AC v R

[2023] NSWCCA 133

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

AC v R [2023] NSWCCA 133

Hearing dates:

19 May 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Before:

Bell CJ at [1];
Beech-Jones CJ at CL at [109];
Adamson JA at [144];
Ierace J at [145];
Chen J at [147]

Decision:

(1)   Grant leave to appeal.

(2)   Allow the appeal.

(3)   Quash the sentence imposed by Colefax SC DCJ on 27 November 2020.

(4)   Resentence the Applicant to an aggregate sentence of 7 years of imprisonment, with a non-parole period of 5 years and 3 months, to date from 4 October 2019.

Catchwords:

SENTENCING – non-parole period – standard non-parole period – correct standard non-parole period to be applied to offences against s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 – proper construction of s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) – where standard non-parole period for offences against s 61M(2) had previously been raised from 5 years to 8 years with retrospective effect – whether the effect of amendments in 2018 was to limit the retrospective application of the higher standard non-parole period – whether GL v R [2022] NSWCCA 202 should be followed

APPEALS – precedent – departure from previous decisions – circumstances in which Court of Criminal Appeal will depart from its own previous decisions – discussion of principles of restraint outlined in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 – “plainly wrong” and “compelling reasons to depart” – whether conclusion about statutory construction in GL v R [2022] NSWCCA 202 falls within the ambit of the principles in Gett – whether principles in Gett are strictly confined to departure from the ratio decidendi of previous decisions – whether finding of error in sentencing discretion forms part of ratio decidendi in circumstances where appeal is ultimately dismissed because no less severe sentence is warranted in law

STATUTORY INTERPRETATION – amendment and repeal – correct standard non-parole period to be applied to offences against s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 – proper construction of s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) – whether inconsistency existed between provisions of the CSPA introduced at different times – where standard non-parole period for offences against s 61M(2) had previously been raised from 5 years to 8 years with retrospective effect – whether the effect of amendments in 2018 was to limit the retrospective application of the higher standard non-parole period – transitional provisions said to limit the scope of operation of a substantive provision – whether GL v R [2022] NSWCCA 202 should be followed

Legislation Cited:

Crimes (Amendment) Act 1989 (NSW) Sch 1, cl 2

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3)(i), 25AA, 33, 44, 53A(2)(b), 54A(2), 54B(5), Pt 4 Div 1A, Sch 2

cll 57, 60, 91

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) Sch 1, cll 10, 16

Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)

Crimes Act 1900 (NSW) ss 61KC–KF, 61E(1) (now repealed), 61M (now repealed), 91H, 66A

Crimes Amendment (Sexual Offences) Act 2008 (NSW) Sch 1 cl 9, Sch 2.4 cl 5

Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 6(3)

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) Sch 1 cl 7, Sch 3 cl 6

Interpretation Act 1987 (NSW) s 33

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5)

Cases Cited:

AJB v The Queen (2007) 169 A Crim R 32; [2007] NSWCCA 51

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Amos v Brisbane City Council (2018) 230 LGERA 51; [2018] QCA 11

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Berryman v R [2017] NSWCCA 297

Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95

Bole v Horton (1673) Vaugh 360

Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396

Bridges v Bridges (1944) 45 SR (NSW) 164

Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316

Bropho v Western Australia (1990) 171 CLR; [1990] HCA 24

Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32

Cadbury Schweppes Pty Ltd v Amcor Ltd (No 3) [2008] FCA 1668

Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335

Chubb Insurance Company of Australia Limited v Moore (2013) 302 ALR 101; [2013] NSWCA 212

