R v RAG

The Second Incident

1. In the leadup to this incident, CG1 recalled that one afternoon, she had been looking after her younger siblings (both of whom were in primary school at the time). The offender was working. CG1 explained that there were certain house 'rules' decided by the offender which, in his absence, she enforced.
2. Her siblings were in their pyjamas and had had their dinner. Ordinarily, they should have gone to bed. But CG1 recalled trying to keep them both up; since she did not want to be left alone when the offender returned home after work. However, on this occasion, her siblings had fallen asleep despite her endeavour.
3. After he arrived home, the offender told her to go to his bed. Her initial response was to refuse, saying "No, I want to go to my own bed" but the offender demanded that she go to his bed. He said this with an angry tone of voice whilst pulling a face at her. CG1 compared his facial expression to that of a growling dog; which scared her. She went to his bed.
4. She lay on the bed. The offender told her to take her nightie off. This time he took her nightie off; as well as taking off his shorts.
5. The offender then lay on the top of her. The offender put his penis inside her vagina folds, before rubbing his penis against her clitoris, going back and forth. This was the conduct the Crown particularised as Count 6. She did not recall how long this occurred for but did recall getting up, putting on her clothes and going to bed. CG1 did not tell anyone since, as a student in high school at the time, it was embarrassing to her.

The Third Incident

1. CG1 recalled a separate occasion when she had been laying on a lounge in the lounge room. Her younger siblings were in their bedrooms. The offender came into the lounge room and told her to go to his bedroom now. She complied.
2. Once inside the offender's bedroom, he took off her nightie and underwear. The offender had just had a shower and was wet. She was lying on the bed. The offender lay on top of her, placing his penis against the inside folds of her vagina and making thrusting movements. This was the conduct the Crown relied upon as constituting Count 8. She lay there numb. She did not say anything since she was too scared and embarrassed.

Background

1. The offender is the paternal grandfather to CG2. CG2's mother is CG1.
2. When aged 8 or 9, CG2 attended primary school. At that age, the offender was living in a caravan at the back of CG1's home in Cranebrook. The caravan was at the back of the home that she lived in with her mother and step-father, and other siblings.
3. All of these offences occurred in the period 1 January 2015 and 31 December 2016. During each of these incidents CG2 was 9 years of age. He was about 67 years of age.

The First Incident

1. This arose out of a family dinner. CG2 did not like the meal she was eating (which had been cooked by her step-father). She wandered off and approached the caravan. She wanted to obtain a triple chocolate cookie from the Offender located in the caravan. After he gave her the cookie she stood up and gave him a hug. After this occurred, the offender put his hand up her shirt and started touching her on her breasts. This was the conduct giving rise to charge 12.
2. As part of the same episode, the offender kissed her on her lips with his open mouth. This was for about 10 minutes. This was the conduct the Crown particularised as giving rise to Count 13.
3. The offender said to CG2 'don't tell anyone what I'm doing and this is our little secret'.

The Second Incident

1. On another occasion during daytime, CG2 was playing outside with two English 'staffie' dogs and jumping on the trampoline. The offender called her over. She proceeded to play 'hide and seek' with him. This involved her, eventually, going into the caravan. She hid in a gap near the bed and eventually surprised the offender, saying 'Boo!'
2. CG2 then said goodbye to the offender, but the offender grabbed her, pulling her back and giving her a hug. She was wearing shorts and a shirt. He then put his hand inside her shorts; starting at her hips before moving to her bottom. This is the conduct comprising charge 14. CG2 pulled the offender's hand out of her shorts and she ran out of the caravan.

The Third Incident

1. On another occasion, CG2 was playing with her younger sister out the back on go karts (one of them being white and pink) out the back of the home. CG2 was wearing her blue and white, buttoned 'onesie'. Underneath the onesie, she was wearing a top and shorts.
2. Her younger sister suggested that they go in the offender's caravan. CG2 agreed to join her sister in the caravan. They both went in and asked the offender to give them a cookie. They both sat on the bed and the offender provided them both with a cookie. About 5 minutes later, the younger sister left the caravan; she (CG2) thought into the house. CG2 called out for her sister. He was making coffee, and she was sitting on a chair.
3. CG2 was about to leave before the offender called her back. After he drank his coffee, the offender unbuttoned her onesie with his hands and touched her on her vagina on the skin with his hand. This was the conduct comprising charge 15.
4. As part of the same episode, the offender touched CG2 on the breasts; moving (his hands) around. This was the conduct comprising charge 16.
5. As another part of the same episode, the offender kissed CG2 on her lips a couple of times. This was the conduct comprising charge 17. Afterwards, CG2 moved away, buttoned herself up and she returned to the backyard to the house and cried.

