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[2025] ACTSC 500
General information, not legal advice.
Supreme Court of the ACT
2025-11-14
Mossop J
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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Smith (a pseudonym) Citation: [2025] ACTSC 500 Hearing Date: 1 October 2025 Decision Date: 14 November 2025 Before: Mossop J Decision: See [49] Catchwords: STATUTORY INTERPRETATION – CRIMINAL OFFENCE PROVISIONS – Maximum penalty under s 56 of the Crimes Act 1900 (ACT) – latest instalment in history of construction of s 56 – where maximum penalty for pre-2018 offending defined by 1991 maximum penalty (which ranges from seven years to life imprisonment) – where 1991 maximum penalty defined by reference to whether “another offence” was committed during relationship – where offender pleaded guilty to one count of persistent sexual abuse – court must determine whether offender committed offences in addition to the conduct required to enliven s 56 STATUTORY INTERPRETATION – CRIMINAL OFFENCE PROVISIONS – Renumbering – where offence provision (and Part in which offence contained) renumbered – where it may be necessary to consider whether offender committed offences under previous versions of Crimes Act – whether renumbering means that offender did not commit an offence “under this Part” because the Part had been renumbered – where renumbering is routine in the ACT – offender did commit offences “under this Part” CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pleas – where prosecution submitted that, if the court determined a lesser maximum penalty applied, the court should reject offender’s guilty plea – where plea had been accepted by prosecution – no basis for the court to reject the plea identified Legislation Cited: Crimes Act 1900 (ACT), ss 55, 55A, 56, 92E, 92EA, Pt 3, Pt IIIA Crimes Legislation Amendment Act 2001 (ACT), s 43 Crimes Legislation Amendment Act 2013 (ACT) Crimes Legislation Amendment Act 2018 (ACT) Criminal Code (Qld) Legislation Act 2001 (ACT), Pt 11.3 Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) Cases Cited: DPP v Smith (a pseudonym) (No 2) [2025] ACTSC 501 KBT v The Queen (1997) 191 CLR 417 KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 R v GB (1998) 148 FLR 222 S v The Queen (1989) 168 CLR 266 Parties: Director of Public Prosecutions Jeremiah Smith (a pseudonym) (Offender) Representation: Counsel S McFarland (DPP) R El-Choufani (Offender) Solicitors ACT Director of Public Prosecutions Hugo Law Group (Offender) File Number: SCC 86 of 2025 MOSSOP J: Introduction
These reasons concern a sentence in relation to which I heard submissions on 1 October 2025. At that hearing, there was a dispute between the parties as to whether or not the maximum penalty applicable was, in the circumstances, seven years’ or 25 years’ imprisonment. That issue arose due to the operation of s 56(6) of the Crimes Act 1900 (ACT), and is one necessary to determine prior to determining the sentence itself.
The issue is not straightforward. The difficult history of this offence provision prior to its present incarnation as s 56 is described in KN v The Queen [2019] ACTCA 37; 14 ACTLR 289, and it is not necessary to repeat that history in full here.
This decision should be read with my substantive sentencing reasons (DPP v Smith (a pseudonym) (No 2) [2025] ACTSC 501), which contain findings of fact which are independent of the maximum penalty issue but upon which these reasons rely.
