[2001] HCA 67
DB v R [2024] NSWCCA 18
DC v R [2023] NSWCCA 82
Dinsdale v R (2000) 202 CLR 321
[2000] HCA 54
GP (a pseudonym) v R [2021] NSWCCA 180
Green v R
Quinn v R (2011) 244 CLR 462
Source
Original judgment source is linked above.
Catchwords
285 A Crim R 504
Cheung v R (2001) 209 CLR 1[2001] HCA 67
DB v R [2024] NSWCCA 18
DC v R [2023] NSWCCA 82
Dinsdale v R (2000) 202 CLR 321[2000] HCA 54
GP (a pseudonym) v R [2021] NSWCCA 180
Green v RQuinn v R (2011) 244 CLR 462[2011] HCA 49
Hili v RJones v R (2010) 242 CLR 520[2010] HCA 45
JG v R [2023] NSWCCA 33
Markarian v R (2005) 228 CLR 357[2005] HCA 25
Massequoi v R [2024] NSWCCA 125
MK v R [2024] NSWCCA 127
MK v RRB v R (2023) 112 NSWLR 96[2023] NSWCCA 180
Nolan v R [2024] NSWCCA 140
R v D [1996] 1 Qd R 363[1995] QCA 329 (reported sub nom R v Dales (1995) 80 A Crim R 50)
R v D (1997) 69 SASR 413[1997] SASC 6350
R v De Simoni (1981) 147 CLR 383[1981] HCA 31
R v Fitzgerald (2004) 59 NSWLR 493[2004] NSWCCA 5
R v H (1980) 3 A Crim R 53
R v Isaacs (1997) 41 NSWLR 374
R v JCW [2000] NSWCCA 209112 A Crim R 466
R v Manners [2004] NSWCCA 181
R v Olbrich (1999) 199 CLR 270
[1999] HCA 54
R v Pearce [2020] NSWCCA 61
R v RB [2022] NSWCCA 142
292 A Crim R 355
Xerri v R [2024] HCA 5
Judgment (15 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Legal Aid NSW (Respondent)
File Number(s): 2021/00110222
Publication restriction: Prohibition over the names of the victims or anything tending to identify them, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW).
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 26 April 2024
Before: Coleman SC DCJ
File Number(s): 2021/00110222
[2]
JUDGMENT
PRICE AJA: As Rigg J explains, the sentencing judge did not have the benefit of the recent decisions of this Court in MK v R [2024] NSWCCA 127 ("MK") and RA v R [2024] NSWCCA 149 ("RA"). In RA, Wilson J provides helpful guidance, particularly at [99] and [102], for judges when sentencing an offender for an offence under s 66EA of the Crimes Act 1900 (NSW) ("the Crimes Act").
I agree with Rigg J that the grounds of appeal have been established and the residual discretion to decline to intervene should not be exercised. I agree with the orders that her Honour proposes.
GARLING J: I agree with the orders which Rigg J proposes for the reasons which she gives.
RIGG J: This is a Crown appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") against an aggregate sentence imposed on the respondent by his Honour Coleman SC DCJ (as his Honour then was) ("the sentencing judge") in the District Court of New South Wales at Sydney on 26 April 2024, following convictions by a jury.
The respondent pleaded not guilty to 11 sexual offences alleged to have been committed against two girls. The first three of these were that he:
1. Between 1 January 2015 and 31 December 2018, maintained an unlawful sexual relationship with CH, then 8 to 12 years of age, in which he engaged in two or more unlawful sexual acts (touching CH's breasts; touching CH's genitals; digitally penetrating CH's genitals), contrary to s 66EA(1) of the Crimes Act (count 1).
2. In the alternative to count 1: Between 1 January 2018 and 31 December 2018, had sexual intercourse with CH, then above 10 and under 14 years of age, namely 11 or 12 years of age, in circumstances of aggravation (under authority), contrary to s 66C(2) of the Crimes Act (count 2).
3. In the further alternative to count 1: Between 1 January 2018 and 31 December 2018, indecently assaulted CH, then under 16 years, namely 11 or 12 years, contrary to s 61M(2) Crimes Act (count 3). [1]
Count 4 alleged the possession of child abuse material (two photographs of CH's breasts) in June 2019, in contravention of s 91H(2) of the Crimes Act.
Count 5 alleged that between 1 January 2017 and 7 March 2021 the respondent maintained an unlawful sexual relationship with MH, then 7 to 11 years of age, in which he engaged in two or more unlawful sexual acts (touching MH's breasts; touching MH's genitals; touching MH's genitals with his penis; and performing cunnilingus on MH), contrary to s 66EA(1) of the Crimes Act. Counts 6 to 11 were alternatives to count 5 and were specified individual sexual offences alleged to have been perpetrated against MH with somewhat more defined date ranges than count 5.
On 7 July 2023 the jury returned verdicts of guilty to counts 1, 4 and 5. On 26 April 2024 the respondent was sentenced to an aggregate term of 10 years imprisonment with a non-parole period of 7 years and 6 months, commencing on 20 April 2021. Indicative sentences were specified of 6 years imprisonment for count 1, 1 year for count 4, and 7 years for count 5. The head sentence will expire on 19 April 2031. The respondent will be first eligible for release on parole on 19 October 2028.
There are two grounds of appeal; namely:
1. Ground 1: The sentencing judge erred in his Honour's assessment of the objective seriousness of count 1 and count 5 by acting upon a wrong principle with respect to the unlawful sexual acts that did not form alternative counts on the trial indictment; and
2. Ground 2: The aggregate sentence is manifestly inadequate.
For the following reasons, grounds 1 and 2 should be upheld. The parties are in agreement as to the correct approach to sentencing for contraventions of s 66EA of the Crimes Act, including as to the approach that should have been taken as to the unlawful sexual acts in this matter that did not form alternative counts on the trial indictment. I accept that their agreed approach is correct. The relevant issue for the Court is whether his Honour applied that approach or did not. This requires reference beyond the sentencing judgment, as necessary context for what is contained within it.
[3]
Legislative Framework
Section 66EA of the Crimes Act provides, in part, as follows:
66EA Persistent sexual abuse of a child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty - Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
…
(4) In proceedings for an offence under this section, the prosecution -
(a) 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
(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(5) In order for the accused to be convicted of an offence under this section -
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(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.
…
(7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.
(8) 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.
…
(10) A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).
…
(13) If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.
(14) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(15) In this section -
adult means a person who is of or above the age of 18 years.
child means a person who is under the age of 16 years.
predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences -
(a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,
(b) an offence under a provision of this Act set out in Column 1 of Schedule 1A,
(c) an offence of attempting to commit an 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),
(e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)-(d).
[4]
Findings of fact regarding counts 1 and 5
For the purposes of sentencing, the Crown included as part of its tender bundle a document headed "Proposed Statement of Facts following verdict" ("the proposed facts"). The respondent did not take issue with the prospect of the sentencing judge accepting the proposed facts, which must be taken as based on the evidence in fact given at trial. His Honour noted the lack of challenge, or suggested qualification or addition, to the proposed facts; but also indicated that he had considered them, and the evidence said to support them, before adopting them.
His Honour's sentencing judgment at [9]-[25] sets out the familial relationship between the respondent and victims, and their circumstances between 2015 and 2021, consistently with the proposed facts but without quoting them verbatim. The respondent is the victims' maternal uncle. During the period referred to in the counts on the indictment, he was aged 45 to 51 years. CH was aged 8 to 12 years during the time frame specified in count 1, and MH was aged 7 to 11 years during the time frame specified in count 5. CH and MH are sisters. CH suffers from an autism spectrum disorder. [2]
The victims' family resided in a coastal town in New South Wales in a single-storey dwelling which included a front computer room (containing two computers and a bed) and a single lock-up garage used to play pool. Passwords to the computers in the front computer room were only known by the adults in the family, including the respondent.
The respondent resided with his mother, CF, who suffered from epilepsy. The respondent assisted in her care. From no later than 2010, to 8 April 2017, they lived in the same town as the victims' family. From then until 20 April 2021 they lived further away from the victims.
In 2010 the victims' mother recommenced part-time work. Whilst the respondent and CF resided in the same town as them, CF cared for the victims two to three times per week, generally for three hours at a time, while their parents were at work. The respondent accompanied CF on around two-thirds of these occasions. He and his mother also attended the victims' house for birthday parties, Christmas and other functions.
Between 30 August 2017 and 22 February 2021 the respondent reported to police that he intended to visit the relevant town on at least 44 occasions. [3] Although not specifically mentioned in his Honour's sentencing judgment, the proposed facts made clear that many of those individual visits were for multiple days.