Objective gravity of the offending

1. The Crown made the following submissions about the gravity of the offending which were not seriously disputed and which I accept.
2. As to counts 1, 3, 4, 6 and 8, the victim was aged (between 11 and 13) well below the age of 16. There was a very substantial age difference (at least 37 years) with the offender. It is an element of the offence that he was in a position to exert parental authority not only against the victim, but also her siblings. The episodes were brief, although that is not of course, a mitigating circumstance. The conduct in each case was opportunistic.
3. Specifically, for count 1, and unsurprisingly, the victim did what she was told. No physical force was exerted. He used his hand both to touch all of the victim's vagina but to rub it as well. Despite the inherent gravity of the offence, it fell at the lower end of the scale of seriousness.
4. As to count 3, and being part of the same episode as for count 1, the same contextual details I referred to apply here. There was little detail about the extent of the sexual touching and nothing to suggest any prolonged masturbation of the offender's penis. His instruction to her to take off her clothes was intended for his gratification and must have added an extra level of indignity. The offender did not exert force. This offending also fell at the lower end of the range.
5. As to count 4, being part of the same episode for counts 1 and 3, the contextual circumstances referred to earlier again apply. The conduct involved penile 'penetration' in the requisite sense; marking it out as more serious offending than the first and third counts. I regard the offending as falling slightly below the mid-range.
6. As to count 6, which concerned a different episode, the same contextual circumstances apply as per the earlier offending. On this occasion, there was more menacing conduct, even if it fell short of any actual threat, when making a demand; probably a reflection of what to the offender was, the victim's unexpected verbal resistance. The seriousness of this offending was slightly more serious than the offending for count 4 and in the mid-range.
7. Count 8 concerned another separate episode. The seriousness of this offending was on par with the seriousness for count 4. It fell slightly below the mid-range.
8. In relation to counts 12-17 inclusive, although there were three separate incidents, they all occurred in a two-year period at a time when the offender was living in a caravan in the backyard of the victim's CG2's home. That is a matter that aggravates the offending in the statutory sense. Astonishingly, the home was also that of CG1, the victim of his offending many years before; demonstrating, amongst other things, that the passage of time had not arrested the criminogenic factors that led to the earlier offending. The offending revealed marked effrontery.
9. For all of these particular offences, the victim was 7 to 9 years of age. The offender was 67; an appreciable increase in the age differential (about 58 years) relative to the circumstances of the offending for the earlier offences I have referred to. All occurred in the caravan that had been offered for his private use by the victim's family. He exploited the consideration of privacy extended to him.
10. As to counts 12 and 13, the offender specifically exploited the circumstance of him being innocently hugged by his granddaughter. For this episode the door was locked, which prevented any escape. The offending appeared opportunistic. At about the time of the offending, he told the victim not to tell anyone. I regard that as an implied threat.
11. For count 12 in particular, the offending comprised his taking the effort to put his hand under CG2's breast and engage in skin-to-skin touching of the victim's breast, although it is unknown for how long that occurred. I find the offending occurred below the mid-range.
12. For count 13, the offending conduct was kissing of a patently sexual kind: open mouth on the victim's lips for a sustained period. There is some force in the offender's submission that this particular offending did not involve genital contact. Notwithstanding, the duration of the offending and the type of kissing is such that I find that this offending fell within the mid-range.
13. Count 14 concerned a separate incident. Unlike other episodes, this did involve a level of force, through the offender grabbing the victim towards her. The offending featured touching to different parts of the victim's body, including her bottom, although the touching was fleeting. The offending fell below the mid-range.
14. Counts 15, 16 and 17 concern another separate incident. Count 15 involved the offender taking it upon himself to remove the victim's 'onesie'. The touching was of the victim's vagina with his hand. This specific offending fell within the mid-range.
15. Count 16 involved touching the victim on her breasts. Count 17 involved brief kisses on the lips. In my view the offending in these respects fell below the mid-range.

