Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: FD v R [2013] NSWCCA 139 Hearing dates: 9 April 2013 Decision date: 12 June 2013 Before: Simpson J at [1] Harrison J at [3] Bellew J at [4] Decision: 1.Leave to appeal granted. 2.Appeal dismissed. Catchwords: CRIMINAL LAW - sentence - multiple offences of aggravated indecent assault and sexual intercourse without consent - where medical evidence that the applicant had brain damage leading to cognitive deficit at the time of his offending - where sentencing judge accepted medical opinion led in applicant's case but proceeded to make findings inconsistent with that acceptance of opinion - where error established - whether any other sentence warranted in law - where sentencing judge erred by incorrectly stating the standard non-parole period applicable to some of the offences - where applicant the paternal grandfather of the two victims - where sentencing judge erred in the applicant's favour by ascribing an additional discount on account of remorse over and above the discount on account of the utilitarian value of the pleas of guilty which had been entered - where sentencing judge erred in failing to have regard to the applicant's brain damage as a factor which reduced his moral culpability and rendered general deterrence of less significance - where offending involved gross breach of trust perpetrated on two young victims over a long period of time - where sentencing judge imposed an aggregate sentence comprising a non parole period of 4 years with a balance of term of 4 years - no other sentence warranted in law - appeal dismissed Legislation Cited: Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act 1999 NSW Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 NSW Crimes (Sentencing Procedure) Amendment Act NSW 2007 Criminal Appeal Act NSW 1912 Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Muldrock v R (2011) 244 CLR 120 R v Anderson [1981] VR 155; (1980) 2 A Crim R 379 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Israil (2002) NSWCCA 255 R v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333 R v Simpson (2001) 53 NSWLR 704 Category: Principal judgment Parties: FD (Applicant) Crown (Respondent) Representation: Mr J Agius SC & Mr G Kennedy (Applicant) Mr P G Ingram SC (Respondent) Gerard Charles Kelly (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/224725 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-07-20 00:00:00 Before: Judge Charteris SC Judgment 1SIMPSON J: I agree with the orders proposed by Bellew J, and, subject to the following, with his Honour's reasons. 2In my opinion, the error in relation to the applicant's medical condition was of considerable significance and would ordinarily warrant some reduction in the sentence imposed. However, that error has to be balanced against two other errors, also significant, that favoured the applicant - the error (into which the sentencing judge was led) concerning the length of the applicable standard non-parole period, and the excessive allowance made in respect of the applicant's pleas of guilty and remorse. When those are factored in, the sentence was certainly not manifestly excessive. 3HARRISON J: I agree with Bellew J. I also agree with the additional remarks of Simpson J. 4BELLEW J: On 6 July 2012 the applicant pleaded guilty before Judge Charteris SC in the District Court to an indictment containing the following counts: (1)between 1 October 2005 and 31 October 2007 at Bundarra in the State of New South Wales did assault SD and at the time of such assault committed an act of indecency on SD, a child then under the age of 10 years, namely between 5 and 8 years (Crimes Act 1900 NSW s. 61M(2)) ("count 1"); (2)between 1 January 2006 and 19 September 2009 at Mosman in the State of New South Wales did assault SD and at the time of such assault committed an act of indecency on SD, a child then under the age of 10 years, namely between 5 and 8 years (Crimes Act 1900 NSW s. 61M(2)) ("count 2"); (3)between 1 January 2006 and 19 September 2009 at Mosman in the State of New South Wales did assault SD and at the time of such assault committed an act of indecency on SD, a child then under the age of 10 years, namely between 5 and 8 years (Crimes Act 1900 NSW s. 61M(2)) ("count 3"); (4)between 1 January 2008 and 9 October 2009 at Bundarra in the State of New South Wales did assault SD and at the time of such assault committed an act of indecency on SD, a child then under the age of 10 years, namely between 7 and 8 years (Crimes Act 1900 NSW s. 61M(2)) ("count 4"); (5)between 9 October 2008 and 19 September 2009 at Mosman in the State of New South Wales did have sexual intercourse with SD, a child then under the age of 10 years, namely 8 years (Crimes Act 1900 NSW s. 66A) ("count 5"); (6)between 1 January 2009 and 19 September 2009 at Mosman in the State of New South Wales did assault JD and at the time at such assault committed an act of indecency on JD, a child then under the age of 16 years, namely between 8 and 9 years (Crimes Act 1900 NSW s. 61M(2)) ("count 6"); (7)between 1 January 2006 and 19 September 2009 at Bundarra in the State of New South Wales did assault JD and at the time of such assault committed an act of indecency on JD, a child then under the age of 10 years namely between 5 and 8 years (Crimes Act 1900 NSW s. 61M(2)) ("count 7"); (8)between 23 May 2009 and 19 September 2009 at Mosman in the State of New South Wales did assault JD and at the time of such assault committed an act of indecency on JD a child then under the age of 16 years, namely 8 years (Crimes Act 1900 NSW s. 61M(2)) ("count 8"); (9)between 1 March 2008 and 17 August 2009 at Mosman in the State of New South Wales did have sexual intercourse with JD a child then under the age of 10 years namely 8 years (Crimes Act 1900 NSW s. 66A) ("count 9"). 5The applicant also asked the sentencing judge to take into account four additional matters. The first three were contained in a Form 1 which was referable to Count 5 and alleged: (1)an offence of aggravated indecent assault committed on SD at Bundarra between 9 October 2007 and 9 October 2008; (2)an offence of aggravated indecent assault committed upon SD between 1 January 2008 and 9 October 2009 at Bundarra; (3)an offence of aggravated indecent assault committed on SD between 23 May 2009 and 19 September 2009 at Mosman. 6There was a further Form 1 (referable to Count 9) which contained one additional matter which the applicant asked to be taken into account, namely a charge of aggravated indecent assault upon JD committed between 1 January 2006 and 1 September 2009 at Mosman. 7On 20 July 2012 the sentencing judge imposed the following penalties: (i)count 1 - imprisonment for 20 months; (ii)count 2 - imprisonment for 15 months; (iii)count 3 - imprisonment for 20 months; (iv)count 4 - imprisonment for 16 months; (v)count 5 - (taking into account the three matters on the Form 1) imprisonment for 3 years and 4 months; (vi)count 6 - imprisonment for 21 months; (vii)count 7 - imprisonment for 15 months; (viii)count 8 - imprisonment for 2 years; (ix)count 9 - (taking into account the further matter on the Form 1) imprisonment for 3 years and 2 months. 8In respect of each count his Honour indicated that he would fix the non-parole period at "around 50 percent" of the head sentence. Having considered questions of totality, his Honour imposed an aggregate sentence comprising a non-parole period of 4 years imprisonment to date from 6 July 2012 and to expire on 5 July 2016, with a balance of term of 4 years, to expire on 5 July 2020. 9The applicant now seeks leave to appeal against the sentences imposed by his Honour, on the grounds more fully set out below. THE APPLICABLE STANDARD NON-PAROLE PERIODS 10Before proceeding further, it is necessary to address an issue which was raised by the Crown at the conclusion of the hearing of the appeal and which was the subject of supplementary submissions. 11Each of counts 1, 2, 3, 4, 6, 7 and 8 alleged an offence contrary to s. 61M(2) of the Crimes Act. In the course of his reasons, and in what appears to have been a reflection of the agreed position of the parties at the time, the sentencing judge observed that: (i)the standard non-parole period applicable to each of counts 1, 2, 3, 6 and 8 was five (5) years imprisonment; (ii)the standard non-parole period applicable to each of counts 4 and 7 was eight (8) years imprisonment. 12In supplementary submissions, with which (as I understand it) the applicant took no issue, the Crown set out the relevant legislative history commencing with the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"), and submitted that the standard non-parole period in respect of each of the offences under s. 61M(2) was eight (8) years. I agree with the Crown's submission and it is appropriate the I briefly state my reasons. 13The Sentencing Act commenced on 1 February 2003. It was amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 ("the 2002 Act") which commenced on 1 February 2003. By s. 3 and sch. 1[4] of the 2002 Act, Division 1A (ss. 54A - 54D) was inserted into the Sentencing Act, which made provision for standard non-parole periods for certain offences which were specified in a Table. Item 9A in the Table nominated, as one of those offences, an offence against s. 61M(2), for which a standard non-parole period of five (5) years imprisonment was prescribed. 