Faehringer v R

[2017] NSWCCA 248

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Faehringer v R [2017] NSWCCA 248
Hearing dates:	8 September 2017
Decision date:	16 October 2017
Before:	Macfarlan JA at [1]; Beech-Jones J at [2]; Wilson J at [3]
Decision:	(1)   Leave to appeal against conviction with respect to count 5 granted. (2)   Conviction and sentence with respect to count 5 quashed. (3)   Leave to appeal against sentence with respect to counts 1 – 4 granted. (4)   Sentences imposed on 19 November 2015 set aside. In lieu, the applicant is sentenced to an aggregate term of imprisonment of 6 years and 7 months imprisonment, to date from 19 November 2015 and expiring on 18 June 2022. The non-parole period is one of 3 years and 7 months, expiring on 18 June 2019.
Catchwords:	CRIMINAL LAW – sentence appeal – conviction appeal added by leave – one offence statute barred – assessment of objective seriousness – historical sentencing patterns – utilitarian value of pleas of guilty – prospects of rehabilitation – totality – no point of principle
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	CT v R [2017] NSWCCA 15 Goebel-McGregor v R [2006] NSWCCA 390 Imbornone v R [2017] NSWCCA 144 Magnuson v R [2013] NSWCCA 50 Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 PM v R [2017] NSWCCA 108 R v Holyoak (1995) 82 A Crim R 502 R v CTG [2017] NSWCCA 163 R v McLean [2001] NSWCCA 58; (2001) 121 A Crim 484 R v MJR [2002] 54 NSWLR 368 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Roberts [2003] NSWCCA 309 R v Sopher (1993) 70 A Crim R 570 R v Thomas [2007] NSWCCA 269 R v Thomson & Houlton (2000) 49 NSWLR 383 Wright v R [2016] NSWCCA 122
Category:	Principal judgment
Parties:	Stefan Anton Faehringer (Applicant)  Crown (Respondent)
Representation:	Counsel: R. Webb (Applicant) T. Smith (Respondent)   Solicitors: J Hall (Applicant)  C. Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/342434
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 19 November 2015 Before: Culver DCJ File Number(s): 2017/342434

Judgment

1. MACFARLAN JA: I agree with Wilson J.

2. BEECH-JONES J: I agree with Wilson J.

3. WILSON J: On 19 November 2015 the applicant was sentenced in the District Court for five offences, to which he had previously entered pleas of guilty. The charges, each of which was brought under since repealed legislation, and the sentences imposed, are as follows.

Charge	Offence	Sentence
1 (Seq. 1)	Indecent Assault of a Female Under 16 Between 1.1.1973 and 31.12.1974, at Heathcote s 76 Crimes Act 1900 (NSW) Maximum penalty: 6 years imprisonment	6 months imprisonment to date from 19 November 2015 and expiring on 18 May 2016
2 (Seq. 7)	Indecent Assault of a Female Under 16 Between 1.1.1973 and 31.12.1974, at Heathcote s 76 Crimes Act 1900 (NSW) Maximum penalty: 6 years imprisonment	12 months imprisonment to date from 19 February 2016 and expiring on 18 February 2017
3 (Seq. 12)	Carnal Knowledge of a Girl aged between 10 and 16 years Between 1.1.1973 and 31.12.1974, at Heathcote s 71 Crimes Act 1900 (NSW) Maximum penalty: 10 years imprisonment	3 years imprisonment to date from 19 August 2016 and expiring on 18 August 2019
4 (Seq. 13)	Carnal Knowledge of a Girl aged between 10 and 16 years Between 1.1.1973 and 31.12.1974, at Heathcote s 71 Crimes Act 1900 (NSW) Maximum penalty: 10 years imprisonment	3 years imprisonment to date from 19 August 2017 and expiring on 18 August 2020
5 (Seq. 14)	Carnal Knowledge of a Girl aged between 10 and 16 years Between 1.1.1975 and 13.9.1977, at Baulkham Hills s 71 Crimes Act 1900 (NSW) Maximum penalty: 10 years imprisonment	5 years imprisonment to date from 19 February 2019 and expiring on 18 February 2024. Non-parole period (“NPP”) of 2 years expiring on 18 February 2021

4. The overall effective sentence was one of 8 years and 3 months, with a NPP of 5 years and 3 months.

5. Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) the applicant brought an application for leave to appeal against sentence, pleading four grounds of appeal. The proposed grounds were in these terms:

1. “The learned sentencing judge accorded insufficient weight to contrition, rehabilitation and the age of the applicant being 77 years at the time of sentence”;

2. “The structure and casting of the sentence was manifestly severe in all of the circumstances in the application of the principle of totality”;

3. “Insufficient weight was given by the learned sentencing judge in the structure and casting of the sentence to the sentencing law applicable at the time of the offending conduct”; and

4. “The sentence was manifestly excessive in all of the circumstances”.

