Xerri v R

The applicant's submissions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. A further submission was made that the present circumstances were not comparable to those in Siganto v The Queen ("Siganto"). [5]
7. 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.
8. 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]
9. 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.
10. Ms Rodger submitted that s 66EA(8) did not address the same subject matter as s 19 of the CSP Act.

The Crown's submissions

1. 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]
2. 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.
3. 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.
4. 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.
5. 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.
6. 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]
7. 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.

Relevant legislation

1. 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).

Consideration

1. 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.
2. 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.
3. 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.
4. 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)

Ground 2: The Sentencing Judge erred in accumulating the sentence imposed for the s 166 related matter

1. 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.
2. 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.
3. 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".
4. 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".
5. 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.

Consideration

1. 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."
2. 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.
3. 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.
4. 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.
5. I would reject this ground of appeal.

Ground 3: The sentence imposed is manifestly excessive in light of the following findings of the sentencing judge:

(i) offence is below the mid range of objective seriousness;

(iii) the applicant is not an appropriate vehicle for general deterrence given his low level of intellectual function.

1. 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.
2. 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.
3. 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.
4. The Crown submitted that the applicant's contention of manifest excess relied on the premise of the relevant maximum penalty being 25 years imprisonment.
5. 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.
6. Another submission was that the finding of special circumstances substantially reduced the statutory ratio to approximately 60%.

Consideration

1. 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]
2. The focus of the applicant's complaint of manifest excess was on the applicable maximum penalty being 25 years imprisonment, which has been rejected.
3. 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]
4. In my view, Burr is not a comparative case and does not assist the applicant in his complaint of manifest excess.
5. 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.
6. 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.

Orders

1. The orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.
2. 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.
3. 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".
4. 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.
5. 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]

Conclusion as to ground 1.

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.
2. 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.

Ground 2

1. I agree with Price J that no error is established under ground 2 and agree with his Honour's reasons for that conclusion.

Ground 3

1. 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.

Orders

1. 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.

Endnotes

1. Ms Macks report dated 18 October 2019.
2. Dr Wearne report dated 4 July 2019 p 6.
3. Pulman report dated 30 January 2020 p 12.
4. (2002) 54 NSWLR 368; [2002] NSWCCA 129.
5. (1998) 194 CLR 656; [1998] HCA 74.
6. Tcpt, 21 July 2021, p 1(32-33).
7. Crown's Written Submissions, par 32.
8. Applicant's Written Submissions, par 22.
9. Crown's Written Submissions, par 38.
10. Crown's Written Submissions, par 40.
11. Dennis Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths) at 332.
12. [2006] NSWCCA 123; (2006) 161 A Crim R 300.
13. [2017] NSWCCA 44.
14. Woodward at [61].
15. Crimes Act, s 66EA(1).
16. Crimes Act, s 66EA(1)-(2).
17. Crimes Act, s 66EA(15).
18. Crimes Act, s 66EA(15).
19. Crimes Act, s 66EA(4)(a).
20. Crimes Act, s 66EA(5)(a).
21. Crimes Act, s 66EA(5)(b).
22. Crimes Act, s 66EA(5)(c).
23. Crimes Act, s 66EA(7).
24. Crimes Act, s 66EA(15).
25. Crimes Act, s 66EA(8).
26. Crimes Act, s 66EA(12).
27. [2020] NSWCCA 282; 285 A Crim R 504.
28. See [91(10)] above.
29. Interpretation Act 1987 (NSW), ss 34(1)(a), 34(2)(f).
30. New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018.
31. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (August 2017) at 41.
32. Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (August 2017) at 552.
33. Applicant's Written Submissions, par 33.
34. 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].
35. Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].
36. Burr at [104].