NSWNSWCCA

AC v R

[2023] NSWCCA 133

Court of Criminal Appeal (NSW)|2023-05-19|Before: Bell CJ, Beech-Jones CJ, Adamson JA, Ierace J, Chen J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-05-19

Before

Bell CJ, Beech-Jones CJ, Adamson JA, Ierace J, Chen J

Catchwords

[2007] NSWCCA 51 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
[2009] HCA 41 Amos v Brisbane City Council (2018) 230 LGERA 51
[2018] QCA 11 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
[2011] NSWCA 396 Bridges v Bridges (1944) 45 SR (NSW) 164 Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524

Source

Original judgment source is linked above.

Catchwords

[2007] NSWCCA 51 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27[2009] HCA 41 Amos v Brisbane City Council (2018) 230 LGERA 51[2018] QCA 11 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485[2011] NSWCA 396 Bridges v Bridges (1944) 45 SR (NSW) 164 Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524[2000] FCA 316 Bropho v Western Australia (1990) 171 CLR[1990] HCA 24 Butler v Attorney-General (Vic) (1961) 106 CLR 268[1961] HCA 32 Cadbury Schweppes Pty Ltd v Amcor Ltd (No 3) [2008] FCA 1668 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232[2010] NSWCA 335 Chubb Insurance Company of Australia Limited v Moore (2013) 302 ALR 101[2013] NSWCA 212 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384[1997] HCA 2 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297[1981] HCA 26 Elsaj v R [2017] NSWCCA 124 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2007] HCA 22 Gett v Tabet (2009) 109 NSWLR 1[2009] NSWCA 76 GL v R [2022] NSWCCA 202 GSH v R

Judgment (20 paragraphs)

[1]

h 3 cl 6 Interpretation Act 1987 (NSW) s 33 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5) Cases Cited: AJB v The Queen (2007) 169 A Crim R 32; [2007] NSWCCA 51 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Amos v Brisbane City Council (2018) 230 LGERA 51; [2018] QCA 11 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Berryman v R [2017] NSWCCA 297 Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 Bole v Horton (1673) Vaugh 360 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396 Bridges v Bridges (1944) 45 SR (NSW) 164 Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316 Bropho v Western Australia (1990) 171 CLR; [1990] HCA 24 Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32 Cadbury Schweppes Pty Ltd v Amcor Ltd (No 3) [2008] FCA 1668 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 Chubb Insurance Company of Australia Limited v Moore (2013) 302 ALR 101; [2013] NSWCA 212 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Elsaj v R [2017] NSWCCA 124 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 GL v R [2022] NSWCCA 202 GSH v R; R v GSH [2009] NSWCCA 214 Hill v Zuda Pty Ltd (2022) 96 ALJR 540; [2022] HCA 21 In Re State of Norway's Application (No 2) [1990] 1 AC 723 Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 Kendirjian v Lepore [2015] NSWCA 132 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Klewer v Attorney-General (NSW) [2010] NSWCA 219 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 MPB v R [2013] NSWCCA 213 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 Park v R [2020] NSWCCA 90 Penn-Texas Corp v Murat Anstalt (No 2) [1964] 2 QB 647 PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Lane [2011] NSWSC 289 R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008 RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265 Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817 Texts Cited: B Chen, "Seriously Considering 'Seriously Considered Dicta': Precedent after Farah Constructions" (2021) 95 ALJ 186 J Stone, Precedent and Law: Dynamics of Common Law Growth (1985, Butterworths) M Harding and I Malkin, "The High Court of Australia's Obiter Dicta and Decision-Making in Lower Courts" (2012) 34 MULR 239 P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) R Cross and JW Harris, Precedent and English Law (4th ed, 1991, Clarendon Press, Oxford) Category: Principal judgment Parties: AC (Applicant) The Crown (Respondent) Representation: Counsel:

[2]

N Mikhaiel with T Kent (Applicant) E Wilkins SC (Respondent)

[3]

C Giudice (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/310835; 2019/323471; 2019/382839 Publication restriction: There is a statutory publication restriction in relation to the identity of the victims and the Applicant: see Children (Criminal Proceedings) Act 1987 (NSW) s 15A and Crimes Act 1900 (NSW) s 578A. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 27 November 2020 Before: Colefax SC DCJ File Number(s): 2019/310835; 2019/323471; 2019/382839

