R v MM (No 2)

[2018] NSWDC 528

District Court

New South Wales

Medium Neutral Citation:	R v MM (No 2) [2018] NSWDC 528
Hearing dates:	29 January to 19 February 2018; 15 June 2018
Date of orders:	27 August 2018
Decision date:	27 August 2018
Jurisdiction:	Criminal
Before:	Sutherland DCJ SC
Decision:	Aggregate sentence of 32 years with a non-parole period of 24 years. The sentence will commence on 19 June 2015. The non-parole period will expire on 18 June 2039; the balance of term of 8 years will expire on 18 June 2047.
Catchwords:	CRIMINAL LAW – Trial – Judge alone – Child sexual offences – Persistent sexual abuse of a child - Six complainants and multiple charges – 77 counts – Grandfather – Step-grandfather – Child abuse material — Production/Dissemination/Possession – Procuring or grooming child for unlawful sexual activity – Supply drugs to groom child – Ongoing abuse – Blackmail victims – Indecent assault “with” or “towards”
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Amendment Act 2007 Drugs (Misuse and Trafficking) Act 1985
Cases Cited:	BR v R [2015] NSWCCA 255 Bravo v R [2015] NSWCCA 302 BT v The Queen [2010] NSWCCA 267 FD v R [2013] NSWCCA 139 Franklin v R [2016] NSWCCA 319 GAT v R [2007] NSWCCA 208 GSH v R; R v GSH [2009] NSWCCA 214 Hitchen v R [2010] NSWCCA 77 JL v R [2014] NSWCCA 130 Josefski v The Queen [2010] NSWCCA 41 Mills v R [2017] NSWCCA 87 MRW v R [2011] NSWCCA 260 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; 212 A Crim R 254 Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656 Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 PH v The Queen [2009] NSWCCA 161 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v BJW [2000] NSWCCA 60 R v Fisher (1989) 40 A Crim R 442 R v Hutchinson [2018] NSWCCA 152 R v KW [2018] NSWDC 209 R v Mclean [2001] NSWCCA 58; (2001) 121 A Crim R 484 R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v MM [2018] NSWDC 181 R v PGM [2008] NSWCCA 172 R v Rapley [1999] NSWCCA 302 R v Sea Court of Criminal Appeal, 13 August 1990, unreported R v Slater [2003] NSWCCA 178 R v Tuala [2015] NSWCCA 8 R v Youkhana [2004] NSWCCA 412 Regina v Gebrail Court of Criminal Appeal, 18 November 1994, unreported The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 ZA v R [2017] NSWCCA 132
Category:	Sentence
Parties:	Regina (Crown) MM (Offender)
Representation:	Counsel: L McSpedden (Offender) M Fox (Crown)   Solicitors: Douglas & Ford Criminal Law
File Number(s):	2015/00181812; 2015/00220576; 2015/00220588; 2015/00220612; 2015/00220622; 2015/00223091
Publication restriction:	Non-publication order re offender’s name, the identity of each of the victims or any matter which is likely to lead to the identification of such victims, and the identity of various family members and relatives of the victims. Relevant aspects and identities in the judgment which follows have been redacted or substituted with initials.

Judgment

1. At the outset of these remarks I remind all who are present, and in particular the press, that the identity of each of the victims or any matter that is likely to lead to the identification of such victim is prohibited from publication by virtue of the provisions of s 578A of the Crimes Act 1900. Those restrictions extend to the identification of the offender or his wife and to the various family members and relatives of the victims.

2. The offender appears for sentence following verdicts of guilty with respect to 73 counts in an indictment. The indictment, as presented originally, contained 77 counts. The offender pleaded not guilty to all counts. Following a judge-alone trial heard in Wollongong between 29 January 2018 and 19 February 2018 verdicts of guilty were returned by me in Sydney on 8 and 9 March 2018. My remarks on sentence today should be read in conjunction with my judgment and reasons which were delivered at that time: R v MM [2018] NSWDC 181.

3. Following the verdicts of guilty, sentence proceedings were heard on 15 June 2018. Various victim impact statements were read aloud, whilst others were tendered as part of the Crown tender bundle. The Crown also tendered a number of expert reports.

4. A psychiatric report was tendered on behalf of the offender as well as a medical report with respect to the mental state of his wife. Although he had given evidence in the course of the trial itself, the offender did not give evidence on the sentence hearing.

5. Although the trial itself was held in Wollongong and the sentence hearing was held in Sydney the peripatetic nature of the locations where judicial arrangements have taken me has resulted in the passing of sentence and the delivery of remarks on sentence from the District Court at Penrith where I am currently sitting. Arrangements were put in place for the utilisation of a courtroom at Wollongong District Court by members of the families of the victims who are predominantly resident outside the Sydney Metropolitan area but I understand that most of them would appear to be in court and hence the audio/visual link has not been activated.

OVERVIEW OF THE OFFENDING CONDUCT

6. The offending conduct between the offender and various of his grandchildren took place over a period of some 11 or 12 years. The detail of the contextual and relationship evidence between the offender and his various victims, as well as a detailed analysis of the individual counts in the indictment, is to be found in my judgment of 8 and 9 March 2018. I do not propose, in these remarks, to undertake a full recapitulation in such detail. It will however be necessary to deal with the individual counts for the purpose of passing sentence. It is also appropriate, by way of general overview, to indicate the background to and the continuing nature of the commission of such a multiplicity of offences. References in my earlier judgment to complainants will now, with the same enumeration, be references to victims.

7. The offender was the patriarch of an extended family. He is now 71 years of age. Having been born in Germany in 1947, he arrived in Australia with his parents at the age of about 6 in 1953. He was married to his first wife at 19 years of age in 1966. He and his first wife had two children, a son, S1 and a daughter, D1.

8. The offender’s son, S1, had two daughters each of whom became victims to the sexual predation of their own grandfather. Those two granddaughters are referred to in my earlier judgments as Complainant 2 and Complainant 3. Victim 2 was born in 1994 and her sister, Victim 3, was born in 1997.

9. The offender’s other natural child, his daughter D1, ultimately had some 12 children. One of her daughters, Victim 5, also became a victim to the sexual advances of her own grandfather.

10. The first marriage of the offender ended in approximately 1982. In 1984 he married his second wife. At the time of this second marriage his second wife already had three daughters from her previous marriage. The three girls were approximately 16, 14 and 10 years of age and following the marriage of their mother to the offender the girls grew up as the step-daughters of the offender.

11. The second eldest step-daughter, SD2, had a daughter and son. Whilst strictly described as his step-grandchildren, Victim 1, a girl, and Victim 4, a boy, grew up to all extents and purposes as the grandchildren of the offender and were treated as such. Together with the other grandchildren they referred to the offender as “Opa”, that being the German affectionate name for “Grandpa”. Victim 1 was born in 1999 and her brother, Victim 4, was some 18 months younger, born in 2001. References in my remarks to the various children as the offender’s grandchildren should be understood to also refer to his step‑grandchildren.

12. The sexual misconduct of the offender extended over a period of some 11 to 12 years thereafter. It involved interaction with four of his granddaughters and also with a grandson. The earliest sexual activity described in evidence involved Victim 1 when she was four or five years of age. There were activities which might be perceived as grooming, many of which were opportunistic. They culminated in repeated acts of sexual intercourse involving penile penetration, fellatio and cunnilingus with her over a period of about six years from the ages of about 9 to 15. Many of these episodes would appear to have been filmed. I will say something about the sexual desensitisation which the offender inflicted upon Victim 1 in due course. However, his depraved conduct with and towards her extended to involving her younger brother in repeated acts of intercourse with his own sister. Such activity extended to the provision of Viagra to his very young grandson when he was only about 9 or 10 years of age. The offender also provided alcohol and cannabis on occasion in order to numb some of the pain felt by his young victim, Victim 1, and perchance for perceived intoxicating effects, he frequently also supplied her with Endone, a prescription opioid. On some occasions he also plied her with alcohol.

13. The offender’s own son’s daughters, Victim 2 and Victim 3, were also the subject of preliminary advances or grooming behaviour. Each of them was either photographed or invited to consider being photographed in pornographic or child abuse circumstances. The charged sexual offences with respect to each of these two granddaughters took place during the approximate period between 2005 and January 2008.

14. In approximately 2009 when she was 15 years of age, Victim 2 made her first complaint about some aspects of her grandfather’s conduct.

15. That same year another granddaughter, Victim 5, a child of his own daughter D1, made complaint at her junior school about her “Opa” having licked her private parts. The manner in which that complaint surfaced at her school when she was about 6 years of age led to mandatory reporting and to a police investigation. A recorded interview with Victim 5 shortly thereafter, despite leading to some level of police investigation and despite coming to the attention of some members of the extended family, did not result in the laying of any charges at that time. The particular allegation did, however, ultimately result in a count in the indictment in respect of which I have returned a verdict of guilty for an offence of sexual intercourse with a child under the age of 10.

16. The complaints which surfaced in 2009 from Victim 2, and in 2010 from Victim 3, led to their father cutting off all contact with his own father, the offender, and with each his children having no further contact with their grandfather.

17. The complaint which was made in the recorded interview with police by Victim 5 was denied by the offender within the context of discussions within the extended family, and whilst it would appear that there were some residual concerns held by some members of the family, Victim 1 and Victim 4 continued to have regular contact with the offender and his wife at their home on the South Coast.

18. Throughout that period, and in the years following, there eventuated regular sexual contact between the offender and those two step-grandchildren. The offender had set up a mattress, lights and cameras in the attic space of his home. He captured his dissolute and depraved actions on digital video recordings, often utilising more than one camera. In due course police recovered some 22 minutes of high-definition digital recordings of such activity. The detail of what was recorded gave rise to 34 counts in the indictment: counts 28 to 61 inclusive. A variety of still images and some of the thumbnail recordings located on a memory card also formed the basis of additional counts in the indictment.

19. As Victim 1 grew older and entered into her early teenage years she began to exhibit a degree of resistance to the persistent importuning of her grandfather. Acts of sexual intercourse did, however, continue in a variety of locations including in his motor car after collecting her from school, on occasion in his caravan, and also in a motel room that he had rented for the purpose. He continued on some occasions to ply her with cannabis and Endone.

20. When a degree of reluctance to continue the sexual activity began to be demonstrated both by Victim 1 and also by her brother, Victim 4, the machinations of their grandfather assumed Machiavellian proportions. He told the children that he had sold earlier recorded videos of their sexual activity to named persons. He claimed that those persons were threatening to blackmail all of them by exposing the fact of the videos and distributing them to members of the family and to other places unless they continued to make fresh videos. As I have described in my earlier judgment, these named persons were in fact figments of the imagination of the offender. They had as much actual reality as the creations of J. K. Rowling and J. R. R. Tolkien.

21. Both Victim 1 and her brother Victim 4 received persistent messages, some threatening and others cajoling, purporting to be from the persons to whom the videos had been supplied. The children initially believed them to be real persons. The offender supplied a handwritten note to Victim 1, one of many, which he alleged came from one of those persons. One of the notes gave detailed graphic instructions and directions as to the required sexual actions she should undertake and the positions which she should assume during future sexual acts with her grandfather which were intended to be filmed.

