender's younger brother, and a reference provided by his son, 44 years of age. All these referees have spoken of the shock with which they received the news of these allegations and have represented unequivocally that the allegations are inconsistent of the person whom they know after their extended periods of association with him.
3. Before I come to the psychological assessment, I note that he does have some challenges medically.
4. Valentine Family Medical Practice provided a document. He has been attending this practice for some 15 years. He has been managed for a possible adhesive capsulitis, also known as a frozen shoulder. He was referred to an orthopaedic specialist for the review and management of that problem. He is said to have had deep vein thrombosis that led to ongoing prescription of anticoagulation medication. He has suffered shingles, which is an ongoing problem requiring appropriate topical medication. He suffers from an enlarged prostrate that requires monitoring by way of annual PSA blood tests. He has blood pressure controlled with medication. He has ongoing back issues from spurs growing on his joints with ongoing pain; future treatment that is likely to be required. An MRI of his lumbar spine in January 2014 reported a left L4‑L5 disc protrusion with compression of the left L5 nerve. He has ongoing kidney stone issues which have continued whilst in custody. He suffers a gastroesophageal reflux disorder causing indigestion and medication is likely to be required for that in due course. He also suffers from psoriasis requiring skin treatment, including moisturising and appropriate topical cream.
5. Normal aging issues, of which we unfortunately all become aware as time progresses, include impact upon memory, impact upon the capacity to concentrate, limited hearing, confusion in unfamiliar places, eyesight deterioration, including cataracts and macular degeneration, insecurity with balance and/or sleep. There is nothing offered regarding those conditions or others arising through age because this practice did not deal specifically with any of them, but it would be folly to ignore the fact that in the normal aging process some, if not all those conditions will arise.
6. We come now to the report prepared by the psychologist, Caroline Hare, written on 8 June 2022. It is noted that he maintains his innocence in relation to all matters upon which he is in custody. I accept the qualifications and experience of this expert and I note that her PHD thesis upon which she is presently engaged aims to explore protective factors that contribute to desistance from sexual re-offending in adult males convicted of sexual offences. She interviewed the offender by way of audio-visual link over 130 minutes. This was adequate for purpose, but the psychologist concedes that the assessment made is only as reliable as the information available at the time of reporting. There has been nothing advanced to suggest there has been any change to the information provided to the psychologist upon which this report has been prepared.
7. The report deals with his family and developmental history. He is the eldest of four children. His father died from alcohol related health issues when the offender was aged 16. His father was an ex‑serviceman who fought in World War 2. After his death, the family was supported financially by Legacy Australia, other than for the offender who was of an age where that assistance was not available. He was thus forced to leave school and gain employment to achieve independence in his mid‑teenage years. His father was a functioning alcoholic. Of concern was that he was employed to drive railway steam engines, and on occasions was so compromised through alcohol use that the offender accompanied him to work and performed the task of hand firing the steam engine while the stoker, who would normally perform that task, drove the train.
8. The relationship was complex, clearly. He is described as having both loved and hated his father and has never properly grieved from his father's death because of unresolved anger toward him. His mother continued but coped with difficulty, both emotionally and financially after the father's death. She died in 2017 at age 94.
9. Thus, his formative years were characterised by financial hardship and psychological abuse. He failed to excel at school because of the impact upon his opportunities in education wrought by his father's problems. This did not hold him back, though. He gained employment in the automotive industry. He worked as a sales representative. He established his own windscreen repair business, facilitated the setup of franchises, and then ultimately returned to the automotive windscreen company and continued as an employee there until his retirement in 2016.
10. He was never terminated from any employment. He was never subject of complaint or discipline. He had hobbies, continuing at the time of this assessment, including travel, painting and jet skiing, subject to his incarceration, of course. The impact of this prosecution has extended to the financial circumstances of his wife who was compelled to sell their home to fund the cost of the trial and related proceedings. He gained work within gaol in the textile workshop. His sexual history is discussed and does not require, for the purpose of this judgement, anything more than to remark he and his first wife, to whom children were born, broke down, and after the failure of that marriage he married his present wife. The first marriage was of 20 years. He maintained limited contact with his children for a couple of years after the marriage ended, but over time was able to reconnect and at the time of the present assessment they maintained supportive bonds. The first marriage was wrought with difficulty. Ultimately he embarked upon a relationship with his current wife and that has continued.
11. At para [16] the report refers to the proposition that his stepson, father of one of these complainants, disbelieves the allegations, and it is noted that the offending has split the family apart and that the offender and his wife no longer have contact with her daughter or either of the complainants, the wife's granddaughters. His stepson does not have any contact with his daughter, one of the complainants, following the allegations.
