[2009] HCA 41
Barbaro v The Queen (2014) 253 CLR 58
[2014] HCA 2
Beckwith v the Queen (1976) 135 CLR 569
[1976] HCA 55
Burr v R [2020] NSWCCA 282
285 A Crim R 504
Corliss v R [2020] NSWCCA 65
Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
Barbaro v The Queen (2014) 253 CLR 58[2014] HCA 2
Beckwith v the Queen (1976) 135 CLR 569[1976] HCA 55
Burr v R [2020] NSWCCA 282285 A Crim R 504
Corliss v R [2020] NSWCCA 65
Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404[2017] HCA 54
Grajewski v DPP (NSW) [2017] NSWCCA 251
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309[1985] HCA 48
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Markarian v R (2005) 228 CLR 357[2005] HCA 25
MC v R [2017] NSWCCA 316(2017) 271 A Crim R 83
Moon v R [2000] NSWCCA 534(2000) 117 A Crim R 497
Palace Gallery Pty Ltd v Workcover Premium Review Panel (2014) 119 SASR 408[2014] SASFC 60
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28
R v MJR (2002) 54 NSWLR 368[2002] NSWCCA 129
R v Ronen [2006] NSWCCA 123(2006) 161 A Crim R 300
Raymond John Munro v Regina [2006] NSWCCA 350
Paul Campbell v R [2018] NSWCCA 87
Re Bolton
Ex Parte Beane (1987) 162 CLR 514
[1987] HCA 12
Siganto v The Queen (1998) 194 CLR 656
[1998] HCA 74
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Judgment (16 paragraphs)
[1]
The applicant's submissions
The applicant submitted that during the period of his offending (9 November 2016 to 14 July 2018), the predecessor offence carried a maximum penalty of 25 years imprisonment. However, the section was amended, including a change in the maximum penalty to life imprisonment to commence on 1 December 2018.
The applicant placed reliance on s 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act") which provides that if an Act increases a penalty, the increased penalty applies only to offences committed after the commencement of the provision of the Act which in this case was 1 December 2018.
Particular reference was made to s 66EA(8), which specifies that a court imposing a sentence for an offence concerning a relationship that existed wholly or partly before the commencement of the relevant amendments must take into account the maximum penalties for the unlawful sexual acts engaged in; however, it does not specify how the previous maximum penalty for a s 66EA(1) offence was to be taken into account.
The applicant noted that the "new" s 66EA(1) was introduced by virtue of the enactment of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The applicant pointed out that by virtue of the same amending legislation, s 25AA of the CSP Act was introduced which included subsection (4) which notes that s 25AA does not affect s 19 of the CSP Act.
The applicant cited R v MJR ("MJR") [4] in which s 19 was considered, and placed emphasis on [19]-[27] and [31] of Spigelman CJ's judgment. Whilst the applicant accepted that this decision predated the introduction of s 25AA, the applicant submitted that the "principle of perceived fairness" was not narrowly confined.
A further submission was made that the present circumstances were not comparable to those in Siganto v The Queen ("Siganto"). [5]
The applicant referred to the Second Reading Speech delivered by the Honourable Mark Speakman SC, the Attorney General of NSW ("the Attorney General"), in relation to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) ("the Bill") in the Legislative Assembly on 6 June 2018 and observed that there was no express statement by the Attorney General to make the maximum penalty for the "new" s 66EA offence retrospective. The applicant submitted that if the Parliamentary intention had been to retrospectively increase the maximum penalty, an express statement would be expected which would include a reference to s 19 of the CSP Act not applying.
In oral argument in this Court, Ms Rodger, counsel for the applicant submitted that s 66EA should not be considered a new offence, but a re-working of an existing offence. Ms Rodger argued that the object of the re-working was to implement the recommendations of the Royal Commission and to amend the section to bring it into "equivalencies with other sections in jurisdictions in Australia such as Queensland and [S]outh Australia". [6]
Ms Rodger argued that the reformulated s 66EA was substantially similar to the predecessor offence. Ms Rodger submitted that the use of the term "predecessor" in the section supported the contention that the "new" s 66EA was a reformulation of the offence and not a new offence.
Ms Rodger submitted that s 66EA(8) did not address the same subject matter as s 19 of the CSP Act.
[2]
The Crown's submissions
The Crown argued that s 66EA was repealed and reconstituted in a new offence on 1 December 2018. The Crown submitted that the relevant amendments incorporated a "manifest legislative intention that the new s. 66EA [has] retrospective effect" which was "easily discernible from the legislative text". [7]
The Crown observed that it was uncontroversial that courts will give effect to a clear intention that a new statutory regime will operate retrospectively and cited Siganto. The Crown's argument was that the current s 66EA was an entirely new offence with distinct elements.
The gravamen of the current offence, the Crown argued, involved the maintenance of an unlawful sexual relationship, being an element that was not present in the predecessor offence. The Crown pointed out that in addition, the number of sexual offences requiring particularisation had become not less than two (as opposed to three) and the current offence did not require the jury to agree on the unlawful sexual acts that formed the unlawful sexual relationship.
The Crown contended that the effect was not to "increase the maximum penalty for the [then] s 66EA(1) offence", [8] but to "enact a new offence, carrying a maximum penalty of life imprisonment, with retrospective effect". [9] The Crown argued that s 19 of the CSP Act had no work to do and did not assist the applicant.
The Crown contended that the plain intent of the amending provisions to replace the predecessor offence with a new offence was supported by the Attorney General's Second Reading Speech.
The Crown submitted that the predecessor offence did not apply retrospectively, whereas the operation of the current offence applies "even to an unlawful relationship that existed wholly before the commencement of the predecessor offence on 15 January 1999". [10]
Another argument was that the applicant's construction created an absurdity whereby relevant offending between 15 January 1999 and 30 November 2018 (the operation of the predecessor offence) would attract a maximum penalty of 25 years imprisonment, whereas the same offending committed prior to that period, being a time when there was no like offence for persistent sexual abuse of a child, would attract the current maximum penalty of imprisonment for life.
[3]
Relevant legislation
The "predecessor offence", which commenced on 15 January 1999, provided as follows:
66EA Persistent sexual abuse of a child
(1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.
(2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
(3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales.
(4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
(5) A charge of an offence against this section:
(a) must specify with reasonable particularity the period during which the offence against this section occurred, and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
(6) In order for the accused to be convicted of an offence against this section:
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and
(b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and
(c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and
(d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section.
