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[2025] NSWCCA 78
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-05-28
Harrison CJ at CL at [1]Hamill J at [88]Rigg J at [89]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v LPCM [2025] NSWCCA 78
Hearing dates: 24 March 2025
Date of orders: 28 May 2025
Decision date: 28 May 2025
Before: Harrison CJ at CL at [1]
Hamill J at [88]
Rigg J at [89]
Decision: Dismiss the Director’s appeal against sentence.
Catchwords: CRIME – appeals – appeal against sentence – child sexual offences – where offender pleaded guilty to two offences against s 66EA of the Crimes Act 1900 – where complainants are the offender’s cousins – guilty plea in District Court – where offender denied certain particularised unlawful acts – where disputed facts hearing proceeded before the sentencing judge – aggregate term of imprisonment imposed
CRIME – appeals – appeal against sentence – whether the sentencing judge erred in determination of objective seriousness – where sentencing judge concluded objective seriousness of the offences was “towards the bottom” and “at the very lowest end” of the range for a s 66EA offence – assessment of objective seriousness for “new” s 66EA – assessment of “ingredient offences” – where sentencing judge expressly relies on sentencing factors set out in Burr v The Queen – whether focus on ingredient offences and Burr v The Queen factors was a limited approach – whether it can be inferred the sentencing judge did not consider “other matters” – whether use of the term “opportunistic” affected the assessment of the objective seriousness
CRIME – appeals – appeal against sentence – whether the sentence is manifestly inadequate – where Crown submits aggregate sentence is “so far below the range of sentences” which could be imposed – where complaint about “weight” given to sentencing considerations does not assist in the resolution of the adequacy – where sentencing judge nominated indicative sentences – where sentence imposed was not plainly unjust
Legislation Cited: Crimes Act 1900 (NSW), ss 66EA, 61M (repealed), 61O (repealed), 61N (repealed)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA
Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited: Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504
GP (a pseudonym) v R [2021] NSWCCA 180
House v The King (1936) 55 CLR 499; [1936] HCA 40
JG v R [2023] NSWCCA 33; (2023) 306 A Crim R 130
R v Fisher [2024] NSWCCA 191
R v Lamey [2025] NSWCCA 17
RA v R [2024] NSWCCA 149
Towse v The Queen [2022] NSWCCA 252
Xerri v R [2021] NSWCCA 268; (2001) 292 A Crim R 355
Category: Principal judgment
Parties: Rex (Appellant)
LPCM (Respondent)
Representation: Counsel:
A Bonnor (Appellant)
P Strickland SC with A Cook SC (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Brightstone Legal (Respondent)
File Number(s): 2021/359380
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The Director of Public Prosecutions, pursuant to s 5D(1) of the Criminal Appeal Act 1912*,* appealed against an aggregate sentence imposed on LPCM by J Smith SC DCJ in the District Court at Parramatta.
On 2 February 2024, LPCM pleaded guilty to two counts of maintaining an unlawful sexual relationship with a child, contrary to s 66EA(1) of the Crimes Act 1900*.* The complainants were LPCM’s cousins. The offending occurred at a unit which LPCM resided with his and the complainants’ maternal grandparents, where both complainants would visit after school and on weekends. On both counts, LPCM did not admit to all the particularised unlawful acts. A disputed facts hearing took place before the sentencing judge in relation to the particularised acts LPCM denied. The disputed facts judgment was delivered on 25 July 2024, establishing the particulars of each count.
In respect of count 1, the sentencing judge found LPCM maintained an unlawful sexual relationship with the complainant, SY, for about 6 to 7 months from late 2004 to mid-2005, who was then aged 8 years old. In respect of count 2, the sentencing judge found LPCM maintained an unlawful sexual relationship with the complainant, CM, between 10 April 2007 to 28 July 2007, who was then aged 11 years old.
The sentencing judge imposed an aggregate term of imprisonment of 3 years and 6 months with a non-parole period of 2 years, commencing 12 September 2024. The earliest date on which LPCM will be eligible for release is 11 September 2026. The head sentence expires on 11 March 2028.
The Director relied on two grounds of appeal:
(1) The sentencing judge erred in his determination of the objective seriousness of the offence in counts 1 and 2 on the indictment.
(2) The aggregate sentence is manifestly inadequate.
The Court held (Harrison CJ at CL, Hamill and Rigg JJ agreeing), dismissing the appeal:
As to Ground 1:
(1) The Crown’s submission that the sentencing judge took an “unduly limited approach” in the assessment of objective seriousness, apparent from his Honour’s express reliance upon sentencing factors articulated by Johnson J in Burr v The Queen [2020] NSWCCA 282 with a focus on the number of ingredient offences, was rejected. His Honour conducted an extensive contested fact finding hearing and made specific reference to his disputed facts judgment in his sentencing remarks. It cannot be inferred his Honour failed to take account of other matters in assessing objective seriousness. There was no error in utilising the factors set out by Johnson J in Burr: [65]-[66], [68]-[73] (Harrison CJ at CL), [88] (Hamill J), [94] (Rigg J).
Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504; RA v R [2024] NSWCCA 149; R v Fisher [2024] NSWCCA 191; GP (a pseudonym) v R [2021] NSWCCA 180; JG v R [2023] NSWCCA 33; (2023) 306 A Crim R 130, cited.