6. The applicant filed written submissions in support of his application, although the submissions addressed grounds other than those pleaded. The Crown filed its submissions thereafter, pointing out that count 5 had been brought and finalised despite the limiting operation of s 78 of the Crimes Act, which provided that no prosecution for an offence under s 71 should be commenced after the expiration of 12 months, if the girl in question was over the age of 14 years and under the age of 16 years. During the period averred by the charge the complainant was aged 13, 14 or 15, in circumstances where the evidence did not establish that she was under 14 years of age.

7. After having received the Crown’s submissions, the applicant filed submissions in reply which advanced further, and different, grounds of appeal to those originally pleaded, and to those argued in the initial written submissions. At the hearing of the matter before this Court, the applicant sought leave to amend his appeal with respect to count 5 to an appeal against conviction pursuant to s 5(1)(b) of the Criminal Appeal Act, and to amend the grounds more generally. The grounds sought to be advanced on the sentence appeal are (by reference to the “submissions in reply”):

1. “The learned sentencing judge erred in the assessment of the objective criminality of counts 3 and 4 (the remaining carnal knowledge counts)”;

2. “Abandoned”;

3. “The learned sentencing judge erred in properly taking into account the utilitarian value of the guilty pleas”;

4. “The learned sentencing judge gave no weight to rehabilitation in substance and effect in all of the circumstances”;

5. “The learned sentencing judge failed to take into account the principle of totality in the structure and casting of the sentence”; and

6. “The sentence imposed was manifestly excessive in all of the circumstances”.

8. Although the course the applicant has taken with respect to his application is less than satisfactory, the Crown does not object to the amendments, and it is the conviction appeal, and the third set of proposed sentence appeal grounds, which this judgment will consider.

The Proceedings in the District Court

9. The applicant entered pleas of guilty to the five charges against him on 6 August 2015. He adhered to those pleas when he appeared before her Honour Judge Culver in the District Court, and the matter proceeded to sentence hearing. Sentence was imposed that day, with her Honour delivering judgment ex tempore.

The Crown Case on Sentence

10. The Crown tendered a Statement of Agreed Facts to the sentencing court, together with an antecedents document, which stated that the applicant had no criminal history. A Pre-Sentence Report (“PSR”) and a Victim Impact Statement were also tendered. The sentencing judge found the facts as agreed between the parties, from which the following summary is drawn.

11. The victim was an indigenous girl born in September 1961. In July 1967 she and her four younger brothers entered an orphanage because of the inability of their mother to care for the children. In September 1967, when she was aged 6 years, the orphanage authorities placed the victim in the care of the applicant and his wife, as foster parents.

12. The applicant and his wife had two children of their own who were respectively two and four years younger than the victim. The family initially lived in Ryde, but moved about for some years before settling in Heathcote in 1971, where the applicant ran a take away food business. The family lived above the premises of the business. At the time, the victim was 10 years old; she enrolled in a nearby primary school.

13. When the victim was aged 12 in 1973 she perceived that the applicant began to be more attentive to her. This attention made her uncomfortable.

14. On a day in 1973 or 1974 the victim was at home playing with her foster siblings. She was injured in the course of play and began to cry. The applicant came to her and began to kiss away the tears from her cheek. He then pushed his mouth onto hers and inserted his tongue into her mouth. The victim was shocked and frightened. She pushed the applicant away. This conduct was charged as count 1. After this incident the applicant began to touch the victim in a sexual way.

15. On a morning in the same period the victim went downstairs from her home into the take away shop where the applicant was working, to get something. He approached her and, taking her hands, pushed them into his pants and made her fondle his penis. The victim was on her knees as this occurred. This conduct was charged as count 2.

16. Within a few weeks of this incident, on an occasion when the victim was again with the applicant in the take away shop, the applicant approached her and pushed her face forward against a wall. Standing behind the victim he then inserted his penis into her vagina and had sexual intercourse with her. This conduct was charged as count 3.

