[2009] HCA 41
ARS v R [2011] NSWCCA 266
Burr v R [2020] NSWCCA 282
Cheung v The Queen (2001) 209 CLR 1
[2001] HCA 67
GP (a pseudonym)v R [2021] NSWCCA 180
JJP v R (2021) 139 SASR 91
[2021] SASCA 53
MK v R
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
ARS v R [2011] NSWCCA 266
Burr v R [2020] NSWCCA 282
Cheung v The Queen (2001) 209 CLR 1[2001] HCA 67
GP (a pseudonym)v R [2021] NSWCCA 180
JJP v R (2021) 139 SASR 91[2021] SASCA 53
MK v R
Judgment (4 paragraphs)
[1]
The applicant's submissions
The applicant's central submission was that the sentencing judge failed to properly find the facts of the offending by sentencing him on the estimated frequency of offending, and thus the sentencing judge sentenced him for a course of conduct. The applicant submitted that the sentencing judge was required to identify specific occasions on which the applicant committed offences, and to treat those occasions as representative of a wider course of conduct. In support of his contention the applicant relied on the decision of the South Australian Court of Criminal Appeal in R v D (1997) 69 SASR 413, and decisions of this Court in R v Fitzgerald [2004] NSWCCA 5, ARS v R [2011] NSWCCA 266 and Burr in respect of sentencing under the previous s 66EA. Counsel submitted that the approach to sentencing offenders under the predecessor offence may provide clearer guidance on how a sentencing court should proceed in relation to the current offence provision.
The applicant submitted, relying on Burr and GP (a pseudonym) v R [2021] NSWCCA 180, that the factors identified in Burr as important to assessing the objective seriousness of an offence against the previous s 66EA remain relevant to the assessment of an offence against the new provision. He submitted the number of sexual acts and the nature of the acts are relevant to the assessment of the objective seriousness of an offence and the offence is not a course of conduct in the strict sense because it requires proof of a relationship and of two or more unlawful sexual acts, relying on JJP v R (2021) 139 SASR 91; [2021] SASCA 53.
The applicant submitted that the provisions of s 66EA(5) apply only to facilitating convictions, and do not apply to fact finding in sentencing. He submitted that s 66EA(8) redirects a sentencing judge's attention to the specific unlawful sexual acts engaged in by the offender, to properly assess the seriousness of the offending; otherwise a person would be sentenced on a potentially opaque basis or on a mistaken factual basis.
The applicant submitted that the sentencing judge made factual mistakes and overestimated some sexual acts. Specific factual mistakes asserted were, in relation to ML, that he had caused multiple splits to the child's anus or had ejaculated on the complainant multiple times, contrary to the child's evidence of one occasion where the applicant "split" his anus and one occasion where the applicant ejaculated while masturbating. In respect of MS, the applicant submitted that his Honour was incorrect in finding that the applicant attempted on 30 to 50 occasions to anally penetrate the child, as not an accurate statement of the evidence.
[2]
Crown submissions
In response the Crown submitted that the particular factual errors asserted were not made by the judge and that the finding his Honour made "on occasion [the applicant] split the child's anus, causing it to bleed" was supported by reference to a particular question and answer in the child's interview.
In addition, the Crown submitted that the complaint the applicant advanced on his appeal is inconsistent with the manner in which the sentencing proceedings were conducted on his behalf before the sentencing judge, contrary to the statement in Zreika v R [2012] NSWCCA 44 at [81]-[82]. The Crown submitted that in written submissions before the sentencing judge the Crown submitted that the court would find facts generally consistent with the particularised alternative charges and the unparticularised allegations, and submitted that the offending was regular and frequent throughout the offence period. The Crown submitted that in written submissions by counsel for the applicant in the District Court, counsel acknowledged that:
"All the offending can be characterised by opportunistic behaviour, taking advantage when the moments presented themselves. It is conceded though that the offending was sustained over the period of a year."