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26

Elsaj v R [2017] NSWCCA 124

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76

GL v R [2022] NSWCCA 202

GSH v R; R v GSH [2009] NSWCCA 214

Hill v Zuda Pty Ltd (2022) 96 ALJR 540; [2022] HCA 21

In Re State of Norway’s Application (No 2) [1990] 1 AC 723

Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363

ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697

Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60

Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13

Kendirjian v Lepore [2015] NSWCA 132

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37

Klewer v Attorney-General (NSW) [2010] NSWCA 219

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50

MPB v R [2013] NSWCCA 213

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9

Park v R [2020] NSWCCA 90

Penn-Texas Corp v Murat Anstalt (No 2) [1964] 2 QB 647

PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Lane [2011] NSWSC 289

R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129

Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008

RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265

Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817

Texts Cited:

B Chen, “Seriously Considering ‘Seriously Considered Dicta’: Precedent after Farah Constructions” (2021) 95 ALJ 186

J Stone, Precedent and Law: Dynamics of Common Law Growth (1985, Butterworths)

M Harding and I Malkin, “The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts” (2012) 34 MULR 239

P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co)

R Cross and JW Harris, Precedent and English Law (4th ed, 1991, Clarendon Press, Oxford)

Category:

Principal judgment

Parties:

AC (Applicant)
The Crown (Respondent)

Representation:

Counsel:

N Mikhaiel with T Kent (Applicant)
E Wilkins SC (Respondent)

Solicitors:

C Giudice (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/310835; 2019/323471; 2019/382839

Publication restriction:

There is a statutory publication restriction in relation to the identity of the victims and the Applicant: see Children (Criminal Proceedings) Act 1987 (NSW) s 15A and Crimes Act 1900 (NSW) s 578A.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 November 2020

Before:

Colefax SC DCJ

File Number(s):

2019/310835; 2019/323471; 2019/382839

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 November 2020, AC (the Applicant) was sentenced in the District Court after entering pleas of guilty to nine offences involving historical child sexual abuse. These included six offences of indecent assault on a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW), which has since been repealed (the s 61M(2) offences). Relevantly for present purposes, all six of the s 61M(2) offences were committed before 1 January 2008.

The Applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 7 years and 6 months. He sought leave to appeal against his sentence on two grounds of appeal: first, that the sentencing judge erred by sentencing him on the basis that the standard non-parole period for the s 61M(2) offences was 8 years rather than 5 years, and second, that the sentencing judge erred by finding, contrary to the evidence, that the Applicant had not expressed remorse. The first ground raised an issue of statutory construction involving several apparently competing provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), namely, whether the non-parole period applying to the s 61M(2) offences was 5 years (as contended by the Applicant) or 8 years (as contended by the Crown).

At the time of the commission of the s 61M(2) offences, the standard non-parole period attaching to that offence was 5 years. On 1 January 2008, the standard non-parole period for offences against s 61M(2) was increased from 5 to 8 years. Clause 57 of Schedule 2 to the CSPA expressly provided that the increase in the statutory non-parole period was to have retrospective operation.

On 31 August 2018, s 25AA of the CSPA came into force. That section relevantly provided:

“25AA  Sentencing for child sexual offences

(1)   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.

(2)    However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

…”

The amending Act which introduced s 25AA also repealed s 61M of the Crimes Act and replaced it with a reformulated offence, and inserted a new cl 91 to Schedule 2 of the CSPA, which provided:

“91  Standard non-parole periods

The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence against section 61M (1) or (2) of the Crimes Act 1900 committed before that amendment.”

Relevantly, the table referred to in cl 91 sets out the standard non-parole periods applying under the CSPA. Immediately before the 2018 amendments, that table provided that the standard non-parole period applying to s 61M(2) was 8 years.

On 19 September 2022, after the filing of the Applicant’s written submissions on appeal, the decision of GL v R [2022] NSWCCA 202 (GL) was delivered. In that case, a majority of the Court of Criminal Appeal (Garling and Hamill JJ) held that, in relevantly identical circumstances, the correct standard non-parole period for offences against s 61M(2) was 5 years: see [4]–[7], [110]. However, after proceeding to re-exercise the sentencing discretion, their Honours dismissed the appeal on the basis that no less severe sentence was warranted in law.