Aggravating circumstances

1. I have already referred to the offending conduct having occurred at the victim's respective homes (CSP Act s 21A(2)(eb)). Counsel for the offender does not disagree, although he suggested that it had to be recalled that it occurred in an area designated for the offender; and not the victim. In my view, as slightly alluded to earlier, concerning the privacy extended to the offender, which he abused, this is a distinction without a difference. I am mindful of course, even though I have mentioned these circumstances as to objective gravity, that I do not engage in double-counting when I refer to these characteristics in this section of my remarks.
2. I accept, further, the Crown's submission that separate, albeit related to, the element of exercise authority which inhered in the offences, the offender abused his position of trust over the victims (CSP Act, s 21A(2)(k)). The offender does not dispute the engagement of this aggravating factor, but argues that the degree of the abuse of trust may not have been as serious as might occur in different circumstances.

Victim impact statement

1. Section 25AA(3) of the CSP Act provides that when sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of the Courts).
2. Recognition of harm to the victims is an important sentencing consideration in this case. Moreover, even in the absence of victims impact statements, sentencing courts recognise the profound and long-lasting damage done to child victims of sexual offending (R v Gavel (2014) 239 A Crim R 469 at [110]; R v Stefanac [2022] NSWCCA 129 at [56]-[57] and [69]).
3. As it happens, a victim impact statement was received from, and read by, CG1. It was very moving and referred to how the happy memories that she had of childhood, notably through her sporting participation and other achievements, were overwhelmed by thoughts of the offender's abuse of her. She spoke of her silence and not speaking up; at least not until her own daughter came to her and told her that the offender had also abused her. She spoke of how her relationships with her family have suffered.

Age

1. In the special hearing, the offender relied upon two reports of Adjunct Professor Dr Tuly Rosenfeld, a consultant Geriatrician and Physician. Some of his background was apparent from those reports; although it mainly related to his physical and mental health condition.
2. The offender was born in March 1948. He is now over 76 years of age. For the first group of offences (concerning events in or around 1997) he was 49 years of age. For the second group of offences (2016) he was, or was around, 68 years of age.
3. The age of an offender at the time of sentencing is a relevant factor on the sentence, since the sentencing option of imprisonment would be expected to be more onerous to an older individual. However, the Court would not automatically reduce a sentence because of the factor of age. In R v DCM (Unreported, NSWCCA, 26 October 1993) Badgery-Parker J (Kirby ACJ and Loveday J agreeing) observed that: "Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years." See also R v Smith (1987) 27 A Crime R 315 at 317.
4. The offender grew up in Kogarah and much of his working career was spent there (he retired at the age of 68). He played rugby league and on one occasion was knocked unconscious. He is now blind in his right eye. His right leg was amputated and he was later provided with a prosthetic leg. For most of his adult life, he had been a heavy smoker. He is a diabetic.

The offender's mental condition

1. There was a significant volume of material that was before the Court in the fitness enquiry hearing and which was tendered at this sentencing hearing.
2. Counsel for the offender concedes that there was no evidence that the offender suffered from mental health or medical problems at the times of the offending.
3. The offender was a long-time sufferer of diabetes. After his offending, in 2021, he became blind in his left eye. In 2022, he sustained a double heart attack which had the consequence that his right leg was amputated in 2022.
4. Reviewing a brain scan taken in 2022, Dr Sally McSwiggan opined that the offender had a Major Neurocognitive Disorder due to probable mixed Dementia.
5. Adj Prof Rosenfeld, another geriatrician, ultimately diagnosed the offender as having a moderately severe dementia associated with vascular disease. In short, he suffered from brain disease and dementia.
6. Another specialist, Dr Catriona Ireland, a geriatrician noted a decline in the offender's cognitive health since 2022 and agreed with Dr McSwiggan's opinion that he had a mild cognitive impairment which may have worsened to be a borderline diagnosis of dementia.
7. Following the verdicts last September a neuropsychological assessment of the offender was undertaken by Dr McSwiggan, who produced a report dated 18 February 2025.
8. On examination, Dr McSwiggan found that the offender presented with moderate or severe dementia. She did not consider that he presented with any major mental illness.
9. With reference to the DSM-5 Manual, Dr McSwiggan diagnosed the offender with having a Major Neurocognitive Disorder due to probable Vascular Disease. She thought that he had undergone significant cognitive decline and expected that his cognitive decline would continue to progress to 'severely' demented in the next few years.
10. The Crown accepts that the offender's general health concerns and cognitive impairments, which it also accepts have worsened since the special hearing, are matters that can be taken into account.
11. Even in the absence of a demonstrable causative link between an offender's mental abnormality and, it might be said, physical ill-health, less weight might be given to general deterrence (and associated considerations such as retribution and denunciation), although that may be a matter of degree and it is not axiomatic: see S Odgers, Sentence (6th ed, 2022), [4.74], fn 539 at p 355. In the context of limiting terms, an offender's mental condition may be a highly significant consideration: R v AN [2005] NSWCCA 239 at [38]. In this case, it is particularly pertinent to his likelihood of reoffending. I will refer to the consideration of general deterrence again later in these remarks.
12. Further, the experience of detention itself is likely to be more onerous for someone with the offender's condition even if this concern is of marginal weight.