12. There is reference to his erectile function consistent with advancing age. There is no need for me to deal with that. Access to pornography online, which is not such as to involve any misconduct attracting criminal sanction, ultimately comes to the fact that he has emotional and appropriate support from his present wife.
13. The medical history is discussed. He suffered a broken leg around the age of 18 which left him without work for some months during which he received unemployment benefits, but he has otherwise been gainfully employed. He does drink to excess, according to this report, began drinking alcohol at 15 years of age, and prior to incarceration was consuming an average of ten standard drinks per day, which, on any view, is an enormous amount and more than is recommended by current Australian guidelines to reduce health risks from drinking alcohol. He, as I said, maintains his innocence.
14. He gave an explanation consistent with the defence that was advanced in the trial attributing the genesis of this problem with the fact that his step‑granddaughter was caught with a phone that she was not entitled to have, and when discovered she brought forth the allegation. This evolved into the conduct of the interview with the second complainant, the first misconduct in time in the chronology of offending, and, as I have said, it was argued that the disclosure of the misconduct brought by that complainant came after an extended interview conducted by the JIRT.
15. There is reference in para [29] to cached images of girls found on his laptop. He said that the complainant had used his laptop to enter chatrooms which was the source of the images. He advised he had never entered a chatroom for any purpose, so whatever was found on the computer, he denies any involvement in its acquisition.
16. He has the capacity to cope with his present circumstances, employing strategies to manage his emotions. He presented as adept at compartmentalising any distress. There was no history from clinical symptomology consistent with depression, anxiety, trauma response, psychosis, suicidality or obsessive-compulsive thoughts or behaviour. He has never sought any therapy. Sleep patterns have been positive at this point of his custodial circumstances. He has had some mildly elevated anxiousness associated with the forthcoming sentencing proceedings, but he presented as emotionally resilient.
17. He was assessed using the Depression Anxiety Stress Scale, 21 item, version DASS‑21, footnote 3 referred to in para [33] of the report. His responses scored within the normal range from each of the scales. He is assessed upon the static and dynamic factors as being a low risk of re-offending; in the case of the static, very low, and in the case of the dynamic, low, or routine risk. The limitations of those assessments are acknowledged, and this ultimately led to an opinion which included the proposition that his pursuit of his innocence might be seen to be a barrier to him accepting responsibility for the current offences arising from perhaps fear of losing the support of and connection with his family.
18. At para [42] the following is written as a hypothesis based upon the knowledge of risk factors for sexual offending identified within literature and the understanding of this case: "It is my opinion there is evidence of Mr F engaging in psychological coercion and grooming in the Crown case statement, and this is (sic) turn would have promoted the complainants to comply with Mr F's requests/actions. I believe that Mr F's rudimentary understanding of sexual consent and lack of insight into the power and imbalance within his relationships with the complainants could have contributed to him developing 'comfortable stories' that his actions were not harming the complainants, or that they were willing participants, which would have enabled him to overcome internal barriers to offending. In the presence of reduced physical intimacy within his marriage, Mr F could have been seeking alternative sexual outlets. Historically, within his first marriage he engaged in sexual encounters outside the marriage to meet his physical intimacy needs when the intimacy within the marriage deteriorated; however, it must be noted that on each occasion this was with adult females (twice with work colleagues and once at a brothel). Further, Mr F evidences a history of openness to sexual experimentation, albeit in the form of legal sexual activities (bondage and threesomes). Thus, it is possible he was experimenting with ways of meeting his sexual needs through the avenues available to him (an extramarital affair with a work colleague was no longer an option and he seemingly did not relish the experience at the brothel). The above explanations is a working hypothesis only."
19. Regardless of that hypothesis, it is said that he presents a low risk of re-offence and such as it might be is dependent upon victim accessibility. The opinion is that he would be unlikely to re-offend based upon the history that he has given, and in circumstances where he would have restricted access to children. Custodial circumstances will have a greater impact upon him because of his advancing age.
20. The working hypothesis advanced by the psychologist does not allow me to conclude that this is the explanation for the misconduct upon which he is said to have engaged. This said, the only view one could come to in my judgement is that the conduct proven to the satisfaction of the jury must have been in the pursuit of sexual gratification or at least stimulation, against these children, without any appropriate consideration of or regard for the consequences upon their wellbeing. Indeed, in the report there is found an attribution where he has acknowledged the significance of such misconduct upon children if it occurred.