[5]
Approach of the parties to the assessment of objective seriousness of counts 1 and 5
Although there was no disagreement as to the accuracy of the proposed facts, the approach of the parties to the significance of these facts was at variance, and at variance with the approach taken by both parties on appeal. His Honour's approach needs to be understood in the context of the submissions made to him and the less clear state of the law in connection with sentencing for contraventions of s 66EA at that time than is now the case. Both parties' written submissions were finalised prior to the delivery of judgment by the High Court in Xerri v R [2024] HCA 5; 98 ALJR 461 ("Xerri") on 6 March 2024. The sentence proceedings, however, took place on 4 April 2024.
Defence counsel in written submissions dated 14 February 2024 advanced propositions of law which can be seen to correspond almost precisely with the entries in the Sentencing Bench Book, published online by the Judicial Commission ("the Sentencing Bench Book"), for contravention of s 66EA, that persist to the time of writing this judgment.
The following appears in the Sentencing Bench Book and was quoted almost verbatim by Defence Counsel:
"Fact finding following a guilty verdict
It had been held that if a jury returns a guilty verdict to a s 66EA offence committed before 1 December 2018, the judge must consider which of the foundational offences are established beyond reasonable doubt so as to sentence in accordance with the verdict: ARS v R [2011] NSWCCA 266 at [230]. [6] This is consistent with the duty of the judge to determine the facts relevant on sentence: ARS v R at [233] citing R v Isaacs (1997) 41 NSWLR 374 at 378; Cheung v The Queen (2001) 209 CLR 1 at [4]-[8], [161]-[166]."
The following is contained in the Sentencing Bench Book and most of it was cited or quoted verbatim in the written submissions for the respondent:
"Assessing the seriousness of an offence
When sentencing an offender for a s 66EA offence committed on or after 1 December 2018, a consideration of the conduct constituting the unlawful sexual acts towards the child is integral to the assessment of objective seriousness: GP (a pseudonym) v R [2021] NSWCCA 180 at [65]. The offence potentially embraces a wide range of circumstances: Towse v R [2022] NSWCCA 252 at [13]. A number of factors bear upon an assessment of the objective seriousness of a s 66EA offence as observed in Burr v R [2020] NSWCCA 282 (see non-exhaustive list at [106]) and these factors are also relevant when sentencing for a s 66EA offence committed on or after 1 December 2018: GP (a pseudonym) v R at [64]; see also Towse v R at [26]. Regard should also be had to the maximum penalty of 25 years imprisonment for a s 66EA offence committed before 1 December 2018, and life imprisonment for an offence on or after 1 December 2018. [7]
It is not logical to approach the sentencing task by considering what sentences the individual offences (or unlawful sexual acts for an offence committed on or after 1 December 2018) would have attracted had they been charged as isolated offences: R v Fitzgerald (2004) 59 NSWLR 493. There is nothing to suggest Parliament intended sentencing for a course of conduct that had crystallised into a s 66EA conviction to be more harsh than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences: R v Manners [2004] NSWCCA 181 at [21]. Section 66EA is capable of applying to a wide range of conduct constituting sexual offences against children: R v Manners at [34].
Where the offences constituting the s 66EA charge are three or more representative charges (that is, they are not isolated incidents but part of a course of conduct), s 66EA does not permit a departure from the common law approach taken to sentencing for representative counts: ARS v R at [226]. The court can still sentence on the basis the offences were not isolated incidents but the uncharged offences cannot be used to increase the punishment: R v Fitzgerald (2004) 59 NSWLR 493 at [13]; ARS v R at [226]." (Footnotes omitted)
[6]
His Honour's assessment of objective seriousness
The sentencing judge referred to the Burr factors as bearing upon assessment of objective seriousness. His Honour accepted that these factors applied but noted that in Burr the predecessor offence was under consideration, and there had been a plea of guilty with express admissions to 12 "ingredient offences" and a statement of agreed facts, thus Johnson J did not need to consider the question of what facts should be found for the sentencing process. His Honour referred to the endorsement of the continuing relevance of these considerations to the assessment of objective seriousness of offending pursuant to s 66EA in its current form, in GP at [64] and JG at [67], as had been advocated by the Crown.
His Honour stated as follows at [67] of the sentencing judgment:
"As the facts above indicate, for CH the evidence establishes beyond reasonable doubt two unlawful acts by the offender of touching the victim's breasts and vagina and then penetrating her vagina with his finger. As I have set out, I have also found that the offender engaged in a pattern of abuse of the victim during the period specified in the indictment but I cannot find beyond reasonable doubt the number of sexual acts he performed on her. I will take the continued course of abuse into account in understanding that in the relationship the two unlawful sexual acts that were able to be established beyond reasonable doubt were not isolated in nature (see ARS v R [2011] NSWCCA 266 at [226]- [233])."
Similarly regarding MH his Honour stated at [68]:
"For MH, the evidence established four specific unlawful sexual acts. Like CH however I am also satisfied that there was a continuing course of sexual abuse of MH by the offender over the period specified in the indictment. However as for CH I cannot be satisfied beyond reasonable doubt of the number of sexual acts committed by the offender on MH. I will take the continued course of abuse into account in understanding that in the relationship, the four unlawful sexual acts that were able to be established were not isolated in their nature."
The sentencing judge stated at [70] that s 66EA(8) requires the Court to take into account the maximum penalty for the unlawful sexual acts engaged in, where the relationship existed wholly or partly before the commencement of the amendments on 1 December 2018. His Honour noted the maximum penalties of the specific acts he had found proved beyond reasonable doubt. His Honour noted at [71] the applicable maximum penalty for counts 1 and 5 as being life imprisonment, continuing to state:
"Thus, s 66EA(8) when it applies is important as the sentencing judge must consider the maximum penalties for the underlying offences where, such as in the case with CH, there are only a limited number of unlawful sexual acts proven beyond reasonable doubt and it would be incongruous if the judge only considered the maximum penalty of life imprisonment as the guidepost. That is because as here with CH where there are only two offences with the maximum penalties I have set out found beyond reasonable doubt, even in the very worst case of such offending it would be disproportionate to impose a life sentence on an offender."
[7]
Subjective case
The respondent did not give or call evidence on sentence. He was 54 years of age when sentenced. He was convicted in May 2009 and September 2010 of possession of child pornography, resulting in suspended periods of imprisonment of two years and one year respectively. His consequential reporting obligations are mentioned above in relation to providing notification to police of his movements. He was fined in 2020 for a failure to comply with reporting obligations. The Crown did not submit at first instance that the offending was a breach of any condition on liberty, and this position was maintained on appeal.
A Sentencing Assessment Report dated 25 September 2023 ("the 2023 report") recorded that the respondent was his mother's primary carer prior to his arrest, and that she died in June 2022 during his time on remand. He maintained positive relationships with two of his sisters and planned to live with one of them on his release.
The 2023 report recorded that the respondent took no responsibility for his offending and continued to assert that the victims fabricated their allegations. At [90] of the sentencing judgment, the sentencing judge remarked that it was difficult to accept the respondent's denial of a sexual attraction to children, recorded in the 2023 report.
A psychological report prepared in 2010 for the earlier charges indicated a low risk of repeating the offending. The 2023 report recorded assessment by a Community Corrections psychologist of an above average risk of sexual reoffence relative to other male sex offenders, and a medium risk of reoffending generally. The case note of this assessment (which was solely based on file review) was also tendered. The respondent had previously complied with supervision, and he was willing at the time of the preparation of the 2023 report to undertake intervention deemed necessary by Community Corrections, despite his denial of the offences.
The sentencing judge found there was nothing to mitigate the offending, nothing to reduce the respondent's moral culpability for it, no remorse, and a lack of insight into his offending. His Honour found that the respondent's prospects of rehabilitation could not be accurately reassessed.
[8]
Ground 1: The sentencing judge erred in his Honour's assessment of the objective seriousness of count 1 and count 5 by acting upon a wrong principle with respect to the unlawful sexual acts that did not form alternative counts on the trial indictment
It is the common position of the parties that his Honour, having accepted beyond reasonable doubt the totality of offending described by each of CH and MH, was obliged to take all such offending into account in determining the objective seriousness of each s 66EA offence, in determining the appropriate sentence for each s 66EA offence so as to specify indicative sentences for them, and in imposing the aggregate sentence. It is common ground that his Honour would have been in error to limit his determination of these issues to the specific offending captured by the alternative counts on the indictment. The decisions of this Court determined shortly prior to the hearing of this appeal in MK, and shortly after the hearing in RA confirm the joint position of the parties as correct.
The dispute on appeal is whether his Honour did or did not limit the role of the offending beyond the specified individual occasions corresponding with the alternative counts. To resolve the issue in dispute, it is necessary to consider the sentencing judgment, and the submissions made to his Honour, with an understanding of the principles of sentencing in relation to the predecessor offence.