(2) The factors described by Wilson J in RA v R [2024] NSWCCA 149 at [102] are not some form of check list or schedule to which studied reference, and of which recitation, is required. The sentencing judge’s detailed reference to these matters in his disputed facts judgment must be taken to have informed his Honour of the relevant matters, even if they are not recited one by one: [67] (Harrison CJ at CL), [88] (Hamill J), [89] (Rigg J).
Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504; RA v R [2024] NSWCCA 149, cited.
(3) The Crown’s submission that the sentencing judge erroneously understated the extent of the unlawful sexual acts found by him to have taken place, was rejected. His Honour was acutely aware of the difference between occasions of sexual offending and the number of specific sexual offences that went to make up those occasions: [75]-[76] (Harrison CJ at CL), [88] (Hamill J), [89] (Rigg J).
(4) The sentencing judge’s use of the term “opportunistic” when referring to the offending was acceptable and did not erroneously infect his assessment of the objective seriousness. His Honour was attempting to convey that LPCM did not embark on a course of conduct initiated by him to attract and exploit his victims: [77]-[78] (Harrison CJ at CL), [88] (Hamill J), [89] (Rigg J).
As to Ground 2:
(5) The Crown’s submission that the sentencing judge failed to give proper or adequate weight to a nominated consideration does not identify a reason why the sentence is inadequate. The sentencing remarks bespeak a careful and detailed assessment of a series of both competing and complementary considerations. The sentence imposed was not plainly unjust: [82]-[83], [85] (Harrison CJ at CL), [88] (Hamill J), [89] (Rigg J).
(6) The sentencing judge did not fall into error by nominating indicative sentences. The Crown’s submission was no more than a complaint that the sentence was inadequate: [84] (Harrison CJ at CL), [88] (Hamill J), [89] (Rigg J).
Count 1: between 2 October 2003 and 28 July 2007 the respondent maintained an unlawful sexual relationship with [SY] (DOB: XX/10/1996), then a child under 16 years of age, namely 6 to 10 years of age, in which the accused engaged in two or more of the following unlawful sexual acts:
1. touched [SY’s] genitals;
2. masturbated [SY’s] penis;
3. exposed his penis to [SY];
4. incited [SY] to masturbate the accused’s penis;
5. performed fellatio on [SY’s] penis;
6. incited [SY] to perform fellatio on the accused;
7. had penile/anal intercourse with [SY].
Count 2: between 4 January 2006 and 31 January 2008 the respondent maintained an unlawful sexual relationship with [CM] (DOB: XX/01/1996) then a child under 16 years of age, namely 10 to 12 years of age, in which the accused engaged in two or more of the following unlawful sexual acts:
1. exposed his penis to [CM];
2. incited [CM] to touch his penis;
3. touched [CM’s] genitals;
4. masturbated his penis in [CM’s] presence;
5. ejaculated into [CM’s] hands;
6. inserted his penis into [CM’s] mouth;
7. ejaculated into [CM’s] mouth.
On 2 February 2024, LPCM pleaded guilty to each count with the qualification that, with respect to count 1, he admitted the particularised unlawful acts numbered 1 to 4 but denied the unlawful acts numbered 5 to 7 and, with respect to count 2, he admitted the particularised unlawful acts numbered 1 to 5 but denied the unlawful acts numbered 6 and 7.
Between 4 and 7 March 2024, and 22 to 24 July 2024, a disputed facts hearing proceeded before the sentencing judge in relation to the particularised acts which LPCM did not admit. During that hearing, several witnesses gave evidence including CM, SY, SY’s mother and a complaint witness, LPCM, his brother, LPCM’s wife, and two forensic psychiatrists.
On 25 July 2024, the sentencing judge delivered a judgment in relation to the disputed facts. His Honour found the particulars of each count and their duration and time period as set out below.
In respect of count 1, his Honour found that LPCM maintained an unlawful sexual relationship with SY for about 6 to 7 months from late 2004 to mid-2005. The acts which constituted the unlawful sexual relationship were:
(1) putting his hand on SY’s penis;
(2) masturbating SY by moving his hand up and down SY’s penis;
(3) exposing his penis to SY; and
(4) encouraging SY to masturbate him which SY did by moving his hand up and down the respondent’s penis for one to two seconds.
His Honour found that LPCM committed such unlawful sexual acts approximately 10 times in the period late 2004 to mid-2005.
In respect of count 2, the sentencing judge found that LPCM maintained an unlawful sexual relationship with CM between 10 April 2007 and 28 July 2007. The acts constituting the offence were:
(1) exposing his penis to CM;
(2) inciting CM to touch his penis;
(3) touching CM’s genitals;
(4) masturbating his penis in CM’s presence; and
(5) ejaculating into CM’s hands.
The sentencing judge found that these unlawful sexual acts occurred on two separate occasions in the period 10 April to 28 July 2007.
The sentence hearing proceeded on 13 September 2024. On 19 September 2024, the sentencing judge sentenced LPCM to an aggregate term of imprisonment of 3 years and 6 months with a non-parole period of 2 years. The sentence commenced on 12 September 2024. The earliest date on which LPCM will be eligible for release is 11 September 2026. The head sentence expires on 11 March 2028.
