R v PG

The victim ID

1. The offender (born 9 March 1946) is the maternal grandfather of the victim ID (born 3 January 2011).
2. In the year prior to the offending ID's parents separated, following which the victim and her younger brother began spending more time with the offender. He would assist in regularly caring for the children after school.
3. On an occasion between January and December 2021, the offender collected ID and her brother from school before returning them to his home. After some time, ID told the offender that she was bored following which she sat on the offender's lap, and they were alone together. The offender proceeded to kiss ID on her lips, neck, and breast area (Sequence 2).The offender then removed ID's school uniform and underwear. He proceeded to "kiss" ID's vagina several times (Sequence 1) before inserting his index finger into her vagina (Sequence 3). This continued for a short time before the offender re-dressed ID.
4. On another occasion during the same period ID was at the offender's home with her brother after the offender had collected them from school. During a game of hide and seek ID hid between the desk and chair in the computer room. The offender found her, picked up by her legs and kissed her bottom. The offender then placed ID on the bed and took her school uniform and underwear off before kissing the victim on the lips, neck, breast, and stomach area (Sequence 4). The offender then held onto ID's knees before kissing the inside of her vagina (Sequence 5). This continued for a short period before the offender inserted his index finger and a second finger inside ID's vagina (Sequence 6). This made the victim feel very uncomfortable and it hurt a lot. It continued for a short period after which the offender re-dressed ID.
5. This offending occurred on more than the two occasions identified, although ID is unable to particularise any specific incidents that occurred. Over the time of the offending the offender would give ID chocolates or treats from a yellow tub in his kitchen after committing the act. The offender treated ID differently to her younger brother and gave her more chocolates and treats. After the first occasion it occurred the offender told ID not to tell anyone.
6. In early December 2021, ID's separated parents put their house on the market. Although ID's father had already left the premises, her mother planned on moving in with the offender temporarily before finding longer term accommodation. When ID's mother told her that it was proposed they would move in with the offender she became angry and snapped saying "I hate Papa". ID initially refused to tell her mother why she felt that way although eventually she agreed to write the reason on a piece of paper. The message was as follows: - "Papa he does things to me".
7. A small picture of a sad face was also on the message with an arrow pointing to the picture with the words "Me".
8. In response to ID's mother asking her what she meant, ID disclosed that the offender had touched her. When pressed, ID indicated that she was touched over the breast and chest area, neck, vagina and bottom. ID said that she was scared to say anything as she did not want to get into trouble or for her brother or mother to get into trouble. ID further told her mother that she would play around with the offender before he would take her clothes off and kiss her vagina as well as touching her vagina. ID subsequently told her father that the offender had been touching and kissing her on the chest, belly, hips and buttocks. She confirmed that the touching occurred under her clothing.
9. On 12 and 16 December 2021, ID participated in recorded interviews with police. Police thereafter obtained a Surveillance Device Warrant and at about 4:00 pm on 16 December 2021 the offender said the following to ID's mother in a recorded phone call: - 1. "Well, I, I touched her little boobies, OK." 2. "I don't know. She said that, uh, I was just cuddling her one day and, you know, I, I touched her boobies, like, so it, you know, and she seemed to be, you know, what can I say it, she seemed to be, she, I wouldn't say she liked it, but, um, she was, um, um, pushing my hands, you know, rub it, uh - - - putting my hands to rub, to rub her, no, no, to rub her, 'em." 3. "…I just kissed and cuddled her a lot, that's all." 4. "I kissed her tummy a lot, OK, as well." 5. "That's it, I kissed her, I kissed her, uh, uh, on her cheeks, I kissed her neck, and I kissed her, uh." 6. "And I kiss, and as I said, she, she seemed to enjoy, you know, the kisses, so it was just, uh, a little thing, OK, we'll just kiss on, like, you know, it never, it wasn't a big deal, like you know" 7. "I'm sorry, darl. I really am." 8. "OK, I'm sorry, darl. OK." 9. When asked if he had touched ID inappropriately, the offender said "No. This would… Um, yeah, I suppose that's a possibility to… Yeah, yeah, I suppose there's a little bit of that, yeah, little bit odd."
10. Later that day the offender was arrested and gave police permission to conduct a video recorded walk through the house. Police observed a yellow tub in the kitchen which contained chocolates. The offender confirmed to police that he gave his grandchildren chocolates from the yellow container.
11. The offender declined to participate in an electronically recorded interview with police.