17. At some stage in the 1973 – 1974 period, on an occasion when the victim went downstairs into the take away shop one morning before school, the applicant again inserted his penis into the victim’s vagina and had sexual intercourse with her. This conduct was charged as count 4.

18. In 1974 the family moved to an address at Baulkham Hills. The applicant worked night shifts as a baker; his wife worked during the day. The applicant was generally at home alone through the day with the children. On an occasion in 1975, 1976, or 1977, and before her 16th birthday in September 1977, the victim returned home from school earlier than her foster siblings, who had after school activities to attend. The applicant was also at home. He had penile / vaginal sexual intercourse with the victim in his and his wife’s bedroom. This conduct was charged as count 5, a charge which is statute barred.

19. After finishing high school the victim obtained an apprenticeship which led to her working odd hours. One night in 1979 she was late home from work, and there was an argument between her and the applicant’s wife because of her lateness. The victim told her foster mother that she did not have a boyfriend, and that there wasn’t “anyone out there but your husband”. She went to her room. Later, she heard her foster mother ask the applicant, “is it true Stefan”. He responded “yes”. Soon after the applicant came into the victim’s bedroom and apologised to her for his conduct.

20. The victim spent some nights staying with friends and soon after she moved away from her foster parents’ home.

21. In 2008 the victim found the applicant’s telephone number and contacted him. She told him that what he had done to her all those many years ago was wrong and she intended to take action. The applicant acknowledged the wrongfulness of his conduct.

22. The victim later complained to police and, on 14 October 2014 the victim telephoned the applicant in the presence of police officers. The call was lawfully recorded. During the conversation the applicant said,

“Of course I did have sex with you, I have felt so awful, so unreal. You don’t know how much I regret it, do you know how much I will always regret it, it is something that bothers me, it’s on my soul. Every time I think about it hurts, it hurts because I liked you a lot.”

23. The applicant was charged the following month.

24. The victim was aged 54 when she gave her Victim Impact Statement, which was received by the sentencing court pursuant to s 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW). She referred in the statement to the profoundly negative impact on her life of the years of sexual abuse at the hands of a man who was supposed to fill the role of father.

25. The PSR gave the sentencing judge information about the applicant’s background and current circumstances. The applicant was born and educated in Austria, where he trained as a baker. He migrated to Australia in 1959, and married his wife here. The couple had two children and the applicant was always fully employed to provide for his family. Aged 77 years and 11 months at the date of sentence, the applicant lived as caretaker on a farm he owned jointly with his son. He had a heart problem and was regarded as a stroke risk. The applicant was assessed by the author of the PSR as being in the low risk category for sexual recidivism, with no eligibility for sexual treatment programmes.

26. When discussing the offences the applicant acknowledged what he had done but spoke in such a way as to lead the author of the PSR to conclude that he attributed some responsibility for the offences to the victim, and lacked empathy for her.

The Applicant’s Case on Sentence

27. The applicant did not give evidence before the sentencing judge. He tendered correspondence from his treating doctors which indicated that he had had a knee replacement, and suffered from Type Two Diabetes and atrial fibrillation, both being chronic but stable disorders. Whilst his general practitioner stated that the conditions were not life threatening, his cardiologist referred to the possibility of coronary disease which, if it existed, could be life threatening. His health is broadly consistent with his years.

28. A report from Dr Olav Nielssen was also tendered. To Dr Nielssen, the applicant had referred to his “relationship” with the victim as one which commenced when she was 12 years old and continued for some years. He described it as “give and take”, and said “it happened… I have had this hanging over my head for thirty years”. Of its commencement, the applicant said “one thing led to another and it just kept on going”. He claimed to have gotten on “like a house on fire” with the victim. Despite this, the applicant told Dr Nielssen that he had known “it was the wrong thing” and had “always hated it”.

29. Dr Nielssen thought the applicant was a fit looking man for his age, with no cognitive or psychiatric disorders. He regarded him as at very low risk of similarly reoffending.

30. The applicant’s son, and the wife from whom he had been estranged for some decades, both wrote very positive character testimonials of the applicant, which described him as a hardworking, loving family man who had been an inspiration to his son and a thoughtful and caring husband.

The Conclusions of the Sentencing Judge

31. It should be noted that her Honour delivered her sentence judgment ex tempore, having heard the matter before and after dealing with an unrelated trial which she was also hearing.

