R v Lamey

Solicitors: Office of the Director of Public Prosecutions (NSW) (Applicant) Legal Aid NSW (Respondent) File Number(s): 2019/00320273; 2020/00160284 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 Citation: R v Lamey [2024] NSWDC 490 Date of Decision: 03 September 2024 Before: Bourke SC DCJ File Number(s): 2019/00320273; 2020/00160284

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent was found guilty by a jury of eight child sexual assault offences pertaining to three victims aged, 5, 6 and 11 years. The most serious offence was count 1 which was an offence contrary to s 66EA of the Crimes Act 1900 (NSW) (maintaining an unlawful relationship with a child) which carries a maximum penalty of life imprisonment. The sentencing judge sentenced the respondent on all offences pertaining to the three victims to an aggregate sentence of 8 years and 6 months' imprisonment with a non-parole period of 4 years and 9 months. The Crown appealed against the manifest inadequacy of the aggregate sentence on two grounds. Ground 1 contended that the sentencing judge erred in proceeding on the basis that before an assessment of the extent and frequency of the discrete incidents of sexual abuse making up an offence contrary to s 66EA can be made, a sentencing judge must be satisfied of each incident beyond reasonable doubt. Ground 2 contended that the aggregate sentence was manifestly inadequate. The Court held (N Adams, Dhanji and Faulkner JJ), allowing the appeal, quashing the sentence imposed by the sentencing judge and remitting the matter to be reheard in light of the findings made as to ground 1. As to ground 1 The victim's evidence was that the sexual abuse was regular and ongoing over a period of six months. The sentencing judge found the victim's evidence to be "cogent", "compelling" and "honest" but did not find that the sexual abuse was regular and ongoing because the victim could only specify a few discrete acts. The Court confirmed that 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 Court was satisfied that the sentencing judge erred in proceeding on the basis that he had to be satisfied of each incident beyond reasonable doubt before he could find that the abuse was ongoing: at [11]-[117], [121]-[127]. RA v R [2024] NSWCCA 149; R v Fisher [2024] NSWCCA 191; Massaquoi v R [2024] NSWCCA 125, considered. After accepting that ground 1 was upheld, the Court noted the usual practice when an error of this nature is established is to remit the matter to the sentencing judge to be reconsidered on the correct sentencing principles. The Court went on to consider whether, in order to avoid further delay in this Crown appeal, this Court could find the facts itself based on the findings made by the sentencing judge about the victim of count 1. Although the sentencing judge found the victim to be "cogent", "compelling" and "honest", he did not make any express finding as to whether he found her to be "reliable" insofar as the frequency of the offending was concerned. The Court held that, regrettably, the sentencing judge's findings regarding the victim's reliability were not sufficiently clear as would permit the Court to assess the objective seriousness on count 1 afresh, particularly after a trial. In the circumstances, the only course was to remit the proceedings to the sentencing judge to assess the objective seriousness of count 1 in accordance with the findings made under ground 1: at [129]-[130], [135]-[143]. As to ground 2 Having upheld ground 1, the Court was not in a position to consider whether ground 2 is also established and whether the residual discretion should be exercised: at [147].

JUDGMENT

1. THE COURT: By notice of appeal filed on 1 October 2024, the Director of Public Prosecutions (NSW) appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on the respondent, Benjamin Mark Lamey, on 3 September 2024 by Judge Bourke SC in the Newcastle District Court.
2. On 20 May 2024, the respondent pleaded not guilty to 14 child sexual assault offences and a trial commenced before his Honour and a jury. The offending, which pertained to three victims, all occurred in 2007. Two of the victims, AR (aged 6 at the time of the offences) and MH (aged 11 at the time of the offences) were sisters. The respondent was a close family friend of their mother and stepfather and would regularly visit or stay over at their house and babysat them and their other siblings. The third victim, MC (aged 5 to 6 at the time of the offences) was the respondent's maternal niece and the offences in relation to her occurred at her grandfather's home where the respondent also lived at that time.
3. On 31 May 2024, the jury returned verdicts of guilty in relation to eight of the 14 charges. Counts 2 and 3 were alternative counts to count 1 upon which the respondent was convicted thus no verdict was required in relation to them. The four acquittals pertained to some of the charges concerning the victim MH.
4. Of the eight offences of which the respondent was convicted, count 1 was the most serious. It was an offence contrary to s 66EA of the Crimes Act 1900 (NSW) (maintaining an unlawful relationship with a child) and carried a maximum penalty of life imprisonment. The victim of that offence was AR. Counts 4, 5, 6 and 7 were all offences contrary to s 66A of the Crimes Act (sexual intercourse with a child under 10). They carried a maximum penalty of 25 years' imprisonment and a standard non-parole period of 15 years' imprisonment. They all pertained to the victim MC.
5. Counts 8 and 9 were offences contrary to s 61M(1) of the Crimes Act (aggravated indecent assault) which carries a maximum penalty of 7 years' imprisonment and a standard non-parole period of 5 years. Those offences pertained to MH as did count 13 which was an offence contrary to s 66C(2) of the Crimes Act which carries a maximum penalty of 20 years' imprisonment.
6. In relation to all offences against the three young victims, including the s 66EA offence, his Honour imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") of 8 years and 6 months' imprisonment with a non-parole period ("NPP") of 4 years and 9 months: R v Lamey [2024] NSWDC 490.