The statutory interpretation question
The offence under s 56 identifies a maximum penalty of 25 years’ imprisonment. The section contains a complicated regime for determining whether that maximum penalty applies to offences committed at earlier times. The provision (as in force at the time of the plea of guilty and the sentencing hearing) is relevantly as follows: 56 Persistent sexual abuse of child or young person under special care (1) A person commits an offence if the person— (a) is an adult; and (b) engages in a relationship with a child, or a young person under the special care of the adult, that involves more than 1 sexual act. Maximum penalty: imprisonment for 25 years. (2) For subsection (1) (b)— (a) a relationship includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise; and (b) the relationship may have started, or started and ended, before the amendment day; and (c) 1 or more of the sexual acts may have occurred before the amendment day; and (d) a sexual offence that could be charged and proved under section 66B (Course of conduct charge—child sexual offences) can be 1 of the sexual acts. (3) For a person to be convicted of an offence against subsection (1), the trier of fact must be satisfied beyond reasonable doubt that the relationship existed. Note For circumstances in which a majority verdict is a sufficient verdict in a proceeding for an offence against s (1), see the Juries Act 1967, s 38. (4) However, in a proceeding for an offence against subsection (1), there is no requirement for— (a) the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or (b) the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence … (5) In a proceeding for an offence against subsection (1)— (a) the prosecution is required to allege the particulars of the period of the relationship … (6) For an offence against this section that occurred partly or wholly before 2 March 2018, the maximum penalty is the current maximum penalty, however, for a relationship engaged in over the period mentioned in table 56, column 2, the sentence imposed must not be more than the penalty mentioned in column 3 for that period. Table 56 column 1 column 2 column 3 item period of relationship penalty 1 wholly before the lesser of— 24 December 1991 (a) the current maximum penalty; and (b) either— (i) if 2 or more sexual acts alleged to be involved in the relationship are found to have occurred—the total of the maximum penalties for each offence constituted by the sexual acts; or (ii) in any other case—the highest maximum penalty for the offences constituted by the sexual acts alleged to be involved in the relationship 2 started before, on or the lesser of— after 24 December 1991 (a) the current maximum penalty; and and ended before 2 March 2018 (b) the 1991 maximum penalty 3 started on or after the current maximum penalty 24 December 1991 and ended on or after 2 March 2018 4 started on or after 2 the current maximum penalty March 2018 … (7) A person— (a) may be charged on a single indictment with, and convicted of and punished for, both— (i) an offence against subsection (1); and (ii) 1 or more sexual offences committed by the person against the same child or young person under the special care of the person during the alleged period of the relationship; but (b) must not be required to serve the sentences for the offence against subsection (1) and the sexual offences consecutively. (8) Except as provided by subsection (7), a person cannot be convicted of an offence— (a) against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to be involved in the relationship; or (b) constituted by a sexual act against a child or young person under the special care of the person if the sexual act is alleged to have been committed during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the child or young person. (9) For subsection (8), a person is taken not to have been convicted of an offence if the conviction is quashed or set aside. (10) A proceeding for a charge for an offence under this section must not be started without the consent of the director of public prosecutions. (11) The Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence against this section. (12) In this section: 1991 maximum penalty means the maximum penalty for this offence applying on 24 December 1991. Note This section was previously s 92EA which was inserted into this Act by the Crimes (Amendment) Act (No 3) 1991 (A1991-90). See that Act for the maximum penalty for this offence applying on 24 December 1991. amendment day means the day the Royal Commission Criminal Justice Legislation Amendment Act 2020, section 3 commenced. child means a person who is under the age of 16 years. current maximum penalty means the maximum penalty mentioned in subsection (1). sexual act— (a) means— (i) an act that constitutes an offence against this part; or (ii) an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence); or (iii) an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or (iv) an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence at the time the act occurred; but (b) does not include an act referred to in— (i) section 55 (3) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55 (5) that would be a defence if the person had been charged with an offence against section 55 (3); or (ii) section 61 (3) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61 (5) that would be a defence if the person had been charged with an offence against section 61 (3). special care—see section 55A (2). young person means a person who is at least 16 years old, but not yet an adult.
The positions of the parties
The offender submitted that the reference to “another offence under this Part” in s 92EA(6) was a reference to a separately charged offence and not to any of the sexual acts relied on in order to establish the maintenance of the sexual relationship. On that submission, there would have to be further offending conduct beyond that particularised to establish the sexual relationship, even if, as in the present case, the particularised conduct involved far more than “more than 1 sexual act” as required by s 56(1)(b) in its present form. Counsel submitted that this was decided by Crispin J in R v GB (1998) 148 FLR 222.
The submissions made by the prosecution placed emphasis upon the bracketed words in s 92EA(6), namely “whether or not the person has been convicted of that offence”. The prosecution submitted that s 92EA(6) will be engaged whether or not the offender was specifically charged with “another offence”, so long as the court is satisfied beyond reasonable doubt that the offender had committed “another offence”. That would have the effect that any sexual act beyond those that were required in order to establish the maintenance of a sexual relationship would enliven the higher penalty provision in s 92EA(6).