22. Each of the children gave detailed accounts of the earliest sexual encounters that they could recall with their grandfather. Each of them also gave evidence of the ongoing nature over a period of years during which such sexual activity continued. Each of the children gave evidence about the last sexual encounters that they could remember prior to the involvement of police. Both of the children gave specific evidence about the regular video-recording of the acts of sexual intercourse and other sexual interaction.

23. As I indicated in my earlier judgment, I am satisfied beyond reasonable doubt that many more videos were made than those recovered by police. Such a conclusion was buttressed in the course of the trial by the conversations which were recorded between the offender and his cellmate following his arrest and incarceration and also by telephone conversations which were recorded between the offender and his wife, as well as with his brother, in which he sought to make arrangements for the destruction or removal of items which would have held such recordings.

24. The threats to blackmail each of Victim 1 and Victim 4 by the publication or release of videos which had previously allegedly been sold would have made no sense and would have had no effect upon the children if there had not, in fact, been such other recordings.

25. Ultimately the last sexual acts occurring with both children in the attic space of the offender’s home would appear to have been in early 2013. Following an incident which I have described in detail in my earlier judgment the children were not permitted to visit their grandparents’ home after that date.

26. However, sexual interaction between the offender and Victim 1 continued in the years thereafter. He collected her from school on occasions that she finished early and on one identified occasion took her to a motel at Albion Park. On other occasions sexual activity occurred in his motor vehicle and on other occasions in his caravan. On various occasions identified in the evidence he continued to supply her with cannabis and with the opioid Endone.

27. Following Victim 1 confiding in her then boyfriend during 2015 about her history of sexual activity with her grandfather, which she described as having been “raped my whole life”, her boyfriend prevailed upon her to tell her parents. Following her detailed and lengthy recorded interviews with police, the offender was arrested and charged. As I have already indicated, the police investigation was ongoing and included the recording of many hours of conversations with a cooperative informant in the offender’s gaol cell, and also the recording of incriminatory conversations between the offender and his wife and also with his brother.

28. Against the above extensive overview and following the judge-alone trial in February this year MM has been found guilty and now appears for sentence with respect to the 73 following charges which I will group according to the complainants and to the specific incidents. I propose to give sufficient identifying details with respect to the individual counts to permit them to be cross-referenced to the paragraphs in my earlier judgment which set out even more graphic detail of the individual offences.

COUNT 8

29. The first offence chronologically is Count 8 in the indictment. It relates to a description given by Victim 2 regarding a video which she was shown by her grandfather when she was about 12 or 13 years of age, in which he could be seen with an erect penis in close proximity to the vagina of her cousin, Victim 1. Victim 2 thought that her cousin was about 4 or 5 years of age in the video. The video depicted an assault with an act of indecency by the offender in the immediate physical vicinity of Victim 1. This constituted an offence as pleaded, contrary to the provisions of section 61M(1) of the Crimes Act1900. The indictment specifically pleads a circumstance of aggravation namely that the victim was under the age of 16 years.

30. I note that at the time of the commission of the offence, circumstances of aggravation were defined to include a victim under the age of 16 years. Accordingly the maximum penalty is imprisonment for 7 years. A standard non-parole period is prescribed at 5 years. I should note in passing that the Crown’s Summary on Sentence which was tendered on the sentence hearing, describes count 8 as having been charged pursuant to section 61M(2) and carrying a maximum penalty of 10 years imprisonment.

31. Regrettably, given the imprecision which we were required to deal with regarding various counts in the indictment presented at trial, and now in the Crown Sentence Summary description, this is another example of error. I should say in passing, lest I overlook it later, that the imprecision in much of the material that has been handed up in the Summary is such that I remind myself that judges at first instance in this jurisdiction, regularly dealing with these and similar matters, ought to be entitled to rely upon the accuracy of such summaries. Regrettably I have not been able to do so in many instances. (I note that [404] - [406] relate to this particular count in my earlier judgment of 9 March 2018.)

32. The objective seriousness of this particular conduct, namely filming an erect penis in close physical vicinity of the vagina of a four or five year old, I would assess as falling within a broad mid-range of offences of this type.

COUNT 2

33. Count 2 in the indictment relates to the subsequent showing to Victim 2 of the video which I have just referred to, the acts in which are relied upon for Count 8. I note that on 15 June 2018 in the proceedings on sentence the Crown indicated that the schedule of charges included in the tender bundle had an error and the attribution of Count 2 referring to Victim 2 was an error and that it should be a reference to Victim 3. I have made a handwritten alteration on the Table accordingly. This was in accordance with the way the Crown had opened the trial but not in accordance with either the evidence at trial nor the Crown Closing Address, nor my determination on judgment of verdicts. (The detail of the evidence regarding this event is to be found at [359] - [362] and [403] of my earlier judgment.)

34. The showing of the video to Victim 2 constituted the dissemination of child pornography contrary to the provisions of section 91H(2) of the Crimes Act. Such an offence carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period specified. The disseminating of such a video, not for prurient purposes per se such as the sexual gratification of somebody to whom it might disseminated or sent over the internet, but rather in the context of grooming a 12 or 13 year-old girl, who was the cousin of the victim depicted in the video, elevates the objective seriousness of this dissemination of child pornography above such other examples relating to the use of the internet. I would assess the dissemination in the context that I have described as being above the mid-range.

COUNT 1

35. Count 1 in the indictment relates to an incident described by Victim 3. She described an incident when she was 8 or 9, that is, between January 2005 and January 2006, when her grandfather showed her a photograph of a young naked girl. She could see the vagina of a girl and also that her breasts were not developed. She could not see the face. Her grandfather put a big bundle of money into her hand and told her that she could have that amount of money if she did something similar. He took her into his caravan and manoeuvred her arms and legs into different positions and explained that she would get different amounts of money according to the position she had assumed, if photographs were taken of her naked. (The detail of that incident is set out in my earlier judgment at [379] to [382].)

36. The physical manoeuvring of the child and the discussion regarding the payment of money for naked photographs, combined with the showing of the photograph of a naked child exposing her vagina constituted an offence of aggravated indecent assault with a victim under the age of ten years. This is an offence contrary to section 61M(2) of the Crimes Act 1900, such offence carrying a maximum penalty of 10 years with a standard non-parole period of 8 years.

37. The Crown Sentence Summary incorrectly specifies a standard non-parole period of five years.  I should note the Crimes (Sentencing Procedure) Amendment Act 2007 which added items to the total of standard non-parole periods, together with the subsequent 2013 Amendments which increased the standard non-parole period for various offences. Those variations and increases apply, pursuant to the transitional and savings provisions, retrospectively: see GSH v R;R v GSH [2009] NSWCCA 214.

38. In my view the objective seriousness of this particular offence falls well below mid-range.

COUNTS 3 & 4

39. Counts 3 and 4 involve an incident regarding Victim 2 which occurred when she was about 13 years of age on a family camping trip to Nelligen in January 2008. The offender drove his four-wheel drive vehicle to the top of a nearby mountain in order to try and obtain reception for his mobile phone. Victim 2 went alone in the vehicle with her grandfather and at the top of the mountain he persuaded her to take her clothes off and sit in the front of his car and to spread her legs and vagina. He took photographs of her in these positions and gave her $50. She saw one of the photos on his camera after he had taken the images. (The full detail of this event is set out at [366] - [369] and [403] of my earlier judgment.)

40. The using of a child for pornographic purposes constitutes an offence contrary to the provisions of section 91G(1)(a) of the Crimes Act 1900. It carries a maximum penalty of 14 years imprisonment. The standard non-parole period is 6 years. The Crown Sentence Summary incorrectly specifies a standard non-parole period of 5 years.

41. In my view the objective seriousness of this particular offence falls well below mid-range.

42. In parallel with using a child under 14 for pornographic purposes, namely placing the child in a sexual context for the purposes of the production of pornographic material, the offender also committed an offence of the production of child pornography. Despite the overlapping nature of the offences, the actual production of child pornography constitutes an offence against section 91H(2) of the Crimes Act 1900 and carries a lesser maximum penalty of 10 years imprisonment. There is no standard non-parole period for this offence.

43. The objective circumstances of such offences will vary according to the age of the child, an assessment of the level of depravity involved, and the explicit nature of the actual child abuse material which is produced. Without making specific reference to the various gradations of seriousness which are applied to offences relating to the possession of child pornography, sexualised posing and positioning without the intervention of actual sexual activity with another person or of an object in my view falls below the mid-range of objective seriousness of such offences.

COUNT 5

44. Count 5 is a discrete offence which occurred between the offender and his 6-year old biological granddaughter, Victim 5, who was the child of the offender’s own daughter. At the age of 6 the victim came out with utterances in the presence of her mother and separately in the presence of her grandmother, the offender’s first wife, that: “Opa licked my wee wee.” She was subsequently observed “acting out” and playing with her vagina at school. Following mandatory reporting she was interviewed by police in a video recording. Her recounting of the incident in that recorded interview when she was only 6 years of age, has, in my view a palpable naivety and honesty which is striking. As I have indicated in my earlier judgment, (Count 5 is dealt with in my earlier judgment at [335] to [355]), other than police contact with the mother of D1 (ie. the offender’s first wife) no evidence was disclosed at the trial as to the extent of any investigation beyond the fact of the interview with the 6-year old complainant.

45. Following the disclosure of allegations regarding other victims, Victim 5 was re-interviewed at the age of 12 and she in due course gave oral testimony in the course of the trial. I was ultimately satisfied beyond reasonable doubt that her description of an act of cunnilingus in her grandfather’s caravan when she was 6-years of age was both honest and accurate. That act constituted, by virtue of the statutory definition, an act of sexual intercourse with a child under the age of 10 years. Such an offence is contrary to the provisions of section 66A(2) of the Crimes Act 1900 and carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

46. The objective seriousness of this offence requires consideration of the tender age of the child, the nature of the penetration which is found established and the nature of the relationship between the perpetrator and the victim. The seriousness with which such offences are viewed by Parliament and the community is reflected in both the maximum penalty and the specification of the standard non-parole period. The specific incident the subject of this charge I find falls somewhere within a broad mid-range of severity.

COUNTS 9 – 11

47. Counts 9 to 11 relate to the first episode of what she described as “full sex” that Victim 1 could recall. (The detail relating to these counts is set out in my earlier judgment at [180] to [192])

48. Victim 1 described her grandfather, at a time when she was somewhere between Year 4 and Year 6 at primary school, digitally penetrating her on an occasion that she was with him in his vehicle. This was at a time some years after the initial sexual interaction with her grandfather which had occurred before she started school. This later episode was likely to have occurred in either 2009 or 2010.

49. Following the digital penetration Victim 1 described her grandfather standing on the ground outside his vehicle and positioning her so as to be able to insert his penis into her vagina. She complained that was it was hurting and the offender told her that he would rather do it rather than have a future boyfriend “rip her to shreds”. The two acts that I have described respectively constituted count 9 and count 10 in the indictment.

50. Victim 1 went on to describe a further act of intercourse which occurred later the same day when they returned to the same spot in the offender’s vehicle. This later event also included penile/vaginal penetration and formed the basis of Count 11.