The Crown submitted that counsel for the applicant in the District Court did not cavil with the judge's indication of his assessment of the nature and frequency of the applicant's conduct, thus giving rise to the constraint in Zreika.
Both the Crown and counsel for the applicant relied on the statement of Fagan J in R v RB [2022] NSWCCA 142 at [69] that "…for a sentence to be passed there have to be evidence-based findings of the tribunal of fact concerning the extent and seriousness of the offending.".
The Crown submitted that there is no reason to depart from the established principle that a sentencing judge is not required to sentence on the view of the facts most favourable to the offender, provided that facts determined by the sentencing judge are consistent with the jury's verdict and any findings of fact adverse to the offender are established beyond reasonable doubt: R v RB.
The Crown submitted that s 66EA is distinguishable from its predecessor in that it departs from a focus on the proof of underlying particularised sexual acts as the actus reus of the offence and requires the jury to be satisfied beyond reasonable doubt that an unlawful sexual relationship existed, and while the jury must be satisfied that there were at least two unlawful sexual acts, the jury need not agree which unlawful sexual acts occurred. The Crown submitted that the terms of s 66EA(8) make clear that the task of making findings for the purpose of sentencing lies with the sentencing court. The Crown submitted that the decisions relied on by the applicant in relation to the predecessor provision provide no assistance with the approach to sentencing under the current provision.
[3]
Consideration
In Xerri v The King [2024] HCA 5, the High Court considered the construction of the new s 66EA.
Gageler CJ and Jagot J stated:
"[16]… The new s 66EA(1) requires an adult to maintain an unlawful sexual relationship with a child, meaning maintain a relationship with the child in which the adult engages in two or more unlawful sexual acts with or towards a child over any period.
[17] … The new s 66EA(5)(a) and (c) respectively provide that while the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. That is, provided that each member of the jury is satisfied that the accused maintained a relationship in which the accused engaged in two or more unlawful sexual acts with or towards a child over any period, the members do not need to agree that the same two or more unlawful sexual acts occurred.
…
[20] … The new s 66EA(4)(a) provides that the Crown 'is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence'.
…
[22] These are differences of substance.
…
[26] … both the predecessor offence and the new s 66EA have at least one thing in common: they are engaged by conduct which is otherwise criminal, their focus being the long-term repetitive criminal conduct the Royal Commission found characterised many kinds of child sexual abuse.
[33] … the new s 66EA contains its own provision about sentencing… that provision is s 66EA(8) which provides that a 'court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed'."
Gordon, Steward and Gleeson JJ referred to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse that there be offences which do not require particularisation in a manner inconsistent with the ways in which complainants remember child sexual abuse and allow for the prosecution of repeated but largely indistinguishable occasions of child sexual abuse, and the Royal Commission's proposal of an offence of persistent child sexual abuse whereby:
"The actus reus of the offence would be maintenance of an 'unlawful sexual relationship' in which an adult had engaged in two or more unlawful sexual acts; there would be no obligation to give the usual particulars of any given unlawful sexual acts; the trier of fact would only need to be satisfied about the general nature or character of the unlawful sexual acts…": [54].
Their Honours said at [56]:
"In contrast to former s 66EA, under the current s 66EA(4) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, but is required to give particulars of the period of time over which the unlawful sexual relationship existed."
and
"[57] In order now to convict:
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed;
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would otherwise have to be satisfied of if the act were charged as a separate offence; and
(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship."
At [60] their Honours said:
"The primary differences between the current and former s 66EA may be seen as follows:
(a) the actus reus of former s 66EA was the committing of three or more sexual offences during any period; the actus reus of the current offence is the maintenance of an unlawful sexual relationship in which an adult engages in two or more unlawful sexual acts.
