District Court New South Wales Medium Neutral Citation: R v LP [2012] NSWDC 206 Hearing dates: 07/09/2012 Decision date: 21 September 2012 Before: Norrish QC DCJ Decision: Total sentence imposed is a term of eight years with a non-parole period of four years. Catchwords: CRIME - Sentence - indecent assault, sexual assault, mild intellectual disability, 'special circumstances' Legislation Cited: Crimes Act 1900 (Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Hemsley [2004] NSWCCA 228 R v Engert [1995] 84 A Crim R 67, R v Israil [2002] NSWCCA 255, R v Letteri unreported 18/03/92 NSWCCA, R v Jimenez [1999] NSWCCA 7, Henry v R [1998] 48NSWLR Veen (No 2) v The Queen (1988) 164 CLR 365 R v Hammoud (2000) 118 ACrimR 66 R v DKM [2003] NSWCCA 372 R v Bonat [2004] NSWCCA 240 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v R (1998) 194 CLR 610 Category: Sentence Parties: Director of Public Prosecutions (NSW) LP Representation: Mr Queenan (Director of Public Prosecutions) Mr Hoare (Offender) File Number(s): 2009/5106 sentence 1HIS HONOUR: Mr P, stand up, thanks very much. I propose to sentence you to eight years imprisonment and impose a nonparole period of four years. You can take a seat. I am going to give you my reasons and I will explain how that sentence is structured and the reasons for the sentence to be imposed. 2LP appears today for sentence in relation to matters in respect of which he was found guilty by a jury on 28 May 2012. The accused had been arraigned on nine counts. There were verdicts by direction in relation to counts 2 and 3, and the jury returned verdicts of not guilty at the end of the Crown case on the basis there was a reasonable doubt about the guilt of the accused at that point in respect of counts 8 and 9. 3Count 1 was an allegation of indecent assault contrary to s 61E of the Crimes Act 1900 committed upon the complainant CK between 1 January 1982 and 31 May 1982. That offence, I am informed by the Crown and accept as I have had no information to the contrary, carried a maximum penalty at the time of the commission of the offence of six years imprisonment. The prisoner was found guilty of an allegation of carnally knowing as a stepfather the complainant CK, then a girl above the age of ten years and under the age of seventeen years, namely twelve or thirteen years, between 1 January 1984 and 31 December 1984. That offence, I am informed by the Crown, carried a maximum penalty of fourteen years imprisonment. 4Count 5 alleged the same offence, but committed between 1 July 1984 and 2 April 1985 when the complainant was thirteen years of age, again contrary to s 73 of the Crimes Act 1900. It carries a maximum penalty of fourteen years imprisonment. 5Count 6 was an allegation of sexual intercourse with a person under the age of sixteen years, namely fourteen years, without the consent of CK, knowing she was not consenting. This offence, contrary to s 61D(1) of the Crimes Act 1900, at that time carried a maximum penalty of ten years imprisonment. Count 7 likewise is an offence of sexual intercourse with consent, knowing the complainant CK was not consenting between 1 October 1985 and 31 December 1986. The complainant was then fourteen or fifteen years of age. All the offences were alleged to have been committed at Wagga Wagga in circumstances I will briefly outline shortly. 6The offences for which the prisoner was acquitted included an offence of indecent assault in 1982, an offence of sexual intercourse without consent, knowing that the complainant was not consenting in 1982 an allegation of sexual intercourse without consent in 1995, and a further allegation, in 2003, of indecent assault. 7Before I turn to the facts, I note that so far as the fact finding is concerned, pursuant to the verdicts of guilty from the jury, no issue has been taken by learned counsel for the accused with the facts that are to be found in relation to these matters, noting the verdicts of the jury and the evidence given at trial. It is to be borne in mind that the case was conducted on the basis, from the perspective of the accused, that the allegations of the complainant were untrue. If the jury was relevantly satisfied beyond reasonable doubt of the truth of the allegations, then verdicts of guilty ordinarily would follow and there was no issue taken with the facts. 8The background of this matter is that the prisoner met the mother of the complainant in about 1980. Eventually a relationship was established of a domestic character and the evidence revealed that the prisoner and the complainant's mother were eventually married in about 1983. This was, in fact, the subject of some evidence relating to photographs taken of the prisoner and the complainant together with other people. 9The family, as I understood the evidence, had moved from Queensland to Tumbarumba for a short period of time and then to Wagga in the early 1980's. The victim of the crimes was not the mother's only child, she had a brother. The family lived for a period of time in Gormly Avenue, Wagga Wagga, after briefly being at an address at Kooringal (a suburb of Wagga Wagga). 