Reported Decision : New South Wales District Court CITATION: R v Fischer [2009] NSWDC 31 HEARING DATE(S): 24/11/2008 - 10/12/2008 JUDGMENT DATE: 27 February 2009 JURISDICTION: Criminal JUDGMENT OF: Knox SC DCJ DECISION: The overall effect of the sentence is that the offender is sentenced to 5 years imprisonment with a non-parole period of 3 years. CATCHWORDS: Criminal law - sentence - historical offences - sexual offences - sexual intercourse - indecent assault - old age offender - tendency and coincidence Crimes Act 1900 Criminal Procedure Act 1986 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Child Protection (Offenders Registration) Act 2000 Evidence Act 1995 AJB v R [2007] NSWCCA 51 R v AJP (2004) 150 A Crim R 575 Bradbury v R [2008] NSWCCA 93 Cahyadi v R [2007] NSWCCA 1 The Queen v De Simoni (1981) 147 CLR 383 Dousha v R [2008] NSWCCA 263 Featherstone v R [2008] NSWCCA 71 FV v R [2006] NSWCCA 237 R v George [2004] NSWCCA 247 R v Gould [1999] NSWCCA 177 Ibbs v R (1987) 163 CLR 447 R v KNL [2005] NSWCCA 260 CASES CITED: R v LTP [2004] NSWCCA 109 R v MJR [2002] NSWCCA 129 MLP v R [2006] NSWCCA 271 R v Moon (2000) 117 A Crim R 497 Nelson v R [2007] NSWCCA 221 R v Rapley [1999] NSWCCA 302 R v Risby [2008] NSWDC 300 Shannon v R [2006] NSWCCA 39 R v Sullivan (unrep. NSWCCA 20/10/89) R v Totten [2003] NSWCCA 207 R v Trevanna [2004] NSWCCA 43 R v Virgona [2004] NSWCCA 415 R v White [1999] NSWCCA 366 PARTIES: Regina Peter Brian Fischer FILE NUMBER(S): 08/11/0362 COUNSEL: Crown: Ms K Shead Defence: Mr T Stuart SOLICITORS: Crown: Ms A Ilardo Defence: Mr D Mockler JUDGMENT Indictment and trial 1 The offender was found guilty after a trial before a jury in the District Court at Sydney on the following counts on an indictment: Count 1 2 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did assault SC, a person then under the age of 16 years, that is, of the age of 11 years, and at the time of the assault did commit an act of indecency upon her. Count 2 3 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did have sexual intercourse with SC, a person then under the age of 16 years, that is, of the age of 11 years, without her consent and knowing that she was not consenting thereto. Count 4 4 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did have sexual intercourse with SC, a person then under the age of 16 years, that is, of the age of 11 years, without her consent and knowing that she was not consenting thereto. Count 6 5 Between 1 May and 30 June 1983 at Penrose in the State of New South Wales, did assault SC, a person then under the age of 16 years, that is, of the age of 11 years, and at the time of the assault did commit an act of indecency upon her. Count 7 6 Between 1 August and 30 September 1984 at Penrose in the State of New South Wales, did have sexual intercourse with SC, a person then under the age of 16 years, that is, either of the age of 12 or 13 years, without her consent and knowing that she was not consenting thereto. 7 The counts were bought pursuant to sections 61E(1) and 61D(1) of the Crimes Act 1900. 8 A maximum penalty at the time of the offence was one of 6 years imprisonment (s61E: acts of indecency: person under 16) and 10 years imprisonment (s61D: sexual intercourse without consent) – reprint 23 September 1982. 9 It is common ground that I should apply the law as it was in 1983 and 1984 including the application of the relevant penalties. There was no 'in authority' aggravation offence for any of the counts on the indictment at that time. Additionally there were no standard non-parole periods at that time. 10 The trial took place between 24 November and 10 December 2008. The verdict was delivered on 10 December 2008. Background Parties 11 The victim was born in 1971 in New Zealand and was aged 11 years at the time of the first incidents in 1983. 12 The victim and her family moved to Australia from New Zealand in 1976, and the victim's father died shortly afterwards in late 1980 when the victim was aged nine years. The family were then living in Sydney. 13 After the death of the victim's father, her mother befriended the offender's then wife, DB (formerly Mrs D Fischer), who lived nearby. 14 The evidence of DB was that at the time of the incidents the victim was a very shy, timid girl, who wanted to stay close to her mother. Offender 15 The offender was born in 1936. He was aged 47 years at the time of the first incidents in 1983. The offender married DB in 1979 and was divorced from her in 1998 following allegations of indecent assault made against him by three young girls in 1996. Reconciliation was unsuccessful. 16 DB gave evidence, for the Crown in particular, that she did not see any change in the offender after the incidents or such as to warrant a resumption of the relationship. The offender said that he thought DB had been looking for an excuse to leave him. 17 The offender has been in another relationship since 1998 that has continued for 10 years. 18 At the time of the offences, the offender and his then wife were regular visitors to the victim's family home, and the victim and her mother would make return visits to the home of the offender. The offender was therefore well known to the victim as a friend of her mother. The offender knew the victim's father had recently died when he met her. Offender – current position 19 The offender was an electrical engineer, and he and his brother owned and operated an electronics company for 32 years. His brother passed away in 2002. The offender was unable to work in the business from 2005 to 2007 due to ill health that resulted in major surgery. During this time the company allegedly began trading while insolvent. The company was placed in liquidation in 2007 and he (and his sister-in-law) has since been served with Federal Court proceedings for a $1.2 million claim by the liquidator for compensation for losses due to insolvent trading. Those proceedings are to be resisted by him. 20 The offender presently has an interest in, and works part-time in, a small dry cleaning business that would not be financially viable without his own time and effort. He has a manager in that business. 