In this appeal, the Crown contended that GL was wrongly decided and should not be followed. Because it was contended that the Court should decline to follow one of its previous decisions, a bench of five judges was convened to hear the appeal.

The appeal raised three issues for determination:

1. whether the principles concerning departure from previous decisions outlined in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 (Gett) applied to the conclusion about the standard non-parole period in GL (the Gett issue);

2. whether the correct standard non-parole period applying to the s 61M(2) offences was 5 or 8 years (the statutory construction issue); and

3. whether the sentencing judge erred in finding that the Applicant had not expressed remorse (the remorse issue).

The Court held (Bell CJ, Beech-Jones CJ at CL, Adamson JA, Ierace J, Chen J), allowing the appeal, quashing the sentence and resentencing the Applicant to an aggregate term of 7 years of imprisonment with a non-parole period of 5 years and 3 months:

As to the Gett issue (Bell CJ, Adamson JA, Ierace J, Chen J; Beech-Jones CJ at CL assuming but not deciding)

1. The construction of s 25AA(2) adopted by Garling and Hamill JJ in GL should not be departed from unless it is plainly wrong and there are compelling reasons to depart from it: [53] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied.

2. Where questions of statutory construction are finely balanced, it may be difficult to conclude that a particular prior interpretation of a statutory provision is “plainly wrong”. The departure by an intermediate appellate court from its own previous decision requires more than that a subsequent bench takes a different view of a particular piece of legislation than the earlier bench: [30] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

3. In circumstances where views differ as to the approach to the identification of ratio decidendi and obiter dicta, it is undesirable to confine the operation of the Gett principles to an unduly narrow conception of what is strict ratio decidendi: [43] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817; Bole v Horton (1673) Vaugh 360; Penn-Texas Corp v Murat Anstalt (No 2) [1964] 2 QB 647; Re Norway’s Application (No 2) [1990] 1 AC 723; Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316; Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817; Cadbury Schweppes Pty Ltd v Amcor Ltd (No 3) [2008] FCA 1668; Re French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008; Klewer v Attorney-General (NSW) [2010] NSWCA 219; Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9; Bridges v Bridges (1944) 45 SR (NSW) 164; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335; Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396; Kendirjian v Lepore [2015] NSWCA 132; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; [1993] HCA 15; Hill v Zuda Pty Ltd [2022] HCA 21, considered.

4. At least for the purposes of the Gett principles, the ratio decidendi of a previous decision should generally be taken to include a conclusion of the earlier court in resolving an issue which was fully argued and which was treated by the court as a necessary step in reaching its decision to uphold a ground of appeal, even if the appeal is dismissed by reason of the exercise of a consequential power, in the nature of a residual discretion, to dismiss an appeal notwithstanding the presence of error: [50] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

As to the statutory construction issue (Bell CJ, Adamson JA, Ierace J, Chen J; Beech-Jones CJ contra)

Per Bell CJ, Adamson JA, Ierace J, Chen J:

5. To the extent that s 25AA(2) qualified the operation of cl 57, s 25AA(2) should prevail, as it was later in time and was extraordinarily clear in its language: [59]–[61] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19; Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 280; [1961] HCA 32, referred to.

6. There is no necessary inconsistency between s 25AA(2) and cl 91. Both sections serve different purposes. Although the inclusion of cl 91 in the CSPA may not have been strictly necessary in light of s 25AA(2), it serves to make plain that, although s 61M(1)–(2) have been repealed, the previous standard non-parole periods continue to apply in respect of offences committed between 2008 and 2018: [63]–[64] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

7. Even if there were inconsistency between s 25AA(2) and cl 91, it should not be resolved in the way contended for by the Crown. Section 25AA is not said to be subject to, and is not necessarily more general than, cl 91. Although transitional provisions are important, one would not expect, absent extremely clear language, that a transitional provision would limit the scope or operation of a very clearly drafted substantive provision introduced at the same time as the transitional provision: [68]–[70] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

8. This is not a case where any reliable guidance can be obtained from extrinsic materials to inform the question of interpretation before the Court: [76] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

9. The decision in GL, insofar as it concerned the proper construction of the CSPA, was correctly decided. The correct standard non-parole period to be applied to the s 61M(2) offences was 5 years: [77] (Bell CJ); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

Per Beech-Jones CJ at CL:

10. Section 25AA(2) was not intended to reduce the standard non-parole period for an indecent assault on a child by implicitly repealing a partially retrospective increase in that period (or by any other means): [114].