It is a well established principle of sentencing that a person cannot be sentenced for offences for which he has not been charged and convicted: R v De Simoni (1981) 147 CLR 383; [1981] HCA 31; Olbrich.
It has long been the case that sexual offending beyond specific counts for sentence may be taken into account in a particular way. This has usually occurred where such offending is before the Court by way of agreed facts for sentence, or where a sentencing judge has made a finding accepting such broader misconduct (such as where it has been adduced at trial as context or tendency evidence in support of substantive charges of which a person is convicted). In R v H (1980) 3 A Crim R 53 this Court accepted the distinction between the impermissible process of aggravating an offence for which a person stands to be sentenced because of other uncharged misconduct, and the legitimate denial of leniency to an offender in such circumstances. Of the offender's disclosure in that case, in a record of interview, of other sexual contact with his daughter, Street CJ said (at 59):
"The Crown is entitled to point to this as negativing such benefit as the respondent might otherwise have sought to obtain from the assertion that this was a wholly spur of the moment lapse, unprecedented by anything in any way irregular in his earlier conduct towards his daughter."
[9]
The submissions on appeal
The Crown submitted that the sentencing judge erred in limiting the relevance of the general description of repeated or persistent offending, which his Honour accepted, to a finding that the limited acts which were charged as alternative counts on the indictment were not "isolated".
The Crown relied upon his Honour's statements at [67]-[68], [71] and [78]-[79] of the Remarks on Sentence, quoted above at [43]-[45] and [47], regarding the assessment of objective seriousness of the offending. It was submitted that his Honour applied a wrong principle as he was not required to be satisfied of the particulars of the "other acts" in order to find that they occurred for the purposes of sentencing for the s 66EA offences. It was submitted that his Honour's failure to sentence for all the offending he was satisfied had been proved was confirmed by the reference to ARS, which involved sentencing under the predecessor provision with "representative" charges, and other acts being "taken into account" to show that the "representative" acts were not isolated.
The Crown submitted that the evidence accepted by his Honour enabled evidence-based findings to be made beyond reasonable doubt of the frequency, if not the number, of acts perpetrated against CH. Reference was made to Cavanagh J's statement at [65] of GP, where his Honour stated that this was an aspect of what is "integral to the assessment of objective seriousness" for a s 66EA offence. It was submitted that a finding did not have to be precise as to the number, referring also to the judgment of N Adams J in GP at [8].
It was submitted that the evidence accepted by his Honour established that unlawful sexual acts against CH occurred routinely, up to around once per week or fortnight between 1 January 2015 and 8 April 2017, and once per month between 8 April 2017 and 31 December 2019. It was submitted that such a finding would appropriately have captured the frequency of the sexual offending against CH even though it was not possible to determine specifically particularised individual acts.
Similarly, as to the nature of the sexual offending, the Crown submitted that the evidence accepted by the sentencing judge was that the respondent committed sexual acts routinely against CH by touching, squeezing and "jiggling" her breasts, kissing her nipples, digital penetration of her vagina with his finger causing substantial pain, and by thrusting his finger into her vagina then taking it out and licking it.
[10]
Determination of ground 1
I am of the view that his Honour did limit his treatment of offending other than that corresponding with the alternative offences to its capacity to show those particularised offences were not isolated. It is common ground that this would reveal patent error, and it does so. The reasons for which I have determined that his Honour did so limit the evidence are as follows.
The manner in which the case was advanced for the respondent at first instance involved clear engagement with an approach to sentencing taken for the predecessor offence, of limiting evidence of offending which was not sufficiently particularised to found individual "ingredient offences" or "representative offences" to its capacity to show the ingredient offences were not isolated, which was not the correct approach in this matter. This approach was supported by extracts from the Sentencing Bench Book. There was no opposition by the Crown to this approach as a matter of principle. The reliance by both parties on the Burr factors, without qualification, was apt to reinforce the focus on ingredient offences and their number.
The decisions of this Court in MK and RA were delivered after his Honour was required to sentence the respondent, and would have clearly addressed the concerns his Honour raised during the sentencing hearing.
The impugned aspects of the sentencing judgment are clear, particularly when the history of sentencing in this area and the submissions made to his Honour are taken into account.
Once the sentencing judge was satisfied beyond reasonable doubt of the totality of the evidence of both victims, the respondent was to be sentenced for all of it. Although his Honour was required to address the nature and extent of the offending, there was no need in this case for his Honour to determine specifically the number of discrete offences. There was no need to look for "ingredient offences", or "representative offences" or to contrast these with "uncharged offences" or "other offences" which would have a role only in showing the ingredient offences were not isolated. There was no reason to focus on the unlawful sexual acts which corresponded with the alternative counts. Sentencing for maintaining these unlawful sexual relationships was different to sentencing for the same course of conduct had it crystallised into convictions for representative offences.
[11]
Ground 2
To establish manifest inadequacy, the Crown must establish that the sentence imposed was unreasonable or plainly unjust in circumstances where there is no single correct sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325 [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538 [58].
Manifest inadequacy is a conclusion that does not depend on the establishment of specific or patent error. However identification of error may assist to explain why a sentence is manifestly inadequate.
The indicative sentences are not themselves amenable to appeal, and even if the indicative sentences are assessed as being inadequate, it does not necessarily follow that the aggregate sentence is manifestly inadequate.
Although count 1 on the indictment included a time period of four full years (1 January 2015 to 31 December 2018), CH was not sure whether she was in year 3 or 4 at school when the abuse started and did not otherwise nominate an age. She was clear that the last incident was when she was in year 6 at school, close to her sister's birthday (which was in the first half of 2018, when CH would have been 11). Thus the offending continued for at least 1 and a half years, with the period prior to April 2017 involving more frequent abuse than the period after that time, when the respondent did not visit as frequently.
With this qualification as to the time frame of offending, I accept the Crown's estimate of frequency of offending against CH (routinely, up to around once per week or fortnight before 8 April 2017, and once per month after then) as a conservative estimate. CH was subjected to routine indecent assault by the respondent interfering with her breasts and genital area, and painful sexual intercourse by digital penetration. This occurred so many times she lost count.
For the purposes of s 66EA(8) it is not clear that the unlawful sexual acts included sexual intercourse with CH when she was under 10, which would have amounted to a contravention of s 66A of the Crimes Act with a maximum penalty of life imprisonment. However in light of the significant number of occasions of sexual abuse of CH by way of indecent assault and sexual intercourse, the particular maximum penalty for an individual unlawful sexual act is not important. CH was significantly below 16 years of age throughout the respondent's maintenance of an unlawful sexual relationship with her.
[12]
Residual Discretion
Correction of the patent error in relation to ground 1 allows this Court to perform its proper function in responding to a Crown appeal, of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons. Although the same principle has been addressed in two recent decisions of this Court, MK and RA, confirmation of error in the specific way demonstrated by his Honour provides an opportunity for further guidance.
The respondent argued that any manifest inadequacy is not so marked as to amount to "an affront to the administration of justice", citing Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [42]. I am however of the view that the inadequacy is to a degree that warrants intervention. The residual discretion to decline to intervene under s 5D of the Criminal Appeal Act should not be exercised against the Crown.
Grounds 1 and 2 should be upheld and the Court should proceed to resentence.
[13]
Resentencing
The respondent presented material for the purposes of resentencing which demonstrates that he has used his time in custody well. He has taken steps towards self-improvement and seems motivated to work, improve his health, and complete any programmes offered to him. He has continued to be supported by two sisters and some friends. He speaks with one sister daily. His capacity to grieve the death of his mother has been impaired by his incarceration. He has not committed any relevant disciplinary offences.
Contrary to the approach of the sentencing judge I see no reason to indicate a lower sentence for count 1 than count 5. Count 5 may have involved offending over a longer period of time. However, unlike the offending against CH, there is not a basis to find that the offending always or even more often than not involved sexual intercourse, once the respondent had progressed to performing cunnilingus on MH. Some recognition of this uncertainty as to the seriousness of the unlawful sexual acts is required, despite the focus on the relationship rather than specified acts. The commission of unlawful sexual acts against MH continued frequently for a number of years, and this sometimes involved cunnilingus as well as the respondent placing his naked penis against MH's naked genital area, in addition to the indecent assaults. Although the unlawful sexual relationship with CH was likely maintained for a shorter period of time, CH as the victim of count 1 was particularly vulnerable due to her autism. The frequent offending against CH routinely involved painful digital penetration of her vagina.