51. In the circumstances which I set out in detail in my earlier judgment I was not satisfied beyond reasonable doubt that Victim 1 was necessarily under the age of ten years of age at the time of these offences. I was, however, satisfied beyond reasonable doubt that the acts as described had occurred and accordingly pursuant to the provisions of s 66E of the Crimes Act 1900 I returned verdicts of guilty in respect of alternative counts of sexual intercourse with a child under the age of 14 years in circumstances of aggravation, namely that she was under the authority of the offender.

52. Such an offence is covered by s 66C(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. Contrary to the Crown sentence summary table there is in fact a standard non-parole period of 9 years. In my view, bearing in mind the overall circumstances and the age of the victim, these offences fall within a mid-range of objective seriousness.

COUNTS 12 – 16

53. The next group of offences in the indictment were counts 12 to 16. The offences alleged in those counts relied upon the earliest recollection of sexual activity by Victim 4, who as I have described earlier was the younger brother of Victim 1. (The detail of these particular offences is set out in my earlier judgment at [312] - [329].)

54. Victim 4 described his earliest memory of filming in the attic area at his grandparents’ home. He gave evidence that the episodes had first started when he was in first or second grade at school. His earliest memory of sexual intercourse in the roof attic area was when he was about seven and a half years of age. He described in detail the use of two cameras and fixed floodlights up in the ceiling space. He explained that he was required to use one of the cameras to record what he described as “general sex”. He was told what to do with the camera as he did not understand what it was that he was meant to be doing. He also described his grandfather turning on the fixed camera. Victim 4 said, “Then he started having sex with my sister.” Victim 4 described the physical acts with specific detail.

55. The acts which Victim 4 described taking place between the offender and his sister, Victim 1, form the basis of Count 12 which was an offence of aggravated sexual intercourse without consent. Such an offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

56. I reiterate my observations which are set out in my earlier judgment at [288]-[299] regarding the utilisation by the Director’s office of s 61J(1) with respect to a victim who is under the age of 10 years.

57. This offence in my view clearly falls within the mid-range of objective seriousness.

58. Counts 13, 14, 15 and 16 all derive from the same incident which constitutes the offence in Count 12.

59. Count 13 relates to using Victim 4 for pornographic purposes in requiring him to hold a camera and video the sex taking place between Victim 1 and her grandfather. Placing him in a sexual context in such circumstances constitutes an offence contrary to s 91G(1)(a) of the Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment.

60. Again, contrary to the Crown sentence summary, there is in fact a standard non-parole period of six years. I note that the Crown’s sentence summary describes this offence as relating to Victim 1. Regrettably, yet again this is an error. The actual indictment pleads using Victim 4. For the reasons set out in my earlier judgment I was satisfied beyond reasonable doubt that he had been so used. Undoubtedly, so was his sister. However, contrary to what has been provided to the Court in the Sentence Summary that was not the offence charged.

61. The circumstance of using a young boy of about 7 years of age to video film sexual intercourse between his grandfather and his own sister is depraved and disgusting by any measure of ordinary community standards. The offender was not only in a familial relationship with each of the children but he was by that stage a man in his early 60s. Victim 1 herself was under the age of 10, being 18 months older than her brother. The victim in the particular offence charged was, as I have observed, about seven and a half. In this category of offence the objective gravity falls well within the mid-range.

62. Count 14 derived from the same occasion in the attic area. Victim 4 was then incited or encouraged by his grandfather to have sexual intercourse with his sister. That act was relied upon as the basis for an offence of inciting a child under the age of 16 years to commit an act of indecency towards the offender. Both the Crown sentence summary and the notation on the indictment represent that this was an offence contrary to s 61O(2) of the Crimes Act 1900. Such an offence occurs where the victim or the person incited is under the age of 10 years.

63. For the reasons set out in my earlier judgment such an offence may well have been available but regrettably this is yet a further example of the imprecision of drafting about which I have made complaint previously. I was, however, satisfied that the offence as in fact pleaded, ie. under 61O(1), was made out. In circumstances of aggravation such incitement of a person under the age of 16 to commit an act of indecency with a person under the age of 16 is an offence contrary to s 61O(1) and carries a maximum penalty of 5 years imprisonment, not 7 as stated in the Crown summary. There is no standard non-parole period.

64. For the reasons set out at [327] - [328] of my earlier judgment I returned a verdict of not guilty with respect to count 15 which had particularised the procuring of Victim 4 for unlawful sexual activity “with the offender”.

65. Count 16 related to the production of child pornography on the occasion described by Victim 4 in the attic area. The filming which was undertaken of the sexual interaction and intercourse constitutes production of child pornography contrary to the provision of s 91H(2) of the Crimes Act 1900 which carries a maximum penalty of 10 years imprisonment. There is no standard non‑parole period. The objective seriousness of the offences which involved inciting and using Victim 4 to film, and then to participate in sexual intercourse, with the resultant production of child pornography falls well within the mid-range of gravity of such offences.

COUNT 17

66. Count 17 was a separate offence relating to an occasion when the offender made Victim 4 grab the offender’s penis and forced him to move his hand up and down. The victim said that he was about 7 years of age when this event occurred. That would place it somewhere between March 2008 and March 2009. (It is dealt with at [330] - [333] of my earlier judgment.) Such an occurrence constitutes an offence of aggravated indecent assault with a person under 10 years of age contrary to s 61M(2) of the Crimes Act 1900. Such an offence carries a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years. This particular offence did not involve ejaculation and was of comparatively short duration. Notwithstanding that it involved a 7 year-old boy being made to, in the victim’s words, “jerk” his grandfather’s penis, it falls under the mid-range of seriousness for such offences.

COUNTS 18 TO 21

67. This group of offences relate to an incident described by Victim 4 which took place in his grandfather’s four-wheel drive motor vehicle. The victim thought that he was about nine and half years of age at the time. His description of the particular motor vehicle identified the period as being between May 2009 and May 2010. The indictment was amended accordingly.

68. I note that the Crown Sentence Summary is again incorrect, this time as to the dates of the amended indictment.

69. Victim 4 described having been given a Viagra tablet on this occasion by his grandfather. He described in detail witnessing an act of sexual intercourse between his sister and the offender. (The detail of this group of offences is to be found at [407] - [420] of the earlier judgment.)

70. The act of sexual intercourse which took place between the offender and his granddaughter, Victim 1, constituted the basis for count 18 namely, aggravated sexual intercourse without consent contrary to the provisions of s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. It clearly falls in the mid-range.

71. Count 19 involved a related offence during the same occurrence. The offender was charged with inciting Victim 4 to an act of indecency with the offender knowing that the act was being filmed for the purpose of the production of child pornography. For the reasons set out in my earlier judgment I was satisfied that the offence was established. It constituted an offence contrary to the provisions of s 61O(2)(a) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period.

72. Count 20 separately charged the end product of the filming, namely the production of child pornography. This is an offence contrary to the provisions of s 91H(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. Again, there is no standard non-parole period.

73. Count 21 was a yet further related offence arising from the same incident. This was an offence of using a child under the age of 14 years, specified as Victim 4, for pornographic purposes. This is an offence contrary to s 91G(1)(a) of the Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 6 years.

74. The Crown Sentence Summary describes the offence for this count as making “child abuse material between 18 March 2010 and 19 March 2011”. Unfortunately both the terminology and the dates are incorrect and do not accord with the amended indictment which is the basis upon which I have proceeded. The inability to rely upon the Crown’s Sentence Summary in so many instances is not only regrettable, as I have repeatedly said, but resulted in an inordinate amount of time in cross-checking legislation and appropriate terminology.

75. The objective seriousness of this offence, focusing on the utilisation of Victim 4 in the way I have described, falls slightly below the mid-range of offences embraced by this section.

COUNTS 28 – 61

76. The next group of specified offences took place on two occasions in the attic area of the offender’s home in approximately June 2012. The 34 delineated offences are based on a focused analysis of some 22 minutes of high-definition video recording of the events. The images were retained on three video files which were in due course recovered by police following a search of the offender’s premises and his vehicles. An exposition of the fine detail giving rise to these individual offences is set out in my earlier judgment between paras [58] and [137]. Because of the sheer volume of the number of charged offences and the setting out of the specific detail of each of the acts in my earlier judgment, I propose to refer to the individual offences only in brief form in the course of these remarks. I will include with respect to each of the counts a reference to the relevant paragraphs in my earlier judgment on verdicts.

77. It suffices to observe that on the two separate days covered by the three video files there were numerous different physical positions involving acts of intercourse which variously occurred between each of the brother and the sister and also their grandfather. When not being made to be a physical participant Victim 4 was required to use a handheld camera to take close up graphic video of what was occurring in front of him.

78. I am constrained to observe at this point in my remarks that although there may be many circumstances in which a narrative in agreed facts might suffice for an adequate assessment of the gravity of images which form the basis of criminal charges, the present matter is one in which nothing less than a viewing of the appalling images recorded in June 2012 can do justice to an assessment of the objective seriousness of these offences. (In this regard see the remarks of R A Hulme J in R v Hutchinson [2018] NSWCCA 152 at [47]-[50] and Button J at [90])

79. Count 28 was an offence of inciting Victim 1 to an act of indecency with the offender knowing that it was being filmed. This offence is contrary to s 61O(2)(a) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. ([79] – [81])

76. Count 29 was an act of sexual intercourse between the offender and Victim 1 and relates to a specific act of fellatio. It was charged as an offence contrary to s 66C(2) namely, aggravated sexual intercourse with a person under 14 years of age and under the authority of the offender. It carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years. ([82])

77. Count 30 is brought under the same provision and relates to an act of cunnilingus which followed the actions in count 30. The same maximum and same standard non-parole period apply. ([83] – [84])

78. Count 31, again brought pursuant to the same section, derives from a physical repositioning following which penile/vaginal intercourse takes place between the offender and his granddaughter. ([85])

79. Count 32 relates to a further physical repositioning and a different form of sexual intercourse which was filmed over a period of about 120 seconds. It was an offence against the same section of the Crimes Act. ([86])

80. Count 33 again involved a deliberate physical repositioning of the offender and Victim 1 and continued penile/vaginal intercourse in this different position whilst it was being filmed. ([87])

81. Count 34 was a further discrete act of intercourse with another variation on the physical disposition of their respective bodies. As with earlier offences in this sequence it was again charged under the same section of the Crimes Act. ([88] – [89])

82. Count 35 was yet a further physical rearrangement undoubtedly for the purposes of the filming, the detail of which is to be found in my earlier judgment at [90]. Yet again this was an offence under s 66C(2) of the Crimes Act 1900.

83. The fact of the frequent physical repositioning and the recommencement of the physical act of sexual intercourse has, as a consequence of the precision recorded in the video, permitted the Crown to charge discrete offences of commission with respect to the varying placement of the bodies of the offender and his victim and the recommencement of the acts of sexual intercourse. Although able to be charged as separate offences they clearly constituted an ongoing course of conduct which has been separated to reflect the cessation and recommencement of the act in each case.

84. There is no doubt that such repositioning, which included the specific exposure of the genitalia towards the lens of a camera, was specifically for the purpose of the video recording. Whether this was ultimately done purely for the future self-gratification of the offender or for the purpose of distribution or dissemination, despite suspicions which might properly be harboured, could not be and was not established beyond reasonable doubt.

85. The offences in counts 28 to 35 derived from Video File 1 included in Exhibit Y. Video File 2 was filmed a little less than 24 hours after the offences recorded in Video File 1. This conclusion is based on the digital file properties of the respective thumbnail images.

