District Court New South Wales Medium Neutral Citation: R v PW [2019] NSWDC 963 Hearing dates: Thursday 14 February 2019; Friday 31 May 2019; Wednesday 28 August 2019. Date of orders: Wednesday 6 November 2019 Decision date: 06 November 2019 Jurisdiction: Criminal Before: Tupman DCJ Decision: Indictment 1: Aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 20 years, NPP of 14 years, parole thereafter of 6 years. Indictment 2: Aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years. Indictment 3: Count 1 – Sentenced to a fixed term of 12 months Count 2 – Sentenced to a fixed term of 18 months To be served concurrently. Catchwords: CRIME — Child sex offences — Historical child sex offences — Production/Possession of child abuse material – Aggravated sexual intercourse with a child <10; >10 <14; >14 <16 — Indecent assault — Bestiality — 27 substantive offences — 4 Form 1 offences — Grooming of child — Persistent sexual abuse of a child — Two complainants — Offender in position of trust and authority — Offender was father and step-grandfather of victims — Offender had penile/anal intercourse with family dog and neighbour's dog — Offender blindfolded victim and took photos — Bondage/restraints used — Guilty pleas after trial had commenced — Reasonable prospects of rehabilitation due to age and poor health. Legislation Cited: Crimes Act 1900 (NSW): ss 61E(1A), 61E(2), 61M(2), 66A, 66C(2), 76A, 79, 91H(2); Crimes (Sentencing Procedure) Act 1999 (NSW): ss 5, 10, 12, 25AA, 53A. Cases Cited: Clarkson v R [2011] VSCA 157. R v Gavel [2014] NSWCCA 56. Category: Sentence Parties: Regina (The Queen) PW (The Offender) Representation: For the Crown: Ms. C. Feiner of Counsel For the Offender: Mr. S. Hopper of Counsel File Number(s): 2016/00183997 Publication restriction: Section 578A of the Crimes Act 1900 (NSW) applies: No publication of names of the complainants or anything which may identity the complainants. Judgment 1. HER HONOUR: The offender, PW, is before the Court for sentence following his pleas of guilty to 31 separate substantive charges, including child sexual assault, possession and production of child pornography and bestiality, with a further four offences to be taken into account on three separate Form 1 documents. There are three indictments covering the substantive offences. They are all dated 19 March 2018. The offender had been committed for trial on these offences, and pleaded guilty to them on 19 March 2018, the first day of the trial. Thus, these pleas of guilty are late, and the discount to be applied to represent the utilitarian value, is low. I accept the Crown's submission that 10% is an appropriate discount to apply in these circumstances. 2. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to these sentences. It provides the following: A court must 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. 1. This is a relatively recent legislative amendment and is a significant change to the way courts must sentence for historical child sexual assault offences, which is what these offences are, at least in relation to indictments 1 and 2. The sentencing pattern for these offences, particularly for offences of indecent assault, were much more lenient and often, depending on the circumstances of the offending, terms of imprisonment were not imposed. 2. In relation to all offences, the Court is required to determine the objective criminality, including for these sorts of offences, by having regard to the trauma of sexual abuse on children as is now fully understood by the community and the Courts. There is now available to the Court a wealth of psychological and other evidence in relation to this trauma. Sentences for these sorts of offences at present are unlikely to be anything other than full‑time imprisonment, unless the objective criminality is very low. The legislature has also specifically removed the community based Intensive Corrections Order sentence as being available for these offences. So, if the circumstances of any type of child sexual assault offence, including the objective criminality and surrounding subjective circumstances, are such that the s 5 threshold for imprisonment is reached, there is no alternative to full‑time custody. 3. Whilst sentences for these offences must then be assessed in accordance with the current sentencing patterns and practices, this does not mean, however, that the maximum penalties are increased from those which were relevant at the time of the offending. The maximum penalties are as they were at the time of offending and, like for any other sentence, this is to be used as a yardstick or indicator when deciding the appropriate sentence. However, in accordance with current patterns, it is much more likely that such offences will cross the threshold referred to in s 5 of the Crimes (Sentencing Procedure) Act 1999 where imprisonment will be the only alternative than would have been the case at the time many of these offences were in fact committed. 4. The first indictment before the Court comprises 27 counts, being 20 counts of child sexual assault, both indecent assault and sexual intercourse, involving the same complainant and which were committed between 1987 and 1998. 5. Counts 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 are 14 counts of sexual intercourse with the complainant between 1992 and 1998. 6. Counts 4 and 12 are both offences contrary to s 66A of the Crimes Act 1900 (NSW) then in force, alleging sexual intercourse with the complainant when he was under the age of 10. The maximum penalty for these offences is 20 years imprisonment. 7. Counts 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19 and 20 are all charges brought contrary to s 66C(2) of the Crimes Act 1900 in force at the relevant time, of sexual intercourse with the complainant when he was under the age of 16, and committed in a circumstance of aggravation, namely that the offender was acting in a position of authority towards the complainant by reason of being his step‑grandfather. The maximum penalty for each of these 11 charges is 10 years imprisonment. 8. Counts 1, 2, 3, 5, 6 and 7 of this first indictment are six charges of indecent assault, or offences similar to indecent assault, all involving the complainant, LE. 9. Counts 1 and 2 are charges of aggravated indecent assault of a person under the age of 16, contrary to s 61E(1A) in force at the relevant time. The circumstance of aggravation again is that the complainant was under the authority of the offender. The maximum penalty for these two offences is 6 years imprisonment. 10. Counts 3, 5, 6 and 7 are all charges of indecent assault of the complainant under the age of 10 years and are brought contrary to s 61M(2) of the Crimes Act 1900 then in force. Each of these carries a maximum penalty of 10 years imprisonment. 11. Counts 21, 24, 25, 26 and 27 are all charges of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 in force at the relevant time. In each case, the maximum penalty is 10 years imprisonment. 12. Counts 22 and 23 are charges of producing child pornography or child abuse material, also contrary to s 91H(2) in force at the relevant time, and for each of these offences the maximum penalty is also 10 years imprisonment. 13. The complainant was the offender's step‑grandson and was aged variously between 2 or 3 and 12 in relation to this series of offences. 14. When sentencing for the first of these 20 counts, namely count 1, the offender asks that I take into account two additional offences on a Form 1 signed by him. They are both indecent assault offences against the same complainant committed between 1987 and 1989, and both brought as offences contrary to s 61E(1A) of the Crimes Act 1900 then in force. The first of these two offences was originally before the Court by way of ex officio indictment. The second is sequence 37. 15. The second indictment covering the substantive offences contains two counts. Count 1 is a charge of committing an act of indecency on a separate complainant who was at the time seven or eight years of age, during the period 1976 to 1978. It is brought pursuant to s 76A of the Crimes Act 1900 then in force and carries a maximum penalty of 2 years imprisonment. There is an additional offence to be taken into account on a Form 1 for this offence, also being another offence of committing an act of indecency towards the same victim, committed between 1983 and 1985, which is contrary to s 61E(2) of the Crimes Act 1900 then in force, which would also carry a maximum penalty of 2 years imprisonment if sentenced separately. It is sequence 7. 16. Count 2 on this indictment is an offence of producing child pornography brought contrary to s 91H(2) of the Crimes Act 1900 then in force, which carries a maximum penalty of 10 years imprisonment. The victim of the two acts of indecency offences is the offender's daughter, and she is also one of the victims of the child pornography charge. 17. The third indictment dealing with the substantive offences comprises two counts of bestiality, the first committed between 1993 and 1999, and the second between 1999 and 2003. These are offences contrary to s 79 of the Crimes Act 1900. There is an additional offence to be taken into account when sentencing for count 1, being a further offence of bestiality also committed between 1993 and 1999, and also thus contrary to s 79 of the Crimes Act 1900. The maximum penalty for offences contrary to s 79 is 14 years imprisonment. That is therefore a summary of all of the individual charges before the Court - 27 for substantive sentence and 4 as additional offences to be taken into account. 18. Before dealing with the relevant facts for each of the offences, I propose to deal with the subjective case presented on behalf of the offender, because it is a relevant consideration for all of the offences when determining the appropriate sentence for each of the charges. He is now aged 73 and has been in custody bail refused since 16 June 2016. 19. There is a forensic psychiatric report before the Court from Dr Dayalan dated 11 January 2019, which was tendered at an early stage in these sentence proceedings, not long after the matter first came before me for sentence. I accept some parts of that report and reject some others. Some parts of that report I regard as being indicative of the manipulative character and nature of this offender. 20. Since this initial report, there have been many issues preventing this matter reaching finality. There were also some matters apparent within the body of that report itself, relating to inconsistencies between the history given by the offender to Dr Dayalan and the documents that not only had been presented to him, but which have now been tendered on this sentence. 21. During the period over which there have been several adjournments, the offender saw Dr Donald Rowe, who is described as a clinical and consulting psychologist and neurophysiologist specialising in forensic medicolegal reporting, in relation to these issues. Dr Rowe saw the offender at Long Bay Hospital on 5 June 2019 for the purposes of such a report to this Court. He has provided two reports, one dated 6 June 2019 and the other dated 8 August 2019, which provided some clarification or explanation in relation to portions of the earlier report but did not, as I understand it, require any further consultation with the offender. Dr Rowe also came to court and gave evidence in these sentence proceedings. 22. The offender's brother also gave evidence in these sentence proceedings. From that combination of evidence, and some parts of the agreed facts, I accept that the offender, who as I have said is 73, has been married or partnered twice, one with the mother of JW and the other with the grandmother of LE. He apparently has four children. He separated from his latter partner about 10 years ago, but they continued to live together in the same house until his arrest. He has worked most of his adult life before his arrest in graphic design and commercial art, and would appear to have considerable ability and skill in those fields. 