Antecedents and good character

1. These two distinct sentencing factors are related in this case.
2. Prior to the offending, when he was about 40 years of age, the offender had only committed a single and minor offence (concerning the unauthorised sale of liquor). The Crown accepts that this offence is stale. Ordinarily, the offender's record would be a factor pointing to leniency.
3. Beyond the absence of convictions, however, there is little about this offender's history demonstrative of good works or contributions to the community; although I recognise that the offender would have found it difficult to amass such evidence either at the special hearing or, upon the conditional findings of his guilt, for the purposes of this hearing.
4. However, as indicated, by reason of s 21A(5A) of the CSP Act, the offender's good character or lack of antecedents cannot be taken into account as mitigating factors if either or both of those factors assisted the offender to commit the offences.
5. The Crown fairly accepts that the circumstances in s 21A(5A) are not engaged: although the opportunity to offend occurred in a familial environment, it was not because of his taking advantage of his prior good character.
6. In offending of this kind, however, prior good character has little weight. A prior good record does provide a basis for some leniency.

Absence of remorse/contrition

1. The offender's mental predicament was then, and is now, such that it is well past the point that he could have insight into his offending, including an appreciation of his past criminality.
2. The Crown fairly accepts that there was evidence in the special hearing (Exhibit C) in the taped conversation with CG1 (occurring on 20 November 2019) in which he offender could be taken to have expressed, albeit in a very limited way, that what he had done was wrong. The recording evinced an apology for (unspecified) wrongdoing, of sorts (couched in vague terms) to CG1. But insofar as CG2 was concerned there was nothing but blanket denials of abuse. Indeed he cast aspersions on CG2's credibility or reliability - suggesting she was "making it up (a little bit)" and confusing his intent when, at most, he only ever kissed and cuddled CG2.
3. Prior to his incapacities besetting the offender, there was partial remorse in relation to CG1, but none in relation to CG2. I do not consider that this situation was likely to change.
4. I note that the offender pleaded not guilty upon arraignment in November 2020. He was scheduled to go to trial in July 2021, but it was a month before that there were indications that there may be an issue regarding his fitness to be tried.
5. There is some force in the offender's submission that because of the onset of his mental condition he has, in effect, lost the opportunity to demonstrate remorse or contrition, even after his initial arraignment. This is one manifestation of the general matters I am required to take into account under s 63(5) of the MHCIFP Act, which I do. Another is the point that his Counsel emphasised regarding early signs of problematic memory prior to diagnoses. But I am unable to say that this specific loss is especially valuable having regard to the facts that occurred up to the point where he became incapacitated.

