What happened
Brian Xerri maintained an unlawful sexual relationship with a child between 9 November 2016 and 14 July 2018. At that time the applicable provision was the predecessor version of s 66EA of the Crimes Act 1900 (NSW), which had been inserted in 1999 and carried a maximum penalty of 25 years' imprisonment. That predecessor required proof that the accused had engaged in conduct constituting a sexual offence on three or more separate occasions on separate days in relation to a particular child under 18, with the jury required to be unanimous about the same three occasions if more than three were relied upon.
On 1 December 2018 the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) commenced. It wholly omitted the predecessor s 66EA and inserted a new s 66EA. The new provision created an offence of an adult maintaining an unlawful sexual relationship with a child (now defined as under 16), where the relationship involved two or more unlawful sexual acts (defined in s 66EA(15) by reference to a list of other sexual offences but expressly omitting the predecessor). The new maximum penalty stated in s 66EA(1) is imprisonment for life. Section 66EA(7) expressly extends the section to relationships existing wholly or partly before the commencement of the 2018 amendments or the predecessor offence, provided the acts were unlawful sexual acts at the time. Section 66EA(8) directs a sentencing court, for pre-amendment relationships, to take into account (but not be limited by) the maximum penalty for the unlawful sexual acts engaged in during the relationship.
Xerri pleaded guilty on 29 August 2019, after the new provision had commenced. He was sentenced in February 2020 to eight years' imprisonment with a non-parole period of four years and nine months. The sentencing judge treated life imprisonment as the maximum penalty and described it as a "valuable guidepost". Xerri appealed to the Court of Criminal Appeal, arguing that s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act") preserved the 25-year maximum because the offending predated the new provision. By majority (Bell P and Price J, Hamill J dissenting), the Court of Criminal Appeal held that the new s 66EA created a new and distinct offence, that s 19(1) therefore did not apply, and that the life maximum was available. The High Court granted special leave, heard argument on 18 October 2023, and on 6 March 2024 unanimously dismissed the appeal, affirming that the new provision created a new offence carrying life imprisonment with retrospective effect.
Why the court decided this way
The High Court (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ) rested its decision on the ordinary meaning of "offence" in s 19(1) of the CSP Act and a close comparison of the legal elements of the predecessor and new provisions. Both judgments emphasised that an "offence" is identified by the "concatenation of elements which constitute a particular offence" (drawing on R v Barlow (1997) 188 CLR 1 at 9 and Kingswell v The Queen (1985) 159 CLR 264). Where those elements differ in substance, the predecessor has ceased to exist and a new offence has been created. Section 19(1) therefore has no work to do.
The Court catalogued six differences of substance. First, the actus reus changed from engaging in conduct constituting a sexual offence on three or more separate occasions on separate days to maintaining a relationship in which the adult engages in two or more unlawful sexual acts over any period. Second, the jury direction changed: the predecessor required unanimity on the same three occasions if more than three were alleged; the new s 66EA(5) requires only that the jury be satisfied an unlawful sexual relationship existed and does not require agreement on which specific acts constitute it. Third, the perpetrator must now be an "adult" (18 or over) rather than any "person". Fourth, the victim must be under 16 rather than under 18. Fifth, the Crown is relieved by s 66EA(4)(a) of the obligation to allege particulars that would be necessary if each act were charged separately. Sixth, and critically, the new provision operates retrospectively under s 66EA(7), whereas the predecessor operated only prospectively from 15 January 1999.
These were not "reformulation, refinement and improvement" of the same offence but the creation of something new. The Court rejected the appellant's submission that because the conduct could have satisfied the predecessor it followed that the predecessor continued in altered form. The legislative text, by wholly omitting the old section (Sch 1 item 20 of the 2018 Act) and inserting a new one "instead", put the matter beyond doubt. The express statement in s 66EA(7) that "[t]his section extends to a relationship that existed wholly or partly before..." was held to include the life imprisonment maximum stated in s 66EA(1). There was "no justification for ignoring this clear statement in the legislation".
The Court further explained that s 66EA(8) forms an integral part of the new scheme. It requires the sentencing court to take into account the maximum penalties for the underlying unlawful sexual acts (not the repealed predecessor, which is deliberately omitted from the s 66EA(15) definition). This avoided the incongruity that had existed under the predecessor, where a single act of sexual intercourse with a child under 10 could carry life imprisonment under s 66A while three or more such acts charged as the predecessor offence carried only 25 years. The statutory purpose, confirmed by the Second Reading Speech, was to implement the Royal Commission's recommendation for a relationship-based offence with retrospective reach while ensuring sentencing courts retained appropriate flexibility.