23. He informed the psychiatrist, Dr Dayalan, that he had been raised by very conservative and religious parents. He was one of nine children. He told this psychiatrist that he had been subjected to humiliating experiences on numerous occasions by his parents, but was reluctant to talk about them. He claimed to suffer from low self-esteem as a result of these childhood experiences. There is no further evidence to support this. On the contrary, the evidence given by his brother was to the effect that indeed their parents were religious and strict, and that probably the offender was treated somewhat more strictly than others because he was the oldest, but that they had a happy childhood with a lot of freedom, living in the country, and that he was not aware of any abuse within the family. He is only two years younger than the offender. 24. Further, as I read the reports written by Dr Rowe, when the offender saw Dr Rowe, he did not repeat those assertions that he had earlier made to Dr Dayalan of being subject to humiliating experiences and being treated strictly, but rather asserted that his mother was kind and affectionate towards him, but that both parents were physically distant. There is no further evidence capable of shedding any light on this apparent dilemma, and no evidence from which the Court could seek to understand what is meant by being subject to humiliating experiences. I do not accept what he told Dr Dayalan as being an accurate description of his childhood and, to the extent that this is relied on by him or Dr Rowe as part of the basis of their opinions as to his condition, I do not accept that that history has been made out. 25. I accept Dr Dayalan's opinion that the offender suffers from paedophilia and as I said, I accept his diagnosis in that regard. It is well-known to the Court that manipulation is a hallmark of this particular condition. It seems to me that the offender in his dealings with both the psychiatrist and the psychologist has been attempting to manipulate, at first the psychiatrist with the history given, and that this was exposed as such when his brother gave evidence. He has thus changed the history when he saw Dr Rowe. 26. The history given by the offender to either Dr Dayalan or Dr Rowe, in these circumstances, must be treated with a degree of circumspection, unless it is supported by other evidence. A further explanation of that finding appears in the report of Dr Dayalan, in which the offender said that he was feeling under stress, both psychologically and financially, at the time he committed the offences in the late 1990s, in a way which, from reading the report, he seems to suggest is connected, or is an excuse for having committed the offences against LE. 27. The summary of the offences that he gave Dr Dayalan in relation to the complainant, LE, was far from the truth, and sought to downplay the extent of the offending. Further, he did not even refer to the sexual abuse of his daughter in the mid-1970's, nor to the fact that he was sexually abusing LE well before the late 1990's, from 1987 onwards. Dr Dayalan, to be fair, on the face of the report, did not accept the offender's reports and noted the inconsistencies with the other documents provided. He diagnosed a paedophilic disorder which, as I have said, I accept. There is no evidence that the offender ever has abused either alcohol or used illicit drugs. 28. In the history given to Dr Dayalan, which to an extent seems to have been taken up by Dr Rowe, he appears to have explained the genesis of the offences against LE by saying that LE suffered from an infection on his penis when he was around 11, which required cream to be rubbed onto his penis. He told a psychiatrist that his partner, the boy's grandmother, had rubbed the cream onto the penis. The boy had giggled, and said he liked it, so the offender agreed to apply the cream. He said he did that three or four times over six months, and in those circumstances, rubbed LE's groin. He said that things got out of hand and that he had told the victim that what they were doing was bad and that they should stop. He said he had a good relationship with the victim, LE, after that and denied sexual contact subsequently. 29. This is a complete fabrication of the extent of the offending involving LE, and in my view causes some real concern about the true level of contrition and remorse. Certainly, at the very least, it does not indicate any contrition and remorse at the time he had the consultation with Dr Dayalan. 30. First of all, it seems to me, there is absolutely no reason why any adult ever need apply a cream to the penis of an 11 year old boy for any proper medical reason. He could easily have done it himself. Second, it does not explain what he was actually doing to and with LE, as is set out in the facts which he himself signed, and which started when LE was about two or three, with him taking photographs of most of it. And third, it amounts to victim blaming or at the very least seriously minimising the seriousness of the behaviour. 31. He also denied having engaged in sexual activity with other children, which of course completely ignores the charges involving his own daughter in the 1970s to which he has pleaded guilty. He told the psychiatrist, Dr Dayalan, that the images of bestiality, comprising the evidence for the third indictment, were not real photos, but had been photoshopped and manipulated. That is not what he has pleaded to. He also said that the photos taken of children found in his possession were not taken with sexual intent, but with artistic intent. That is complete rubbish, when the details in relation to some of those images is fully taken into account. 32. The offender, early on in this regrettably lengthy sentencing procedure, claimed to suffer from a series of medical conditions which both prevented him from participating fully in the psychiatric assessment, and which had been used by him until last Friday as a reason for never having to come to court for any of the dates on which this matter was before me for sentence, always appearing by audio visual link, despite the fact that two Judges of this Court have ordered to the contrary. 33. I do accept, of course, that whether he is brought to court in person or appears by audio visual link sometimes is at the discretion of Corrective Services and is not necessarily of his doing. However, significantly, he was not present in court, notwithstanding the fact that a Judge of this Court ordered that he should be, on the day when the two victims read out their victim impact statements. His reasons for not being available, it would appear, were because of an asserted series of medical conditions that prevented him from travelling. It seems to me that there is serious doubt as to whether or not that was accurate at the time. 34. Eventually, after several attempts, there was a proper medical report tendered that was before the Court on 23 October 2019 which is undated but which is relatively recent and is a report from Justice Health. 35. I accept from that report that in 2011, the offender had a throat tumour, which was treated with surgery and radiation. Since then, whilst both in the community and in custody, he has developed a persistent hoarse voice and some difficulty in swallowing. That has affected his ability to eat, and has become worse in more recent times. He has lost a considerable amount of weight since going into custody. He has been consistently treated and monitored whilst in custody for this condition including, it would appear, to investigate the increasingly deteriorating ability to swallow. 36. There is no evidence to suggest, however, any current malignancy or revival of the throat tumour that gave rise to the initial surgery. He does now however, have a nasogastric tube to administer all nutrition, liquid and medication, in large part as I understand the medical report, because of his difficulties in swallowing. He has spent extensive periods since going into custody in the care of Justice Health, and since at least May 2019, has been housed at the Long Bay Hospital Aged Care and Rehabilitation Unit. He has from there been taken to and from Prince of Wales Hospital on occasions for treatment, both regular and emergency. 37. He suffers a number of musculoskeletal conditions, which were investigated by Justice Health in July 2019 by way of an MRI scan and was found to have a spinal cord compression of the cervical spine as a result of disc protrusion. He had a cervical decompression and fusion to deal with that, and to remove a large cervical disc herniation. He regained some power in his arms and legs following that surgery. He had been suffering a decline in mobility before that, and was using a wheelchair in custody. He required assistance to transfer from bed to the wheelchair. He remains in a wheelchair, appearing both last week and today in a wheelchair with nasogastric tubing and it would appear other apparatus in his arm, which I accept is to administer medication. He has been treated by an occupational therapist at Prince of Wales Hospital for these issues and has been also seen on an ongoing basis by a geriatrician. 38. The most recent report from Justice Health sets out the various treatments he has received since 2019. He would appear to be receiving extensive treatment for his medical conditions, both within the prison hospital and, where necessary, on transfer to the Prince of Wales Hospital. In summary, his current medical condition is the following: 1. The treated throat cancer which has some ongoing disability, largely an inability to swallow which is being treated by nasogastric tubal feeding. It is being monitored on an ongoing basis. 2. High blood pressure which is medicated with a well-known antihypertensive medication and also atrial fibrillation for which he takes aspirin. There is nothing about these conditions in evidence, apart from the fact that they exist and the medication which he is receiving for them. There is nothing on the face of either of those that places it in any particularly significant category, nor unlike the same conditions suffered by many members of the community in his age group. 3. He has chronic obstructive pulmonary disease, but a recent chest X‑ray is reported as normal. 4. He has osteoarthritis of his knees and some cervical spondylosis, for which he takes Mobic, again a well-known and extensively used anti‑inflammatory medication in the community. Further, he has, as I have already said, had the cervical spine disc herniation removed, which has increased his movement and restored some power. 1. He will, on my finding, more likely than not spend the whole of the remainder of his prison term in the prison hospital, with regular trips to Prince of Wales or other public hospitals, because of his ongoing medical conditions. It would appear, as I have said, on the face of the reports already provided, that he has been receiving very extensive medical treatment and this is likely to continue. His mobility is compromised, as is evidenced by the fact that he is in a wheelchair. 2. He is now 73 and increasingly frail. This will adversely impact on his experience of prison compared to others in the prison community, but that finding is tempered by the finding that he will more probably than not spend the remainder of his prison term in the prison hospital, which is known to the Court to be a far less onerous experience of prison than being in the general prison population. Whether or not that requires him to be in a form of segregation or on protection, because of the nature of these offences, is not before me in evidence. 3. Dr Rowe offered opinions to the Court that the offender displays some mild cognitive impairment, suffers from a form of ADHD, and suffers from depression. Ultimately, I do not accept any of these opinions, or certainly do not accept that they affect the offender to any significant level. There is no evidence which I accept, which links his commission of the offending to any of those psychiatric conditions. 4. My reasons for not accepting these opinions is because, regrettably, just like in the case of Dr Dayalan, Dr Rowe did not apparently have the full history and also based his opinions on some other material which is not in my view substantiated, including that referred to earlier in relation to the alleged deprived childhood. As I have said, there is just no evidence to support that. 5. Dr Rowe also seemed to accept that the sexual abuse of LE arose in the context of an opportunistic event, which I assume refers to the allegation of rubbing cream into the boy's penis. Again, that is just not borne out in the material, including the fact that the sexual abuse of LE started when that child was aged between two and three. 