A 79-year-old man, who now has dementia, has been given a community-based jail sentence in Orange Local Court for a sexual act made against a teenage girl with a cognitive disability.
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The Central Western Daily has chosen not to name the elderly man, who was 77 at the time of the offences and had no diagnosed medical condition, in order to protect the identity of the victim, who was not related but was a close friend.
The offences the man was charged with included aggravated sexually touching another person on a day between January and April, 2021 and aggravated carry out sexual act without consent on March 19, 2021.
He was also charged with failing to appear in court on two occasions.
The man was initially convicted in his absence after failing to appear in court and was unsuccessful in having those convictions quashed, except for some sequences that were withdrawn by the prosecution.
The man appeared in court via an audio visual link from jail due to his bail having been revoked.
There's no evidence of what his mental state was at the time but it has declined since.
- Magistrate David Day
He was represented by solicitor Ian McGuiness who confirmed guilty pleas for each offence.
Mr McGuiness also conceded the sexual act crossed the custodial threshold.
However, he also described the offence as an "aberration".
"There is cognitive dementia noted by family and staff," Mr McGuiness said.
"I note that he is willing, having discussed with him this morning, to engage with an aged care assessment team."
Among the documents presented to the court was a psychiatric report that addressed the man's cognitive decline.
Mr McGuiness said although the reports don't show any remorse the man did enter an early guilty plea.
Magistrate David Day said if he sentenced the man to full-time jail he would still have access to health care.
However, he said the man only had one other matter on his criminal record, a matter from 1961 where he was fined five pounds for indecent language.
"There's an offence as a teenager and then nothing," Mr Day said.
"It may be that he was trying to provide assistance to the young person, thereafter he started to offend."
According to court documents, the victim was 17 years old at the time of the assault and has been diagnosed with a developmental disorder. She now requires full-time supervision
She met the man in 2020 while walking along a street in Orange and he gave her a lift home.
Despite their 60-year age difference they began to meet on a regular basis after that and the victim thought of him as a friend and visited his home numerous times, and stayed overnight twice.
He also spent hundreds of dollars on gifts for her and drove her around.
However, on an unknown date between January and April 2021, the man drove the girl to Blayney and stopped at a petrol station.
The girl saw some friends and when she went to walk towards them the man slapped her on the bottom.
The friends' parents told the girl's father what they had seen and the girl later told the police the man's action made her feel uncomfortable.
The other offence, which attracted a custodial sentence, took place at the man's house on March 19, 2021.
According to the court documents, the girl said she wasn't feeling well so lay on the man's bed and began to play with her phone. The man then lay down next to her and began masturbating in front of her.
She filmed part of their conversation and a video of him pulling up his pants, which was found on her phone by her siblings who told her father.
The man was arrested on April 9, 2021, and was initially granted bail but was arrested again at a later date after failing to appear in court.
Police prosecutor Sergeant Beau Riley said the custodial threshold was crossed when it came to the sexual act and suggested that the time the man had already spent in custody could be taken into account during sentencing.
"It appears upon reading all the documents, that supervision would be necessary," Sergeant Riley said.
Mr Day said although the man's dementia was evident by a couple of outbursts during the sentencing proceeding, there was no evidence to suggest he was affected by the disease two years ago when the offences took place.
"It's hard to say what his health looked like two years ago," Mr Day said.
"There's no evidence of what his mental state was at the time but it has declined since."
Due to the medical condition, Mr Day said the man demonstrated no insight but was considered to be of low to medium risk of reoffending and he is of no risk to the community.
"A custodial sentence will land heavy upon him," Mr Day said.
For carrying out the sexual act without consent on March 19, 2021, Mr Day gave the man a 12-month community-based jail sentence by way of an Intensive Correction Order.
The order will run from January this year and will require the man to participate in treatment programs as required.
For touching the teenager without consent in January 2021, Mr Day placed the man on a three-year Community Correction Order that will also require rehabilitation and treatment.
Mr Day also gave the man two, two-year supervised CCOs for failing to appear in court on previous occasions.
The man was to be released to live with supervision in a Central West town, away from Orange or Blayney.
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