32. She set out the facts of the offences consistent with the agreed facts, and noted that the offences were not isolated, but rather were committed as part of an ongoing course of conduct over a number of years.

33. Her Honour characterised the offences as particularly serious, having regard to the context in which they were committed. The applicant was, as foster father, in a position of authority over a young indigenous girl who was isolated and especially vulnerable. She had been removed from her own family and community at a young age and was entirely dependent upon the applicant and his wife. The sentencing judge also had regard to the victim’s age relevant to the age range for each offence, and noted that the victim was still relatively young, particularly as compared to a girl of just under 16 years, that being the top of the age range.

34. Referring to the victim impact statement, her Honour observed that the devastation there described was typical of offences of this nature, and noted that for that reason the offences were not aggravated by anything in the statement.

35. The sentencing judge was prepared to accept that the applicant was sorrowful as to his offending conduct, despite the lack of empathy noted by the author of the PSR. She regarded the latter feature as troubling, and indicative of a lack of insight. Her Honour referred to the absence of criminal antecedents, but observed that, as that factor was of assistance to the applicant in the commission of the offences, it could not be taken into account in his favour on sentence. His former good character was, however, regarded as relevant to the applicant’s prospects of rehabilitation, which her Honour concluded were optimistic.

36. As to the delay between the commission of the offences and the imposition of sentence, the sentencing judge noted that the applicant had been conscious of the offences “hanging over his head”, as he had put it to Dr Nielssen, concluding that this was a feature that must be considered when determining sentence. Also to be taken into account was the fact that the applicant had not offended in the intervening period.

37. The sentencing judge noted the applicant’s age and the medical conditions commensurate with age from which he suffered, observing that there was no evidence that Justice Health could not adequately manage the latter, whilst the former was a feature to be taken into account, consistent with authority. Her Honour referred in that regard to R v Sopher (1993) 70 A Crim R 570 at 573, and Goebel-McGregor v R [2006] NSWCCA 390 at [128].

38. The final feature arising from the delay in placing the applicant before a court was that of changes in sentencing patterns between the nineteen-seventies and the present. The sentencing judge referred to the principles set out in R v MJR [2002] 54 NSWLR 368, and to the observations of Howie J in R v Roberts [2003] NSWCCA 309 at [20]. She concluded that sentences imposed in that earlier time were “generally speaking, of a more lenient nature”. Whilst she was not prepared to have regard to the system of generous remissions that then applied by executive policy to reduce the sentences to be imposed, her Honour did have regard to that practice in finding that special circumstances existed, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. She determined to apply that finding to the sentence to be imposed for count 5.

39. Her Honour referred to the need for the sentence to import a measure of general deterrence. She allowed a reduction in sentence of 25% to reflect the utilitarian value of pleas of guilty entered in the Local Court.

The Conviction Appeal

40. As the Crown pointed out, the offence charged as count 5 was statute barred. At the time of the commission of the offences, prosecutions for offences contrary to s 71 were subject to a limitation contained in s 78, which provided,

“78   Limitation

No prosecution in respect of any offence under sections 71, 72, or 76 shall, if the girl in question was at the time of the alleged offence over the age of fourteen years and under the age of sixteen years, be commenced after the expiration of twelve months from the time of the alleged offence.”

41. During the time frame averred by count 5, 1 January 1975 to 13 September 1977, the complainant was aged 13, 14 and 15 years. She turned 16 on 13 September 1977. The evidence relevant to this charge did not establish beyond reasonable doubt that the offence occurred prior to the complainant’s 14th birthday, on 13 September 1975, and s 78 was thus enlivened. The charge was invalidly brought.

42. The applicant’s conviction and sentence for that offence must be quashed.

41. It is clear that the sentencing judge structured the sentence for all five counts in such a way as to give primacy to the sentence imposed for count 5, even in circumstances where it was not objectively the most serious of the offences. For example, the finding of special circumstances, whilst relevant to all offences, was applied only with respect to count 5.

42. As both parties acknowledged, the structure of sentence is such that the sentences imposed by the sentencing judge must be set aside, and the applicant must be re-sentenced for the four remaining counts. In those circumstances, it is not strictly necessary to consider the applicant’s individual grounds of appeal advanced with respect to the application for leave to appeal against sentence. I propose, however, to deal with each briefly, insofar as they may be relevant to resentence.

The Sentence Appeal

Ground 1

45. The applicant complains that her Honour should have had regard to the absence of violence in the commission of the offences when assessing their gravity.

