Hornhardt v R

[2017] NSWCCA 186

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hornhardt v R [2017] NSWCCA 186
Hearing dates:	19 July 2017
Date of orders:	02 August 2017
Decision date:	02 August 2017
Before:	Hoeben CJ at CL at [1]; Price J at [66]; Adamson J at [67]
Decision:	(1)   The time for filing an application for leave to appeal against sentence is extended to 31 May 2017. (2)   Leave to appeal against sentence is granted. (3)   The appeal against sentence is dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – seven offences of assault female and commit an act of indecency on a female under 16 – plea of guilty – three victims who were offender’s natural daughters – sentenced to imprisonment for 4 years with non-parole period of 2 years – whether sufficient weight given to offender’s age, ill-health and remorse – whether sufficient weight given to delay in prosecution – whether sentencing judge misstated facts of one of the offences – breach of Di Simoni principle – need to resentence – no lesser sentence warranted – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 76 Criminal Appeal Act 1912 (NSW) – s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 53A
Cases Cited:	Golossian v R [2013] NSWCCA 311 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lehn v R [2016] NSWCCA 255 Magnuson v R [2013] NSWCCA 50 Ngati v R [2013] NSWCCA 203 RLS v R [2012] NSWCCA 236 Wilson v R [2017] NSWCCA 41 Zhao v R [2016] NSWCCA 179
Category:	Principal judgment
Parties:	Kevin Alfred Hornhardt – Applicant Regina – Respondent Crown
Representation:	Counsel: P Segal – Applicant T Smith – Respondent Crown   Solicitors: K Rodgers – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/319685
Publication restriction:	There is a non-publication order in place prohibiting the publication of the identity of each of the complainants, or any material that may tend to identify them. The sentencing judge noted that the order necessarily extended to the identity of the applicant since he is the father of each of the complainants.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 27 May 2016 Before: Hoy SC DCJ File Number(s): 2014/319685

Judgment

1. HOEBEN CJ at CL:

Non-publication order:

There is a non-publication order in place prohibiting the publication of the identity of each of the complainants, or any material that may tend to identify them. The sentencing judge noted that the order necessarily extended to the identity of the applicant since he is the father of each of the complainants.

Offences and sentence

2. The applicant pleaded guilty at Burwood Local Court on 4 November 2015 to six offences of assault female and commit act of indecency with a female under 16 years of age (contrary to s 76 Crimes Act 1900 (NSW) (repealed) and a seventh offence of commit act of indecency on a female under 16 years of age (contrary to s 76A Crimes Act (repealed)).

3. The offences were committed by the applicant upon his three daughters, SP, LS and TS, when they were all young children. Counts 1 – 3 pertain to the applicant's eldest daughter, SP, from his first marriage. These offences occurred between 1965 and 1970 when SP was aged 8, 11 and 12 years respectively. It was agreed that these offences were not isolated. At that time the maximum sentence for an offence contrary to s 76 was imprisonment for 5 years.

4. Counts 4 and 5 pertain to SP's younger sister, LS. These offences occurred between 1967 and 1969 when LS was aged 6 and 9 years respectively. It was agreed that these offences were not isolated. The maximum sentence for offences contrary to s 76 at that time was imprisonment for 5 years.

5. Counts 6 and 7 pertain to TS, the applicant's daughter from his second marriage. The two offences arose from the same incident which occurred between 1977 and 1978 when TS was aged 5. The maximum penalty for an offence contrary to s 76 at that time was imprisonment for 6 years and for an offence contrary to s 76A was imprisonment for 2 years.

6. All matters were reported to police between July and August 2014 and the applicant was arrested on 27 October 2014.

7. On 27 May 2016 the sentencing judge imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years imprisonment commencing 27 May 2016 and expiring 26 May 2020, with a non-parole period of 2 years expiring 26 May 2018.

8. The indicative sentences were:

Count 1 – 12 months imprisonment.

Count 2 – 15 months imprisonment.

Count 3 – 18 months imprisonment.

Count 4 – 12 months imprisonment.

Count 5 – 18 months imprisonment.

Count 6 – 12 months imprisonment.

Count 7 – 6 months imprisonment.