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] On 27 November 2020, AC (the Applicant) was sentenced in the District Court after entering pleas of guilty to nine offences involving historical child sexual abuse. These included six offences of indecent assault on a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW), which has since been repealed (the s 61M(2) offences). Relevantly for present purposes, all six of the s 61M(2) offences were committed before 1 January 2008. The Applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 7 years and 6 months. He sought leave to appeal against his sentence on two grounds of appeal: first, that the sentencing judge erred by sentencing him on the basis that the standard non-parole period for the s 61M(2) offences was 8 years rather than 5 years, and second, that the sentencing judge erred by finding, contrary to the evidence, that the Applicant had not expressed remorse. The first ground raised an issue of statutory construction involving several apparently competing provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), namely, whether the non-parole period applying to the s 61M(2) offences was 5 years (as contended by the Applicant) or 8 years (as contended by the Crown). At the time of the commission of the s 61M(2) offences, the standard non-parole period attaching to that offence was 5 years. On 1 January 2008, the standard non-parole period for offences against s 61M(2) was increased from 5 to 8 years. Clause 57 of Schedule 2 to the CSPA expressly provided that the increase in the statutory non-parole period was to have retrospective operation. On 31 August 2018, s 25AA of the CSPA came into force. That section relevantly provided: "25AA Sentencing for child sexual offences (1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. …" The amending Act which introduced s 25AA also repealed s 61M of the Crimes Act and replaced it with a reformulated offence, and inserted a new cl 91 to Schedule 2 of the CSPA, which provided: "91 Standard non-parole periods The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence against section 61M (1) or (2) of the Crimes Act 1900 committed before that amendment." Relevantly, the table referred to in cl 91 sets out the standard non-parole periods applying under the CSPA. Immediately before the 2018 amendments, that table provided that the standard non-parole period applying to s 61M(2) was 8 years. On 19 September 2022, after the filing of the Applicant's written submissions on appeal, the decision of GL v R [2022] NSWCCA 202 (GL) was delivered. In that case, a majority of the Court of Criminal Appeal (Garling and Hamill JJ) held that, in relevantly identical circumstances, the correct standard non-parole period for offences against s 61M(2) was 5 years: see [4]-[7], [110]. However, after proceeding to re-exercise the sentencing discretion, their Honours dismissed the appeal on the basis that no less severe sentence was warranted in law. In this appeal, the Crown contended that GL was wrongly decided and should not be followed. Because it was contended that the Court should decline to follow one of its previous decisions, a bench of five judges was convened to hear the appeal. The appeal raised three issues for determination: 1. whether the principles concerning departure from previous decisions outlined in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 (Gett) applied to the conclusion about the standard non-parole period in GL (the Gett issue); 2. whether the correct standard non-parole period applying to the s 61M(2) offences was 5 or 8 years (the statutory construction issue); and 3. whether the sentencing judge erred in finding that the Applicant had not expressed remorse (the remorse issue). The Court held (Bell CJ, Beech-Jones CJ at CL, Adamson JA, Ierace J, Chen J), allowing the appeal, quashing the sentence and resentencing the Applicant to an aggregate term of 7 years of imprisonment with a non-parole period of 5 years and 3 months: As to the Gett issue (Bell CJ, Adamson JA, Ierace J, Chen J; Beech-Jones CJ at CL assuming but not deciding) 1. The construction of s 25AA(2) adopted by Garling and Hamill JJ in GL should not be departed from unless it is plainly wrong and there are compelling reasons to depart from it: [53] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied. 1. Where questions of statutory construction are finely balanced, it may be difficult to conclude that a particular prior interpretation of a statutory provision is "plainly wrong". The departure by an intermediate appellate court from its own previous decision requires more than that a subsequent bench takes a different view of a particular piece of legislation than the earlier bench: [30] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). 2. In circumstances where views differ as to the approach to the identification of ratio decidendi and obiter dicta, it is undesirable to confine the operation of the Gett principles to an unduly narrow conception of what is strict ratio decidendi: [43] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817; Bole v Horton (1673) Vaugh 360; Penn-Texas Corp v Murat Anstalt (No 2) [1964] 2 QB 647; Re Norway's Application (No 2) [1990] 1 AC 723; Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316; Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817; Cadbury Schweppes Pty Ltd v Amcor Ltd (No 3) [2008] FCA 1668; Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008; Klewer v Attorney-General (NSW) [2010] NSWCA 219; Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9; Bridges v Bridges (1944) 45 SR (NSW) 164; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335; Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396; Kendirjian v Lepore [2015] NSWCA 132; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; [1993] HCA 15; Hill v Zuda Pty Ltd [2022] HCA 21, considered. 1. At least for the purposes of the Gett principles, the ratio decidendi of a previous decision should generally be taken to include a conclusion of the earlier court in resolving an issue which was fully argued and which was treated by the court as a necessary step in reaching its decision to uphold a ground of appeal, even if the appeal is dismissed by reason of the exercise of a consequential power, in the nature of a residual discretion, to dismiss an appeal notwithstanding the presence of error: [50] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). As to the statutory construction issue (Bell CJ, Adamson JA, Ierace J, Chen J; Beech-Jones CJ contra) Per Bell CJ, Adamson JA, Ierace J, Chen J: 1. To the extent that s 25AA(2) qualified the operation of cl 57, s 25AA(2) should prevail, as it was later in time and was extraordinarily clear in its language: [59]-[61] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19; Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 280; [1961] HCA 32, referred to. 1. There is no necessary inconsistency between s 25AA(2) and cl 91. Both sections serve different purposes. Although the inclusion of cl 91 in the CSPA may not have been strictly necessary in light of s 25AA(2), it serves to make plain that, although s 61M(1)-(2) have been repealed, the previous standard non-parole periods continue to apply in respect of offences committed between 2008 and 2018: [63]-[64] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). 2. Even if there were inconsistency between s 25AA(2) and cl 91, it should not be resolved in the way contended for by the Crown. Section 25AA is not said to be subject to, and is not necessarily more general than, cl 91. Although transitional provisions are important, one would not expect, absent extremely clear language, that a transitional provision would limit the scope or operation of a very clearly drafted substantive provision introduced at the same time as the transitional provision: [68]-[70] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). 3. This is not a case where any reliable guidance can be obtained from extrinsic materials to inform the question of interpretation before the Court: [76] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). 4. The decision in GL, insofar as it concerned the proper construction of the CSPA, was correctly decided. The correct standard non-parole period to be applied to the s 61M(2) offences was 5 years: [77] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J). Per Beech-Jones CJ at CL: 1. Section 25AA(2) was not intended to reduce the standard non-parole period for an indecent assault on a child by implicitly repealing a partially retrospective increase in that period (or by any other means): [114]. Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204; Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, considered. 1. Viewed in light of its context and extrinsic materials, the overall object or purpose of s 25AA was to remove or correct what was seen as erroneous sentencing practices of the courts but not to alter the statutory regime governing the imposition of sentences: [130]-[131]. R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129; AJB v The Queen (2007) 169 A Crim R 32; [2007] NSWCCA 51; MPB v The Queen [2013] NSWCCA 213; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, referred to. 1. Section 25AA and cl 91 operate on different subject matters. Section 25AA corrects what was considered to be errant sentencing practices of the courts in dealing with child sexual offences, while cl 91 is directed to preserving the existing standard non-parole periods for offences that were repealed in 2018 (including s 61M(2)): [133]. 2. The construction of s 25AA favoured by Garling and Hamill JJ in GL is "clearly wrong", and there are "compelling reasons" to depart from it. Those compelling reasons include that the principle has not been worked through in a series of cases; the NSW Director of Public Prosecutions was not a party in GL, and courts are likely to continue to impose sentences for offences against s 61M(2) of the Crimes Act committed between 2003 and 2008 for many years: [139]-[140]. Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, considered. As to the remorse issue (the Court) 1. While the evidence of remorse relied upon by the applicant was relatively slight, it was not correct for the sentencing judge to say that the applicant had "not expressed remorse". There was evidence that he accepted responsibility for his actions to some extent, and there was some acknowledgement of the detrimental impact of his actions on two of his victims: [88] (Bell CJ); [109] (Beech-Jones CJ at CL); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