46. That complaint is contrary to both common sense and principle.

47. As a matter of ordinary logic, the fact that an offence does not contain an element that would have made it more serious, such as the threat or infliction of violence, cannot make it less serious.

48. Here, a charge of carnal knowledge contrary to s 71 of the Crimes Act contains no element of force or violence. Nor does an offence of indecent assault of a female under 16 years of age contrary to s 76 of the same Act contain any element of force or violence, other than the touching necessary to establish the “assault” component of indecent assault. Had the applicant procured sexual intercourse with the victim by threat or terror, his offence would have been one of rape contrary to s 63 of the Crimes Act, an offence which carried at the relevant time a maximum penalty of penal servitude for life. Had the indecent assault offences been accompanied by violence, it is likely that the applicant would have faced further charges, such as assault contrary to s 61 of the Crimes Act, or assault occasioning actual bodily harm contrary to s 59 of that Act, thus exposing him to sentence for further crimes, which, in the examples cited, carried respectively maximum penalties of 2 and 5 years imprisonment.

49. That no violence or threat of violence was alleged against the applicant is why he does not stand charged with more serious offences; it cannot operate to make the charged offences less serious.

50. This Court has expressed that principle on numerous occasions. Most recently, in R v CTG [2017] NSWCCA 163, this Court allowed a Crown appeal where the sentencing judge had erroneously concluded that sexual assault offences were less serious because of the absence of violence. At [60] - [63] Hoeben CJ at CL (with whom R A Hulme J and I agreed) said,

“It was not appropriate for his Honour to take into account the absence of actual bodily harm and the absence of force and coercion as matters in mitigation of the offending so as to impact directly upon an assessment of objective seriousness.

If there were any doubt on that issue, it was clarified in such decisions as Bravo v R [2015] NSWCCA 302 and Mills v R [2017] NSWCCA 87.

In Bravo v R, R A Hulme J (Beazley P and Johnson J agreeing) said:

‘45 … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:

“[3]    It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse”.’

In Mills v R, R A Hulme J (Leeming JA and Beech-Jones agreeing), in addition to referring again to Grove J’s statement in Saddler, said:

‘57 Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done by an offender less serious because it could have been worse’.”

51. Further, the victim in this matter had been groomed for sexual activity from a young age. Part of her vulnerability to the sort of exploitation visited upon her by the applicant was her age, and her utter dependence upon the applicant, both of which made it impossible for her to act for her own protection.

52. The applicant did not need to use violence or the threat of it to obtain the complainant’s compliance; her age and isolation from other adults who might protect her, and the nature of the relationship with the applicant, left her with no option other than compliance. The applicant can hardly rely upon that feature of his crimes to argue for a lesser sentence.

53. This aspect of the applicant’s complaint has no merit.

54. The applicant next contends that the reference by the sentencing judge to the fact that “complete penetrative sex” had occurred when referring to the s 71 offences was an error, since penetration was an element of the offence. In this regard what her Honour said was,

“The carnal knowledge offences occurred over a period of nearly four years. The assault with act of indecency offences occurred over a period of some two years. In respect of the carnal knowledge offences there was, as the Crown submits, completed penetrative sex and whilst the home of the offender was involved, wrapped up with the position of authority and position of trust, it was also the home of the victim. That enhanced or augmented her sense of vulnerability as revealed by the victim impact statement.”

55. I do not understand her Honour in this passage to state that the gravity of the s 71 offences was heightened by the fact that “completed penetrative sex” occurred, as the applicant asserts. Rather, she appears to be, firstly, distinguishing the carnal knowledge offences from the indecent assaults and, secondly, to be referring to the consequences for the victim of being subjected to sexual intercourse as a vulnerable child in her own home.

56. This complaint has no substance.

57. The applicant next complains that the sentencing judge wrongly had regard to the victim impact statement to conclude that the victim was especially vulnerable, and the offences were “aggravated”.

58. The victim impact statement was received by the court without objection from the applicant, and the sentencing judge considered it. There is no error in that approach.

59. The statutory scheme for the receipt of a victim impact statement is found in Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act. Although the Act gives no specific guidance as to the use to be made of such statements, beyond receipt and consideration, a sentencing court is entitled to have regard to the information contained therein. The statement considered by her Honour was certainly a powerful one, which spoke movingly of the great and lingering harm done to the victim by the applicant’s crimes. However, in the circumstances of this case, and as her Honour observed in the course of her judgment, the damage done was of a kind that might have been expected, and which was readily established by the facts before the court.