86. Count 36 and Count 37 relate to an act of fellatio performed by Victim 1 on her younger brother whilst being filmed by the offender. Count 36 is an offence of inciting Victim 1 to have sexual intercourse with Victim 4 in circumstances of aggravation and count 37 is a mirror image offence of inciting Victim 4 to have sexual intercourse with his sister in the same circumstances ([94]–[96]).

87. Each of these acts constitutes an offence by virtue of the operation of s 80G of the Crimes Act 1900 and carries the same maximum penalty as the principal offence contrary to s 66C(2) of the Crimes Act 1900, namely 20 years’ imprisonment. There is a standard non-parole period of 9 years.

88. Notwithstanding the wide range of dates pleaded in the indictment I was satisfied beyond reasonable doubt that Victim 1 was approximately 12 years of age at the time of the commission of these offences and that her brother was approximately 10 years of age at the same time.

89. Count 38 was an offence based on the next physical action in the recorded video, namely an act of fellatio between Victim 1 and the offender ([97]). This act constituted a further aggravated offence of sexual intercourse with a child under the age of 14 contrary to s 66C(2) of the Crimes Act 1900.

90. Counts 39 and 40 again relate to a repositioning following which there were simultaneous acts of fellatio and cunnilingus between the offender and his granddaughter ([99]). Each such act was again charged separately pursuant to the same section of the Crimes Act each carrying a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 9 years.

91. Counts 41 and 42 relate to an ensuing physical act directed to take place by the offender. The dual offences derive from mutual acts of fellatio and cunnilingus between Victim 1 and her brother whilst being directed and instructed by the offender ([101]). The offender thereby committed acts of inciting each child to commit aggravated acts of sexual intercourse with the other, thereby rendering applicable the maximum penalty for the principal act which he was inciting. In each case it was again 20 years’ imprisonment with a standard non-parole period of 9 years.

92. Counts 43 and 44 were mirror images of each other with respect to the act of cunnilingus ([105]). The respective counts relate to inciting each respective child to commit sexual intercourse with the other. It is to be observed that the acts of mutual fellatio and cunnilingus have thereby given rise to four separate offences of inciting each child simultaneously to commit acts of intercourse both with each other and involving two separate acts simultaneously by each.

93. Count 45 derives from a separate act of fellatio by Victim 1 after the offender positioned himself alongside her and directed that she should commence such an act upon himself ([106]). Count 45 reflects this offence contrary to s 66C(2) of the Crimes Act and again carries a maximum penalty of 20 years with a standard non-parole period of 9 years.

94. Counts 46 and 47 relate to the next video-recorded physical action which occurred, again at the specific direction of the offender, namely penile/vaginal intercourse between the two children whilst being recorded by a camera held in very close proximity by the offender himself ([108] – [109]). Words are recorded on the video clearly reflecting the giving of instructions by the offender. Counts 46 and 47 charge the inciting of each child to have sexual intercourse with the other and thereby attract the same maximum penalty as the principal offence.

95. Counts 48 and 49 relate to two physically different acts of penile/vaginal sexual intercourse by the offender with Victim 1 during a further period of approximately three minutes on the recording ([111] – [112]). Each of those constitutes an offence of aggravated sexual intercourse with a person under the age of 14.

96. Counts 50 and 51 relate to a yet further act of intercourse between the children, again under the clear direction and instruction of the offender. As described in my earlier judgment at [114]-[115], during the course of this physical activity the offender’s knee is observed pressing on the back of his grandson while taking extreme close-up video with a hand-held camera. The inciting of each of the children to have sexual intercourse with the other again leads to liability for the maximum penalty of 20 years and a standard non-parole period of 9 years with respect to the principal offence.

97. Counts 52 and 53 relate to a separately charged act where each child adopts a different physical position before continuing to have sexual intercourse with each other and in circumstances where the offender continues to take graphic images of their genitalia ([118]). Each of these offences was of inciting to commit aggravated sexual intercourse as with the previous similar incidents. Video File 3 commenced as a separate file on the digital recording but occurred only moments after the cessation of the filming which provided the basis for Counts 36 to 53.

98. Counts 54 and 55 relate to a further act of intercourse between the 12 year-old victim and her 10 year-old brother which was incited by the offender. The detail of this particular act is set out at [121] - [122] of my earlier judgment. Each count is of inciting the commission of an aggravated act of sexual intercourse; count 54 of inciting Victim 4 and count 55 of inciting Victim 1 in similar terms. The offender is thereby liable to a maximum of 20 years’ imprisonment and a standard non-parole period of 9 years. The offence in my view clearly falls within a mid-range of objective seriousness.

99. Count 56 relates to the next sequential act of sexual intercourse with Victim 1, this time by her grandfather. Close-up vision of the ensuing intercourse continued for some minutes. (The detail of this count is at [123] - [126] of my earlier judgment.)

100. Count 57 is a further act of sexual intercourse between the offender and Victim 1 which took place following a further physical rearrangement of the position of their respective bodies ([127]). Similar to the previous count this is an offence contrary to s 66C(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years with a standard non-parole period of 9 years.

101. Count 58 is an offence which arises from the filming of the events covered by counts 28 to 35 ([129] – [132]). These are the counts which have been established as being recorded on Video File 1. The production of such material is a contravention of s 91H(2) of the Crimes Act and carries a maximum penalty of 10 years imprisonment.

102. Count 59 relates to the production of child abuse material recorded in Video File 2. It similarly attracts a maximum penalty of 10 years imprisonment.

103. No charge was preferred in relation to the production of the child abuse material recorded in Video File 3.

104. Each of the counts of producing child abuse material falls very substantially within the mid-range of objective seriousness.

105. Counts 60 and 61 respectively constitute offences of procuring each of Victim 1 and of Victim 4, being children under the age of 14, for unlawful sexual activity contrary to the provisions of s 66EB(2) (see [134]-[137] of my earlier judgment). Such procuring carries a maximum penalty of 15 years imprisonment. There is a standard non‑parole period of 6 years.

106. The procuring of these children and ranking the substantive offence on a perceived range of objective seriousness is not without difficulty. The procuring was facilitated by an ongoing course of conduct whereby the children had been effectively groomed and conditioned over a period of years. They had thereafter had been variously incited, encouraged and in some respects pressured by virtue of the earlier SMS text messages from the fictitious persons, which I have found were in fact emanating from or at the direction of their grandfather. Consequently they were inured to ready participation in the repeated and differing acts of sexual intercourse which were intended to be and which were being filmed. Viewed in such a fashion, the procuring on the occasion of the making of the video films with which I am currently concerned did not occur in a vacuum. The ready procuring of these children was the end product of an ongoing course of conduct. In my view this elevates the charged offences above any perceived mid-range of objective seriousness.

COUNTS 22 – 27

111. The next group of offences is encompassed by counts 22 to 27. This group relates to the last occasion of acts of intercourse and filming taking place in the attic area, according to Victim 4’s recollection. These events took place prior to 16 February 2013, which was the last occasion that Victim 4 and Victim 1 visited their grandparents’ home.

112. Count 22 was specifically described as an act of cunnilingus between the offender and Victim 1 ([286]-[287]). The charged offence was again pursuant to s 61J(1) of the Crimes Act, namely sexual intercourse without consent and under authority. I again refer to my comments regarding s 61J(1) set out in my earlier judgment at paras [288] to [298]. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

113. Count 23 was a second act of sexual intercourse between the offender and Victim 1 on the same occasion ([304]). This second act of intercourse was penile/vaginal intercourse contrary to the same provision of the Crimes Act and carrying the same maximum penalty and standard non-parole period as count 22.

114. Counts 24, 26 and 27 variously related to offences arising from the presence and utilisation of Victim 4 in the taking of the video recording of the sexual intercourse which itself was the subject of counts 22 and 23 and which was occurring in his presence.

115. Count 24 related to the production of child abuse material, an expanded definition that had previously been described in the Crimes Act as child pornography ([307]-[308]). This is an offence contrary to s 91H(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. The child abuse material, namely the video recording, depicted Victim 1 in the acts of intercourse with her grandfather.

116. Count 26 related to the committing of an act of indecency towards Victim 4 in circumstances which related to the acts of intercourse occurring in front of him and in his presence ([310]). The commission of such an act, knowing that it was being filmed for the purposes of the production of child abuse material, constitutes an offence under s 61O(2)(a) of the Crimes Act 1900 and again carries a maximum penalty of 10 years.

117. The last count in this group, count 27, focuses on the procuring of Victim 4, then being a child under 14 years, for unlawful sexual activity ([311]). Although left somewhat bemused as to the selection of some of the particular counts, particularly in circumstances where both children were involved, this was an offence as pleaded in respect of which I have returned a verdict of guilty. It carries a maximum penalty of 15 years imprisonment and a standard non‑parole period of 6 years.

118. The overall circumstances of this group of offences involving the procuring of the assistance of a young boy who was then about 11 or 12 to film acts of intercourse, as he had done previously, between his sister and his grandfather, in my view fall within a broad mid-range of objective seriousness.

COUNTS 62 -65

119. I turn now to counts 62 to 65. This group of offences relate to an identified occurrence involving sexual intercourse between the offender and Victim 1 shortly after her 15th birthday. Notwithstanding that her parents had prohibited both her and her brother from attending the grandparents’ home, both children appear to have had ongoing contact with the offender. He had contact with each of them via mobile phones and on numerous occasions he collected Victim 1 from school when she had finished early. Much of this contact would appear to have been without the knowledge of her parents.

120. On one identified occasion he took her to a motel at Albion Park which he had rented, clearly for the purpose of having sex with his granddaughter. The details of the physical actions which took place at that location are set out at [201] to [213] of my earlier judgment. They included following written instructions that purported to have come from one of the persons to whom the videos had previously been sold. As would be abundantly clear from my earlier remarks and my previous judgment I am satisfied that such persons were figments of the offender’s contriving imagination.

121. On this occasion the handwritten list included the required use of a dildo. It is appropriate to observe in passing that the account given by Victim 1 of her being required to follow directions which had allegedly emanated from what I have described as the fictitious persons represented by the names “Bob”, “Lyn” and “Toey”, was corroborated by an actual audio-recording recovered by police from a memory card seized from the offender’s premises, in fact, it was from his vehicle. The transcript of that recording became Exhibit AA1 whilst the recording itself was included on the disk Exhibit Y. Detail regarding this audio-recording is at [143] to [146] of the earlier judgment.

122. The recording itself has clearly been made during an act of intercourse between the offender and Victim 1. In addition to the offender giving specific directions to Victim 1 as to what should happen physically, he also asked her in the course of that recording: “Are you going to dob me in?”. Included in his directions to her he was clearly heard saying: “Have to do what Toey says.” The evidence does not disclose whether this recording occurred at the Albion Park Motel or on some other occasion.

123. The sexual intercourse at the Albion Park Motel included specific evidence of ejaculation. The victim described in graphic detail her necessary actions subsequently undertaken in the bathroom of the motel. When interviewed subsequently she told police that she had not taken any contraceptive precautions because of explanations given to her by the offender that is, her grandfather, that he had had an operation which I take to be a reference to a vasectomy and that he was non-fertile. Graphic close-ups included in the videos reveal surgical incision marks consistent with his assertions.