The Crown appeal

1. It is well established that the primary purpose of a Crown appeal, as described by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310, is to "establish some matter of principle" and to permit the court to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". That passage was cited with approval in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 300. Their Honours then went on to observe: "The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle'."
2. In Everett v The Queen, McHugh J described the role of Crown appeals against sentence in this way at 306: "The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice."
3. The Crown ultimately relied on the following two grounds of appeal: Ground 1: The sentencing judge acted on an error of principle in the determination of the objective seriousness for the offence in count 1 in the indictment; and Ground 2: The aggregate sentence is manifestly inadequate.
4. Ground 1 is directed solely at his Honour's findings of fact in relation to count 1 and it raises yet again the difficult task faced by sentencing judges in finding facts after trial in relation to an offence against s 66EA of the Crimes Act.

Facts: Areas of dispute

1. As is always the case when an offender is convicted after a trial, it was necessary for the sentencing judge to find the relevant facts upon which the respondent was to be sentenced, consistent with the jury's verdicts. In relation to count 1, that fact-finding included determining the nature and frequency of the sexual offending by the application of well established principles including R v Isaacs (1997) 41 NSWLR 374, The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 and Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14.
2. In order to assist the sentencing judge, the Crown tendered a document at the proceedings on sentence titled "Proposed facts consistent with jury verdict". The respondent accepted those facts as being consistent with the jury verdicts insofar as they pertained to MH. Two discrete issues were disputed for the charges pertaining to MC: it was submitted that his Honour would not accept that count 6 lasted for five minutes nor that count 7 lasted "for a number of minutes".
3. Significantly, the respondent did not accept most of the Crown's suggested facts in relation to count 1 pertaining to the victim AR. The position advanced on his behalf was that the sentencing judge could only be satisfied beyond reasonable doubt that two unlawful sexual acts had been committed against AR.
4. The proposed facts as they pertained to AR were in these terms: "7. Between January 2007 and June 2007, when the offender was 26 and the victim, AR, was 6 years old, the offender maintained an unlawful sexual relationship with her. 8. Sexual contact between the offender and AR happened on a regular basis during this time, described by AR to police as 'he touches it every time he comes over', 'heaps of times' and 'he keeps on touching them and never stops'. 9. AR indicated the sexual contact would occur when sitting on the lounge watching television, late at night when her parents were out or asleep, and when they travelled in the family van together. 10. The regular sexual contact included the following acts: a) Touching the area of AR's vagina outside of her clothing, usually after putting a blanket over AR; b) Touching AR to her buttocks, referred to by AR as playing the 'drums' on her bottom; c) Putting his finger inside AR's vagina; and d) Licking AR's vagina, referred to by AR as 'kisses my rude bits', and again usually after the offender put a blanket over her. 11. AR was able to describe two of the specific incidents in detail. 12. One evening, AR was sleeping in her room. Late in the evening, when her siblings were asleep, the offender came and took her from her bed and placed her on the fold-out lounge in the loungeroom. The offender placed a blanket over AR, pulled down her pyjamas and her underwear, and kissed her on the vagina. AR told him 'don't' and 'no', but he continued. The offender said, 'I'll give you bubble gum', AR responded 'no', but he kept on kissing her vagina. 13. Both MH and Melissa gave evidence that they saw AR with bubble gum in the house, and that it had been provided by the offender. 14. The second incident was when AR was in the family van driving to go to soccer training. At the time, Mr Pearson and the offender taught the girls under 12s soccer team and MH played in this team. 15. The offender sat next to AR in the van. When AR and the offender got into the van, the offender put a blanket over AR's lap and touched her vagina with his finger on the outside of her clothing, described by AR as moving 'around in circles'. He continued to do this until the van arrived at the soccer field and he got out of the car."