…
(c) the content of the particulars of the offending which the Crown must provide is different. The Crown no longer needs to describe the nature of the separate offences alleged to have been committed;
(d) what the jury needs to be satisfied about in order to convict is also different. Whereas under former s 66EA the jury needed to be satisfied that a sexual offence had occurred on at least three different occasions on separate days (and to be satisfied about the material facts of those occasions, but not the specific dates of when they occurred), now the jury must be satisfied that an unlawful sexual relationship existed in which an adult has engaged in two or more unlawful sexual acts (without the need to be satisfied about the particulars of each act at the standard required had each act had been charged separately)";
(e)… Now the jury is not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship."
In GP (a pseudonym) v R, N Adams J said at [8]:
"An offence contrary to s 66EA(1) of the Crimes Act 1900 (NSW)… is established if an adult maintains an 'unlawful sexual relationship' with a child. Section 66EA(2) provides that an 'unlawful sexual relationship' is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. An offence contrary to s 66EA(1) of the Crimes Act can be established based on only two sexual acts. This means that the number of sexual acts beyond that as well as the nature of those sexual acts is relevant to the assessment of the objective seriousness of the offence."
In MK v R; RB v R, Beech-Jones CJ at CL (as his Honour then was), construing the new s 66EA, said the task of interpreting such a statutory provision must begin and end with a consideration of the text itself: [94] and [101]. His Honour said ascertaining the meaning of a 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 (2009) 239 CLR 27; [2009] HCA 41, Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204. His Honour said the text of s 66EA is clear and the origins of the provision, its legislative purpose and the mischief it was intended to address do not suggest any different meaning: [101].
The construction of s 66EA and the approach to sentencing for offences against it contended for by the applicant is contrary to the plain terms of the section, the intent and purpose of the provision and the mischief it was intended to address. It cannot be correct, in principle or logic, that sub-ss (4) and (5) do not apply to sentencing for offences against s 66EA, especially as a sentencing judge's findings of fact must be consistent with the jury's verdict(s).
In this case, having read the evidence summary, which both counsel accepted as accurate, and having considered the sentencing judge's findings of fact, and his Honour's statement that he was satisfied beyond reasonable doubt of the evidence of each child, I am not persuaded that his Honour made any errors of fact in his factual findings or, as contended, that he failed to properly determine the facts of the applicant's offending. Ground 1 is not established. As ground 2 depended on ground 1 being established, ground 2 does not succeed either. Therefore I would propose the following orders:
1. Grant leave to appeal.
2. Dismiss the appeal.
HUGGETT J: I agree with Sweeney J.
[4]
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Decision last updated: 17 July 2024
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant was found guilty after trial of three counts of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW). The victims were three brothers whose mother was in a relationship with the applicant. The sentencing judge imposed an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years. The applicant had previously unsuccessfully appealed his convictions and the sentence appeal was stood over pending the High Court's decision in Xerri v The King [2024] HCA 5.
The applicant sought leave to appeal on two grounds; that the sentencing judge failed to properly determine the facts of the applicant's offending by sentencing him on the basis of the estimated frequency of offending, and that the sentence was manifestly excessive.
The applicant's primary complaint was that the sentencing judge relied on the victims' estimated frequency of the offending conduct as the basis for sentencing the applicant, which led to his being sentenced for a course of conduct. He submitted the current s 66EA required the sentencing judge to identify specific occasions of offending and to treat them as representative of a course of conduct. He submitted the factors in s 66EA(5) do not apply to sentencing, and that s 66EA(8) directs the sentencing judge's attention to the specific constituent unlawful sexual acts to assess the seriousness of the offending. In support, he argued the factors relevant to assessing objective seriousness under the predecessor offence as identified in Burr v R [2020] NSWCCA 282, affirmed in GP (a pseudonym) v R [2021] NSWCCA 180, provide guidance as to the correct approach under the current provision.
The Crown submitted the current s 66EA departs from the focus on proving the underlying unlawful sexual acts. It requires the jury to be satisfied an unlawful sexual relationship existed and that at least two unlawful sexual acts occurred, although the jury need not agree on which acts. The Crown submitted the decisions relied on by the applicant provided no assistance as to the approach to sentencing under the current s 66EA. The Crown further relied on the principle in Zreika v R [2012] NSWCCA 44 to argue the applicant's complaints on appeal were inconsistent with the way in which the sentencing hearing was conducted.