The indicative sentences must be appropriate for each offence and the aggregate just and appropriate to the totality of the respondent's offending. There is no reason to vary the statutory ratio to provide for a longer period on parole than flows from its usual application. No party submitted that a finding of special circumstances to do so should be made. There was a substantial overlap between the offending in time and circumstance. There nonetheless needs to be distinct recognition of the harm done to each victim, and of the additional criminality of the offending in count 4. In my view, in all the circumstances, the following sentences are indicated:
1. Count 1: 11 years imprisonment;
2. Count 4: 1 year imprisonment; and
3. Count 5: 10 years imprisonment.
[14]
Endnotes
Section 61M(2) of the Crimes Act was repealed on 1 December 2018 by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). It was, alongside s 61L of the Crimes Act, replaced with the offences of sexual touching as set out in ss 61KC and 61KD (for adults) and ss 66DA and 66DB (for children). However, s 61M(2) continues to apply to conduct before 1 December 2018.
Although not included in the Remarks on Sentence, the proposed facts referred to the evidence of CH's mother to the effect that the disorder causes significant social dysfunction, speech delays and intellectual difficulties.
This was pursuant to the respondent's obligations under the Child Protection (Offenders Regulation) Act 2000 (NSW), following a conviction for possession of child pornography in 2010.
See footnote 1.
As noted above at [6], the acts particularised in the indictment also included the respondent touching MH's genitals with his penis and performing cunnilingus on MH. As this paragraph goes on to state, his Honour accepted that these unlawful sexual acts occurred.
The italicised portion of this sentence was not included in the written submissions.
This paragraph was not wholly quoted in the submissions but most parts of it were quoted or paraphrased in the submissions.
This submission was repeated during oral submissions at the sentence hearing.
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
Xerri at [15]-[22] (Gageler CJ, Jagot J); [60] (Gordon, Steward and Gleeson JJ).
His Honour actually said 8 to 9, but the point is the same: see Remarks on Sentence [72].
The potentially unclear nature of such terminology has been referred to on numerous occasions. See for example R v Pearce [2020] NSWCCA 61 at [56], [58]-[59], R v Sharrouf [2023] NSWCCA 137 at [274], Walker v R [2023] NSWCCA 219 at [2]-[3], Towse v R [2022] NSWCCA 252 at [33], RA at [151].
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[15]
Amendments
25 October 2024 - Typographical amendment to [37].
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Decision last updated: 25 October 2024
Reference hereafter to the predecessor offence is in accordance with the definition above.
In light of the grounds of appeal, it is important to have an understanding of how the proposed facts were framed regarding the unlawful sexual acts committed by the respondent. This can be done most suitably by reference to count 1 and its two alternatives. Further, although it is not generally necessary to make reference to the course of exchange between counsel and the sentencing judge, in this case such exchange provides important context to understand the impugned aspects of the sentencing judgment.
[28]-[31] of the proposed facts were in the following terms:
"28. CH said that her uncle had been doing sexual things to her in her home - touching her around her "private areas", which she identified as her breasts and genitals, "a lot". When he touched her breasts, he would "squeeze them, jiggle them… Also will kiss the nipples". When he touched her vagina, he would "stick up his finger through a hole, take it out, lick it"; He would "thrust it in before he took pulled [sic] it out".
29. When he thrust his finger in, CH described feeling "really, really sore".
30. The offender sexually abused CH every time he came to visit, unless he was on a very tight schedule to get back to [the town where he then lived]. The evidence of her parents was that he visited at least twice a week prior to 8 April 2017 and thereafter visited about once or twice a month. CH disclosed it happened "(l)oads of times", "so many times she "lost count".
31. CH described what the offender did to her as "just like a routine". She described the routine as "...he would go to the office with me, by myself. And he will touch my breasts first, then he'll go to the vagina, put his finger in, push it, push it in, out, in, out, he thrusts it, but then he'll take it out and lick it. And then someone would say, if someone wants a coffee or a biscuit, then that stops"." (Footnotes omitted).
The proposed facts referred to aspects of CH's evidence such as the respondent taking photographs of her breasts on many of the occasions of his offending against her. She referred to the approximate school year she was in the first time (year 3 or 4, 2015 / 2016) and last time (year 6, 2018) these acts occurred. She described how she felt and reacted to the offending. She described mechanisms as she grew older "to try and stop the offender's advances" such as stating that she was menstruating or pretending to be very sleepy.
The proposed facts at [38]-[39] summarised CH's description of the very last occasion of offending as follows, supporting counts 2 and 3 which were the alternative counts to the s 66EA offence in the indictment:
"The last occasion (MFI 3, A94-202)
38. CH remembers that on a specific occasion in 2018, at around the time of MH's birthday when CH was in year 6, the offender visited the complainants' home in [the town where they lived]. After getting home from school CH emptied her school bag and gave the offender and her Nan a hug. After emptying out her lunchbox and put [sic] things away, she went into her room to get changed and then she did her homework. After she had finished her homework, she then went into the computer room to play games on the computer.
39. She asked the offender to enter the password on the computer so she could play computer games. She went into her room while he entered the password and then when he told her he had done so, she went into the office. While she sat in front of the computer closest to the door and the offender was sitting on the bed. The offender touched the complainant under and over her clothes, mostly under, on the breasts and then the vagina. When he was touching her he was sitting and standing, but mostly standing. The offender 'squeezed' and [sic] both of CH's breasts (Count 2 in the alternative - s 61M(2)). He then inserted his finger into her vagina and thrust it in before taking his finger out and licked [sic] it. He inserted his finger into her vagina underneath her clothes. This caused her to feel "really really sore" (Count 3 in the alternative - s 66C(2))." (Footnotes omitted)
The description in the proposed facts of MH's evidence was similar, in that there was description generally of what the respondent did to her, this outlining repeated unlawful sexual acts. There was also evidence of four specific occasions of abuse she remembered, which were the first instance, the last instance, and two occasions of abuse in between which occurred at the pool table in the house. The four specific occasions were the basis for the alternative counts numbered 6 to 11 in the indictment.
Consistently with the absence of challenge to the proposed facts by counsel for the respondent, his Honour's summary of the sexual acts committed against CH accorded generally with what has been set out above. It is clear that his Honour accepted all the evidence of CH, as had been summarised in the proposed facts. In the sentencing judgment at [22]-[24] his Honour accepted the general outline of the sexual offending, consistently with the proposed facts.
His Honour acknowledged CH's recollection of the timing of the first and last occasions of abuse, the location of all the abuse being at her home, and her reaction to the offending. His Honour continued in the sentencing judgment as follows, at [27]:
"I cannot be satisfied beyond reasonable doubt as to the particulars of these other acts as if they were charged as separate matters. That is, I cannot be satisfied beyond reasonable doubt as to any specific occasion on which they occurred or the specific number of such sexual acts which took place. I am however, satisfied beyond reasonable doubt that the offender engaged in a course of persistent sexual abuse of CH between 1 January 2015 and 31 December 2019 when he engaged in the acts described by CH."
His Honour then referred to CH's evidence of the specific occasion in 2018, which was the last time sexual offending against CH occurred. His Honour was satisfied beyond reasonable doubt of this evidence, and the fact that it comprised an unlawful sexual act contrary to s 61M(2) of the Crimes Act [4] and an unlawful sexual act contrary to s 66C(2) of the Crimes Act. His Honour noted the maximum penalties of 10 years and 20 years imprisonment for these.
His Honour similarly accepted MH's evidence, as summarised in the proposed facts, regarding the sexual offending throughout the relationship, and, in her case, four specific incidents which she described (these forming the basis of the alternatives to count 5). Of the more generalised description of abuse by MH, his Honour set out his findings, in accordance with the proposed facts, at Remarks on Sentence [31]-[32] (footnote added):
"[31] The offender was also convicted of count 5 on the indictment which charged that between 1 January 2017 and 7 March 2021, the offender maintained an unlawful relationship with MH when MH was between the ages of 7 and 11. The charged acts were particularised as the offender touching MH's breasts and vagina. [5] I am satisfied beyond reasonable doubt from the evidence including the evidence of MH which I accept, that the sexual abuse of MH by the offender started by the offender touching the "boobs" or breasts and then the vagina or "bottom part" of MH. I am satisfied the offending progressed to the offender licking MH's vagina and placing his penis on her vagina.
[32] I accept that this happened to MH, "again and again", when the offender came to the house in [the town where they lived]. MH estimated that she was abused by the offender around 120 to 140 times but she did not know. The sexual abuse would occur either in her bedroom or around the kitchen. I cannot be satisfied beyond reasonable doubt as to the number of times the offender sexually abused MH or the specifics of any actual occasion of such conduct other than the ones I will mention. But I am satisfied beyond reasonable doubt that during the period of 1 January 2017 to 7 March 2021, the offender engaged in a course of persistent sexual abuse of MH at the house in [the town where they lived]."