14By virtue of the operation of s. 3 and sch. 3.2[9] of the 2002 Act, the standard non-parole provisions did not apply to offences committed prior to the commencement of the 2002 Act, i.e. 1 February 2003. In the present case, all of the offences under s. 61M(2) were committed after that date. 15On 1 January 2008, the Crimes (Sentencing Procedure) Amendment Act 2007 ("the 2007 Act") commenced. Section 3 and sch. 1[10] of the 2007 Act amended the Sentencing Act by increasing the standard non-parole period applicable to an offence under s. 61M(2) from five (5) years imprisonment to eight (8) years imprisonment. 16In addition, s.3 and sch. 1[16] of the 2007 Act amended the Sentencing Act by inserting sch. 2, part 17, cl. 57 which provided that the amendments made to the Sentencing Act applied to the determination of a sentence for an offence whenever committed, unless, prior to the commencement of the amendments: (i)the court had convicted the person being sentenced of the offence; or (ii)a court had accepted a plea of guilty and the plea had not been withdrawn. 17In the present case, the applicant's pleas were first entered in the Local Court on 15 March 2012, and were entered before the sentencing judge on 6 July 2012, in each case well after the commencement of the 2007 Act. 18Accordingly, and contrary to the position expressed by the sentencing judge, the standard non-parole period applicable to each of the offences under s. 61M(2) was one if eight (8) years imprisonment. To the extent that his Honour specified that the standard non-parole period applicable to the offending in each of counts 1, 2, 3, 6 and 8 was one of five (5) years imprisonment, he was in error, although I must stress that this arose in circumstances where both parties had put the incorrect position. 19His Honour's error in this regard was not the subject of any submissions during the hearing of the appeal. The applicant did not rely upon it. The Crown raised it at the conclusion of oral argument, and dealt with it in supplementary written submissions. The error operated to the applicant's advantage. 20The matter having been raised, and an error having occurred, it is appropriate that it be pointed out. I have come to the conclusion, for the reasons more fully set out below, that other errors upon which the applicant did rely have been established, but that in the circumstances, no other sentence is warranted in law and should have been passed. Even if the applicant had relied upon his Honour's error as to the applicable standard non-parole period, it would not have affected the view that I have reached. THE FACTS 21 The applicant is the paternal grandfather of the two victims, who are twin girls. Counts 1 to 5 are referable to the first victim (SD) and counts 6 to 9 are referable to the second victim (JD). 22An agreed statement of facts was tendered before the sentencing judge. His Honour (commencing at ROS 5) found the facts to be as follows. Count 1 23Between 1 October 2005 and 31 October 2007, SD and her family were visiting the applicant at his country property. There were a number of people staying there and there were insufficient beds for everyone to be able to sleep separately. The applicant insisted that SD, who was then aged between 5 and 8 years, sleep in his bed. On one evening when they were in bed together, the applicant rolled over and placed his hand down SD's underpants. He then rubbed her in the vicinity of her vagina for a period of approximately 5 minutes, something that SD described as "funny as in weird". The offender then removed his hand. Count 2 24Between January and September 2009 the applicant was staying with SD and her family in Sydney. He was seated at the dinner table, with both victims seated on his lap, one on each knee. SD had her legs on either side of the applicant's legs underneath the table, and thus away from the view of the other adults who were sitting at the table. The applicant then proceeded to rub the vagina of SD outside her underwear for about 2 minutes, managing to conceal his behaviour from those other adults who were present. Count 3 25Between January 2006 and September 2009, when he was at SD's home in Sydney, the applicant was seated on a lounge next to the first victim, with both of them under a blanket. SD's older brother was sitting on the other end of the lounge. The applicant put his hands down SD's pants and rubbed her vagina. In doing so he concealed his actions from SD's elder brother. Count 4 26Between January 2008 and October 2009, when SD was aged between 7 and 8 years, her family were again staying at the applicant's country property. The applicant placed SD on his lap as they drove around the property, and allowed SD to steer the vehicle. Whilst she was on his lap the applicant placed his hands down her pants and rubbed her vagina. SD was not able to recall whether the applicant's hands were inside or outside her underpants at that time. Count 5 27Between 9 October 2008 and 19 September 2009 the applicant again stayed with SD and her family in Sydney. At this time he slept with his youngest grand daughter who was the younger sister of SD and JD. One morning, SD got into the bed of the applicant to say good morning to him. The applicant took advantage of that situation by placing his hand inside SD's vagina and underwear, before rubbing her vagina for a period of between 5 and 10 minutes. SD told the police that the applicant had used one finger which she described him as having moved "in a kind of swirl thingy movement" in the middle of her vagina. The first victim also told police that this movement felt "weird" and that it hurt. Count 6 28Between 1 January 2009 and 19 September 2009, at a time when JD was between 8 and 9 years of age, the applicant stayed at her home in Sydney. The applicant and JD walked into the bedroom of JD's younger sister, who was playing on the floor, and who asked the applicant and JD to play with her. They started playing "doctors and nurses" and whilst JD lay on the bed, the applicant pretended to give her a needle. The applicant then pulled the covers over JD, unzipped her jeans, and placed his hand down her underpants. He then rubbed her vagina in a circular motion with his finger. Count 7 29The offence in count 7 occurred between January 2006 and September 2009 when JD was between 5 and 8 years of age. Once again, JD was staying at the applicant's property and they were driving home after visiting one of the applicant's sons. The applicant allowed JD to sit on his lap and steer the car. When she was sitting on his lap, the applicant put his hand down JD's shorts and with his hand on the outside of her underwear he rubbed her vagina in a circular motion. Count 8 30The applicant was visiting JD's home in Sydney at a time when the second victim was 8 years of age. JD went upstairs to use the bathroom and the applicant followed her. When she had finished urinating, the applicant picked her up and put her in a standing position on the bathroom vanity and kissed her on the vagina, telling her "it's better". SD was in the room next door and observed what had occurred. Count 9 31Between 1 March 2008 and 17 August 2009 at a time when JD was 8 years of age, the applicant was again at JD's home in Sydney. JD went to sleep in her parents' bed. The offender followed her and lifted up the covers, and rubbed her vagina inside her underwear in a circular motion. The applicant told JD that she had a "little button thing" and that if she touched it, it would tickle. The Form 1 matters 32There were, as previously indicated, a total of four further matters which the applicant asked the sentencing judge to take into account. The first Form 1 contained three such matters, all of which related to SD. The second Form 1 contained one matter, relating to JD. The First Form 1 33As to the first matter, SD was at the applicant's country property on a family holiday between October 2007 and October 2008. The applicant took her for a ride in a buggy around the farm and during the course of that ride he rubbed the outside of her vagina through her underpants. 34As to the second matter, SD was again at the applicant's country property between 1 January 2008 and 9 October 2009. The applicant drove SD to what was known as the "old house", which was an area secluded from other parts of the property. As they drove to that area, the applicant spoke to SD about sexual matters, and kissing. When they arrived at the old house, the applicant placed SD on a chair standing up. He then pulled her pants down and kissed her on the vagina. 