Facts on sentence

1. His Honour found the following facts in relation to count 1 which pertained to AR at [7]-[16]: "[7] Turning then to the offending involving AR. Between January and June 2007, when the offender was 26 and the victim, AR, was 6-years-old, the offender maintained an unlawful sexual relationship with her. That is, of course, the effect of the jury's verdict on count 1. There is a dispute, however, as to the nature and frequency of the sexual acts which were committed by the offender. The victim gave evidence to the effect that sexual things were done to her by the offender on a regular basis between January and June 2007. She said that the offender 'touched my rude bits' and when asked how often, she said, 'He touches it every time he comes over'. She also said, 'heaps of times' and 'He keeps on touching them and never stops'. [8] The victim, firstly, gave detail of two specific incidents. In the first specific incident she said she was sleeping in her room when the offender came and took her from her bed. She said he placed her on the fold-out lounge in the lounge room and then placed a blanket over her, pulled down her pyjamas and underwear and kissed her on the vagina. AR said she told the offender 'don't' and 'no', but he continued and that the offender said he would give her bubble gum. She said that although she again said no, the offender kept kissing her on the vagina. [9] The second specific incident which AR described was when she was in the family van being driven to soccer training and the offender was sitting next to her. She said that the offender put a blanket over AR's lap and that he touched her vagina with his finger through her clothing which she described as moving his finger 'around in circles'. She said that he continued to do this until the van arrived at the soccer field. [10] Having considered all of the evidence and, in particular, that of the victim, AR, I am satisfied beyond reasonable doubt that each of these two incidents occurred. However, the Crown submitted that I would also be satisfied beyond reasonable doubt that the unlawful sexual relationship included numerous other sexual acts. In this regard, the witness said that the offender would touch her sexually 'every time' he would come over. There was evidence from the victim's father to the effect that the offender was over at the house pretty much every day and would stay over at least three nights per week. The offender was effectively a trusted member of the household. It is clear, therefore, that he had many opportunities to offend against AR. [11] The victim, AR, was, in my assessment, a credible and compelling witness. I formed this view based on the two police interviews that she gave and also on her pre-recorded evidence. I accept that her account was an honest one, however, given the standard of beyond reasonable doubt which applies to aggravating matters, I have taken care in determining what other sexual incidents I can be satisfied about to that very high standard. [12] As already noted, AR said she was touched sexually 'heaps of times' and 'every time that he comes over'. She said in her second police interview that he touched her under a blanket 'about eight times', although in her pre-recorded evidence she said she thought this was a big number when she was a child. She also referred to an occasion when the offender pulled down her pants and 'he used to play the drums on my bottom'. In cross examination, after being reminded of the two specific incidents, which I have earlier set out, she was asked about 'these other six incidents' and in response said that it was 'more than once on the lounge' and 'more than once in the van'. [13] Having considered the evidence, I am satisfied beyond reasonable doubt that, in addition to the two specific incidents I have detailed above, there was at least one further incident where the offender touched the victim's genital area through her clothes while they were sitting under a blanket on the lounge. I am also satisfied beyond reasonable doubt that at least one further incident of touching the victim's genital area through her clothes occurred when they were covered by a blanket in the van. I am further satisfied beyond reasonable doubt that there was at least one incident in which the offender pulled down the victim's pants and touched her buttocks with his hands, this being the 'drums' incident. [14] I have considered the Crown's submission that the offending also involved an incident or incidents whereby the offender placed his finger 'inside' AR's vagina. This was based, essentially, on AR's disclosure to her father that, 'He touches my rude bits … he puts his finger in my rude bit and smells it. It stings.' However, and as the victim agreed in cross-examination, she did not refer to this allegation in either of her police interviews, nor did she refer to it in her evidence-in-chief. In the circumstances, I am not satisfied about this allegation beyond reasonable doubt. I further note that even if the victim's reported description was accepted at face value, it is insufficiently precise to establish that the incident or incidents involved actual penetration. [15] I record the fact that, in my view, it is very highly probable that there were many more incidents than those about which I am satisfied beyond reasonable doubt. I am conscious of the fact that an important purpose behind s 66EA is to alleviate the difficulties inherent in a child giving accurate evidence concerning a series of sexual offences. However, given the limited degree of specificity in the victim's descriptions, I proceed to sentence and my assessment of the objective seriousness of count 1 on the basis that I have set out. [16] It was on Friday 8 June 2007 when AR was staying with her natural father that she disclosed the offending to him. The father then called the victim's mother and informed her of what had been disclosed. The offender did not return to the house after this, and matters were reported to the police." (Emphasis added.)