[5]

JUDGMENT

BELL CJ: On 27 November 2020, AC (the Applicant) was sentenced in the District Court after entering pleas of guilty to eight offences involving historical child sexual abuse and one offence involving child abuse material. These offences were as follows:

six offences of indecent assault on a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (now repealed [1] );
two offences of indecent assault, contrary to s 61E(1) of the Crimes Act (now repealed [2] ); and
one offence of possessing child abuse material, contrary to s 91H of the Crimes Act.

Three further offences were admitted by the Applicant and taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA). These were two further offences of indecent assault of a child under 10 years of age and one offence of indecent assault (the Form 1 offences).
Apart from the offence of possessing child abuse material, the remaining eleven offences were committed between 1987 and 2007 and involved the sexual abuse of four young girls, who will be referred to as S, AB, DC and SC. S was the Applicant's step-niece; AB was the step-daughter of a friend of the Applicant; and DC and SC were the Applicant's nieces. The victims of the Applicant's offending were between 5 and 12 years of age at the time of the offending, and the Applicant was between 18 and 38 years of age.
For these offences, the Applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 7 years and 6 months. In accordance with s 53A(2)(b) of the CSPA, the sentencing judge noted the indicative sentences that he would have imposed for each of the principal offences, had separate sentences been imposed. The offences, the maximum penalty applicable to each, and the indicative sentence identified by the sentencing judge for each of those offences are set out in the following table. For clarity, the principal offences have been renumbered Counts 1-9 and the Form 1 offences have been renumbered Form 1(a)-(c). Count Charge Maximum penalty Indicative sentence 1 Indecent assault of a person, namely S, contrary to s 61E(1) of the Crimes Act 4 years' imprisonment 1 year, 10 months 2 Indecent assault of a person, namely S, contrary to s 61E(1) of the Crimes Act 4 years' imprisonment 2 years 3 Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 3 years NPP 2 years, 3 months 4 Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 4 years, 10 months NPP 3 years, 7 months Form 1(b) Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 5 Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 2 years, 7 months NPP 1 year, 11 months 6 Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 3 years, 4 months NPP 2 years, 6 months 7 Indecent assault of a child under the age of 10, namely SC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 4 years, 10 months NPP 3 years, 7 months Form 1(c) Indecent assault of a child under the age of 10, namely SC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 8 Indecent assault of a child under the age of 10, namely SC, contrary to s 61M(2) of the Crimes Act 10 years' imprisonment 5 years, 3 months NPP 3 years, 11 months Form 1(a) Aggravated indecent assault of a person, namely AB, contrary to s 61M(1) of the Crimes Act 7 years' imprisonment 9 Possessing child abuse material, contrary to s 91H(2) of the Crimes Act 10 years' imprisonment 1 year, 6 months