(7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6).
(8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10).
(9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence.
(10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly.
(11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(12) In this section:
child means a person under the age of 18 years.
sexual offence means any of the following:
(a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A,
(b) an offence of attempting to commit an offence referred to in paragraph (a),
(c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b).
[4]
Consideration
At the time of the applicant's sexual offending and his arrest, the maximum penalty for the predecessor offence was 25 years imprisonment. However, when he was arraigned in the District Court on 29 August 2019, the predecessor offence had been repealed and the s 66EA(1) offence to which he pleaded guilty had a maximum penalty of life imprisonment.
The Crown's contention that the applicable maximum penalty is life imprisonment faces two hurdles. The first is the general assumption that legislation is not intended to operate retrospectively, which Professor Pearce explains "is most strictly applied in relation to Acts creating an offence because of the manifest injustice that the alternative approach would bring about". [11] However, the presumption is rebuttable.
The second hurdle is s 19 of the CSP Act. Prior to the enactment of s 19, there had been debate regarding the presumption against retrospectivity when there had been an increase in the maximum penalty for an offence between the offending and trial. A number of English decisions, not followed in Australia, determined that the maximum penalty at the date of conviction was applicable. The issue was resolved by s 19 of the CSP Act which provides:
19 Effect of alterations in penalties
(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.
(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.
(3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.
In MJR, Spigelman CJ made the following observations concerning s 19 of the CSP Act:
"[19] As can be seen by contrasting s 19(1) and s 19(2), the legislature has applied the policy that offenders receive the benefit irrespective of the change, that is, if the penalty goes up, they are not subject to it, if it goes down, they receive the benefit of it. This applies a notion of fairness which also appears to underlie some of the reasoning in Samuels v Songaila where Bray CJ said (at 404): "It may be that the courts would be more ready to find a retrospective intention in mitigating legislation".
…
[26] It is, of course, clear in the context of statutory interpretation that where Parliament manifests an intention that a new sentencing regime operate retrospectively, the courts will give effect to that intention (see Siganto v The Queen (1998) 194 CLR 656 at 662). It may also be the case that the purpose to be served by a change in sentencing practice would require the court to take into account the new practice even when sentencing for an offence that occurred many years before, eg, an increased emphasis on general deterrence because of prevalence. Nevertheless, that will not necessarily be so.
[27] Section 19 of the Crimes (Sentencing Procedure) Act 1999 and its predecessor reflects a principle of perceived fairness applicable to maximum and minimum penalties, which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion.
…
[31] Similarly, I am now satisfied, after assessing the above authorities, that it is, "out of keeping" with the provisions of s 19 of the Crimes (Sentencing Procedure) Act, for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender. Accordingly, the view I expressed in R v PLV was incorrect." (emphasis added)
[5]
Ground 2: The Sentencing Judge erred in accumulating the sentence imposed for the s 166 related matter
The applicant referred to s 168(3) of the CPA which provides that when sentencing a person for a related offence, the District Court has the same functions and is subject to the same restrictions and procedures as the Local Court. The applicant submitted that the judge was subject to the restrictions upon accumulation of sentences in the Local Court by s 58 of the CSP Act of not more than 5 years.
The applicant contended that the accumulation of 2 months of the sentence for the s 66EA(1) offence ("the primary offence") and the s 166 offence ("the related offence") resulted in a sentence that ended more than 5 years after the date on which the existing sentence began and was imposed in error.
It was accepted that the judge accumulated the sentence for the primary offence upon the sentence for the related offence. However, the primary offence occurred over an offending period prior to the related offence. The applicant argued that it could not have been the intention of the combined operation of ss 58 and 168(3) to allow for non-compliance with s 58 "by virtue of commencing the related offence sentence first and by accumulating upon the primary sentence".
The applicant argued that the accumulation was in error and this Court should re-sentence by way of a wholly concurrent sentence "or via another course".
The Crown submitted that the judge did not partially accumulate the sentence for the related offence on the primary offence sentence, as the related offence sentence was imposed first. The Crown argued there was no "existing sentence of imprisonment" upon which the s 166 offence was to be served consecutively or partly so. Accordingly, s 58 did not apply and the judge did not err.
[6]
Consideration
It is uncontroversial that s 168(3) of the CPA restricts the District Court to the statutory limitations of the Local Court when sentencing an offender for a related offence. Those limitations include s 58(1) of the CSP Act, which provides:
"The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began."
The sentence imposed by the judge for the breach of the AVO was 4 months imprisonment which did not exceed the maximum sentence that could have been imposed by a magistrate of 2 years or 50 penalty units or both. The applicant's complaint is that the accumulation of 2 months imprisonment upon the sentence for the primary offence resulted in an overall sentence that exceeded the statutory constraint imposed by s 58(1) of the CSP Act and s 168(3) of the CPA.
In advancing this argument, the applicant acknowledged that the judge did not partially accumulate the sentence for the related offence upon the primary offence, as the sentence for the related offence was imposed to commence first in time. In fact, what her Honour did was to partially accumulate the sentence for the primary offence on the related offence. However, the applicant argued that as the primary offence was committed first in time, the sentence for the s 66EA(1) offence should have been imposed before the related offence.
This submission is neither founded in legislation nor case law. The sentencing discretion requires flexibility and her Honour was not obliged to impose the sentence for the breach of the AVO first.
I would reject this ground of appeal.
[7]
Ground 3: The sentence imposed is manifestly excessive in light of the following findings of the sentencing judge:
[8]
(i) offence is below the mid range of objective seriousness;
[9]
(iii) the applicant is not an appropriate vehicle for general deterrence given his low level of intellectual function.
The applicant pointed to the notional undiscounted starting point for the s 66EA(1) offence as being 10 years and the judge's finding of the objective seriousness of the offence as falling below the mid-range of objective seriousness in relation to an offender with a very low level of intellectual functioning.
The applicant submitted that "[i]f the mid-range offence is notionally considered as 12.5 years, given the maximum penalty of 25 years, then a 20% discount for [a] plea of guilty would result in a total sentence of 10 years for an offender of normal intellectual function". [33] The applicant further argued that given the applicant's offence was found to be below the mid-range and given his level of intellectual functioning, the undiscounted starting point of the applicant's sentence ought to have been lower than 10 years. It was contended that this high undiscounted starting point may be explained by the misapplication of the maximum penalty of life imprisonment, which has resulted in a manifestly excessive sentence.