Likelihood of re-offending and rehabilitation prospects

1. There is next to no prospect of the offender having access to female children even if, which would be astonishing, any abiding sexual interest in them endures to the present day. I agree with Counsel for the offender that quite apart from his mental issues, his obvious physical incapacities make that virtually impossible.
2. Dr McSwiggan did not consider that, if released, he was likely to seriously endanger his own safety or any member of the public. She cited his severely restricted capacity to be mobile independently, his likely limited contact with a small pool of adult carers and general condition of being a double amputee with moderately-severe dementia.
3. Dr McSwiggan noted that there was no suggestion he had acted in a sexually inappropriate fashion whilst residing in the nursing home. It is not especially meaningful in such circumstances to refer to his rehabilitation prospects.
4. The Crown submitted that there was no evidence of any rehabilitation in the intervening period between the offending and when that came to light; although it acknowledges the possibility of a diminution in cognitive capacity.
5. The offender was and is unlikely to reoffend. The Crown accepts that. That lessens the force of the sentencing principle of protection of the community.

Delay

1. It is well over 25 years since the last of the index offences was perpetrated (against CG1). It is nearly 9 years since the offending occurred against CG2.
2. In the context of child sexual offences dating back many decades, where victims have delayed in bringing complaint to the police, and where the delay is not caused by the system of criminal justice itself, the tendency has been not to treat it as a mitigating factor. In R v Cattell [2019] NSWCCA 297 Price J (as his Honour then was; Hoeben CJ at CL and Campbell J agreeing) observed at [135], such crimes should not be treated as being 'stale'. Although the offender may in the ensuing years have led a blameless life and may even have discarded the tendencies identified in the Verdict Reasons, and thereby exhibited rehabilitation, at the same time, the offender has "escaped justice or… and enjoyed a life free from opprobrium or punishment for his crimes during that time": Magnuson v R [2013] NSWCCA 50 per Button J at [62].
3. Counsel for the offender submitted that there has arguably been prejudice to the offender from delay in the institution and prosecution of the historical child sex offences. This subject was touched upon in the Court of Criminal Appeal in Young (a Pseudonym) v R [2022] NSWCCA 111 when N Adams J (Bell CJ and Button J agreeing) said: "[48] The enactment of s 25AA (of the Crimes (Sentencing Procedure) Act 1999 (NSW)) was to avoid lower sentences being imposed. Had complaint been made prior to 31 August 2018 the applicant would have had the benefit of being sentenced on the basis of sentencing principles at the time. Although it is to be accepted that there was already significant awareness of the impact of child sexual assault at the time of the offending in this matter, the offending behaviour commenced prior to the enactment of standard non-parole periods ("SNPP") in NSW, which is but one indicator of how sentencing for child sexual assault offences has changed since the time of the offending in this matter. By way of illustration, I note that it was not until 2015 that the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) introduced a standard non-parole period of 7 years in respect on an offence under s 66C(1) of the Crimes Act (sexual intercourse with a child aged between 10-14 years). [49] Secondly, on 24 September 2018, the statutory sentencing regime in NSW changed: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). Suspended sentences were no longer an alternative for all offenders and an ICO was no longer available for sexual offenders: s 67(1)(b) of the Sentencing Act. Had the applicant been sentenced at any time after he turned 21 but before 24 September 2018, it would have been open to the sentencing judge to have found that the s 5 threshold had been crossed but to have imposed either a suspended sentence or an ICO to assist in his rehabilitation. [50] It is common for there to be delay in children complaining of sexual abuse. Often a reason for the delay is that the perpetrator of the abuse has threatened the child in some way that there will be negative consequences should the child complain of the sexual assaults. There is no material before the Court as to whether the victim's grandfather made such threats but there is certainly no evidence before the Court that the applicant did. This is no small matter. It is one thing for an offender, such as this applicant, to rely upon delay as a mitigating factor but it is another for an offender whose threats prevented a young victim from coming forward earlier to then seek to rely upon the subsequent delay in mitigation."
4. The last passage from her Honour's observations does not entirely assist the offender since, I have accepted that at least in relation to CG2, there were threats of negative consequences if she complained about his abusive conduct. In this way, it cannot be accepted that he was not blameless in delay.
5. The Crown responded to the offender's submissions in this context by referring to another decision of the Court of Criminal Appeal, in R v Hathaway [2005] NSWCCA 368. It says that there was some limited evidence (Exhibit C at the special hearing) to indicate that the offender was left in a state of suspense as the offences had not been brought to light earlier.
6. Nevertheless, I except that there have been circumstances beyond the offender's control, which have caused delay and have caused some forensic disadvantages of the kind referred to by N Adams J; which may be treated as a mitigating factor, albeit to a limited degree.