35As to the third matter, the applicant was staying at SD's home in Sydney between 23 May 2009 and 19 September 2009. SD, who was about 8½ years of age at the time, went upstairs to put her shoes on. The applicant picked her up and placed her on the bathroom vanity. He then pulled her underwear down and kissed her on the vagina. SD told the applicant that his behaviour was "gross", and the applicant replied that it was "beautiful". The second Form 1 36The second Form 1 contained one matter which related to JD. Between 1 January 2006 and 19 September 2009 the applicant was again staying at JD'S premises in Sydney. She was playing on a computer in the lounge room, with the applicant sitting next to her. The applicant unbuttoned and unzipped JD's jeans, before placing his hands on her stomach. JD told the applicant that she had to go to the bathroom, and immediately left the area. JD told police that the actions of the applicant on this occasion felt "really weird". The complaint 37The statement of facts before the sentencing judge recorded that both victims reported the applicant's conduct to their mother in September 2009. The father of the victims (the applicant's son) then confronted the applicant with the allegations. In response, the applicant said: "Of course I felt them up but you're being unreasonable". THE MEDICAL EVIDENCE 38Having regard to some of the grounds of appeal it is necessary to set out, in some detail, the medical evidence which was before his Honour on sentence. Dr Allnutt 39The applicant tendered a report of Dr Stephen Allnutt, Forensic Psychiatrist. Dr Allnutt had examined the applicant at the request of his solicitor on 14 May 2012 and provided a report dated 25 May 2012. At p. 2 of that report, under the heading "Index incidents", Dr Allnutt stated: "...he said that deep down he was aware that it was not the right thing to do at the time he offended but he still did it; he denied that during that time he was intoxicated. He did not believe that during the period he was suffering from any significant disturbances in his mood, or any unusual perceptual disturbances or significant anxiety symptoms". 40At p. 3, under the heading "Current clinical issues" Dr Allnutt said: "At the time that he saw me, when he considered what he had done, he was sorry that he had created a drama for his family; he said he now realised how serious the offending was ... He stated that he believed that what he had done was unacceptable, that it was unacceptable to touch a child or engage with a child sexually; he said previously, even though he used to read about others offending against children in the newspaper, for some reason, he never saw himself in that category". 41Prior to his examination of the applicant, Dr Allnutt had been provided with a report of Dr Roberts, a Consultant Psychiatrist, dated 30 January 2012, together with a report of Dr McMahon, Clinical Psychologist, dated 7 May 2012. I have set out below the relevant parts of those two reports. At this stage, it is relevant to note that having been provided with that material, Dr Allnutt expressed the following opinion (commencing at p. 6 of his report): "Notably, neuropsychological testing has revealed executive dysfunction with a diagnosis of mild neurocognitive disorder, consistent with abnormalities reportedly found on MRI scanning; thus your client manifests both evidence for structural damage and functional impairment likely contributed by his multiple underling (sic) chronic medical problems...His functioning, in my view, is mildly impaired secondary to depressive symptoms and neurocognitive deficits". 42Dr Allnutt, went on to conclude (under the heading "Synthesis" at p. 8 of his report): "It is possible that at the material time of the offending his neurocognitive deficits were probably present; the neurocognitive deficits have been described by the neuropsychologist as executive functioning deficits, predominantly in the area of abstract reasoning, slow visual memory processing and poor capacity to integrate feedback; executive functioning deals with decision making and social judgment; it is reasonable to consider that executive dysfunction contributed to some degree to an impairment in his social judgment; this consideration is given weight in the absence of a prior history of offending or evidence of inappropriate sexual behaviour, complaints or charges involving children prior to the period of offending and having regard to his age." Associate Professor Haber 43Two reports of Associate Professor Haber, a Consultant Physician, dated 30 May 2012 and 5 June 2012 were tendered before the sentencing judge. In the first of those reports, Associate Professor Haber observed that the applicant had been a diabetic for 33 years, was taking various forms of medication, had undergone bypass surgery and was a poorly controlled diabetic. In the second of those reports Associate Professor Haber expressed various views as to the likely effect of a period of incarceration upon the applicant's general health. Dr Vale 44Dr Vale, a Consultant Physician, examined the applicant in February 2012 and in May 2012, the applicant having originally been referred to him in 2009. In his two reports dated 16 February 2012 and 24 May 2012 (both of which were addressed to the applicant's General Practitioner) Dr Vale recorded complaints by the applicant of chest pain, right shoulder pain and short term memory loss, which Dr Vale considered may be the possible result of the applicant's hypertension. 45Following his review of the applicant in May 2012, and having regard to the results of an echocardiogram which was performed on the applicant, Dr Vale recommended coronary angiography be undertaken. In the same report, Dr Vale set out the applicant's medication regime, which included insulin on account of the applicant's diabetes. Dr McMahon 46Dr McMahon, a Clinical Psychologist, provided a report dated 7 May 2012 which he prepared following a neuro psychological assessment of the applicant. He expressed the opinion (under the heading "Diagnosis" at p. 21) that the applicant met DSM-IV criteria for the following: (i)Axis I - Mild Neurocognitive Disorder; paedophilia; (ii)Axis II - Avoidant Traits; (iii)Axis III - Diabetes; Heart condition; (iv)Axis IV - legal issues; (v)Axis V - GAF (current) = 55 47In terms of the first of those diagnoses, Dr McMahon said (at p. 21 - 22): "(The applicant's) pattern of responding on psychometric testing revealed an impaired range score on the Twenty Questions Test and some weak scores in domains related to the area of executive functioning assessed by this test. There were observed intermittent difficulties with cognition including (the applicant) reporting being "blank" of mind and difficulties with word finding consistent with a probable vascular cause to this condition. However, his cognitive difficulties were not of the extent to qualify for consideration of a dementia diagnosis. This represents a significant mild abnormality of functioning and therefore Mild Neurocognitive Disorder was coded on Axis I". 48Dr McMahon provided a supplementary report regarding a particular aspect of the testing that he had administered but it is not necessary, for present purposes, to detail the content of that report. Dr Roberts 49Five reports of Dr Roberts were tendered before his Honour. Dr Roberts also gave oral evidence at the sentence proceedings. 50The first of Dr Roberts' reports was dated 30 January 2012, and followed his initial examination of the applicant on 19 January 2012. Dr Roberts noted (at p. 4) that there was "an assertion of cognitive impairment which was not clinically evident", before further noting (at p. 6) that he had requested that the applicant undergo an MRI scan of the brain in order to ascertain whether there was any evidence of "pathology to the brain that may predispose to inappropriate behaviour". 51On 16 February 2012, Dr Woodward performed the MRI scan which had been requested by Dr Roberts, and reported the following the findings: "Impression: extensive bilateral changes of micro vascular ischemic disease with associated bilateral, small lacunar infarcts and further lacunar infarct in the left cerebral peduncle." 52In an addendum to her report, Dr Woodward said: "The degree of atrophy has been reviewed and this is moderate to moderately severe." 53The results of the MRI scan were sent to Dr Roberts who, in his second report dated 29 February 2012, said at pp. 1 - 2 (in reference to the opinions of Dr Woodward): "The addendum was added following a review of the films in which I considered that the degree of atrophy demonstrated was substantial and following consultation with Dr A Woodward of Hunter Imaging this impression was confirmed by her. I note that the report indicates the presence of extensive bilateral changes of micro-vascular ischaemic disease with associated bilateral, small, lacunar infarcts and further lacunar infarct in the cerebral peduncle. COMMENT. An infarct is an area of dead tissue arising as a result of ischaemic changes and denotes the death of brain cells in that area. The comment of atrophy i.e. shrinkage of the brain, which is described as moderate to moderately severe, is a circumstance in which there is a loss of brain substance due to vascular disease. The presence of significant brain disease with the preservation of cognitive function is a reflection of the areas of the brain affected. On reasonable psychiatric grounds, the picture of cerebral degeneration in the context of a normal MMSE examination is reflective of a form of organic pathology that would account for (the applicant's) inappropriate behaviour and his lack of appreciation of that behaviour in terms of its seriousness. In summary, (the applicant) presents as a man who has proven damage with loss of brain substance who behaved in an inappropriate manner as set out in the Court Attendance Notice documentation and in the Full Facts provided. His demonstration of poor impulse control in relation to this behaviour and his peculiar failure to be fully cognisant of the seriousness of his behaviour both in terms of his interaction with his grandchildren as well his current legal position is a reflection of the physical brain damage that is present. I am of the view that the introduction of Androcur Therapy, a well recognised treatment for inappropriate sexual drives in males would substantially reduce (the applicant's) sexual drive and very substantially reduce any probability of re-offending." 