A further submission was that the sentence did not reflect the judge's finding that the applicant was not an appropriate vehicle for general deterrence. The applicant cited Burr as providing support for his complaint of manifest excess.
The Crown submitted that the applicant's contention of manifest excess relied on the premise of the relevant maximum penalty being 25 years imprisonment.
Aside from that contention, the Crown argued that the applicant's offending was prolonged and predatory, was preceded by at least two years of grooming and involved a sexual relationship when the victim was aged 14 and 15 years. The Crown pointed out that the innumerable occasions of penile-vaginal intercourse, at the time of that offending, would have attracted a maximum penalty of 10 years imprisonment for each unlawful sexual act. Furthermore, the Crown contended that the applicant's serious breach of the AVO warranted separate and additional punishment.
Another submission was that the finding of special circumstances substantially reduced the statutory ratio to approximately 60%.
[10]
Consideration
This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [34] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [35]
The focus of the applicant's complaint of manifest excess was on the applicable maximum penalty being 25 years imprisonment, which has been rejected.
The applicant placed reliance on Burr as a comparative case. The offender in Burr pleaded guilty to an offence of persistent sexual abuse of a child, contrary to s 66EA, being the predecessor offence, for which the maximum penalty was 25 years imprisonment. Johnson J made clear that the judgment was "not concerned with sentencing for a s.66EA offence after the 2018 amendments". [36]
In my view, Burr is not a comparative case and does not assist the applicant in his complaint of manifest excess.
In any event, the applicant's submission at [125] above appears to place reliance on an arithmetical approach to sentencing which is fundamentally flawed. There is more to the sentencing exercise than an arithmetical calculation coupled with one subjective factor being his low level of intellectual functioning.
The judge carefully took into account all relevant objective and subjective factors in her remarks on sentence. None of her Honour's findings have been challenged on appeal. The applicant's flagrant disregard of the AVO which had been put in place to protect the victim, his lack of insight into his offending and her Honour's assessment of the very real risk of re-offending, required increased weight to be given to specific deterrence and the protection of the community. Her Honour sympathetically took into account the applicant's intellectual and cognitive deficits by finding that he was not an appropriate vehicle for general deterrence and being a reason for a finding of special circumstances. Her Honour made a favourable finding of special circumstances so that the overall non-parole period of 4 years 11 months is approximately 60% of the overall head sentence of 8 years 2 months.
[11]
Orders
The orders I propose are:
1. Leave to appeal granted.
2. Appeal dismissed.
HAMILL J: I have had the advantage of reading the draft judgment of Price J. I am unable to agree with it. I cannot conclude that the amendments to the Crimes Act 1900 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW), that came into effect at different times in the latter part of 2018, had the effect of rendering s 19 of the Crimes (Sentencing Procedure) Act inoperative in respect of offences under s 66EA of the Crimes Act. To have that impact on such a fundamental provision would require far clearer language than that which is contained in the relevant parts of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) ("the Amendment Act"). Price J has set out the relevant provisions and I will assume that the reader is familiar with his Honour's survey of the relevant parts of the legislation both before and after the passage of the Amendment Act.
The applicant committed the offence under s 66EA between 9 November 2016 and 14 July 2018. He was charged on 15 July 2018. Oddly, the Court Attendance Notice was in the terms of the amended s 66EA, even though those amendments did not take effect until 1 December 2018. [37] By the time the applicant was charged, the amending legislation had been assented to (on 27 June 2018) but was yet to be proclaimed. Nothing turns on this for two reasons. First, on 29 August 2019, the applicant was arraigned on an indictment framed in terms of the amended s 66EA. Secondly, the current version of s 66EA(7) make it plain that that the section "extends to a relationship that existed wholly or partly before the commencement of the amendments".
The Amendment Act introduced a raft of amendments to the law relating to child abuse and child sexual assault in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission"). The amendments related to many of the offence creating provisions in the Crimes Act, the maximum penalties and standard non-parole periods applicable to such offences, and to the law of sentencing for child abuse and child sexual assault.
Some of the amendments to s 66EA were largely facilitative and responsive to the difficulties of proof and decisions of the courts which created obstacles to the prosecution and conviction of people, like the applicant, who engaged in the persistent sexual abuse of a child. Such amendments included the abolition of any requirement that the individual sexual acts relied on be particularised in the way that a stand-alone charge would need to be particularised. [38] Similarly, the amendments dispensed with the requirement that the jury be satisfied beyond reasonable doubt of such particulars or that its members had to agree on which particular sexual acts had been established. [39]
[12]
Conclusion as to ground 1.
It follows that the appropriate maximum penalty to which the applicant was liable was 25 years, not life imprisonment, and that the sentencing Judge was led into error by the parties appearing at the sentencing hearing. Ground 1 should be upheld.
Ordinarily, this would result in the Court either embarking on the exercise of sentencing afresh in accordance with the decision in Kentwell v The Queen [67] or remitting the matter to the District Court for sentencing. [68] However, because mine is a minority opinion, and the majority would dismiss the appeal, there is no need either to embark on re-sentencing exercise or to decide whether the preferable order is to remit the matter to the District Court. It is unnecessary to state the sentence I would have imposed in exercising the sentencing discretion afresh. However, I indicate that I would not have found that no lesser penalty was warranted, thereby justifying the dismissal of the appeal pursuant to s 6(3) Criminal Appeal Act.
[13]
Ground 2
I agree with Price J that no error is established under ground 2 and agree with his Honour's reasons for that conclusion.
[14]
Ground 3
In view of the conclusion I have reached in relation to ground 1, it is unnecessary for me to consider whether the sentence imposed was manifestly excessive. If I re-sentenced, taking into account the lower maximum penalty, I would impose a lesser sentence. That is a different question to the one that arises pursuant to ground 3.
[15]
Orders
For those reasons I would have granted the application for leave to appeal, allowed the appeal against sentence and either (i) imposed a less severe sentence or (ii) remitted the sentencing proceedings to the District Court.
[16]
Endnotes
Ms Macks report dated 18 October 2019.
Dr Wearne report dated 4 July 2019 p 6.
Pulman report dated 30 January 2020 p 12.
(2002) 54 NSWLR 368; [2002] NSWCCA 129.
(1998) 194 CLR 656; [1998] HCA 74.
Tcpt, 21 July 2021, p 1(32-33).
Crown's Written Submissions, par 32.
Applicant's Written Submissions, par 22.