Held (per Sweeney J, Mitchelmore JA and Huggett J agreeing), granting leave to appeal but dismissing the appeal:
The applicant's submitted approach to sentencing under s 66EA is contrary to the terms of the provision and its intent and purpose. It cannot be correct that s 66EA(4) and (5) do not apply to sentencing. The applicant failed to establish that the sentencing judge made any errors of fact in his Honour's findings or that he failed to properly determine the facts of the offending.
Xerri v The King [2024] HCA 5; GP (a pseudonym)v R [2021] NSWCCA 180; MK v R; RB v R [2023] NSWCCA 180; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41; Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 applied.
Ground 1 did not succeed. Ground 2, being dependent on the success of ground 1, did not succeed either.
JUDGMENT
MITCHELMORE JA: I have had the advantage of reading in draft the reasons of Sweeney J. I agree with the orders her Honour has proposed and may state my reasons shortly.
The jury in the present case delivered verdicts of guilty in respect of three offences contrary to s 66EA(1) of the Crimes Act 1900 (NSW). Those verdicts established that the jury was satisfied beyond reasonable doubt that the applicant maintained an unlawful sexual relationship with each of the three complainants, each of whom was under the age of 16 years, in which he engaged in two or more unlawful sexual acts of the nature set out in the indictment. Consistently with s 66EA(5), in reaching those verdicts:
1. the jury must have been satisfied beyond reasonable doubt that the evidence established that the unlawful sexual relationship existed (s 66EA(5)(a));
2. the jury was "not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence" (s 66EA(5)(b) (reflecting the terms of s 66EA(4)(a), which provides that the prosecution "is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence …")); and
3. the members of the jury were "not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship" (s 66EA(5)(c)).
The duty of the sentencing judge is to find facts relevant to sentencing, with any findings made against an offender arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374 at 377-378. In Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, Gleeson CJ, Gummow and Hayne JJ made the following observations about that task:
"[5] The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace.
…
[7] It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict.
[8] On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender's culpability, and the proper measure of punishment. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt."
Procedural history
The applicant stood trial in the District Court at Lismore before Judge McLennan SC and a jury of 12 on an indictment containing three counts of persistent sexual abuse of three brothers, contrary to s 66EA(1) of the Crimes Act. There were also 24 alternative counts of sexual and indecent assaults against the complainants which alleged specific offences. The trial began on 23 November 2020 and on 9 December 2020 the applicant was found guilty of each of the three counts of persistent sexual abuse. It was therefore unnecessary for the jury to return verdicts on the alternative counts.
On 30 April 2021 Judge McLennan SC sentenced the applicant to the aggregate sentence of 28 years imprisonment with a non-parole period of 21 years. The indicative sentences were 15 years for count 1 (relating to complainant ML), 12 years for count 14 (complainant MS) and 18 years for count 19 (complainant JD).
The applicant appealed against his conviction. The appeal was dismissed: MK v R; RB v R [2023] NSWCCA 180 (per Beech-Jones CJ at CL (as his Honour then was), Ward P, Price, Wilson and Lonergan JJ agreeing). The applicant's appeal in respect of his sentence was stood over by this Court to await the decision of the High Court in Xerri v The King [2024] HCA 5. The High Court delivered that judgment on 6 March 2024.
The High Court refused the applicant special leave to appeal against this Court's decision on his conviction appeal.
The applicant now seeks leave to rely on the following grounds of appeal against his sentence:
"1. The sentencing judge failed to properly determine the facts of the applicant's offending by sentencing the applicant on the basis of the estimated frequency of offending.
2. The sentence imposed on the applicant is manifestly excessive."
The applicant submitted that his two grounds of appeal could be dealt with at the same time, and if the first ground of appeal is upheld, it may lead to consideration of the second.