6. Dr Rowe's opinion about a mild cognitive impairment is not that the offender suffers from any intellectual impairment. There is no evidence that he does. The opinion would appear to be that he suffers from what is said to be an impairment of executive functions. The diagnosis of ADHD would appear to be tenuous, based on administration of the Jasper/Goldberg Attention Deficit Disorder Screen and finding three only aspects of that, on which the offender rated moderate for two and high for one. 7. Dr Rowe had administered that test when he saw the offender and before his first report but did not mention those findings in that first report. From that, I infer that in fact he did not find it to be a significant issue. In his own evidence, he accepted that he was focussed on other matters at the time he wrote the first report. In fact, in his oral evidence, Dr Rowe stated that at best, ADHD was a possible diagnosis which he would need to follow up with additional testing before any formal diagnosis could be made. The screening test also depends entirely on self-reporting by the offender which, as I have already stated, must be viewed with a degree of circumspection. 8. I do accept his opinion, however, that the offender suffers from the condition of paedophilia. His opinion was that it was a milder form of paedophilia, which he explained was because there were limited victims and that he did not act in a predatory manner towards general members of the community. That part, I accept, is accurate. He also seems to have based his opinion that it is a milder form of paedophilia in part on the fact that the child pornography images found in the offender's possession, and in relation to some of them produced by him, were not as perhaps numerous as they are in some other cases. 9. I accept Dr Rowe's opinion that the offender suffers from the condition known as paedophilia. Whether it is mild or somewhat more than mild it seems to me is a matter for some contention. 10. Remorse and contrition are also real issues in this case. The offender recently on Friday 25 October provided a letter to the Court and asked for it to be read out. On its face, it expresses remorse and contrition. But it seems to me that there is a serious question mark over whether or not this is genuine, particularly when it is contrasted with what he initially said to Dr Dayalan and to some extent the terms of the letter itself. His remorse and contrition can to an extent be judged by the fact that he pleaded guilty, thus sparing the victims the need to give evidence to prove the offences, but those pleas of guilty were late on the day set for trial. Up until that day, each of these two victims would have expected that they would need to give evidence in this court about the events that occurred to them, and in both cases many of them were some considerable time ago. It is true, however, that the proof of some of the offences did not depend entirely on the oral evidence of the complainants, some of them being evidenced by way of photographs. 11. But in particular, so far as JW is concerned, proof of the offences involving her would have been somewhat difficult, so there is some utilitarian value in the plea of guilty. As I have said, however, they were late. He has expressed a desire to accept treatment and appears to accept that he is a paedophile. He told Dr Rowe that his behaviour was deranged, which indeed it was. It seems to me that the letter he wrote to the Court, and which was read out on Friday last week, although it purports to express remorse, to an extent also minimises his behaviour. 12. It has been argued on behalf of the offender that his prospects of rehabilitation are good. I do not entirely accept that. I accept that aspects of his manipulation consistent with the diagnosis of paedophilia have consistently been obvious throughout these sentencing proceedings. On the other hand however, when assessing the likelihood of reoffending, perhaps the most significant aspect of rehabilitation, it is appropriate to take into account that he is now 73, he is old and frail and it will be some time before he will be eligible for release back into the community. In those circumstances, he does not present any risk to the community. 13. He has agreed to undertake whatever treatment is necessary and available to him, both once he becomes a sentenced prisoner and, in time, when he is released into the community on parole, if that occurs. To that extent, the prospects of rehabilitation are reasonable, but in large part, because of his age and poor health. He continues also to have support in the community from his brother and some other siblings, which will assist his rehabilitation. It may be that there is another person in the community who will provide support and accommodation on his eventual release, but apart from an assertion to that effect, there is no evidence from or about that person. 14. He has a criminal history, but not in any way relevant to these offences and these sentences. There is one conviction for not meeting a cheque in 1983, an offence of being unlicensed, apparently occurring in 2005, which was in fact dismissed pursuant to s 10 and there is a disqualified driver and exceed speed in 1982 and something that is referred to as taxation in 1998. I have no real understanding of what this latter means. However, all in all, I accept that none of these is relevant for the sentences that I am to impose, and he can be regarded as a person with little, if any, criminal history. 15. However, he cannot be regarded as a person of prior good character. Since at least 1978 and perhaps earlier, he has been sexually abusing first his daughter and then his step‑grandson, and along the way, engaging in completely disreputable and appalling conduct, both towards these specific children and other children who he photographed and then used those photographs to produce child abuse material. His attitudes, as depicted in this produced child abuse material, depict a person who could not in any way be described as a person of prior good character. 16. They are, as I understand it, the relevant matters to be taken into account when looking at the subjective case surrounding the offender for each of the matters before the Court. 17. Turning then to the specific offences. The relevant facts and background for all of them are that the offender, as I have said, is the natural father of the complainant, JW, who was born in 1969. The offender and JW's mother lived together until about 1986 when they separated and JW remained living with her mother. After separating from JW's mother, the offender commenced a relationship with another woman who already had two children, one of whom was a daughter. 18. That daughter gave birth to a son in 1985, who is the complainant, LE, the complainant relevant for the first indictment. She was unable to care for him, and so her mother took care of LE from the time he left hospital. The offender moved in to live with them when LE was about 11 months old. About five months after that, LE was returned to his mother's care, but the offender continued with LE's grandmother, and thus became his step‑grandfather. They would babysit LE regularly, and he would often stay overnight with them. He had a close relationship with the offender, who would buy him gifts and take him on outings. 19. When LE was about nine, he complained to his mother that the offender was touching him inappropriately. There was a family meeting involving LE, his mother, grandmother and the offender, and the family attributed the complaint to childhood inquisitiveness. In 2005, LE complained to police about the offender's conduct when he was a child. LE was then aged 20. The offender was not charged and the investigation was closed. The offences ultimately came to light following information being received by New South Wales Police via the Royal Commission into Institutional Responses to Child Sexual Abuse. Police interviewed the offender's daughter, JW, and his step‑grandson, LE, who made allegations in relation to the offender. 20. On 16 June 2016, police executed a search warrant at the offender's home and seized a large amount of photographic and video material. The child pornography offences and some of the specific counts of indecent assault and sexual intercourse arise from some of the material located at the time of this search. The offender was arrested on the day of the search and, as I have said, has been in custody bail refused ever since. 21. I will deal with the second indictment first, that is the indictment involving the complainant, JW, and the related Form 1 offence. Count 1 in the second indictment is a charge, as I have said, contrary to 76A of the Crimes Act 1900 then in force, specifically that between 3 April 1976 and 2 April 1978 he committed an act of indecency on JW who was then under 16, namely 7 or 8. The Form 1 offence attaching to this offence is another charge of committing an act of indecency towards JW between 3 April 1983 and 2 April 1985 when she was under the age of 16, namely 14 or 15, and is contrary to s 61E(2) of the Crimes Act 1900 then in force. At the relevant times, as I have said, the maximum penalty for s 76A was 2 years, and similarly, 2 years for the offence contrary to s 61E. 22. The second substantive offence in that indictment is a charge that between 1 January 2005 and 3 November 2007 he produced altered images of JW and three other young females, one known and another two unknown, which he had manipulated for the purpose of making child pornography. This is an offence contrary to s 91H(2) of the Crimes Act 1900 then in force with a maximum penalty of 10 years imprisonment. 23. The facts are that at some stage between April 1976 and March 1978 when JW was seven or eight, the offender entered her bedroom when she was asleep. He pulled her nightie up over her chest and spread her legs apart, exposing her genitals. He took a photo of her genitals, which he later developed. 24. In 1983, when JW was about 14, she asked the offender for permission to have her ears pierced. He agreed, but only if JW and two of her friends participated in a photoshoot. She arranged for two friends to do so. The offender took a number of photos of them in various positions around a lifebuoy. 25. At some stage, JW was also in the studio with the offender. She asked if her mother could come into the studio, but he said no. He put makeup on her and asked her to pout her lips whilst he applied lipstick to her. He asked her to lie on a towel with her face down, which she did. He said that he would pretend to rub sunscreen on her back and would photograph himself doing this. He then took a photo of himself pretending to rub sunscreen onto her back with one hand, but at the same time was exposing his erect penis and masturbating. 26. He took photos of this activity. JW's mother found these photographs of her daughter in the offender's dark room and showed them to her, which upset her. Her mother confronted the offender, who said that it was none of her business and that she should not go through his possessions. It would appear that no report was made to authorities at the time. 27. Following the execution of the search warrant and arrest of the offender on 16 June 2016, police seized a cardboard box that contained handwritten scripts of stories of a graphic sexual nature involving the offender and children. One of the items seized was a photo of a young girl who had been one of JW's friends who participated in the photo shoot. This photo had been combined with a hand drawing depicting a 14-year-old child being penetrated by the offender. There were sexually explicit words written alongside this manipulated photo which I will not read onto the record. 28. Both for this offence and many of the others, I do not propose to allow the proceedings in this Court to be used by this offender, or any other likeminded person, as a source of titillation, which would allow the re-victimisation of these victims, or which would amount almost to a secondary publication of child abuse material. As such, I will as much as possible avoid repeating salacious and obscene comments onto the record. They are set out in the agreed facts, which have been signed by the offender and are tendered. The words to which I refer in relation to this offence are to be found in the second paragraph of page 3 of these facts. 