[6]

As is reflected in the table above, the Form 1(a) offence was taken into account in sentencing for Count 8; the Form 1(b) offence was taken into account in sentencing for Count 4; and the Form 1(c) offence was taken into account in sentencing for Count 7.
By Notice of Appeal filed on 1 August 2022, the Applicant seeks leave to appeal against his sentence. He relies on the following two grounds of appeal: 1. Ground 1: in sentencing for the offences under s 61M(2) of the Crimes Act, the sentencing judge erred by taking into account a standard non-parole period of 8 years. 2. Ground 2: the sentencing judge erred by finding, contrary to the evidence, that the Applicant had not expressed remorse.
The first ground of appeal raises the question of what standard non-parole period ought to have been applied in sentencing for the six offences against s 61M(2) of the Crimes Act. The Applicant was sentenced on the basis that the standard non-parole period attaching to the s 61M(2) offences was 8 years, however the Applicant contended on appeal that the relevant standard non-parole period was in fact 5 years. As will be seen, the answer to this question involves the construction of several apparently competing provisions of the CSPA (namely, s 25AA and cll 57 and 91 of Sch 2).
On 19 September 2022, after the filing of the Applicant's written submissions on appeal, the decision of GL v R [2022] NSWCCA 202 (GL) was delivered by this Court. In that case, a majority of the Court (Garling and Hamill JJ) held that, in relevantly identical circumstances, the correct standard non-parole period for offences against s 61M(2) of the Crimes Act was 5 years: see [4]-[7], [110]. This conclusion would support the Applicant's position on the first ground of appeal.
The Crown, however, contended that GL was wrongly decided and should not be followed. It may be noted that GL was prosecuted by the Commonwealth Director of Public Prosecutions, and the New South Wales Director of Public Prosecutions (who appears for the respondent in this case) was not a party to that appeal. Because the Crown contended that this Court should decline to follow one of its previous decisions, a bench of five judges was convened to hear this appeal on 19 May 2023.
As the application for leave to appeal was filed out of time, leave is required pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The Applicant also requires leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). Leave should be granted and, for the reasons that follow, the appeal should be allowed.

[7]

Factual background

The Applicant was sentenced on the basis of an agreed statement of facts. The facts of the offending were set out in some detail in the remarks of the sentencing judge, and only a brief summary is necessary for present purposes: 1. Count 1: in 1987 or 1988, the Applicant, who was then 18 or 19 years of age, was at his parent's home with his 6 year old step-niece, S. When S was using the toilet, the Applicant walked in and wiped her vagina with toilet paper, before rubbing her vagina with his bare fingers for several seconds. 2. Count 2: on another occasion in 1987 or 1988, again at the Applicant's parents' home, the Applicant took S by the hand, led her into his bedroom and closed the door. He took off her pants, asked her to lie on the bed and laid on top of her such that she could feel his penis through his clothing. He kissed her on the mouth for about three minutes, then got off her and touched her vagina with his bare finger for a short time. She then told him to stop, which he did, and she ran to the door and left the room. 3. Form 1(a): in 1992, when he was 24 or 25 years old, the Applicant was at the house of a friend who was the stepfather of AB. AB, who was 11 or 12 years old, was doing the dishes when the Applicant approached from behind to hug her, pressing his groin against her buttocks so that she could feel his erect penis through their clothing. 4. Form 1(b): in 2005, when the Applicant was 36 or 37 years old, he shared an apartment with his brother, who was the father of DC and SC. On one occasion, DC, who was 5 or 6 years old, was visiting her father at the apartment and the Applicant was present. DC was lying on her side on the floor when the Applicant lay on the floor beside her and pressed his penis into her back for a short period of time. 5. Count 3: in 2006, the Applicant (who was 37 or 38 years old) and DC (who was 7 years old) were both at the house of the Applicant's parents, who were DC's grandparents. They were both in the same bed when the Applicant pulled down DC's pyjama pants, pulled down his own pyjama pants, and the Applicant "felt a drop of substance fall onto her thigh". DC said "you peed on me", after which the Applicant pulled up his pants and DC left the bed. There was no agreement in the statement of facts about the nature of the substance, and the sentencing judge did not make any finding about what it was. 6. Count 4: in 2006 or 2007, DC and SC were visiting their father, who lived with the Applicant. When DC and SC were sitting on a lounge, the Applicant took DC's hand and wrapped her fingers around his erect penis. DC could feel his pubic hair and quickly pulled her hand away but felt "something sticky". There was no agreement about what the substance was, nor about whether SC was aware of what the Applicant was doing. At the time of this incident, DC was 8 years old and the Applicant was 38 years old. 7. Count 5: in 2007, the Applicant's brother was driving DC and SC to visit their grandparents, and the Applicant was in the back seat of a car with DC and SC. The Applicant rubbed DC's vagina in a circular motion for a number of seconds. At the time, DC was 8 years old and the Applicant was 38 years old. Although not specified in the statement of facts, it was accepted by the parties that the rubbing was over DC's clothing. 8. Count 6: in 2006 or 2007, while DC's father was out of the house, DC came into the Applicant's bedroom. The Applicant then rubbed his hands up and down the back of DC's legs, pulled her onto the bed, and rubbed the outside of her vagina with his hand under her clothing while kissing her face. This offending ended because the Applicant's brother returned. At the time, DC was 7 or 8 years old and the Applicant was 37 or 38 years old. 9. Count 7: in 2006 or 2007, SC was sleeping in the Applicant's bed when the Applicant entered the bedroom and locked the door, then lay down next to her and placed her hands on his penis. At the time, SC was 6 or 7 years old and the Applicant was 37 or 38 years old. 10. Form 1(c): in 2006 or 2007, the Applicant was in the pool at his home with SC when he held her and rubbed his finger over her vagina on the outside of her swimming costume. SC was 6 or 7 years old and the Applicant was 37 or 38 years old. 11. Count 8: in 2007, during a birthday party for the Applicant's older brother, SC asked another guest at the party to take her to the toilet. The Applicant overheard SC and said that he would take her instead. He took SC to the bathroom, closed the door, pulled down her pants and rubbed her vagina with his hand before she used the toilet. A short time later, the Applicant left the bathroom. At the time, SC was 6 years old and the Applicant was 38 years old. 12. Count 9: in 2019, when the Applicant was arrested, child abuse material was found on his mobile phone. This material consisted of four images of prepubescent children performing oral sex on an adult male, and 144 images of prepubescent children either fully naked, partially naked or in suggestive poses.