The victim EL

1. The offender is EL's (born 2 July 1985) maternal uncle.
2. When the victim was 6 or 7 years of age, the offender moved into the home she shared with her mother and younger brother. The offender regularly called EL into his room. On occasions, he would shut the venetian blinds in the afternoon when they were in the room together alone and would tell her "come sit next to me".
3. When the victim was aged between 7 and 9, the offender would call her regularly into his work shed, shut the doors slightly, sit her on a sawhorse and kiss her upper torso and stomach area blowing "raspberries". On one occasion, whilst in the shed, the offender had EL agree to give him a "peck kiss" and he kissed her on the stomach and torso between her ribs and hip area. As this occurred, he adjusted his genitals at the front of his pants. The offender then told the victim that they would do that inside next time because the sawhorse had been awkward and in an uncomfortable position. This confused EL and made her feel uncomfortable.
4. EL and the offender made agreements for things that they would do to each other in exchange for receiving a benefit such as buying her McDonald's. There were various codes as follows: - 1. "Beardy beardy" - the offender rubbed his face on EL's body. 2. "Raspberries" - the offender blew kisses on EL's body. 3. "Kiss" - the offender kissed EL's lips, chest, stomach below her bikini line. 4. "Peck" - a quick face or body kiss. 5. "Tickle" - tickle on the body whilst EL was younger and in public. As she got older, and they were in private it involved him tracing his hand over her body in a 'caressing way'. 6. "Cuddle" - this extended sometimes to EL straddling the offender and him holding and rocking her which meant she felt his "private parts" touching her private parts/groin.
5. The offender would encourage EL to participate in these acts as part of a "deal". On one occasion the offender propositioned EL that he would give her "one beardy beardy, a tickle and 2 kisses" in exchange for which she would get McDonald's. EL refused, to which the offender replied, "you're a bad sister, now your brother won't get any McDonald's". On other occasions when EL would ask the offender to stop, he would say "a deals a deal" and continue to finish the act by either restraining EL or manipulating her to let him finish the acts.

Sequence 4 - Aggravated indecent assault - victim under the age of 16 years

1. When EL was between 7 and 9 years of age, the offender drove them both to a car park where they waited to pick someone up. EL was wearing a school dress and was sitting in the front passenger seat. The offender locked the doors, lent over the handbrake, tried to kiss EL and blow raspberries on her stomach but was unable to do so due to the handbrake being in the way. The offender pulled EL onto his lap so she was facing him and rocked her. The offender was adjusting his groin area and EL felt something dig into her pubic area. The offender then turned EL around and she pretended she was driving.
2. When EL was between 8 and 9 years of age, the family moved to another address. EL was relieved on moving, thinking that the offender would not be living with them, but he did.

Sequence 8 - Aggravated indecent assault - victim under authority

1. On one occasion when EL was between the ages of 10 to 12, she was in the offender's bedroom. She sat on the offender's lap with her legs straddled around him following which the offender began rocking his body back and forward and the victim felt "something hard poking her groin area" (Sequence 8). The offender then placed his hand down his shorts and adjusted his genital area as a result of which EL could see that he had an erection.
2. This type of incident occurred many times. On a further occasion which EL could not particularise, the offender stood in the hallway in front of EL and adjusted his groin area, moving his erect penis up to the waistband of his shorts. EL could see the top of his erect penis. EL was shocked and the offender copied the victim's shock.

Sequence 6 - Aggravated indecent assault - victim under the age of 16 years

1. On a separate occasion when EL was between 10 and 12 years of age, and whilst in the car with the offender, he locked the car and would not let EL out. He pursed and puckered his lips and then tapped his fingers on his lips gesturing for EL to kiss him. Instead, the offender kissed EL "hard on the lips" before letting her leave the vehicle (Sequence 6). On a further occasion, when EL was about 10 or 12 years of age, she saw the offender standing in the doorway to her bedroom and saw a "bulge in his pants". The offender placed his hand on his groin area on the outside of his clothing and moved his bulge up his pants as if he was tucking his penis into the waistband of his clothing.

Sequence 11 - Indecent assault with person under 16 years

1. On a further occasion, when EL was between 10 and 12 years of age, she was alone in the car with the offender. The offender pulled the vehicle over in front of a friend's house, pointed to his lips, indicating to EL that she owed him a kiss for giving her a lift. EL kissed the offender on the lips and got out of the car (Sequence 11). She was worried that her friend could have come down in front of the house and have seen what had occurred.

Sequence 7 - Indecent assault with person under 16 years

1. When EL was between 10 and 12 years of age, whilst in the offenders' room they had agreed to one kiss and other acts. The offender kissed EL hard on the lips for an extended period. When EL began to pull back the offender held her on the head with his hand and used his lips to pry her lips open, following which he slipped his tongue into her mouth (Sequence 7). EL was in shock and the offender mirrored the victim's response by also acting shocked.

Sequence 10 - Sexual intercourse with child between 10 and 16 years

1. On a further occasion EL was lying horizontally on the offender's bed towards the end of it when the offender knelt on the floor. The offender pulled EL's underwear back to reveal her pubic area and kissed her on the top of her vagina, on her mons pubis, quickly and swiftly (Sequence 10). EL was paralysed by fear and tried to clench her legs and keep her thighs together before she left in shock. Around this time, on another occasion that EL could not particularise, she was lying towards the end of the offender's bed, again horizontally, when the offender performed a long raspberry kiss on the top of her underwear on her vagina area. On other further occasions, which EL could not particularise, she was in the offender's bedroom when he invited her to come in and see something on his computer. EL sat on the offender's lap and he then showed her pornographic images on his computer.