21 He also assists with university research projects in the engineering area. Over his life he has had a substantial number of other interests including Scouting for over 20 years. Since the offences the offender has had innocent involvement with young girls in a number of contexts. Medical/psychiatric/psychological issues 22 The offender has substantial medical issues including two major surgeries in 2005 and 2006 to repair an abdominal aortic aneurysm and a cerebral aneurysm respectively. He also has musculoskeletal injuries from a motor vehicle accident in 2007, high blood pressure, chronic renal disease, and colitis. 23 The offender has been consulting with a psychiatrist for the past six months and has been diagnosed with clinical depression. He is taking anti-depressant medication. The medication record is set out in a report provided by Dr Norris. 24 An updated report was provided on 26 February 2009 (exhibit S13). Further evidence provided by Dr Norris is set out later in these reasons. Venue of offences 25 The offences took place at a rural property in Penrose in the southern highlands, which was owned by the offender's wife. 26 The property consisted of a house and a detached barn. The barn was divided into separate sections to accommodate overnight guests as well as farm equipment and vehicles. The property at Penrose was used by the offender as a holiday home. 27 At the time of the victim's visit, DB's daughter was also present, as was her son. Her daughter was 18 months older than the victim, and her son three years older. Also present on the farm were other day visitors and overnight guests including female friends of DB's daughter who were of a similarly young age. 28 The victim stayed overnight in the barn while the adults slept in the main house. The victim recalls being excited at the prospect of staying in the barn as it was a separate building away from her mother and she would be able to stay awake later than usual. Findings of fact 29 In the light of all the evidence, the jury's verdict, the offender's evidence and, in particular, the offender's continuing and total denial of the matters, I find the following: 30 Count 1 (indecent assault) occurred in June 1983 when the victim visited the offender's property in Penrose. The victim was aged 11 years at the time of the first four incidents (counts 1, 2, 4, and 6 on the indictment). The victim and her mother arrived at the property in their car and were greeted in the front driveway area by the offender and others. The offender and the victim were standing slightly apart from the welcoming group when the offender hugged the victim. The offender then moved one of his hands from the victim's back down the front of the victim's pants and into her underwear where he touched her on the outside of the vagina. 31 Count 2 (sexual assault) occurred the morning after the first incident. The victim had slept overnight in the barn. On waking, she walked to the main house to use the bathroom. When the victim returned to the barn, she left the door open behind her, but it was shut moments later and she turned around to see the offender standing in the barn. The offender again pulled the victim towards him for a hug before putting his hand into her underwear where he touched and rubbed her vagina. He then put two fingers inside her vagina and quickly moved them back and forth quite roughly. At the same time the offender pinched and twisted the victim's left breast. The victim recalls the offender being aggressive towards her and his actions causing her pain. 32 Count 4 (sexual assault) occurred shortly after counts 1 and 2 at approximately 10pm at night, again at the property at Penrose. The victim was in bed in the barn, lying on her side, reading a book. The offender approached the victim from behind and sat on the bed. He then proceeded to put his hand down the back of her pyjama pants and slid it forward between her legs. The offender used all his fingers to touch and rub the victim's genitalia before digitally penetrating her vagina. He also scratched her with his fingernails near the vagina. 33 Count 6 (indecent assault) occurred in the same period of time as the previous three incidents at the Penrose property. The victim and other guests went horse riding and the victim's clothes became wet so she returned to the barn to change. After changing her clothes, the victim noticed the presence of the offender in the barn and she recalls the offender's body pushing her against a wall or bench. The offender then pulled up her skirt and put his hand down her underpants, and proceeded to touch and rub the outside of the victim's vagina. This continued for approximately 5 to 10 minutes and the offender was quite rough, making the victim feel sore. The offender used his other hand to rub the victim's breasts and pull her nipples, which also caused her pain. The victim recalls the offender breathing heavily and that she was unable to escape as she was being pushed against a wall or bench. 34 Count 7 (sexual assault) occurred a year after the first four incidents in September 1984 when the victim was aged 13 years old. After dinner, the victim went outside and was standing near a tree when the offender approached her. The offender hugged the victim and pulled up her jumper. He then unbuttoned her jeans and put his hand down her pants where he touched and rubbed her vagina through her underpants. The offender then put his hand into the victim's underpants where he moved his finger repeatedly in and out of her vagina. He also touched her breasts quite roughly with his other hand. 35 The Crown submits that the jury verdicts indicate acceptance of the victim's account of the offences, and that the offences were opportunistic, brazen, and, on occasion, planned to occur when the victim was on her own. I agree with that characterisation. 36 The offender maintains that the offences did not occur. Defence counsel further submits that specific findings of fact should include that offender only had minimal contact with the victim prior to her first visit to the farm and that he did not instigate her visit, or any subsequent visit. I agree with that submission. However, he obviously knew that she was coming back to stay at his house on the second occasion. 