124. Count 62 charged an offence contrary to the provisions of s 66C(4) namely, sexual intercourse with a child between 14 and 16 years of age and under his authority ([203]-[213]).

125. The aggravated sexual intercourse which took place on this occasion included the accused using a handheld camera to take close-ups of her doing what she was directed to do with the dildo. Victim 1 explained that as well as the handheld camera there was also a fixed camera on a tripod which was recording the events.

126. The objective seriousness of this offence, whilst not falling necessarily within the classification of “the worst category” (see The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256), is in my view towards the higher end of a spectrum extending from the less serious instances of this offence to “the worst category”, properly so-called, which is reserved for cases calling for the maximum penalty.

127. Counts 63, 64 and 65 are all derivative offences arising from the same occasion at the Albion Park Motel.

128. Count 63 was an offence of inciting a person under 16 to an act of indecency towards the offender knowing that it was being filmed ([214]-[217]). This is an offence contrary to the provisions of s 61O(2)(a) and carries a maximum penalty of 10 years.

129. Count 64 ([218])is an offence of producing child abuse material contrary to s 91H(2) with a maximum penalty of 10 years and count 65 ([219]-[223]) is an offence of using a child for the production of child abuse material contrary to s 91G(2)(a) and similarly has a maximum penalty of 10 years imprisonment. Each of these offences falls well up any mid-range of objective seriousness.

COUNTS 66 & 67

130. Counts 66 and 67 both derive from the retrieval by police of a copy of a letter which set out detailed instructions regarding the manner and positioning of sexual acts required to be undertaken by Victim 1. The letter was described during the trial as the “Bob” letter. It became Exhibit H (detail of the circumstances surrounding this letter maybe found in my earlier judgment at [196], [224] - [236]; [257]-[258] and [421] - [428].)

131. Count 66 was an offence of aggravated sexual intercourse with a child aged between 14 and 16 and derived from the evidence of Victim 1 that the instructions which were set out in the “Bob” letter were actually and specifically followed on an occasion when the offender had picked her up from school. She described the incidents on this occasion as occurring in his car ([224] - [236]). This offence contrary to s 66C(4) carries a maximum penalty of 12 years imprisonment and a standard non-parole period of 5 years.

130. Count 67, which derived from the actual provision of the “Bob” letter to Victim 1 was an offence of grooming the child for unlawful sexual activity contrary to the provisions of s 66EB(3) and carries a maximum penalty of 10 years imprisonment. There is a standard non-parole of 5 years for this offence ([257]-[258]). Each of these offences falls well within the mid-range of objective seriousness.

131. The act of grooming by the provision of the letter of instructions needs to be viewed against the background of the continuing threats of exposure by the threatened distribution of earlier recorded videos. Other evidence in the trial from Victim 1’s mother recounted the child’s fear at one stage of actual violence including a threat of acid being thrown in her face. The grooming constituted by the provision of the letter occurred in that continuing context of the overbearing and influencing of the mind of the offender’s particular victim.

COUNTS 68 & 69

134. Counts 68 and 69 are offences derived from the supply of prohibited drugs by the offender to Victim 1 (the detail relating to these offences is set out at [240] - [251] of the earlier judgment). Whilst the evidence at trial reveals supplies of cannabis to a variety of the different victims and the evidence of the supply of Endone to Victim 1 related to differing occasions, the specific evidence giving rise to these substantive offences related to the provision of drugs on an identified occasion outside her school.

135. The offence of supply prohibited drugs is a contravention of s 25(1) of the Drugs (Misuse and Trafficking) Act 1985. Count 68 relates to the supply of cannabis and count 69 to the supply of Endone. Viewed as discrete substantive offences, albeit in the context that I have described, the substantive offences fall substantially below any identifiable mid-range for such particular offences.

COUNTS 70 - 77

136. Count 70 to 77 are each charges of the possession of child abuse material contrary to s 91H(2) of the Crimes Act. Each such possession carries a maximum penalty of 10 years.

137. The specific details of the images which were possessed are set out in my earlier judgment at [147] - [167]. All of the eight still images were contained within a folder entitled “Pictures” which were recovered from a memory card found in the offender’s vehicle. Some of the still images are thumbnails of the opening scene of the video recordings referred to earlier as Video Files 1, 2 and 3; some of them depict both Victim 1 and Victim 4 in the course of sexual activity and intercourse on a rug in what is described as a “bushland setting”.

138. Various of these images are obviously taken on the same occasion. One of them appears to have been taken in a motor vehicle whilst Victim 1 was performing oral sex. As I have earlier indicated all of the images were found within the same folder on the same memory card. Without descending into a detailed analysis by reference to the different categorisation of child exploitation material, the images which constitute these offences clearly depict overt sexual activity. Some of the images reflect sexual activity between what appears to be a 10-year old and 12-year old as I have previously found, whilst others appear to depict overt sexual activity between Victim 1 and an adult. The irresistible inference and surrounding circumstances indicate that it was in fact with the offender in his motor vehicle. The possession of such material whether considered individually or collectively falls within a broad mid-range of objective seriousness.

CROWN CASE ON SENTENCE

139. I turn now to the Crown case on sentence. The Crown tendered victim impact statements from four of the child victims. Victim 2 described having loved spending time with her grandfather: “until you started with the inappropriateness”. She described the confusion and anger which she subsequently felt. She described her fear of tearing the family apart if she told her parents what had been happening. She described subsequently having lost jobs as an adult, she now being 23 or 24 years of age, and having suffered high levels of anxiety and also a post-traumatic stress disorder. She has gone on anti-depressants and she has sought counselling. She described the pain and hurt which she felt after she told her father what had happened. She described her father’s intention of changing his middle name: “To get that horrible name out of his life”.

140. A victim impact statement from Victim 3 spoke about the loss of what should have been an innocent childhood and the fact that she was torn apart herself by what had occurred, as well as her whole family. She described the sense of betrayal which she had felt and said: “His actions will unfortunately affect me for years to come, however, each day I am making small victories”. She said she now feels stronger and braver than ever knowing that her voice has been heard.

141. No medical or psychological evidence was tendered regarding either of those two victims.

142. Victim 4 provided a written victim impact statement, which he read in open court. He is now approximately 17 years of age. He described feeling “the seismic aftermath of sexual abuse”. He gave examples which he described “as small as panic attacks” when he sees large white four-wheel drive motor vehicles, all the way up to the scale of “repeated self-harm, depressive episodes and self-medication”. He recounted the detail of the circumstances attending random emotional swings which he suffered throughout his youth. He described the details of fights which occurred at school following what he described as “redding out”. He described his inability to, as he termed it, “assimilate into the crowd”. He described his inability to empathise or relate to others. He set out his descent into episodes of self‑harm and gave examples of different methods which he had adopted. He spoke about his use of cannabis and other substance abuse following his introduction to cannabis at a very young age by his grandfather. He spoke about suicidal thoughts.

143. A report from Dr Gina Parker, clinical psychologist, was tendered by the Crown regarding the impact of the ongoing abuse upon Victim 4. In her detailed report, which may be found at tab 7 of the Crown tender bundle on sentence (Exhibit A) she sets out the detail of her involvement in therapeutic counselling with Victim 4 for some three years. Following an initial extensive assessment in June of 2015, there have subsequently been some 55 counselling sessions. Victim 4 had also seen a child psychiatrist and another clinical psychologist, who had been organised by his parents.

144. Dr Parker’s clinical diagnosis of Victim 4 was one of complex post‑traumatic stress disorder derived from “longstanding, severe, repetitive and extremely traumatic abuse” during childhood. She detailed circumstances of low self‑worth and self-esteem, as well as confusion around self-concept and identity, and an inability to manage heightened emotions by reference to the incidents which had occurred during his schooling. An incident of self-harm which resulted in an emergency response and hospitalisation in 2015 is also referred to. Ongoing fear and anxiety, as well as sleep disturbances and nightmares, as well as difficulties with interpersonal relationships are also described. A specific query was posed as to whether Victim 4’s relationship with his sister would ever be repaired.

145. The clinical psychologist indicated the diminution of some symptoms, which she opined were as a result of Victim 4’s own drive and commitment to recover. She described as follows:

“As much as it was pleasing to be able to document the gains that Victim 4 has made, it needs to be highlighted that these gains are only recent and do not negate the fact that Victim 4 has endured over a decade, more than three-quarters of his life, living with the impact of significant emotional harm as a consequence of the sexual abuse he experienced as a child.”

146. Dr Parker concluded:

“In my clinical experience and based on the related trauma research, I anticipate that Victim 4 will very likely experience ongoing difficulties and will always be affected in some way by the psychological and emotional impacts of the sexual assaults that occurred. Victim 4 will likely require ongoing psychological treatment and assistance. It is highly probable that Victim 4 may cease and recommence therapy at different stages and milestones throughout his life.”

147. The Crown also tendered a report from a consultant Forensic Pharmacologist, Mr John Farrar, with regard to the effects of the provision of Viagra to Victim 4 between the ages of about 7 and until the age of about 12.

148. Mr Farrar indicated in his report that there were some reported side-effects from the taking of Viagra which may occur on visual function and potentially on hearing. The research relating to these side-effects indicates that they are real. Any long-term effects on vision and hearing following the administration of Viagra to such a young person would only be able to be assessed by a medical examination. In the absence of any such medical examination, I put to one side the possibility of detrimental physical effects from the provision of Viagra upon Victim 4 as a circumstance of aggravation. The provision of Viagra was, however, an important contextual circumstance in the commission of the offences which I have found established.

149. A written victim impact statement from Victim 1 was also tendered in the Crown sentence bundle. Like her brother, Victim 1 also read her statement in open court, at least in part. What she actually said in court has been recorded in the transcript of 15 June 2018. She described that she should have been nurtured, loved and protected by her grandparents but instead she had been manipulated. She described having lost her childhood and expressed a concern at the effect on her adulthood because of a fear that she probably may never have a proper family or relationship because of her perceived and diagnosed mental illnesses. She said that she suffers mentally every day. She said that she could not explain the gravity of the abuse which she had suffered. She felt that the abuse was worse than murder because she would rather be dead than have to live as she does all the time. She said that is the mind-frame that she has held for a long time.

150. A psychological impact report from Ms Christina Perez was tendered by the Crown (tab 9 in the sentencing bundle). Ms Perez details the significant adverse effect upon Victim 1 as a consequence of the sexual assaults which had occurred over such a prolonged period of time. In the opinion of Ms Perez, the traumatic incidents which have been endured have resulted in significant impairment to Victim 1’s psychological, social, emotional and academic functioning. Ms Perez formed the view that there would continue to be ongoing difficulties, which would require long-term psychological treatment and persistence.

151. Ms Perez said that there were serious indicators on the trauma-symptom inventory. She set out the detail of these in her report. They included potential difficulties in future relationships, as well as significant breakdown of current family relationships, chronic emotional numbing, suicidal ideation and significant additional adverse effects which are ongoing. The clinical psychologist further expressed the opinion that Victim 1 met the DSM-5 criteria for post-traumatic stress disorder, for depression and also for panic disorder. She opined that Victim 1 continues to experience these conditions in an ongoing and debilitating way.