Procedural history

1. After AR disclosed the offending to her natural father on 8 June 2007, police were informed. She subsequently provided two interviews to police: on 15 June 2007 and 5 August 2008. The respondent was arrested and participated in an electronically recorded interview in which he denied the allegations. Although he was charged with the offences against AR, these were withdrawn in March 2009.
2. MH was interviewed by police in 2007, after AR complained, but did not disclose the offending to police as she thought she would get into trouble.
3. MC complained to school friends in 2009, which led to police interviewing her in 2009 but at that time neither MC nor her mother wished to go through the court process.
4. On 14 October 2019, both MH and MC went to police. On 6 January 2020, the respondent was arrested in relation to the offences against MH and MC in Queensland, brought to NSW and released on bail on 7 January 2020. On 17 January 2020, further charges were brought, and the respondent was refused bail until 1 April 2020 at which time he was granted Supreme Court bail. On 29 May 2020, he was charged in relation to the offences against AR. He remained on bail until the jury verdicts on 31 May 2024 and has remained in custody since that date.

Crown exhibits

1. The Crown tendered a bundle of documents which included the respondent's criminal history in NSW and Queensland, his custodial history in NSW and the victim impact statements of AR and MC (a victim impact statement from MH was withdrawn from tender). A sentencing assessment report dated 1 August 2024 was also tendered as was a case note report from Yeuk-Wah Ng dated 29 July 2024 pertaining to the respondent's risk of reoffending.

Criminal history

1. The offences were all committed in 2007 when the respondent was 26-27 years old. Prior to that date, he had some driving offences on his record, and he was fined on both 17 July 2006 and 13 November 2006 for larceny offences. The respondent was charged on 14 March 2007 and placed on a bond on 30 April 2007 for contravening an order. He was charged on 13 June 2007 and sentenced to a suspended sentence of imprisonment on 6 April 2009 for destroying property and larceny. He was charged on 15 June 2007 and sentenced to a suspended sentence of imprisonment on 6 April 2009 for further larceny offences. He was charged on 27 June 2007 and sentenced to a suspended sentence of imprisonment on 6 April 2009 for multiple break, enter and steal offences. These offences were committed during the period of the sexual offending against the children in 2007. On 21 April 2008, the respondent was charged with further larceny and break, enter and steal offences and sentenced to a suspended sentence of imprisonment on 6 April 2009.
2. The respondent's only criminal record after the offending in 2007 and 2008 was in Queensland in 2016 for contravening a direction and no conviction was recorded.
3. The sentencing assessment report noted that the respondent was assessed as a medium-low risk of reoffending based on the Level of Service Inventory-Revised (LSI-R) but this was overridden following the STATIC-99R risk assessment which assessed his overall risk of reoffending as "Tier 3/medium" or "Average".

Victim impact statements

1. AR stated in her victim impact statement that when she was seven years old, she started getting night terrors and struggled to be able to eat her food. In her night terrors, the respondent would come into her room at night, and she would wake up scratching at her face. She started self-harming at 11 years of age to control her pain. She attempted suicide at 14 years old because she had no self-worth due to what the respondent had done to her. She observed that because of the respondent she lost her innocence, still does not know who she can trust, does not trust men and finds it hard to trust men in her own family.
2. MC stated in her victim impact statement that she continued to "suffer tremendously" across all aspects of her life due to what the respondent did to her, that he took something from her that will never be returned and that she lost her childhood. She continues to suffer from numerous mental health issues including post-traumatic stress disorder, anxiety and depression.

Defence exhibits

1. The respondent did not give evidence on sentence. He relied on a psychologists' report of Dr Jenna Bollinger dated 30 July 2024 and character letters from some of his family members and a friend: Julie and Christopher Lamey dated 3 August 2024 (the respondent's parents), Jacqueline Lamey dated 4 August 2024, Kelley Lamey dated 4 August 2024 and Georja Lamey dated 4 August 2024 (three of the respondent's sisters), Ricky Jarmain dated 4 August 2024 (a friend) and Nicole Lamey dated 5 August 2024 (the respondent's wife).
2. None of the respondent's family nor his friend accepted the jury verdicts and continue to assert his innocence. None of them had any difficulty with the respondent being around their children.
3. Dr Bollinger assessed the respondent as meeting the criteria for a major depressive disorder and generalised anxiety disorder. She also assessed the respondent to be a low risk of reoffending. She reported that the respondent told her that he used crystal methamphetamine ("ice") for a short time in early 2007. He told her that he did not like what it was doing for him, and he started stealing to pay for his habit. He told her that after that he "never touched it again". Although he continued to deny the offending to Dr Bollinger, she noted that at the time of the offending against AR and MH the respondent was using both ice and cannabis, although he was only using cannabis at the time of the offending against MC.