60. Those facts, which were undisputed by the applicant, were a sufficient basis for her Honour to conclude that the victim was particularly vulnerable, and that the exploitation of her vulnerability by the applicant elevated the seriousness of the offences, and was a feature to be given weight when assessing the gravity of the crimes. The victim was an indigenous child, aged 6 when she came to live with the applicant. She had been isolated from her own family and from her culture, and placed with strangers upon whom she was utterly dependent. Against that background, the victim was abused by the applicant, in the home in which she should have been safe, by the man who should have protected her.

61. This is a case such as that referred to by Basten JA in R v Thomas [2007] NSWCCA 269, wherein it was said (at [37]),

“[…] it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim.”

62. This proposed ground is without merit.

Ground 3

63. By this ground, the applicant complains that his pleas of guilty were not properly taken into account. Although I have found the applicant’s argument in this regard difficult to follow, it appears to be a complaint that her Honour was in error in not specifically stating the sentence that would have been imposed prior to the application of the 25% reduction to reflect the pleas of guilty. The applicant’s argument is:

“There was no indicative sentence stated by way of an overall head sentence. In these circumstances, it is unclear as to whether the utilitarian discount was taken into account. The matter is inherently susceptible of ambiguity in circumstances where the head sentence applied was in fact severe. The failure to provide an indicative sentence constitutes an important omission because it compounds the difficulties in assessing the learned sentencing judge’s reasons as to the outcome ultimately imposed on sentence.”

64. There is no obligation on a sentencing judge to set out the details of the sentence that would have been imposed had a reduction not been made. The obligation imposed by s 22 of the Crimes (Sentencing Procedure) Act is to take into account the guilty plea, and the timing and circumstances of its indication or entry. The sentencing judge must state that the guilty pleas have been taken into account, and quantification of the extent of any reduction thereby allowed is encouraged:  R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [160], with whom Wood CJ at CL, Foster AJA, Grove and James JJ agreed).

65. The sentencing judge clearly had regard to the applicant’s pleas of guilty, and recognised their utilitarian value appropriately. She said,

“The offender entered pleas of guilty to all five offences in the Local Court, so attracting the maximum discount available for his pleas of guilty, namely a discount of 25%.”

66. No error has been established.

Ground 4

67. The ground as set out in the submissions in reply refers to a failure to give any weight to rehabilitation. In the body of the submissions in reply, the applicant advances “particulars of ground 4”, being a failure “to take into account a highly material matter being the issue of delay”. It is difficult to see how delay is a particular of a ground pleading failure to consider rehabilitation.

68. In any event, the sentencing judge clearly had regard to both issues.

69. Whilst her Honour did not allow former good character to mitigate sentence, she concluded that,

“It is relevant, however to a consideration of prospects of rehabilitation and a consideration of special circumstances to which I will refer later.”

70. She also referred to the assessments of the risk of recidivism made of the applicant by the author of the PSR and Dr Nielssen, both of whom had relied in part upon the fact that the applicant had not reoffended in the decades following the offences, to conclude that he posed a low risk. Her Honour said,

“It seems that the greatest demonstration of the risk of reoffending being properly characterised as low, is the fact that there has been no further offending since these offences were committed. That in turn feeds into an assessment that there are optimistic prospects of rehabilitation.”

71. That the sentencing judge also referred to the applicant’s lack of insight does not detract from her conclusions as to the demonstrated rehabilitation, and promising future prospects. It was open to her Honour to conclude that the applicant lacked insight into his offending conduct having regard to what he had said to Dr Nielssen about his “relationship” with the victim, and the assessment by the author of the PSR that he lacked empathy.

72. Nevertheless, and contrary to what is argued by the applicant, the sentencing judge did have regard to some level of contrition. The applicant’s unsworn and untested claims to Dr Nielssen that he had felt the weight of his earlier conduct hanging over him in the intervening decades were accepted by her Honour, as a mitigatory matter. That conclusion was particularly favourable to the applicant, since her Honour was not obliged to accept statements of that nature to a third party: R vQutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58] – [59]; Imbornone v R [2017] NSWCCA 144 at [57].

73. The applicant’s assertion that the sentencing judge gave no weight to rehabilitation cannot be accepted in circumstances where she specifically adverted to that issue, set out matters relevant to it, and made a finding favourable to the applicant.