Application for Extension of Time

9. A Notice of Intention to Apply for Leave to Appeal was filed on 31 May 2016 and expired on 30 November 2016. No Notice of Appeal was filed and no extension of time sought during that period. The Notice of Appeal was not filed until 31 May 2017. On that day, an application for an extension of time for the appeal, together with an affidavit from the applicant’s solicitor, was filed.

10. The explanation for delay in that affidavit was that the applicant had personally filed a Notice of Intention to Appeal on 31 May 2016 and that the solicitor had not received instructions until 28 September 2016. The solicitor explained that he had to obtain a Merit Advice before Legal Aid would fund an appeal, and that before he could do this, he had to obtain the relevant transcripts and remarks on sentence.

11. Counsel was briefed to provide the advice on 10 May 2016 and did so on 3 January 2017. On 4 May 2017 Legal Aid was granted for an appeal against sentence only. No further information explaining delay has been provided by the applicant.

12. Although the Court has a discretion to extend time within which the Notice of Appeal can be filed (s 10(1)(b) Criminal Appeal Act 1912 (NSW)), the Court has consistently emphasised the importance to pay proper regard to the time limits imposed by the Criminal Appeal Act (RLS v R [2012] NSWCCA 236 at [21]; Golossian v R [2013] NSWCCA 311 at [22]-[24]).

13. As to whether an applicant should receive an extension of time is determined by a consideration of the interests of justice. The prospects of success of the appeal is one of the relevant considerations (Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Lehn v R [2016] NSWCCA 255). In this case, for the reasons set out, I would grant an extension of time for the filing of the application for leave to appeal against sentence.

Factual background

14. In 1966 the applicant and four of his children, including SP and LS, moved into a home at Five Dock. SP was then aged 8. In the mornings SP would often get into bed with the applicant, particularly on weekends when he did not have to go to work early. Her mother, AP, would prepare breakfast, leaving SP alone with the applicant.

15. On one occasion the applicant placed his hand under SP's pyjamas and put his fingers into her vaginal area. This caused it to sting. While doing so, the applicant said "Daddy is just checking," and further, "Daddy's not going to hurt you." There was no evidence of penetration. Those are the facts which make up Count 1.

16. The next incident in time was Count 4. This involved LS who was then aged 6. The applicant would regularly shower her when her mother was not at home. On one occasion he sat LS on his lap. She only had a towel wrapped around her shoulders. She could then feel his erect penis as it touched her bottom. While she was on his lap he groped and rubbed her vagina. He moaned and said "We have to make sure that you are clean." He also told her not to tell Mummy otherwise she would get into trouble. These were the facts which made up Count 4.

17. This was not an isolated incident and there were similar instances until LS moved to South Australia to live with her grandmother. That occurred between 1968 and 1969.

18. The next offence occurred after the family had moved to a home in Concord at some time in 1967. In 1968 the applicant and his wife, AP, separated. AP moved to South Australia accompanied by SP and LS.

19. In 1969 SP and LS returned to Sydney to stay with the applicant in Concord. On one occasion when SP was 11, the applicant sent LS to the shops. He then called SP into his room. He asked her to lie down on his bed. He then lay on top of her and said "Daddy is not going to hurt you." He then touched her on the vagina. She felt pain, describing it as "tight and uncomfortable." She also described the applicant’s actions as being "forceful". He then stopped touching her and said "See, it is okay, Daddy didn't hurt you." He told her not to say anything to anyone and warned her that no-one would believe her. These were the facts which made up Count 2.

20. This was not an isolated incident. SP remained concerned that whenever LS was sent to the shops she was going to be assaulted. She used to beg her sister to not leave, but never revealed why.

21. In November 1969 LS, who was then aged 9, was living with the applicant at Concord. On one occasion she was in her bedroom, getting changed for school. The applicant directed her to lie on the bed. He was wearing long pants and a shirt. She was wearing her school dress and underwear. He lay on top of her and commenced rubbing himself against her. She felt his penis become erect. She was crying and said "Please Dad get off." This was to no avail. The applicant continued to rub himself against her until he ejaculated. She then saw and felt wet liquid on her skin and clothing. The applicant got off her and told her to finish getting dressed. These were the facts which made up Count 5.