Sequence 9 - Aggravated indecent assault - victim under authority

1. Towards the end of year 6 or start of year 7, EL was wearing white underwear with an orange trim and logo on the front, and she was sitting in the offender's room laying on his bed. The offender peeled back her underwear and kissed her hips and groin around the bikini line making EL feel uncomfortable. The last incident occurred when the victim was aged 12 or 13. The offender and EL were in the offender's bedroom when he told EL that he was "getting aroused". This caused EL to panic and she walked out of his room and stood near a phone between the kitchen and the sunroom before saying words to the effect of "you are sexually abusing me… I wanted it to stop, you have to stop… I will tell mum or the Police". EL's hand was pointing at the home phone and her whole body was shaking. Around this time EL's mother had a conversation with her and explained to her what it meant to be a "prick tease". She said to EL: - "Peter feels like you are teasing him. Peter has no sexual outlet. You shouldn't be wearing singlets around the house anymore as Peter is sexually frustrated by your appearance."
2. When EL was in year 8 or 9 the offender moved out of her home. EL and her mum helped the offender move. During this time EL and her mother were laying on his bed. The offender stood in the doorway and said, "I guess this is the only time I'll have you in my bed". Following this the offender and EL did not see much of each other.
3. In 2016, after EL had had her first child, her mother said that she was coming to visit her and the new baby with the offender. EL told her mother that the offender was not allowed to come and see her child. EL had not seen the offender for about 8 years and disclosed to her mother that the offender had assaulted her as a child.
4. On 30 October 2022, EL attended Blacktown Police Station and provided a statement to the police. The offender was arrested and charged by police on 31 January 2023.

EL

1. On the sentence hearing EL read out a prepared victim impact statement. It was delivered with extraordinary bravery in the offender's presence. Understandably, EL struggled at times to hold her composure, and apart from her words, EL's demeanour during the reading of her statement demonstrated the devastating impact the offending has had.
2. Admirably, EL opened her statement with an acknowledgement of the offender's admission in respect of the offences and his acceptance of responsibility. EL referred to living with embarrassment and shame, blaming herself by feeling she must have agreed in some way. She had felt a full range of emotion over the years, although in more recent times she had feelings of anger, depression and had been in a general state of grief. The offending had interfered with her self-development, and she had had difficulty forming a fully developed sense of self.
3. Sadly, becoming a parent fuelled the psychological effect of the offending. EL struggled when she became pregnant with her first-born daughter, experiencing turmoil, hesitancy, anguish, and an overwhelming responsibility as the mother of a young girl. This resulted in overprotective and understandable paranoia.
4. EL described living with the torment that if only she had spoken up earlier she could have prevented the offender harming others. However, she was concerned that doing so would cause disruption and damage to the family. She expressed sadness, anxiety, and grief, and described having a "broken heart" for the other victim of the offender's conduct. EL described feeling more overwhelmed and highly strung given the disclosure, had gained weight, and increased her alcohol intake. She has now been diagnosed with anxiety, depression, and PTSD, for which she is seeking treatment. EL also felt in recent times that she has not been "fully present", and the offending had consumed her life, as a result of which she was less patient and ill tempered. It has also impacted on the relationship with her spouse.
5. EL's disclosure had led to an estrangement from her mother (the offenders' sister) and she had "tightened up" her social circle. EL left her previous workplace due to the sheer number of senior male colleagues/supervisors and, in her present employment, had been unable to pursue the opportunity of working an additional day.
6. EL had experienced sexual difficulties in her relationships in circumstances where, during her formative years, her encounters with the offender were unwanted. Sexual experiences had at times led to distressing, disruptive and uncomfortable flashbacks. Ultimately EL described the offender taking away a right to a safe, trusting, and carefree childhood. Tragically, she did not feel safe even in her own home.
7. Admirably EL concludes by saying that she did not wish the offender ill will and that she hoped he was kept safe and found peace for himself in his golden years.