21. The offender did not give evidence. There is no evidence of contrition or remorse. There is no evidence upon which I conclude that there are prospects for rehabilitation in the circumstances, though, I accept the opinion given by the psychologist that the risk of re-offence should be set at a low point.

CONSDERATION

1. The submissions made on behalf of the Crown provide the history of the proceedings, the particulars of the offences, and the ages of the children at the time they occurred. I am reminded of the general principles that are articulated by the appellate courts regarding conduct such as this. There is a strong message required to address both general deterrence and denunciation. This proposition extends back to the decision in R v Fisher (1989) 48 Crim R 442. In CR v R [2020] NSWCCA 289, the general sentencing principles applicable to offences under s 91G and 91H, Crimes Act 1900, included in part that general deterrence and denunciation are of paramount importance unless weight is to be given to the offender's good character.
2. The Crown assisted with the approach to assessment of the objective seriousness of the offending. In the conduct found in counts 1 and 2, one needs to consider the extent to which there was direct skin to skin genital contact, which, it is said, are critical matters for consideration; one considers the nature of the sexual intercourse, the subject of count 2, how the offences came to take place, the length of time over which they continued, the degree of force or coercion, if any, the use of threats or pressure, if any, the immediate apparent effect on the victim and the exploitation of the innocence of the victim, the age within the range contemplated by the description of the offence, the age difference between the offender and the victim, the question of authority, if it arises, and the duration of the offending which does not ordinarily decrease objective gravity, whereas extended duration will necessarily add to seriousness, such as asserted in the view expressed by Price J in R v Daley [2010] NSWCCA 223 48.
3. I am reminded of the impact of the abuse of trust and the position of children in a familial situation where they are at some disadvantage against sexual misconduct such as this by an adult male member of the family, and in circumstances where the children have a right to be protected from such molestation. The significance of that proposition found in R v Hudson (Unreported, NSWCCA, 30 July 1998) in the judgements of Sully and Ireland JJ, resonates in what occurred in this case with the children now part of what is a broken family, the consequence of misconduct upon which the offender is said to have engaged.
4. In the assessment of the offence charged in count 5, it is noted, as was said on behalf of the offender, that the gravamen of this offence is the incitement to engage upon the creation of child abuse material. The Crown advances the proposition that one must look to the intention to be gleaned from the circumstances established by the evidence, that a child was in fact to be used in the creation of this material, the nature and content of the material proposed, the age of the child at the time, there was no cruelty or physical harm, availability of images is not a relevant consideration because there were none provided, and the purpose the offender had. I agree with the submission made on behalf of the offender that the only conclusion the Court could come to is that this was for his own purpose, not for general distribution or dissemination. There was no question of payment. The offender would have been proximate to if not instrumental in the creation of the material.
5. I have considered the degree of planning, organisation and sophistication required in grooming the child for the purpose proposed and that the offender was acting alone.
6. The Crown submits, in respect of the first count, that the offence approaches mid‑range of objective gravity for offences of this type. The Crown points to the fact that this occurred in the home of the offender. The victim was sleeping over with the permission of her parents. Her grandmother was located a short distance away on the outside deck. She was the step‑granddaughter of the offender, relatively young in the age range contemplated by the provision specifying ten to 16 years. She was aged nine, ten or 11 at the time. At the time the offender was aged 72, highlighting the age difference. The character of the intentional touching was the direct touching of her breast under her clothing. There is no evidence of duration, but it was sufficient to leave her feeling uncomfortable.
7. As to matters of aggravation, the Crown identifies how this was an abuse of the position of trust or authority; which is not an element of the offence and thus s 21A(2)(k), Crimes (Sentencing Procedure) Act 1999 is engaged. This was in the offender's home where the victim was entitled to feel safe, thus engaging s 21A(2)(eb) of the Act.
8. The offence charged in count 2 is less than mid‑range objective seriousness for offences of type. Once again, the age of the complainant and the age of the offender are identified. The sexual assault involved the digital penetration to some extent of the genitalia of the victim. He had his arm around her shoulder, touching her breasts under her clothing with one hand whilst he used his other hand inside her pants; she could feel his fingers moving a little bit, both inside and outside of her vagina. There is no evidence of duration. The one aggravating factor the Crown pointed to for this offence is that this was in the offender's home, once again engaging s 21A(2)(eb) of the Act. The offence of which he has been found guilty includes as an element that she was under his authority at the time. I am reminded of what was said in the Court of Criminal Appeal in Beavis v R [2018] NSWCCA 248 where the sentencing judge was found to be in error by not adequately discerning the overlap between the concept of being within the appellant's authority and the conduct constituting a breach of trust. I refer to para [255] of that judgement. The error was succinctly stated to be that the sentencing judge treated the breach of trust as an aggravating factor in the offence, when it was a matter of substance that such a breach was an element of the offence. The Crown does not advance the contrary and I accept that as applicable in this case.