29. Also, during the search, police located a number of compact discs and a significant number of photoshop files which depicted the offender penetrating children, including JW at the age of 14. These are manipulated images which combine images of JW and real images or videos of the offender engaging in sexual exploits. One of these manipulated images contained an extremely sexually explicit story involving him and JW. There was also a photo located of what appears to be a real child aged about seven being penetrated by an object with words added by the offender of a sexually explicit nature. These details are at the bottom of page 3 of the agreed facts. 30. These are the facts for counts 1 and 2 in the second indictment, and the Form 1 offence to be taken into account when sentencing. Each one of them is objectively serious. All child sexual assault offences are serious. The Court has knowledge and experience of the fact that victims of child sexual assault are frequently permanently damaged. The Court must take into account, in assessing the objective criminality of offences of this type, the fact of trauma experienced by children who are the victims of child sexual assault. 31. The Crown has referred to the decision of R v Gavel [2014] NSWCCA 56 and the quotation can be found at the bottom of page 4 of the Crown's written submissions. In particular, I accept that child sex offences have profound and deleterious effects on victims for many years, and perhaps for the whole of the victim's life. I accept the findings of Courts both here in New South Wales and in the United Kingdom that sexual abuse of children will inevitably give rise to psychological damage and in particular adopt, with respect, the dicta of the Victorian decision of Clarkson v R [2011] VSCA 157, in which that Court found the following: "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." 1. JW read out a victim impact statement in court in relation to the specific impact on her of these offences. I listened to that, I have read it, and I take it into account. The impact on her of these offences has been serious. She reports reactions of the type of which the community is generally aware are likely to occur to victims of child sexual abuse. I accept that she was humiliated when she became aware of the photographs, because they were shown to her brothers. She was thereafter forced to remain living with the offender. I accept that she lived in a heightened state of awareness. 2. The objective seriousness here is elevated by the fact that the offender is this complainant's own father, and she was very young, only seven or eight at the time the offence was committed. Not only was she under his authority, which is part of the offence itself, but there was a considerable breach of the trust which children are entitled to have in their parents. The impact of these offences on JW, albeit serious however, do not rise to the extent in my view of injuries which would be treated as a circumstance of aggravation. 3. Clearly enough, count 1 is objectively serious. It is true that if the matters had been sentenced at around the time of the offending, it is highly likely that something other than a term of imprisonment would have been imposed. The courts and the community viewed child sexual assault in a very different light at that time. However, the attitude of both the courts and the community has changed, which has given rise to the legislative provision to which I referred at the beginning of this sentence. Even without that provision, the range of penalties for offences, even those involving committing an act of indecency towards a child, has increased, and not just to reflect the increased maximum penalty. However, the maximum penalty must always be considered and for this offence it is only 2 years. 4. I accept that the objective seriousness of this offence is relatively high. The offences were committed in her own home. She was asleep in her bed for the substantive offence in count 1. They are further aggravated by the fact that not only did the offender commit the offences, but he photographed them as well, and kept the photographs for a considerable period of time that could only have been for his own sexual gratification. It is also necessary to take into account in a meaningful way the objective seriousness of the Form 1 offence. 5. The s 5 threshold is clearly reached, particularly so when assessing this sentence on the basis of present sentencing patterns. It is not however at the top of the range for such offences. Count 1 is around the middle in terms of objective seriousness, or a little more. It would appear to have been an offence capable of being dealt with the in the Local Court, where even now the maximum sentence would be two years. 6. Taking into account the small discount of 10%, but also treating in a meaningful way the Form 1 offence, it seems to me that the term of imprisonment for count 1 should be 18 months. I will not be setting a non‑parole period for this offence. It will be a fixed term, as it will be part of a much longer overall non-parole period. 7. Count 2 of this second indictment, the offence of producing child pornography between 2005, is also serious. There was more than one young girl's photograph used. They were real children, including his daughter. The scripts were sexually graphic. One of the images, albeit digitally altered, depicted a real child, who he had manipulated into being present for a photo shoot and who was a friend of JW, and this image had been manipulated to show him penetrating her with an added sexually explicit description. He had altered images showing him apparently penetrating JW, his daughter. Another, as I have said, depicts the graphic sexual penetration of a young girl of about seven. 8. This is obviously a serious offence. It is disgusting behaviour. There is no evidence that he disseminated any of these images however, or that he intended to do so, or intended to obtain payment of them or anything similar. He did, however, retain them and I accept more probably than not, used them for his own sexual gratification or benefit. This is not a minimal example of this offence. It is serious, but nowhere near the top of the range for offences of this type. The number of images is relatively small compared to many other cases that come before the Court. 9. The fact that some of the images were digitally produced or altered is a consideration which reduces the objective seriousness of the offending, but the fact that some of the material involved photographs of real children, and for that matter children who were friends of JW or children known to the offender, increases the objective criminality. Some of the pornographic images, whether digitally manipulated or not, are also quite depraved and serious in their content. However it is, despite that, overall below the mid-range in terms of objective seriousness. 10. The s 5 threshold is reached, however. Absent the plea of guilty for this matter, the relevant sentence, in my view, would be a term of imprisonment of 3 years. The appropriate overall sentence, therefore, should be 2 years and 9 months. If this were accumulated to the other sentence in relation to JW, that would give rise to a total of 4 years and 3 months. 11. I propose to sentence both offences on the second indictment by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 which I will set at 4 years, taking into account all of those findings. It is unlikely that I will set a non-parole period for this aggregate sentence, because it is likely that it will either be the commencement sentence or the second sentence, and that will be part of an overall non-parole period. 12. I now turn to deal with the third indictment and will postpone dealing with the first indictment until the adjourned date for this sentence because it is lengthy. The findings are necessarily lengthy, and it will take too much court time to complete today. 13. However, I turn now to the third indictment. Count 1 in that indictment is a charge that between 1 August 1993 and 3 August 1999 the offender committed an act of bestiality with a dog. He asks that when sentencing for this offence, I take into account an additional offence on a Form 1 that is a further charge of bestiality with a dog, also committed between 1 August 1993 and 3 November 1999. Count 2 in the indictment is a charge that between 3 November 1999 and 3 November 2003 he committed an act of bestiality with a dog. 14. These offences also came to light following the search conducted on 16 June 2016 when police located a large number of videos and still photographs of acts of bestiality. One series of images depicts the accused penetrating the anus of his family dog with both his hands and his penis, and there are close‑up photographs of the accused's penis inside the dog. That is the Form 1 offence and occurred somewhere between 1993 and 1997. One of the videos depicts the dog licking the offender's genitalia and the offender doing the same to the dog and then penetrating his anus with his penis and fingers. He records himself describing the act in sexually explicit words, and indicating that this was not a one-off offence, but had been ongoing for the whole of the dog's life. That is count 1 in the indictment. 15. During the same search, police located similar bestiality images with a different dog, which was identified as the companion dog of the offender's neighbour. There was also a video located, which runs for an hour and shows sex acts between the offender and this dog. The images depict the offender placing a substance on his body to encourage the dog to lick his penis and anus, and also depicts him engaging himself in forms of bondage during the acts. It shows the accused becoming irritated with the dog and pulling his tail when he had difficulty penetrating the dog's anus. This incident appears to have occurred in a bedroom in the accused's home sometime between 1999 and 2003. 16. These are all serious offences. The maximum penalty for them is 14 years imprisonment. It is, it seems to me, a somewhat bizarre outcome that the maximum penalty for these offences is 14 years, but the maximum penalty for the offences of indecent assault involving the offender's own daughter was 2 years. That is perhaps an indication of how the attitude of the community has changed over many years to sexual abuse. It is, however, what it is. This behaviour on the part of the offender is perverted. Dogs are trusting animals and obey their owners. They should not be used in this way. One of these dogs was a family pet, and the other was the companion animal of a neighbour. 17. It is surprising that none of the reported cases in the statistics published by the Judicial Commission for offences sentenced in this court, pursuant to this section, have given rise to a full-time term of imprisonment. There have been terms of imprisonment imposed in the past, but they have been suspended pursuant to s 12. Suspended sentences are no longer available. In my view, this offending crosses the s 5 threshold for imprisonment. Count 1 involves the anal penetration of the female dog and, from what was said, could not be found to be a one-off offence. Count 2 involved an act that lasted an hour. It is an even more serious example which went on for a long time and even involved him inflicting some physical pain on the dog by pulling its tail just because he, the offender, was having trouble continuing to penetrate the dog's anus with his penis. Equally, the s 5 threshold has been reached for this offence. It must be full-time imprisonment. The only alternative would be an Intensive Corrections Order, which is in practical terms, even if for no other reason, simply not available in this matter. 