10The victim was born on (date deleted). She said in respect of count 1 that whilst living at Gormly Avenue one evening she was sitting in the lounge room and her mother was cooking dinner in the kitchen. She said that she was asked by the accused whilst they were in the lounge room, and the doors to the lounge room were closed, to come and sit on his lap. She did so, facing away from him. She said that she sat with her legs straddling his legs and with her back to him. She said the prisoner put his arms on her waist and started moving her backwards and forwards. She could feel his penis moving against her lower back or bottom, and then she felt her back was wet. He told her to be quiet and subsequently told her not to say anything to her mother. 11She gave evidence that there were other acts of a similar character committed subsequently. The evidence that was given in relation to counts 2 and 3, which were the subject of verdicts of 'not guilty' by direction, was available as context evidence. 12In relation to count 4, by which stage the family had moved address, she said that one afternoon she was in her bedroom doing her homework. She heard her mother go away from the house in the family motor vehicle. She did not want to be left alone. In order to travel with her mother she went out into the lounge room, but she was told by the prisoner not to go. She was at this stage in the first year of high school. She went back into her bedroom and closed the door. She said that the prisoner came into her bedroom, made her lay on the bed and pulled her underpants down to her legs. She was still in her school dress and, in greater detail than I need describe here, after pulling down his pants he inserted his penis into her vagina and moved up and down for about five minutes, and then made a funny noise and told her to clean herself up. 13She said that she lay in the bedroom crying and she said she felt sore in the vagina. She said this happened a number of times after that. She said in her evidence that she did tell her mother what had happened after this event, when the prisoner was out fishing, that Len had been doing things to her, and she said that her mother told her, "Leave it to me, I will get to the bottom of it." She said in her evidence that she heard Len say to her mother, "She is lying, she is only trying to split us up." She said that when her mother came back to tell her that she had spoken to the prisoner, she told her mother, "Don't bother". Her mother did not give evidence of such an event. 14Count 5 was an allegation that the accused and the complainant were alone together in an area called the Pomingalarna Reserve. The prisoner had a waste removal business involving the use of a truck. Whilst on the reserve doing work in relation to the truck and nobody present, the victim said that the prisoner put his arm around her and told her that he loved her. He undid her jeans and removed one leg of hers from the jeans. He then leaned her over whilst she leant on a tyre and had penile penetration of her from behind, placing his hands on her hips. The prisoner told her to clean up, and the complainant said at that stage she was about thirteen years of age. 15Count 6 involved an incident again in a relatively remote location near a dam. The prisoner and the complainant were with the truck, and the prisoner was undertaking some work in relation to the cleaning of the truck or its contents. The prisoner, on the complainant's account, rubbed the complainant's vagina through her jeans. He then undid her jeans, pulling her jeans and underwear down, and removing one of her legs or she removed one of her legs from her jeans. Again the prisoner bent the complainant over, pushed her legs apart and then placed his penis in her vagina, and moved it in and out, having penile penetration of her vagina. He told her again to clean herself up. 16The last count in the indictment, for which he was found guilty, was when they were at a property described as being in the vicinity of the Ashmont Golf Club, which is on the southern outskirts of Wagga Wagga. They were on a property belonging to a man called Colin Joseph and they had access to the local river and were using a chain to get the tank that was on the back of the truck, and which they had previously been involved in cleaning out, off the truck. They were alone at the time. She said that whilst they were alone the prisoner grabbed her around the waist. She said to the prisoner, "I don't want to do this". He undid her jeans and pulled her jeans down and ultimately while she was leaning on the truck he had penile penetration of her vagina and again told her to clean herself up. 17The facts, as I have briefly related them, are the facts that emerge from the evidence of the complainant consistent with the verdicts of guilty that have been returned. As the Crown correctly pointed out, the fact finding after a jury verdict of guilty is not restricted to a view "most favourable to the offender". However, of course, the findings of fact must be consistent with the verdict, noting the fact that relevant facts would need to be established beyond reasonable doubt for verdicts of guilty being returned. As the Crown correctly submits, the facts simply stated are that, by reference to the counts the prisoner was found guilty as stepfather of the complainant, indecently assaulted and/or sexually assaulted the complainant over a period of time between January 1982 and 1986, between the age of approximately ten years through to fifteen years. The frequency of which I could not be satisfied beyond reasonable doubt beyond those matters specifically giving rise to the counts to which I have referred. 