22. Some time between October 1969 and October 1970 the applicant started committing offences upon SP in a shed at the rear of the Concord house. On one occasion when she was 12, he called her into the shed via an internal phone system. She went to meet him there. He was wearing a white towel, slippers and nothing else. She started crying and sobbing in fear and made an excuse that she had to go out with friends. The applicant ignored her. He hugged her to him. He then dropped his towel. She saw his erect penis and he said "It's all right, just hold it." He then guided her hands onto his penis, telling her it was going to be okay. He suggested that she hold onto it for a while and said that it would be over soon. He then forced her to masturbate him until he ejaculated upon her hand and arm. He then picked up his towel, put it around himself and told her to have a shower. He also said “Don't tell” and promised her a present. Those are the facts which made up Count 3.

23. That too was not an isolated incident. SP estimated that it occurred on another three occasions.

24. Counts 6 and 7 were committed upon TS, a daughter from his relationship with his second wife, EH. These offences occurred between May 1977 and May 1978 when TS was aged 5. During those dates, the applicant, TS and EH were living at Concord. At that age it was not uncommon for TS to sleep with and in her parent's bed. She ordinarily slept in the middle.

25. On one morning the applicant was alone with her in bed. He was naked and she wearing a nightie and underpants. This of itself was not alarming because she had seen him naked before and the family had showered together in the past. On this occasion, she awoke to the applicant rubbing his erect penis against her thigh. She said “What are you doing, Daddy?” and he said "Don't be silly, it's my knee, go back to sleep."

26. TS drifted off to sleep, but was again awoken by him rubbing his erect penis against her thighs. Again he said it was his knee. She could feel his penis rubbing against her vagina. He then told her to go and wash her hands. This was the way his Honour described the offending in Counts 6 and 7.

27. Later that day TS spoke to her mother about what had happened, asking her “Why would Dad be rubbing his willy on me?” EH was shocked and dismissed it saying "Don't be silly." SP had previously complained to EH about the applicant being “abusive”. Her allegations were also dismissed. When she was 15, SP told the applicant’s older sister that he had touched her but did not go into any details. Both she and LS had numerous conversations in relation to “the abuse” once LS left home at the age of 16. Due to a lack of family support at the time of the offences, the matters remained unreported to police until 27 October 2014.

28. The applicant’s arrest was the result of allegations made in May 2014. The applicant, who had become a member of the Christadelphian Church, was spoken to by senior members of that Church together with members of his family. There was a meeting on 25 May 2014 attended by a member of the Church together with TS, the applicant and EH.

29. TS announced that she had been abused and had made a report to police. The attending member of the Church indicated that he needed to escalate the matter within the Church. All agreed with that course and subsequently on 29 May 2014, senior members of the Church attended upon the applicant to discuss the allegations. He admitted to them that he had molested two children from the first marriage and that he had molested TS. He said that he had not committed any further molestation since being baptised into the Church in 1980. He had apologised to the first two complainants. These admissions were recorded by the senior Church members and those notes were given to police.

30. When the applicant was arrested in October 2014, he was cautioned and participated in a recorded of interview. He refused the assistance of a solicitor and in that interview made comprehensive admissions and statements which generally corroborated the versions given to police by each of the victims.

31. He admitted to rubbing his penis against all three on separate occasions and confirmed that this had aroused him.

32. In the sentence proceedings, the parties agreed that the offences nominated with respect to SP and LS were not isolated and were representative of extensive ongoing sexual misconduct of a similar nature, committed by the applicant upon each of the victims over an extended period of time. As to TS, there was only one occasion relied upon.

Proceedings on sentence

33. When considering the objective seriousness of the offending, his Honour said:

“The offender was their father. His offending involved gross breaches of trust. His behaviour on occasions was opportunistic, and on other occasions premeditated and/or well-planned. Manoeuvring the girls into his bedroom or shed, and other times interrupting their preparation for school. On other occasions sending one youngster away to the shop so he could commit offences upon her older sister. His conduct was surreptitious and deceptive to the mothers of these girls. He was in a position of dominance over his children. On occasions demanding his daughter to come to the shed where he then forced her to pleasure him. On occasions he reassured them of no harm and also warned them not to tell.