54Dr Roberts set out his recommendations in a report dated 29 February 2012 addressed to the applicant's General Practitioner, this being the third of his reports which was tendered before the sentencing judge. 55On 24 May 2012, having had the benefit of reading Dr McMahon's report of 7 May 2012, Dr Roberts provided a fourth report in which he said (at p. 1): "The diagnosis of (a mild neurocognitive disorder) reinforces my conclusions in relation to (the applicant)." 56Finally, on 6 June 2012, and having had the benefit of reading the two reports of Associate Professor Haber of 30 May 2012 and 5 June 2012, as well as the report of Dr Allnutt of 25 May 2012, Dr Roberts provided a fifth report in which he said (at pp. 1 - 2): "In summary, the additional documentation confirms the my (sic) view that (the applicant) is a brain damaged individual whose judgment and his peculiar inability to understand the seriousness of his actions are a reflection to a substantial degree of the brain damage that has been shown to exist. In regard to the use of Androcur I consider that this is the only treatment available that has a potential for success since by virtue of demonstrable brain damage (the applicant) would not be as amenable to psychological intervention as would be the case if such damage was not present." 57Dr Roberts also gave oral evidence before the sentencing judge. He was asked in the course of his evidence in chief about whether or not the cognitive defect that he had diagnosed was likely to have been present in the applicant at the time of the relevant offending (at T 2 - 3): "Q: ..... Is there anything in the medical history of this man that informs on that question as to whether the organic defects that you observed in the MRI and Dr Woodward has reported on, are likely to have been present during the time of the offending, which if I can remind you, I think the earliest date on the indictment is 1 October 2005? A: Yes. One can draw an inference as to the length of time pathology has been present. If I just refer to the MRI the impression is of micro-vascular ischaemic disease. (The applicant) has small vessel disease which results in a ischaemia, which is a lack of supply of blood and nutrients to various areas of the body including the brain. There is no evidence of a significant massive acute episode, so he has no history of a major stroke. This type of pathology is a form of pathology that develops over a long period of time and if - in the letter to me from his General Practitioner, Dr Bruce Menzies, of 20/1/2012, Dr Menzies gives a summary of past history which I think is of assistance...In relation to the medical history as given by Dr Menzies, reference is made to 1980 with a diagnosis of diabetes. Diabetes causes complications due to vascular disease. In 2002 we've got a diagnosis of neuropathy with diabetes which would suggest that the diabetes was not particularly well controlled". 58Having set out the applicant's history of insulin dependent diabetes, Dr Roberts gave the following further evidence in chief (at T 4): "Q: Does that (history) inform on the question of the likelihood that is, on the balance of probabilities, that he was suffering from the micro vascular ischaemic disease associated with the atrophy of the brain as early as 2006? A: Yes I think one could say that the suspicion of brain disease based on the history would be fairly high because he has the cluster of conditions including diabetes and hypertension and his control of - his attention to his own health is not good, which makes him more liable to suffer from the complications of the conditions that he's got that (sic) would be the case if he was pedantic with his diabetic control and other general health issues." 59Having confirmed that he had seen the applicant only a matter of days prior to giving evidence, Dr Roberts gave the following further evidence in chief (commencing at T 5): "Q: And on that occasion did he express any insight into the seriousness of the offending? A: This has been an aspect of (the applicant's) presentation from his initial consultation, and was one of the reasons why I ordered the MRI. He does not appear to really understand the significance of the seriousness of the acts that he performed and I feel that this is a reflection of cognitive impairment. I just don't think he fully grasps the import of what he has done. That I feel is the result of his condition. Q: Did he express to you nevertheless, this Wednesday when you saw him, any - did he make any statements at all about the significance of what he now understands was his conduct? A: He indicated that he regretted the breakdown of his relationship with the family and he indicated that he was pleading guilty because he did not want to cause any more distress to his granddaughters and to that extent, I think he grasps that he has behaved inappropriately. But its tenuous and I think that's a reflection of his diseased state. It's - his mental - his cerebral function - he is not dissimilar to disinhibited behaviour which encompasses many areas of behaviour that you see in people in convalescent homes where forgetting the sexual side, but in terms of general behaviour, people from I suppose refined background and with good manors (sic) behave quite inappropriately in the context of their upbringing and standards. This is a reflection of brain damage and its something we're going to see a lot more of as life extends into high age." 60Dr Roberts was then cross-examined (commencing at T 8) in relation to his evidence that at the time of his examination of the applicant a few days earlier, the applicant did not appear to really understand the significance of his offending. Having confirmed that he linked that lack of understanding to the applicant's brain damage, Dr Roberts said (at T 9): "I've been involved in these type of matters for many years and it is subjective but the degree of apparent inability to understand to the extent that it was present I felt was unusual and I think that's a reflection of his state of health and it is of concern. And it was one of the factors that initially at the time of his first consultation made me think that this is likely to be reflective of some what were used to call organic brain damage, now we call cognitive impairment, and that in fact was shown to be the case." 61Dr Roberts was then cross-examined on that part of the report of Dr Allnutt of 25 May 2012 which recounted the history provided by the applicant to Dr Allnutt concerning his awareness that his offending was inappropriate. Having confirmed this was not a history which had been provided by the applicant to him, Dr Roberts turned to the opinion expressed by Dr Allnutt to the effect that it was reasonable to consider that the applicant's executive dysfunction contributed to an impairment in his social judgment (at T 9): "Q: But if it's in terms of 'I knew it was wrong at the time but still did it' - - A: You see our executive function allows you - - it resides to a significant degree in the frontal lobe. If one has unacceptable impulses, and I'm here talking generally not specifically, an intact frontal lobe tells us he might want to do this but it's not appropriate. When one gets to a point where there is a certain degree of damage, one wants to do something, one knows possibly that it's inappropriate - I think one would know, but the capacity to exercise the control that would have been present in a healthy brain is no longer present." 62Dr Roberts was then asked a number of questions by the sentencing judge. In answering those questions, Dr Roberts confirmed his opinion (at T 13) that the changes demonstrated on the MRI scan were the cause of a mild neuro-cognitive disorder which, in turn, affected the applicant's executive function. 63Finally, and again in answer to a question from the sentencing judge, Dr Roberts made the following observation (at T 16 line 40) concerning the statement made by the applicant when confronted by his son (as set out in [37] above): "It's very peculiar. If a grandfather sexually assaulted a granddaughter and the girl's father quite understandably questioned that behaviour, to say that behaviour was an overreaction, it just shows a lack of capacity to grasp, and I felt that type of thing is unusual". The sentences imposed 64Having recounted the agreed facts, his Honour noted (at ROS 11) that the applicant's offending involved criminal conduct perpetrated over a long period of time, and upon two young victims. He made specific reference (at ROS 12) to the fact that the applicant's offending involved a gross breach of trust, committed in circumstances in which the victims were entitled to expect a loving and protective relationship with their grandfather. 