18. I have determined that the appropriate penalty for count 1 is 12 months, and for count 2 is 18 months. In the circumstances, I propose that the sentences be concurrent with each other. They do amount to separate occasions with two separate dogs, and it is arguable that there perhaps ought to be some partial accumulation, but, given what will be a significantly longer non-parole period, it makes very little difference in the overall sentence structure. I will order that each of these sentences be served concurrently. 19. It then turns to consider the relevant facts for the first indictment, that involving the complainant, LE. There are 27 counts in that indictment, covering criminality ranging between indecent assault to sexual intercourse to the production and possession of child pornography material. The offending covers a period of 10 years, and the legislative provisions have changed, at least in terms of some of the maximum penalties, during the relevant period. It is a lengthy exercise to set out both the facts in relation to each of the individual 27 counts and the two offences to be taken to account as additional offences, to assess the objective criminality of them, and to announce the appropriate sentences. 20. For that reason, given that it is close to 4pm on Friday afternoon and the offender is in custody, albeit appearing via AVL, I propose to adjourn the further judgment part heard and to continue with this part of the judgment on the next occasion and the final imposition of the overall sentences. For that reason, I will stand the sentence judgment over part heard before me to I will stand over the matter to sentence judgment part heard before me to Wednesday 6 November at 10am. Bail not applied for is refused. A s 77 warrant for the offender to appear via AVL on that day. I estimate about another hour to complete the sentence. Thank you. I do not imagine that there is going to be anything that will get in the way of finishing that. My jury should, at worst, be still out on verdict at that stage and if they do give me anything else that day, well it can take second place to this. 21. Having dealt with the Indictments numbered 2 and 3 and the overall subjective circumstances of the offender and having made findings on the earlier occasion in relation to the appropriate sentences for the counts in indictments 2 and 3, I now turn to the first indictment involving the complainant LE. 22. There are 27 counts in that indictment. Fourteen are charges of having sexual intercourse with the complainant between 1992 and 1998 when he was between 7 and 12, with 12 of those committed in circumstances of aggravation, namely that the complainant was then under the offender's authority. There are six counts of indecent assault occurring between 1987 and 1995 when LE was aged between two or three and eight or nine, some of them also aggravated by the fact that the complainant was under the authority of the offender. 23. The remaining seven charges are of possessing or producing child abuse material. The maximum penalties for two of the sexual intercourse offences is 20 years. For the remainder, is 10 years. The maximum penalty for each of the indecent assault offences ranges between 6 and 10 years, and the maximum penalty for each of the offences involving child abuse material is 10 years. The maximum penalties for some of the sexual intercourse offences are affected by the time at which the offences were committed. The same general factual circumstances to which I referred in the first part of this sentence judgment are also relevant. I will deal first of all with the indecent assault offences which are counts 1, 2, 3, 5, 6 and 7 in the indictment. 24. Count 1 is a charge contrary to s 61E(1)(a) of the Crimes Act 1900 then in force of indecently assaulting LE between 4 October 1987 and 3 October 1989 when he was under 16, namely 2 or 3, and was under the authority of the offender who was his step-grandfather. 25. When sentencing him for this, I am to take into account as additional offences two offences in a Form 1 signed by the offender on 19 March 2018 which are also both charges contrary to the same section of indecently assaulting LE between 4 October 1987 and 3 October 1989, also in the same circumstance of aggravation. Each of these offences carries a maximum penalty of imprisonment of 6 years. 26. The three offences came to light as a result of photographs located in the offender's premises during the search of 16 June 2016. The photograph which proves count 1 depicts the victim aged two or three naked and blindfolded. The offender is also in the photo also naked and holding the victim upside down with his legs over the offender's shoulders. The offender was seated on the bed and his penis was close to the offender's mouth. The victim looks distressed in this photograph. 27. The first of the Form 1 offences, also proved through a photograph found in the search, also shows the victim naked, blindfolded, and kneeling face down on the bed with the offender kneeling behind him with his penis between the victim's buttocks. The second form 1 offence is also proved by another photograph found in the search which shows the victim seated on the edge of the bed, naked and blindfolded. The offender is also naked and is pushing the victim's head down towards his penis. The offender is holding the victim's right hand against his bottom and the victim appears distressed. 28. The substantive offence count 1 is a serious instance of indecently assaulting a child. It would appear to have occurred in the offender's home. The child was only very young aged between two or three. The offender was his step-grandfather so exercising authority over him which is an element of the offence. The agreed facts indicate that the child appeared frightened or distressed in these photographs. In addition however to his being under authority, this amounts to a gross violation of the trust which the victim was entitled to have in this man. 29. The indecent assault involved actual physical contact between the naked offender and the naked victim, and it was even more than usually depraved because the victim was blindfolded. He took photographs of the activity and kept them. All of these are relevant considerations in determining objective seriousness. It is not possible to know how long the indecent assault lasted but in all other respects, on these findings, this is a very serious example of indecently assaulting a very young child. 30. It is certainly above the middle of the range of offences capable of being charged pursuant to this section. The two Form 1 offences are of equal severity, and they must be taken into account in a meaningful way which means that the appropriate sentence for the substantive offence will be increased. Even at the time, in 1987 to 1989, it is likely that a prison term would be imposed for such offences. But it certainly is the case at present that on a finding of objective criminality of this type for this sort of offence, the s 5 threshold is met, and that, as I stated on earlier amounts to full-time custody. 31. Reference to the JIRS statistics published for sentences dealt with under the section since October 2018, that is in accordance with the current sentencing regime, albeit a small sample, indicates that in 100% of cases reported, full-time imprisonment was imposed. In this case, it seems to me, taking into account the discount for a late plea of guilty that the appropriate term is 3 years and 6 months, also having taken into account the Form 1 offences. 32. Count 2 in that first indictment is another charge contrary to s 61E(1)(a) of the Crimes Act 1900 of indecently assaulting LE between 4 October 1990 and 3 October 1992 when he was five or six and also under the authority of the offender. The maximum penalty during that date range was either 6 or 7 years but I ought to have regard to the lower of the two, namely the maximum penalty of 6 years. These offences are also proved by photographs found during the search in June 2016. 33. One of those depicts LE, aged about six with the offender, who was sitting on a chair. The victim is kneeling in front of him, and the offender is holding the side of the victim's head with his hands and his penis is placed against the victim's mouth. There were two photograph sheets or photos, each of which comprises six more images of this event. There were words on the back which indicated more probably than not that the offender was intending to store these photographs in digital format. 34. This is also a serious instance of child sexual assault. The same objective findings apply as made in relation to the earlier offence. It was apparently committed in the offender's home. The child was very young, about five or six, albeit not as young as for count 1. It was a gross violation of trust in addition to the statutory circumstance of aggravation. There are no Form 1 offences to take into account. There is not quite the same level of depravity and thus objective seriousness as for count 1 but was nonetheless very serious. It is probably slightly below the middle of the range of offences capable of being charged under this section. Taking into account the 10% discount for the late plea of guilty I indicate a sentence of 2 years imprisonment. 35. Count 3 is a further charge of indecently assaulting LE between October 1991 and October 1992 when LE was six. This is an offence brought contrary to s 61M(2) then in force which carried a maximum penalty of 10 years imprisonment. It is also proved by a photograph located during the search. There were 7 photograph sheets located during this search which contained 28 small images of the offender and the victim showing the offender kneeling behind the victim with his penis against the victim's anus. The photos show the interior of the offender's house at the time, which is the circumstance of aggravation, that is namely his being under the authority of the offender which forms part of the offence. 36. This is an offence contrary to s 61M(2) which in its own term is the aggravated form of this offence. The same general findings of objective criminality apply. The victim was young, it was a gross violation of trust, photos were taken of the event and were retained for some 14 or 15 years. It would appear from the agreed facts that the offender and victim were also naked. 37. The maximum penalty for this of 10 years is to be used as a yardstick or indicator. It is a little below the mid-range in terms of objective seriousness, but the s 5 threshold is definitely reached, and in my view, after deducting a discount for the late plea of guilty, a term of imprisonment of 2 years and 6 months is appropriate. 38. Counts 5, 6 and 7 are the other three charges of indecent assault involving the complainant LE. Count 5 relates to a period between 4 October 1993 and 3 October 1994 when LE was eight. Count 6 relates to a period between October 1993 and October 1995 when LE was eight or nine. Count 7 also relates to a period between October 1993 and October 1995. Each of these is contrary to s 61M in (2) which also carries a maximum penalty in each case of 10 years imprisonment. Again, they came to light and are proved, by the photographs found during the search of the offender's home in June 2016. 39. For count 5, there were seven photographs depicting 20 still images of the offender and the victim when he was about 8. They are both naked in the lounge room of the offender's home. They depict the victim upside down facing away from the offender who is holding the victim's legs around his waist. One of the images shows the offender with his penis against the victim's anus whilst he is upside down. 40. In another image, the offender has a towel around his waist and the victim's head is under this towel facing his groin. Other images depict the offender and the victim in various positions while naked. This offence has many factual similarities to count 3 except that the victim was about two years older which in my view does not in any real way alter the objective seriousness of the offending. All of the same findings that I have already made apply, again making that comment without in any way attempting to minimise the seriousness of each individual offence. In those circumstances, it seems to me that the same penalty as indicated for count 3 is appropriate, namely 2 years and 6 months. 41. For count 6, there were 6 photographs containing 48 still images of the victim and the offender. 