Remarks on sentence

1. After setting out the above facts, his Honour turned to assess the objective seriousness of each of the offences at [30]-[51]. His Honour commenced by noting the oft-cited passage in R v Gavel [2014] NSWCCA 56 at [110] to the effect that child sexual assault offences have profound and deleterious effects upon victims for many years, if not the whole of their lives.
2. His Honour then turned to consider the objective seriousness of count 1. His Honour used the non-exhaustive list of matters relevant to the objective seriousness of such an offence set out by Wilson J in RA v R (considered further below) as factors in his consideration. He expressed those factors to be: 1. The offending extended over a period of up to six months. 2. The respondent was a trusted member of the victim's family, a regular visitor to the house and in a position of some authority over AR; 3. The victim was 6 years old and so very much towards the lower end of the age range for a "child", while the offender was in his mid-20s, and so a great deal older; 4. As to the number of incidents beyond the statutory threshold of two, count 1 involved a minimum of five incidents: cunnilingus, touching of AR's genitals through her clothes while travelling in the van, two incidents of rubbing AR's genitals through her clothes while they were sitting under a blanket, being once on the lounge and another in the van and when the respondent pulled down AR's pants and touched or played with her buttocks with his hands. 5. His Honour was unable to come to any clear finding as to the frequency or time gap between these five incidents other than to find that they occurred during the period from about early January to about early June 2007.
3. His Honour noted that s 66EA(8) requires the court to have regard to the maximum penalty for the relevant unlawful sexual acts engaged in by the offender during the period in which the unlawful sexual relationship existed. His Honour noted the relevant maximum penalties and that the cunnilingus offence was the most serious (carrying 25 years' imprisonment as a stand-alone offence).
4. His Honour went on to find that the incidents were of relatively brief duration (although this is of limited significance), the offending was opportunistic, and it did not involve planning or sophistication. His Honour was also satisfied that the offending did not involve gratuitous threats or violence or any physical injury although, again, he noted that this did not mitigate the offending.

The respondent's subjective case

1. His Honour considered the respondent's personal circumstances at [53]-[56]. The respondent was aged 44 at the time of sentence. He had no prior convictions for sexual offences although he had a number of convictions for offences involving breaking and entering and dishonesty committed around 2005 to 2006 which was a year prior to the offending for which he was stood for sentence. He was disentitled to leniency on that basis.
2. His Honour referred to the material put before the Court in the report of Dr Bollinger. The respondent had a positive childhood although he suffered some bullying at school. Since leaving school in Year 10, he had usually been employed. At the time of the report, he was a truck driver. Although he had a history of alcohol and drug usage, this was not at "problematic" levels.
3. The respondent had been with his wife for about 24 years. She gave birth to a stillborn baby in 2014 and this remained a matter of significant distress for both of them. However, he and his wife had a daughter who was two-and-a-half-years-old at the time of sentence.
4. The respondent was diagnosed as meeting the criteria for major depressive disorder and generalised anxiety disorder. It was not suggested that there was any link between these conditions and the offences. It was not contended that the respondent's moral culpability was reduced in any way.
5. As for the factor of delay, his Honour referred to the statement of principle in R v Todd [1982] 2 NSWLR 517 that "sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach". His Honour went on to observe that this principle may not apply with such force in a case where the offender has remained silent and hoped that his offending remains undetected. His Honour was satisfied that these observations "might be said to have some application to the case now before the Court".
6. His Honour then observed that rehabilitation during the period of delay may mean that general deterrence was of less significance which was also of relevance to the respondent's case given that there was no evidence that he had committed any offences since 2007. It was further noted that the character references established that the respondent had frequent contact with numerous young children from his extended family during that period. He had maintained a stable relationship with his wife, who remained completely supportive of him, as did various other members of his family. His Honour was ultimately satisfied that the respondent had achieved a great deal towards his own rehabilitation which reduced the importance of general deterrence.

Totality and special circumstances

1. His Honour observed that he found the case to be "a difficult sentencing exercise" because of the need for the sentence to recognise the serious nature of the offences and the fact that there were three young victims whilst not losing sight of the fact that the respondent is now a very different person to when he committed the offences.
2. As for the application of the totality principle, his Honour noted the need to ensure that the sentence was not "crushing" given his findings about rehabilitation but that there should be some notional accumulation among the sentences to recognise that there were three victims and various individual crimes committed on separate occasions.
3. His Honour made what he described as a "reasonably generous finding of special circumstances based on this being the offender's first period of full-time custody, the onerous nature of that custody and the need for him to be subject to a reasonably lengthy period of supervision after release to parole".