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204; Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, considered.

11. Viewed in light of its context and extrinsic materials, the overall object or purpose of s 25AA was to remove or correct what was seen as erroneous sentencing practices of the courts but not to alter the statutory regime governing the imposition of sentences: [130]–[131].

R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129; AJB v The Queen (2007) 169 A Crim R 32; [2007] NSWCCA 51; MPB v The Queen [2013] NSWCCA 213; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, referred to.

12. Section 25AA and cl 91 operate on different subject matters. Section 25AA corrects what was considered to be errant sentencing practices of the courts in dealing with child sexual offences, while cl 91 is directed to preserving the existing standard non-parole periods for offences that were repealed in 2018 (including s 61M(2)): [133].

13. The construction of s 25AA favoured by Garling and Hamill JJ in GL is “clearly wrong”, and there are “compelling reasons” to depart from it. Those compelling reasons include that the principle has not been worked through in a series of cases; the NSW Director of Public Prosecutions was not a party in GL, and courts are likely to continue to impose sentences for offences against s 61M(2) of the Crimes Act committed between 2003 and 2008 for many years: [139]–[140].

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, considered.

As to the remorse issue (the Court)

14. While the evidence of remorse relied upon by the applicant was relatively slight, it was not correct for the sentencing judge to say that the applicant had “not expressed remorse”. There was evidence that he accepted responsibility for his actions to some extent, and there was some acknowledgement of the detrimental impact of his actions on two of his victims: [88] (Bell CJ); [109] (Beech-Jones CJ at CL); [144] (Adamson JA); [145] (Ierace J); [147] (Chen J).

JUDGMENT

1. BELL CJ: On 27 November 2020, AC (the Applicant) was sentenced in the District Court after entering pleas of guilty to eight offences involving historical child sexual abuse and one offence involving child abuse material. These offences were as follows:

• six offences of indecent assault on a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (now repealed [1] );

• two offences of indecent assault, contrary to s 61E(1) of the Crimes Act (now repealed [2] ); and

• one offence of possessing child abuse material, contrary to s 91H of the Crimes Act.

  1. See Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), Sch 1, cl 7 (which came into effect on 1 December 2018).

  2. See Crimes (Amendment) Act 1989 (NSW), Sch 1, cl 2 (which came into effect on 17 March 1991).

2. Three further offences were admitted by the Applicant and taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA). These were two further offences of indecent assault of a child under 10 years of age and one offence of indecent assault (the Form 1 offences).

3. Apart from the offence of possessing child abuse material, the remaining eleven offences were committed between 1987 and 2007 and involved the sexual abuse of four young girls, who will be referred to as S, AB, DC and SC. S was the Applicant’s step-niece; AB was the step-daughter of a friend of the Applicant; and DC and SC were the Applicant’s nieces. The victims of the Applicant’s offending were between 5 and 12 years of age at the time of the offending, and the Applicant was between 18 and 38 years of age.

4. For these offences, the Applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 7 years and 6 months. In accordance with s 53A(2)(b) of the CSPA, the sentencing judge noted the indicative sentences that he would have imposed for each of the principal offences, had separate sentences been imposed. The offences, the maximum penalty applicable to each, and the indicative sentence identified by the sentencing judge for each of those offences are set out in the following table. For clarity, the principal offences have been renumbered Counts 1­­–9 and the Form 1 offences have been renumbered Form 1(a)–(c).