His Honour thereafter described, and stated that he found proved beyond reasonable doubt, the acts which occurred on the four specific occasions MH described (corresponding with the alternative counts 6 to 11).
The submissions also quoted part of the judgment of Johnson J (Leeming JA and Rothman J agreeing) in Burr v R [2020] NSWCCA 282; 285 A Crim R 504 ("Burr") at [106] which sets out factors relevant to the assessment of objective seriousness of the predecessor offence (collectively "the Burr factors"), as follows:
"Assessing the Objective Seriousness of a s 66EA Offence as Enacted in 1998
[106] It may be seen from statements in decisions of this Court concerning sentencing for a s.66EA offence as enacted in 1998 (and before the 2018 amendments) that a number of factors will bear upon an assessment of the objective seriousness of the offence (see [86]-[95] above). These include:
(a) the number of "sexual offences" (as defined in s.66EA(12)) which were committed on separate occasions by the offender against the victim - the minimum number of ingredient offences to constitute a s.66EA offence was three and the greater the number of offences beyond that threshold, the more serious the s.66EA offence will be;
(b) the nature of the sexual offences committed by the offender against the victim - in this case, each of the 12 offences was an offence under s.66C(3) Crimes Act 1900 for which the maximum penalty was imprisonment for 10 years - the 12 offences included penile-vaginal intercourse, fellatio, cunnilingus, digital penetration of the anus and insertion of a vibrator into the victim's vagina;
(c) the age of the victim at the time of the ingredient offences - "child" is defined in s.66EA(12) as meaning a person under the age of 18 years and the younger the victim was at the time of the ingredient offences, the graver the s.66EA offence will be - here the ingredient offences under s.66C(3) applied to a victim between the ages of 14 and 16 years - the younger the victim is in that relatively narrow band period, 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."
Written submissions for the Crown dated 18 February 2024 did not contend that anything set out in defence counsel's written submissions was wrong as a matter of principle. Although it is not clear whether they were received prior to completion of the Crown submissions, no oral submission was advanced to that effect either.
The Crown submissions referred to the decision of this Court in MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180 ("MK and RB") in relation to the construction of the elements of the offence. The Crown submitted that as a result of this decision there was no need to establish a sexual relationship over and above two or more unlawful sexual acts. It was submitted that the relevant relationship was that of uncle and niece, and the verdict determined the commission of at least two unlawful sexual acts upon each child during the course of that relationship. [8] The Crown submitted that his Honour was however not obliged to sentence on the basis most favourable to the respondent, and usual principles of determining the extent and seriousness of offending as in cases such as R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 ("Olbrich"); Cheung v R (2001) 209 CLR 1; [2001] HCA 67 and R v Isaacs (1997) 41 NSWLR 374 applied.
The prosecutor also urged upon his Honour consideration of the Burr factors and submitted to his Honour that "... these factors are not different when sentencing under the new provision", citing GP (a pseudonym) v R [2021] NSWCCA 180 ("GP") at [64] (Cavanagh J, Brereton JA and N Adams J agreeing) and JG v R [2023] NSWCCA 33 ("JG") at [59]-[67] (Davies J, Simpson AJA agreeing).
In addressing the number of sexual offences which were committed on separate occasions by the offender against the victim CH, it was submitted that her account was that the respondent sexually abused her every time he came to visit except when he was on a very tight schedule to get to his home, and that it happened "a lot". Reference was made to the age of the victim and respondent across the time range particularised by the evidence.
It was submitted in writing, as to the overall gravity of the offending against CH, that:
"Considering all of the above factors: CH's age (ranging from 8-9 and 12 years)… the regularity of the offending conduct, the digital intercourse being part of the 'routine' which cause (sic) pain… the period of offending over 2-3 years… makes this an example of very serious offending."
Similar submissions were made regarding the offending against MH, taking into account all of her evidence.
During the sentencing proceedings on 4 April 2024 his Honour made clear his understanding that defence counsel's submissions were based upon the guidance provided in the Sentencing Bench Book and there was no demur. His Honour expressed concern that the Sentencing Bench Book was not consistent with the decisions of the High Court in Xerri nor this Court in Xerri v R [2021] NSWCCA 268; 292 A Crim R 355 ("Xerri, CCA"). Neither counsel submitted that the Sentencing Bench Book was in any way wrong or in need of adjustment in application. The Crown Prosecutor continued to endorse the Burr factors, and in particular the requirement to consider the number of offences, which is the first factor in Burr. It was submitted that his Honour was required to find at least two acts but that it was open in theory to accept the whole of each complainant's evidence.
His Honour sought assistance from counsel as to any up to date authorities regarding the sentencing process, but it was indicated that no further assistance could be provided.
The sentencing judge was unable to determine the duration of the individual acts against CH, but found that the offending by the respondent would not have been fleeting.
His Honour's determination of the issue of objective seriousness of counts 1 and 5 is set out at [78]-[79] of the sentencing judgment:
"[78] I consider the offending against CH to be a moderately serious example of this type of offending. If the old hypothetical scale was used it would be below the mid-range. I am conscious of the Burr factors I have set out and particularly the nature of the offending. However, I am also conscious of the fact that only two unlawful sexual acts could be found beyond reasonable doubt. Whilst I have also found that there was a pattern of other abuse and that these two specific instances are representative, and I have taken this into account in noting that the unlawful sexual acts I have found beyond reasonable doubt were not isolated, objectively I consider that for an offence of this type on the facts that I have found this is the appropriate assessment.
[79] For the count 5 offence against MH, the Crown submitted that this was a very serious example of such offending. Again, this followed the Crown's analysis of the Burr factors. Defence submitted this offence fell below the mid-range of objective seriousness. I consider this to be a slightly more serious offence than that against CH although still below the mid-range. The evidence allowed a finding of four specific instances of unlawful sexual acts as I have described. Again these are only representative and the abuse perpetrated upon MH over the period was not isolated."
The Crown contention that H's admissions required him to be dealt with on the basis that the act of incest for which he was to be sentenced was a culmination of a series of similar offences, and that the sentence should reflect such prior criminality, was rejected.
Like the difference between not escalating a sentence for a person having pleaded not guilty, and on the other hand mitigating a sentence where a person has pleaded guilty (see Siganto v R (1998) 194 CLR 656; [1998] HCA 74 ('Siganto'), in which criticism of such distinction as "semantics" is noted), the distinction relating to uncharged criminal misconduct disentitling an offender to leniency has been criticised as seeming to "approach the metaphysical": Reiner (1974) 8 SASR 102 per Bray CJ at 105, frequently subsequently cited.
The Queensland case of R v D [1996] 1 Qd R 363; [1995] QCA 329 (reported sub nom R v Dales (1995) 80 A Crim R 50) ("Dales"), which held that withholding leniency for uncharged misconduct is equivalent to punishing the person for such misconduct and thus contrary to principle, was not followed in this State: R v JCW [2000] NSWCCA 209; 112 A Crim R 466 at [38] ("JCW"). In JCW, statements of the two victims were placed before the sentencing court without objection. They revealed an extensive course of sexual abuse, as well as the particular charges to which the offender pleaded guilty. It was conceded during the sentencing proceedings, on the offender's behalf, that the pleas in relation to one of the victims were representative of the abusive conduct. There was further material before the sentencing court (record of interview and psychiatric report) in which the offender made admissions to ongoing sexual misconduct. The sentencing judge in JCW made clear that the offender was not being sentenced for this other behaviour, but that it was relevant in depriving the offender of the leniency which may have been provided to him if the particular charges to which he pleaded guilty were isolated incidents.
On appeal it was unsuccessfully argued that sentencing on the basis of charges being "representative" offended the principle that no one is to be punished for offences for which there has not been a conviction. Spigelman CJ, with whom Ireland and Simpson JJ agreed, invoked Siganto (decided after Dales) where, as indicated above, the analogous issue of mitigation for a plea of guilty was explored and accepted: see [44]-[52] of JCW.
The evidence of uncharged acts before the sentencing judge in JCW was ultimately described (at [68]) as follows:
"An admission of this general character is appropriate to be taken into account for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence. It is not, however, in my opinion, appropriate to be taken into account as a circumstance of aggravation, if that be permissible at all."
This established approach was applied by way of analogy to the predecessor offence. In R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5 ("Fitzgerald"), the offender pleaded guilty to that offence. The offending occurred over a period of approximately seven months. The indictment particularised the conduct as an act of indecent assault and six acts of sexual intercourse without consent. The material facts were essentially undisputed. They specified the detail of these seven events. It was also specified that each of the victim and offender gave police information regarding further offending in general terms, although inconsistent as to the number of times such offending occurred.