ID

1. ID's mother read a victim impact statement prepared by her and her husband, as well as verbatim notes written by ID's counsellor. She too demonstrated extraordinary bravery and strength reading the statements in the presence of the offender.
2. 9 ID describes a recurring nightmare in which the offender is trying to lure her in with a bucket of honey. She also experiences other nightmares, following which she wakes up scared and terrified. As a result she curls up in a ball and tries to go back to sleep. At times the dream continues, whereas on other occasions she attempts to cry herself to sleep. ID has fears that the offender would break out of jail and return to her home or school where he would commit acts on her or her friends or other fellow students. When trying to sleep she experiences adult thoughts including those about adults having sex. She experiences similar thoughts in respect to her teachers and describes her mind as "really weird". ID has difficulties coping with the fact that she is not able to tell her friends or her brother about what has happened.
3. At times when she sees herself in the mirror whilst in the shower naked, she sees the offender doing the same things to her. ID is aware that similar things happened to another relative and that the relative is feeling guilty because she did not say anything which could have prevented further harm. ID feels scared and does not want it to happen again. It is for this reason that she states that she does not want to date anyone for a long time. She is scared for her friends who are presently dating.
4. ID has also told her treating psychologist that she has lost friends, confidence in herself, has stopped smiling as much, and started putting on "a fake smile". She does not enjoy life as much as she used to, and she finds it difficult talking to others, or even answering questions in class. She feels that she cannot achieve anything in life, is distracted easily by her thoughts, and is worried as to what the offender might again do to her or other people.
5. ID's parents spoke of ID feeling scared, frightened, a lack of confidence and an inability to trust. She experiences multiple nightmares during the week, and the horror and fear she experiences is intense. She needs to know that the house is locked and secure and must be constantly reassured that she is safe. ID experiences difficulties forming friendships. She has considerable anxiety and fears about her future, including romantic relationships. ID feels that she must hide her true self and look happy when she is not.
6. Her parents observed ID to experience difficulties forming friendships and relating to her peers. She was once a vivacious, confident, and outgoing girl who would happily participate in numerous recreational activities with her family. However, she lost confidence and struggled at school despite the encouragement of her parents. She went from a confident fun-loving child to one that was constantly upset and emotionally unstable. Her parents have observed a loss of confidence with her water-based activities which she has now abandoned, and that she has been "broken" as a result. As a family the events have changed all of them. ID's parents are concerned about her future and the risk of being subjected to future comments arising from her history. ID can no longer have honest relationships with her friends or even her brother, and she feels particularly vulnerable. Her paternal grandfather is concerned that if the information was in the public he would be mistakenly identified as the offender in circumstances where he is a very big part of ID's life. There has been a marked improvement in ID's confidence since moving locations and schools, although she will continue to need further psychological support into the future.

Report of Kris North - Forensic Psychologist

1. The offender was assessed by Ms North by way of audio-visual link on 8 September 2023 for the purpose of providing a report. The psychologist had available the agreed facts on sentence.
2. The offender was born in Scotland as the fourth of eight children. Whilst his family was poor, he described a stable upbringing and shared a close relationship with both parents and siblings. He attended primary and secondary school in Scotland before leaving at the age of 15 and thereafter completing an apprenticeship in joinery. He was employed as a carpenter until retiring in 2015.
3. The offender was married to his former wife for 20 years and they had two children now aged in their late 40s. The separation was described as amicable. He indicated that he had a strained relationship with his son, who has been living overseas for up to 20 years. He shared a close relationship with his daughter, however has had no contact since being charged with the offences.
4. The offender denied any history of illicit drug use or any difficulties with alcohol. He had never been assessed or diagnosed with any mental health issues. The offender had two sexual partners in his lifetime including his ex-wife. He admitted having viewed pornography online as an adult although denied viewing any deviant content or pornography depicting children. He suffered from high blood pressure and had suffered a heart attack in 2021, having been given the incorrect medication whilst in custody.
5. On assessment the offender was cooperative and there was no indication of any mood, perceptual, sensory, or thought disturbances. He denied any history of suicidal or other self-harming behaviours. Testing revealed scores in the normal range for depression, anxiety, and stress. On the STATIC - 99R test the offender was assessed as posing a level I, Very Low Risk for sexual recidivism. Specifically, the ratings indicated a risk of 2.8% over the next five years for any type of sexual recidivism. On the STABLE - 2007 test the offender was in the moderate risk range based on a review of the dynamic risk factors.
6. The psychologist noted that the offender denied any history of inappropriate sexual behaviours and had first engaged in sex with his former partner in his early 20s. There was no history of any preoccupation with sex, reporting two sexual partners. Whilst the offender generally accepted the agreed facts, he was unable to identify his motivation for engaging in the offences. He indicated that his behaviour may have started as playful in nature although escalated over time. The psychologist observed that the initial set of offences occurred in the period following his marriage breakdown and as such issues of loneliness and a need for emotional connection may have contributed to his offending. However, it was acknowledged that the presence of deviant sexual interests was identified based upon the ages of the victims at the time of the incidents. Given their ages, the assessment indicated, self-evidently, the presence of paedophilic interests.
7. Whilst demonstrating a low level of insight into his motivation for his offending behaviours, the offender accepted they should never have happened and accepted responsibility for his behaviour. The assessed risk level did not indicate a need for offence specific treatment, and it was likely he would be found ineligible for offence specific treatment programs within the custodial setting, given these prioritise higher risk offenders. Ultimately a diagnosis of paedophilic disorder non-exclusive type was made. In respect to the treatment recommendations, it was considered appropriate that the offender engage in treatment with a psychologist in relation to improving his understanding of the offences, and addressing risk factors related to his feeling of loneliness. In the event the offender was unable to have the opportunity to engage in treatment in custody it was recommended that he engage in such treatment upon his release.