Count	Charge	Maximum penalty	Indicative sentence
1	Indecent assault of a person, namely S, contrary to s 61E(1) of the Crimes Act	4 years’ imprisonment	1 year, 10 months
2	Indecent assault of a person, namely S, contrary to s 61E(1) of the Crimes Act	4 years’ imprisonment	2 years
3	Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment	3 years NPP 2 years, 3 months
4	Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment	4 years, 10 months NPP 3 years, 7 months
Form 1(b)	Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment
5	Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment	2 years, 7 months NPP 1 year, 11 months
6	Indecent assault of a child under the age of 10, namely DC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment	3 years, 4 months NPP 2 years, 6 months
7	Indecent assault of a child under the age of 10, namely SC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment	4 years, 10 months NPP 3 years, 7 months
Form 1(c)	Indecent assault of a child under the age of 10, namely SC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment
8	Indecent assault of a child under the age of 10, namely SC, contrary to s 61M(2) of the Crimes Act	10 years’ imprisonment	5 years, 3 months NPP 3 years, 11 months
Form 1(a)	Aggravated indecent assault of a person, namely AB, contrary to s 61M(1) of the Crimes Act	7 years’ imprisonment
9	Possessing child abuse material, contrary to s 91H(2) of the Crimes Act	10 years’ imprisonment	1 year, 6 months

5. As is reflected in the table above, the Form 1(a) offence was taken into account in sentencing for Count 8; the Form 1(b) offence was taken into account in sentencing for Count 4; and the Form 1(c) offence was taken into account in sentencing for Count 7.

6. By Notice of Appeal filed on 1 August 2022, the Applicant seeks leave to appeal against his sentence. He relies on the following two grounds of appeal:

1. Ground 1: in sentencing for the offences under s 61M(2) of the Crimes Act, the sentencing judge erred by taking into account a standard non-parole period of 8 years.

2. Ground 2:  the sentencing judge erred by finding, contrary to the evidence, that the Applicant had not expressed remorse.

7. The first ground of appeal raises the question of what standard non-parole period ought to have been applied in sentencing for the six offences against s 61M(2) of the Crimes Act. The Applicant was sentenced on the basis that the standard non-parole period attaching to the s 61M(2) offences was 8 years, however the Applicant contended on appeal that the relevant standard non-parole period was in fact 5 years. As will be seen, the answer to this question involves the construction of several apparently competing provisions of the CSPA (namely, s 25AA and cll 57 and 91 of Sch 2).

8. On 19 September 2022, after the filing of the Applicant’s written submissions on appeal, the decision of GL v R [2022] NSWCCA 202 (GL) was delivered by this Court. In that case, a majority of the Court (Garling and Hamill JJ) held that, in relevantly identical circumstances, the correct standard non-parole period for offences against s 61M(2) of the Crimes Act was 5 years: see [4]–[7], [110]. This conclusion would support the Applicant’s position on the first ground of appeal.

9. The Crown, however, contended that GL was wrongly decided and should not be followed. It may be noted that GL was prosecuted by the Commonwealth Director of Public Prosecutions, and the New South Wales Director of Public Prosecutions (who appears for the respondent in this case) was not a party to that appeal. Because the Crown contended that this Court should decline to follow one of its previous decisions, a bench of five judges was convened to hear this appeal on 19 May 2023.

10. As the application for leave to appeal was filed out of time, leave is required pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The Applicant also requires leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). Leave should be granted and, for the reasons that follow, the appeal should be allowed.

Factual background

11. The Applicant was sentenced on the basis of an agreed statement of facts. The facts of the offending were set out in some detail in the remarks of the sentencing judge, and only a brief summary is necessary for present purposes:

1. Count 1:in 1987 or 1988, the Applicant, who was then 18 or 19 years of age, was at his parent’s home with his 6 year old step-niece, S. When S was using the toilet, the Applicant walked in and wiped her vagina with toilet paper, before rubbing her vagina with his bare fingers for several seconds.