[8]

Ground 1

The sole issue raised by Ground 1 is whether the standard non-parole period attaching to the six principal offences against s 61M(2) is 5 or 8 years. Relevantly, each of those six offences was committed before 1 January 2008.
At the time of the commission of the six s 61M(2) offences, the standard non-parole period attaching to that offence was 5 years. On 1 January 2008, the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) (2007 Amendment Act) came into effect. That Act increased the standard non-parole period for offences against s 61M(2) from 5 to 8 years. [3] It also inserted cl 57 of Schedule 2 of the CSPA, which expressly provided that the increase in the statutory non-parole period was to have retrospective operation: [4] "57 Existing offences and proceedings The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to the determination of a sentence for an offence whenever committed, unless - (a) the court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendments." It was not in dispute that, at the time of those amendments, the increase to the standard non-parole period effected by the 2007 Amendment Act had retrospective operation: see GSH v R; R v GSH [2009] NSWCCA 214 at [46].
On 31 August 2018, prior to the Applicant's sentencing hearing, s 25AA of the CSPA came into force. That section, which was introduced by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) [5] (the 2018 Amendment Act), provided: "25AA Sentencing for child sexual offences (1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing. (3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts). (4) This section does not affect section 19. (5) In this section - child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years - (a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900, (b) an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act, (c) an offence of attempting to commit any offence referred to in paragraph (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c)." (emphasis added)

[9]

When will this Court depart from its own previous decisions?

The circumstances in which an intermediate appellate court should depart from one of its previous decisions were set out in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 (Gett). In that decision, after a comprehensive review of authorities, Allsop P, Beazley and Basten JJA held that an intermediate appellate court should not depart from its own previous decision(s) unless the court is satisfied that the previous decision was "plainly wrong" or "clearly wrong", and that there are compelling discretionary reasons not to follow it. At [294]-[295], their Honours said: "The phrases "plainly wrong" or "clearly wrong" can be understood to focus on at least one or more of the following attributes of a ruling: (a) the fact of error is immediately […] apparent from reading the relevant judgment; (b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred …, and (c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis. In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority." (emphasis added)
Their Honours went on to say, however, that the fact that an earlier decision is plainly wrong is "a necessary, but not sufficient, condition for departure from earlier authority": at [296]. Once it is established that the earlier decision was plainly wrong, the court must then turn to consider whether there is a "compelling reason" for the departure from the earlier authority: Gett at [301], citing RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265 at [104] per Nettle JA (as his Honour then was).
The principles laid down in Gett have since been applied on a number of occasions in the Court of Criminal Appeal: see eg Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [127]-[129]; Park v R [2020] NSWCCA 90 at [33]; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (Totaan) at [72]-[74].
It is not correct, as was put by the Crown in its written submissions, that this Court should decline to follow one of its previous decisions if that decision is plainly wrong or if there are compelling reasons to do so. Rather, it must be established that the previous decision is plainly wrong and that there are compelling reasons to depart from it: see Totaan at [72]. In the context of identifying reasons to depart from an earlier decision, I said in Totaan that: "[c]onsiderations that may bear upon an intermediate court's approach to departing both from its own earlier decisions … and those of courts at a similar level of the federal judicial hierarchy include whether the challenged decision(s) are closely reasoned, whether the principle for which the decision stands has been worked through in a series of cases, and whether the decision(s) challenged have been unanimously followed or whether there is some tension between decisions of courts of coordinate authority in relation to the challenged decision(s)."

[10]

What standard non-parole period should apply?