In Fitzgerald the Crown contended that the sentencing judge had erred in following the approach to such situations established by R v D (1997) 69 SASR 413 ("D") for a similar offence provision in South Australia. The sentencing judge had followed an aspect of this decision, which supported the approach that where specific incidents are proved as well as some more generalised offending, the relevant person should be sentenced for "representative counts" only. The Crown contended that, instead, the sentencing judge should have sentenced the respondent for the whole of the relevant conduct proved.
Sully J (with whom Barr J and Newman AJ agreed) dismissed the Crown appeal, holding that the sentencing judge had been correct to adopt the South Australian approach. His Honour stated at 503, after indicating his agreement with the reasoning of Doyle CJ in D:
"In my opinion, there is nothing in the New South Wales s 66EA, just as there is nothing in the South Australian s 74, to suggest that Parliament intended that the sentencing for a course of conduct which has crystalised into a 66EA conviction, should be more harsh in outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences."
The judgment was addressing directly the approach to sentencing where specific incidents were able to be particularised, as well as a less specific description of broader offending.
ARS v R [2011] NSWCCA 266 ("ARS") was a conviction and sentence appeal following a jury trial resulting in conviction of one count of the predecessor offence. The indictment set out the s 66EA allegation as count 1, and referred in describing count 1 to "alternative charges and described offences" for consideration of the requirement of conduct in relation to the child on at least three separate occasions and on at least three separate days. The indictment then included 13 alternative counts and described seven additional separate offences. The complainant's evidence described different types and locations of offending. Generally, the alternative counts corresponded with the description of the first occasion of a type of sexual misconduct, or first time at a particular location, which had been described with some particularity. The seven described offences were specific further occasions of offending (by reference to a holiday, or a film that was being watched, for example). The evidence indicated there was more widespread offending than the 13 alternative counts and 7 described offences.
In dismissing the appeal against sentence, Bathurst CJ (with whom James and Johnson JJ agreed) noted at [226] that the sentencing judge found all the foundational offences bar one proved beyond reasonable doubt. The complaint was that the applicant should have been sentenced on the basis that he committed only three offences, the minimum to make out the predecessor offence [not the 19 offences the sentencing judge found proved beyond reasonable doubt]. In the course of dismissing this ground of appeal, it was noted at [226] that the sentencing judge had acknowledged that before he took any "foundational offence" into account he must be satisfied that it occurred within the dates set out in the indictment and satisfied as to the nature of the offence. It was also noted that:
"He acknowledged that the uncharged offences could not be used to increase the penalty provided under s 66EA, and that the fact that the foundational offences may be representative of a broader course of conduct could not be taken into account as an aggravating feature."
Burr involved a guilty plea to count 1 of an indictment, which was a commission of the predecessor offence. Twelve counts of having sexual intercourse with a child between 14 and 16, contrary to s 66C(3) of the Crimes Act, were not proceeded with but were regarded as constituting the "ingredient offences" for the s 66EA offence. The facts were agreed. It was common ground that those 12 ingredient offences were representative counts, and did not represent the totality of the applicant's sexual offences against the victim.
Johnson J (with whom Leeming JA and Rothman J agreed) undertook an extensive analysis of the predecessor offence, and its history and interpretation: [81]-[95]. This included reference to Fitzgerald at [83], [86]-[88] and R v Manners [2004] NSWCCA 181 at [89]-[90]. His Honour stated the following at [96]-[99]:
"[96] The Applicant was to be sentenced upon the basis that his s.66EA offence comprised 12 separate sexual offences under s.66C(3) Crimes Act 1900 in that he had sexual intercourse with the victim who was above the age of 14 years and under the age of 16 years.
[97] These 12 ingredient offences occurred in the course of eight separate incidents over a period of 20 months in 2006 and 2007.
[98] It was common ground that these incidents did not constitute an exhaustive list of the offences committed by the Applicant against the victim, but were themselves representative counts to be dealt with in accordance with the principles stated by Spigelman CJ in R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [63]-[68]. The ingredient offences which constituted the s.66EA offence for which the Applicant was to be sentenced were not isolated incidents so that the Applicant was not entitled to assert, as a type of mitigating factor, that the sexual offences which made up the s.66EA offence constituted the entirety of his offending against the victim.
[99] It remained the case, however, that the Applicant was not to be sentenced for other uncharged conduct which lay outside the ingredient offences of the s.66EA offence: AK v R [2016] NSWCCA 238 at [67]-[75]; Mills v R at [64] (see [93] above)."
At [149] it was again pointed out (by noting an acknowledgment from the applicant's counsel) that the ingredient offences were not isolated, so the applicant was not entitled to leniency, in accordance with the principles in JCW.
It was in the course of determining (and dismissing) grounds of appeal asserting error in assessment of objective seriousness (by reference to the ingredient offences), and manifest excess, in these circumstances, that the Burr factors were set out. Johnson J specifically noted multiple times the differences between the predecessor offence and the section as commenced on 1 December 2018.
Section 66EA, in its current form, took effect from 1 December 2018. [9] Significant differences between the current form of the offence and the predecessor offence were set out in the judgment of this Court in Xerri, CCA at [91], MK and RB, then the High Court in Xerri. [10] The issues for determination were different in those decisions; namely the retrospective operation of the maximum penalty of life imprisonment in Xerri, CCA and Xerri, and the elements of the offence in MK and RB. However the decisions all contain detailed consideration of the purpose of the section in its current form, relevant to the determination of the correct approach to sentencing.
As set out in these cases, there is no longer any requirement for the prosecution to allege particulars for any unlawful sexual act such as would be necessary if the act was charged as a separate offence. Previously, the charge had to specify with reasonable particularity the period during which the offences occurred and had to "describe the nature of" the separate offences alleged to have been committed by the accused during that period.
Further, 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. Rather, the jury must be satisfied that the evidence establishes that an unlawful sexual relationship existed; that is, that there existed a relationship in which an adult engaged in two or more unlawful sexual acts with or towards a child over any period.
Under the predecessor offence, the jury had to be satisfied that the evidence established at least three separate occasions, on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge. The jury had to be satisfied about the material facts of the three occasions, but did not need to be satisfied of the dates or order of those occasions. If more than three occasions were relied on as evidence of the commission of an offence against the section, all the members of the jury had to be satisfied about the same three occasions.
In Xerri, CCA Price J (as his Honour then was) at [94]-[96] referred to the focus of the predecessor offence on the separate offences alleged, and the manner of sentencing for "ingredient offences" as articulated in Burr; and contrasted this with the centrepiece of the current offence as the unlawful sexual relationship, without requirement to allege the particulars of any unlawful sexual act that would be necessary if the act was charged as a separate offence. His Honour stated at [97]:
"Accordingly, it is unnecessary for the prosecution to identify 'ingredient offences' and uncharged acts. It is the whole of the evidence of the relationship between an accused person and the child that may be put before the jury to establish that an unlawful sexual relationship existed and for an offender to be sentenced for all of an offender's sexual misconduct whilst he maintained that unlawful sexual relationship."
Beech-Jones CJ at CL (as his Honour then was), writing the lead judgment in MK and RB (Ward P, Price, Wilson and Lonergan JJ agreeing), traced the history of the predecessor offence, current provision and similar interstate provisions, and their interpretation over time: see [19]-[81]. At [39]-[42] his Honour referred to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission"), of not requiring particularisation in a manner inconsistent with the ways in which complainants remember the child sexual abuse they have suffered, and allowing for the effective charging and successful prosecution of repeated but largely indistinguishable occasions of child sexual abuse.
The judgments in the High Court in Xerri also placed reliance on the recommendations of the Royal Commission in the construction of the legislation.
In the current matter the Crown at first instance relied upon two decisions where the Burr factors were applied, subsequent to the commencement of the provision in its current form, and his Honour referred to these authorities in the sentencing judgment at [64]-[65].
In GP there were four specific occasions of penile-vaginal intercourse relied upon, although the second occasion occurred during a period of five months where the applicant had also forced the victim to perform fellatio upon him at the family home and had penile-vaginal intercourse with her in her bedroom "on a number of occasions": see N Adams J at [9], Cavanagh J at [27]-[36]. The relevant ground of appeal concerned factual error in the assessment of objective seriousness (ejaculation on "some occasions" when evidence supported one occasion only), and did not require consideration of the specific terms of the Burr factors, despite the general endorsement of the relevance of those factors at [64]. In the course of considering the respondent Crown's submission that the factual error did not have the capacity to affect the sentencing outcome, Cavanagh J stated at [68]:
"As the sentencing judge found, there were a number of acts of intercourse occurring over a seven month period when the victim was 12 or 13. It was not necessary for the prosecution to particularise precisely how many there were and when and where those acts occurred, provided that there were at least two unlawful sexual acts. Certainly, the type and nature of the acts would be relevant to the exercise of the sentencing discretion but, in circumstances in which it is not an essential element of the offending to make findings as to precisely how many unlawful sexual acts occurred during the period of the maintenance of the unlawful sexual relationship, some uncertainty in the description of each individual act might not have the significance that it might have if considering the circumstances of a specific offence under another section."