The supplementary submissions of the parties also raised two other issues, which I will deal with below.
Decision
A number of cases have considered the interpretation of provisions criminalising sexual relationships with children, and these form part of the background against which s 56 in its current form was enacted. The High Court in S v The Queen (1989) 168 CLR 266 emphasised that it was necessary, in cases where there were numerous unlawful sexual acts committed against a child, for the particular acts the subject of the charges to be specifically identified. It was not open to the prosecution to lead evidence that was equally capable of referring to a number of occasions, any one of which might constitute an offence of the nature charged, and invite a jury to convict on any one of them.
Subsequently, in KBT v The Queen (1997) 191 CLR 417, the High Court considered a provision in the Criminal Code (Qld) very similar to s 92EA, which required sexual offences to have occurred on three or more occasions to establish that there had been an unlawful relationship. The court held that the jury was required to be instructed that they must unanimously agree on the occurrence of three particular occasions. It was not open for different members of the jury to rely upon different occasions to reach the conclusion that the offender had maintained an unlawful relationship with a child.
The requirement for unanimity as to the occurrence of the same three or more acts was removed in the version of s 56 enacted in 2018 by the Crimes Legislation Amendment Act 2018 (ACT), which also reduced the number of occasions of sexual acts from “3 or more” to “2 or more”: see KN at [66].
Up until the most recent iteration of s 56, the drafting of s 92EA and s 56 maintained the position that the actus reus constituted the commission of a specified number of acts rather than the maintenance of a relationship. In relation to s 92EA, Crispin J in GB pointed out (at 224): I have ultimately concluded that what is required by the terms of subs (3) is proof of the commission of sexual acts on three or more occasions which need not be of the same kind so long as each would constitute an offence under Pt IlIA of the Crimes Act.
Likewise, in relation to s 56, it was observed in KN (at [66]) that the focus is “on ‘sexual acts’ rather than on the existence of a sexual relationship in the ordinary sense”.
The current version of the provision, which commenced on 1 September 2020, was enacted following the decision in KN: see the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT). While there have since been minor amendments to the provision since the 2020 amendment, the substituted provision relevantly made it clear that: (a) it is the maintenance of the relationship that is the actus reus of the offence: s 56(3); and (b) it is not necessary for all members of the jury to agree on the same sexual acts involved in the relationship: s 56(4)(c). Despite continued similarity across the versions, that clarity was achieved by omitting what had been s 56(2) in the version of that provision considered in KN, which had provided (quoted in KN at [4]): (4) For subsection (1), an adult maintains a sexual relationship with a young person or a person under the special care of the adult if on 2 or more occasions and over any period the adult engages in a sexual act with that person.
“Relationship”
Does one interrogate the operation of s 92EA as if the offence provision itself was s 92EA, or does one apply the penalty provisions of s 92EA in a way that picks up the amended concept of a “relationship” that exists currently in s 56? For the moment, for the purposes of assessing the operation of the higher penalty provision, it is appropriate to assume that sexual intercourse between the offender and the victim constituted an offence both under Pt IIIA of the Crimes Act as at 24 December 1991 and under Pt 3 of the Crimes Act as currently in force. That is an issue which will be returned to below.
In GB, Crispin J was considering the more straightforward question of the operation of s 92EA in its original form. His Honour made reference to the terms of s 92EA(7), which allowed a person to be charged on a single indictment with “another offence under this Part” alleged to have been committed “during the course of the alleged relationship”. His Honour found that, notwithstanding the language of s 92EA(7), a person could not be separately charged with a sexual act that was alleged to comprise one of the three or more occasions particularised for the purposes of establishing the maintenance of a sexual relationship. That was for two reasons. (a) Because each sexual act relied upon to establish the maintenance of a sexual relationship would constitute an offence under the Pt IIIA, the construction for which the Crown contended in that case would have meant that the increased penalties provided by s 92EA(6) would always have been applicable and the lower maximum penalty provided by s 92EA(5) could never have applied: at 225. (b) There is a long-standing principle that a person should not be punished twice for what is effectively the same offence. The construction suggested by the Crown in that case would have had the consequence that, whenever a person was convicted of three such offences, “a fourth conviction under s 92EA could be added without proof of any additional element”: at 225-226. His Honour found that there was “nothing in the extrinsic material to suggest that the legislature intended to create an ‘umbrella’ offence for the purpose of providing additional or heavier penalties than might have been available following convictions for three or more offences constituted by the constituent sexual acts”: at 228.