Crown submissions

1. The Crown conceded that given the offenders early plea of guilty he was entitled to a discount of 25% in accordance with s 25(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (CSPA). The offender had been remanded in custody in respect to the offences committed against ID since his arrest on 16 December 2021.
2. It was submitted that the Court would find two aggravating factors in accordance with s 21A of the CSPA in that the offences committed against ID were committed in the offender's home whilst caring for her. In respect to the four offences committed against EL, those offences occurred in the victim's home where the offender was also living. Secondly, in respect to the offences committed against EL, the offender abused his position of trust or authority, noting that none of the Sequences had that aspect as an element of the offences, unlike the offences committed against ID.
3. In respect to the Form 1 matters it was submitted they would serve to otherwise increase the appropriate penalty to be imposed in respect to those offences. The facts and circumstances of the acts on the Form 1 placed the substantial offences in context and demonstrated the vulnerability of the victims through the ongoing offending. It was contended that the seriousness of the offences on the Form 1 would have the effect of adding a modest increase to the sentences to be imposed for the principal offences.
4. Whilst the Crown acknowledged that the offender had no criminal record, this needed to be placed in context. Whilst there was no evidence of further offending between the two victims, this did not result in a finding that there was no such offending. Given the absence of evidence, it was contended that the Court could not sentence on the basis that the offending conduct had continued or alternatively it had ceased: Richards v R [2023] NSWCCA 107 at [83] - [85].
5. The Crown noted the relevant authorities in which the sentencing courts have recognised the ongoing and significant harm done to children who are sexually abused. Further, the relevant authorities recognise the role of sentencing courts in respect of such offences are to give primacy to general deterrence. The Crown referred to the observations of Fagan J in TO v R [2017] NSWCCA 12 where it was said that the Courts have recognised significant variation in the degree of objective seriousness which may be exhibited from one instance to another in respect to offending contrary to s 66A of the Crimes Act 1900.
6. The Crown contended that the evidence established that both victims were very young girls exploited in familial situations. Further, the periods of abuse were contextualised and enabled by, and subject to, grooming, manipulation, and inducement. The Court would note the significant age difference between the respective victims and the offender and the relationship in respect thereto. The Crown referred to s 25AA of the CSPA in respect to sentencing in accordance with current sentencing patterns and practices and was to have regard to the trauma arising from the sexual abuse of children as it is currently understood.
7. It was contended that weight should be given to the fact that the offending against the victims were not isolated offences and that this was a material consideration in sentencing. The Crown further contended that the offender's sentence should not be mitigated by the delay in the prosecution arising from the offences committed against EL.
8. The Crown noted that there was no evidence, other than the plea of guilty, of any demonstration of remorse or contrition. The Court was reminded of the purposes of sentencing pursuant to s 3A of the CSPA, including general and specific deterrence, and that the Court should denounce the offenders conduct and impose a stern penalty. Ultimately it was submitted that the offender's moral culpability was high.
9. In imposing any aggregate term of imprisonment there would need to be a degree of accumulation between any indicative sentences to arrive at a sentence that reflected the totality of the offending. It was submitted that this was a most serious example of predatory sexual offending against children in which multiple offences were committed. A significant sentence of imprisonment should therefore be imposed.
10. As for a finding of special circumstances, it was submitted that there must exist significant positive signs demonstrating that the offender, if allowed a longer period of parole, was likely to be successful in respect to any rehabilitation, rather than a mere possibility. In any event, given the Court was likely to impose a lengthy sentence, the offender would have the benefit of an extensive period of time on parole, even if the standard ratio was to be imposed.
11. In oral submissions the Crown referred to the victim impact statements which demonstrated that there had been serious and long-standing effects on each of the victims. The Crown emphasised the offender's conduct which involved significant level of grooming and manipulation.