Crown's Written Submissions, par 38.
Crown's Written Submissions, par 40.
Dennis Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths) at 332.
[2006] NSWCCA 123; (2006) 161 A Crim R 300.
[2017] NSWCCA 44.
Woodward at [61].
Crimes Act, s 66EA(1).
Crimes Act, s 66EA(1)-(2).
Crimes Act, s 66EA(15).
Crimes Act, s 66EA(15).
Crimes Act, s 66EA(4)(a).
Crimes Act, s 66EA(5)(a).
Crimes Act, s 66EA(5)(b).
Crimes Act, s 66EA(5)(c).
Crimes Act, s 66EA(7).
Crimes Act, s 66EA(15).
Crimes Act, s 66EA(8).
Crimes Act, s 66EA(12).
[2020] NSWCCA 282; 285 A Crim R 504.
See [91(10)] above.
Interpretation Act 1987 (NSW), ss 34(1)(a), 34(2)(f).
New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018.
Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (August 2017) at 41.
Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (August 2017) at 552.
Applicant's Written Submissions, par 33.
Markarian v R (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].
Burr at [104].
See Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), s 2; Interpretation Act (No 15) 1987 (NSW), s 23(1)(b); New South Wales Commencement Proclamation, No 671, 30 November 2018.
Parties
Applicant/Plaintiff:
Xerri
Respondent/Defendant:
R
Legislation Cited (12)
Crimes (Sexual Assault) Amendment Act 1981(NSW)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018(NSW)
o v Regina [2006] NSWCCA 350; Paul Campbell v R [2018] NSWCCA 87
Re Bolton; Ex Parte Beane (1987) 162 CLR 514; [1987] HCA 12
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58
Woodward v R [2017] NSWCCA 44
Texts Cited: Dennis Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths)
New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018
Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (August 2017)
Category: Principal judgment
Parties: Brian Xerri (Applicant)
Regina (Respondent)
Representation: Counsel:
R Rodger (Applicant)
E Balodis (Respondent)
The current offence in s 66EA(1) of the Crimes Act is as follows:
66EA Persistent sexual abuse of a child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.
Maximum penalty - Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.
(3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.
(4) In proceedings for an offence under this section, the prosecution -
(a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and
(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.
(5) In order for the accused to be convicted of an offence under this section -
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and
(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.
(6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).
(7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.
(8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.
(9) A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(10) A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).
(11) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(12) For the purposes of subsections (9)-(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
(13) If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.
(14) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(15) In this section -
adult means a person who is of or above the age of 18 years.
child means a person who is under the age of 16 years.
predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences -
(a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,
(b) an offence under a provision of this Act set out in Column 1 of Schedule 1A,
(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b),
(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)-(c),
(e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)-(d).
As Spigelman CJ makes clear in [26] above, the presumption against retrospectivity of a penal statute and the principle of perceived fairness are subject to the legislative intention of Parliament.
An issue in Siganto was whether the sentencing regime embodied in the Sentencing Act 1995 (NT) was intended to apply to offenders sentenced after the commencement of that Act for offences committed before its commencement.
The plurality in the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) (Gaudron J dissenting) said:
"[16] The argument was that, in the particular circumstances of the present case, which included the fact that some of the delay in bringing the appellant to trial occurred as a result of the conduct of the complainant, and was not the fault of the appellant, fairness and "equal justice" required that the appellant should not be punished more severely than he would have been had he been sentenced before the commencement of the Act. Thus, on the individual facts of this particular case, the consideration that the appellant was being punished for an offence committed before the operation of the Act was a "relevant circumstance".
[17] This argument should be rejected. The Act was intended to apply to offenders being sentenced for offences committed before the commencement of the Act. Giving effect to that intention produces the result that people who had previously offended but had not yet been sentenced would be treated differently from people who had previously offended and had been sentenced. This is not relevantly inequality before the law. It is a consequence of a change in the law. The circumstances which, in a given case, meant that an offender came under the new regime could vary greatly. The Legislative Assembly could have enacted transitional provisions to cover such cases, but it did not do so, and this failure to do so must (in the light of the transitional provisions that were made) be taken to be deliberate." (footnotes omitted)
An important question in determining what was the Parliamentary intention when s 66EA(1) commenced on 1 December 2018 is whether s 66EA was enacted as a new offence and not simply a re-enactment of the predecessor offence with an increased maximum penalty. The applicant argues that s 66EA was a reformulation of the predecessor offence whereas the Crown contends that it is a new offence.
Case law supports the conclusion that s 19 of the CSP Act will have no role to play when a new offence is created.
In R v Ronen ("Ronen"), [12] the offenders were sentenced for offences of conspiracy to defraud the Commonwealth of taxation revenue under ss 86A, 29D and 86(2) of the Crimes Act 1914 (Cth). The prescribed maximum penalty for each offence was 20 years imprisonment. However, after the offences were committed but before the offenders were sentenced, s 86(2), the most recent provision dealing with defrauding the Commonwealth was repealed. In its place a series of offences were created in the Criminal Code (Cth) by s 135.4. The maximum penalty prescribed for offences falling within that section was imprisonment for 10 years.
The offenders argued that the sentencing judge erred in finding that the maximum penalty for the offences under s 86A and s 86(2) of the Crimes Act 1914 (Cth) was 20 years imprisonment.
A relevant statutory provision for the Court's consideration was s 4F(2) of the Crimes Act 1914 (Cth), which is in similar terms to s 19(2) of the CSP Act.
Howie J (with whom Spigelman CJ and Kirby J agreed) said:
"[31] The argument was that, because the offences in the Code are in substance the same as those with which the applicants were charged, it should be taken that the maximum penalty for an offence of defrauding or conspiring to defraud the Commonwealth has been reduced regardless of the particular statutory basis for such an offence. It was submitted that the term "an offence" for the purposes of s 4F(2) should be considered broadly in order to achieve the beneficial purpose of the provision rather than denying its effect by a too formalistic or technical approach. The argument was that, although item 418 of the transitional provisions in the Amendment Act does not affect the application of s 8 of the Acts Interpretation Act, s 8 only applies "unless the contrary intention appears" and s 4F(2) evinces a contrary intention displacing s 8.