(I note that, in KN at [80]-[82], the Court of Appeal concluded in relation to the then-current version of s 56 that it was open to charge and convict a person for both a s 56 offence and the offending relied upon to establish the s 56 charge. The decision in GB was not referred to).
As held in GB, if it were not open for a person to be separately convicted in relation to an offence under s 92EA and, in addition, convicted of separate offences based upon each of the sexual acts relied upon to establish maintenance of the sexual relationship as defined in that section, then the offender in the present case contended that it would not be open to rely upon one of those acts to trigger the higher penalty provision. That essentially relies upon the first of Crispin J’s reasons, namely, that if it was open to rely upon the acts required to establish the offence as acts sufficient to trigger the higher penalty provision, there would never be a circumstance in which the ordinary penalty provision applied.
“Another offence”
Under s 56 as it currently stands, where the actus reus is the relationship and where jury unanimity as to the identity of the “1 or more” sexual acts is not required, what is to be made of the references in ss 92EA(6), (7) and (8) to “another offence”? (As I have noted, I will address the words “under this Part” later).
But for the bracketed words “whether or not the person has been convicted of that offence”, the natural reading of the references to “another offence” would be to another charged offence of which the person had been convicted. That would mean that, where the evidence was sufficient to allow a specific charge to be brought and proved beyond reasonable doubt, the higher penalty provision would be triggered. However, the bracketed words clearly indicate that there is no requirement that the person be convicted of the offence, even though ss 92EA(7) and (8) clearly indicate that the accused may be separately charged with such an offence. Given that there is no requirement that the person be convicted of the other offence, it cannot be a requirement that they be charged. That is because it could not be concluded that the bracketed words were only designed to accommodate a situation where a person was charged and acquitted or charged and no verdict was reached.
In my view, those bracketed words indicate that it is not necessary for the other offence to have been separately charged. Rather, the focus must be upon a finding as to the occurrence of the offence. If the offence is separately charged, then it will depend upon a finding by the finder of fact upon that count. If the offence is not separately charged, then it will depend upon a finding by the sentencing judge based upon the evidence or admissions in the case. If only two sexual acts are relied upon for the purposes of establishing a relationship of the required character, then, subject to its possible inconsistency with the decision in KN, the GB circumstances will apply. It will not be possible to characterise that conduct as “another” offence because it will be inherently part of the relationship of the required kind.
It is not necessary to finally determine whether GB is consistent with KN. That is because in a case such as the present — where there have been scores if not hundreds of offences committed over many years during the course of the relationship, and where those offences are admitted in an agreed statement of facts so as to permit them to be found beyond reasonable doubt — the correct application of s 92EA(6) allows the court to find that the offender, “during the course of the relationship”, “committed another offence under this Part in relation to the young person”. In other words, the term “another offence” is to be read as an offence proved beyond reasonable doubt that is in addition to the sexual conduct required to enliven the operation of s 56.
Summary so far
For those reasons, subject to the remaining arguments presented by the offender and the prosecution, I conclude that it is possible for the higher penalty provision to apply. As pointed out earlier in these reasons, there are numerous offences disclosed by the agreed statements of facts which can be found beyond reasonable doubt to have been committed. There are examples both of specifically identified occasions when an offence occurred as well as numerous other unparticularised occasions which are admitted.
Although an unparticularised occasion may be insufficient to be separately charged because the lack of particularisation would make it unfair to an accused person, the unparticularised occasions in the present case would be sufficient, if they were necessary, to provide a basis for the application of the higher penalty provision. Because they are admitted by the offender, they can be found beyond reasonable doubt. These include all of the occasions on which sexual intercourse with a person under the age of 16 occurred, an offence which carried, at all relevant times, a maximum penalty of 14 years’ imprisonment.