Mercy

1. The offender's Counsel points to the offender's severe lack of mental and physical health and asks the Court to apply the principle of mercy. In the way in which the offender relies upon this abstract notion, it does not add a great deal to the submissions, which I accept, that he would endure particular hardship if sentenced to imprisonment, because of his physical and mental health conditions. I have also accepted that, quite apart from the unlikelihood that the offender can reoffend, specific deterrence, in particular, is lessened as a result of his physical and mental conditions. So too, although in a much lesser degree, does general deterrence as he is unlikely to reoffend. The reality is that although separated by decades, over a period in which he was not physically or mentally incapacitated, he perpetrated serious sexual abuse against his daughter and granddaughter consecutively. In the case of CG2, the abuse he perpetrated against her was done in a context when he knew he had engaged in wrongful abuse against CG1. Giving pre-eminence to the consideration of mercy cuts across the important principles of general deterrence, holding the offender accountable for his grave crimes and recognising the harms perpetrated upon two women who were in familial relationships to the offender.

Instinctive synthesis

1. I take into account the maximum penalties for the dates that the offending occurred and, in the case of the offence under s 61M(2), the standard non-parole period which is notoriously high relative to the maximum penalty. I recognise that by s 54(c) of the CSP Act, the statutory provision precludes the imposition of a non-parole period, but to my mind it remains relevant as a legislative guidepost for the purposes of a limiting term (RS v R [2013] NSWCCA 227 per McCallum J, as her Honour then was, at [3]).
2. By reason of s 25AA(1) of the CSP Act, I must sentence the offender for a child sexual offence (as defined in s 25AA(5)) in accordance with "the sentencing patterns and practices" at the time of sentencing, not at the time of the offence. I am mindful of the sequential requirements outlined in R v Cattell [2019] NSWCCA 297, Price J (as his Honour then was) (Hoeben CJ at CL and Campbell J agreeing) at [123].
3. In accordance with the requirements of s 25AA(3), I record that I have taken into account the trauma of sexual abuse on the victims.
4. The Crown emphasised the seriousness of the offending, the young ages of the victims and the offender's abuse of trust and authority he had with respect to the two victims. The Crown submitted that, after taking into account s 63, the only appropriate penalty for the offences would be a term of imprisonment; so that accordingly, a limited term must be set.
5. The offender's Counsel did not dispute any of this. His submission was that there were a number of countervailing factors. He did not suggest any alternative sentencing option, however.
6. I also take into account the considerations in s 3A of the CSP Act. This is a case where the considerations of imposing an adequate punishment, so as to bring home to the offender the gravity and consequences of his conduct, has limited or no utility. So too, because of his condition, and the plain unlikelihood that he will re-offend, the concerns of specific deterrence, protection of the community, retribution and promoting his rehabilitation have little or no utility.
7. In my view, recognising that the offender currently has significant physical and mental health issues but emphasising that these were not present at the time of his offending, the salient considerations are general deterrence, denunciation of the offender's conduct and recognition of the harm to the victims.
8. As I say, these considerations remain significant notwithstanding the offender's cognitive impairment. As the High Court explained in Muldrock v The Queen (2010) 244 CLR 120 at [54], the reason why general deterrence (and the related considerations of denunciation and retribution) is substantially moderated for an offender with a mental abnormality is that the person lacked the capacity to reason, as an ordinary person might, to the wrongfulness of the offending conduct. Muldrock was a case where the offender suffered from the mental illness at the time of the offending. That particular consideration does not apply to this offender who was not shown to have lacked such capacity at the dates of his offending. Offending of this kind by persons of middle age, against children, occurs, very typically in the home, if not a familial environment and is often accompanied by tying the victim to a pact of secrecy, as it was to some extent here, giving rise to difficulty in detection. It would be astonishing if an offender who goes on for a period to live a free and even blameless life, should pray in aid any real or significant moderation of the consideration of general deterrence because of their subsequent misfortune in their physical and/or mental health conditions. The offender's Counsel accepted that there was no reduction in this offender's moral culpability. Nevertheless, he not only referred to Muldrock but also cited the well-known observations of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177(2nd