37 However, these two aspects indicate that the victim's visits to the farm were not connected with any 'grooming' behaviour by the offender and were not part of a pattern of abuse. The offences were - as agreed by the Crown - opportunistic. 38 Furthermore, it was submitted that he did not attempt to contact the victim between her 1983 and 1984 visits, and that she returned to the farm with no apparent protest. In my view, that is to ignore the realities of the situation – particularly given the age of the victim and the likelihood that, unless she accompanied her mother on the second trip, it may have led to social and familial difficulties. Those should be viewed through the eyes of a 13-year-old girl. Impact on victim 39 The victim gave evidence as to what impact the incidents have had on her by way of Victim Impact Statement and in evidence during the trial. She said that what took place was very rough and painful to her in circumstances that were sudden, frightening, and where she felt isolated and lacking confidence. 40 That impact was still apparent when she gave her evidence after the period of some 25 years that had elapsed since the incident. During the course of giving evidence the victim repeatedly broke down and sobbed, and spoke of feeling betrayed. In my view, none of these reactions were either feigned or exaggerated. This impact should be considered in the context that, at the time of the incidents, her father had recently died, the offender was an older man, she knew him and had been to his home before, and he was a friend of her mother's. 41 The victim gave evidence that: She 'felt betrayed.' She felt 'revulsion, frightened, totally betrayed.' 'Frightened, very unsure, very alone.' 'I was frightened of what he was doing to me. It may never stop.' 'I didn't know how to tell anyone.' 'You don't know who you are anymore.' 'I trusted him in the beginning very much.' Issues at trial Tendency and coincidence evidence 42 The Crown led evidence of the offender's convictions in 1996 for indecent assault on three young girls - RB, who was aged 10 years at the time of the offences, KB, who was aged 6 years, and KT, who was aged 8 years. All three young women gave evidence in the trial. Again, while those witnesses were clearly distressed by the ordeal of having to re-live what had happened to them, none of their presentations, nor evidence seemed to me to be feigned, exaggerated or manipulated. The offender maintains the view that some of their respective reactions were exaggerated although he later expressed remorse in relation to his conduct to them. Other relevant evidence during trial 43 A number of witnesses gave corroborative complaint evidence that, in my view, was both credible and consistent with the victim's account. Sentence proceedings Evidence 44 The offender gave evidence on the sentencing proceedings on a number of matters set out in these remarks and confirmed his denial of the complainant's evidence. He maintains that the whole case against him was a fabrication. 45 The offender denies having any present suicidal ideation. Pre-sentence report 46 A pre-sentence report dated 11 February 2008 and prepared by Emma Marston of the Probation and Parole Office was tendered (exhibit S4). 47 The report noted that the offender had a positive and supportive childhood, and had a good relationship with his parents and brother until their deaths. He has occasional contact with his sister, and an adult daughter who resides in Western Australia. Medical evidence 48 Evidence was also called from Dr Norris. Dr Norris had treated Mr Fischer since 2001 and had seen him as a patient about every six weeks. 49 Dr Norris said that the offender had two life threatening conditions resulting in major surgeries in 2005 (large abdominal aortic aneurysm) and in 2006 (repair of a cerebral aneurysm). In addition the offender has sleep apnoea requiring the daily use of CPA machine, muscoskeletal injuries in his neck, back and knees resulting from a motor vehicle accident in 2007, high blood pressure and chronic renal disease, as well as colitis. 50 A separate report setting out the medication the offender is prescribed for high levels of depression through Dr O'Shea, psychiatrist, as well as the other medication taken by the offender was also tendered (exhibit S7). 51 In oral evidence Dr Norris said that the offender has a probability of about 50 per cent of a stroke or a heart attack over the next three-year period as well as renal failure. He also observed that there was some indication of vascular dementia resulting from the offender's blood pressure although he hasn't been subject to any neurological testing in that regard. 52 In cross-examination he agreed that the offender's depression was being managed and was manageable with the current medication. 53 The report Dr Norris had received confirmed by Dr O'Shea, psychiatrist, was that the offender's severe depression was not just a reaction to current situation but was also biologically engendered as a result of his brain dysfunction and his associated problems. Psychological/psychiatric report 54 Various psychiatric reports were tendered from Dr McMurdo from both 1996 (as part of the earlier charges to which the offender pleaded guilty) and a final report dated 18 November 2008 prepared after an interval of 12 years. 55 In the later report Dr McMurdo said that the offender did not suffer from a mental illness but that it was likely that he had had profound difficulty in personal relationships as well as an avoidant personality at the time of the offences in the early 1980s. 56 There is one significant difference in the reports and that is that the offender felt in 1996 that he was not doing anything wrong or damaging to the victims but realised at that stage (1996) that there was a deleterious effect from his actions. 