It is convenient first to deal with the submissions advanced by the Crown as to the non-parole period to be applied to the offences against s 61M(2), as it was the Crown which sought to persuade this Court to depart from its previous decision in GL.
First, the Crown made the submission that the words "the standard non-parole period … that applied at the time of the offence" in s 25AA(2) do not refer to the standard non-parole period that existed at the time of the offence, but rather that which "should be applied to an offence". (Both Hamill J and Garling J had used the term "existed" in expressing their understanding of the operation of s 25AA(2) in GL.) The Crown contended that, on this reading of s 25AA(2), there was no conflict or inconsistency between, on the one hand, s 25AA(2) of the CSPA, and on the other hand, cll 57 and 91 of Schedule 2.
This argument about the construction of s 25AA(2) should, in my view, be rejected. As Garling J pointed out in GL, "s 25AA uses two distinct and different phrases: 'at the time of sentencing' and 'at the time of the offence'". Indeed, it does so in both s 25AA(1) and (2). Moreover, s 25AA(2) draws an express contrast between those two concepts: it refers to the standard non-parole period "that applied at the time of the offence, not at the time of sentencing" (emphasis added). This language is emphatic, as is the use of the past tense "that applied".
On the Crown's proposed construction, it is unclear what s 25AA(2) would add to the CSPA; it would merely amount to a circular statement that that the non-parole period to be applied to an offence is the non-parole period to be applied to that offence.
The Crown's submission also does not sit comfortably with the plain words of s 25AA(2) and the phrase "at the time of the offence". The standard non-parole period at the time of the offence was 5 years and the fact that, in 2008, it was increased to 8 years with retrospective effect did not alter that fact. In this context, Garling and Hamill JJ were correct in their understanding that the phrase "applied at the time of the offence" in s 25AA(2) referred to the non-parole period that "existed" at that time.
It is correct, as the Crown observed, that the passage of s 25AA(2) in 2018 had a practical effect on the operation of cl 57 which is set out at [14] above, although that clause continued to operate. The only difference was that, whereas previously it operated to give retrospective effect to the new sentencing provisions introduced by the 2007 Amendment Act (unless the court had already convicted the person being sentenced of the offence, or a court had accepted a plea of guilty and the plea had not been withdrawn), a further qualification was introduced to its operation by s 25AA(2) in the case of standard non-parole periods for offences that took place prior to cl 57's introduction. This was not to create inconsistency; rather, to the extent that the newly introduced s 25AA(2) qualified the operation of cl 57, the more recent legislative provision will generally be taken to prevail: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [11.120].

[11]

Ground 2

The second ground of appeal was that the sentencing judge erred by finding, contrary to the evidence, that the Applicant had not expressed remorse.
In light of my conclusion on Ground 1, it is not strictly necessary to determine whether Ground 2 is made out. It is convenient, however, to consider Ground 2 as a matter of completeness and as it raises matters that will be relevant to resentence in any event.
In his remarks on sentence, the sentencing judge said: "As I have already indicated, you have not expressed remorse or a proper appreciation of the harm you have done to your victims. You have not expressed (directly or indirectly) any intention to undertake, or seek to undertake, any of the intensive programs available for offenders such as you in custody. Moreover, the Court has not been provided, either in this case or in any other case in which I have had to sentence a similar offender over the last 11 years, with any information as to the success rate - or otherwise - of those intensive courses. In the circumstances, my assessment of your prospects of rehabilitation is that they are, at best, guarded." (emphasis added)
The Applicant submitted that the sentencing judge was mistaken in holding that there was no evidence of remorse. In particular, reliance was placed on a recorded telephone call of 4 September 2019 between two of the victims and the applicant, which was summarised in the agreed statement of facts as follows: "[DC and SC] said they were trying to make amends with relatives after seeing a psychologist. They said they recalled when they were younger that the offender would touch them. The offender said that it sounded like a conversation that would be best face to face. The offender admitted touching the girls on the vagina. The offender said 'that's my fault, it's not yours. I love youse always have done always will'. The offender said he was not angry that they called. He said 'I can understand you girls need this aired out... I'm glad, I'm very happy youse have reached out to me. And I can only say sorry to youse both for what I did to youse ... if youse decide after this phone call that ... (ind) you don't want to talk to me ever again, I can understand that'. [DC] said that she recalled sitting in a car heading to Kempsey and the offender touching her vagina, and that once 'we almost like had sex'. The offender said that he recalled an incident in the swimming pool at Bradbury. He said 'we'd swim in that pool and then ... I'd end up touching one of you ... I'd be touching you in the vagina area'. The offender said 'I shouldn't have done that... I can only say sorry ... either way my actions wrecked more than one relationship'."