Offender's submissions

1. Whilst acknowledging that no other sentence other than a lengthy term of imprisonment was appropriate, it was noted that the offender was entitled to a 25% discount due to the timing of the plea. It was contended that the Court would make a finding of special circumstances given it was the offender's first time in custody, his status as a sex offender in custody, and the prospects of rehabilitation. In respect to the last of these, Counsel referred to the psychologist's report that the offender was willing to engage in treatment to improve his level of insight and reduce the risk of reoffending. Further, the fact that the offender suffered a heart attack whilst on remand, due to incorrect medication, was a form of extra curial punishment, albeit limited.
2. In respect to the prospects of rehabilitation, Counsel noted the findings of the psychologist as to a low risk of reoffending, and that the offences earlier in time took place shortly after a relationship breakdown, and may have been a way of seeking emotional connection.
3. As to remorse it was submitted that the plea of guilty reflected an acceptance by the offender of responsibility for his actions. Further the plea had obviated the need for the victims to give evidence and could be seen as a sign of remorse. Additionally, the offender's responses to ID's mother in the pretext call was evidence of remorse and would be considered in mitigation.
4. Counsel referred to the contents of the report of the psychologist, including the fact that the offender had been assessed at a low risk of reoffending. Whilst no friends were prepared to provide references in support of the offender, the objective evidence demonstrated that he was otherwise a productive member of the community during his life.
5. As to objective seriousness, it was contended that the relevant factors included that the acts posed no risk of the victims contracting diseases, imposed a limited risk of serious injury, and the offences were brief in nature. Further there were no threats made to the victims to keep quiet. In contending that the offences fell below the mid-range, whilst the offences were serious, they were less so than penile vaginal, forced fellatio or offences involving the threat or use of violence. Ultimately it was conceded that the principle of totality loomed large, and that in imposing an aggregate sentence there would be a partial accumulation of the indicative sentences.
6. In oral submissions Counsel again contended that the primary issue related to the finding of special circumstances where there was a small risk of reoffending, the offender was of an advanced age, and that given he would be closely monitored in the community the risk of reoffending would be low. Further it was the offenders first time in custody. Counsel conceded that whilst the psychologists report was not the subject of any challenge, it was open to the Court to objectively consider the psychologist's opinion that the offender was assessed as a low risk of reoffending. Whilst it was conceded there was an absence of expressed remorse, or an acknowledgement of the harm to the victim's, the offender's early plea was some evidence of remorse.