18It goes without saying, of course, that allegations of this type are extremely serious, reflected in the maximum penalties, and there is no dispute that the prisoner had severely breached the trust reposed in him as the stepfather of the complainant and the person who had taken on the responsibility of her care and welfare by his relationship with the complainant's mother. There can be no doubt that the victim was living with the prisoner in domestic circumstances where the prisoner was acting, at least as a de facto parent to the victim. 19The prisoner was born on 22 December 1951. Thus he is now sixty years of age. His criminal history reveals a number of offences committed between 1970 and 2006, the last matter, contravene apprehended domestic violence order, is intimately bound up with the character of the relationship with the complainant and from what I was told was a matter of no great moment. It certainly did not involve any sexual assault. That conviction was recorded on 15 February 2006. 20The prisoner's other findings of guilt are mainly matters of dishonesty of a minor character and some driving offences. Those offences were committed primarily in the 1970's. Although there are some findings of guilt afterwards, including some dishonesty convictions in 1983 and 1993. 21The victim has provided to the court a victim impact statement which I have read and in that statement she sets out the effect upon her of the matters the subject of her evidence and obviously from the statement the conduct of the prisoner has had a profound effect upon her in a range of ways and I have taken that statement into account in accordance with the requirements of the Criminal Procedure Act. 22The prisoner did not give evidence in the proceedings on sentence. He, however, produced witnesses who gave evidence at the District Court at Wagga and produced other evidence in the nature of a psychological report and medical reports relating to himself and his wife. He called evidence in Wagga Wagga from Geoffrey Lambkin and Cheryl Flannagan. Mr Lambkin had known the prisoner and his wife for approximately twenty years and was a fishing friend. He gave evidence of Mrs P's severe health problems and the fact that she was under heavy doses of medication for pain relief, that she was unable to conduct household duties and that the prisoner did all the relevant housekeeping and other duties around the house. Without the prisoner's assistance at home Mrs P would be quite totally incapacitated. 23Mrs Flannagan had known the prisoner and his wife for twentyfive years and was a very close friend of Mrs P. She too had observed the prisoner carrying out household duties and said that Mrs P was a person who needed constant assistance all day every day. I note in that regard that Mrs P, because of her incapacitation and illhealth, was unavailable to give evidence in the trial, but an interview conducted with her by police in the course of the investigation was played to the jury without her being required to give evidence. Her account materially contradicted the complainant in several respects. 24The prisoner produced a psychological report. This was prepared by Dr Suzette Sowden from an assessment conducted on 31 August 2012, the report being dated 3 September 2012. The psychologist administered a number of standard and other tests to assess amongst other things intellectual functioning, cognitive development, personality traits and profiles and related matters. I must say it was a pleasure to read a psychological report with a psychologist actually concerning herself with matters within their expertise, administering the tests that I would understand psychologists are qualified to administer, rather than simply recounting some history given by the prisoner and making comment upon that with no psychometric testing. 25The psychologist noted that the prisoner was not a good historian with a "sparse history" and was often vague and unclear about details concerning his history. She said that whilst the prisoner responded well to the completion of the tests he was described as having "poor insight and judgment ... (and) to have a blaming attitude". The report contains background material relating to the prisoner's upbringing, the general detail of that I am prepared to accept, although it is hearsay and the prisoner did not give evidence in relation to it. 26It is recounted that the prisoner's mother was a Jehovah's Witness. The prisoner had an abusive father. He left school at a relatively early age, but in his adult life has owned various businesses, some of which were the subject of evidence in the trial, including the business involving the truck which I need not dwell upon. Up until relatively recent times he had always worked and undertook the financial management of businesses himself, a fact noted by the psychologist. As I understand the matter, he had no children through his relationship with Mrs P. As I said earlier Mrs P had two children, the complainant and her brother, from a previous relationship. 