152. The report of Mr John Farrar, the consultant Forensic Pharmacologist to whom I have made reference earlier, also deals with the effect and potential side-effects of the ingestion of Endone, which is a proprietary name for the drug Oxycodone. Oxycodone is a semi-synthetic opioid with a relatively short half-life. That would render it unlikely, given intermittent use, to cause opioid withdrawal symptoms. Any possible side-effects such as constipation, nausea and vomiting would not be expected to persist chronically. In the absence of any evidence of such particular symptoms in Victim 1, the opinions expressed by the forensic pharmacologist do not, in my view, advance any aggravating features of the offences. The supply of Endone itself is an offence for which the offender is to be sentenced and its provision in the circumstances of the sexual assaults which occurred forms part of the contextual background to those offences.

153. A report from Dr Pip Gale was also included in the Crown tender bundle (tab 10). Dr Gale is an obstetrician and gynaecologist who undertook an examination and review of Victim 1. I do not set out the full detail of her findings in these remarks. It suffices to say that what Dr Gale described as “significant gynaecological morbidity” has been occasioned by what she described as “significant vaginal trauma” which had been received from a very young age. Dr Gale described the historical necessity of pain relief on a daily basis at various stages. The physical effects of the childhood sexual abuse have resulted in three identified issues: chronic pelvic pain, likely endometriosis and dyspareunia. Victim 1 will need ongoing multi-disciplinary care and specific gynaecological care, as well as likely laparoscopic surgery.

SUBJECTIVE CASE FOR OFFENDER

154. I turn now to the subjective case for the offender. The offender was not called to give evidence in the course of the sentencing proceedings. He did, however, give evidence in the course of the trial. That may be located at trial transcript 546 and following. Whilst the offender gave evidence regarding the facts in issue at trial he effectively gave no evidence of any detail himself about his subjective background. Some evidence had been adduced during the trial from his younger brother and also from his first wife touching upon some subjective features relating to him. I have touched on the offender’s general subjective background and history earlier in these remarks.

155. A psychiatric report from Dr Jeremy O’Dea dated 6 June 2018 was tendered in his case on sentence. That report sets out further detail of the account provided by the offender himself about his family of origin. His parents had separated when he was in his teens and he thereafter commenced employment in the steelworks at 16 years of age. He worked at a variety of mines on the east coast of Australia. He worked for BHP for some 15 years after the mines, before suffering a back injury. He apparently ceased work at about 50 years of age before moving down the South Coast with his second wife. He denied ever taking illicit drugs and continued to deny ever supplying drugs of any form to any of his grandchildren.

156. The offender discussed his past criminal history with the psychiatrist. The document setting out the detail of that history is at tab 3 in the Crown sentence bundle, although I note that some aspects of what were discussed with the psychiatrist extend beyond what is in tab 3.

157. At 16 years of age in 1963 he had been charged with stealing and placed on probation in the Wollongong Children’s Court. The following year he was again charged with two offences of stealing in respect of which he was fined. In 1965 he was sent to gaol for one month for an offence of driving an unregistered and uninsured motor vehicle whilst disqualified. He was also convicted in the Wollongong Children’s Court for an offence of “carnal knowledge”. He was charged in September 1965 with that offence which I infer, given that it is recorded as being dealt with in the Children’s Court, had taken place before his eighteenth birthday. He was placed on probation with respect to that conviction. I note the account given by the offender to Dr O’Dea asserts that he did not even know the girl but was charged by police because he “was handy” and although he eventually pleaded guilty he told Dr O’Dea “I know nothing about it.”

158. On the same day as that conviction was recorded in February 1966 the offender was also sentenced to one month’s imprisonment with respect to offences of stealing and possession of housebreaking implements. In 1968 he was placed on a three-year bond following a conviction of breaking and entering with intent which was dealt with in Wollongong Quarter Sessions, which, of course, was the predecessor to the District Court. The psychiatric report also reports a further charge of carnal knowledge with a girl under the age of 16 years in September 1971 with respect to which the offender was said to have been acquitted.

159. The offender told the psychiatrist that most of the offences alleged against him in these present court proceedings “didn’t happen”. In specific reference to the offences committed against Victim 1 he told the psychiatrist “one person forced me to do something I didn’t want to do.” The offender made allegations to the psychiatrist regarding the conduct of his own son, the father of Victim 2 and Victim 3. I do not repeat those in giving these remarks.

160. With respect to the specific allegation raised by Victim 5 when she was 6 years of age of “kissing her on the privates”, he claimed that he had simply “tried to blow bubbles on her stomach”.

161. He claimed to the psychiatrist that he had in fact engaged in penile/vaginal intercourse with Victim 1 only “two or three separate times”. He continued to maintain, as he did in the trial, that “Bob” and the other persons that I have found were fictitious, namely “Lyn” and “Toey”, were in fact real people. He claimed that all of the allegations against him had been raised because he had cut various members of the family out of his will and last testament.

162. Dr O’Dea set out a recounting of what was described as the offender’s psychosexual history and expressed the opinion that the offender was “somewhat vague, contradictory and eluding in his denial of the index sex offences with apparently self-serving explanations displaying limited empathy for the victims of the index sex offences.” He was not, according to the psychiatrist, suffering from a major psychiatric illness and there were no significant cognitive deficits that would account for his behaviour in relation to the offences.

163. Dr O’Dea concluded that the circumstances which he set out pointed to “a specific and strong, if not exclusive, paedophilic component” to the offender’s sexuality. His opinion was that this satisfied the psychiatric diagnostic criteria for at least a paedophilic disorder. The psychiatrist further expressed the opinion that the offender’s conduct was “likely to be best understood as driven by his sexual drive and deviance.” Dr O’Dea also expressed the opinion that the nature of the offender’s conduct, “including apparent coercive and deceptive components to his behaviour, the filming of his behaviour, his apparent lack of insight and acknowledgment regarding at least central components of the filming of the sexual activity with his step-granddaughter and step-grandson and his apparent lack of remorse and contrition would point to a significant vulnerability to his personality with at least antisocial and psychopathic traits that may reach the threshold for a diagnosis of a personality disorder.”

164. However, despite that finding Dr O’Dea said that he “could not conceptualise a direct causal link between the offender’s personality and the commission of the index sex offences”. He further expressed the opinion that the nature and extent of the sex offending and the likely paedophilic component point to the offender “having an increased and significant risk of reoffending against children”.

165. Dr O’Dea opined that such risk should be the focus of specific treatment and risk management. Dr O’Dea concluded that consideration should be given to the judicious use of testosterone-lowering or anti‑libidinous medication. He felt that from a psychiatric perspective the type of treatment program which he described as being required would be most appropriately and effectively organised and implemented in the community.

“…while the age of a person standing for sentence needs to be taken into account, as do any other circumstances such as the classification of the offender, or illness, that may make imprisonment more onerous, lest a punishment be imposed that is out of proportion to the objective and subjective criminality involved, this cannot give rise to an expectation that the elderly can offend with relative impunity.”

207. Similarly, in PH v The Queen [2009] NSWCCA 161 at [24] Howie J, with respect to an offender who was in his early seventies at the time of sentence said:

“Old age does not necessarily result in substantial leniency being granted to an offender who has committed serious offences, particularly where the offences were committed relatively recent to the time of sentencing. More consideration can be given to the advanced age of an offender where there has been a delay in the sentencing especially where that delay has resulted in a deterioration of the offender’s physical or mental health. The court takes into account the offender’s age in assessing whether imprisonment would bear more heavily upon the offender because his age may mean that he will have little prospect of ever walking from the gaol free or having any worthwhile life left after the sentence is served”

208. I note that in PH there had been more than 30 years of non‑offending after the commission of the crimes and before the matters were brought to the attention of the authorities. Such a factor is absent in the present case.

209. Counsel for the offender, as I have already indicated, put a submission to the effect that any sentence imposed ought not be crushing. It is important to note that not only is there no expectation that the elderly can offend with relative impunity, public confidence in the administration of justice also requires the Court to avoid any suggestion or impression that there is some kind of a discount for multiple offending, see R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at 272 [112]; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164 [15].

210. The concept of a crushing sentence in the context of totality requires an assessment of all of the appropriate principles concerning accumulation, concurrency and totality. In this regard the remarks of Johnson J in Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at 132 [215] are apposite. I have kept the articulated principles in mind in determining an appropriate sentence.

211. I have ultimately come to the view that the culmination of multiple victims and multiple offences extending over a number of years warrants the imposition of an aggregate sentence. Such an approach to the task of sentencing requires the specification of an indicative sentence for each of the separate charges and also the nomination of an indicative non-parole period for those offences to which a standard non-parole period is applicable.

212. In determining the appropriate aggregate sentence the principle of totality requires a sentencing court to review the total sentence and to consider whether the ultimate aggregate is a just and appropriate measure of the total criminality involved: see Postiglione v R [1997] HCA 26; (1997) 189 CLR 295. The correct approach has recently been restated in the Court of Criminal Appeal in ZA v R [2017] NSWCCA 132 at [74] (per Johnson and Fullerton JJ, Payne JA agreeing):

“The significance of an aggregate sentence reflecting “the total criminality comprised in the totality of offences” has been emphasised recently by the High Court. As Gageler, Nettle and Gordon JJ observed in Nguyen v The Queen ([2016] HCA 17; (2016) 256 CLR 656**) at 677 [64]:

“Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.” ”

(**Full citation inserted)

213. As part of the instinctive synthesis which I am required to undertake, in addition to the objective and subjective features to which I have already made reference the Court may properly have regard to the range of sentences imposed in other cases by reference to the statistical records of the Judicial Commission and appropriate comparative or comparable cases. These operate to give guidance in a general way to an appropriate range. It needs to be borne in mind, as this jurisdiction is constantly reminded, appropriately, by the New South Wales Court of Criminal Appeal, that the use of statistics is a “blunt instrument”. Comparable cases in many circumstances are found on close analysis to be not accurately so described.

214. However they often provide a touchstone of comparison depending on the variability of factors relevant to the sentence to be imposed. It is an unfortunate reflection upon the standards of a civilised society that so many cases can readily be located which involve the abuse of trust by a grandfather or a father of young children who should be entitled to feel safe and protected within such a relationship. Regrettably, and singularly unfortunately, not all of the cases in this area reflect the abuse of young children by those of the masculine gender. Some of the cases indicate abhorrent criminal conduct even by mothers.

215. R v Rapley [1999] NSWCCA 302 was a Crown appeal against the manifest inadequacy of sentences which were deferred subject to the offender entering into a good behaviour bond. The offender pleaded guilty to five charges involving the sexual abuse of his grand-daughter who was under the age of 10. Two counts were of sexual intercourse carrying a maximum penalty of 20 years’ imprisonment. The offender was in his sixties at the time of the commission of the offences. In allowing a Crown appeal against the inadequacy of the sentence the Court of Criminal per Handley J (Grove and Hidden JJ agreeing) said that “offences of this nature will normally attract custodial sentences”. The Court substituted the good behaviour bond with an effective sentence of two years with an 18 month non-parole period. It is appropriate to observe that the approach of the community, the Parliament and the courts to offences of such a kind as described in Rapley have substantially strengthened in the intervening period.