28 of these show the offender placing his finger or thumb against the victim's anus as he is bent over. I infer that the victim, at least, was naked at the time. The offence occurred again at the offender's home in Toongabbie sometime between October 1993 and October 1995 when the victim was eight or nine. 42. For count 7, there are 12 images depicting the victim placing his finger against the offender's anus as he is bent over. From that, I infer that at least the offender was naked whilst this was occurring. Other images depict the victim cuddling the offender whilst on his lap but the facts do not allow me to make a finding as to whether or not either of them was naked at the time these images were taken. 43. This also occurred at Toongabbie during the same two-year period which is relevant for count 6. Both of these are objectively serious, if for no other reason, than that they are incidents of child sexual abuse committed by the offender who the victim was entitled to trust implicitly not to use him for his own sexual gratification, committed in the house where the victim was in reality required to be from time to time because of his own family circumstances and which he was entitled to regard as a safe haven where he could be protected and cared for by the adults in that house, and these offences were also part of an ongoing course of conduct. 44. They are made more serious by the fact that the offender photographed these sexual acts with the victim and still had them in his possession right up until the time of his arrest. They are however, at least on the facts before me, of the same level of seriousness as some of the other offences and on my finding, they are below the mid-range in terms of objective seriousness. There is very little difference between counts 6 and 7. The maximum penalty is 5 years. The s 5 threshold is clearly met. I am taking into account the discount for a late plea of guilty and indicate the appropriate penalty for each being 2 years imprisonment. 45. I now turn to the sentences for the 14 charges of sexual intercourse with LE. They are counts 4 and 8 to 20 inclusive. Count 4 is a charge of having sexual intercourse with LE between 4 October 1992 and 3 October 1993 when the victim was under 10, namely 7. It is an offence contrary to s 66A of the Crimes Act 1900 then in force which carried a maximum penalty of 20 years. It is again an offence proved through photographs found at the search. These photographs depict the offender with the victim and show him placing the victim's penis in his mouth and biting the tip of the victim's penis. There are words on the back of these photographs which I accept indicate that there was an intention to save these images to a digital format. 46. This is a serious offence. The 20 year maximum penalty set by the legislature indicates that, if nothing else. But further, the victim was only seven, he was only a young boy. It is aggravated by the fact that he was under the authority of the offender which does not appear to be a statutory circumstance of aggravation for this offence. There is no way on the facts to determine for how long the offence lasted, nor do the facts allege that the victim suffered any actual pain. It is however depraved. The child at least must have been naked, and like all of the other offences, was committed in the offender's home where the victim was entitled to feel safe. 47. It is not however, despite all of that, above the mid-range in terms of objective seriousness. I must sentence in accordance with the current practice, albeit with a maximum penalty which was then relevant, of 20 years. It is of interest, particularly in terms of assessing the way in which matters of this type are now viewed by the Court and for that matter the community, to note that the maximum penalty for this offence, had it been charged in recent times, would be life imprisonment. However, taking into account what I regard to be objective seriousness below the mid-range and indeed relatively low objective seriousness for an offence capable of being charged under this section, I indicate the appropriate sentence for this offence is one of 4 years imprisonment after taking into account the discount for the late plea of guilty. 48. Counts 8, 9, 10, and 11 are all offences contrary to s 66C(2) of the Crimes Act 1900 then in force, of having sexual intercourse with LE who was then aged between 10 and 16 and who was under the authority of the offender. The maximum penalty at the time was 10 years imprisonment. These four offences also came to light during the search in June 2016 when photographs were located. 49. Count 8 occurred between October 1995 and October 1997 when LE was 10 or 11. Specifically, it relates to a series of photographs depicting the offender and the victim engaged in various sexual acts. These include a photograph of the victim placing the offender's penis into his mouth. That is the full extent of the facts before me from which I can assess the objective seriousness of this offence. It has all of the same hallmarks in relation to objective seriousness that I have referred to in relation to the other offences involving LE. 50. The fact that the victim was under the authority of the offender however is a statutorily pleaded circumstance of aggravation, so does not of itself elevate the objective seriousness. It is however, apart from all of those general observations, impossible from the agreed facts to know any of the other specific objective circumstance that might surround this offence. The maximum penalty of 10 years is a yardstick. On the facts before me, it is a little below the mid-range in terms of objective seriousness, but the s 5 threshold has been reached. I indicate a term of imprisonment for that offence, count 8, of 3 years. 51. Count 9 also occurred between October 1995 and October 1997 and relates to a photograph found on examination of the offender's computers when his premises were searched. Police located a single image which showed four separate photographs of the victim performing oral sex on the offender at different stages of the act. The offence was committed in the offender's premises when the victim was aged about 10 or 11. Those images had been saved and were still present on the computer as at June 2016. The same sorts of considerations apply in relation to an assessment of objective criminality, and on that basis it also seems to me the appropriate prison term is one of 3 years, which will be the indicative sentence for count 9. 52. Count 10 also occurred between October 1995 and October 1997 and relates to a photograph found at the time of the search showing the victim on his hands and knees. The offender placed himself underneath the victim and put his penis into the victim's mouth and at the same time placed his thumb into the victim's anus. This also occurred at the offender's home. It has the same overall hallmarks of objective criminality but the distinction with this offence is that there are two aspects of physical contact between the offender and the victim which amount to sexual intercourse including penetration of the victim's anus by the offender's thumb whilst at the same time performing fellatio on him. 53. It seems to me that that makes it a somewhat more serious instance of this particular offence than those others in this group, namely counts 8 to 11 and for that reason, I indicate the appropriate penalty is 4 years imprisonment. 54. Count 11 also occurred between October 1995 and October 1997 when the victim was aged about 10 or 11, and involves photographs located which depict the victim lying on his back on the lounge at the offender's home whilst the offender is on top of him. In one of the images, the offender is fellating the victim. For all of the same reasons already stated, without in any way attempting to diminish the objective seriousness of each one of these individual offences, but in order to attempt to bring this sentence to an end as soon as possible, the same sorts of considerations of objective criminality apply as for counts 8 and 9, and I indicate the appropriate penalty as 3 years' imprisonment. 55. Count 12 is another charge of having sexual intercourse with the victim LE who was then under the age of 10 years, namely 9 years. It is an offence contrary to s 66A of the Crimes Act 1900 and thus carries a maximum penalty of 20 years imprisonment. This is not an offence proved by way of photographs but rather one on the basis of a complaint made by LE to the police. 56. I accept from the facts that during this time period when the victim was about 9, he would perform oral sex on the offender which the victim would initiate by touching and prodding the offender's penis. This would occur while the victim and the offender were lying together watching television. The victim would lie with his head on the offender's crutch while the offender was wearing short shorts. 57. The relevant facts for this particular offence are that on one occasion, in these circumstances, the victim poked the offender's penis until it became erect and came out the side of his shorts. The offender put his erect penis into the victim's mouth and became increasingly aroused as the victim continued to perform fellatio on him. The victim was only 9 at the time. This offence is aggravated by the fact that it was committed whilst the victim was under his authority which does not appear to be a circumstance of statutory aggravation relevant to this offence. The victim was in the offender's home and he was his step-grandfather. All of the same indicia in relation to objective seriousness are present and relevant. 58. I infer that clearly by this stage, the offender had groomed the victim into performing and even initiating sex acts on him, which is how this occurred. This is a very serious violation of trust and a very serious victimisation of LE who was, as was known to the offender, a vulnerable child with issues involving his mother's ability to provide care, who then turned to the offender and his then partner to fill that gap. To use him therefore for his own sexual purposes is extremely serious. The maximum penalty is 20 years which must be taken into account as the yardstick. 59. It is more serious than count 4, which is the other offence brought contrary to s 66A. The s 5 threshold is clearly reached, and I indicate the appropriate penalty for this offence is 5 years imprisonment. 60. Counts 13, 14, 15, 16, 17, 18, 19, and 20 are all charges of having sexual intercourse with LE who was then aged between 10 and 16 and under the authority of the offender. They are brought contrary to s 66C(2) of the Crimes Act 1900 which carried a maximum penalty of 10 years at the relevant time. 61. Counts 13 to 18 inclusive all occurred at the offender's premises in Toongabbie and arise from photographs found during the search in June 2016. Counts 13 and 14 occurred between October 1995 and October 1998 when the victim was aged between 10 and 12. Count 13 relates to a photograph depicting 16 smaller images. The top two rows of the photographs, being eight smaller images, show the offender and the victim engaging in sexual acts which includes the offender performing oral sex on the victim. 62. Count 14 relates to one photograph which shows the offender with the victim's penis in his mouth. Again, without repeating them, all of the same general findings in relation to objective seriousness are relevant. These two offences are very similar to the offence which was count 8, and in those circumstances I indicate a term of imprisonment for each of them of 3 years. 63. Count 15 occurred between October 1995 and October 1996 when the victim was 10. It relates to three photos which contained seven still images which depict, according to the agreed facts, the victim penetrating the offender's anus when the victim was 10. It is more serious than 13 and 14 because it involves the offender allowing and permitting the victim to engage in penetrative sexual contact with him. I indicate the appropriate penalty, which of course must be imprisonment in the circumstances, to be 4 years. 64. Counts 16 to 18 occurred between October 1996 and October 1997 when the victim was 11. Count 16 relates to nine photos found during the search which contained one image each. In seven of these photos, the victim is naked with ropes tied around his legs. One image shows the offender performing fellatio on the victim whilst penetrating his anus with his finger. That is the subject matter of this count. 