57 I see no such evidence in the material before me in relation to these present offences. Indeed it would seem that the offender, by his continuing denial of his actions, has not come to terms with the impact of his actions on this victim. That is difficult to accept given the contents of the pre-sentence report, the presentation of the victim while she gave her evidence as well as the jury's verdict. It raises serious issues as to the offender's likely rehabilitation. Remorse is not something that can be considered in this context. In his oral evidence in the sentencing proceedings, the offender also inferred that he "knew much more about the complainant in these proceedings and her mother than the court knew" with the clear inference of considerable antagonism towards her. Character references 58 A series of references were tendered (exhibits S5-S12) setting out the offender's reputation in a number of social, familial, business, and other circles. Those referees deposed to the fact that he is a person of good character and has been for many years. Further, all referees state that his convictions were entirely out of character for him. The referees do not all appear to have been aware of the convictions in 1996. They are aware that the offender continues to maintain his innocence. Victim Impact Statement 59 A Victim Impact Statement of SC set out that the offence had a huge impact on her childhood and adulthood. She also said that 'nothing was ever the same' after the assaults by the offender and that her ongoing feelings are reactivated by a variety of matters - for example, whenever she has to dress and shower her daughter who is now aged about eight. She said that: "the physical and psychological scars feel like they will be with me forever." "Life is a rollercoaster" and has stopped her putting herself into any social or related activities. 60 SC stated that she had taken herself into some very destructive relationships that were both physically and verbally abusive. She suffers continued feelings of isolation and alienation particularly from her family. There are additional matters, for example, the time she spends in the bathroom scrutinising her body and purging herself and extreme emotional fragility (which was very evident during the trial) are ongoing problems for her. 61 Consistently with her presentation during her evidence is the statement: "I will never know what I might have made of my life without this. There seems to be nowhere I can go in life where this pain and shame doesn't come into play." 62 These statements are consistent with many such statements from victims of abuse particularly where it occurs at these tender years. In my view, the impact of the offender's actions on the victim have been at least as much if not more than expected of a person in these circumstances. As I have said elsewhere in these remarks, care must be taken not to double-count this issue given that the maximum penalties reflect an age classification for victims indicating the extent that the community regarded these matters was already taken into account in the maximum penalties established. Prior record 63 A NSW Police summary of the offender's prior convictions was tendered (exhibit S1), which showed the aforementioned prior convictions for four counts of aggravated sexual assault to which he pleaded guilty in 1996. For these he was sentenced to five months periodic detention. 64 Following these 1996 convictions, the offender paid $130,000 after the Victims Compensation Tribunal commenced proceedings that the offender did not oppose. Counsel for the offender submits that this amounts to extra curial punishment. 65 I do not consider that those payments can be regarded as extra curial punishment in relation to these offences. Had the offender accepted his guilt in relation to these current matters, he had the opportunity to make a clean slate of the situation at that time in relation to this victim. That did not occur. The victim and indeed, the victims in the earlier matters, had to re-live the entire events by giving evidence. Law 66 Applying the decisions of Dousha v R [2008] NSWCCA 263 and R v MJR [2002] NSWCCA 129; 54 NSWLR 368, the questions I need to consider are: 1. What, if any, was the discernable sentencing pattern at the time for comparable cases? That will include a consideration of the points of similarity and the number of such cases said to be representative (see Featherstone v R [2008] NSWCCA 71). 67 In Dousha v R [2008] NSWCCA 263 at [43]-[44], it was said that : In the absence of statistical and non-statistical data, her Honour was obliged to adopt the approach which was settled in R v MJR [2002] NSWCCA 129; 54 NSWLR 368. Her Honour was provided with MJR together with a case note of AJB v R [2007] NSWCCA 51; 169 A Crim R 32 which both confirmed the correctness of that approach and developed it. In both AJB and MJR particular attention was directed to the proper approach to the specification of the non-parole period in cases where the offences were committed prior to the introduction of the Sentencing Act . As Howie J observed in AJB , a non-parole period under the Probation and Parole Act was usually somewhere between a third and a half of the length of the sentence, which might itself be a practice that is sufficient to constitute special circumstances justifying departure from the statutory ratio fixed under the present regime. As his Honour said at [37], this Court 'should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant'." 68 There was further discussion of those practices in Bradbury v R [2008] NSWCCA 93 and AJB v R [2007] NSWCCA 51. 69 Here the legislature has specified the kinds of acts constituting and differentiating between intercourse and assault. I will reflect that distinction in the penalties to be imposed. I have referred counsel to the summary of cases and comparable sentences in this area in Australian Sentencing Digest [401] and [405] Carter, Butterworths 1985 (and supplement) as to the range of sentences for these and comparable matters in the 1983/4 period. As a general proposition, the penalties imposed were substantially lower than they are now for comparable matters. 70 I propose to adopt that approached as outlined to base the non-parole period as being 60% of the head sentence consistently with the approach I have adopted in relation to my finding of special circumstances. 