The simultaneous insertion of s 25AA of the CSP Act (requiring sentencing according to current patterns and practices) was held not to alter the analysis. Section 25AA(4) states that it does not affect s 19, but that reservation says nothing about whether the new s 66EA is a new offence to which s 19 never applied. The Court treated the two provisions as addressing distinct problems: s 25AA overcomes the common-law rule that sentencing standards are frozen at the date of the offence (see R v MJR (2002) 54 NSWLR 368), while the new s 66EA is a freestanding substantive offence.
After the hearing the Court reopened for submissions on s 431A of the Crimes Act, which limits life sentences to murder and certain drug offences. Both parties accepted that s 431A, enacted in 1989, does not apply to provisions inserted after that date. The Court recorded that conclusion but did not rest its reasoning on it.
Before and after state of the law
Before 1 December 2018 the law contained the predecessor s 66EA, inserted in 1999 following S v The Queen (1989) 168 CLR 266. It was intended to overcome evidentiary difficulties where victims could not isolate particular occasions of abuse, but the Royal Commission found it had "not fulfilled this objective". Prosecutions remained difficult where memory was "composite" or occasions could not be distinguished. The predecessor operated only prospectively, required three distinct occasions, demanded jury unanimity on the same three if more than three were alleged, and carried a 25-year maximum. Sentencing occurred by reference to patterns at the date of the offence.
After 1 December 2018 the predecessor was repealed and the new s 66EA inserted. The actus reus became maintenance of an unlawful sexual relationship involving two or more unlawful sexual acts. The jury no longer needs to agree on the same acts. The provision applies retrospectively to any relationship whenever it occurred, provided the acts were unlawful at the time. The maximum penalty is life imprisonment, but s 66EA(8) requires the court to take into account (without being limited by) the maximum penalties applicable to the underlying acts. Simultaneously, s 25AA of the CSP Act required child sexual offence sentencing to reflect current sentencing patterns rather than those at the date of the offence, subject to the applicable maximum penalty.
The High Court held that these changes were not an incremental adjustment but a deliberate replacement of a failed model with a Queensland-inspired relationship offence given retrospective operation, exactly as the Royal Commission had recommended (with the sentencing safeguard in s 66EA(8) addressing the Commission's concern about higher maximums).
Key passages with plain-English translation
Paragraph 4 (Gageler CJ and Jagot J): "The requirement to focus on the substance of the elements of the predecessor offence and of the new s 66EA(1) offence, rather than the form of those provisions, inevitably leads to the conclusion that the reasoning of the majority in the Court of Criminal Appeal is correct. The predecessor offence ceased to exist on the commencement of the new s 66EA(1). The offence created by the new s 66EA(1) is not the predecessor offence."
Plain English: Look at what the law actually prohibits, not the section number. The old crime died on 1 December 2018. The new crime is different, so the old one was not simply given a higher penalty.
Paragraph 11: "These are differences of substance. The differences involve the creation of a different offence from the predecessor offence. Section 19(1) of the CSP Act, on its terms, cannot apply to the new s 66EA offence. That the appellant's conduct would have satisfied the elements of the predecessor offence and also constituted the new s 66EA offence is not to the point."
Plain English: The changes matter. Because the ingredients of the crime changed, s 19(1) (the no-higher-penalty-for-old-crimes rule) never bites. It does not matter that the same behaviour could have been charged under the old law.
Paragraph 12: "Contrary to the appellant's submissions, the new s 66EA expressly provides for the maximum penalty of life imprisonment to apply to offences committed before its commencement. It does so in s 66EA(7) which states that '[t]his section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence...' The words '[t]his section' include that part of s 66EA(1) which states 'Maximum penalty - Imprisonment for life'."
Plain English: The Act says in black and white that the life maximum travels backwards in time. You cannot read the words "this section" as excluding the penalty stated two lines earlier.
Paragraph 1 (Gordon, Steward and Gleeson JJ): "Current s 66EA is a new offence. The 2018 Amendment Act did not merely amend former s 66EA. Item 20 of Sch 1 to that Act provides that former s 66EA was to be wholly omitted and a new s 66EA was to be inserted 'instead'."