74. With respect to delay, the sentencing judge was clearly conscious of the issues that may arise in matters where there is a lengthy delay between the commission of a crime and the imposition of sentence. She referred to:

1. The fact of the applicant’s advanced age, he being some forty or so years older at the time of sentence than he was at the time of the commission of the offences;

2. The (largely age-related) health problems experienced by the applicant;

3. The applicant’s experience over the years between offence and prosecution of having the offences “hanging over [his] head”;

4. The fact that the applicant had not committed any crimes during the intervening period and that his future prospects were optimistic;

5. The principles applicable to sentencing an offender in circumstances where the sentencing regime contemporaneous to the commission of the offences were more lenient than that which applied at the time of sentence; and

6. The executive policy that applied in the nineteen-seventies with respect to remissions on sentence, which her Honour had regard to when making a finding of special circumstances.

75. The “particular” of error contended for, that her Honour did not take the issue of delay into account, is not made out.

Ground 5

76. By this ground the applicant contends that the sentencing judge did not take the principle of totality into account. He refers particularly to the sentences imposed with respect to counts 1 and 5 as illustrative of that complaint, submitting that the sentence for count 1 was disproportionate to the offending conduct, and the sentence imposed for count 5 was “severe” in terms of the level of accumulation.

77. The complaint about the sentence imposed for count 1 could perhaps be more appropriately made in support of ground 6. As to the issue of accumulation and the application of the principle of totality, the sentencing judge was clearly acutely aware of the need to structure the sentences imposed so as to ensure that the overall sentence was just and appropriate to the totality of the offending behaviour. She said,

“In crafting the periods of sentences, I have allowed for a degree of concurrency not only to ensure that the overall sentence reflects appropriately the total criminality, but also to recognise that the offences occurred within a continuing pattern of conduct from the offender towards the victim. There is a degree of accumulation to individually recognise the discrete offences. The structure of the sentences is to have the first four occurring sentences imposed by way of fixed terms, pursuant to section 45(1) of the Crimes (Sentencing Procedure) Act 1999. The fixed terms will represent the period of a non-parole period if a non-parole period had been set. The decision to impose fixed terms recognises the overall sentence structure of accumulated sentences where the earliest release date only arises in the last occurring sentence (R v Dunn [2004] NSWCCA 346 at [161]). The periods of the fixed terms have been informed by all of the matters considered above and reflect the minimum time the offender is required to be in full-time custody for the offences. The finding of special circumstances is applied to the last occurring sentence, which will have a non-parole period fixed, in order to reflect special circumstances in the overall sentence.”

78. Having considered that passage of her Honour’s judgment, and having regard to the structure of the sentences she went on to impose, I am not persuaded that she failed to have regard to totality.

79. However, as a consequence of the necessity to quash the conviction and sentence with respect to count 5, there is a consequential error with the sentences imposed and their structure, such that the sentences that remain do not properly reflect the total offending. To that extent this ground is made out and this Court must resentence the applicant.

Ground 6

80. There is no utility in considering this ground, since the sentence imposed with respect to count 5 must be quashed, affecting the whole of the sentence imposed by the sentencing judge, and having regard to the conclusion reached with respect to ground 5.

Re-sentence

81. The applicant did not seek to supplement the evidence placed before the sentencing court, in the event that this Court proceeded to re-sentence. Sentence falls to be determined by reference to the evidence available at first instance.

82. There was no statistical or other relevant material placed before the sentencing judge from which the pattern of sentencing applicable in the nineteen-seventies for offences contrary to ss 71 and 76 of the Crimes Act might have been discerned, in accordance with R v MJR. Her Honour was prepared to conclude that sentences for offences such as these were in a general sense more lenient than those imposed for comparable offences in recent times.

83. Where an historical sentencing pattern cannot be determined, the starting point of the sentencing process is to have regard to the maximum penalties specified for each offence (10 and 6 years imprisonment respectively), and to the place in the range of objective gravity the offences occupy: Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] – [71] per Howie J, with whom Fitzgerald JA agreed.

84. Assistance can also be derived from the authorities that deal with like offences, such as the recent decisions of this Court in Wright v R [2016] NSWCCA 122 and PM v R [2017] NSWCCA 108. The helpful discussion by Button J (with whom McClellan CJ at CL and Bellew J agreed) in Magnuson v R [2013] NSWCCA 50 sets out all of the relevant considerations for a court in imposing sentence for offences in the distant past, and I have had regard to the matters there considered. I note the requirement that the NPP imposed should represent the minimum period of imprisonment required to be served having regard to all of the purposes of justice: CT v R [2017] NSWCCA 15 at [52].