I acknowledge there was no penetration and whilst repetitive, the incidents were generally brief in time. There was no overt violence or force. There were however multiple offences committed upon multiple victims - sisters and their step-sister. Again I distinguish the latter counts, as that was one instance on one occasion some years later. All in all I consider the objective seriousness of the matters to fall at about the middle range.” (Sentence judgment, 10.9 - 11.5)

34. His Honour made a finding of only one statutory aggravating feature being s 21A(2)(k) of the Crimes (Sentencing Procedure) Act, i.e. that he had abused a position of trust or authority in relation to his victims.

35. In relation to matters of mitigation, his Honour found that the applicant had no record of previous convictions, he was a person of previous good character, he was unlikely to reoffend, had good prospects of rehabilitation and had shown genuine remorse. His Honour agreed that the applicant had pleaded guilty at an early point in time so that he was entitled to the full available discount of 25 per cent.

36. His Honour found “special circumstances” for the following reasons:

• Relevant sentencing practices at the time of the offences.

• This was the first time the applicant had faced any serious criminal offence and fulltime custody.

• He had achieved considerable rehabilitation.

• His ill health.

• He was likely to be in protective custody and that would be more onerous for him.

37. His Honour found that the following matters were relevant to the applicant’s subjective case. He was aged 85. Accordingly, the offences occurred between when he was 34 and 47 years of age. The applicant had a very unhappy childhood. He had difficulties with his father and subsequently his stepfather. He was beaten.

38. His Honour noted that the applicant had health issues. He suffered from emphysema and had prostate surgery in the past. He was suffering from depression at the time of the sentence judgment, although its genesis was not clear. His Honour noted that at the time of the judgment he was suffering from severe depression and was receiving treatment for it. The applicant suffered from gastro-oesophageal reflux, widespread osteoarthritis and chronic back pain. He needed a walking stick generally for mobility.

39. His Honour noted that no submission had been made that these conditions could not be accommodated in custody. However, his Honour took that material into account in the overall sentence to be imposed on him and when assessing the ratio between the parole and non-parole period.

40. His Honour took into account sentencing practices at the time and in particular, that non-parole periods in the order of 50 per cent of the total head sentence were often imposed. His Honour took into account that the custodial environment which the applicant faced, having regard to the type of offences he committed, would result in him being placed in protective custody which would be more onerous for him than for the general prison population.

41. His Honour took into account the principle of totality and determined that the sentences to be imposed for each offence would be partially accumulated. His Honour also noted that there were three separate victims and that the criminality as to each of them was entirely separate. His Honour found that although specific deterrence had no real part to play in the sentencing, there was still a role for general deterrence.

42. In relation to the sentence to be imposed, his Honour said:

“I readily accept the offender is obviously elderly and in the twilight of his life. I accept that imprisonment for any time now represents a substantial component of his remaining years. I accept his fragility and his ill health. I accept he has chronic respiratory conditions. I accept that serving a sentence of imprisonment will be difficult and onerous for him and devastating for those who live with him. Against these factors however are the features to which I have referred, both subjective and objective. Having regard to the objective seriousness of the offences, the numbers of victims and the span of time over which the bulk of the offences occurred as against two, even when I apply the lesser sentencing pattern, it is demanding of a full-time custodial sentence.” (Sentence judgment 21.1–.5)

THE APPEAL

Ground 1 – The sentencing judge did not give sufficient weight to the combined factors including advanced age, rehabilitation, remorse, confession and good character.

43. The applicant submitted that because of his age and health problems, there was a real possibility that he would die in gaol. If the applicant did survive his imprisonment, the ratio of the time in prison to his remaining life would be very great. The applicant stressed his plea of guilty, his remorse, his previous good character and the fact that he would be serving his sentence in more onerous conditions than members of the general prison population. The applicant submitted that all of these considerations required a lesser sentence.

Consideration

44. The difficulty for the applicant in relation to this ground is that it accepts that his Honour did consider all of the matters referred to but asserts that his Honour did not give those matters adequate weight. The question of weight is very much a matter of discretionary judgment for the sentencing judge. For the applicant to succeed under this ground, House v The King [1936] HCA 40; 55 CLR 499 error needs to be established.