Plain English: Parliament did not tweak the old section; it deleted it completely and put a fresh one in its place. That is the clearest possible signal that a new crime was being created.
Paragraph 8 (Gordon, Steward and Gleeson JJ, describing s 66EA(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."
Plain English: For historic abuse, the judge must look at what the individual acts could have attracted at the time, but is not capped by those figures. The life maximum remains the ceiling.
What fact patterns trigger this precedent
The precedent applies where an offender is sentenced after 1 December 2018 for maintaining an unlawful sexual relationship with a child that occurred wholly or partly before that date. It is engaged whenever the Crown charges under the current s 66EA(1) and the relationship satisfies the two-or-more unlawful sexual acts test in s 66EA(2). The underlying acts must have been unlawful when committed, but they need not have been capable of satisfying the predecessor three-occasion test. The precedent confirms that life imprisonment is the applicable maximum penalty and that s 19(1) of the CSP Act has no limiting effect. It further confirms that s 66EA(8) governs the sentencing exercise for pre-2018 relationships: the court must have regard to the maximum penalties for the constituent acts but is not limited by them.
The decision is not confined to child sexual abuse cases predating 2018. Its ratio on the meaning of "offence" in s 19(1) and the distinction between amendment and replacement will apply whenever Parliament wholly repeals one offence-creating provision and inserts another with different elements, even if the new provision carries a higher maximum and is expressed to operate retrospectively. The emphasis on jury unanimity rules, particularisation obligations, and age thresholds as substantive rather than procedural will be significant in any future challenge to other relationship-based or course-of-conduct offences.
How later courts have treated it
As this is a unanimous High Court decision delivered in March 2024, subsequent appellate treatment is necessarily limited. The judgment itself affirms the majority reasoning of the Court of Criminal Appeal (Bell P and Price J) and rejects the dissenting analysis of Hamill J that the changes were largely facilitative and that s 25AA(4) indicated a cohesive scheme in which s 19(1) retained overarching operation. The High Court treated the Court of Criminal Appeal's identification of "differences of substance" as correct and adopted its conclusion that the predecessor "ceased to exist".
The decision cites and applies Kingswell v The Queen (1985) 159 CLR 264 and Cooper v Western Australia (2020) 286 A Crim R 28 for the proposition that an offence is identified by its legal elements. It distinguishes Cooper on the basis that the Western Australian provisions there proscribed the same acts and circumstances, whereas the predecessor and new s 66EA do not. It also cites Pearce v The Queen (1998) 194 CLR 610 for the uncontroversial proposition that overlapping offences may attach to the same conduct. No subsequent case law is discussed because none existed at the date of judgment. The reasoning is tightly grounded in the text of ss 66EA(1), (2), (4), (5), (7), (8) and (15), the structure of the 2018 Amendment Act, the Royal Commission's recommendations, and the Second Reading Speech. Later courts can therefore be expected to treat the decision as settling that wholesale replacement of an offence-creating provision with materially different elements produces a new offence outside s 19(1), at least where the new provision expressly states retrospective operation and contains its own sentencing instruction.
Still-open questions
The High Court expressly left the Crown's notice of contention undecided. That contention was that, even if s 19(1) applied, s 66EA(7) impliedly repealed or required s 19(1) to be read down. Because the Court held that s 19(1) was never engaged, it did not reach that issue. A future case in which Parliament increases the penalty for an acknowledged continuing offence while also inserting a retrospective clause may therefore require resolution of the interaction between s 19(1) and an express retrospective penalty provision.
The precise boundaries of "differences of substance" remain to be worked out in other contexts. The Court did not articulate a bright-line test for when amendments cross the threshold from reformulation to new offence. Future litigation may test whether smaller changes (for example, altering only one element or adding a new aggravating factor) engage s 19(1) or create a fresh offence.
The interaction between s 66EA(8) and standard sentencing principles where the underlying unlawful sexual acts themselves carried different maximum penalties at different times during a long relationship is not exhaustively explored. The Court gives the example of s 66A (sexual intercourse with a child under 10), whose maximum increased to life in 2015, but does not address how a sentencing judge should weigh multiple acts carrying different historical maxima.
Finally, the Court noted that s 25AA has since been repealed and replaced by s 21B of the CSP Act. The new section's relationship with the construction of s 66EA was not before the Court and may require future consideration, although the present judgment treats s 25AA as irrelevant to the characterisation of the new s 66EA as a fresh offence.