Because the essence of the appeal is that Judge McLennan SC erred in his approach to sentencing the applicant, it is necessary to refer in some detail to his Honour's remarks on sentence. Because the statutory non-publication order in s 578A of the Crimes Act applies, the three child victims will be referred to by initials.
Before turning to the remarks on sentence, it is necessary to set out the terms of the three counts for which the applicant was sentenced, and the terms of s 66EA of the Crimes Act, as the applicant's appeal focuses on how an offender is to be sentenced for an offence against s 66EA.
The approach to sentencing
His Honour noted that the offence under s 66EA as now enacted was introduced on 1 December 2018 with retrospective effect. His Honour referred to the decision of Burr v R [2020] NSWCCA 282. His Honour stated that at [106] of Burr:
"… the court set out what was declared to be a non-exhaustive list of factors which will bear upon an assessment of the objective seriousness of the offence. It is not disputed that these matters are relevant to this sentencing exercise under the new s 66EA. Those factors are said to be:
(a) The number of sexual offences as defined in s 66EA(12) which were committed on separate occasions by the offender against the victim.
(b) The nature of the sexual offences committed by the offender against the victim.
(c) The age of the victim at the time of the ingredient offences… the younger the victim is then the more serious the offence.
(d) The period of time during which the ingredient offences were committed against the victim.
(e) The age of the offender at the time of the commission of the ingredient offences against the victim and the age differential between the offender and the victim during the relevant period.
(f) The context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s 66EA offence - if the context involves the offender and the victim being in a family or quasi-family setting, which has a capacity to influence the power differential between the two persons and the susceptibility or vulnerability of the victim, this will elevate the objective seriousness of the s 66EA offence." (ROS 17).
His Honour stated "In my view, the alteration to the structure of s 66EA does not affect matters relevant to the objective seriousness of the offender's conduct." (ROS 18).
His Honour stated:
"The differences between the two versions of s 66EA may mean that there is a reduced focus on the maximum penalties for the 'ingredient offences', because the new s 66EA is not an offence that is comprised of discrete underlying offences, but rather a course of conduct. Having said that, it is necessary to make reference to s 66EA(8), which I will do in due course." (ROS 18-19).
His Honour stated:
"Thirdly, it may (and I emphasise the word 'may') not be necessary for a sentencing judge to be satisfied beyond a reasonable doubt of any particular ingredient offences when sentencing for the course of conduct comprising a new s 66EA offence.
As to this last point, I note that s 66EA(5) reads as follows:
'(a) The jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(b) The jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence and;
(c) The members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.'" (ROS 19).
In circumstances where an offence contrary to s 66EA(1) of the Crimes Act can be established based on only two sexual acts, the number of sexual acts beyond that as well as the nature of those sexual acts is relevant to the assessment of objective seriousness of the offence: GP (a pseudonym) v R [2021] NSWCCA 180 at [8] (N Adams J). The applicant's central contention in this appeal was that in making the necessary findings on sentence, it was not open to the sentencing judge to rely on the estimates that the complainants gave of the frequency of the occasions on which the applicant engaged in the types of unlawful sexual acts about which they gave evidence. This led, in his submission, to his Honour sentencing him for what was, in effect, a course of conduct. The applicant submitted that the sentencing judge needed to make findings as to the precise occasions on which he engaged in unlawful sexual acts, and state the facts as to each act.
In support of his central proposition, the applicant relied principally on s 66EA(8) of the Crimes Act, which provides:
A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.
The applicant submitted that when read with the definition of "unlawful sexual act" in s 66EA(15), subs (8) directed attention to the specific unlawful sexual acts in which the applicant engaged.
Sweeney J has detailed the legislative history behind s 66EA as now in force, including by reference to the decision of the High Court in Xerri v The King [2024] HCA 5. Section 66EA(7) applies the provision to relationships that existed wholly or partly before the commencement of the "relevant amendments" or the "predecessor offence" (both of which are defined in s 66EA(15)). Section 66EA(8) applies in particular circumstances, namely, when a court is "imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments". In those circumstances, the subsection requires a sentencing judge to take into account (without being limited by) the maximum penalty that applied to the unlawful sexual acts that an offender is found to have engaged in "during the period in which the unlawful sexual relationship existed".