27The prisoner, it is reported in the psychologist's report, has been on antidepressants for over five years, largely in reaction to the commencement of legal actions against him. He suffers from diabetes and he presently receives a carer's pension due to his wife's ill health. He no longer drinks alcohol but appears to be a relatively heavy smoker. There is no evidence of mental illness beyond, of course, the issues of depressive symptoms and the like. 28Accepting the validity of the testing and the cooperation of the prisoner and the various tests that were administered (see para 13 of the report) it was found that the prisoner's full scale IQ for a person of his age, of course, is in the mildly delayed range of intellectual disability and only greater than two per cent of adults in his age range. On other testing, seeking to address intelligence quotient, he was assessed as being "in the mild or borderline impaired range of intellectual disability." His non-verbal IQ is in the mildly delayed range of intellectual disability and greater than only one per cent of adults his age. His verbal IQ performed slightly better. His age equivalent responses it was described (particularised at para 13 of the report) various tests reflected abilities for a person aged between six years five months and nine years four months. He scored lowly in the range of other cognitive and "social adaptive behaviour functioning tests". He had what was described as "low average quantative reasoning" which would have permitted him to maintain his businesses. This was, however, to be considered in the context of Mr P "having a mild intellectual disability." 29There is no evidence of any psychological disorders at the time of the reported sexual offences. There is no evidence of sociopathy, paedophilic or related disorders. He does have a developmental disability, particularly what is described as "an extremely low reading ability". However, he does not suffer from any attention deficit disabilities or difficulties. His maturity was considered to be "very low" and in the view of the psychologist he has a "poor ability to make rational and mature decisions." I should point out of course that, so far as the case is concerned in the context of the accused's denials of guilt and in the absence of any explanation for the conduct attributed to him by the prisoner, there is no basis for concluding that his intellectual disability, as it has been described, has any causal connection with the offending behaviour alleged by the complainant. To conclude otherwise would be, in the absence of any admission by the accused, mere supposition on my part. Clearly, on the victim's version of events, the actions of the prisoner were considered on the counts in the indictment occurring over a number of years, in circumstances where as a defacto parent at least, the prisoner would have and should have known better than to violate his stepdaughter. 30I am mindful of authorities, one of which I referred to in discussion with learned counsel for the prisoner, that deal with the relationship of intellectual disability or mental illness with matters pertinent to the sentencing process. R v Hemsley [2004] NSWCCA 228 contains, on the part of Sperling J as he then was, a summary the effective range of authorities dealing with these issues. At [33] he said (quoting the pertinent parts): "Mental illness (or mental disability) may be relevant...in three ways. First, when (the disability) contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced then may not then be the same call for denunciation and punishment, which may accordingly be reduced. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration. Thirdly, a custodial sentence may weigh more heavily on such a person." 31He went on to say that a fourth and countervailing consideration may arise, naming the level of danger which the prisoner presents to the community and this may sound in special deterrence. His Honour cited a number of authorities that I need only refer to by name but are well known to lawyers and sentencing judges, such as Engert [1995] 84 A Crim R 67, Israil [2002] NSWCCA 255, Letteri unreported 1992, Jimenez [1999] NSWCCA 7, Henry v R [1998] 48 NSWLR, amongst others. 