However, as will become apparent in the next part of these reasons, what offending may be relied upon for the purposes of the higher penalty provision is subject to a further complexity. Offender’s additional argument: Which version of the Part?
Counsel for the offender said that the court would need to be satisfied that the reference to “another offence under this Part” could apply in circumstances where Pt IIIA in force on 24 December 1991 “had been replaced by [the current] Part 3”.
That argument does not present any impediment to the application of the higher penalty provision in the present case, as the change from Pt IIIA to Pt 3 is simply a renumbering exercise that occurred between Republications 8 and 9. The relevant Part remains that in which s 92EA/s 56 exist. Contrary to the submissions on behalf of the offender, when s 92EA was renumbered as s 56, it was not “moved to Part 3 of the Act”. Rather, Pt IIIA was already the third Part of the Crimes Act, and that Part was simply renumbered to accurately reflect that fact, leaving the text of the relevant section in the same Part of the Act. That renumbering was authorised by s 43 of the Crimes Legislation Amendment Act 2001 (ACT), which provided: “renumber provisions when Act next republished under Legislation Act 2001”. Such renumbering may now be done, and is routinely done, without specific legislative authorisation by the parliamentary counsel when preparing a new republication of a law: see Pt 11.3 of the Legislation Act 2001 (ACT).
However, the intent behind the offender’s submission may have been to raise the question of whether, when considering what is referred to in s 92EA(6) as “another offence under this Part”, what is to be considered is an offence that existed as at 24 December 1991 as opposed to an offence which exists in Pt 3 currently.
Prosecution’s additional argument: “Rejecting” the plea
Counsel for the prosecution submitted that: If the Court were to adopt the position that the maximum of 7 years applied, the Court will be obliged to ignore the facts which give rise to offences of sexual intercourse without consent and the acts of indecency, which carry 14 and 10 years respectively, consistent with the Di Simoni [sic] principle. In those circumstances, the prosecution invites the Court to reject the plea, noting the agreed facts substantiate more serious offending.
Had I reached the conclusion that the maximum penalty of seven years applied, I would not have accepted this submission. It would not have been necessary to ignore the offences of sexual intercourse without consent or acts of indecency. Rather, they would have been taken into account as having occurred during the relationship. Even if they could not have, there would be no basis upon which the court could reject the plea at the urging of the prosecution, it having been already accepted by the prosecution.
Conclusion
I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
DPP
Smith
(1997) 191 CLR 417
(1998) 148 FLR 222
(1989) 168 CLR 266
In the circumstances of the present case, the maximum penalty against which the sentence is to be assessed is the lesser of the “current maximum penalty” and the “1991 maximum penalty”. That is so because the period of the offending to which the offender pleaded guilty was between March 2013 and November 2016, a period which falls within that described in item 2 of table 56.
The statutory concept of the “1991 maximum penalty” is defined as meaning “the maximum penalty for this offence applying on 24 December 1991”. That then requires consideration of the terms of s 92EA (as s 56 was then numbered) as at 24 December 1991. At that time, s 92EA(5) provided that the maximum penalty for an offence under that section was seven years’ imprisonment, but that was qualified by s 92EA(6), which provided that, if the offender was “found, during the course of the relationship, to have committed another offence under this Part in relation to the young person”, then the offence was punishable by imprisonment for either 14 years or life, depending on the maximum penalty for that other offence (I will refer to this as the “higher penalty provision”). For completeness, I set out the 1991 statutory provision (s 92EA of the Crimes Act as in force on 24 December 1991): 92EA Maintaining a sexual relationship with a young person (1) In this section— “adult” means a person who has attained the age of 18 years; “sexual act” means an act that constitutes an offence under this Part but does not include an act referred to in subsection 92E (2) or 92K (2) if the person who committed the act establishes the matters referred to in subsection 92E (3) or 92K (3), as the case may be, that would be a defence if the person had been charged with an offence against subsection 92E (2) or 92K (2), as the case may be; “young person” means a person who is under the age of 16 years. (2) A person who, being an adult, maintains a sexual relationship with a young person is guilty of an offence. (3) For the purposes of subsection (2), an adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on 3 or more occasions. (4) In proceedings for an offence under subsection (2), evidence of a sexual act is not inadmissible by reason only that it does