[12]

Resentencing

Error having been established, this Court must now proceed to resentence the Applicant in accordance with Kentwell (unless the Court is satisfied that no lesser sentence is warranted in law: Criminal Appeal Act, s 6(3)). The Court must, in exercising the sentencing discretion afresh, identify the factors relevant to the sentence, consider their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26] (Muldrock). In Muldrock at [27], it was emphasised that the sentencing Court must be "mindful of two legislative guideposts: the maximum sentence and the standard non-parole period" with the latter period requiring that "content be given to its specification as 'the non-parole period for an offence in the middle of the range of objective seriousness'" in accordance with s 54A(2) of the CSPA.
Neither at first instance nor on appeal was it submitted that any of the offences warranted a sentence other than one of full-time imprisonment.
As with the approach taken by the sentencing judge, this is a case where, in my view, it is appropriate to impose an aggregate sentence.
For the purposes of the resentence, neither party sought to dispute the findings of objective seriousness made by the sentencing judge in his remarks on sentence. I adopt those findings, although noting that references to a 'range' of objective seriousness are not to be understood as a mathematical exercise in evaluating criminality. Those findings were as follows: 1. Count 1 was in the mid-range of objective seriousness, and was additionally aggravated because it occurred in the home of the victim's grandparents and was a violation of trust. 2. Count 2 was slightly above the middle of the range of objective seriousness, and was additionally aggravated because it occurred in the home of the victim's grandparents and was a violation of trust. 3. Count 3 was somewhere approximately equidistant between the middle and bottom of the range, and was additionally aggravated because it occurred in the home of the victim's grandparents and was a violation of trust. 4. Count 4 was above the middle of the range of objective seriousness, and was additionally aggravated because it occurred in the victim's father's home and was a violation of trust. 5. Count 5 was slightly below the middle of the range of objective seriousness, and was additionally aggravated because it was a violation of trust. 6. Count 6 was in the mid-range of objective seriousness, and was additionally aggravated because it occurred in the victim's father's home and was a violation of trust. 7. Count 7 was slightly above the middle of the range of objective seriousness, and was additionally aggravated because it occurred in the victim's father's home and was a violation of trust. 8. Count 8 was above the middle of the range of objective seriousness, and was additionally aggravated because it occurred in the victim's father's home and was a violation of trust. 9. Count 9 was somewhere equidistant between the middle and the bottom of the range of objective seriousness.

[13]

For completeness, I note that s 54B(5) of the CSPA requires that I give reasons why the indicative non-parole periods for Counts 3-8 differ from the applicable standard non-parole period of 5 years. Those indicative non-parole periods are shorter than 5 years for a number of reasons including that the Applicant entered early guilty pleas; he has expressed some remorse for his offending; he has made efforts to seek assistance to address his sexual disorder while in custody; and Counts 3 and 5 were below the mid-range of objective seriousness.
Finally, counsel for the Applicant contended on appeal that the Court should reconsider the ratio between the Applicant's head sentence and non-parole period. In light of the restrictions contained in ss 44(2) and 44(2B) of the CSPA, that ratio could only be varied in a manner favourable to the Applicant if this Court were to make a finding of special circumstances. There are, in my view, no circumstances in the present case that would justify such a finding.

[14]

Aggregate sentence

On resentence, I would impose an aggregate sentence of 7 years of imprisonment, with a non-parole period of 5 years and 3 months, to date from 4 October 2019. The Applicant's term of imprisonment will expire on 3 October 2026 and he will be eligible for parole on 4 January 2025.
BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of the Chief Justice in draft. I agree that ground 2 of the notice of appeal must be upheld for the reasons his Honour gives. Even so, it is necessary to address ground 1 as the answer to the question of principle it raises is material to the resentencing exercise.

[15]

Ground 1: Standard non-parole period of five years or eight years?

Ground 1 of the notice of appeal contends that in sentencing for the offences under s 61M(2) of the Crimes Act 1900 (NSW), the sentencing judge erred by taking into account a standard non-parole of eight years.
It was common ground that all of the offences against (former) s 61M(2) of the Crimes Act were committed sometime after 1 January 2005 and before 1 January 2008. During the period from 1 January 2003 to 1 January 2008, the standard non-parole period found in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Table" and the "Sentencing Act" respectively) for offences under s 61M(2) was five years' imprisonment. Subject to certain exceptions, that was amended with retrospective effect from 1 January 2008. However, the applicant contends that the effect of s 25AA(2) of the Sentencing Act as it applied at the time he was sentenced is that the standard non-parole period for the offences he committed against s 61M(2) was again five years' imprisonment and not eight years as was assumed by the sentencing judge. This was the conclusion of each of Garling J and Hamill J in GL v R [2022] NSWCCA 202 (at [5] to [6] and [97] to 112] respectively; "GL"). The Crown contends that s 25AA(2) did not have that effect and that Garling and Hamill JJ were wrong in GL to conclude otherwise.
The resolution of this issue turns upon the interaction of three provisions of the Sentencing Act that came into force at different times. The task of interpreting these provisions must "begin with a consideration of the text itself" although ascertaining the "meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy" (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]; "Alcan" per Hayne, Heydon, Crennan and Kiefel JJ; see also Interpretation Act 1987 (NSW), s 33). The consideration of the text of a statute does not involve only considering the text of the particular section relied on. It involves a consideration of the text of the statute as a whole (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 304 per Gibbs CJ and at 320 per Mason J).