2. What is the proper approach to the specification of the non-parole period (see R v Risby [2008] NSWDC 300 at 50): "The regime of sentencing in that period of time was governed by the Parole of Prisoners Act 1966. Remissions of either 1/3 or 1/4 were applied to the head sentence but not the non-parole period. This necessitated setting non-parole periods that were short enough to allow a sufficient period for parole with the head sentence being substantially reduced by executive action. It was not until the Sentencing Act 1989 that there was any across the board statutory stipulation of the proportion of a sentence that was ordinarily to be represented by the non-parole period. No allowance was made for the remission system when sentences were imposed. It has recently been held that when a court now sentences for offences committed when the earlier regime applied, no regard should be had for the fact that sentences in those days were reduced by operation of the remissions system: see Bradbury v R at [24] and AJB v R at [31] – [33]." 71 R v Moon (2000) 117 A Crim R 497 at 71: "When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time." 3. What has been the impact of delay (see R v Risby [2008] NSWDC 300 at 46)? "It is relevant to the manner in which I assess the objective gravity of the offences of indecent assault and committing acts of indecency. In July 1981 the law relating to heterosexual sex offences was substantially amended. Prior to then, an act of penile/vaginal intercourse amounted to rape and all other forms of penetrative intercourse could only be prosecuted as an indecent assault. That means that the range of conduct that could amount to an indecent assault was wider, and included more serious conduct, than it did after the 1981 reforms. An act, which might now be seen to fall in the middle of the range of objective seriousness, for example, would previously have been lower in the range. Alternatively, an act that might now be prosecuted as a more serious offence would previously have been something that tended to be in the upper echelons of seriousness as an offence of indecent assault, or an act of indecency." Impact of delay 72 Here there has obviously been a substantial delay between the offences and the sentence. 73 That delay has worked to the advantage of the offender in that he has been able to demonstrate his continuing good character during that intervening period from the mid-1990s, which I take into account. 74 Balanced against that is that the offender has had these matters hanging over his head for some considerable period of time. However that must be viewed in relation to his continuing denial of these offences. Delay 75 In R v LTP [2004] NSWCCA 109, Dunford J said: "The mere passage of time between the committing of the offences and the disclosure of the offences and apprehension of the offender is of little weight as a factor in mitigation of penalty." 76 This is not a matter in my view where delay mitigates the penalty. There was no perceived threat of detection: R v Virgona [2004] NSWCCA 415, particularly where the offender had the opportunity to raise these matters if he wanted to make a complete disclosure to the extent of his criminality given the totality of the police investigations in 1996. Age of the victim 77 The age of the victim is an important factor in assessing the criminality of the offender although care must be taken not to double count this aspect given that the maximum penalty implicitly recognizes the harm such offences cause to victims of this age. 78 In R v Rapley [1999] NSWCCA 302 at [15] it was made clear that the older age of the offender, the absence of a criminal record, and the fact that offences may occur spontaneously are common features of many cases where children are subject to sexual abuse by adults. A sentencing decision that does not involve a period of fulltime custody where these factors are present, either individually or collectively, will stand for nothing. 79 Over the years the courts have been clear to say that sexual assaults upon young children, particularly by people who stand in a position of trust to them, must be severely punished and heavy custodial sentences are generally essential. That relates also to offences of indecent assault, not necessarily sexual intercourse. Ordinarily, a custodial sentence is appropriate for indecent assaults, but that is not necessarily required or inevitable in every case. That is the gravamen of the decision of the Court of Criminal Appeal in R v Mark Sullivan, (unrep. NSWCCA, 20/10/1989). 80 In MLP v R [2006] NSWCCA 271, Kirby J (with whom Grove and Hislop JJ agreed) said: "One of the submissions which has been made is, because of her age, it would not necessarily fall into the middle of the range. That is, she was between nine and ten years of age at the time, but I do not believe that is a correct approach I could take. The charge itself relates to any child under ten years of age and the victim was under ten years of age. I accept that you may get a situation where you have a very young child where it could be a severely aggravating factor in deciding where it comes in the range, but it seems to me that what I have got to do is have a look at the overall effect of all those facts to see where it falls in the range of this sort of offence." 81 I have adopted this approach in relation to this matter. 82 In R v AJP (2004) 150 A Crim R 575, Simpson J said this (Howie J agreeing): "Age of the victim is relevant in the assessment of objective gravity in that, generally, the younger the victim, the more serious might be the offence." 