not disclose the date or the exact circumstances in which the act occurred. (5) Subject to subsection (6), a person who is convicted of an offence under subsection (2) is liable to imprisonment for 7 years. (6) If a person convicted under subsection (2) is found, during the course of the relationship, to have committed another offence under this Part in relation to the young person (whether or not the person has been convicted of that offence), the offence under subsection (2) is punishable by imprisonment— (a) if the other offence is punishable by imprisonment for less than 14 years—for 14 years; or (b) if the other offence is punishable by imprisonment for a period of 14 years or more—for life. (7) Subject to subsection (8), a person may be charged in 1 indictment with an offence under subsection (2) and with another offence under this Part alleged to have been committed by the person during the course of the alleged relationship and may be convicted of and punished for any or all of the offences so charged. (8) Notwithstanding subsection 443 (3), where a person convicted of an offence under subsection (2) is sentenced to a term of imprisonment for that offence and a term of imprisonment for another offence under this Part committed during the course of the relationship, the court shall not direct that those sentences be cumulative. (9) A prosecution for an offence under subsection (2) shall not be commenced except by, or with the consent of, the Director of Public Prosecutions.
The question is how the higher penalty provision is to be applied where there is a single charge of a contravention of s 56 and where numerous sexual offences are admitted but none are separately charged. Does the higher penalty provision only apply if there are separate offences that are charged in addition to the s 56 offence, or does it apply where there are numerous offences disclosed as the agreed basis for sentencing on the s 56 charge?
The amended provision rephrased the requirement that there be “2 or more” sexual acts (as it had been under the earlier version of s 56) to “more than 1”. It will be recalled that, under s 92EA, sexual acts were required to have occurred on “3 or more occasions”.
It must be emphasised that s 56 remains the offence provision and is otherwise the operative provision in relation to sentencing; it is plain that s 56 expressly and exhaustively deals with its own retrospective application (albeit in a manner which has led to the present difficulties). The legislative history of s 56 is important due to the operation of s 56(6), which provides for different maximum penalties for conduct occurring when different versions of the Crimes Act were in force. The changes over time are significant because they affect the exercise that is being undertaken under the current version of s 56 by reference to the terms of s 92EA as at 24 December 1991.
The interpretation of s 92EA is only necessary in order to determine the maximum penalty to be applied under s 56. Given that s 92EA provides different penalties in different circumstances, it is necessary to consider what are the circumstances to which s 92EA is to be applied in order to determine what the maximum penalty would have been under s 92EA so as to then, in turn, determine the applicable maximum penalty provided by table 56.
The issue is: What do the words “relationship” and “another offence” mean in s 92EA when that provision is referred to or picked up as required by the present s 56?
The prosecution seemed to accept the proposition derived from GB that, under s 92EA, it was not open to rely upon the three particularised sexual acts in order to trigger the higher penalty provision. Rather, the submission was that, in cases where there were other offences established beyond the particularised three, those other offences could be relied upon in order to trigger the higher penalty provision.
The prosecution’s submission would have the consequence that, where there was a jury trial, it would be necessary for the sentencing judge to make findings as to whether or not any such additional offence was established beyond reasonable doubt. Where there was a guilty plea, it would be necessary to make findings of fact beyond reasonable doubt based upon evidence or an agreed statement of facts. In neither scenario would it be necessary that the offence which triggered the higher penalty provision be separately charged.
The point not fully addressed in the parties’ submissions is that, as I observed, it is the current version of s 56 to which regard must be had when determining what the offence committed is. Notably, in contrast to s 92EA, the current version of s 56 requires only one or more sexual acts and does not require jury unanimity as to the occurrence of the sexual acts that make the relationship one to which the section applies. Reference is to be had to s 92EA only for the purpose of determining the consequence of the offence against the current version of s 56. It is not a case of assessing all of the circumstances of the present case against all of the requirements of s 92EA. One therefore does not have to ask “Which are the three occasions on which sexual acts occurred?” when determining the 1991 maximum penalty.