32In Hemsley, whilst his Honour at [33] to [36], refers to "mental illness", several of the cases to which he refers of course are concerned with offenders who were not mentally ill but suffered from mental disabilities which would affect reasoning and the like. In this matter, although there is no basis for concluding in the circumstances of the evidence and the circumstances of the allegations against the prisoner, that there is a causal connection of his condition and the offending, I am mindful of the fact that the intellectual capacities of the prisoner in company with his physical ill health will mean that a custodial sentence will weigh more heavily upon him. I accept the submission by counsel for the prisoner that the prisoner does not present a continuing danger to the community. I appreciate the victim gave evidence of concerns about the welfare of her children. However, with respect to that evidence, it was evidence that was contradicted by other evidence in the trial that might fairly be described as "objective", so far as it was a reflection upon the true relationship of the prisoner and the complainant in the period before the final severing of the relationship of the victim with her mother and her stepfather. This occurred some years before these complaints were brought to the attention of the police. 33I have a body of evidence also in relation to the health of the prisoner and the health of his wife with whom he lives. The prisoner's major medical condition affecting him would appear from the evidence available to me to be his diabetes and blood pressure, as well as depressive symptoms. He takes a range of medication, not all of it fully explained to me, but I accept from his physical appearance and the medical report that he has substantial medical conditions which are permanent and which require constant monitoring. 34His wife and the mother of the complainant has much more serious health problems I have earlier indicated evidence from family friends attesting to her state of incapacitation. I have reports which reflect upon the fact that she is suffering from severe osteoarthritis, that she is in constant pain, that she takes a range of medication to suppress pain and also is taking a range of medication for respiratory and related problems. She has severe problems with shortness of breath, coughing, a lack of mobility and clearly needs regular attention. The prisoner's term of imprisonment of course will mean that her care will need to pass to others. I accept the evidence that she is in need of full time care and the prisoner has been providing that to her. She, like the prisoner, is being treated for depression, the cause of that is not fully explained, but it does not matter for the purposes of these proceedings. She has had other health issues as well that are connected to, it would seem, or might be regarded as symptoms of the significant health problems to which I have briefly referred. 35So far as the submissions were concerned, the counsel for the prisoner took little or no issue with the Crown submission in relation to the facts to be found, noting the verdicts of the jury. He submitted correctly that in sentencing the prisoner, I was required as best I could in the circumstances, to sentence the prisoner in accordance with the relevant sentencing practices in place for offences committed during the periods pleaded in the indictment. He took me to some authority in passing. He noted the psychologist's report, noted the impairment of the prisoner, and submitted that it placed the prisoner in a "childlike" range of cognitive capacity. He submitted that it either reduced the objective seriousness of the offending or alternatively reduced the need for general and personal deterrence. I accept the submission that, in this matter noting what Sperling J said that personal deterrence is not altogether a significant matter. 36Certainly, as I have said earlier, the prisoner does not now at this age and in his current circumstances, present a danger to others. However, the need for general deterrence for offences of this type remains. Although, it must be said that that has to be assessed in the context of dealing with the person who has been assessed with the intellectual disability that he has. Part of the difficulty in ameliorating the effect of general deterrence in a matter such as this, is the absence of any cogent evidence of "causal connection" with the offending, beyond drawing an inference from the report of the psychologist, absent any claim of connection by the prisoner. 37It was submitted that this case would be 'very' different if sentencing an intelligent thoughtful adult with maturity. I accept that it may be different, or it is different, but not 'very' different. It was submitted that clearly there was no evidence of remorse or contrition. However, it was submitted that would be unlikely the prisoner would re-offend, a submission I accept. It was conceded that the facts as established would involve a finding of psychological damage to the complainant. This is one of the reasons as was pointed out in submissions, that the courts have required deterrent sentences to deter others from committing like offences. 