Relevant sentencing principles: s 66EA

1. The consideration of ground 1 and to a lesser extent ground 2 concerns the relevant sentencing principles for an offence against s 66EA of the Crimes Act. We propose to consider the relevant sentencing principles for that offence now before turning to consider the respective submissions.
2. The amendments to s 66EA came into effect from 1 December 2018. They were made following the findings and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Two problems were identified in relation to the provision (which appeared in similar terms in legislation in other jurisdictions) as it then stood. The first difficulty was that children struggled to identify individual instances of sexual abuse (rather than the ongoing nature of it) which was required following the decision in S v The Queen (1989) 168 CLR 266; [1989] HCA 66. The second difficulty was that the sentencing court was required to ascertain the jury unanimity in relation to discrete instances of sexual abuse relied upon to support the offence. This appeal is concerned with the amendments which addressed the first of these two problems.
3. In MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180, Beech-Jones CJ at CL (as his Honour then was) (with whom Ward P, Price, Wilson and Lonergan JJ agreed), considered the question of whether an offence under s 66EA is established by proof of the commission of two or more unlawful sexual acts or proof of the existence of a relationship "in which" two or more unlawful sexual acts were committed or proof of the existence of a sexual relationship over and above the commission of two or more unlawful sexual acts. There was no need in that decision to consider the issue the subject of the present appeal, but a number of helpful principles are derived from that decision.
4. As the terms of s 66EA make clear, in order to prove the existence of an unlawful sexual relationship, the prosecution need only prove to the satisfaction of each individual juror that two unlawful sexual acts were committed by the offender in any period: s 66EA(2), s 66EA(5)(c); MK v R; RB v R. Nor is it necessary for the prosecution to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence: s 66EA(4).
5. It is not necessary for the Crown to prove beyond reasonable doubt that the offender's conduct was habitual or continuous in the sense of needing to prove the existence of a sexual relationship over and above the commission of two or more unlawful sexual acts that s 66EA(2) requires: MK v R; RB v R at [95]-[96].

Extent and frequency of offending within an offence contrary to s 66EA

1. The present appeal is concerned with the fact-finding exercise required by the sentencing judge when the evidence discloses that the offending was ongoing during the relevant period, but the victim cannot particularise every incident during the course of the sexually abusive "relationship".
2. In Xerri v R [2021] NSWCCA 268; 292 A Crim R 355, Price J (with whom Bell P (as his Honour then was) agreed) noted (at [94]-[96]) the differences between the current offence and the predecessor including that it is the relationship which is the "centrepiece" of the new offence. His Honour went on to observe the following 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." (Emphasis added.)
3. In MK v R, the applicant sought leave to appeal against the severity of the aggregate sentence imposed on him for three offences contrary to s 66EA in relation to three separate victims. His primary complaint on appeal was that the sentencing judge was not permitted to have regard to the victims' estimated frequency of the offending conduct in sentencing because s 66EA required the sentencing judge to identify specific occasions of offending. It was contended that it was "not open" for a sentencing judge to rely on such estimates. Rather, it was contended that the judge is required to make findings as to the precise occasions on which an offender engaged in unlawful sexual acts. In support of that argument, reliance was placed on decisions concerned with the predecessor offence. The applicant's argument was unanimously rejected by the Court (Mitchelmore JA, Sweeney and Huggett JJ).
4. Mitchelmore JA noted the applicant's reliance on s 66EA(8) and observed the following at [7]: "The purpose of s 66EA(8) is thus to ensure that notwithstanding the retrospective operation of the provision, regard is had to the maximum penalties that applied at the time of the offending. It does not support the approach to sentencing which forms the applicant's central contention, nor does the balance of the provision. I note in particular s 66EA(4)(a), by which the prosecution is not required to allege the particulars of unlawful sexual acts that it would need to if the acts were charged as separate offences. By contrast, the approach for which the applicant contended would require the Court to identify in every case, in his counsel's words, 'the specific occasions of abuse'."