It will be recalled that, under s 92EA, the language used had the effect that it was the sexual acts on three or more occasions that were deemed (“shall be taken”) to be the maintenance of a sexual relationship with a young person. That contrasts with the current version of s 56, where it is clear that the relationship is distinct from the sexual acts that occurred during it. The sexual acts are relevant to give the relationship the relevant character required for the offence to be committed. Because the relationship under the current version of s 56 has an existence which is separate from the sexual acts which it involved, the reference to “during the course of the relationship” in s 92EA(6) (when picked up for the purposes of sentencing a breach of s 56) now makes more sense than it did in s 92EA itself, where the relationship required no more than that it be proved beyond reasonable doubt that there were three occasions upon which sexual acts had occurred.
Therefore, when s 92EA is picked up by s 56, the meaning of the term “relationship” in s 92EA(6) is to be understood by reference to the meaning of that term under the current s 56. That leaves the question of what “another offence” (relative to the meaning of “relationship”) means.
The position in relation to victims under 16 or between 16 and 18 needs to be considered separately.
For a victim under the age of 16: As at 1991, sexual intercourse with a person under the age of 16 was an offence under s 92E of the Crimes Act. It was punishable by imprisonment for 14 years. Section 92E is now s 55 and, relevantly, the maximum penalty remains 14 years’ imprisonment (except where the offending involves “family violence”, in which case it is 18 years’ imprisonment).
For a victim between 16 and 18: As at 1991, there was no relevant provision criminalising sexual intercourse with a person between 16 and 18 years old. Section 55A of the Crimes Act was introduced on 24 April 2013 by the Crimes Legislation Amendment Act 2013 (ACT). It criminalises sexual intercourse with a young person under the offender’s special care. The young person is under special care if, relevantly, the offender is their foster carer (see s 55A(2)(b)). The maximum penalty was, and continues to be, imprisonment for 10 years.
Therefore, the potentially relevant offence provisions relating to sexual intercourse between the offender and victim that are available and that could constitute “another offence under this Part”, and their maximum penalties, are set out below: (a) If the relevant version of the Crimes Act is that in force on 24 December 1991: (i) For sexual intercourse where the victim was 14 to 16: the penalty for each offence (under s 92E) is 14 years’ imprisonment. (ii) For sexual intercourse where the victim was 16 to 18: there was no offence provision. (b) If the relevant version of the Crimes Act is that in force when the offending was occurring (2013-2016): (i) For sexual intercourse where the victim was 14 to 16: the penalty for each offence (under s 55) is 14 years’ imprisonment. (ii) For sexual intercourse where the victim was 16 to 18: the penalty for each offence (under s 55A, provided the victim was under the offender’s special care) is 10 years’ imprisonment. (c) When the charge was laid (January 2025): (i) For sexual intercourse where the victim was 14 to 16: the penalty for each offence (under s 55) is 14 years’ imprisonment. (ii) For sexual intercourse where the victim was 16 to 18: the penalty for each offence (under s 55A, provided the victim was under the offender’s special care) is 10 years’ imprisonment.
The most restrictive operation of s 92EA, when picked up by s 56 for the purposes of determining the maximum penalty, is that the reference to “another offence under this Part” is to an offence which existed as at 24 December 1991 with the maximum penalty applicable at that time. As described at [43(a)] above, s 92E was in Pt IIIA at that time. Given that the offender is to be sentenced on the basis of an offence that occurred throughout the whole of the period, that is, the period from when the victim was a child as well as the period when she was a “young person”, the existence of s 92E is sufficient to constitute “another offence under this Part” that occurred “during the course of the relationship”.
Because the offender is to be sentenced for that whole period, it is unnecessary to separately consider what would have been the position in relation to the existence of “another offence under this Part” (and hence the application of the higher penalty provision) if the period when the victim was a child and the period when the victim was a “young person” had been the subject of separate charges under s 56.
For those reasons, it is not necessary to finally determine whether a reference to “another offence under this Part” can be interpreted to include an offence under the Part that came into existence after 24 December 1991 or after the offending conduct occurred.