83 In Shannon v R [2006] NSWCCA 39, Howie J (Mason P and Barr J agreeing) said: "The age of the child is clearly a relevant consideration and the younger the child, the more serious the offence. It was an element of each of the offences in the present case that the child was between the ages of 10 and 16 at the time of the sexual intercourse, but that does not mean that a judge cannot take into account the age of the child falling within that range. "Further, although the section is, as the Judge recognised, concerned to protect the vulnerable, it does not follow that a judge cannot take into account the particular vulnerability of the child by reason of the child's young age or other circumstances other than the child's age. For example, in the present case the judge would have been entitled to find that the complainant was particularly vulnerable by reason of her age, the fact that her father was seriously ill such that she felt she could not complain to her parents, and because the applicant knew that she was susceptible to his sexual advances because of her infatuation with him." 84 Here the complainant was particularly vulnerable by reason of her age and the fact, known to the offender, that her father had recently died. 85 In FV v R [2006] NSWCCA 237, the following was endorsed by McClellan CJ at CL and Hoeben J: "The age of the victim is an important consideration in determining the objective seriousness of the crime and whether it falls within the mid range. But it does not follow that, because age is relevant and because the section contemplates a range of ages, an offence against a child approaching the age of 10 cannot be regarded, or should not be regarded, as being within the mid range. The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. 86 Here the offender exploited the victim's age and her vulnerable situation. 87 Relevant factors referred to in those decisions and that are not exhaustible include matters such as whether the act was committed as part of a pattern or history of abuse (R v AJP at [20]) and the age and relative maturity of the victim as well as her capacity to protest (FV v R [2006] NSWCCA 237 at [59]). Relevant law and sentencing regime 88 General deterrence is an important factor I must take into account here – particularly to demonstrate that whenever these matters occur, an offender will ultimately be brought to justice. Personal deterrence is a factor but not of great significance given my finding that there is little chance of re-offending. 89 In accordance with the principles established in Ibbs v R (1987) 163 CLR 447, I have looked for authorities on sentences for crimes of this nature, which are relevant at the time, in other words, going back to the mid-1980s and earlier. 90 Where the acts involve penetration, some forms of penetration can be regarded as more serious than others. Here there was digital penetration, that was clearly painful, but no penile penetration. 91 What does seem to me to be relevant is the clear principle which the Courts, then and now, have expressed that, even where we have, as here, an older age person who has no criminal record and the fact that offences may occur spontaneously without any degree of planning - which seems to characterise these particular offences - those indeed are the characteristics of many offences of sexual abuse by adult members of families and extended families. 92 The previous good character of an offender attracts less weight in cases involving sexual assaults upon children than other types of offences. However the offender was, on the evidence, particularly the references tendered, a person of good character and standing in the community, his business, his church, and his peer group. He has lost that standing. Registration pursuant to the Child Protection (Offenders Registration) Act 2000 4. The fact that the offender will need to be registered pursuant to the Child Protection (Offenders Registration) Act 2000 is not considered as a matter in mitigation, per Latham J in R v KNL [2005] NSWCCA 260. Relevant authorities 93 Shannon v R [2006] NSWCCA 39: The offender pleaded guilty to three counts of sexual intercourse (the acts were two counts of fellatio and one count of penile/vaginal penetration – two of the acts occurred on one occasion; the offences were committed over a short period of time in 2000). The offender was a neighbour. He was sentenced to a sentence of imprisonment for five years with a non-parole period of three years. The Court of Criminal Appeal held that although the sentence was high it was within the Judge's discretion to impose such a sentence. 94 R v LTP [2004] NSWCCA 109: The offender was convicted following a trial of one count of sexual intercourse with a person between 10 and 16. The offences occurred in 2000 when the victim was aged 12. The offender was sentenced to imprisonment for six years with a non-parole period of four and a half years. 95 R v Totten [2003] NSWCCA 207: The offender was sentenced for an offence of aggravated indecent assault (the aggravation being that the victim was under 16) and sexual intercourse with a child between 10 and 16 under authority (cunnilingus). The offender was sentenced to imprisonment for eighteen months for the aggravated indecent assault and for a concurrent term of imprisonment for five years and four months with a non-parole period of four years for the sexual intercourse. The offences occurred between 1996 and 1998. 96 R v Gould [1999] NSWCCA 177: The offender pleaded guilty (after the trial had started) to one count of indecent assault and one count of sexual intercourse (fellatio) with child between 10 and 16, the offender being in authority. The offences occurred between 1983 and 1987. The Court of Criminal Appeal upheld the sentence of seven and half years with a non-parole period of five years for the charge of sexual intercourse. 97 R v White [1999] NSWCCA 366: The victim was a friend of the offender's daughter. The offender, on the first occasion, rubbed the complainant's vagina. On the second occasion he inserted his finger into her vagina and then his penis, causing pain and bleeding. The offender was sentenced to a fixed term of one year, a concurrent fixed term of two years and a concurrent period of eight years (minimum term of five years and an additional term of three years (taking into account various Form 1 matters). Mason P, with whom the other members of the Court agreed, said: "If I may say so, the sentences imposed were, if anything, on the light end of the relevant spectrum." 98 Nelson v R [2007] NSWCCA 221 (Latham J, with whom Tobias JA and Matthews AJ agreed): The CCA allowed an appeal against a sentence of 14 months with a non-parole period of eight months imposed upon a plea to an offence of "indecent assault female" pursuant to the now repealed s76 of the Crimes Act 1900. The offence, having been committed in 1972, carried a maximum penalty of three years imprisonment. A fixed term of 4 months was substituted on re sentence. 