The Director relies upon the following grounds of appeal:
Ground 1: The sentencing judge erred in his determination of the objective seriousness of the offence in counts 1 and 2 on the indictment.
Ground 2: The aggregate sentence is manifestly inadequate.
SY and CM are LPCM’s cousins. They share maternal grandparents. LPCM was born in Hong Kong in July 1983. SY was born in October 1996. CM was born in January 1996.
When LPCM was unable to get into university in Hong Kong, his maternal grandparents agreed to pay for him to study in Australia. In October 2003, aged 20, he moved into their two-bedroom unit in Drummoyne and commenced studying for a Diploma in Commerce.
From a young age, both CM and SY went to the Drummoyne unit after school and on weekends.
The sentencing judge found that LPCM maintained an unlawful sexual relationship with SY from late 2004 until mid-2005. At that time, SY was aged 8 and he was 21. The sentencing judge found that in late 2004, SY and LPCM were at the Drummoyne unit. SY went into LPCM’s bedroom while he was watching pornography. SY asked what he was watching. LPCM told SY it was something that adults and boys like to watch. He first refused to let SY watch the pornography, but eventually relented. The pornography involved adult men and women.
In a pretext call with SY, LPCM said that SY asked him what the pornography was and that he asked SY if he wanted to watch it. LPCM told SY he would let him watch it.
In early 2005, SY came into LPCM’s bedroom without knocking. LPCM was watching pornography and masturbating. LPCM said that at one point SY asked, “Can I learn how to do it as well?” (referring to masturbating) and LPCM replied, “You’re just too young.” SY refused to leave and pulled his pants down, showed LPCM his penis and said, “Look, mine can be hard too.” LPCM put his right hand on SY’s penis and masturbated him with an up and down motion and told SY to do it like that. After masturbating SY’s penis for two or three seconds, LPCM asked him, “Do you want to try it on mine?” SY placed his hand on LPCM’s penis and moved it up and down for one to two seconds. LPCM turned back to the pornography on his computer and masturbated himself until he ejaculated. He then went to the bathroom to clean up.
About ten similar incidents happened with SY and LPCM. The sentencing judge found that the incidents between LPCM and SY had ceased by June 2005.
In the second pretext call, LPCM said that in the beginning he would not think about what he was doing because it was just an urge, and he would get very excited and have “like a rush”. He referred to a period where he thought that maybe SY had already grown used to the incidents, which he confirmed was a reference to him thinking that SY got used to the sexual acts because of their repetition. LPCM said he started to ask himself what he was doing and that it could not be right. SY then stopped coming over to play.
LPCM also gave evidence that he would ask SY to sit on his lap when he played games on the computer. He said that he had an erection once or twice and sometimes had been watching pornography before SY came into the room. He said he would push SY away if he was sitting too close to his erection.
The sentencing judge found that LPCM maintained an unlawful sexual relationship with CM between 10 April 2007 and 28 July 2007. He also found that two occasions of unlawful sexual acts occurred during this period, a week apart. At the time, CM was aged 11 and the respondent was aged 24. In April 2007, LPCM bought a Nintendo Wii console. He gave evidence that the console would be connected to the TV in the lounge room, but he kept it in his bedroom and CM would have to ask him to use it. CM often did so. On one occasion, LPCM was masturbating while watching pornography in his bedroom when CM came in. He minimised the porn website and CM asked whether she could play his Wii. He told her to wait, closed the door, finished masturbating and then let her play.
On another occasion, LPCM was watching pornography and masturbating when CM knocked. He minimised the screen and said he was in the middle of something. She asked if she could play the Wii, and said she wanted to stay in his room because there was nothing to do in the living room. He agreed, but told her that she had to face away from the computer and not to look at the screen. He finished masturbating, and went to the toilet to clean up. He then let her play the Wii.
In his oral evidence, LPCM said that he allowed CM to stay in his room because he felt “a little bit stimulated” with someone present. He knew it was wrong to masturbate with a young girl present.
On a third occasion, the sentencing judge found that CM knocked on the door, asking to play the Wii. He noted that LPCM could not be bothered setting it up and asked CM to come in and choose some computer games to play. He made her sit on his lap while she did so, a “little bit at the front” of his lap, towards his knees, to make room to masturbate behind her. CM noticed him masturbating, and turned around and asked what he was doing. He told her to focus on the game and not to worry about him. He then put his left hand near her “waist to groin area” to stabilise her. When LPCM was about to ejaculate, he slipped his left hand into her pants, made a “cup” with it over her genital area. He later grabbed her left hand and placed it on his penis for about two to three seconds, and CM squeezed his penis. When he was about to ejaculate, he told CM to stand on his right so he could “shoot something” in her hand. CM asked what it was and said it was “yucky”. He showed her how to cup her hands and he then ejaculated onto them. CM went and washed her hands, then returned to play the computer game.
The sentencing judge found that there was one other incident with CM, one week later, where “effectively the same incident” occurred.
In November 2018, at a church camp, SY referred to having been sexually abused and later told the pastor he had been raped by a family member. The pastor made a report to police. In February 2021, SY made a statement to police. On 31 August and 2 September 2021, he participated in pretext calls with LPCM.