65His Honour took into account the fact that the applicant had no prior criminal history and that he had pleaded guilty at the first available opportunity. He summarised in some detail (at ROS 13 - 15) the character evidence tendered on the applicant's behalf and was satisfied that the applicant had expressed genuine remorse. 66His Honour then summarised the medical evidence which was before him, before making a number of findings on the basis of that evidence. Some of those findings are relevant to specific grounds of appeal and have been set out in full below. 67His Honour assessed the objective seriousness of the offending in counts 1, 2, 3, 4, 6, 7 and 8 (being the counts under s. 61M(2)) as falling at the "very lower limit of the middle range of offences that respond to that conduct (at ROS 27). He assessed the objective seriousness of the offending in counts 5 and 9 (being the counts under s. 66A) as falling "very much in the lower end of the range of offences of this nature" (at ROS 27 - 28). 68His Honour regarded the age of the victims, and the fact that the offences involved a continuing course of conduct, as aggravating factors. Having referred to all of these matters, he proceeded to impose these sentences to which I previously referred. THE GROUNDS OF APPEAL Ground 1 - The sentencing judge fell into error when he found that the applicant was "running substantial properties". The evidence before his Honour 69The applicant did not give evidence in the sentence proceedings. There was, however, evidence of various histories provided by the applicant to medical practitioners which are relevant to this ground. 70Firstly, in his report of 25 May 2012 under the heading "Demographics" Dr Allnutt reported (at p. 2): "He presented as a 70 year old man who was divorced; at the time that I saw him he was taking a number of medications...he was not working, he was essentially retired". 71Dr McMahon, under the heading "Education and Employment History" set out the applicant's employment as a youth. This included a period of time working in a family business, I infer until his mid thirties. Dr McMahon then reported (at p. 3): "(The applicant) reported that he then bought a 1900 ac farm on the East side of Armidale and raised cattle and sheep for 7 years. He then sold this property and bought a second one of similar size on the West side of Armidale and raised cattle for approximately 7 years and then sold this block to University of New England as a research centre. He reported that he bought the 900 acre property "Glenirie" and then a further adjoining 8,000ac and another 1,100ac. He reported that he then bought a further 3,400 acres. He then bought the properties "Windscombe" and "Binalong" totalling another 5,500acres. He reported that he then bought the 4000acre property "Waverly" and an adjoining 2,000 acre property. He reported that he bought Primley at Armidale which was 2000 ac. He reported that his total pastoral holding was 26,000 acres." 72Later in his report (at p. 5) Dr McMahon noted: "(The applicant) reported that his eldest son's (sic) spoke to him only on business." 73In his report of 30 January 2012, under the heading "Current Occupation", Dr Roberts reported (at p. 2): "(The applicant) described himself as a grazier, that he did not do much but go from property to property." 74However, Dr Roberts also gave oral evidence (at T 15) that it was his understanding that the applicant "continues to engage, to some degree, in commercial ventures". 75The applicant's three siblings also provided a testimonial which was tendered before the sentencing judge. Having documented the early part of the applicant's working life, and having made specific reference to that part of his employment history which involved working in a family business, the document stated: "After this (the applicant) moved to the Armidale district where he now holds substantial rural property interests and produces beef for the Australian market". 76The sentencing judge (commencing at T 14) canvassed with Dr Roberts the general issue of the extent to which the applicant's brain shrinkage had impacted on his ability to function in other areas of his life: "Q: How else has his judgment been adversely affected by the shrinkage of his brain you say? Its not just specific to thoughts of paedophilia is it? It would exhibit itself in other aspects of his life? A: It may or may not. It's my understanding that he continues to engage to some degree in commercial ventures. He has very poor judgment in terms of his capacity to co-operate with his positions. He has very poor judgment in terms of his ability to engage in his health. Not only has he not continued to take the Androcur, but he is also apparently failed to cooperate with people with his diabetes and his hypertension, with the result - again as a result of his compromised judgment, he's got a degree of renal failure, he's (sic) advanced his vascular disease, his general physical health prognosis is poor". His Honour's reasons 77As I have discussed more fully in my consideration of grounds 2 and 3, his Honour accepted the opinion of Dr Roberts that the applicant had shrinkage of the brain and that he was, as a consequence, suffering from some degree of cognitive deficit at the time of his offending. His Honour then said (at ROS 26): "However, I am also conscious that the offender was well aware that what he was doing was inappropriate. The offender was functioning as an individual, he was running substantial properties, he was able to engage with his children". 78I have made reference to his Honour's conclusion that the offender was "well aware that what he was doing was inappropriate" when considering grounds 2 and 3. The focus of the present ground is his Honour's finding that the applicant was "running substantial properties". The submissions of the parties 79Senior counsel for the applicant submitted that this Honour's finding was erroneous because there was no evidence: (i)that the applicant was "running" substantial properties; (ii)that whatever it was that the applicant did on the property upon which he lived, he did alone or unassisted; and (iii)upon which the sentencing judge could properly make an assessment of the extent to which the applicant's contribution to the management of any properties was indicative of his ability to properly appreciate the seriousness of his conduct. 80The Crown submitted that although the evidence did not go so far as to exclude the participation of others in the management of any property, the evidence remained consistent with the conclusion that the applicant retained an active interest in the control and operation of what had been described by his siblings as the "substantial rural property interests" that he acquired over the years. 81The Crown submitted that, in these circumstances, the evidence supported his Honour's finding. Consideration and conclusion 82His Honour's finding that the applicant was "running substantial properties" should not be considered in isolation. Importantly, before reaching that conclusion his Honour found that the applicant was, at the relevant time, functioning as an individual. In oral submissions, and when the matter was specifically raised, senior counsel for the applicant took no issue in respect of that finding, and expressly conceded that it reflected the fact. 83His Honour then made the impugned finding, namely that the applicant was "running substantial properties" before further concluding that the applicant was "able to engage with his children". Once again, the matter having been raised in oral argument, senior counsel for the applicant took no issue in respect of the latter finding, and again expressly conceded that it reflected the fact. 84When the relevant passage of his Honour's reasons is viewed as a whole, it is apparent that having found that the applicant was "functioning as an individual" his Honour cited, by way of example of such functioning, the applicant's conduct in relation to his properties, and his engagement with his children. 85There were, as I have set out, references in the report of Dr McMahon to the applicant discussing matters of "business" with his eldest son. On the evidence, the only business in which the applicant was engaged stemmed from the property holdings described in the evidence which, according to the testimonial provided by the applicant's siblings, that business produced beef cattle for the Australian market. 86Whilst the evidence before his Honour fell short of establishing the precise role which the applicant played in the conduct of any business. His Honour did not find that the applicant was, as it were, single handedly conducting the business of a pastoralist. Although his Honour's use of the word "running" to describe the applicant's role in the conduct of his properties was somewhat imprecise, it is apparent that his Honour was using that term in the sense of "managing" or "directing" such properties. 87Viewed in this way, the evidence to which I have referred supported his Honour's conclusion. It is also important to bear in mind that the evidence of Dr Roberts (at [76]) above was to the effect that the applicant's brain damage may not necessarily have impacted upon aspects of his life outside his offending. 