85. These were gravely serious offences for the reasons identified by the sentencing judge. They represented a course of conduct over a period of years during which the victim was groomed and then exploited by the applicant for sex. Even count 1, specifically pointed to by the applicant as a relatively minor offence, must be assessed as serious when placed in its proper context, it being the first significant step in conditioning the victim to accept the applicant’s sexual advances.

81. During the material period the victim was aged 12 or 13 years of age, falling within the middle of the age range for the s 71 offences, and the upper middle of the range for the s 76 offences. She was too young to have any meaningful capacity to protect herself from the applicant’s predations. The breach of trust involved in the commission of these offences is profound: the applicant had been entrusted with the victim’s care and he took the role of father to her, in circumstances where she was isolated from her own family and community. His abuse of that trust was egregious. As would be expected in circumstances such as that, and as is sadly typical of crimes of this nature, the harm done was considerable.

82. No sentence other than one of imprisonment is appropriate.

83. Whilst there is a basis to be sceptical about the applicant’s untested claims to having suffered due to the uncertainty over the decades since the commission of the offences, I am prepared to accept that he did feel the weight of his crimes, without necessarily fearing the "knock on the door" referred to in R v Holyoak (1995) 82 A Crim R 502. I also accept that, in his apologies to the victim offered when the offences first came to light, and again in 2008 and 2014, the applicant has demonstrated some remorse for his crimes, albeit that his insight into his sole responsibility for them may be incomplete.

84. The delay in bringing the prosecution has permitted the applicant to demonstrate a considerable degree of rehabilitation in the absence of any further offending and there is no reason to conclude that the applicant will offend again in the future. Considerations of specific deterrence are of little weight; considerations of general deterrence continue to be very important.

85. The applicant’s age and ill health are relevant features to be taken into account. Both are likely to make the applicant’s time in prison more onerous than it would be for a younger, fitter prisoner. However, whilst age must be considered as a relevant feature to the determination of sentence, this cannot give rise to an expectation or perception that the elderly can offend with relative impunity: R v McLean [2001] NSWCCA 58; (2001) 121 A Crim 484 at 492 [44].

86. Whilst the principle of totality requires a level of concurrency in the sentences imposed, there must be some accumulation, to reflect the escalating nature of the crimes, and the criminality of the individual offences.

87. A finding of special circumstances is appropriate, having regard to the applicant’s likely difficulties in custody due to age and ill health. It also serves to reflect the much lesser minimum terms historically imposed for matters such as this, and the operation of a remissions scheme at the relevant time. As to the former, it was usual for the NPP to constitute between one third and one half of the total term: Magnuson at [69]. I do not intend to echo that ratio in the sentence to be imposed upon the applicant, having regard to the need for the NPP fixed by this Court to represent the minimum period of imprisonment required to be served by an offender, having regard to all of the purposes of justice.

88. The sentences that would otherwise have been imposed will be reduced by 25% to reflect the utilitarian benefit of the early pleas of guilty.

89. I would impose an aggregate sentence upon the applicant pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 6 years and 7 months imprisonment, to date from 19 November 2015 and expiring on 18 June 2022. The non-parole period is one of 3 years and 7 months, expiring on 18 June 2019.

90. The indicative sentences for the particular offences are as follows:

1. Count 1: 6 months imprisonment

2. Count 2: 12 months imprisonment

3. Count 3: 3 years imprisonment

4. Count 4: 3 years imprisonment

96. I should make it clear that the proposed sentence is much lower than the sentence that I would impose for offending of this nature which occurred in recent times.

97. The orders I propose are:

1. Leave to appeal against conviction with respect to count 5 granted.

2. Conviction and sentence with respect to count 5 quashed.

3. Leave to appeal against sentence with respect to counts 1 – 4 granted.

4. Sentences imposed on 19 November 2015 set aside. In lieu, the applicant is sentenced to an aggregate term of imprisonment of 6 years and 7 months imprisonment, to date from 19 November 2015 and expiring on 18 June 2022. The non-parole period is one of 3 years and 7 months, expiring on 18 June 2019.

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Decision last updated: 17 October 2017