Crown submissions

1. The Crown's position was that despite the fact that the sentencing judge accepted AR to be "compelling", "credible", and "honest" he found that only "a minimum of" five incidents occurred due to the limited specificity in her descriptions in the context of the standard of proof being beyond reasonable doubt. The result was that there was no acceptance for sentencing purposes of any frequency of offending beyond the five incidents found by his Honour. It was submitted that this finding involved a misplaced focus on the number of individual sexual offences.
2. It was submitted that his Honour acted upon a wrong principle by focusing on the isolated incidents that his Honour found established. This approach limited the assessment of objective seriousness to a small number of specific and numerate acts which defeated the purpose of s 66EA. Making a finding as to the specific number of incidents was not an accurate reflection of the features identified by Wilson J in RA v R. It was submitted that the distinction between the number of incidents and the extent of the offending may be subtle but in the present context it was an important one. Whereas the number of offences focuses upon countable acts, the extent of the offending implicitly acknowledges that the acts may not be able to be counted. In this regard, the word "extent" is consistent with the offence contrary to s 66EA and is to be considered alongside the concept of frequency: RA v R at [102(7)].
3. It was submitted that an estimate of frequency of unlawful sexual acts committed upon AR could have been determined beyond reasonable doubt on the evidence available to his Honour based on AR's evidence and the fact that his Honour found it to be credible and compelling.
4. It was noted that one consequence of the finding of only five acts having been established relates to the significance of his Honour's findings that the sexual acts were of brief duration. It was submitted that had his Honour found that the unlawful sexual acts were committed on very many additional occasions (as the Crown contended he would), the brevity of each act would have had little significance.
5. As for the fact that his Honour was not satisfied that the respondent placed his finger inside AR as she alleged, because her evidence was insufficiently precise to establish "actual penetration", it was submitted that it was not necessary to prove actual penetration for such acts to be considered.

Respondent's submissions

1. The respondent's position was that it was open to the sentencing judge to find the facts that he did based on the evidence given by AR at the trial.
2. As for the relevant principles, they were accepted but it was submitted that a "significant and insurmountable point of distinction" in this case is that in each of the decisions relied upon by the Crown the sentencing judge was satisfied beyond reasonable doubt as to the entirety of the victim's evidence: Massaquoi v R at [65], [81], [98]-[100]; MK v R at [9], [26]-[27]; R v Fisher at [25], [31]. Reliance was placed on the fact that issue was joined as to the relevant facts in this matter. It was submitted that different considerations might arise in another case where issue was joined: in Massaquoi v R at [99] it appears to have been acknowledged that "a minute analysis of the evidence with a view to making 'evidence-based findings of fact'" might be required where issue is joined on the extent of the offending.
3. Even though the relevant principles were accepted, it was submitted that they should not be read so as to obscure the profound difficulties in fact-finding that a sentencing judge faces following a trial on s 66EA. Nor should they be read so as to limit the scope of findings that a sentencing judge may make where issue is joined on sentence as to the nature, extent or frequency of the offending.
4. It was submitted that the verdict of the jury did not demand an outcome whereby the sentencing judge accepted all of AR's evidence and that the positive credit findings made by his Honour did not demand acceptance of all of her evidence beyond reasonable doubt.
5. The respondent's counsel then identified aspects of AR's evidence at trial which lacked specificity. It was noted that in her first interview with police on 15 June 2006 she stated simply that "he touches it every time he comes over". When asked when the last time this occurred was, she responded, "I don't know. He never stops". When asked how many times the respondent had "played with her rude bits", she responded, "every time actually, every time" and that this was "heaps of times".
6. Reliance was placed on the fact that AR did not remember the first time that it happened nor the last time. AR could not remember if the respondent kissed her "rude bits" on the inside or outside. She could not remember the last time that he woke her up and got her out of bed and took her to the lounge room. She referred to an occasion when he got out of bed and kept her awake until morning. Although she could remember that the respondent was lying on the lounge with her, she could not remember if anything else happened. She said that the respondent put the blanket over her "about eight times" and that he touched her on the "rude bits" "only in the lounge room and in the car".

Consideration: Ground 1

1. The complaint under this ground was not a challenge to the finding of objective seriousness per se. Nor did the Crown contend that the findings of fact made were not open to his Honour. The ground proceeded on the narrow issue of whether in making the findings of fact he did, his Honour misunderstood and/or misapplied the relevant principles. The specific error was identified as the sentencing judge proceeding on the basis that before an assessment of the extent and frequency of the offending can be made, he had to be satisfied beyond reasonable doubt of each incident relied upon by the Crown.
2. The respondent did not take issue with any of the relevant principles relied upon by the Crown; the area of dispute under this ground was whether his Honour did in fact misapply those well established principles as the Crown contended.
3. As the language of s 66EA and the principles derived from the decisions which have considered it make clear, the respondent was to be sentenced for maintaining an unlawful sexual relationship with AR. Her evidence was that the sexual abuse was regular and ongoing over a period of six months. His Honour's reasons disclose that he proceeded on the basis that in order to determine the scope of the relationship he had to be satisfied beyond reasonable doubt of each specific act.
4. As Wilson J observed in RA v R, 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. Similarly, as Rigg J observed in R v Fisher there was no need for the sentencing judge to determine specifically the number of discrete offences, look for "ingredient offences", or "representative offences" or to contrast these with "uncharged offences" or "other offences".
5. The relevant portion of his Honour's reasons is at [11]-[15] extracted above at [25]. After his Honour noted AR's evidence that the respondent would touch her sexually "every time" he would come over, he made no finding as to whether he accepted that evidence or not. His Honour then went on to apparently accept the evidence from AR's father (sic stepfather) to the effect that the respondent would stay over at least three nights per week and was over nearly every day noting that the respondent had many opportunities to offend against AR.