On 9 December 2021, SY made a further police statement. A few days after hearing that SY had reported LPCM’s sexual abuse of him to the police, CM also went to the police. On 18 December 2021, LPCM was arrested and charged with the offences against SY and CM.
The sentencing judge indicated that the relevant factors in the assessment of the objective seriousness of the offences were those identified by Johnson J in Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504 at [106]. His Honour addressed these in turn, as follows.
First, as to the “number of sexual offences that were committed on separate occasions by [LPCM] against the victim”, the sentencing judge found that in relation to SY, there were about 10 separate occasions of sexual offending and in relation to CM, there were two occasions of sexual offending.
Secondly, as to the “nature of sexual offences” committed, the sentencing judge found that in respect of SY, this was putting LPCM’s hand on SY’s penis, masturbating SY, showing SY LPCM’s penis and encouraging SY to masturbate him. (The evidence established that SY did in fact masturbate the respondent.) The sentencing judge observed that given SY was 8 years old at the time, this conduct amounted to aggravated indecent assaults and aggravated acts of indecency contrary to ss 61M(2) and 61O(2) of the Crimes Act. The maximum penalty for s 61M(2) was imprisonment for 10 years, and 7 years for s 61O(2).
In respect of CM, the sentencing judge found that LPCM exposed his penis to her, incited her to touch his penis, touched her genitals, and masturbated his penis until he ejaculated into her hands. This conduct amounted to aggravated indecent assaults and acts of indecency under ss 61M(1) and 61N(1) of the Crimes Act, as CM was 11 at the time of the offences. The maximum penalty for s 61M(1) was imprisonment for 7 years and imprisonment for 2 years for s 61N(1).
Thirdly, as to the age of the victims at the time of the “ingredient offences”, his Honour noted, correctly, that SY was 8 years old at the time of the offences but that CM was 12, which was incorrect. CM was aged between 11 years and 3 months and 11 years and 6 months during the relevant period.
Fourthly, as to the “period of time during which the ingredient offences were committed” against each victim, the sentencing judge found that in respect of SY, that period was about six months and one week for CM.
Fifthly, the sentencing judge referred to LPCM’s age at the time of the offending, and stated that at the time of each of the ingredient offences he was in his early 20s, “about 12 years older than each of the victims”. (LPCM was aged 21 at the time of the offending against SY and 24 at the time of the offending against CM, or 13 years older than the victim in each case.)
Sixthly, the sentencing judge referred to the “context in which [LPCM] had access to the victims to commit the ingredient offences”, and found that the only reason he had such access was that he was living with their grandparents, where they would be left after school. His Honour observed that LPCM commanded respect due to being the eldest cousin in the cultural context of respect being paid to elders, but did not find that he was relevantly in a position of authority over them or in a position of trust.
The sentencing judge applied three mitigating factors under s 21A(3) of the Act:
the offences were not part of planned or organised criminal activity: s 21A(3)(b);
LPCM’s lack of prior convictions: s 21A(3)(e);
LPCM was of good character: s 21A(3)(f). His Honour additionally described good character as “another important aspect of the subjective case”, referring to references that spoke highly of LPCM’s character.
The sentencing judge found that LPCM was unlikely or very unlikely to reoffend, had good or excellent prospects of rehabilitation and had shown remorse.
The sentencing judge found that LPCM had a difficult childhood in Hong Kong marred by family violence and financial strain. Upon his arrival in Australia, he suffered from symptoms of depression, anxiety and PTSD, which slowly improved and by July 2007 had largely subsided when his younger brother came to Australia.
Dr Chew, forensic psychiatrist, opined that at the time of the offending, LPCM was suffering from complex PTSD along with the stressors of being in a new country. This, together with his relative sexual inexperience, contributed to the offending, impaired his judgment and led to poor decision making. His Honour noted that Dr Chew could not make a diagnosis of paraphilia, such as paedophilia, and that Dr Chew said the offending behaviours were better explained by poor judgment in the context of LPCM’s developmental and psychosocial background. The sentencing judge accepted Dr Chew’s opinion and found that there was a link between LPCM’s PTSD and the offending which reduced his moral culpability. LPCM’s moral culpability was further reduced by his youth and immaturity. The sentencing judge found that these factors reduced the weight to be given to both general and specific deterrence and denunciation.
The sentencing judge noted the absence of a criminal history and that it had been many years since the offending. LPCM had not offended in that time and had married, flourished in an accounting career and had a child. He had made frank admissions to the offences, particularly in the pretext calls with SY. He had expressed remorse to both victims and to others.
The sentencing judge referred to the maximum penalty for s 66EA offences (life imprisonment) and s 25AA of the Crimes (Sentencing Procedure) Act. While the general approach to sentencing offenders for child sexual abuse was to give significant weight to general deterrence, denunciation and protection of the community, his Honour found that general deterrence and denunciation were moderated by mental health issues and LPCM’s upbringing. His Honour gave little weight to specific deterrence and the protection of the community in light of his finding that LPCM was very unlikely to reoffend, and concluded that the purpose of punishment would be served by the fact of imprisonment, rather than by the length of any sentence.