[32] In my opinion the argument should be rejected for very much the same reasons as the sentencing Judge rejected it. The simple fact is that the maximum sentence prescribed by the repealed Crimes Act provisions were not reduced in any real sense. It is artificial in my view to describe the repeal of one offence and the enactment of a different offence as a reduction in the sentence for the repealed offence. Although the offences in s 135.4 of the Code may cover the same criminal activity as did the repealed Crimes Act provisions, they are different offences with different elements and are affected by the Code's provisions in relation to criminal responsibility in Chapter 2. The provisions of the Crimes Act were interpreted according to common law principles that are not completely identical to those that apply to the Code offences. For example, there is no requirement under the Code that the prosecution prove that the offender used dishonest means in carrying out the fraud as there was under the provision in the Act: see Peters v The Queen (1998) 192 CLR 493. It is clear from the second reading speech of the Attorney General that the new offences in the Code were not seen by the legislature as being simply a re-enactment of the offences in the Crimes Act and they should not be treated as if they were.
…
[35] Section 4F is a general provision concerned not only with the reduction in penalty for an offence but also with the situation where the penalty for an offence is increased. In my opinion it is concerned with variations in penalties for existing offences and not with the creation of new offences, whether or not they happen to correspond in some general, unspecific way with offences that they replace." (emphasis added)
A similar question was raised in Woodward v R. [13] The offender was sentenced for five counts of rape and one count of buggery for offences committed in the early to mid-1970s. The maximum penalty for the common law offence of rape at the time of the offending was penal servitude for life. This offence was abolished in 1981 by the Crimes (Sexual Assault) Amendment Act 1981 (NSW) which created various categories of sexual assaults that included s 61D(1), which had a maximum penalty of penal servitude for 10 years.
RA Hulme J (with whom Beazley P and Bellew J agreed) favourably cited Ronen. His Honour considered at [61] that s 19 of the CSP Act had no direct application to the issue before the Court as the penalty for rape was not reduced by Parliament; "rather, the common law offences were replaced with statutory offences in somewhat different terms". [14]
An analysis of the predecessor offence and the current offence reveals the following differences:
1. The applicable penalty was 25 years under the predecessor offence compared to the maximum penalty of life imprisonment for the current offence. [15]
2. The predecessor offence required that a person, on three or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence. The current offence, however, requires that an adult maintain an unlawful sexual relationship with a child, meaning a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. [16]
3. Under the predecessor offence, a "child" was defined as a person under the age of 18 years. Under the current offence, a "child" is defined as a person under the age of 16 years. [17]
4. The predecessor offence does not refer to or define an "adult", whilst the current offence refers to an "adult who maintains an unlawful sexual relationship with a child" and defines "adult" as a person of or above the age of 18 years. [18]
5. Under the predecessor offence, the charge had to specify with reasonable particularity the period during which the offence occurred and had to "describe the nature of" the separate offences alleged to have been committed by the accused during that period. The current offence states that the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence. [19]
6. Under the predecessor offence, the jury had to be satisfied beyond reasonable doubt that the evidence establishes at least three separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge. Under the current offence, however, the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed (i.e. that the evidence establishes a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period). [20]
7. Under the predecessor offence, the jury had to be "so satisfied" about the material facts of the three such occasions but need not be "so satisfied" about the dates or order of those occasions. The current offence states that the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence. [21]
8. Under the predecessor offence, if more than three such occasions were relied on as evidence of the commission of an offence against the section, all the members of the jury had to be "so satisfied" about the same three occasions. Under the current offence, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. [22]
9. The predecessor offence required the jury to be satisfied that the three such occasions relied on as evidence of the commission of an offence against the section occurred after the commencement of the section. The current section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed. [23] The "relevant amendments" are defined as "the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018" and the "predecessor offence" is defined as "this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018". [24]
10. The current offence provides that a court, when imposing a sentence for an offence under the section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed. [25] There is no like provision in the predecessor offence.
11. The current offence also states that for the purposes of subsections (9)-(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside. [26] This is not stated in the predecessor offence.
As may be seen from the above analysis, there are marked differences in the legislation. Of particular significance are the application of the offence of "persistent sexual abuse of a child" to a child under the age of 16 years and to an unlawful sexual relationship that existed wholly or partly before the commencement of the predecessor offence.
Furthermore, there is the numerical reduction of the sexual offending to the minimum of two unlawful sexual acts and the introduction of the maintenance of an "unlawful sexual relationship" as being an essential element of the offence.
As the predecessor offence was focussed upon the separate offences alleged to have been committed, the prosecution was required to describe the nature of those separate offences.
It was common under the predecessor offence for the prosecution to charge an offender with what were referred to as "ingredient offences" which did not constitute the whole of an offender's sexual misconduct against a child. The approach to uncharged acts under the predecessor offence was made clear in Burr v R ("Burr") [27] by Johnson J (with whom Leeming JA and Rothman J agreed) at [96]-[99]:
"Representative Counts and Sentencing for a s.66EA Offence
[96] The Applicant was to be sentenced upon the basis that his s.66EA offence comprised 12 separate sexual offences under s.66C(3) Crimes Act 1900 in that he had sexual intercourse with the victim who was above the age of 14 years and under the age of 16 years.
[97] These 12 ingredient offences occurred in the course of eight separate incidents over a period of 20 months in 2006 and 2007.
[98] It was common ground that these incidents did not constitute an exhaustive list of the offences committed by the Applicant against the victim, but were themselves representative counts to be dealt with in accordance with the principles stated by Spigelman CJ in R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 at [63]-[68]. The ingredient offences which constituted the s.66EA offence for which the Applicant was to be sentenced were not isolated incidents so that the Applicant was not entitled to assert, as a type of mitigating factor, that the sexual offences which made up the s.66EA offence constituted the entirety of his offending against the victim.
[99] It remained the case, however, that the Applicant was not to be sentenced for other uncharged conduct which lay outside the ingredient offences of the s.66EA offence: AK v R [2016] NSWCCA 238 at [67]-[75]; Mills v R at [64] (see [93] above)."
On the other hand, the centrepiece of the current offence is the jury's satisfaction beyond reasonable doubt that the evidence establishes that "an unlawful sexual relationship existed". The prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act was charged as a separate offence.
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.
A consideration of the language employed in s 66EA(7) makes clear the retrospective legislative intent of the current offence as it includes in its wide embrace an unlawful sexual relationship which may have existed wholly before 15 January 1999, the commencement date of the predecessor offence. As observed in the analysis in [91(9)] above, the commission of the predecessor offence must have occurred after 15 January 1999.