88For these reasons, this ground is not made out. Ground 2 - The sentencing judge fell into error when he found that the applicant "must have had insight knowing that what he was doing was wrong and that if he were detected he would bring upon himself considerable trouble". Ground 3 - The sentencing judge fell into error when he found that the applicant "was astute enough cognitively to conduct himself inappropriately with his grandchildren often when no one else was about and even if others were there, in such a manner that his behaviour was not detected". 89These grounds raise a number of common issues and are conveniently dealt with together. His Honour's reasons 90His Honour (at ROS 15) commenced with a summary of the medical evidence, parts of which I have set out above. Having done so, and in relation to the opinions of Dr Roberts, his Honour said (at ROS 22): "However, generally I accept that the doctor's opinion is entitled to carry some weight. The doctor observed that paedophilia is present in a very small percentage of the population, very much less than one to two percent. The doctor particularly referred to the presentation of the offender to him, on the occasions he had to examine him. The doctor also referred to the offender's statement to his son, the father of the victims, when first challenged about his behaviour, namely the words 'of course I felt them up but you are being unreasonable'. The doctor said those words showed a lack of capacity to 'grasp the situation'. I accept the doctor's evidence about shrinkage of the brain. I accept his conclusions that the offender has had a deterioration of the brain and I accept that this has had an effect on his executive function and his social judgment" (my emphasis in each case). 91Having summarised the evidence of Dr McMahon. His Honour concluded (at ROS 23): "(Dr McMahon) diagnosed that the offender is suffering from a mild neuro-cognitive disorder and also diagnosed him as suffering from paedophilia. The offender showed weak scores in testing of his executive functioning. He had intermittent difficulties with cognition but not sufficient to qualify for a diagnosis of dementia. The offender had a significant, but mild, abnormality of functioning. I accept Dr McMahon's opinion" (my emphasis). 92Finally, his Honour made reference to the evidence of Dr Allnutt. He observed (at ROS 24) that Dr Allnutt had reported that the neuro-psychological testing of the applicant exhibited executive dysfunction and that a diagnosis of mild neuro-cognitive disorder was made. He also observed that such diagnosis was consistent with the abnormalities which had been reported on the MRI scan of the applicant's brain. His Honour then concluded (at ROS 25): "(Dr Allnutt) considered it was reasonable to consider that the loss of executive function of the offender had contributed to some degree to an impairment in his social judgment. That conclusion was given weight in the absence of a prior history of offending and having regard to his advanced age. The doctor observed that offenders who commit incest, as a group, have the lowest rate of sexual recidivism compared to other groups of sexual offenders. The offender falls into a group of a low risk of future sexual misbehaviour. The doctor recommended psychological sexual counselling. "I accept the conclusions of Dr Allnutt and I consider they are supported to an extent by the opinions of Dr Roberts. I also accept the psychological conclusions of Dr McMahon" (my emphasis in each case). 93Bearing in mind his Honour's general acceptance of the opinions of Drs. Roberts, McMahon and Allnutt, his Honour then said (at ROS 26): "It is urged upon me that the offender's behaviour was a result of his cognitive deficit. I cannot make that conclusion but I do accept that the offender was suffering some degree of cognitive deficit when he commenced his behaviour. I accept that the behaviour was abhorrent. I accept that it is likely, although not revealed by the offender, that he has had feelings of a paedophilic nature most of his life. He was able, with a normal brain to exercise appropriate judgment so as not to act upon those feelings. I accept that it is no coincidence that the degeneration of the brain, and his diminished cognitive capacity, to declare themselves around the time he commenced to offend. However, I am also conscious that the offender was well aware that what he was doing was inappropriate. (my emphasis). 94Having concluded (at ROS 26) that the applicant was "well aware that what he was doing was inappropriate" his Honour made the finding which is the subject of ground 2 (at ROS 26): "He must have had insight knowing that what he was doing was wrong and that if he were detected he would bring upon himself considerable trouble." 95This was immediately followed by his Honour making the finding which is the subject of ground 3 (at ROS 26): "He was astute enough cognitively to conduct himself inappropriately with his grandchildren, often when no one else was about and, even if others were there, in such a manner that his behaviour was not detected". 96His Honour then said (at ROS 27): "I cannot explain his behaviour entirely by the existence of the cognitive deficit and shrinkage of his brain. This offender, I conclude, did have the capacity and the experience of life not to have acted upon his impulses even if his control was diminished. He chose to engage in this conduct and conceal his behaviour. I accept Dr Roberts' opinion that he does not have sufficient insight into the enormity of what he has done and that is probably due to his cognitive deficit" (my emphasis in each case). 97Finally, his Honour said (at ROS 28): "I take into account the shrinkage of his brain and the cognitive deficits but I also take into account, as I have said, that he knew that what he was doing was wrong" (my emphasis). The submissions of the parties 98The fundamental submission of the applicant was that the findings made by his Honour which are the subject of grounds 2 and 3 were generally against the weight of the evidence and, more specifically, at odds with his Honour's acceptance of the applicant's medical case, and the opinion of Dr Roberts in particular. 99The Crown relied, in particular, upon that part of the applicant's history reported by Dr Allnutt, namely that the applicant was aware that his offending was not the right thing to do, but that he had nevertheless persisted in doing it. This, the Crown submitted, provided support for the finding of the sentencing judge that the applicant must have had insight into the wrongfulness of his behaviour, as well as an insight into the consequences which would eventuate if that behaviour were discovered. 100In this regard, senior counsel for the applicant submitted that properly construed, the applicant's history to Dr Allnutt did not amount to an admission on the part of the applicant that he engaged in the offending with moral culpability. Rather, it was submitted, the history was evidence of impaired functioning on the part of the applicant. 101Senior counsel for the applicant also relied upon the fact that the history was provided to Dr Allnutt some considerable time after the offending. This, senior counsel submitted, rendered it necessary to exercise considerable caution in determining what weight should be attached to it. Consideration and conclusion 102As I have previously outlined, his Honour generally accepted the medical opinions which were relied upon in the applicant's case. These included, importantly, accepting the opinions of Dr Roberts concerning the shrinkage and deterioration of the applicant's brain (at ROS 22). 103The opinions of Dr Roberts were, of course, not limited to the fact that the applicant had brain damage. They extended to the effects of such brain damage. His Honour expressly accepted (at ROS 22) that these included effects upon the applicant's executive function and social judgment. However in both his written reports and his oral evidence, Dr Roberts went substantially further, and articulated those effects in some detail. In particular, it was Dr Roberts' opinion that: (i)the applicant had moderate, to moderately severe, shrinkage of the brain which was "significant" (at [53] - [54] above); (ii)the applicant's brain degeneration was reflective of a form of organic pathology which accounted for the applicant's inappropriate behaviour, his lack of appreciation of that behaviour, and his lack of appreciation of its seriousness (at [53] above); (iii)the applicant was a brain damaged individual whose judgment, and inability to understand the seriousness of his actions, were a reflection of the brain damage which existed (at [56] above); (iv)there was an inference available that the brain damage, and its effects, were present at the time of the offending (at [57] - [58] above); (v)the applicant did not appear to understand the seriousness of his offending which was a reflection of the cognitive impairment brought about by his brain damage (at [59] above); (vi)the applicant did not, as a result of his condition, fully grasp the import of what he had done, a circumstance which was particularly reflected in his response when confronted by his son (at [59] and [63] above); (vii) the applicant's degree of apparent inability to understand the extent of his offending was a reflection of his state of health (at [60] above); and (viii)there was, as a consequence of his brain damage, an impairment of the applicant's executive function which resulted in the applicant being impaired in terms of his capacity to control his impulses (at [61]) above. 