His Honour gained little assistance from the s 66EA cases referred to by the parties, with the possible exception of Towse v The Queen [2022] NSWCCA 252.
For count 1, the sentencing judge nominated an indicative starting point of 3 years imprisonment. After applying a 10% discount for his plea of guilty, and rounding down, his Honour indicated a sentence of 2 years and 8 months for count 1. For count 2, his Honour nominated an indicative starting point of 15 months, which after the 10% discount and rounding down, became an indicative sentence of 13 months.
The sentencing judge imposed an aggregate term of imprisonment of 3 years and 6 months with a non-parole period of 2 years, backdated to commence on 12 September 2024.
Ground 1: The sentencing judge erred in his determination of the objective seriousness of the offence in counts 1 and 2 on the indictment.
Ground 2: The aggregate sentence is manifestly inadequate.
It is uncontroversial that in order to enliven the discretion under s 5D of the Criminal Appeal Act that the Crown is required to demonstrate error in one or more of the respects identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. The Crown submitted that his Honour applied the wrong principles and made errors in his assessment of the objective seriousness of the offending against both victims in the light of the terms of s 66EA(1) and recent authority of this Court.
The contest before his Honour was between the Crown’s submission that the objective seriousness of count 1 against SY was below the mid-range whereas LPCM contended that it fell towards the bottom of the range. The contest with respect to count 2 was between the Crown’s submission that the objective seriousness fell in the low range whereas LPCM contended it was towards the bottom of the range. His Honour found that the objective seriousness of count 1 was “towards the bottom of the range” and that the objective seriousness of count 2 was “at the very lowest end of the range” for a s 66EA offence.
The Crown contends that those findings were erroneous.
LPCM pleaded guilty to two offences against s 66EA. His pleas tacitly acknowledged that he maintained an unlawful sexual relationship with both SY and CM, being a relationship in which he engaged in two or more unlawful sexual acts with or towards each of them over a period. Even though one may wonder what the draftsman’s reference to “unlawful”, in the expression “unlawful sexual relationship with a child” was intended to contribute, the existence of the relationship and its proven unlawfulness says nothing about its relative or comparative seriousness. Assessment of the objective seriousness of the unlawful sexual relationship offence therefore requires consideration of the “two or more unlawful sexual acts” that the prosecution will have alleged were performed over the period in question. It is at the heart of the Crown’s contention under ground 1 in this Court that his Honour’s reference to, and consideration of, what occurred between LPCM and each of his victims was inadequate to expose or reveal a proper understanding or appreciation of the seriousness of what took place, or at least to demonstrate such an understanding or appreciation.
The Crown reasoned as follows.
In the present case, contrasted with other recent authorities of this Court such as R v Lamey [2025] NSWCCA 17 and R v Fisher [2024] NSWCCA 191, the sentencing judge did not accept beyond reasonable doubt the victims’ evidence of acts to which LPCM did not plead guilty and which were the subject of dispute on sentence. His Honour found that SY was a “generally honest witness” but that he was left with “some ultimate doubt about the extent of that honesty on critical issues as well as about his overall reliability”. His Honour concluded that he was not satisfied of SY’s evidence beyond reasonable doubt.
“An essential element of the process of determining the appropriate sentence for these offences is the assessment of the objective seriousness of each offence. The relevant factors in that assessment in relation to the current offences were listed by Johnson J in Burr v The Queen [2020] NSWCCA 282 at paragraph 106. The first of these factors is the number of sexual offences which were committed on separate occasions by the offender against the victim. In respect of SY there were about ten separate occasions of sexual offending, and in respect of CM there were two occasions of sexual offending.
The second relevant factor is the nature of sexual offences committed by the offender against the victim. In respect of SY these were; putting the offender’s hand on the victim’s penis, masturbating the victim, showing the victim his penis and encouraging the victim to masturbate him. This conduct, given the age of SY at the time, amounted to aggravated indecent assaults and aggravated acts of indecency. In respect of CM, the offender exposed his penis to her, incited her to touch his penis, touched her genitals, masturbated his penis in her presence and ejaculated into her hands. These acts amounted to aggravated indecent assault and acts of indecency.
The third relevant factor is the age of the victims at the time of the ingredient offences. SY was eight years old at the time of the offence and CM was 12 years old at the time of the offence. The fourth relevant factor is the period of time during which the ingredient offences were committed against the victim. In respect of SY that period was about six months and in respect of CM it was a period of one week.
The fifth relevant factor is the age of the offender, at the time of the commission of the ingredient offences, and the age differential of the victims. At the time of each of the ingredient offences, the offender was in his early 20s; about 12 years older than each of the victims.
The final factor is the context in which the offender had access to the victims to commit the ingredient offences. Here, the only reason for which the offender had access to each of the victims was that he was living with their grandparents, and the victims would be left with the grandparents after school because of their parents’ work obligations.
…
On my assessment of all of these factors and giving particular weight to the type and number of ingredient offences committed, the limited period of the offending and the nature of the relationship between the offender and the victims I find that count one falls towards the bottom of the range. In respect of count two, the additional factor that the ingredient elements were the bare minimum to constitute and [sic, an]offence, and in addition, took place over a very short period of time. I find that this was offending that fell at the very lowest end of the range of conduct that would, in principle, constitute maintaining an unlawful sexual relationship.”