65. This is made somewhat more serious because of the use of restraint or bondage, and it makes it a more depraved example of this particular offence. It must be remembered that the victim was an 11 year old boy at the time. In the circumstances, I indicate, taking into account the same overall general indicia of objective seriousness, but also the particulars involving this offence, that a term of imprisonment of 5 years is appropriate. 66. Count 17 relates to nine photographs which, according to the agreed facts, depict the offender performing fellatio on the victim. It is one of the nine photographs found during the search of which seven are the subject matter of count 15. Again, the same indicia of objective seriousness apply. It is below the mid-range in terms of objective seriousness however in terms of its own facts, albeit that the same general circumstances are relevant. I indicate that the appropriate sentence for this offence is 3 years imprisonment. 67. Of this same group of nine photographs there were four, which according to the agreed facts show the victim performing anal sex on the offender. That is the subject matter of count 18. The facts go no further than that. That is the extent of the material that I have for this particular offence. It is clearly serious, involving as it does the offender's permitting actual penetrative sex to occur between him and an 11 year old boy. How it occurred, in what circumstances other than it was at his home whilst he was under his authority I cannot know, because the facts are silent about that. In the circumstances, I will indicate a term of imprisonment of 4 years as the appropriate term. 68. Count 19 does not arise as a result of photographs but because of a complaint made by the victim LE to police. It is an offence I accept which occurred at the offender's home between October 1998 and October 2000 when the victim was 13 or 14. The offender and victim were in the lounge room of the offender's home. The victim put the offender's penis in his mouth and then heard his grandmother coming downstairs and saw her feet at the top of the staircase. He removed the offender's penis from his mouth and the offender quickly pulled up his pants and gave the impression that he and LE were snuggling on the couch as they often did. 69. Again, it has all of the same hallmarks in terms of objective seriousness but it is somewhat less serious than some of the other more overtly sexual behaviour depicted in the photographs that are the subject of other charges. It would appear to have only lasted a short time and not be as physically intrusive as some of the other offences. I indicate the appropriate penalty for that being a term of imprisonment of 3 years. 70. Count 20 is the last of the sexual assault offences involving LE. It occurred in the offender's home between October 1997 and October 1998 when the victim was 12. The offence came to light from the contents of a video found during the search. This shows the offender on a couch talking with the victim and kissing him. The victim is depicted putting the offender's penis into his mouth in this video. That is the full extent of the material tendered to me in the agreed facts from which I am in a position to assess anything that might be the particular objective seriousness of this offence. Otherwise, all of the same indicia of objective seriousness apply as in the other cases. I indicate a sentence of 3 years imprisonment. 71. They are then all of the sexual offences involving LE. That is counts 1 to 20 inclusive in this first indictment. For all of these sexual offences involving the victim LE, they are objectively very serious and that is particularly so for those involving sexual intercourse, namely counts 4 and 13 to 20. I have indicated when going through those offences what in my view is the appropriate sentence for each of them. In all cases, I have made reference, where there is evidence available, to some of the matters which I have taken into account relevant to each specific charge in determining the objective seriousness. 72. But it ought to be noted on a general assessment that this group of 14 offences of sexual intercourse with a child under 16 is objectively very serious. They involve various forms of sexual intercourse including oral sex, penetrative sexual intercourse including an occasion where the offender penetrated the victim's anus with his finger and where he permitted the victim to penetrate his anus in some way which is not disclosed in the facts. The child was only young and very young for many of the offences. He was 12 at the oldest. He was under the authority of the offender, which of course is an element, but the offender was his step-grandfather. The child was entitled to trust him to act like a grandfather, not to use him for his own perverse sexual purposes. He was in the offender's home, which the victim regarded as his own home when he was there. He spent a great deal of time there. There were multiple acts of child sexual assault on an ongoing basis over a period of 10 years with clear indications of grooming of the victim over this period of time. 73. In assessing the overall seriousness of each of the offences involving LE, I have also taken into account the victim impact statement prepared by him which he read out in court. I accept, even without a victim impact statement, that the Court would find without any doubt whatsoever that it was highly likely he would be very seriously damaged as a result of this sexual abuse over 10 years. But I accept that in fact he has been seriously impacted as a result of this ongoing sexualisation of him by the offender. 74. He sets out in his victim impact statement exactly the sorts of impacts one would expect from this very lengthy and ongoing period of abuse. Again, it seem to me however that there is no evidence from which the level of injury would be elevated to an aggravating factor, but he clearly has ongoing psychological sequelae and his life I accept has been very adversely affected by the offender's behaviour which for him started when he was only about 2 or 3 and extended, at least so far as these offences are concerned, up to the age of 12. 75. No doubt he has also been badly affected by the fact that when he tried to bring this to the attention of his family at the age of 9, his complaint was treated by some sort of juvenile inquisitiveness. The offender was part of the group of people who allowed this to occur. At that stage, the offender could have prevented further damage to this victim by admitting the offending and prevented the future offending from occurring, but he did not. 76. Only a lengthy period of imprisonment would suffice to deal with the level of objective criminality represented by this group of offences. 77. The remaining seven counts in this indictment are offences of possessing or producing child abuse material. Al of these offences occurred on 16 June 2016 and arise from material found in the offender's possession when his premises were searched. 78. The particulars for each of the offences are set out in the charges. Each of them is an offence contrary to s 91H(2) then current for offences of this type, and in each case the maximum penalty is 10 years imprisonment. I will not be going into any detail on the facts for each of these offences. The relevant details are set out on pages 11 to 15 of the agreed facts. Again, I do not propose to allow the judgment of this Court to be used in a way which produces further titillation or humiliation to any of the victims or potential victims of these offences. 79. It is however necessary to make some findings. In relation to count 21. The child abuse material arose from photographs taken by the offender of a young girl between 1983 and 1985 who was a family member and who was aged only 8 or 9. The offender, as I have said, was a photographer and graphic artist, and had taken the photographs of this young girl for a Christmas children's book. He doctored and manipulated those images into child abuse material using both hand drawings and layered photographs. Ten of the images were identified as child abuse material. Seven of them are categorised as 'category 4' of the CETS scheme then in force depicting this young girl having penile-vaginal sex with the offender, him penetrating her anus, and her performing fellatio on him. 80. These were not photos of actual acts but had been created or manipulated into child abuse material by the offender from the original photographs he had taken. Two of the images were classified as 'category 3'. The offender had written descriptions on some of the images describing sexual acts with him which included descriptions of a sadomasochistic type involving tying up and punishment. This is categorised as 'category 5'. 81. This is a very serious offence. She was a young girl. She was a family member. The photographs were taken for a perfectly innocent reason. He abused her trust and her innocence. There is no evidence that she ever knew that this had happened. However, he had these in his possession still more than 20 years later, more probably than not I accept for his own perverse sexual gratification. In its own terms, taking into account the discount for the late plea of guilty, it seems to me that this clearly crosses the threshold for imprisonment, and I indicate a term of imprisonment of 3 years is appropriate. 82. Count 22 is a charge of producing child abuse material between January 2005 and December 2008 involving his granddaughter, LE's sister. This is also contrary to s 91H(2) and carries a maximum penalty of 10 years. He had frequent contact with this young girl from when she was young. He filmed her on a number of occasions without her knowledge. One video shows him running his hand up and down her torso including her breasts and bottom. She was about 10 or 11 at that time. He saved a screenshot onto his computer of him cupping her breasts. It is categorised as category 3 on the CETS scale. 83. This video and this photo are real photos of the offender with this young girl who was about 10 or 11 at the time. Also found was a series of six images on the same computer which depicts the offender with his pants down and his penis exposed. These would appear to be doctored images purporting to show this young girl performing fellatio on him. There is also an original video containing an image of this young girl sitting on the offender's lap whilst he smacked her on the bottom and encouraged her to say, "I love you." All of this occurred in the lounge room of his home. She then left the room and the video continues to show him pulling down his pants and masturbating until both LE and his sister came back into the room. 84. He photoshopped material to place himself in an explicit sexual position with her. These images are category 3 and 4 of the CETS scale. That is the subject matter of count 22. Again, it is objectively serious. It involves photographs of a real child taken without her knowledge and of a sexualised nature. He abused the trust that this young girl was entitled to have in him at home where he was an authority figure, and she was entitled to feel safe. He still had this material in his possession ten years later when he was arrested. As I have said, this was a real child, a person who was entitled to his protection. 85. Many of the more serious images I accept are photoshopped images and do not actually involve the acts portrayed in them, but nonetheless they are made from images involving a real child whose trust he abused. In those circumstances, I indicate the appropriate sentence for this also of 3 years. 