Another matter of significance is s 66EA(8) of which there is no like provision in the predecessor offence. [28] By requiring a court to take into account the maximum penalty for an accused's sexual offending during the period in which the unlawful sexual relationship existed, the principle of perceived fairness is not overlooked in the exercise of the sentencing discretion.
Subsections 66EA(7)-(8) support a conclusion that the current offence is a new offence with retrospective effect to which s 19 of the CSP Act does not apply.
The applicant argued that the absence of any reference to s 19 of the CSP Act in the current offence supported a conclusion that s 19 continues to apply. The applicant referred to s 25AA(4) of the CSP Act which provides as follows:
"This section does not affect section 19."
Section 25AA(1) requires that a court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. The applicant does not submit that s 25AA(1) applies to his offence, but rather the provision concerning s 19 in s 25AA(4) and the absence of such a provision in the current offence demonstrates that s 19 continues to apply in the circumstances of his offending.
In my view, it is unsurprising that there is no mention of s 19 in the current offence as the retrospective intent of the Parliament is clear from the text of the offence. The absence of a reference to s 19 does not support, in my opinion, the applicant's contention but reinforces the conclusion that s 19 has no application to s 66EA.
Consideration may be given to the Second Reading Speech of the Attorney General when he introduced the Bill to confirm the meaning of the current offence is the meaning conveyed by the text of the provision itself, taking into account its context in the Act and the purpose or object underlying the provision. [29]
The Attorney General said:
"This bill makes a suite of reforms, including new offences, improved offences and procedural amendments. Many are based on specific recommendations of the royal commission. Others have been developed through the Child Sexual Offences Review, and aim to rationalise and consolidate our offence framework and improve the chances of successful prosecution of child sexual offences, while reducing criminalisation of children. The royal commission heard from thousands of survivors across Australia. Their stories opened our eyes to the prevalence of institutional child sexual abuse, to the failure of institutions to respond and to the lifelong impact it brings to bear. The findings and recommendations of the royal commission are powerful and far reaching. This bill implements a number of them." [30] (emphasis added)
When referring to s 66EA, the Attorney General said:
"Current section 66EA of the Crimes Act contains the offence of persistent sexual abuse of a child. It was introduced in 1999 as a tool to assist the prosecution of the most terrible cases of abuse where many largely indistinguishable incidents of abuse made it difficult for victims to recall specific occasions with sufficient particularity for individual charges. Unfortunately, in practice, section 66EA has not fulfilled this objective. The royal commission found that courts' interpretation of this provision has meant that significant particulars of individual occasions are still required, undermining the operation of the offence. The royal commission made detailed recommendations for a new way of formulating the offence, based on the offence currently provided under Queensland law, which has also been adopted in South Australia. Schedule 1 [20] to the bill amends the Crimes Act 1900 to introduce this model in New South Wales.
The new section 66EA will provide that it is an offence to maintain an unlawful sexual relationship with a child under 16. A person will have maintained an unlawful sexual relationship if they have engaged in two or more unlawful sexual acts with a child. The prosecution will be required to specify over what period the unlawful sexual relationship is alleged to have occurred, but will not be required to specify the particulars of the unlawful sexual acts with the same degree of detail as they would if the acts were charged as separate offences. The jury will be required to unanimously agree beyond reasonable doubt that the unlawful sexual relationship took place, but will not be required to necessarily agree on the same unlawful acts that make up the relationship.
The offence will only be able to be committed by an adult and will be punishable by a maximum penalty of life imprisonment. This maximum penalty recognises that some of the constituent acts that make up the unlawful sexual relationship may themselves carry life imprisonment if they were charged as separate sexual offences. In individual cases, the sentencing court will consider the nature and seriousness of the acts in question when formulating a sentence within this maximum penalty. As is currently the case, prosecutions for this offence will require the approval of the Director of Public Prosecutions. This will ensure the offence is only used where the victim cannot give sufficient particulars to charge individual offences. The offence will apply retrospectively as long as the sexual acts that make up the unlawful sexual relationship were illegal at the time they were committed. This was a key part of the royal commission's recommendation. It will ensure that the new provision can be used from the time of its commencement to prosecute long-term ongoing abuse." (emphasis added)
The Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission") recommended that each state and territory government should introduce legislation to amend its persistent child sexual abuse offence in numerous ways. In particular, the Royal Commission recommended that the offence be amended so that "the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed" and "on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application". [31]
The Royal Commission's draft provisions in relation to the persistent child sexual abuse offence (Appendix H) also include the following jurisdictional note:
"A reference to the predecessor offence is only required in those jurisdictions that currently have an offence of persistent sexual abuse of a child. That offence should be repealed by the new offence…" [32]
The reference to the "relevant lower statutory maximum penalties" quoted at [107] above is reflected in subsection (8) of the current offence.
In my view, the clear meaning of the section is confirmed by the Second Reading Speech and the Royal Commission's report.
Although the current offence covers broadly the same subject matter as the predecessor offence, it is not a re-enactment of the predecessor offence with an increased maximum penalty. It is a different offence to which s 19 of the CSP Act has no application and the maximum penalty of life imprisonment is intended to apply to offenders who have engaged in two or more sexual acts towards a child before the current offence commenced.
The two hurdles confronting the Crown to which I referred at [77]-[78] above have been overcome. The judge did not err when the applicant was sentenced on the basis that the maximum penalty for the offence was life imprisonment.
I would reject Ground 1 of the appeal.
This is a very serious offence. The applicant took advantage of the victim, who was 34 years younger than him, by engaging in penile-vaginal intercourse on numerous occasions. As her Honour aptly observed, the victim was "a young person burgeoning into adulthood" and was "at a particularly impressionable stage". The enduring harm caused to the victim by the applicant's sexual offending was succinctly stated in Ms Macks' report.
The breach of the AVO required separate punishment and the moderate accumulation of 2 months was well within her Honour's sentencing discretion.
In my opinion, the applicant has not demonstrated that the sentence imposed was unreasonable or plainly unjust.
I would reject this ground of appeal.
Other amendments to s 66EA were of more substance. The age of a "child" for the purpose of the section was changed from "a person under the age of 18 years" to "a person who is under the age of 16 years". [40] At the same time, the expression "unlawful sexual relationship" was defined as a "relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period". [41] The earlier version of the offence referred to a person who "on 3 or more separate occasions … engages in conduct [with a particular child]… that constitutes a sexual offence". Both the new and old provisions defined the respective expressions "unlawful sexual act" and "sexual offence" by reference to the relevant offences under the Crimes Act. [42] The list of sections was close to identical although the terms of many of the offences themselves had changed as part of the same raft of amendments introduced by the Amendment Act.