The Crown does not contend that reference to these factors was erroneous per se. The Crown’s proposition was that there were other matters to which his Honour should have referred but to which he failed to refer. These further or other matters, consisting of details of what occurred between LPCM and the victims, were described at length and in detail in the Crown’s written submissions at [78]. It is unnecessary for present purposes to refer to these matters in detail. It is sufficient to observe that the Crown contended that they were all “features of [LPCM’s] evidence [that] were not referred to in the sentencing judge’s reasons”. The Crown submitted that, in such circumstances, “it is to be inferred” that they “were not taken into account in the assessment of objective seriousness”.
I reject that submission. It must be emphasised that his Honour conducted an extensive contested fact finding hearing over a number of days. His reasons for judgment are dated 25 July 2024. His Honour made specific reference to his decision concerning the disputed facts in his sentencing remarks. I am unable to accept in those circumstances that it should be inferred that his Honour failed to take account of them in assessing objective seriousness of the offences in question. Indeed, the inference that he did not do so must yield in my view to the opposite inference.
More particularly, I do not take his Honour’s reference to the factors set out in Burr at [106] to be some implied suggestion that he simultaneously failed for that reason to consider or take account of the considerations referred to by Wilson J in RA at [102]. Although the Crown did not go as far as to say so, it would be a mistake in my view to raise the factors described by her Honour in RA as some form of check list or schedule to which studied reference, and of which recitation, was required. The detailed reference to these matters in his disputed facts judgment must be taken to have informed his Honour of the relevant matters, even if they are not recited one by one. Indeed, her Honour’s non-exhaustive list of factors shares a number of overlapping features with those in Burr to which his Honour specifically referred.
As LPCM points out, the factors identified by Johnson J in Burr were never intended to be prescriptive or exhaustive. As his Honour said at [107]:
“Other factors may bear upon an assessment of the objective seriousness of a s 66EA offence depending upon the circumstances of the particular case.”
In GP (a pseudonym) v R [2021] NSWCCA 180, this Court considered the new s 66EA offence in relation to a complaint that the sentencing judge found that the offender ejaculated ‘on some occasions’, whereas the facts only permitted a finding that it occurred once. In short, the factual error in that case which led to the appeal being allowed concerned the number of occasions that this had occurred.
The Court found error. Cavanagh J said:
“[64] Both the new and old sections are concerned with persistent sexual abuse of a child. Whilst the wording of s 66EA has changed since Burr, there is nothing in the new provision which might suggest that the factors identified by Johnson J as being important to assessing objective seriousness under the old provision would be different when sentencing under the new provision.
[65] Certainly, as submitted by the Crown, there may be a number of important features to establishing the offence of maintaining an unlawful sexual relationship with a child but a consideration of the conduct constituting the unlawful sexual acts towards the child remains integral to the assessment of objective seriousness.”
“An offence contrary to s 66EA(1) of the Crimes Act can be established based on only two sexual acts. This means that the number of sexual acts beyond that as well as the nature of those sexual acts is relevant to the assessment of the objective seriousness of the offence.”
In JG v R [2023] NSWCCA 33; (2023) 306 A Crim R 130, this Court considered whether the sentencing judge erred in his assessment of the objective seriousness of the offences under s 66EA. In that case, the sentencing judge also relied on the Burr factors in determining objective seriousness. Davies J (with whom Simpson AJA agreed) in allowing the appeal, observed at [67], that the “factors identified by Johnson J in Burr … are still relevant and important”. In determining the appeal, it is evident Davies J assessed the offending by using the factors as set out in Burr.
The sentencing judge’s approach in this case was not erroneous.
Nor am I attracted to the Crown’s submission that his Honour’s reference to “about ten separate occasions of sexual offending” with respect to SY or his reference to “two occasions of sexual offending” with respect to CM is a mistaken reference to the number of specific sexual offences that went to make up those several occasions. So much is clear in my view from his Honour’s reference in terms to “the number of sexual offences which were committed on separate occasions”, a clear acknowledgement that his Honour understood the difference.
In a slightly different context, the Crown draws attention to his Honour’s reference to “the ingredient elements that were the bare minimum to constitute [an] offence”. It is accepted that in fact five unlawful sexual acts were committed against CM on each occasion, well in excess of the “bare minimum” of two such acts required by s 66EA. The Crown submitted it therefore follows that his Honour erroneously understated the extent of the unlawful sexual acts found by him to have taken place and so tended to minimise the offending.
I also reject that submission. It is clear from a reading of his Honour’s remarks that he was acutely aware of the difference between occasions of sexual offending on the one hand and the number of specific sexual offences that went to make up those occasions on the other hand.
Finally, the Crown criticised his Honour’s reference to the offences as “opportunistic” by reason of the fact that the victims came voluntarily into LPCM’s bedroom. His Honour found that this was important to the assessment of objective seriousness and warranted substantial weight. His Honour considered that the offending was “not predatory behaviour in the sense that [LPCM] looked for and/or created opportunities for the offending”. As his Honour made clear, LPCM did not eagerly seek to create situations in which he could commit sexual acts against the victims.