99 In Nelson, a discussion as to the sentencing practices prevailing in 1972 and how the court was to be guided by them. The court held [at 17] that his Honour "was to be guided by the maximum penalty, as an expression of the legislature's view of the gravity of such offences at that time, and by the nature of the conduct proscribed": R v Moon (2000) 117 A Crim R 497 at 511; R v MJR (2002) 54 NSWLR 368; AJB v R [2007] NSWCCA 51. 100 AJB v R [2007] NSWCCA 51: The applicant pleaded guilty to five counts of indecent assault (contrary to s 76 of the Crimes Act – carrying a maximum penalty of six years) over a period of three years from 1979 upon his stepdaughter who was aged between six and a half and 10 years at the time of the offence. He was sentenced to an overall term of four years imprisonment with a non-parole of three years. 101 R v Moon (2000) 117 A Crim R 497: The applicant pleaded guilty to four offences of indecent assault (forcing the victim to masturbate him) committed between 1966 and 1971. The victim was aged between 9 and about 15 years of age. The applicant had no criminal history and had not offended since. He was remorseful. For each offence he was sentenced to a minimum term of two years with an additional term of eight months, all sentences to be concurrent. 102 I have also had regard to the range of sentences set out in relation to similar sentences for similar conduct on the Public Defenders' website as well as the maximum penalty established for the offence - R v Trevanna [2004] NSWCCA 43 per Barr J; R v George [2004] NSWCCA 247. Aggravating/Mitigating factors: s21A Crimes (Sentencing Procedure) Act Aggravating factors 103 Consistent with counsels' submissions, I find that there was limited planning and premeditation in relation to any of the offences. There is no evidence that the offender actively participated in inviting the victim to his home on those occasions. However there is no evidence of threats or violence other than that implicit in the acts themselves. Mitigating factors 104 Defence counsel submits that the offender is of an advanced age (73), has ill health, has performed community work, is unlikely to re-offend, and that he took steps after the previous convictions to get counselling. I agree with those submissions. Rehabilitation and remorse 105 As has often been said, rehabilitation must be preceded by an acknowledgement of wrongdoing and an acceptance that there should be a different approach to behaviour patterns. 106 The Crown submits that there is no evidence of any remorse or contrition before the Court, and in relation to the 1996 matters, in his evidence at trial the offender sought to diminish his conduct, blame the victims, and mitigate the seriousness of his offending. The Crown further submits that the offender displayed little insight into his offending - a matter that therefore undermines the prospects of his rehabilitation. 107 Given the offender's age, his medical conditions and the legal proceedings he has been through in the 1990s and with the trial, I think there is little likelihood of any re-occurrence of offences such as these. Since 1996 he has ensured that whenever he has been around young children that he is not alone with them so that nothing untoward can occur. There is no evidence to the contrary. His personal circumstances are not such where he would be likely to come into close contact with young girls of this or similar age. JIRS statistics 108 I have considered the relevant statistics produced by the Judicial Commission for offences under this section narrowed to the fields of pleas of 'not guilty', offender aged over 70, two counts. Consideration 109 Here the events took place on two occasions - the first over a continuing period of a weekend. There was a considerable disparity between the offender and the victim in terms of power and authority, age, and life experience, as well as in physical terms including height and weight. 110 The victim was entitled to trust a man many years her senior who she knew to be a friend of her mother, as well as the environment of the accommodation that he had provided to her. The victim's mother was also entitled to rely on the offender's hospitality. 111 The scene of the assault was a reasonably isolated farm and, more specifically, a separate barn and the area around it, away from where the victim's mother and other adults were staying. 112 Counsel for the offender submits that, at the time of the offences, the victim was of sufficient age to make a complaint and had considerable opportunity to do so. This ignores the reality of the place and perceptions of an 11 and then 13-year-old who had recently lost her father (which was known to the offender) and who was going through strained emotional conditions. There was only one victim, the acts were opportunistic, without planning, and were committed in two time periods over a year apart, suggesting that the offender had no particular attitude towards this victim. 113 He further submits that the objective level of overall criminality ought to be seen as being in the lower range. For the reasons set out elsewhere in these remarks, I do not agree. Findings of criminality 114 In my view, the appropriate range of criminality is mid to low range. 115 Defence counsel also submits that there is no evidence of either short or long term injury to the victim, either physical or mental, except the victim's own statements that she suffered some pain at the time and remains upset about thoughts of the offences. Again I do not agree, particularly given the victim's presentation at trial and her comments in her statements and the victim impact statement. 116 Here the offences were aggravated by reason of the fact that the victim was under 16 years although that is an element of the offences and therefore not to be double-counted in accordance with the De Simoni principles. The offences were further aggravated by the fact that the accused was in a position of trust, both as a trusted friend of the victim's widowed mother and the owner of the property to which the victim had been invited. 