The purpose of s 66EA(8) is thus to ensure that notwithstanding the retrospective operation of the provision, regard is had to the maximum penalties that applied at the time of the offending. It does not support the approach to sentencing which forms the applicant's central contention, nor does the balance of the provision. I note in particular s 66EA(4)(a), by which the prosecution is not required to allege the particulars of unlawful sexual acts that it would need to if the acts were charged as separate offences. By contrast, the approach for which the applicant contended would require the Court to identify in every case, in his counsel's words, "the specific occasions of abuse".
The submission that it is not open to a sentencing judge to rely on the evidence of a complainant, whose reliability is accepted, estimating the frequency with which an offender engaged in particular unlawful sexual acts would also be contrary to the broader legislative context, which as Sweeney J points out includes the purpose of the provision and the mischief that it was intended to remedy: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [30] (Bell P). As Beech-Jones CJ at CL stated in MK v R; RB v R (2023) 112 NSWLR 96 ("MK") at [96] (Ward P, Price, Wilson and Lonergan JJ agreeing):
"The purpose or mischief that this aspect of the Royal Commission Report was addressing is clear, namely, the perceived difficulty in providing particulars and securing unanimity amongst the jury in cases where evidence of repeated sexual abuse is given by children as required by decisions such as KBT and S v The Queen."
Of course, it is necessary for a sentencing judge to make what Fagan J referred to, in R v RB [2022] NSWCCA 142 ("RB") at [69], as "evidence-based findings … concerning the extent and seriousness of the offending". Although his Honour's construction of s 66EA was found, in MK, to be plainly wrong, both the applicant and the Crown in this case relied on this unexceptional observation regarding the approach to fact-finding. The applicant also emphasised Fagan J's observation that the section reposes in the trial judge a heavy responsibility (at [72]), and so much may be accepted. Sweeney J has addressed the sentencing judge's reasons on sentence in detail below, in which his Honour made careful findings as to the unlawful sexual acts in which the applicant engaged with ML, MS and JD respectively, and the nature of those acts. His Honour's findings rested on the evidence of the three complainants, given both in police interviews and at the trial, including his Honour's acceptance beyond reasonable doubt of estimates the children provided about the frequency of the unlawful sexual acts to which they were subjected (ROS 2). No error in the fact-finding process has been established.
Further, I consider that the Crown's submission, that the considerations in Zreika v R [2012] NSWCCA 44 at [80]-[83] apply in the present case, has force. Before the sentencing judge, counsel for the applicant accepted, in relation to each of the complainants, that the offending conduct was "sustained over the period of a year", although he submitted that it should be characterised as opportunistic. No attempt was made by his counsel to challenge the reliability of the complainants' evidence, either in whole or as to any part. The approach for which the applicant contended in this court was at odds with the manner in which his counsel conducted the hearing before the sentencing judge.
SWEENEY J: MK, the applicant, seeks leave to appeal against the aggregate sentence imposed on him for three offences of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is life imprisonment. The applicant was sentenced to an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years, after a trial by jury.
His Honour stated:
"Another yardstick to which I must have reference is the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed: see s 66EA(8).
These offences, examples of which were set out as alternatives to the primary counts, involved offending against s 66C(2), aggravated sexual intercourse of a child between the ages of 10 and 16 where the maximum penalty was 20 years imprisonment; s 66D, which is the attempt to commit the offence under s 66C and carries the same maximum penalty as the offence under s 66C; s 61(2), aggravated indecent assault, for which the maximum penalty is 10 years imprisonment; s 61O(1), aggravated act of indecency for which the maximum penalty is five years imprisonment; and the non-aggravated version of the offence under s 66C, namely s 66C(1), sexual intercourse with a child between 10 and 16 for which the maximum penalty is 16 years imprisonment." (ROS 32-33).