Disposition of appeal

1. Acceptance that his Honour erred under ground 1 raises the question of what this Court should do with respect to determining the facts on which the adequacy of the sentence should be assessed. As Mitchelmore JA observed in MK v R at [8] and [9], once a sentencing judge accepts the reliability of a witness they are entitled to rely on that evidence as to the frequency of the offending, although the findings must be "evidence based". In RA v R, Wilson J observed at [100] that the fact-finding exercise was straightforward in that case because the applicant specifically acknowledged for the purposes of the agreed fact that he had abused his children repeatedly. In R v Fisher, Rigg J observed at [114] that 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.
2. Thus, if this Court was satisfied that the sentencing judge accepted that AR was a reliable witness it would be open to this Court to determine the adequacy of the sentence, and if necessary, re-sentence the respondent, based on the facts as found by his Honour. The question is whether the sentencing judge's findings regarding AR's credit are sufficiently clear as would permit this Court to assess the objective seriousness on count 1 afresh based on those findings and the trial transcript.
3. His Honour was required to sentence the respondent having presided over his trial. The principles with respect to sentencing after trial are well established. In Cheung v The Queen at [14], Gleeson CJ, Gummow and Hayne JJ adopted the following summary from the decision of this Court in R v Isaacs: "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury … 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. … 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. … 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. …"

The residual discretion

1. When exercising jurisdiction under s 5D of the Criminal Appeal Act, this Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24] ("Bugmy"). It is for the appellant to satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised in the present case: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (French CJ and Gageler J), at [54] (Kiefel, Bell and Keane JJ); Green v The Queen; Quinn v The Queen at [1], [36]; Bugmy at [24].
2. The difficulty with the consideration of the residual discretion in the present appeal is that in upholding ground 1 and concluding that this Court is not in a position to re-find the facts, we have not proceeded to determine ground 2. The fact that ground 1 has been established means that this Court is not in a position to proceed further to consider other matters such as whether ground 2 is also established and whether the residual discretion should be exercised.
3. On the other hand, the order that this matter be remitted to the trial judge follows on from our order that the appeal be allowed. It seems to us that the question of whether this appeal should be allowed is one that remains discretionary. In Green v The Queen; Quinn v The Queen, French CJ, Crennan and Kiefel JJ observed the following at [43] as to possible reasons why the court may decline to intervene in a Crown appeal: "Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."
4. As Rigg J observed in R v Fisher, it is to be accepted that the principles in relation to s 66EA have been addressed in the recent decisions of this Court in MK v R and RA v R but, as was her Honour, we are satisfied that confirmation of error in the specific way demonstrated in this matter provides an opportunity for further guidance. That guidance could, in theory, be provided by stating the correct principle and dismissing the appeal. Such a course would avoid further delay, a matter of some significance, especially in a Crown appeal. Against the above, the Crown has established patent error. As a result, the respondent has been sentenced for serious crimes, without proper findings of fact having been made with respect to the most serious of the offences. In the present case, that fact-finding exercise goes to heart of the nature of the offence created by parliament and of which the respondent was convicted. To dispose of the matter without the gravity of the offending having been properly assessed is prone to undermine public confidence in the administration of justice. That is in the context of a sentence which, on any view, is a lenient one. In our view, the appropriate order is for the matter to be remitted to be dealt with by the sentencing judge in accordance with the reasons of this Court.

Orders

1. Accordingly, we would propose the following orders: 1. The appeal is allowed. 2. The aggregate sentence imposed by Judge Bourke SC on 3 September 2024 is quashed. 3. The matter is remitted to be reheard by Judge Bourke SC consistent with the findings of this Court. 4. The matter is listed for mention before Judge Bourke SC at Newcastle District Court on Wednesday, 26 February 2025 at 10.00am to fix a sentence hearing date. The parties have leave to appear by way of audio-visual link.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2025