45. In Zhao v R [2016] NSWCCA 179 N Adams J (with whom Hoeben CJ at CL and Button J agreed) said on that issue:

“59   This Court is a court of error. It is not sufficient, in order to establish a basis for the intervention of this Court, for an applicant to assert that a sentencing judge gave insufficient weight to one factor or another: Bullock v R [2016] NSWCCA 131 at [65]; Bland v R [2014] NSWCCA 82; 241 A Crim R 51 at 66 [112]-[113]; R v Kennedy [2016] NSWCCA 123. To impugn the exercise of the sentencing discretion, the applicant is required to demonstrate error of the type in House v The King. As Gleeson CJ, Gummow and Callinan JJ observed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:

‘Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy.’”

46. When each of the matters referred to in the ground of appeal is considered, it is clear that they were adequately taken into account by his Honour and that appropriate weight was given to them.

47. In relation to age, there was no evidence of the applicant’s life expectancy. The applicant’s advanced age and health was specifically taken into account by his Honour and referred to on a number of occasions in the judgment. His Honour referred to the applicant’s ill health as one of the reasons for a finding of special circumstances. Specifically, his Honour observed that despite the heinous nature of the offences, there was:

“… some room to extend to this offender some hope and solace, after serving his sentence, so as to continue with his life of good reform and rehabilitation.” (Sentence judgment 21.9–22.1)

48. Similarly, his Honour accepted that the applicant was genuinely remorseful. He referred to this fact on three occasions during the sentence judgment. Moreover, there is usually no separate discount given for an expression of remorse. Rather, it is one of a number of mitigating factors which can be taken into account in the general synthesis involved in the overall sentencing exercise (Ngati v R [2013] NSWCCA 203 at [45]).

49. The sentencing judge took into account the applicant’s good character, both as a mitigating factor on sentence and in favourably assessing his prospects of rehabilitation. His Honour also set out his reasons for finding overall that the applicant was genuinely rehabilitated.

50. In summary, the submissions advanced by the applicant in support of this ground amount in substance to no more than an attempt to argue that a more lenient sentence should have been imposed without identifying any error on the part of his Honour. This ground of appeal has not been made out.

The learned sentencing judge did not adequately take into account the delay in prosecution.

51. The applicant submitted that the offences against SP and LS occurred some 45 to 50 years before police were notified. Thereafter, there was no appreciable delay in the actions of the prosecuting or investigating authorities. The applicant submitted that the delay was occasioned by reason of the complainants not coming forward. Similarly, the offences against TS were 36 to 37 years old before a complaint was made and once again, the reason for that delay was the fact that TS did not come forward.

52. The applicant submitted that he was under no obligation to present himself to police to make a confession and ask that he be charged. He was fully entitled to exercise his right to silence. The nature of the judicial process was such that the authorities respond to a complaint and then investigate and if the evidence permits, prosecute. The applicant submitted that after a gap of between 36 and 50 years, he was entitled to believe that he would never be charged and to order his affairs accordingly. The applicant submitted that the delay was occasioned by the absence of a complaint to the authorities, not by any conduct on his part.

Consideration

53. This is a somewhat bold submission. It is notorious that offending of this kind by its very nature causes victims to be reluctant to come forward and make a complaint. This is particularly so where close family relationships are involved, such as we have here. It is a significant distortion of the reality of the situation to argue that in some way the applicant has been disadvantaged because his criminality has remained undetected for almost 50 years when that lack of detection is directly related to the nature of the offending.

54. On this issue, the observations of Beech-Jones J (with whom Hoeben CJ at CL and Garling J agreed) in Wilson v R [2017] NSWCCA 41 at [48] in the context of sentencing for historical child sexual offences is apposite:

“48   … Finally with delay it is also said that a “sentence for a stale crime does call for a measure of understanding and flexibility of approach” (Blanco at [16]). I do not accept that the commission of an offence on someone so young even 30 years ago should necessarily be considered a “stale crime”.”