38There was a submission made that in fixing the non-parole period, which I would be required to fix inevitably, there should be a finding of 'special circumstances' pursuant to s 44 (Crimes (Sentencing Procedure) Act 1999). There was no major issue taken in relation to that matter by the learned Crown Prosecutor. So far as that submission is concerned, I accept it. I note notwithstanding some minor offending over a period of time the prisoner has never been previously imprisoned. The prisoner has very significant health difficulties and in his intellectual state, as I have pointed out, will find custody creating hardships for him beyond those of the normal or usual prison population. He will be vulnerable in custody, not just because of the character of the offences he committed, but because of his age and his health. I accept that he will need an extended period of time to adjust to community living and I note in relation to the circumstances of his wife, that his enforced absence from the family home will place considerable strain upon her circumstances, she may not survive his imprisonment. 39In that regard, it was submitted that the evidence established that the wife of the prisoner was a person in need of full time care, a submission I accept. It was submitted to the court that I should take an approach, as I understood the submission, similar to that in Muldrock in the fixing of the non-parole period. In Muldrock it should be fairly said, as I understood the facts, that the intellectual capacity of the prisoner who was very much younger than this prisoner was causally connected to the offending behaviour. Whilst, as I have said, I am prepared to make a finding of 'special circumstances' which, in my view, also includes the need for the prisoner to receive specialised counselling on his release and, of course, the partial accumulation of sentences which will be required to give effect to totality of the criminality. I could not impose a similar sentence to that imposed in 'Muldrock' at first instance. 40The Crown's written submissions were very extensive. Putting aside the issue of the facts as they were to be found, there was again little in the manner of dispute by the accused with much that had been helpfully written by the learned Crown Prosecutor. The Crown correctly noted that I am required to have regard to the 'purposes of sentencing' (s 3A of the Act) and this requires a balancing exercise of matters such as general and personal deterrence, rehabilitation and the like. These are matters to be had in the context of the relevance of principles such as those enunciated in Hemsley. However, in sentencing as the Crown correctly pointed out, I am required in considering the purposes of sentencing to give appropriate weight to the subjective circumstances of the prisoner and also to ensure that proper recognition is had of the seriousness of the conduct proven in the context of the maximum penalties that are appropriate. 41I do not need to dwell on the principles outlined by the Crown relating to the various purposes of sentencing. As was pointed out in Veen (No. 2) (1988) 165 CLR 465, a case cited by the Crown, the purposes of sentencing are guideposts which in some cases point in opposing directions. The Crown correctly submitted that the offences for which the prisoner is to be sentenced were serious crimes, and there was a need for what was described as "reasonable proportionality between the sentence and the circumstances of the crime" in the context of the objective gravity of the offences. The Crown pointed to, so far as the objective facts were concerned, the age of the complainant at various times, the first count of course involving the complainant being aged either ten or eleven. 42The crimes committed were generally committed without consent and the Crown pointed out, in the context of discussing aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, that the aggravations that might otherwise arise under subs (2) were very much inherently features of the facts. For example, counts 1 and 4 were committed in the home of the complainant, which was the home of the prisoner, and he was lawfully entitled to be in the subject premises. The issues of breach of trust that arise in relation to all the counts, particularly bearing in mind counts 4 and 5 specifically refer to the position of a stepfather, were very much intimately bound up in the fact finding to which I have referred. Breach of trust, as an aggravation pursuant to s 21(2), could only be relevant to counts 1, 6 and 7. 43The Crown said in relation to the issue of vulnerability of the victim that it conceded in the present circumstances this did not aggravate the criminality as to the offender, given the age of the complainant being an element of the charge. With regard to mitigating features arising under s 21A(3) the Crown accepted that the prisoner does not have a significant record of previous convictions, and has no record of matters of a similar nature. I say in passing, of course, that this is not an uncommon occurrence in crimes of sexual assault against family members which remain undetected for many years after their perpetration. On many occasions people convicted of such offences have come to the Court claiming good character. 