216. In Hitchen v R [2010] NSWCCA 77 Garling DCJ of this court had imposed a total prison term of 24 years with an overall non-parole period of 18 years. The criminal sexual conduct alleged involved 12 separate occasions of sexual intercourse with a child under 10 as well as numerous incidents of acts of indecency. Photographs and video recordings had also been made. The conduct had taken place over a period of about 3 years. The challenge to the sentences imposed rested upon a proper application of the totality principle. Howie J, with whom McLellan CJ at CL and Rothman J agreed, said at [27]:

“As bad as the offending was it was a chapter of the applicant’s life over three years after 41 years of crime-free existence within the community.”

217. Howie J found that the sentencing judge had fallen into error in making the sentences for the last three offences cumulative, one on another.

218. The sentencing judge appeared not to have given credit for the plea of guilty and one of the sentences on its face, did not indicate the application of the 25% discount. A starting sentence of 32 years before the application of the discount, was found in that case to be manifestly excessive. A further factor, placed before the court by updated or fresh evidence in the Court of Criminal Appeal, related to the offender’s then current custodial situation. This was established to be more onerous than it had been at the time of sentence and was, accordingly, taken into account in the re-sentencing.

219. The Court of Criminal Appeal found the appropriate starting sentence, before the discount, to be 24 years. The ultimate result was a head sentence of 18 years, with a non-parole period of 14 years after taking into account the 25% discount.

220. In JL v R [2014] NSWCCA 130 the Court of Criminal Appeal (per McCallum J; Hoeben CJ at CL and Harrison J agreeing), dismissed an appeal against the severity of sentence with respect to 21 sexual offences committed by that offender against his daughter.

221. The offending took place over a period of about 4 years when the victim was between 7 and 11 years of age. There were two counts of aggravated sexual intercourse under the age of 10 and under authority, which carried a maximum penalty of imprisonment for life. Other offences carried a maximum penalty of 25 years. There were also a series of pornography charges derived from photographs and video footage taken of the victim. A starting point of 24 years for the aggregate sentence before an allowance of 25% for the plea of guilty, was held not to be excessive.

222. In BR v R [2015] NSWCCA 255 an aggregate sentence of 23 years, with a non-parole period of 17 years, was the subject of an appeal against severity. 25 offences were the subject of sentence, with a further 16 offences taken into account pursuant to a Form 1. 5 victims were involved, who were between the ages of 5 and 12 years of age. The offences occurred over a 7-month period. Activity which had been filmed was recovered on a USB stick. The offender had been in a position where he had been able to collect or look after the children or the grandchildren of a variety of his associates.

223. An allowance of 25% discount for the pleas of guilty indicated a notional starting point of approximately 30 years and eight months. The Court of Criminal Appeal, per Simpson J, with Bathurst CJ and RA Hulme J agreeing, dismissed the appeal against severity.

224. In Bravo v R [2015] NSWCCA 302 the offender was sentenced with respect to 14 offences over a 3-year period with his step-daughter, between the ages of 9 and 11, to an aggregate term of imprisonment of 22 years, with a non-parole period of 16 years. That sentence, by her Honour Judge English in the District Court, was the subject of an appeal against severity. The offender had been convicted following trial and had shown no remorse.

225. The Court of Criminal Appeal, per RA Hulme J, (Beazley P and Johnson J agreeing), found error with respect to her Honour’s finding that two of the indicative sentences equated to the maximum penalty and that there was what was described as “Muldrock error”, in relation to another count. The Court of Criminal Appeal however, despite substantially varying a number of the indicative sentences, was not persuaded that any aggregate sentence should be imposed less than that which had been imposed at first instance.

226. In Franklin v R [2016] NSWCCA 319, the Court of Criminal Appeal upheld an appeal against the severity of sentence with regard to an aggregate sentence of 27 years with a non-parole period of 18 years for 18 indecent and sexual assaults committed by the applicant over approximately a 6 year period. The victim was the niece of the offender and was aged between 7 and 13 years. Each sentence was reduced by 25% pursuant to a plea of guilty. There were additional offences on a Form 1. The sentencing judge, Robison DCJ, had found special circumstances and had, accordingly, varied the statutory ratio between the non-parole period and the head sentence. Notwithstanding that an appeal did not lie specifically with respect to the indicative sentences, the Court of Criminal Appeal identified some particular errors in the application of principle. They ultimately expressed a view of the appropriate indicative sentences which was substantially different with respect to some of them compared to the position indicated by the sentencing judge.

227. As contrasted with the judge at first instance who had commenced with a notional starting point of 36 years, the Court of Criminal Appeal (per R A Hulme, McFarlane and Bellew JJ agreeing) commenced from a notional starting point of 32 years. The Court found that that there was no need for rehabilitation beyond the period which would arise from the statutory ratio for a non-parole period and accordingly, after allowing a 25% discount for the pleas of guilty, passed a sentence of 24 years with a non‑parole period of 18 years. It would be self-evident that the minimum term assessed in the Court of Criminal Appeal was the same as that which had been passed by the judge at first instance.

228. In Mills v R [2017] NSWCCA 87, a sentence had been imposed at first instance by Syme DCJ of 16 and 1/2 years with a non-parole period of 12 years 4 months with regard to persistent sexual abuse of a child over a period of 3 years. The maximum penalty for the particular offence was 25 years (s 66EA(1) Crimes Act 1900). An undiscounted starting point of 22 years was considered by Leeming JA to be commensurate only with an offence in the “worst category” of case. His Honour found “that is not this case”.

229. RA Hulme J described the offending over the three year period when the victim was between the ages of 11 and 14. His Honour found no error in the description by the sentencing judge of the objective seriousness being assessed “at a high range for the offence charged”. RA Hulme J discussed the use of terminology such as mid‑range, high-range and worst case category and his Honour observed that there is “obviously an air of unreality about a debate in these terms”. His Honour’s observation was in the context of whether there was much difference between the top of mid-range or just within the next identified range.

230. Following a review of a number of comparative cases his Honour RA Hulme J came to a similar view as that which had been expressed by Leeming JA that the starting point adopted by the primary judge of 22 years against a maximum of 25 years was commensurate with an assessment that the case fell within “a worst category case”. His Honour came to the view: “As bad as it is the present case is not there, nor very close to it.” The Court concluded that while the case was above mid‑range it was not so serious as to warrant the maximum penalty or a penalty very close to it. The Court proceeded to re-sentence with a notional starting point at 18 years. Following a 25% discount for the plea of guilty a sentence of 13 years 6 months with a 10 year non-parole period was ordered. Beech-Jones J agreed with these orders.

231. In ZA v R [2017] NSWCCA 132, the experienced first instance judge, his Honour Judge Conlon SC, had imposed an aggregate sentence of 26 years with a non-parole period of 18 years. The offences arose principally with regard to sexual assaults perpetrated on the offender’s daughter over a period of approximately 18 months when the child was between 8 and 9 years of age. This was again a factual scenario in which a number of videos of the sexual activity had been recorded. A plea of guilty had been entered and a 25% discount was applied in the determination of sentence.

232. A challenge to the severity of sentence based upon a misconceived concept of the proper application of the totality principle was dismissed. The Court of Criminal Appeal found that while the aggregate sentence imposed was a very heavy one, the explanation for the imposition of the sentence was to be found in the gravity of the crimes involving the exploitation of the offender’s own daughter over an extended period of time and in different ways, in a manner that the sentencing judge found had caused her longstanding and likely permanent harm. I note the observations of Fullerton and Johnson JJ at [100], with which Payne JA agreed.

233. I have also perused the remarks on sentence of his Honour Judge Mahony SC of this Court in R v KW [2018] NSWDC 209, a decision of 3 August 2018. His Honour sentenced the offender, who in that matter was the mother of the 3 victims, with respect to 8 counts on an indictment with a further 18 offences included on a Form 1. The offences had taken place over a 3-year period when the offender was between 26 and 29 years of age. Her 3 children at the time of the commission of the offences involving them ranged between about 4 and about 9 years of age. Every variation of sexual intercourse was involved, including the use of sex toys. The conduct was filmed and subsequently published on the internet. Mahony DCJ sentenced that particular offender to an aggregate sentence of 25 years imprisonment after allowing a discount of 25% for pleas of guilty.

234. Whilst a simple numerical overview of the varying maximum sentences which apply to the 73 offences before me does not indicate any definitive conclusion regarding the level of criminality, it is not inappropriate to refer to them. The 73 counts include one which carries a maximum of life imprisonment; 29 which carry a maximum of 20 years imprisonment; 5 counts which carry a maximum of 15 years imprisonment; 3 which carry 14 years imprisonment; 1 which carries 12 years imprisonment; 25 which carry 10 years; and one count which carries a maximum of 7 years imprisonment. 49 offences carry standard non-parole periods ranging between 5 years and 15 years. As previously indicated, there are 5 victims. The offending conduct occurred over more than a decade. The overall criminality of the offender is properly described as abhorrent and heinous.

235. Consideration of the need for some level of concurrence in some of the otherwise appropriate individual sentences assumes a degree of importance in the present matter in circumstances where numerous offences arise either in parallel or as part of a sequence of events. Counts 70 to 77 relate to the possession of different items of child abuse material. However, all were contained in the one folder electronically and some of them were a thumbnail, that is, a still image, of the opening scene of the video recordings which themselves were the subject of separate charges. Similarly, multiple charges of inciting of both children at the time of simultaneous sexual acts gave rise to a multiplication of charges in some instances. I have taken into account the necessity for careful consideration of inappropriate accumulation notwithstanding the separate charges in these circumstances.

236. Whilst I am conscious of the need to assess the individual indicative sentences and that the requirement to assess where, within a spectrum of offending conduct, a particular offence falls with regard to a mid-range, I have expressed a view with respect to all offences in that regard, not merely those to which a standard non-parole period applies (see Muldrock v R at [27]-[30]; JL v R at [51]).

237. I propose to adopt the course indicated by RA Hulme J in Franklin v R and for the sake of convenience, yet brevity, have set out the indicative sentences together with an assessment of objective seriousness of each of the 73 counts in a table which will be annexed to this judgment.

238. The sentence which I am about to pass is intended to reflect the various principles which underpin the purposes of sentencing. They are set out in s 3A of the Crimes (Sentencing Procedure) Act. They are as follows:

The purposes for which a court may impose a sentence on an offender are as follows:

(a)   to ensure that the offender is adequately punished for the offence,

(b)   to prevent crime by deterring the offender and other persons from committing similar offences,

(c)   to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)   to make the offender accountable for his or her actions,

(f)   to denounce the conduct of the offender,

(g)   to recognise the harm done to the victim of the crime (in this case victims) and the community.

239. The sentence which I will shortly pass is, amongst other purposes, intended to act as general deterrence as well as a specific deterrent. It is intended to act as a general deterrent to others who might be disposed to act pursuant to such base motivations as were exhibited by this offender.

240. The psychological mutilation of young, developing minds occasioned by such conduct, which is often accompanied, as in this case, by a degree of physical injury, can lead to a very substantial, if not lifelong, impairment of such young persons. The deprecation of the community and of Parliament must be reflected in appropriate sentences.

241. It should, however, not be lost, in the need for appropriate general and special deterrence and the denunciation of such conduct, nor be forgotten or ignored that there is in most familial relationships in our community a reflection of the love and protection that children are entitled to expect and which they deserve. That expectation and the entitlement of the victims in the present matter to such love and affection was sadly absent at the hands of their grandfather.