dot point)] indicating that quite apart from the aspect of causal connection, a present mental illness at the point of sentencing might mean that independently, the offender might present as an inappropriate vehicle for general deterrence. At its highest, I accept the Crown's contention that general deterrence is, to some degree, less appropriate for an offender who, though not suffering from any mental abnormality at the time, goes on to suffer a mental condition, post-offending. Implicit in that is that general deterrence might be less significant in the case of an offender with a mental abnormality than an offender who is not beset by such condition at the time of sentencing. I accept this, but for the reasons explained, it is a very marginal reduction in the force of general deterrence in the particular circumstances of this offender. In saying that, and as I have indicated, in my view the offender's disabilities and ailments are more material to the hardship he would endure if imprisoned, and reducing the salience given to other considerations, being the need for specific deterrence, retribution and the concern about protecting the community and accountability.
9. Having regard to the gravity of the individual offences alone, let alone in combination, for the purposes of s 63(2) of the MHCIFP Act, I would have imposed sentences of imprisonment if the special hearing had been an ordinary trial of a criminal proceeding and the offender had been fit to be tried for the offences.
10. I have taken into account the matters in s 63(5) of the MHCIFP Act. The offender has not been able to take advantage of a discount from a guilty plea. As to s 63(5)(c), in particular, the offender had spent two days in custody, so the first of the individual limiting terms is backdated to take that into account.
11. I am conscious of the principle of totality. There were two victims and two discrete date ranges. There was a substantial temporal gap between the offending, as it affected victim CG1 and the offending, as it affected victim CG2. As chronicled many of the offences occurred as part of the same episode; a clear pointer to a level of concurrency. I am conscious that the penalty should not be 'crushing' but designed to reflect the offender's criminality overall.
12. No aggregate sentence can be imposed to address the offender's overall offending (CSP Act, s 54(c)). The terms of each individual limiting term, and the commencement dates must necessarily be adjusted, to take into account the totality principle, to produce the net result.
13. I impose individual limiting terms under s 63(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act, totalling 7 years and 6 months, as follows: Count 1: limiting term of 1 year and 6 months commencing on 26 February 2025 and expiring on 25 August 2026 Count 3: limiting term of 4 months commencing on 26 August 2026 and expiring on 25 December 2026 Count 4: limiting term of 2 years commencing on 26 February 2025 and expiring on 25 February 2027 Count 6: limiting term of 1 year commencing on 26 February 2027 and expiring on 25 February 2028 Count 8: limiting term of 1 year commencing on 26 February 2028 and expiring on 25 February 2029 Count 12: limiting term of 6 months commencing on 26 February 2029 and expiring on 25 August 2029 Count 13: limiting term of 1 year commencing on 26 August 2029 and expiring on 25 August 2030 Count 14: limiting term of 6 months commencing on 26 August 2030 and expiring on 25 February 2031 Counts 15: limiting term of 1 years and 6 months commencing on 26 February 2030 and expiring on 25 August 2031 Count 16: limiting term of 1 year commencing on 27 February 2031 and expiring on 26 February 2032 Count 17: limiting term of 6 months commencing on 26 February 2032 and expiring on 25 August 2032

Referral

1. Pursuant to s 65(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), RAG is to be referred to the Mental Health Review Tribunal and these orders are similarly to be notified to the Tribunal.

Place of detention pending review by the Tribunal

1. By s 65(2) of the MHCIFP Act, once a limiting term has been nominated, the Court "may" order that the defendant is "detained" in a mental health facility, correctional centre, detention centre or "other place" pending the defendant's review by the Tribunal.
2. In R v Wilson (No.6) [2019] NSWSC 529 ("Wilson") Schmidt J (at [35]-[52]) interpreted the concept of 'detention' under the former s 27(2)(b) as requiring proof of a place where "a restraint (is) imposed on the person's liberty", being a place "from which he or she will not be free to leave". In R v JH (No.2) [2024] NSWDC 56 at [56], Newlinds SC DCJ construed the expression as connoting whether the person can practicably leave the place. If not, the person can be considered 'detained'. I respectfully agree with his Honour.
3. The Crown did not argue against the proposition that he be detained in the place he is currently housed in, pending the Tribunal's review.
4. Pursuant to s 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), pending review of the Mental Health Review Tribunal, RAG is to be detained at the Edinglassie Nursing Home in Emu Plains.

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