44The weight to be given to the prisoner's character is, however, less in this matter the Crown submits. I accept that because, although his criminal history is not substantial, it is still reflective of some dishonesty over a period of time, albeit of a relatively minor character. I must say, however, in respect of the issue of good character, that I note the evidence positive concerning the prisoner as a provider, particularly as supporter of his incapacitated wife. Furthermore, the Crown concedes that there has been a degree of pretrial disclosure on the part of the prisoner. The Crown concedes that the defence assisted in the administration of justice by substantially narrowing the issues at trial and permitting the trial to be completed much more quickly than might otherwise have been the case. Mr Hoare has conducted the case professionally, as has the learned Crown Prosecutor, and the case was conducted in relatively quick time. The Crown is aware of matters pretrial, of course, which I do not know, which have further assisted in that regard. I acknowledge that as being a matter to which the prisoner has contributed. 45The Crown has referred to the totality of criminality required to be reflected in the sentencing of the prisoner. In that regard of course I note the decision of Pearce v R (1998) 194 CLR 610, particularly at [45], that I am required to fix an appropriate sentence for each offence, then in fixing the sentences have regard to issues of concurrency and accumulation to reflect the totality of the criminality. 46As was said by Simpson J, in the case cited by the Crown of Hammoud (2000) 118 A Crim R 66, following Pearce, a judge is required to fix an appropriate sentence for each offence before considering questions of accumulation, concurrence or totality. Her Honour took that to mean that: "Except perhaps in cases of multiple offences committed as part of a single discrete episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which the prisoner is to be sentenced." 47So far as the Crown's submissions in relation to special circumstances are concerned, I do not propose to reflect upon those in any detail. I have already acknowledged that I have had regard to them in my earlier conclusion. The Crown noted that if it is the case that the circumstances of custody for the prisoner as a perpetrator of a child sexual assault may be more onerous, such as having to serve his sentence on protection or in segregation, this is a matter which could only slightly ameliorate or mitigate the appropriate sentence and should not lead the Court to select a sentencing option other than full-time custody. There was no submission put to me that I could do anything else other than impose full-time custody. 48The Crown in relation to the effect upon third parties, particularly the effect on the prisoner's wife, accepted her ill-health. That was, of course, accepted at the trial. That is why her electronic interview was played. The effect of imprisonment on a person's family is only to be considered as a matter pertinent to changing what would otherwise be the appropriate penalty in exceptional cases, or where there is exceptional hardship. I do not accept, if it be the submission of the Crown, that the circumstances of Mrs P are irrelevant in these proceedings. But it must be fairly said this is not a case where the character of Mrs P's condition is such, given the objective criminality that I am concerned with and other relevant matters, that I could take steps other than to impose a term of fulltime imprisonment in relation to each offence. 49There will be cases, of course, where the circumstances of a third party are such or so extreme that it is legitimate to impose a penalty other than fulltime custody to ameliorate the effect on third parties. I do accept, as I said earlier without repeating myself unnecessarily, that Mrs P is quite an ill lady who needs intensive care. However, ultimately, to put it in the simplest terms, the crimes for which the prisoner is to be sentenced are of such seriousness that whilst I have taken her condition into account in a range of ways, including particularly the fixing of the non-parole period, I cannot fix anything other than a term of full-time imprisonment, giving the prisoner such mitigation as is appropriate all matters considered. 50The Crown very helpfully provided me with quite a large number of extracts from the statistics, but unfortunately the samples are very very small in practically every case. Whether this is a product of the age of the offences and the lack of statistics for the relevant period, or some other reason, I cannot say. But obviously, the superior courts have dealt with these offences in the past in greater numbers than are reflected in the statistics. The statistics have been of very little assistance. The Crown took me to two authorities, which it said may be of some assistance relating to sentencing in the period of time with which I am concerned; DKM [2003] NSWCCA 372 and JVP, an unreported decision of the New South Wales Court of Criminal Appeal, 6 November 1995. The DKM sentences followed pleas of guilty and included offences pursuant to s 73 and s 61D; JVP involved offences contrary to s 73. 