The judgment in GP does not specifically endorse the aspects of the Burr factors which are of potential difficulty in the current appeal; namely, the need to be satisfied of a specific number of unlawful sexual acts, nor the focus on "ingredient offences". The ongoing reference to the Burr factors, as adopted in GP at [64], was endorsed without need for close consideration of its terms in JG (Davies J at [48], [67]; Simpson AJA agreeing; Wilson J dissenting but not on this point - see [106]). The two contraventions of s 66EA were reasonably confined in number of unlawful sexual acts (one specific occasion then 10 to 15 other occasions for count 4, and 10 occasions for count 5).
The Crown in the current appeal made clear it did not contend that these statements are "misplaced". It was however submitted that the new s 66EA, more so than the previous provision, focuses attention in the sentencing exercise upon the maintenance of the unlawful sexual relationship as the centrepiece of the offence, being a relationship perpetuated in a state of corruption by the commission of unlawful sexual acts against the child, referring to Xerri, CCA at [96]; Xerri at [60(a)]; and GP at [67]. The respondent does not disagree with this contention.
Subsequent to his Honour's sentencing of the respondent two decisions of this Court have more squarely addressed the issue.
In MK the first ground of appeal was 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 the offending. The applicant was convicted by a jury of three contraventions of s 66EA because of his repeated offending over a number of years against three brothers. The indictment had also included 24 alternative counts of sexual and indecent assaults against the victims which alleged specific offences. A ground complaining of manifest excess was also pursued, but not argued independently of success on the first ground.
The sentencing judge had recounted the victims' estimates of frequency of offending, such as one victim's evidence that the offending occurred "for a period of seven months, mostly twice a week, sometimes once a week, when his mother was at the gym." Another described fellatio occurring, and also the applicant attempting penile-anal intercourse some 30 to 50 occasions. The best description of the frequency of abuse by the third victim was that it was "full on". His Honour accepted the evidence of the victims beyond reasonable doubt, and referred to these descriptions of the frequency of abuse, and the relevant time periods over which it occurred, in his assessment of the objective seriousness of offending against each victim.
The central contention on appeal was that the sentencing judge failed to properly find the facts of the offending by sentencing the applicant on an estimated frequency of offending, and thus sentencing him for a course of conduct. It was submitted that the sentencing judge was required instead to identify specific occasions on which the applicant committed offences, and to treat those occasions as representative of a wider course of conduct. Reliance was placed on D, Fitzgerald, ARS, and Burr.
Sweeney J, with whom Huggett J agreed, dismissed the appeal. Her Honour was not persuaded that the sentencing judge failed to properly determine the facts of the applicant's offending. Her Honour rejected the argument that ss 66EA(4)-(5) apply only to facilitate convictions, and do not apply to fact finding on sentence: MK at [70], [85]. After quoting aspects of the judgments of the High Court in Xerri and this Court in MK and RB, her Honour held at [85] that:
"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."
Mitchelmore JA agreed with the orders proposed by Sweeney J and stated her reasons shortly. At [5] of MK, her Honour noted the applicant's reliance on s 66EA(8), which was said to direct attention to the specific unlawful sexual acts in which the applicant engaged, and held at [7] that neither this nor the balance of the section supported the approach to sentencing which formed the applicant's central contention. Her Honour noted s 66EA(4)(a) in particular, 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. Her Honour found at [8] that the contention that it was not open to the sentencing judge to rely on the estimates of frequency would also be contrary to the broader legislative context as described by Sweeney J.
Mitchelmore JA noted the ongoing requirement for evidence based findings concerning the extent and seriousness of the offending: [9]. Her Honour held there was no error in the fact-finding process, based on acceptance beyond reasonable doubt of frequency.
In RA the applicant had been sentenced to an aggregate sentence for a number of sexual offences committed against his children and step-grandson. Two of these were contraventions of s 66EA. The second ground of appeal contended that the sentencing judge erred in sentencing the applicant for these offences on the basis of the construction of s 66EA in R v RB [2022] NSWCCA 142; 300 A Crim R 1 ("RB (No 1)").
Agreed facts before the sentencing judge recorded that the applicant's daughter described the first incident of abuse when she was aged 8 or 9 years old, the year before her brother was born. Abuse of this type happened four or five times before another type of conduct occurred when she was 8 to 10 years of age. The second type of offending happened approximately five times, until she was 10. A third type of offending against her happened "at least weekly" from when she was 9 to about 10.
The applicant's son described sexual abuse commencing in 1993 when he was around 9, until 1996 when he was around 12, on average every two to three weeks and usually on weekends when he played basketball and no one else was home. He described the nature of the sexual acts committed.
The sentencing judge, having referred to the decisions of this court in MK and RB, Xerri, CCA, and GP, and the Second Reading Speech, noted inter alia that the offence provision in its current form was intended to overcome difficulties faced by the prosecution in establishing particulars of time, date and individual offence frequently experienced in cases of repeated child sexual abuse. Her Honour had noted that it is unnecessary to identify the "ingredient offences" and "uncharged acts", with the offender rather to be sentenced for the whole of the unlawful sexual relationship. She had found that the Burr factors remain relevant, and the precise number and description of individual sexual acts is not an essential part of proof of the elements of the offence.
Wilson J refused leave to appeal. Her Honour indicated at [83] that the applicant had argued that the decision in MK and RB departed from the principles earlier set out by this Court in RB (No 1) and Xerri, CCA, such that focus in sentencing must be on the "ingredient offences" as with the predecessor offence. Reliance had been placed on decisions relevant to the predecessor offence, including D, Fitzgerald, and ARS, to argue that the correct approach was to identify specific occasions on which sexual offences were committed, and impose sentence reflecting only those offences, treating them as representative counts. The sentencing judge was said to have erred in describing the extent of offending by phrases such as "multiple occasions" and "on average every two or three weeks".
Wilson J held at [85] that this argument traverses basic principles of sentencing law. Her Honour referred at [86]-[88] to the rationale behind the introduction of s 66EA. After quoting the Second Reading Speech, her Honour stated at [89] that Parliament intended that the section in the form it is in now:
"…would both facilitate proof of the offence of persistent child abuse, and ensure that a sentencing court could have regard to all features relevant to the proper assessment of the gravity of the unlawful sexual relationship maintained by the adult offender with a child under 16 years to formulate the sentence to be imposed."
Her Honour relied particularly on s 66EA(4), (5), (8) and (15). Her Honour concluded at [99] that:
"It is beyond question that sentencing judges are required to take into account any conduct that occurs within the period of the offence as charged that would amount to an offence of the nature listed in s 66EA(15), whether or not individual instances of the offending conduct can be identified, enumerated, or particularised. It is enough that the sentencing judge is satisfied that the unlawful sexual acts were committed. The focus of s 66EA is not on proof of a particular number of individual sexual offences, but on proving the existence of a particular kind of relationship. The sentencing judge was accordingly correct to sentence on the basis of repetitive and persistent sexual offending."
At [102] her Honour listed features relevant to the gravity of offending in terms similar to the Burr factors, but without referring to the number of offences, nor using the term "ingredient offences". Adamson JA agreed with the orders proposed by Wilson J, largely for the reasons given by her Honour.
Dhanji J at [159]-[160] stated that he did not accept the applicant's argument that the decision of MK and RB regarding proof of the elements also shifted the sentencing exercise to ingredient offences, because the sentencing judge was not limited to the elements of the offence. Of the principle that a person should not be sentenced for an offence for which they have not been convicted, and the approach in cases such as JCW, his Honour stated at [161]:
"… In the circumstances of a charge or charges relating to a particular act, it is plain that it would not be proper to sentence an offender for acts with respect to which they were not convicted. Where, however, the charge relates to maintaining a relationship with a particular quality, it is not apparent that the same issue arises."
At [162]-[163] his Honour held that there was no issue of the applicant having been sentenced for offences with respect to which he had not been convicted in breach of De Simoni. His Honour was of the view that leave should be granted, but the appeal dismissed.
Further recent decisions of this Court in Massequoi v R [2024] NSWCCA 125 and Nolan v R [2024] NSWCCA 140 raise somewhat related issues, but not as squarely relevant to the issues in the current appeal. They are not inconsistent in any way with the joint position of the parties to this appeal as to the applicable law.