Consideration

1. In passing sentence on the offender, it is necessary to consider the purposes of sentencing as provided in s 3A of the CSPA including ensuring the offender is adequately punished, specific and general deterrence, protection of the community, promotion of rehabilitation of the offender, making the offender accountable for his actions, denunciation of his conduct and to recognise the harm done to the victims and the community.
2. In assessing the objective seriousness of the various offences, I am mindful of the fact that some forms of sexual activity may be considered more serious than others, whilst taking into account the context in which the offending occurred: R v PGM [2008] NSWCCA 172 at [26]; TO v R [2017] NSWCCA 12 at [244].
3. ID was aged 10 at the time the offences were committed against her, being the bottom end of the prescribed age range for the offences for which the offender is to be sentenced. The offender was aged 74 or 75 years. ID had been placed in the offender's care in circumstances where he would collect the victim and her brother from school and return with them to his home. The offender, being ID's maternal grandfather, had the trust placed in him by his daughter to care for ID and her younger brother.
4. In respect to each of the offences, when considered individually, they were part of repeated abuse which occurred on more than the two occasions that are the subject of this sentence, although the victim was unable to particularise any further specific incidences. The offender would give the victim chocolates or treats after committing the acts and would generally give her more chocolates or treats than her younger brother. The offending clearly involved a degree manipulation directed towards an impressionable and vulnerable young girl.
5. Immediately prior to committing the acts that are subject of Sequences 1 and 3, the victim sat on the offender's lap, who then began kissing her on the lips, neck and breast area (Sequence 2 on the Form 1). In assessing the objective seriousness, the offence on the Form 1 places the substantive offence in context: LN v R [2020] NSWCCA 131 at [54] per Basten JA; Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [24] per Beech-Jones CJ at CL. The offender then removed the victim's school uniform and her underwear. The act constituting Sequence 1 involved the offender kissing the victim's vagina a few times. Whilst I accept that this act, and the act constituting Sequence 3, did not pose a risk that the victim would contract diseases, and that there was a limited risk of physical injury, I find this offence falls within the mid-range of objective seriousness.
6. Immediately thereafter the offender inserted his index finger into the victim's vagina which continued for a short time (Sequence 3) before the offender was re-dressed. This offence, unlike the offence in Sequence 1, involved digital penetration. Accordingly, I find this offence falls just above the mid-range of objective seriousness. It was after this first offending that the offender told the victim not to tell anyone.
7. On the second occasion, during a game of hide and seek, the offender found the victim, picking her up by the legs and kissing her bottom. He then placed the victim onto her bed before removing her school uniform and underwear. Sequence 4 on the Form 1 involved the offender kissing the victim on the lips, neck, breast, and stomach area. Again, in assessing the objective seriousness, the offence on the Form 1 places the substantive offence in context. The offender then held on to the victim's knees and kissed the inside of her vagina, constituting the offence in Sequence 5. Whilst similar to the offending in Sequence 1, in this instance the offending involved the offender additionally holding the victim's knees whilst performing the acts constituting the offence. I find this offence falls just above the mid-range of objective seriousness.
8. Whilst Sequence 6 involves similar conduct to Sequence 3, in this instance the offender inserted a second finger into the victim's vagina, which made the victim feel very uncomfortable and hurt her a lot. In the circumstances I find this offence falls above the mid-range of objective seriousness and towards the higher end of the range.
9. In respect to the victim EL, the offending involved the offender essentially bribing the victim with treats if the victim engaged in the acts constituting the offences. The offending again involved a degree of manipulation of a young vulnerable and impressionable girl with the offender on one occasion telling the victim that if she refused she was a "bad sister" in circumstances where her brother would not get the treats. The manipulation also involved the offender telling the victim that she was obligated to the "deal" and would complete the acts by either restraining the victim or manipulating her to let him finish the acts. The offending was part of a repetitive course of abuse.
10. For the first offence (Sequence 4) the victim was aged somewhere between 7 and 8 years old, being towards the upper end of the prescribed age range for the offence. The offender was in a position of trust, as the victim's maternal uncle, and was with the victim in a vehicle in a car park waiting to pick someone up. The offending involved the offender locking the car doors and initially attempting to kiss the victim and blow raspberries on her stomach. When unable to do so because of their respective positions, the offender pulled the victim onto his lap, so she was facing him and commenced to rock her. The offender was adjusting his groin area and the victim felt something dig into her pubic area, following which the offender turned the victim around so that she was pretending she was driving the car. I find this offence falls in the mid-range of objective seriousness. Reference has already been made to facts constituting Sequences 6 and 7 (attached to Sequence 4), involving the offender kissing the victim on the lips. The second of these involved the offender using his lips to pry the victim's lips open before inserting his tongue in her mouth.
11. Sequence 8 occurred when the victim was somewhere between the age of 10 and 12 years old, being towards the bottom end of the prescribed age range for this offence, and the offender was aged somewhere between 49 and 51 years old. The victim was in the offender's bedroom when she sat on the offender's lap with her leg straddled around him. The offender was rocking his body backwards and forwards in which time the victim felt something hard poking in her groin area. The victim could see through the offender's shorts that he had an erection. The offence was not isolated in that this type of incident occurred on other occasions. I find this offence falls just below the mid-range of objective seriousness.
12. In respect to Sequence 10, sexual intercourse with a person aged 10 years or over and under 16 years, the victim was between the age of 10 or 12 years, being towards the bottom end of the prescribed age range for this offence. The offender was aged somewhere between 49 and 51 years old. The victim was alone with the offender in his bedroom when he pulled the victim's underwear back to reveal her pubic area, kissing her on the top of the vagina quickly and swiftly. The victim was paralysed by fear, trying to clench her legs and keep her thighs together before leaving in shock. I find this offence falls just below the mid-range of objective seriousness, for this type of offence.
13. This was not an isolated incident. Around this time on an occasion the victim cannot particularise, the victim was laying on the offender's bed when he did a long raspberry kiss on the top of her underwear on her vagina. Further on another occasion the victim was in the offender's bedroom when he invited her to look at pornographic images on his computer.
14. Reference has been made to the circumstances constituting Sequences 9 and 11 (attached to Sequence 10), the former involving kissing the victim on her hips and groin around the bikini line, and the latter involving the offender kissing the victim on the lips.
15. In respect to all of the offences, they were committed either in the victim's home or the offenders home (s 21A(2)(eb) in the CSPA. In respect to the offences committed against EL the offender abused his position of trust and authority (s 21A(2)(k) of the CSPA).