104Although his Honour summarised the medical evidence within which these specific opinions were expressed, he did not further consider them in any detail. In particular, he did not engage in any analysis of those part(s) of such opinions he accepted, and those which he did not. In these circumstances, and having regard to his express acceptance (at ROS 22) of the opinions of Dr Roberts, his Honour must be taken to have accepted those specific aspects of Dr Roberts' opinions set out in [103] above. In other words, his Honour must be taken to have accepted Dr Roberts' opinions not only in relation to the fact of the applicant's brain damage, but also in relation to the particular effects that flowed from that brain damage. 105Accepting this to be the case, his Honour's findings that the applicant: (a)"must have had insight knowing that what he was doing was wrong and that if he were detected he would bring upon himself considerable trouble" (ground 2); and (b)was astute enough cognitively to conduct himself inappropriately with his grandchildren ..." (ground 3) were at odds with the opinions of Dr Roberts that the applicant: (i)lacked an appreciation of his behaviour, and of its seriousness; (ii)did not fully grasp the import of what he had done; and (iii)was not able to understand the extent of his offending; 106There are, in my view, other examples of conclusions reached by his Honour which were at odds with his acceptance of the medical evidence. For example, his Honour found (at ROS 27) that the applicant: (a)could not explain the applicant's behaviour "entirely by the existence of the cognitive deficit and shrinkage of his brain"; (b)"did have the capacity ..... not to have acted on his impulses even if his control was diminished"; and (c)"chose to engage in this conduct and conceal his behaviour". 107In my view, those findings reflect error, for two reasons. 108Firstly, bearing in mind his Honour's acceptance of the opinions of Dr Roberts, there is some tension between his Honour's acceptance of the applicant's cognitive deficit and its resultant effects on the one hand, and his conclusion that the applicant "chose" to engage in the conduct which was the subject of the offending on the other. Whilst the applicant may have chosen to engage in the behaviour which was the subject of the offending in the sense of exercising his free will to do so, an acceptance of the existence of his cognitive deficit and its consequences necessarily led to the conclusion that although he made such a choice, he lacked an appreciation of the seriousness and extent of his behaviour, and did not fully grasp the import of it. According to Dr Roberts, the applicant's inability to fully grasp the import of his behaviour was reflected in the statement he made to his son when confronted with the allegation of his behaviour. His Honour made a specific reference (at ROS 22) to that statement before immediately proceeding to express his acceptance of Dr Roberts' opinions. 109Secondly, his Honour's conclusion that the applicant had the capacity not to act on his impulses is diametrically opposed to the opinion of Dr Roberts (expressed in his oral evidence before the sentencing judge set out at [60] - [61] above) that the applicant's brain was such that he did not have that capacity. 110Finally, and again bearing in mind his Honour's acceptance of the opinions of Dr Roberts, his conclusions (at ROS 26) that the applicant "was aware that what he was doing was inappropriate" and (at ROS 28) that the applicant "knew what he was doing was wrong" are at odds with Dr Roberts' opinions that the applicant: (i)lacked an appreciation of his behaviour; (ii)lacked an appreciation of the seriousness of that behaviour; and (iii)was unable to understand its extent. 111For these reasons, grounds 2 and 3 are made out. 112I have further considered below, having regard to s. 6(3) of the Criminal Appeal Act 1912, whether any other sentence is warranted in law and should have been passed. Ground 4 - The sentencing judge fell into error when he found that the applicant "seemed to have contrived circumstances where he could be alone with each girl". His Honour's reasons 113His Honour (at ROS 26), having referred to the circumstances of count 2 which was the offending committed in the presence of other adults at a dinner table, said: "I also note that he had seemed to have contrived circumstances where he could be alone with each girl: each girl he inappropriately touched when he allowed each of them to drive a vehicle on his property." 114The references to the offending when the applicant allowed each victim to drive a vehicle on his property was a reference to the offending in count 4 (in respect of SD) and count 7 (in respect of JD). The submissions of the parties 115Senior counsel for the applicant submitted that in circumstances where the offending was set out in the agreed facts, there was simply no evidence of any specific circumstance(s) which would support the conclusion that the applicant had contrived any situation where he could be alone with his grandchildren for the purposes of interfering with them. 116The Crown submitted that his Honour's observation that the applicant had contrived circumstances was not to be taken in isolation. The Crown submitted that his Honour's reference to "circumstances where (the applicant) could be alone with each girl" was, when read in combination with the sentence that followed, limited to the offending in counts 4 and 7, and items 1 and 2 on the first Form 1, being the offending which occurred when the applicant was present with each of the victims in his vehicle. 117The Crown relied upon the fact that apart from that referable to counts 2, 3 and 6, the applicant's offending occurred when he was alone with the respective victims. This, it was submitted, was a factor which supported his Honour's conclusion. Consideration and conclusion 118On a fair reading of the impugned passage of his Honour's judgment, it is apparent that the circumstances to which he was referring were limited to those to which he expressly referred, namely those instances in which the applicant's offending occurred whilst each of the victims was seated on his lap in his motor vehicle. These instances of offending, as well as others, occurred in circumstances where the applicant was alone with the respective victims. Equally however, there were other instances in which the applicant offended in the presence of others. The offending in count 2, which was committed at a dinner table in the presence of other adults, serves as the most obvious example. 119In determining the circumstances of the offending in counts 4 and 7, his Honour was essentially limited to the contents of the agreed statement of facts which I have set out. In my view, those facts fell short of supporting a conclusion that the applicant had contrived the circumstances to ensure that he was alone with the respective victims. Whilst there may have been, in view of the applicant's overall offending, some suspicion in that regard, it was necessary for his Honour to be satisfied beyond reasonable doubt before making such a finding. In my view, the evidence was not sufficient to reach that point. 120It follows that in my view, ground 4 has not been made out. Ground 5 - Each of the findings above was against the evidence and inconsistent with the findings made concerning the diminished cognitive capacity of the applicant. 121Having upheld grounds 2, 3 and 4, it follows that I would also uphold ground 5. Ground 6 - The sentencing judge fell into error when he categorised each of the indecent assault offences as 'at the very lower limit of the middle range of offences that respond to that conduct' when the offences were in lowest range of offences of the relevant type. His Honour's reasons 122Having made reference to various aspects of the applicant's offending, his Honour (at ROS 27) concluded that the offending in each of counts 1, 2, 3, 4, 6, 7 and 8 was at the "very lower limit of the middle range of offences that respond to that conduct". The submissions of the parties 123Senior counsel for the applicant submitted that the relevant offending fell at the lowest level of the range, as opposed to falling at the lowest point of the middle of the range (as his Honour found). In support of that proposition, senior counsel submitted that: (i)none of the offences involved violence or the threat of violence, either during their commission or afterwards, as a measure of attempted concealment of the offence; (ii)there was no physical hurt inflicted; (iii)each of the offences was of very short duration; and (iv)there was no humiliation of either victim. 