2. Count 2:on another occasion in 1987 or 1988, again at the Applicant’s parents’ home, the Applicant took S by the hand, led her into his bedroom and closed the door. He took off her pants, asked her to lie on the bed and laid on top of her such that she could feel his penis through his clothing. He kissed her on the mouth for about three minutes, then got off her and touched her vagina with his bare finger for a short time. She then told him to stop, which he did, and she ran to the door and left the room.

3. Form 1(a):in 1992, when he was 24 or 25 years old, the Applicant was at the house of a friend who was the stepfather of AB. AB, who was 11 or 12 years old, was doing the dishes when the Applicant approached from behind to hug her, pressing his groin against her buttocks so that she could feel his erect penis through their clothing.

4. Form 1(b):in 2005, when the Applicant was 36 or 37 years old, he shared an apartment with his brother, who was the father of DC and SC. On one occasion, DC, who was 5 or 6 years old, was visiting her father at the apartment and the Applicant was present. DC was lying on her side on the floor when the Applicant lay on the floor beside her and pressed his penis into her back for a short period of time.

5. Count 3:in 2006, the Applicant (who was 37 or 38 years old) and DC (who was 7 years old) were both at the house of the Applicant’s parents, who were DC’s grandparents. They were both in the same bed when the Applicant pulled down DC’s pyjama pants, pulled down his own pyjama pants, and the Applicant “felt a drop of substance fall onto her thigh”. DC said “you peed on me”, after which the Applicant pulled up his pants and DC left the bed. There was no agreement in the statement of facts about the nature of the substance, and the sentencing judge did not make any finding about what it was.

6. Count 4:in 2006 or 2007, DC and SC were visiting their father, who lived with the Applicant. When DC and SC were sitting on a lounge, the Applicant took DC’s hand and wrapped her fingers around his erect penis. DC could feel his pubic hair and quickly pulled her hand away but felt “something sticky”. There was no agreement about what the substance was, nor about whether SC was aware of what the Applicant was doing. At the time of this incident, DC was 8 years old and the Applicant was 38 years old.

7. Count 5:in 2007, the Applicant’s brother was driving DC and SC to visit their grandparents, and the Applicant was in the back seat of a car with DC and SC. The Applicant rubbed DC’s vagina in a circular motion for a number of seconds. At the time, DC was 8 years old and the Applicant was 38 years old. Although not specified in the statement of facts, it was accepted by the parties that the rubbing was over DC’s clothing.

8. Count 6:in 2006 or 2007, while DC’s father was out of the house, DC came into the Applicant’s bedroom. The Applicant then rubbed his hands up and down the back of DC’s legs, pulled her onto the bed, and rubbed the outside of her vagina with his hand under her clothing while kissing her face. This offending ended because the Applicant’s brother returned. At the time, DC was 7 or 8 years old and the Applicant was 37 or 38 years old.

9. Count 7:in 2006 or 2007, SC was sleeping in the Applicant’s bed when the Applicant entered the bedroom and locked the door, then lay down next to her and placed her hands on his penis. At the time, SC was 6 or 7 years old and the Applicant was 37 or 38 years old.

10. Form 1(c):in 2006 or 2007, the Applicant was in the pool at his home with SC when he held her and rubbed his finger over her vagina on the outside of her swimming costume. SC was 6 or 7 years old and the Applicant was 37 or 38 years old.

11. Count 8:  in 2007, during a birthday party for the Applicant’s older brother, SC asked another guest at the party to take her to the toilet. The Applicant overheard SC and said that he would take her instead. He took SC to the bathroom, closed the door, pulled down her pants and rubbed her vagina with his hand before she used the toilet. A short time later, the Applicant left the bathroom. At the time, SC was 6 years old and the Applicant was 38 years old.

12. Count 9:in 2019, when the Applicant was arrested, child abuse material was found on his mobile phone. This material consisted of four images of prepubescent children performing oral sex on an adult male, and 144 images of prepubescent children either fully naked, partially naked or in suggestive poses.