16. The repealed provisions of s 25AA of the CSPA are applicable in respect to the offences committed against ID in that the proceedings were commenced before 18 October 2022. Those provisions require a court to sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. However, the offences involving EL require the court to apply the provisions of s 21B of the CSPA, that is, the court is to sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing. However, as the Crown contended, the distinction is one of form rather than substance, in that the offending against ID occurred between January and December 2021 at which time the patterns and practices of sentencing are largely the same as the present time. This is a position with which counsel for the offender agreed.
17. As each of the victim impact statements attest, the offending has caused overwhelming and insurmountable harm to both victims.
18. ID has lived with the trauma inflicted upon her by the offender through her most formative years, and well into adulthood. It is hardly surprising it has impacted on her personal and romantic relationships, as well as the relationship with her present husband and child. No spouse and/or mother should have to endure such pain. She has also experienced guilt given the more recent offences committed against ID.
19. The offending has also had a profound impact on ID, who was aged 10 when the offending occurred, and is now aged 12. The impact statements establish the irreparable harm inflicted on a young girl and the ripple effect on her immediate family including her parents. ID has been deprived of enjoying all that a childhood has to offer in the face of a loving and supportive family. It will undoubtedly impact on her ability to form and engage in relationships in the years ahead and during the most formative stages of her development.
20. The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]: "… that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."
21. General deterrence and denunciation have a significant role to play in respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed): "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.".
22. Personal deterrence is also a significant factor in the sentencing of the offender. It is contended that the offender is remorseful, reflected in his guilty plea and the statements made to ID's mother in the pretext call. Whilst the guilty plea reflects an admission by the offender in respect to his offending and some element of remorse, I do not accept the offenders' statements made in the pretext call reflects any real remorse. The offender in that call reluctantly made admissions of the most qualified kind which ultimately did not reflect the true extent of his offending. Whilst the offender "accepted the facts generally" when speaking to the psychologist, there is otherwise a total absence of remorse in his interactions with the psychologist. Further the offender has never recognised the harm inflicted upon either victim. Indeed, to the contrary, the offender in the pretext call when referring to the most recent offending on his granddaughter, attempted to downplay the offending, at one stage suggesting that it "wasn't a big deal".
23. The observations of the psychologist that the initial offending may have arisen from a need for emotional connection does not rise above speculation and is not based, from a review of the report, upon any specific history provided by the offender. The psychologists finding that the offender is assessed at a very low risk of reoffending or sexual recidivism is difficult to accept. The first of the offending occurred 20 years prior to the reoffending. The suggestion that the offender's advanced age substantially lowered the risk for future sexual reoffending is difficult to reconcile with the objective facts of the offender committing the most recent offending when in his early to mid-70s. However, it must be accepted that, given the offender is to be sentenced to a lengthy term of imprisonment, the risk of offending by reason of his age may be lessened in that he will be of more advanced years.
24. The offender's lack of insight into his offending, including its devastating impact on the victims, as well as the lack of any real remorse, does not bode well in terms of the offender's prospects of rehabilitation. Whilst the offender has expressed a willingness to engage in appropriate courses, that must be done in the context of the offender having some insight into his offending and having some expressions of remorse, both of which are lacking.
25. I take into account the offender's good character. This is not a case where the offender's lack of prior convictions and good character assisted him to commit the offences: Bhatia v R [2023] NSWCCA 12.
26. I make a finding of special circumstances given it is the offender's first time in custody and the status of the offender as a sex offender, which will result in more onerous custodial conditions. Whilst I accept the offender suffering a heart attack due to incorrect medication being administered whilst in custody does amount to a form of extra curial punishment, there is very little information available as to its impact.
27. I am satisfied that the s 5 threshold has been crossed and no sentence other than full time imprisonment is appropriate.
28. In respect to the Form 1 offences, as Beech-Jones CJ at CL observed in TH at [23]: "First, the Form 1 offences can be taken into account on sentencing as demonstrating an "additional need for personal deterrence and retribution" in respect of the substantive offences on the indictment (Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); "Abbas" and Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; "Attorney General's Application"). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General's Application at [18])."
29. I find that this is an appropriate matter for the Court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made had separate sentences been imposed.
30. The offender is entitled to a discount in the order of 25% given the timing of his plea in accordance with s 25D(2)(a) of the CSPA.
31. In respect to Sequence 1 and taking into account the offence on the Form 1, the appropriate sentence is 9 years 6 months from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 7 years 1 month with a non-parole period of 4 years 9 months.
32. In respect to Sequence 3, the appropriate sentence is 9 years 6 months from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 7 years 1 month with a non-parole period of 4 years 9 months.
33. In respect to Sequence 5 and taking into account the offence on the Form 1, the appropriate sentence is 11 years from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 8 years 3 months with a non-parole period of 5 years 6 months.
34. In respect to Sequence 6, the appropriate sentence is 11 years from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 8 years 3 months with a non-parole period of 5 years 6 months.
35. In respect to Sequence 4 and taking into account the two offences on the Form 1, the appropriate sentence is 4 years 6 months from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 3 years 4 months with a non-parole period of 2 years 3 months.
36. In respect to Sequence 8, the appropriate sentence is 3 years from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 2 years 3 months with a non-parole period of 1 year 6 months.
37. In respect to Sequence 10 and taking into account the two offences on the Form 1, the appropriate sentence is 4 years from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 3 years with a non-parole period of 2 years.
38. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). In circumstances where the offending involved two victims, and a 20-year separation, there must be some degree of accumulation. However, the Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).
39. Taking into account the need for some accumulation a total aggregate sentence of 13 years with a non-parole period of 8 years 8 months is appropriate.
40. The offender was arrested, charged and bail refused on 16 December 2021. He has remained in custody since that date. The offender has spent a total time of 673 days in custody solely referable to the offences for which he is to be sentenced. Accordingly, the sentence is to be backdated taking into account this period spent in custody.

Orders 1. The offender, having pleaded guilty is convicted of the offences. 2. The indicative sentences are set out above. I impose a total aggregate sentence of imprisonment of 13 years to date from 16 December 2021 and to expire on 15 December 2034. 3. I impose a non-parole period of 8 years 8 months to date from 16 December 2021 and expiring on 15 August 2030. 4. The earliest date the offender is eligible to be released on parole is 15 August 2030.

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