I accept that it is arguable, and that Bell P and Price J have concluded, that the changes to the terms of s 66EA (especially the two substantive changes to which I have referred), had the effect that the amended provision created a new offence. However, I do not agree that the changes to the section are of such significance that this conclusion is correct. There was an existing offence of persistent sexual abuse of a child and the facts alleged against the applicant (and admitted by him) constituted an offence under the old version of s 66EA.
The amendments to section 66EA of the Crimes Act were made by the same Amendment Act that introduced s 25AA into the Crimes (Sentencing Procedure) Act. Section 25AA represents a legislative change to the common law principle that a sentencing Judge should apply the sentencing patterns that existed at the time of the offending, rather than the time of sentence. That principle was confirmed, for example, in Moon v R and in R v MJR. [43] However, as the dissenting judgment of Mason P in the latter case demonstrates, it was a principle that was not free of controversy. [44] Section 25AA plainly and specifically overturned the prevailing judicial approach, but it did so with two significant limitations. The first is that if there was a standard non-parole period for an offence, the standard non-parole period existing at the time of the offence is to apply: s 25AA(2). [45] The second is that s 25AA "does not affect section 19": s 25AA(4).
Section 19 provides:
(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.
(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.
(3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty.
The respondent submitted, and Bell P and Price J appear to accept, that s 19 has "no work to do" in the context of s 66EA. This was based on the contention that s 66EA creates an entirely new offence and, on its terms, operates retrospectively. There can be no doubt that the latter proposition is correct: see s 66EA(7). The former proposition is more difficult. Further, the conclusion that s 25AA, and its incorporation of the fundamental prescript in s 19(1) preserving the shorter maximum penalty applicable at the time of offence, would have the effect of making s 66EA an outlier within this raft of amendments. As counsel for the applicant submitted, it would mean that "s 66EA is the only instance where the reformulated offence does not have s 19 applying to it". In my assessment, the conclusion urged by the respondent does not conform with Parliament's intention to create a cohesive legislative scheme in relation to the prosecution of offenders charged with child abuse and child sexual assault.
Section 25AA applies to "child sexual offences", which is defined in sub-s (5) as including "(a) an offence under a provision of Division 10 … of the Crimes Act 1900." Section 66EA is an offence under a provision of Division 10.
While resort to the Royal Commission's Criminal Justice Report and Recommendations ("the Report") is not strictly necessary in this context, both the parties and Price J have referred to the Report. The following parts of the Report distinguish sentencing standards from applicable maximum penalties, and support the conclusion that the applicable maximum penalty should be that which applied at the time of the offence:
"As discussed above, the courts and the Sentencing Council for England and Wales considered that fairness to the offender was secured by the continued application of the maximum penalty that applied at the time of the offending (or any lesser penalty adopted subsequently). Similarly, the House of Lords held that a breach of human rights in this context would only occur if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed under the law in force at the time that the offence was committed.
We are satisfied that, provided the maximum penalty that applied at the time of the offence continues to apply, there is no unfairness in applying contemporary sentencing standards within that maximum penalty." [46]
"Recommendation
76. State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed." [47]
Again, both parties, and Price J, referred to the Second Reading Speech introducing the Amendment Act. Counsel for the applicant accepted the respondent's submission that resort to secondary materials cannot "displace the clear meaning of the text", a proposition that is obviously correct. [48] As I have said, there is no ambiguity in the legislation as to the retrospective operation of the offence under s 66EA. However, there may be some ambiguity as to whether it is a new offence altogether and whether the previous maximum penalty applies to offences committed before the commencement of the amended section.
In his speech, the Attorney-General referred to the "suite of reforms" that included "new offences, improved offences and procedural amendments". [49] The Attorney-General went on to provide specific examples of new offences and improved offences within the legislation. An example of a "new offence" was s 43B, which was referred to on the second reading of the bill as follows:
"The royal commission recommended that all jurisdictions should introduce a new, forward looking offence covering failure to protect a child from abuse. Schedule 1 [1] to the bill amends the Crimes Act 1900 to insert a new section 43B, which creates an offence where a person negligently fails to reduce or remove a risk of a child becoming a victim of abuse. This offence will apply to an adult who works in an organisation that provides services for children. The organisations captured are those that employ anyone, including contractors and volunteers, doing child-related work within the meaning of the Child Protection (Working With Children) Act 2012.
A person will commit the offence if they know that another person in the organisation who works with children poses a serious risk of physically or sexually abusing a child. For the offence to apply, the risk will need to exist at the time that it is apparent to the person. The person will also need to have the power to reduce or remove the risk, by virtue of their position in the organisation and be criminally negligent in their failure to reduce or remove the risk. Either deliberate acts or omissions, or both, could amount to a negligent failure to reduce the risk." [50]
Counsel for the applicant referred to this as a clear example of a "new" offence being introduced by the Amendment Act. She went on to contrast the language used by the Attorney-General in relation to s 66EA in the passage set out by Price J at [106]. I do not accept that the Minister's remarks support the respondent's contention that s 66EA created a new offence. On the contrary, the Attorney-General adopted the language of the Royal Commission, and referred to the identified problems in the operation of the existing offence of "persistent sexual abuse of a child", and referred to its "recommendations for a new way of formulating the offence". (Emphasis added.) [51]
Ms Rodger also relied on what was said about s 25AA on the second reading of the Bill:
"Schedule 3 [6] inserts a new section [25AA] into the Act to implement one of the royal commission's key recommendations. This new section will require courts sentencing for historical offences to apply current sentencing practices and standards and our modern understanding of the trauma caused to children by sexual abuse. The purpose of this new provision is to override the current common law rule that a court must apply the sentencing standards from the time of the offence. In historical cases of child sexual abuse, this is resulting in lower sentences and discounts applied to reflect the leniency of sentencing for these offences in times past. This perpetuates our past lack of understanding of how seriously these offences should be treated and our past lack of understanding of the significant impact they have on the victim. The new provision will ensure that sentences meet current community expectations, to the extent possible within the upper limit of the maximum penalty from the time of the offence." [52]
I accept the applicant's submission that these passages from the second reading speech support the argument that (1) the Amendment Act did not create a new offence, but reformulated, refined and "improved" an existing offence, and (2) the legislative intention and the language of s 25AA specifically preserved the fundamental provision in s 19 of the Crimes (Sentencing Procedure) Act.