It would in my view be a mistake to elevate the use by a sentencing judge of a word like “opportunistic” to a level of semantic reverence that overshadowed or disregarded the particular factual context in which it was used. If it were possible to interpret his Honour’s use of that word to mean that he considered LPCM’s offences were committed in a situation or a set of circumstances to which he contributed nothing more than his physical presence, then it would arguably have been an error for his Honour to have said so. I do not understand that this is what was intended. It seems to me that, properly understood, his Honour was attempting to convey only that LPCM did not, certainly in the first instance, embark on an active and aggressive course of conduct initiated by him and designed to attract and exploit his victims. LPCM did not groom his victims or attempt by stealth or ruse to persuade them. But for the victims’ interest in coming to him, admittedly for unrelated purposes, the offences may never have been committed. Considered in that context, his Honour’s use of the term opportunistic was entirely acceptable and not something that erroneously infected his assessment of the objective seriousness of the offending.
The Director submitted that the aggregate sentence imposed on LPCM is “so far below the range of sentences that could justly be imposed that it is likely to underline [sic, undermine] public confidence in the proper administration of criminal justice in the sentencing of offenders.” She submitted, somewhat tautologically, that the “manifest inadequacy [of the sentence] is indicative that error was sustained in the sentencing process”.
The Director submitted that in addition to the error contended for under Ground 1, asserting a failure by the sentencing judge to apply appropriate principles for sentencing for s 66EA(1) offences, his Honour also fell into error in the nomination of indicative sentences, his assessment of moral culpability, his treatment of the issue of good character, as well as special circumstances and accumulation. The Director submitted that the weight given to at least one of these considerations, or more than one in combination, “overwhelmed a proper application of totality and/or the purposes of sentencing for offences of the present kind”.
It is trite to observe that there is no correct sentence: the availability and application of discretionary considerations necessarily anticipates the possibility of different outcomes in identical circumstances. Nor does the familiar but questionably helpful submission that a sentencing judge failed to give proper or adequate weight to a nominated consideration identify a reason why the sentence is inadequate. It is simply a complaint using different words that it is. Complaints about weight do not in my opinion assist in the resolution of the adequacy or otherwise of the impugned sentence.
For example, the Director accepted in terms that upon the basis of evidence in the sentencing hearing it was open to his Honour to find that LPCM’s moral culpability for the offending was reduced, particularly for the offending in relation to SY. The Director submitted, however, that “the sentencing judge gave undue weight to this consideration and allowed it unjustifiably to overwhelm countervailing principles of sentencing”. With great respect, that is no more than a submission that his Honour should have come to a different result. If the outcome was open to him, it is difficult in my view to understand how his conclusion could simultaneously be so manifestly inadequate as to be plainly unjust.
The same can be said about the nomination of indicative sentences. Presumably indicative sentences are arrived at following a synthesis of factors relevant to the sentencing exercise. They are the result of the process rather than a step, flawed or otherwise, in that process. The legitimate but limited scope for an assault upon indicative sentences must be supported by more than a submission that they were “so lenient as to indicate error in the aggregate sentence imposed”. Once again, such a submission is no more than a complaint that the sentence was inadequate rather than a reason for me to conclude that it was.
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R
LPCM [2025] NSWCCA 78
(1936) 55 CLR 499
The sentencing judge also referred to the following matters as important to the assessment of the objective seriousness of the offending:
the offending was not predatory because LPCM had not looked for or created opportunities for the offending, and that “each of the offences was opportunistic with the victims themselves coming into his bedroom and him taking advantage of their innocence for his own purposes”;
“although there was a number of ingredient sexual acts”, the offending was more experimental in nature than devious paedophilic conduct; and
LPCM ceased his offending of his own accord.
In relation to the offending against SY, on assessment of these factors and giving particular weight to the type and number of “ingredient offences” committed, the limited period of the offending, and the nature of the relationship, his Honour found that the objective seriousness fell “towards the bottom of the range”.
In relation to the offending against CM, his Honour assessed the above factors in combination with “the additional factor that the ingredient elements were the bare minimum to constitute and[sic] offence, and in addition, took place over a very short period of time”. The sentencing judge concluded that the objective seriousness of the offence “fell at the very lowest end of the range of conduct that would, in principle, constitute maintaining an unlawful sexual relationship.”
His Honour accepted the credibility of CM, and accepted her evidence on the balance of probabilities (including that the sexual offending against her was very routine and ongoing, weekly or almost weekly, and included the respondent putting his penis in her mouth and ejaculating, although she could not identify dates). However, his Honour found that he could not “discount the realistic possibility” that what LPCM said was true, and so could not be satisfied of CM’s evidence beyond reasonable doubt.
His Honour accepted LPCM’s evidence, which he found was “cogent, plausible and consistent with other evidence, including objective evidence”. His Honour also found that LPCM’s “general credibility is supported by his general good character”. On the basis of the evidence that he gave in the sentence proceedings, the sentencing judge found that the unlawful sexual acts which LPCM admitted were established, but those which were not admitted were not established.