12. It should be observed that the offences summarised above do not represent the totality of the Applicant’s sexual offending against the victims. The statement of agreed facts also disclosed an unspecified number of uncharged offences against SC, and one uncharged offence against DC, between 2006 and 2007. The evidence of this uncharged conduct was before the sentencing judge as context evidence, although the Applicant is of course not to be punished for that conduct.

Ground 1

13. The sole issue raised by Ground 1 is whether the standard non-parole period attaching to the six principal offences against s 61M(2) is 5 or 8 years. Relevantly, each of those six offences was committed before 1 January 2008.

14. At the time of the commission of the six s 61M(2) offences, the standard non-parole period attaching to that offence was 5 years. On 1 January 2008, the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) (2007 Amendment Act) came into effect. That Act increased the standard non-parole period for offences against s 61M(2) from 5 to 8 years. [3] It also inserted cl 57 of Schedule 2 of the CSPA, which expressly provided that the increase in the statutory non-parole period was to have retrospective operation: [4]

“57   Existing offences and proceedings

The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to the determination of a sentence for an offence whenever committed, unless—

(a)   the court has convicted the person being sentenced of the offence, or

(b)   a court has accepted a plea of guilty and the plea has not been withdrawn,

before the commencement of the amendments.”

It was not in dispute that, at the time of those amendments, the increase to the standard non-parole period effected by the 2007 Amendment Act had retrospective operation: see GSH v R; R v GSH [2009] NSWCCA 214 at [46].

3. See 2007 Amendment Act, Sch 1, cl 10.

4. Ibid, Sch 1, cl 16.

15. On 31 August 2018, prior to the Applicant’s sentencing hearing, s 25AA of the CSPA came into force. That section, which was introduced by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) [5] (the 2018 Amendment Act), provided:

    5. Sch 3, cl 6.

“25AA   Sentencing for child sexual offences

(1)   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.

(2)   However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3)   When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4) This section does not affect section 19.

(5)   In this section—

child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years—

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b)   an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c)   an offence of attempting to commit any 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).” (emphasis added)

16. The 2018 Amendment Act also made two other amendments which are relevant for present purposes. First, it repealed s 61M (together with ss 61L–P) of the Crimes Act and replaced them with reformulated offences involving “sexual touching” and “sexual acts” in ss 61KC–61KF (effective on 1 December 2018). [6] Second, it introduced a new cl 91 to Schedule 2 of the CSPA, which deals with transitional provisions. [7] That clause also came into effect on 1 December 2018, and provides:

“91   Standard non-parole periods

The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence against section 61M (1) or (2) of the Crimes Act 1900 committed before that amendment.”

6. Sch 1, cll 7–8.

7. Sch 3, cl 10.

17. Relevantly, the Table to Division 1A of Part 4 of the Act sets out the standard non-parole periods applying under the CSPA. Immediately before the 2018 Amendment Act, item 9B of that table provided that the standard non-parole period applying to an offence against s 61M(2) was 8 years.

18. Clause 91 of Sch 2 to the CSPA, on one view, would appear to point towards an opposite conclusion to s 25AA of that Act. This apparent inconsistency is at the crux of the issue raised for determination by Ground 1.

19. In GL, Hamill J addressed this issue at [108]–[110] as follows:

“[108] Section 25AA abolished the longstanding practice of applying the sentencing practices and patterns at the time of offending. However, in doing so it tempered the effect of the amendment by (i) making the applicable SNPP the one that existed at the time of the offence (not the time of sentence) [CSPA, s 25AA(2)] and (ii) preserving the operation of s 19 of the CSPA (restricting the retrospective operation of increases in maximum penalties) [CSPA, s 25AA(4)]. Clause 91 operates to preserve the SNPP for an offence (s 61M) that was repealed and reformulated elsewhere in the amending Act [2018 Amendment Act, Sch 1, cl 7. This clause omits s 61M and replaces it with 61KD ‘Aggravated sexual touching’]. It is difficult to reconcile those two provisions, but it is more appropriate to apply the clear words to be found in one of the critical provisions of the amending legislation (s 25AA), rather than to apply a clause of the transitional provisions.