9. Regarding the offence in count 5, the Crown places the offence below mid‑range for the reasons articulated. In this case, abuse of trust is an aggravating factor: s 21A(2)(k). It is not an element of the offence charged.
10. An intensive corrections order is not available for this type of offending, and, moreover, from the verdicts delivered by the jury, is not an option that should be entertained, in my view, upon the application of s 5 Crimes (Sentencing Procedure) Act 1999.
11. The written submissions provided by counsel on behalf of the offender do not to any significant extent contest the propositions I have gleaned from those provided by the Crown. These place the offending below mid‑range in each case. I am cautioned against the breach of the De Simoni principle: R v De Simoni [1981] 147 CLR 383, by ensuring that I do not punish the offender for the uncharged acts and context events upon which the Crown relied during the trial.
12. I agree with the submission made that the contents of the victim impact statements do not extend to substantial emotional harm. I note that prior good character can be considered. It could not be said, and I agree with this proposition, that his good character was of assistance in the commission of the offences: s 21A(5B) Crimes (Sentencing Procedure) Act 1999. Thus, although, weight to be attributed to good character is ameliorated by reason of the nature of this conduct, it is a matter the offender can have brought to account at least to a limited extent.
13. The purposes of a sentencing articulated in s 3A Crimes (Sentencing Procedure) Act, are all engaged here.
14. There must be adequate punishment. There must be specific and general deterrence and appropriate denunciation. The offender must be made accountable for his actions. I am not so concerned about protection of the community from the offender in the circumstance of his advancing age and the time he will be required to spend in custody before he is next released to the community. The sentence in each case must recognise the harm done to each victim and to the community, and behaviour such as this is abhorrent and it must be denounced.

THE IMPOSITION OF SENTENCE

1. I previously convicted the offender for it was necessary to allow the presentation of the victim impact statements.
2. I have brought to account all the matters to which I have alluded, including the history provided by way of the psychologist's report, the medical report from the general practice, and the character references. The offender did not give evidence either in the trial or in the sentence proceedings, but the quality of that psychologist's report, I must say, was such that I am confident I can rely upon the opinions offered, bearing in mind, as was acknowledged by the psychologist, that one must consider the value of the opinions in light of the representations by the offender in circumstances in which one cannot accept his denial of the misconduct.
3. These cases in every instance involve tragic circumstances for a family, extending beyond the mere punishment that the offender must face and the impact upon the victims, as is demonstrated here in the destruction of the family unit, both immediate and extended. There can be no discount applied for utility; there was no plea of guilty. There can be no amelioration of the assessment of sentence because of the demonstrated contrition and remorse because there is none, and thus, I must announce the sentences I have identified as appropriate.
4. For the offence charged in count 1, a sentence of 2 years and 6 months, upon the synthesis of the material before me, objective and subjective.
5. For the offence of aggravated sexual intercourse in count 2, I have identified as appropriate a sentence of imprisonment of 4 years, including a non‑parole period of 2 years.
6. For the offence of incitement to commit a sexual offence, count 5, I have identified as appropriate a sentence of imprisonment of 2 years and 3 months.
7. I have not specified non‑parole periods for counts 1 and 5 for it is unnecessary. I am required to identify what would have been a non‑parole period for the standard non‑parole period offence.
8. I specify an aggregate sentence of 5 years and 6 months that commences on 16 January 2022. Upon the finding of special circumstances, I specify a non‑parole period of 3 years to expire on 15 January 2025, and the balance of term to expire on 15 July 2027.
9. The special circumstances are that the offender is 76 years of age. He has impaired physical health, although he is reasonably competent medically at this stage of his life, notwithstanding his age. Regrettably, though, from this point on, as with all of us, deterioration will continue. This is his first and only time to serve a custodial sentence and he will need an appropriate period for reintegration back into the community once he has completed the custodial component of the sentence. He will be released to parole on 15 January 2025 in accordance with whatever decision is made by the parole authority at that time.
10. The sentences were explained to the offender.
11. The parties were permitted time to settle the terms of an apprehended violence order mandated in respect of the complainant AH (1).
12. Exhibits to remain on file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2022