117 I agree with the Crown's submissions that the offender was much older than the victim and opportunistically was often alone with her. As a significantly older man with whom the victim was staying, he occupied a privileged position. He was imposing in demeanour and physically intimidating. The offences were also brazen. They were committed whilst other people were in close proximity or in the house nearby. The offences also occurred over a period of time in which the appellant had the opportunity to reflect upon his conduct and the damage that he was occasioning. 118 He took advantage of the situation to form a highly inappropriate sexual relationship with a child. He engaged in repeated criminal behaviour of a serious kind separated and repeated over two periods. Sentencing options 119 Neither a periodic detention order or a community service order is available for the offender and, in any event, would not be appropriate for a case such as this with these facts. In addition, I do not consider that either a suspended sentence or the period of a bond is appropriate to give effect to the requirements, in particular, of general deterrence. I note, and agree with, the concerns expressed in the pre-sentence report (exhibit S4) that Mr Fischer's continuing claim to innocence would make it difficult to assess any intervention or strategies that may be warranted or considered appropriate. 120 I also take into account that, as at 1983/1984, the offender was effectively a first time offender. Concurrency/accumulation 121 The victim was the same in relation to all offences. All the offences occurred at the same premises in essentially the same manner. The offences took place over different periods of time – a period of days in 1983, and a separate period of days in 1984. 122 The Crown submits that there should be a significant accumulation of the sentences imposed, particularly for the sentences for the separate visits by the victim to the offender's property. 123 Counsel for the offender submits that it is appropriate for the sentences to be served concurrently despite the 15 months between offences as they took place in the same location with the same victim in a similar fashion. 124 The relevant principles were stated in Cahyadi v R [2007] NSWCCA; 168 A Crim R 41 at 27 as to whether one sentence can comprehend and reflect the criminality for the other offences. 125 In my view there need to be a degree of partial accumulation to reflect the separate acts, the time periods between the acts, and that the 1984 act involved a repetition of that earlier conduct. The second offence establishes that the first matter was not an aberration. Given what occurred in 1996, these acts cannot be regarded as being isolated. The period of partial accumulation to reflect these factors should be 12 months. Special circumstances 126 I need to consider if there are special circumstances warranting an adjustment to the ratio which the non-parole period bears a relationship to the term of the sentence defined by s. 44(2) of the Crimes (Sentencing Procedure) Act 1999, that is, the non-parole period must not be less than three quarters of the term. 127 It was submitted that there should be a finding of special circumstances based on the offender's age, his medical condition, and his prospects for rehabilitation. I agree. 128 The partial accumulation of the sentences is also something I should take into account. Here, in my view, the ratio that the non-parole period bears to the head sentence should be 60%. Sentence 129 Following the jury's verdict, the offender was convicted on each count. 130 The offender has been deemed unsuitable for a Community Service Order and ineligible for a Periodic Detention Order. 131 The sentence in relation to each count is as follows: Count 1 – indecent assault 132 The offender is sentenced to a period of 6 months imprisonment to commence 27 February 2009 and to expire 26 August 2009. Count 2 – sexual assault 133 The offender is sentenced to a period of 3 years imprisonment to be served concurrently with count 1 to commence 27 February 2009 and to expire 26 February 2012 with a non-parole period of 2 years to commence on 27 February 2009 and to expire 26 February 2011. Count 4 – sexual assault 134 The offender is sentenced to a period of 3 years imprisonment to be served concurrently with counts 1 and 2 to commence 27 February 2009 and to expire 26 February 2012 with a non-parole period of 2 years to commence on 27 February 2009 and to expire 26 February 2011. Count 6 – indecent assault 135 The offender is sentenced to a period of 6 months imprisonment to be served concurrently with counts 1, 2, and 4 to commence 27 February 2009 and to expire 26 August 2009. Count 7 – sexual assault 136 The offender is sentenced to a period of 3 years imprisonment, with a partial accumulation of 12 months with counts 2 and 4, to commence 27 February 2011 and to expire 26 February 2014 with a non-parole period of 1 year to commence 27 February 2011 and to expire 26 February 2012. 137 The total effect of this sentence is that the offender is sentenced to 5 years imprisonment to date from 27 February 2009 and to expire 26 February 2014 with a non-parole period of 3 years to commence 27 February 2009 and to expire 26 February 2012. 138 The offender is therefore eligible for parole on 26 February 2012. Parole 139 I recommend that on his release to parole, his parole be subject to the following conditions: - that he be of good behaviour; - that he notify the Probation and Parole Service of his address, housing details, and the circumstances of his accommodation; - that he comply with all directions of the Probation and Parole Service, including as to the monitoring of his mental health issues. - that copies of Dr Norris' reports and recommendations in relation to his medical and other treatment accompany these orders to the Department of Corrective Services. 140 I also recommend that he be considered for referral to Forensic Psychological Services for assessment and case management strategies if available at the prison. 141 I also recommend that he be placed in protective custody for at least three months and until the full impact of his medical treatment regime can be assessed in a custodial environment. 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