51The objective facts may be similar. Most of these types of offences are similar in a very general sense. But the subjective and other relevant matters are very dissimilar between this prisoner and the other offenders. Another decision I have had regard to assist me in reminding myself of sentencing trends at this particular time was the decision of R v Bonat [2004] NSWCCA 240. That was an appeal against conviction from a trial over which I presided, where because of inconsistent verdicts the accused was acquitted. What I reflected upon were the sentences that I imposed, though admittedly, not the subject of any appeal. Those sentences fixed by me on 5 June 2003 had regard to what I was led to believe by the Crown and defence were relevant sentencing trends, or "tariffs", or ranges over the period of time that Mr Bonat had committed the crimes for which he was found guilty in the Albury District Court. These were crimes committed between 1984 and 1989, although none of them involved breaches of s 73. They did involve convictions, amongst other things, for having sexual intercourse with a person under the age of sixteen years, namely thirteen years and fifteen years, whilst under the authority of the prisoner. 52The Crown's written submissions as I said were very helpful, as were the oral submissions of learned counsel for the prisoner. Before I leave the Crown's submissions, the Crown said in its oral submissions that the prisoner's intellectual disability should be taken into consideration in the context of the fact that the evidence at trial revealed that the prisoner conducted his own businesses and took on the financial management of the business. It was also submitted that the effect of the prisoner's health did not impact upon the objective seriousness of the crimes committed. It was submitted as a general proposition that the more serious the conduct the less weight should be given to favourable subjective matters. That will, of course, as a general proposition, be subject to many exceptions which I need not dwell upon here. 53I have had regard of course to all the evidence in this matter and the submissions. So far as the prisoner's circumstances of custody, whilst no application has been made at this point, it is certainly a matter I would entertain if such application was made. I anticipate, as I pointed out, that the prisoner's circumstances in custody will be more onerous than for someone younger and healthier than the prisoner. The circumstances of his custody of course will be complicated by the character of the offending with which I am concerned. 54It should be pointed out that notwithstanding s 5 of the Crimes (Sentencing Procedure) Act I have no option in this matter other than to impose a term of imprisonment, as the various authorities dealing with offences of this type make clear. 55Just one thing before I proceed to sentence, Mr Crown, it is the case there is no record of it - there's no Probation and Parole Service report in this matter, is there? 56CROWN PROSECUTOR: No, your Honour. 57HIS HONOUR: That's right is it not, Mr Hoare? 58HOARE: Yes. 59HIS HONOUR: When I was reflecting upon the material, having no transcript of the previous proceedings, I was surprised there was no presentence report and I acted upon the material available to me. But I just wanted to double check that that was the case. 60One last matter that I wish to deal with, reflected in my earlier remarks concerning fact finding. It should be clearly understood that my responsibility in sentencing the prisoner is to sentence him in accordance with the verdicts that the jury has returned. As to the appropriateness of the verdicts, having regard to all the evidence at trial and other matters, they are matters for others to determine. They are not matters that can be reflected in the ultimate orders I make in sentencing the prisoner. 61Mr P, in relation to count 1, the allegation of indecent assault, you are convicted of that offence. You are sentenced in the context of the maximum penalty to a term of imprisonment of eighteen months. That will commence on today's date, 21 September 2012, and will expire on 20 March as I calculate it 2014. In respect of the offences in counts 6 and 7 you are convicted. In respect of each of those offences you are sentences to four years imprisonment. Those terms of imprisonment will commence on 21 September 2012 and expire on 20 September 2016. Those sentences will be concurrent with one another and concurrent with the sentence in relation to count 1. 62In respect of the offences contrary to counts 4 and 5, both involving offences that I am informed carry a greater maximum penalty than counts 6 and 7, you are convicted. You are sentenced to a term of imprisonment in each case by way of non-parole period to two years. That will commence on 21 September 2014 and expire on 20 September 2016. I fix in relation to those two sentences, which will be concurrent one with the other, a balance of sentence of four years. That sentence will expire on 20 September 2020. Thus the total sentence I impose is a term of eight years with a non-parole period of four years. ********** 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: 08 November 2012