It is not necessary to resort to the secondary materials to reach the conclusion that s 19 remains determinative of the appliable maximum penalty under s 66EA. The limitations on the use of such extrinsic material was acknowledged by Mason CJ, Wilson and Dawson JJ in Re Bolton; Ex Parte Beane: [53]
"The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual." [54]
As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky): [55]
"…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have." [56]
Section 66EA must be read in the context of the Amendment Act and the statutes thereby amended, read as a whole, including ss 19 and 25AA of the Crimes (Sentencings Procedure) Act. As Mason J (as his Honour then was) said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd:
"…to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context." [57]
In Project Blue Sky, the majority again emphasised that:
"A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals." [58]
To similar effect is the statement of Kourakis CJ in Palace Gallery v Workcover Premium Review Panel that the words of a statute must be read:
"…in their current statutory context, and so that the statute operates as a coherent whole." [59]
Where there appears to be a conflict between the provisions of a statute, the court must "determine which is the leading provision and which the subordinate provision, and which must give way to the other." [60] The objective of establishing this "hierarchy" is to give effect to the "purpose and language" of the provisions and to maintain "the unity of the statutory scheme". [61]
If there is a conflict in the provisions under consideration here, a proposition I doubt, it is between the retrospective operation of s 66EA of the Crimes Act and the maintenance of s 19 of the Crimes (Sentencing Procedure) Act by s 25AA. That conflict is readily reconciled, and the legislative scheme given a cohesive and unified operation, once it is accepted that the retrospectivity of s 66EA relates to the offence, while the increase in the maximum penalty is precluded by the overarching sentencing provisions in ss 19 and 25AA "notwithstanding the literal command" of s 66EA. [62] To again adopt the language of the majority in Project Blue Sky, s 25AA (and in turn, s 19) "provides the conceptual framework in which the functions conferred" by s 66EA operate. [63]
The conclusion that s 66EA is a reformulation of the existing offence and that s 19 continues to operate is reached by undertaking a plain reading of the text of the Amendment Act, considering that Act and the statutes it amends as a whole, and striving to give effect to Parliament's clear intention to create a single, cohesive legislative scheme.
As Gageler J put it in Esso Australia Pty Ltd v Australian Workers' Union, the "constructional choice" involves:
"Nothing simpler or more sophisticated … than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that texts forms part. Linguistic indications are important. More important is the "purpose and policy" reasonably attributed to the provision within the statutory scheme." [64]
While the traditional approach to the construction of penal statutes to favour the liberty of the subject has been qualified in more recent times, [65] those principles remain of importance. That is particularly so where, as here, the legislation evinces a clear intention to temper the operation of the retrospectivity of a penal statute. That intention is plain from the language of s 25AA. The courts ought to still adopt a cautious approach when the statutory construction under consideration involves matters impacting on an individual person's liberty. [66] The construction I favour not only allows the provisions to operate in a cohesive and unified way, but also accords with this older, protective principle.
The respondent submitted that:
"[T]the applicant's proposed construction creates an absurdity whereby relevant offending committed between 15 January 1999 and 30 November 2018 (the operation of the predecessor offence) would attract a maximum penalty of 25 years imprisonment, whereas the same offending committed prior to that period, being a time when there was no like offence for persistent sexual abuse of a child, would attract a maximum penalty of imprisonment for life."
Assuming this (implicit) analysis of the operation of s 19(1) and (2) is correct, a matter that need not be determined in this case, I do not accept that the result is "absurd" or than any such "absurdity" should result in all offenders being subject to the higher maximum penalty in the face of s 19. Further, I accept the submission of Ms Rodger in responding to this argument on the hearing of the appeal:
"In terms of absurdity as well I raise briefly that some absurdity already existed pre the 2018 amendments in the sense that there were discrete offences that could constitute acts under 66EA which carried the maximum penalty of life despite 66EA only carrying the maximum penalty of 25 years. The issue of absurdity unfortunately doesn't assist with the clarity of legislative intent."
Crimes Act 1900 (NSW), s 66EA(4)(a), as amended by Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), sch 1 item 20.
Crimes Act 1900 (NSW), s 66EA(5)(b) and (c), as amended by Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), sch 1 item 20.
Crimes Act 1900 (NSW), s 66EA(15), as amended by Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), sch 1 item 20. Cf Crimes Act 1900 (NSW), s 66EA(12), later amended by Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), sch 1 item 20.
Crimes Act 1900 (NSW), s 66EA(2), as amended by Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), sch 1 item 20 .
Crimes Act 1900 (NSW), s 66EA(15), as amended by Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), sch 1 item 20. Cf Crimes Act 1900 (NSW), s 66EA(12), later amended by Criminal Legislation Amendment (Child Sexual Abuse) Act (No 33) 2018 (NSW), sch 1 item 20.
Moon v R (2000) 117 A Crim R 497; [2000] NSWCCA 534, R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129.
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [45], [56]-[59]. See also MC v R (2017) 271 A Crim R 83; [2017] NSWCCA 316 at [23]-[52];
See Corliss v R [2020] NSWCCA 65 at [86].
Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report Parts VII - X and Appendices, (2017) at 318.
Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report Executive Summary and Parts I - II, (2017) at 101.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [4], [47].
New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018 at 3.
New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018 at 4.
New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018 at 5.
New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018 at 7.
(1987) 162 CLR 514; [1987] HCA 12.
Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518; [1987] HCA 12.
(1998) 194 CLR 355; [1998] HCA 28.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78].
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48.
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70].
Palace Gallery Pty Ltd v Workcover Premium Review Panel (2014) 119 SASR 408; [2014] SASFC 60 at [29].
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70] citing Institute of Patent Agents v Lockwood [1894] AC 347 at 360.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70].
Cf Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [80].
Cf Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [79].
Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404; [2017] HCA 54 at [71].
Beckwith v the Queen (1976) 135 CLR 569; [1976] HCA 55 at 576; Grajewski v DPP (NSW) [2017] NSWCCA 251 at [55].
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58 at [45] and [227].
(2014) 252 CLR 601; [2014] HCA 37.
Criminal Appeal Act 1912 (NSW), s 12(2); Raymond John Munro v Regina [2006] NSWCCA 350; Paul Campbell v R [2018] NSWCCA 87.
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Decision last updated: 12 November 2021