LPCM gave evidence of several additional matters that were relevant to an assessment of the objective seriousness of the offending. However, when the sentencing judge proceeded to evaluate the objective seriousness of the offending, he adopted what the Crown maintained was an unduly confined approach which did not take into account LPCM’s evidence of what he did, aside from the commission of the unlawful sexual acts, to maintain the unlawful sexual relationships, and instead fixed upon the so-called “ingredient offences” (the individual unlawful sexual acts) and the “number” of “sexual offences” committed on separate occasions by the respondent against the victims.
While assessing the “number” of “ingredient offences” was appropriate in sentencing for the previous s 66EA(1) offence, which was a different offence, the Crown submitted that that approach does not engage with the centrepiece of the s 66EA(1) offence enacted in 2018. As was explained in Fisher, sentencing for maintaining these unlawful sexual relationships is different to sentencing for the same course of conduct had it crystallised into convictions for representative (or “ingredient”) offences: Fisher at [114]. Sentencing for the present s 66EA offence involves sentencing an offender for maintaining a relationship with the particular quality of being an unlawful sexual relationship with a child: RA v R [2024] NSWCCA 149 at [161] (Dhanji J).
The Crown submitted that what it characterised as an “unduly limited approach” taken by the sentencing judge is apparent from his Honour’s express reliance upon sentencing factors articulated in Burr, with focus upon the number of ingredient offences. The sentencing judge confirmed that he was applying the factors set out in Burr at [106] and, moreover, stated that he gave “particular weight to the type and number of ingredient offences committed”. As Wilson J identified in RA, however, factors apt for evaluation of the objective seriousness of the current s 66EA(1) offence focus rather, among other things, upon the length of the period over which the unlawful sexual relationship was maintained, the extent of the commission of unlawful sexual acts above the statutory threshold of two and the frequency with which unlawful sexual acts were committed: RA at [102].
The passages from his Honour’s sentencing remarks dealing with objective seriousness need to be considered in terms, as follows:
I would dismiss this ground of appeal.
His Honour’s sentencing remarks bespeak a careful and detailed assessment of a series of both competing and complementary considerations. Others may have formed a different opinion about some or all of them. It is not to the point that a different outcome was possible. It is only in circumstances where the sentencing outcome considered in light of the material upon which it is based appears to be plainly unjust that a manifest inadequacy contention can succeed. I do not consider that the sentence imposed in this case was plainly unjust.
This ground of appeal should be dismissed.
In my opinion, the following order should be made:
Dismiss the Director’s appeal against sentence.
HAMILL J: I agree with the order proposed by Harrison CJ at CL. Subject to the observations of Rigg J, I also agree with the Chief Judge’s reasons.
RIGG J: I have had the advantage of considering the draft judgment of Harrison CJ at CL. I agree with his Honour, for the reasons that his Honour has given, that the appeal should be dismissed. I wish to make clear that my agreement with one aspect of his Honour’s reasons is highly particular to the circumstances of this case.
There will be many sentencing exercises for contravention of s 66EA in its current form where unqualified reliance upon the factors identified by Johnson J in Burr causes the sentencing process to miscarry. This will arise particularly where there is a history of pervasive ongoing abuse, with the victim not knowing the number of unlawful sexual acts or not identifying the detail of unlawful sexual acts in a way that would enable them to be charged as discrete offences. Fisher, referred to by his Honour above at [58] and [62], was an example of such a case.
Such cases require a significantly different sentencing approach for the offence in its current form compared to the predecessor offence. In Fisher at [68]-[71], with Price AJA and Garling J agreeing, I considered and explained the decision in Burr. At [76] I referred to the decision of Price J (as his Honour then was) in this Court in Xerri v R [2021] NSWCCA 268; (2001) 292 A Crim R 355, contrasting the sentencing exercise for the offence in its current form with the approach taken for the predecessor offence in Burr. The reliance in Fisher by the parties at first instance and the sentencing judge on the factors set out in Burr was a significant aspect of my acceptance that the sentencing process had miscarried: see for example Fisher at [42], [47], [111].
In Fisher at [36] and [79]-[81] I explained the way in which the Crown at first instance had directed the sentencing judge’s attention to the decisions of this Court in GP and JG, referred to above at [69]-[72] by Harrison CJ at CL, as demonstrating support for the ongoing application of the considerations set out by Johnson J in Burr. However, I explained why those decisions did not require analysis of the differences between the method of sentencing for the predecessor offence that Johnson J was examining in Burr, and the cases before the Court.
In Lamey, referred to by Harrison CJ at CL above at [58], this Court (N Adams, Dhanji and Faulkner JJ) confirmed at [89]-[90] that the appeal in GP was not directly concerned with the issue of assessing the objective seriousness of an offence of contravening s 66EA in its current form where there is not a discrete number of well particularised individual unlawful sexual acts. It was stated that the approval of Burr in GP was limited to the issue in dispute in that appeal.
In the present case, where there was a finite number of discrete offences described with particularity, there was no error in utilising the factors set out by Johnson J in Burr, including reference to the number of sexual offences that were committed on separate occasions, and using the term “ingredient offences”. In the particular circumstances of this case this was an appropriate articulation of the nature and extent of the offending.
For these reasons, additionally to those given by Harrison CJ at CL, I agree with the order proposed by his Honour.