242. Will you stand up, please, MM. You are convicted of the 73 counts in respect of which you have been found guilty. I impose an aggregate sentence of 32 years and I specify a non-parole period of 24 years. The sentence will commence on 19 June 2015, which was the date on which you went into custody. The non-parole period will therefore expire on 18 June 2039; the balance of term of 8 years will expire on 18 June 2047. You can sit down.

Mr Crown, are there any other orders?

FOX: There are a couple of matters, your Honour. I apologise if there’s any errors in that material. Our database is telling us, your Honour, that the non-parole periods, for instance, in relation to s 66C, did not come into effect until 2015. Your Honour, I’ll confirm that--

HIS HONOUR: Can I tell you that my understanding clearly is that pursuant to the saving and transitional provisions, they apply to offences that have not yet been sentenced and that that is so with respect to all offences after 2003. And in relation to - if I’m in error no doubt somebody will say something about it, I am not going to go back through the numbers, but the specific case that I referred to dealt with the - and it’s referred to in the bench‑book as well - and when one looks at the tables in various of the cases set out in the Court of Criminal Appeal, they set out the standard non-parole periods even though such periods were not in force at the time of the first sentence.

FOX: Your Honour, I’ll certainly check this again because the database we work off indicates that it’s from offence committed, so I’ll look into that. The case that I referred to, I will need to review that, but obviously the database that we’re working from may well not be accurate.

HIS HONOUR: I can make it clear that my assessment of where matters fall in the midrange, I have done by reference to all of the cases - all of the offences irrespective of whether there is a standard non-parole period.

ADJOURNED TO FRIDAY 28 SEPTEMBER 2018 FOR NOTICE OF MOTION

**********

Indictment Count	Reference in verdict judgment	Offence	Date of offence	Maximum penalty/ SNPP	Objective seriousness	Indicative sentence
Count 1	[379]-[403]	S 61M(2) Crimes Act 1900 (NSW)	25/1/2005 – 26/1/2007	Max. 10 years/ SNPP 8 years	Well below mid-range	12 months/ NPP 9 months
Count 2	[359]-[362], [403]	S 91H(2) Crimes Act 1900 (NSW)	15/3/2006 – 15/3/2008	Max. 10 years	Above mid- range	4 years
Count 3	[366]-[369], [403]	S 91G(1)(a) Crimes Act 1900 (NSW)	1/1/2008 – 31/1/2008	Max. 14 years/ SNPP 6 years	Well below mid-range	2 years/ NPP 18 months
Count 4	[366]-[369], [403]	S 91H(2) Crimes Act 1900 (NSW)	1/1/2008 – 31/1/2008	Max. 10 years	Below mid- range	2 years
Count 5	[335]-[355]	S 66A(2) Crimes Act 1900 (NSW)	1/1/2009 – 4/11/2009	Max. life imprison ment/ SNPP 15 years	Lower end of mid-range	16 years / NPP 12 years
Count 8	[404]-[406]	S 61M(1) Crimes Act 1900 (NSW)	11/8/2003 – 11/8/2005	Max. 7 years/ SNPP 5 years	Within a broad mid- range	4 years / NPP 3 years
Count 9	[180]-[192]	S 66C(2) Crimes Act 1900 (NSW)	1/1/2009 – 26/5/2009	Max. 20 years/ SNPP 9 years	Mid-range	8 years/ NPP 6 years
Count 10	[180]-[192]	S 66C(2) Crimes Act 1900 (NSW)	1/1/2009 – 26/5/2009	Max. 20 years/ SNPP 9 years	Mid-range	8 years/ NPP 6 years
Count 11	[180]-[192]	S 66C(2) Crimes Act 1900 (NSW)	1/1/2009 – 26/5/2009	Max. 20 years/ SNPP 9 years	Mid-range	8 years/ NPP 6 years
Count 12	[312]-[319]	S 61J(1) Crimes Act 1900 (NSW)	18/3/2008 – 19/3/2010	Max. 20 years/ SNPP 10 years	Mid-range	14 years/ NPP 10 years
Count 13	[320]-[321]	S 91G(1)(a) Crimes Act 1900 (NSW)	18/3/2008 – 19/3/2010	Max. 14 years/ SNPP 6 years	Mid-range	6 years/ NPP 4 years
Count 14	[322]-[326]	S 61O(1) Crimes Act 1900 (NSW)	18/3/2008 – 19/3/2010	Max. 5 years	Mid-range	2 years 6 months
Count 16	[329]	S 91H(2) Crimes Act 1900 (NSW)	18/3/2008 – 19/3/2010	Max. 10 years	Mid-range	3 years
Count 17	[330]-[333]	S 61M(2) Crimes Act 1900 (NSW)	18/3/2008 – 19/3/2009	Max. 10 years/ SNPP 8 years	Below mid- range	4 years/ NPP 3 years
Count 18	[407]-[416]	S 61J(1) Crimes Act 1900 (NSW)	28/5/2009 – 4/5/2010	Max. 20 years/ SNPP 10 years	Mid-range	14 years/ NPP 10 years
Count 19	[417]-[418]	S 61O(2A) Crimes Act 1900 (NSW)	28/5/2009 – 4/5/2010	Max. 10 years	Below mid- range	2 years 6 months
Count 20	[419]	S 91H(2) Crimes Act 1900 (NSW)	28/5/2009 – 4/5/2010	Max. 10 years	Slightly below mid-range	2 years 6 months
Count 21	[420]	S 91G(1)(a) Crimes Act 1900 (NSW)	28/5/2009 – 4/5/2010	Max. 14 years/ SNPP 6 years	Slightly below mid-range	4 years/ NPP 3 years
Count 22	[286]-[303]	S 61J(1) Crimes Act 1900 (NSW)	1/1/2011 – 19/3/2013	Max. 20 years/ SNPP 10 years	Mid-range	12 years/ NPP 9 years
Count 23	[304]-[305]	S 61J(1) Crimes Act 1900 (NSW)	1/1/2011 – 19/3/2013	Max. 20 years/ SNPP 10 years	Mid-range	14 years/ NPP 10 years
Count 24	[307]-[308]	S 91H(2) Crimes Act 1900 (NSW)	1/1/2011 – 19/3/2013	Max. 10 years	Lower end of mid-range	3 years
Count 26	[310]	S 61O(2A) Crimes Act 1900 (NSW)	1/1/2011 – 19/3/2013	Max. 10 years	Bottom of mid-range	2 years 6 months
Count 27	[311]	S 66EB(2) Crimes Act 1900 (NSW)	1/1/2011 – 19/3/2013	Max. 15 years/ SNPP 6 years	Within broad mid-range	6 years/ NPP 4 years 6 months
Count 28	[79]-[81]	S 61O(2A) Crimes Act 1900 (NSW)	17/9/2010 – 16/8/2012	Max. 10 years	Mid-range	3 years
Count 29	[82]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Mid-range	12 years/ NPP 9 years
Count 30	[83]-[84]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Mid-range	12 years/ NPP 9 years
Count 31	[85]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 32	[86]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 33	[87]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 34	[88]-[89]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 35	[90]-[92]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 36	[94]-[96]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	16 years/ NPP 12 years
Count 37	[94]-[96]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	16 years/ NPP 12 years
Count 38	[97]-[98]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Mid-range	12 years/ NPP 9 years
Count 39	[99]-[100]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Mid-range	12 years/ NPP 9 years
Count 40	[99]-[100]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Mid-range	12 years/ NPP 9 years
Count 41	[101]-[104]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	16 years/ NPP 12 years
Count 42	[101]-[104]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	16 years/ NPP 12 years
Count 43	[105]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	16 years/ NPP 12 years
Count 44	[105]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	16 years/ NPP 12 years
Count 45	[106]-[107]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Mid-range	12 years/ NPP 9 years
Count 46	[108]-[110]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years /NPP 13 years 6 months
Count 47	[108]-[110]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years/ NPP 13 years 6 months
Count 48	[111]-[113]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 49	[111]-[113]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 50	[114]-[117]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years/ NPP 13 years 6 months
Count 51	[114]-[117]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years/ NPP 13 years 6 months
Count 52	[118]-[119]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years/ NPP 13 years 6 months
Count 53	[118]-[119]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years/ NPP 13 years 6 months
Count 54	[121]-[122]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years/ NPP 13 years 6 months
Count 55	[121]-[122]	S 66C(2); S 80G Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Well above mid-range	18 years/ NPP 13 years 6 months
Count 56	[123]-[126]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 57	[127]-[128]	S 66C(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 20 years/ SNPP 9 years	Above mid- range	14 years/ NPP 10 years
Count 58	[129]-[132]	S 91H(2) Crimes Act 1900 (NSW)	17/9/2010 – 16/8/2012	Max. 10 years	Very substantially within mid- range	6 years
Count 59	[133]	S 91H(2) Crimes Act 1900 (NSW)	17/9/2010 – 16/8/2012	Max. 10 years	Very substantially within mid- range	6 years
Count 60	[134]-[137]	S 66EB(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 15 years/ SNPP 6 years	Above mid- range	9 years/ NPP 7 years
Count 61	[134]-[137]	S 66EB(2) Crimes Act 1900 (NSW)	11/8/2009 – 16/8/2012	Max. 15 years/ SNPP 6 years	Above mid- range	9 years/ NPP 7 years
Count 62	[203]-[213]	S 66C(4) Crimes Act 1900 (NSW)	27/9/2014	Max. 12 years/ SNPP 5 years	High end of spectrum approaching the worst category	10 years/ NPP 7 years 6 months
Count 63	[203]-[213]	S 61O(2A) Crimes Act 1900 (NSW)	27/9/2014	Max. 10 years	Mid-range	3 years
Count 64	[203]-[213]	S 91H(2) Crimes Act 1900 (NSW)	27/9/2014	Max. 10 years	Mid-range	4 years
Count 65	[219]-[223]	S 91G(2)(a) Crimes Act 1900 (NSW)	27/9/2014	Max. 10 years	Mid-range	4 years
Count 66	[232]-[236]	S 66C(4) Crimes Act 1900 (NSW)	1/1/2014 – 31/12/2014	Max. 12 years/ SNPP 5 years	Well within mid-range	9 years/ SNPP 7 years
Count 67	[237]-[239], [421]-[428]	S 66EB(3) Crimes Act 1900 (NSW)	1/1/2014 – 31/12/2014	Max. 10 years/ SNPP 5 years	Well within mid-range	4 years/ SNPP 3 years
Count 68	[240]-[251]	S 25(1) Drug Misuse and Trafficking Act 1985 (NSW)	18/8/2014 – 25/6/2015	Max. 15 years and/or 2000 penalty units	Substantially below mid- range	1 months
Count 69	[252]-[256]	S 25(1A) Drug Misuse and Trafficking Act 1985 (NSW)	18/8/2014 – 25/6/2015	Max. 15 years and/or 2000 penalty units	Substantially below mid- range	3 months
Count 70	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months
Count 71	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months
Count 72	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months
Count 73	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months
Count 74	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months
Count 75	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months
Count 76	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months
Count 77	[147]-[167]	S 91H(2) Crimes Act 1900 (NSW)	19/6/2015	Max. 10 years	Within broad mid-range	12 months

Decision last updated: 21 November 2019