55. To similar effect were the observations of Button J (McClellan CJ at CL and Bellew J agreeing) in Magnuson v R [2013] NSWCCA 50 at [62] which was also in the context of historical child sexual assaults:

“62   But it is useful to say at this stage that, whilst it is true that the applicant had not offended again since the last of the offences, it is also true that, having sexually assaulted his three victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time. …”

56. No error has been demonstrated in his Honour’s approach and this ground of appeal should be dismissed.

Count 7 – Crown submission

57. In a supplementary submission, the Crown brought to the Court’s attention that although Count 7 charged the commission of an act of indecency on a female under 16 years (contrary to s 76A of the Crimes Act), the relevant conduct described by his Honour may have been the rubbing of the applicant’s penis against the complainant. That latter conduct, as the Crown pointed out, established the more serious offence of indecent assault of a female under 16 years, contrary to s 76. The Crown pointed out that in the course of the sentencing hearing, the Crown had amended Count 7 to delete the words in it which would have constituted the more serious offence, i.e. the words “to wit, laying in bed naked with erect penis”. Count 7 then read:

” …did commit an act of indecency with TS, a girl then under the age of 16 years, to wit, of the age of 5 years.”

Unfortunately, the Crown did not again bring that alteration to the attention of his Honour.

58. The Crown further pointed out that in defence written submissions, the original error was replicated so that the conduct described in Count 7 was:

“This offence involved the offender, effectively during the same incident to which Count 6 relates, rubbing his erect penis on the vagina of his daughter. [TS] was wearing underwear.”

59. The Crown’s concern was that given the Agreed Facts, the defence summary of the relevant acts and the fact that there were two charges preferred in respect of the incident involving TS, his Honour may have proceeded on the basis that there was one charge for when TS initially woke up when the applicant was rubbing his penis against her thigh, and then a further charge for when she woke up again after falling back to sleep, to the applicant rubbing her thigh and then her vagina with his penis. If that were the case, both instances would involve the more serious charge contrary to s 76, i.e. indecent assault and an act of indecency.

60. If that had occurred, when setting out the indicative sentence for Count 7, his Honour may well have had in mind the conduct which amounted to the more serious offence contrary to s 76.

61. In my opinion, the concern of the Crown is well founded. Nowhere in his judgment did his Honour make it clear that he appreciated that the conduct which gave rise to Count 7 involved only an act of indecency. On the contrary, to the extent that his Honour referred to Count 7, he described the more serious offence. This may well be reflected in the indicative sentence which was 6 months after a 25 per cent deduction for the early plea, i.e. a starting point of 8 months. In my opinion, the Crown has identified error in the sentencing process, albeit of a relatively minor kind. Nevertheless, it is an error of substance which will require this Court to resentence the applicant.

62. When this was brought to the attention of the parties during the course of the hearing of the appeal, counsel for the applicant sought leave to amend his grounds of appeal to add an additional ground as follows:

Ground 3: His Honour erred in regard to the conduct which he took into account as the basis for Count 7.

This was not opposed by the Crown and leave to make the amendment was granted by the Court.

Resentence

63. The objective gravity of the offending was high, involving as it did substantial criminality and moral culpability. There were three victims and the offences were representative counts in the sense that it could not be said that these were isolated events. In those circumstances, despite the applicant’s age and health issues, nothing less than a custodial sentence could be imposed. This Court has said on a number of occasions that in the case of historical sex offences, age of itself, should not be regarded as a mitigating factor.

64. The grounds of appeal relied upon by the applicant have not been made out and no other factual findings by his Honour have been successfully challenged. It follows that in my independent exercise of the sentencing discretion, I have concluded that no lesser sentence than that imposed by his Honour is warranted. The only change I would make to the sentence set by his Honour is that I would specify as the indicative sentence for Count 7 a sentence of 3 months.

65. It follows from the above that the orders which I propose are:

1. The time for filing an application for leave to appeal against sentence is extended to 31 May 2017.

2. Leave to appeal against sentence is granted.

3. The appeal against sentence is dismissed.

66. PRICE J: I agree with Hoeben CJ at CL.

67. ADAMSON J: I agree with Hoeben CJ at CL.

**********

Decision last updated: 02 August 2017