[16]

Departure from GL

The applicant contended that the Crown's invitation to depart from the approach of Garling and Hamill JJ in GL engaged the principles applicable to a decision by this Court to depart from its own decisions. The relevant principles were distilled by Bell CJ in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [72] ("Totaan") as follows: "Th[e] principle is to the effect that, whilst intermediate appellate courts are not legally bound by their own earlier decisions, they should only depart from such authority or the authority of courts of co-ordinate jurisdiction within the national system if they are of the view that the decision in question is 'plainly wrong' and, such an error having been identified, there are "compelling reasons" to depart from the earlier decision or decisions. The fact that reasonable minds might differ on the interpretation of a statutory provision will generally be insufficient to warrant a conclusion that an earlier or existing interpretation of the provision or provisions in question was 'plainly wrong.'"
To the extent that the applicant's reliance on this passage assumes that a five‑member bench of this Court may only depart from an earlier decision of a three member bench of this Court in the circumstances postulated, then the applicant's assumption is correct (see Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212 at [102] to [103] per Emmett JA and Ball J). Totaan was such a case. However, the applicant's submissions also appeared to assume that the above passage from Totaan is applicable to the construction of s 25AA(2) favoured by Garling and Hamill JJ in GL. That assumption needs to be considered closely.
The current position appears to be that "a statement of principle that is not necessary to found the judgment or order of the Court, that is a statement which if not made or if decided differently, would not alter the outcome, is obiter" (Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316 at [150] per Finkelstein J cited in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 at [222] per Barrett J). Herzfeld and Prince formulate the principle as "[w]here a court decides a case in favour of one party, the orthodox view is that a conclusion of law against that party are strictly dicta" (at [34.80]). As noted, in GL, Garling and Hamill JJ, concluded that the effect of s 25AA(2) of the Sentencing Act is that any court sentencing an offender for an offence under s 61M(2) after s 25AA came into force must apply the standard non-parole period that existed at the time the offence was committed, which, prior to 1 January 2008, was five years. Brereton JA was doubtful of that conclusion (at [1]). However, all three judges dismissed the appeal. Each of Garling J and Hamill J concluded that, even though the sentence the subject of the appeal was affected by error, no lesser sentence was warranted and the appeal should be dismissed (at [8] and [125]; Criminal Appeal Act 1912 (NSW), s 6(3)). It follows that on a strict view of what constitutes the ratio of a judicial decision the approach to s 25AA(2) favoured by each of Garling J and Hamill J is not part of the ratio in GL as that approach was not necessary to found the orders of the Court dismissing the appeal. If the opposing construction had been adopted then it would not have affected the outcome.

[17]

Conclusion on ground 1

It follows that I would reject ground 1 of the notice of appeal. The applicant must be resentenced on the basis that the applicable standard non‑parole period for the offences he committed against former s 61M(2) of the Crimes Act was eight years imprisonment and not five years.

[18]

Resentencing

I agree with the findings and reasons of the Chief Justice in relation to re-sentencing save for what follows from an application of a standard non-parole period of eight years for the offences under s 61M(2). Hence in relation to counts 1,2 and 9 I agree with the sentences indicated by the Chief Justice. I also agree with the sentences indicated by the Chief Justice for counts 5 and 6. With count 3 I would indicate a sentence of 2 years and 8 months with a non-parole period of 2 years. With each of counts 4 and 7 I would indicate a sentence of 4 years and six months with a non-parole period of three years and four months. With count 8 I would indicate a sentence of 5 years imprisonment with a non-parole period of three years and 9 months.
I propose that the applicant be sentenced to eight years imprisonment with a non-parole period of six years.
ADAMSON JA: I agree with the Chief Justice.
IERACE J: I have had the considerable benefit of the reading the draft judgments of the Chief Justice and the Chief Judge at Common Law. I would uphold both grounds of appeal, for the reasons expressed by the Chief Justice.
I am also in agreement with the Chief Justice as to the proposed aggregate sentence.
CHEN J: I agree with the Chief Justice.

[19]

Endnotes

See Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), Sch 1, cl 7 (which came into effect on 1 December 2018).
See Crimes (Amendment) Act 1989 (NSW), Sch 1, cl 2 (which came into effect on 17 March 1991).
See 2007 Amendment Act, Sch 1, cl 10.
Ibid, Sch 1, cl 16.
Sch 3, cl 6.
Sch 1, cll 7-8.
Sch 3, cl 10.
See Crimes (Sentencing Procedure) Amendment Act 2022 (NSW), which came into force on 18 October 2022.
See Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 1, cl 9 (which came into effect on 1 January 2009).
Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 2.4, cl 5.
See 2007 Amendment Act, Sch 1, cl 10.
Cl 7 of Sch 1.
See Sch 1, cl 59 and Sch 3, cl 4 to the 2018 Amendment Act.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 (Second Reading, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW)); Interpretation Act 1987, s 34(2)(f).
Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, June 2017); "Royal Commission Report".
Royal Commission Report at 101, 322.
Royal Commissions Report at 313.

[20]

Amendments 14 June 2023 - Headnote: paragraph numbering changed from (4) to (1) onwards from "As to the Gett issue ..." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2023

AC v R

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