86. Counts 23 to 27 are all counts of producing or possessing child abuse material contrary to s 91H(2) each with a maximum penalty of 10 years, all of which were discovered at the time of the search warrant and found in various places and on various devices at the offender's home. 87. Count 23 is a charge of producing child abuse material at some stage during 2015 involving a child who lived across the street from the offender. She was apparently seven at the time. He took a number of photos of her on different occasions, and then used Photoshop to place her head on the naked body of a teenage girl. 88. This is categorised as category 1 on the CETS scale and was found on a hard drive during the search. This again involved a known child, a person who was a neighbour, and involved again a violation of trust. It is a little less serious than counts 21 and count 22 but nonetheless it crosses the s 5 threshold and I indicate for count 23 a term of imprisonment of 2 years, taking into account all of the other relevant factors. 89. Count 24 is a charge of possessing child abuse material between 1 January 2015 and 16 June 2016. This material was located during the search. Police searched a cardboard box that contained a plastic sleeve of 32 printed pages of child abuse material all of which are images. They are referred to on page 13 of the facts. I will not detail what is shown in those photographs. It is not appropriate for those details to be read onto the record, let alone the possibility that they might be sourced at some stage in the future by people like this offender who may seek to obtain some secondary gratification or titillation from the descriptions. 90. In total, there were 207 images including 41 'category 1' images showing naked children in bed together, 22 'category 2' images, 25 'category 3' images including pictures of very young girls in close proximity to an adult penis, 188 'category 4' images both showing and describing graphic and violent acts of penetrative sexual contact between an adult male and young children, and another showing a baby involved in a sexual act, and one 'category 5' image involving a child and bondage. This latter is a serious episode of an offence capable of being charged under this section. Some of the images are very serious indeed. 91. There is nothing in the facts from which I can ascertain whether the finally produced images were of actual acts or whether they were photoshopped and created pornographic images. If they were real of course, that renders this as extremely serious and an extremely serious instance of possessing child abuse material. But I am not on the facts in a position to determine whether or not that was the case. 92. Even if not, even if they were photoshopped images, that is other photographs melded together, nonetheless this is a very serious instance of possession of child abuse material. Some of the material is depraved. It is about in the middle of the range in terms of objective seriousness. It is not the huge quantity of images often seen in offences of this type, but it is very serious. 93. In relation to this, and for all of the offences involving possessing or producing child abuse material, there is no evidence that the offender either produced or possessed the material with the intention to disseminate it or ever had. He would appear to have had them in his possession and for that matter to have produced them for his own depraved purposes. Even given the objective seriousness of this offence, it is only just at the mid-range in terms of objective seriousness and I indicate that there will be a term of imprisonment of 3 years for this offence. 94. Count 25 is another charge of possessing child abuse material at about the same time period. These images were found on an Apple Mac computer located in the offender's home. There were just over 129,500 images found on the computer. A sample of just under 12,500 was examined. 15 in that sample were identified as child abuse material and on a statistical extrapolation, this I accept means that between 264 and 591 of the overall number of images would fall within the category of child abuse material. That does not appear to be disputed and appears in the agreed facts. 95. One of those images that was examined were seven stills categorised as category 4 in the CETS scale. There were also animations found which showed penetrative sexual activity involving children and adults. 15 fell within category 3 being both images and animations showing sexual interaction between an adult and a child but not involving penetration or actual sexual activity. Nineteen were category 1 showing girls under ten either wearing underwear or posing in a sexual manner. 96. There were also 4,326 videos found on his computer. A sample of 220 was taken. Two of these were identified as child abuse material which on a statistical extrapolation means that between two and eight would be child abuse material. They are all animations and depict adult-child penetrative sexual activity, and other activity involving adults and children. 97. This count, count 25, is relatively serious. There was a large number of images and videos altogether, of which a relatively large number, it is agreed, were child abuse material involving, as I have said, both stills and videos. There were animations but as I understand it, there is no evidence that there were real children depicted in the videos but rather animations. The details of this offence is set out on pp 13 and 14 of the agreed facts. Whilst there is a large number of images and videos that actually fall within the category of child abuse material, the vast bulk found on his computers were not identified as child abuse material, and those which are there are not of the extremely numerous type that are regrettably often found in offences of this type. 98. However, it is a relatively serious example of possessing child abuse material in its own terms and taking into account the same general considerations to which I have already referred. I indicate the appropriate penalty for this being 3 years imprisonment. 99. Count 26 is another charge possessing child abuse material between 1 January 2015 and 16 June 2016. It relates to a hard drive located by police and seized. On that, they located just over 130,000 images from which a sample of just under 6,000 was examined. There were 36 images identified as child abuse material found which extrapolates to between 460 and 1,121 child abuse images. They are picture files within the definition of child abuse material. 100. Seven of the images fell into category 4 of CETS scale involving children engaging in sexual activity with each other including penetrative sexual activity. 15 were category 3 showing animated material of a sexual nature involving a child and an adult but not involving penetrative sexual activity, and there were two in category 2 and one in category 1. The relevant facts for this offence appear on pp 14 and 15 of the agreed facts. 101. There were also 560 videos on this hard drive. One was identified as child abuse material which is categorised as category 4 involving two children and an adult involved in penetrative sexual activity. This is also serious and I take into account all of the matters to which I have already referred in terms of assessing objective seriousness as well as the terms of the actual offence itself, and I indicate the appropriate penalty as a term of imprisonment of 3 years. 102. Count 27 is the last count in this indictment and is another charge of possessing child abuse material in the same date range. It relates to a USB stick found during the search and examined. There were 33 child abuse images on that USB and six documents were identified as child abuse material. They included one category 4 image and 32 category 1 images, some of which involved quite young girls, as young as about eight. That seems to be the extent of the facts provided in the agreed facts for this particular charge, and again taking into account all of the general matters and the particular facts for this offence, and accepting of course that it is a serious offence of possessing child abuse material, the s 5 threshold is reached and I indicate a sentence of 2 years imprisonment for that offence. 103. So, for counts 21 to 27, they represent a series of possessing or producing child abuse material. I have assessed the objective seriousness of each of them, and in doing so have taken into account for these offences as for all of the other offences for which I sentence the offender the need for general deterrence. 104. I have on the earlier occasion that this sentence judgment commenced dealt with an assessment of the subjective circumstances surrounding the offender. I have also to an extent in reducing what would otherwise be an appropriate penalty for some of these child pornography offences taken account of the fact that the images are not as extensive as they sometimes are in offences of this type and would appear to have been either created or possessed by the offender for his own purposes only, not with any intention to disseminate them in any way. Some of them however do involve real children. For others of them, the evidence does not allow me in reality to determine one way or the other. 105. That then brings to an end an assessment of each of the offences before the Court for sentence, an assessment of the objective criminality for each of them, an assessment of the subjective circumstances of the offender, and an indication of the relevant sentence for each of them. 106. At the commencement of this sentence Judgment, I indicated my intention to impose an aggregate sentence of 4 years, pursuant to s 53A, for the two offences in the second indictment. 107. I also indicated for the third indictment that I would impose a sentence of 12 months for the first count and of 18 months for the second count but that they would be concurrent with each other. 108. If all of the 27 counts in the first indictment were entirely accumulated one with the other, it would appear that a total period of imprisonment of something just short of 40 years would be the outcome. That is excessive in the circumstances and particularly so where many of these offences, as they have been grouped, arose at either the same time or around the same time in relation to the sexual intercourse offences involving individual offences but which are depicted and proved from separate incidents shown on a series of photographs all located in the same place, and a number of other matters, which would mean it would be appropriate for there to be a significant degree of partial accumulation to give rise to the overall criminality involved. 109. I have ultimately come to the conclusion that for the offences in Indictment 1 there ought to be an aggregate sentence pursuant to s 53A of 20 years imprisonment imposed, and I will be imposing an aggregate non-parole period of 14 years. There is a small window for a finding of special circumstances, namely the offender's increased age and frailty, and the way he will experience his period in custody and the fact that there is a degree of partial accumulation. 110. If each of those indicated sentences then is totally accumulated one on the other, that would produce a sentence of 25 years and 6 months. That too in my view is somewhat excessive and I will be taking into account totality and imposing an overall sentence of 22 years with an overall non-parole period of 16 years. 111. For those reasons, I make the following formal orders: 1. The offender is convicted for each of the offences. For indictment 3, that involving the counts of bestiality: 1. Count 1: He is sentenced to a term of imprisonment of 12 months commencing 16/06/16 expiring 15/06/17. 2. Count 2: He is sentenced to a term of imprisonment of 18 months commencing 16/6/17 expiring 15/12/17. I decline to fix a non-parole period because this is part of an overall non-parole period. For indictment 2 involving the complainant JW: 1. Pursuant to s 53A, an aggregate sentence of 4 years commencing 16/6/17 and expiring 15/6/2021. 1. The indicative sentence for count 1 is 18 months. 2. The indicative sentence for count 2 is 2 years and 9 months. For indictment 1: 1. He is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 20 years commencing 16/6/2018 expiring 15/6/2038 with an aggregate non-parole period of 14 years commencing 16/6/2018 and expiring 15/6/2032 and parole thereafter of 6 years commencing 16/6/2032 expiring 15/6/2038. 2. I have set out the indicative sentences for each of those offences while delivering the judgment and they will be recorded in the formal order of the Court. ********** Amendments 15 November 2022 - Name of offender is anonymised. 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: 15 November 2022