124Senior counsel further relied on the fact his Honour failed to distinguish, within those various counts, between those in which the applicant touched the victims on the outside of their clothes, and those in which he had touched their bare skin, either by placing his hands inside their underwear or kissing them. 125The Crown pointed out that each of the offending in counts 1, 3, 6, 7 and 8 involved touching the external genitalia of the respective victims. The Crown also relied upon the age of each victim. In particular, in respect of counts 6 and 8, the Crown pointed to the fact that the victim in each case (JD) was aged between 8 and 9 years, in circumstances where the relevant statutory provision applied to a child under 16 years. As an indicator of the objective seriousness of the offending, the Crown relied on the fact that the age of the victim was substantially less than the age prescribed by the statute. 126Finally, the Crown relied upon the fact that the offending was repeated, and involved an obvious breach of trust. 127In all of these circumstances, the Crown submitted that there was no error in the sentencing judge's assessment of the objective seriousness of the offending. Consideration and conclusion 128The matters upon which senior counsel for the applicant relied in support of this ground are certainly relevant to any assessment of the objective seriousness of the offending. Obviously however, they were not the only relevant considerations. 129One of the principal matters relied upon by the Crown was that the offending exhibited a breach of trust on the part of the applicant. That breach of trust was properly described by his Honour (at ROS 28) as "despicable". His Honour also properly took into account that the offending was aggravated by the age of the victims, that there was more than one victim, and that the applicant engaged in a continuing course of conduct. 130In my view, a consideration of all of the relevant factors supported his Honour's conclusion as to the objective seriousness of the offending. 131For these reasons this ground is not made out. IS ANY OTHER SENTENCE WARRANTED IN LAW? 132Section 6(3) of the Criminal Appeal Act 1912 is in the following terms: "(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal. " 133The opinion to which the section refers is an essential pre-condition for the exercise of the power for which the section provides. Unless such an opinion is reached, then that essential pre-condition is not satisfied (see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704). 134In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Spigelman CJ considered the meaning of the words "warranted in law" as they appear in the section and said: "[18] In these circumstances the phrase 'warranted in law" should be understood as a reference to the entire body of legal rules that inform the exercise of a sentencing discretion, i.e. both statutory requirements and sentencing principles developed at common law. [19] The import of paragraph [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of the applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides." The submissions of the parties 135Senior counsel for the applicant submitted that the sentences imposed failed to properly recognise the opinions of Dr Roberts. He submitted that his Honour's acceptance of those opinions should necessarily have led to the conclusion that the applicant's moral culpability was reduced. He submitted that such a reduction in moral culpability was not reflected in the sentences which were ultimately imposed. 136Senior counsel further submitted that the sentencing judge failed to take into account that there was a reduced need for specific deterrence in the case of the applicant, on account of his diagnosed brain damage and its resultant effects. 137Accordingly, it was submitted that in the event that this Court concluded that any of the grounds of appeal were made out, the Court should conclude that some lesser sentence was warranted, and should proceed to re-sentence the applicant. In the event that this position was reached, an updated report of Associate Professor Haber was tendered. 138The Crown submitted that even if error were found, this Court should not interfere. In support of this submission the Crown relied, in part, upon those matters which were relied upon in respect of ground 6. Consideration and conclusion 139The fact that an offender was, or is, suffering from some mental disorder or disability, either at the time of the commission of the offence or at the time of the sentencing, is a factor which may be taken into account (see R v Anderson [1981] VR 155; (1980) 2 A Crim R 379). In particular, the mental condition of an offender is capable of reducing that offender's moral culpability and may lead to a conclusion that matters such as general deterrence, retribution and denunciation have less weight (see Muldrock v R (2011) 244 CLR 120 at [53]). 140In R v Israil (2002) NSWCCA 255 Spigelman CJ said (at [23]): "To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in R v Henry (1999) 46 NSWLR 346, at [254]: "... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing." 141I interpolate that in the present case, Dr Roberts was clearly of the view that the applicant's brain damage went some way to explaining his offending. 142Spigelman CJ in Israil (supra) further observed (at [25]) that mental illness may also lead to the conclusion in a particular case that the element of personal deterrence is also entitled to less weight in the sentencing exercise than might otherwise be warranted. Similarly, in R v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333, Malcolm CJ said (at [48]): "...mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence." 143The sentencing judge did not, at any stage, specifically address the impact of the applicant's mental illness upon his moral culpability, nor did he address its impact upon the need for general deterrence. In my view, these were factors which the applicant was entitled to have taken into account in his favour. 144However, the fact that the applicant's brain damage may have operated to lessen his moral culpability, and may have rendered general deterrence of less significance, does not lead to the conclusion that some lesser sentence was warranted in law and should have been passed. 145There was no error in his Honour's assessment of the objective gravity of the applicant's offending. His Honour applied a discount of 25 per cent to reflect the utilitarian value of the applicant's plea of guilty and accepted further (at ROS 29) that the applicant genuinely regretted his conduct. He found that such regret was evidenced, in particular, by the applicant's insistence that the victims were not to be subjected to the stress that would inevitably have eventuated had the matter proceeded to trial. 146Having allowed a discount of 25 per cent to reflect the utilitarian value of the applicant's plea, his Honour (at ROS 29) increased that discount to one of 35 per cent, to "take into account the discounts for the plea of guilty and his genuine contrition". In allowing a separate discount of ten per cent to reflect the applicant's contrition his Honour erred (see R v Borkowski [2009] NSWCCA 102; (2009) 185 A Crim R 1 at [32] per Howie J, McClellan CJ at CL and Simpson J agreeing). However, this was an error which significantly favoured the applicant. 147His Honour took into account (at ROS 12 - 13) the fact that the applicant was a person of prior good character. He also had regard (at ROS 29 - 30) to the fact that as a result of his various physical and mental health disabilities, the impact, upon the applicant, of a term of imprisonment, particularly in circumstances where the prognosis was that there would be continued deterioration of his brain, would be significant. He also found special circumstances (at ROS 30) based upon the fact of the applicant's age, combined with the fact that he had not previously been in custody. 148It follows that but for the issue of the impact of the applicant's brain damage on the questions of moral culpability and general deterrence, his Honour had full regard to every aspect of the applicant's subjective case. He assessed that case in a way which was most favourable to the applicant. 149Moreover, and when viewed objectively, the inherently serious nature of the applicant's offending was aggravated by a number of matters. The offending involved what was properly described by his Honour as a "despicable" and "gross" breach of trust, it occurred over an extended period of time, and it was committed upon two victims of tender age. 150Even when full regard is paid to the applicant's diagnosed brain damage and its effects, including its effect upon the applicant's level of moral culpability and the need for general deterrence, it remains the case that the nature of his repeated offending towards the two victims was most serious. He took advantage of each of them in a way which represented the antithesis of the close and loving relationship that each was entitled to expect from their grandfather. 151In these circumstances, I am not of the opinion that some other sentence is warranted in law or should have been passed. ORDERS 152I propose the following orders: (i)leave to appeal granted; (ii)appeal dismissed. ********** 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: 12 June 2013