The Crown submitted that evidence-based findings as to the nature and extent of offending could also be made for count 5, concerning MH. It was submitted that the accepted evidence enabled a finding beyond reasonable doubt in relation to the frequency of the offending, as occurring around monthly and likely more frequently at times over the period between 1 January 2017 and 7 March 2021. The sentencing judge accepted that the unlawful sexual acts happened to MH "again and again". While she did not know how many times it happened, she estimated it was 120 to 140 times. The accepted evidence was that the respondent started by touching MH's breasts and then her vagina, and later committed unlawful sexual acts in the nature of licking her vagina and placing his penis on her vagina.
Counsel for the respondent argued that although the passages relied upon by the Crown indicated "at face value" problems with his Honour's approach, when the sentencing judgment was read as a whole the Crown had not demonstrated that his Honour had, as a matter of substance, acted upon a wrong principle. It was submitted that despite those specific passages, the Crown had not established that his Honour did not assess objective seriousness based upon the totality of the offending in the two unlawful sexual relationships, and impose sentence accordingly. Two particular factors were relied upon to support that submission.
The first was that his Honour, after referring to the Burr factors, stated that CH was aged 7 to 8 when the abuse started [11] and aged 12 on the last occasion. As the list in Burr refers to the age of the victim at the time of the ingredient offences, the submission advanced was that his Honour as a matter of substance must have included consideration of the full range of offending against CH in his assessment of objective seriousness and consideration of the appropriate sentence. It was submitted that if this was not the case, his Honour would have identified the age of CH as 12 at the time of offending.
It was secondly submitted that his Honour's conclusion that count 1 was a "moderately serious example of this type of offending" or as "below the midrange" was not apt for a case involving two (non-isolated) unlawful sexual acts of the kind perpetrated against CH on the last occasion in 2018. It was submitted that if his Honour was in fact confining his assessment of objective seriousness of count 1 to the single occasion CH specifically remembered, a less serious characterisation of the offending should have been made.
The principle of not sentencing a person for something for which they have not been convicted is of paramount importance. It has a well established understanding in criminal law. For a sentencing judge to state expressly that he is treating certain offending, which is sexual offending not specifically particularised, as having the role of showing other specified sexual offending to not be isolated clearly invokes those principles, indicating he is not sentencing for that conduct. His Honour's citation of ARS confirms this.
His Honour's statement at [71] that the maximum penalty of life was incongruous for count 1, because there were only two specific offences proved beyond reasonable doubt, with maximum penalties of 10 years and 20 years respectively, confirms that his Honour was not treating the rest of the offending as part of that for which sentence was to be imposed. His Honour's statement that s 66EA(8) was important in this case because of the maximum penalties for those two "underlying offences" corresponds with the treatment of "ingredient offences" under the predecessor offence.
His Honour's reference to CH being 8 or 9 when the offending commenced is not capable in my view of negating the explicit statements made by his Honour as relied upon by the Crown. Further, this age was not reflected in his Honour's suggestion as to the maximum penalties to be taken into account in accordance with s 66EA(8). His Honour referred to a contravention of s 66C(2) of the Crimes Act, which is sexual intercourse with a child aged of or above 10 years and under 14 in circumstances of aggravation, with a maximum penalty of 20 years imprisonment. Section 66A of the Crimes Act has provided for life imprisonment for sexual intercourse with a child under 10 years of age since June 2015, and life imprisonment for aggravated sexual intercourse with a child under 10 years of age in the earlier part of 2015. CH was under 10 in 2015 and for much of 2016 and the offending was aggravated at least because of her being under the authority of the respondent (if not also because of her cognitive impairment). The lack of stated consideration of this issue, alongside a statement that the offending against CH commenced when she was 8 or 9, confirms his Honour did not treat the generalised description of the routine of offending as amounting to "underlying offences" in the same way as the two considered for sentence, corresponding with alternative counts 2 and 3, when CH was clearly over 10.
His Honour specifically mentioned at [35] and [54] of his judgment the terms of s 80AF of the Crimes Act, concerned in part with uncertainty as to a child's age at the time an offence is committed. This was in connection with the two pool table incidents described by MH. These involved sexual intercourse, but it was not clear whether she was 8, 9 or 10 when they occurred. His Honour accordingly treated these as contraventions of s 66C(2) of the Crimes Act with 20 year maximum penalties (rather than the more serious offence with a maximum penalty of life imprisonment if she had been under 10). The absence of reference to this provision in relation to the early months or years of the offending against CH supports the proposition that his Honour did not regard these incidents as before the Court for sentence.
I do not regard his Honour's description of the offending against CH as "moderately serious" and "below midrange" as undermining the Crown's argument. There is insufficient clarity as to what his Honour meant by below midrange to discern from this a conclusion one way or the other as to whether the totality of offending described by CH was taken into account. I do not know for example whether his Honour had in mind the middle 10% of offending as the midrange, or the middle 60%. [12] Further, the word "below" was not quantified in any way.
The sentencing exercise miscarried in his Honour's assessment of the objective seriousness of the s 66EA offences. The relevance of the commission of repeated, persistent, unlawful sexual acts which were accepted as having taken place by the sentencing judge was erroneously limited to demonstration that a small number of specific acts were not isolated. This defeated the purpose of the s 66EA offences in allowing sentencing to take place for unlawful sexual acts which cannot be particularised with specificity, where such acts occur in the maintenance of an unlawful sexual relationship with a child.
Ground 1 should be upheld. As I am also of the view that the sentence is manifestly inadequate, there is no need to consider the issue of whether the demonstration by the Crown of patent error alone is sufficient to result in the Court's intervention.
The relationship of uncle and niece may be regarded as not as oppressive when abuse occurs as the situation where the offender is a parent or adult in the position of a parent. However there was still a breach of trust and CH was under the authority of the respondent when he took responsibility with his mother for caring for her while her parents were at work. The offending occurred in her home. The respondent is 37 years older than CH. CH was particularly vulnerable because of her autism spectrum disorder. The proposed facts include reference to her evidence that she felt her body shutting down, and of going inside herself to get away from the pain she felt about what the respondent was doing to her.
The offending against MH seems to have continued for a longer period of time. It commenced with offending in the nature of indecent assaults, by touching her breasts when she was 7 or 8 years of age. The respondent started touching her vagina also and performed these acts "again and again". His conduct progressed to cunnilingus and pressing his naked penis on her genitals. I adopt his Honour's lack of certainty as to whether the first pool table incident, which included cunnilingus, happened when the victim was 8, 9 or 10. However it is not clear whether this was the first occasion of such sexual intercourse. Either way, by no later than the time MH was about 10 the respondent's offending had progressed to sexual intercourse of this kind. She was also significantly below the age of 16. The respondent is 39 years older than MH.
MH's estimate was of about 120 to 140 instances of sexual abuse in total although she was not sure. The proposed facts provide no information as to the proportion of this estimate involving sexual intercourse as distinct from indecent assaults. On the last occasion of abuse the respondent indecently assaulted MH by touching her breasts for about five minutes. She was 10 or 11, so this occurred either in the second half of 2019, or 2020, or in 2021 prior to the discovery by others of the respondent's offending.
The Crown referred to a number of relevant sentencing decisions of this Court, and sentencing statistics maintained by the Judicial Commission which show relatively few sentences for contraventions of s 66EA shorter than 7 years imprisonment (acknowledging the bluntness of this demonstration). Keeping relevant limitations in mind, recent sentencing authorities of this Court in the following cases have assisted: WP v R [2024] NSWCCA 77, DB v R [2024] NSWCCA 18, DC v R [2023] NSWCCA 82, Towse, MK, and RA.
The respondent emphasised that 10 years is an extremely long sentence, particularly for a person who has never previously been imprisoned. The submission that its impact will be more than twice as onerous as a sentence of imprisonment for five years can be accepted.
Count 4 was committed by the possession of two photographs of CH's naked breasts. Taking this offending into account with the offending in counts 1 and 5, committed in the circumstances I have outlined, and the respondent's circumstances, I am of the view that the aggregate sentence of 10 years imprisonment is manifestly inadequate. The applicant was to be sentenced for two offences which carried maximum penalties of life imprisonment, and these were serious contraventions of s 66EA of the Crimes Act.
I would impose an aggregate sentence of 15 years imprisonment with a non-parole period of 11 years and 3 months.
The orders I propose are as follows:
1. Allow the appeal;
2. Quash the sentence imposed on the respondent in the District Court on 26 April 2024, and in lieu thereof, sentence the respondent to a term of imprisonment of 15 years with a non-parole period of 11 years and 3 months, commencing on 20 April 2021. The date the respondent is first eligible for release to parole is 19 July 2032.