[109] This approach applies the plain language of s 25AA while also giving voice to the principle that, in the absence of clear statutory language, the construction of penal statutes should favour the liberty of the subject [Beckwith v The Queen (1976) 135 CLR 569 at 576-577; [1976] HCA 55, Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58 at [45]]. Of course, this latter principle of statutory interpretation has developed into one of last resort over time [Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 at [39], Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; (2017) 270 A Crim R 33 at [55] (Leeming JA)]. Finally, as the applicant submitted, the application of the two amendment acts lead to different conclusions and the fact that s 25AA was enacted later in time means it should prevail [Goodwin v Phillips (1908) 7 CLR 1 at 7; [1908] HCA 55].

[110]   Accordingly, the SNPP for counts 2 and 3 was 5 years. It is clear from the sentencing judgment that the sentencing Judge, acting on the submissions of counsel on both sides, proceeded on the basis that counts 2 and 3 were subject to a SNPP of 8 years for those counts.” (some footnotes omitted, some included)

20. To similar effect, Garling J said at [4]–[7]:

“[4] On the difficult question of statutory interpretation, I have concluded that the proper interpretation to be given to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) is that which Hamill J sets out.

[5] For me it is clear, that the Parliament intentionally tempered the significant change made by that provision to the principles by which sentences for historic sexual offences were imposed, by, in s 25AA(2), excluding from the change to current sentencing practices, the standard non-parole periods which existed at the time of the offence. Section 25AA uses two distinct and different phrases: “at the time of sentencing” and “at the time of the offence” each of which refer to a particular point in time.

[6] There is no reason to interpret s 25AA(2) as identifying the standard non-parole period which was brought into existence at a later time even if the later amending provision had retrospective effect. That later amending provision, changing the standard non-parole period to eight years, had a retrospective effect but it did not amend the legislation which existed at the time of the offence. Rather it was a later amendment, which could only be applied after its introduction. But it could be applied, retrospectively, to offences committed before it took effect.

[7] As well, as Hamill J points out, the words of s 25AA as a later provision ought, if any doubt exists, prevail.”

21. Brereton JA, although finding it unnecessary to determine the matter, expressed doubts about the conclusion reached by the majority. His Honour said at [1]:

“As to Ground 7, I am inclined to think that Parliament should not be considered to have intended by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (“the 2018 Amendment Act”) to repeal the retrospective application of the 8-year standard non-parole period to offences under s 61M committed before 2008 and reinstate the 5-year SNPP which applied before the commencement of the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) on 1 January 2008, and that clause 91 of the transitional provisions (Schedule 2) of the Crimes (Sentencing Procedure) Act, introduced by the 2018 Amendment Act had that purpose and effect. If that view be correct, Ground 7 also would fail. However, as I entirely agree with his Honour that in any event no lesser sentence was warranted than that imposed by the sentencing judge, and that the appeal should be dismissed on that basis, it is unnecessary that I finally resolve this issue.” (footnote omitted)

22. In the present appeal, the Crown submitted that this Court should decline to follow the decision of the majority in GL, contending that the effect of cl 91 of Sch 2 was to preserve the 8 year standard non-parole period for offences against s 61M(2). The Applicant, on the other hand, sought to defend and adopt the reasoning of Garling and Hamill JJ in GL. In his written submissions, the Applicant submitted, in essence, that the language of s 25AA(2) was plain and unambiguous in its effect, and was not altered by clauses 57 or 91 of Schedule 2 to the CSPA.

23. It should be noted that since the time of the sentencing hearing, the provisions of the CSPA discussed in this section have been slightly amended. [8]

    8. See Crimes (Sentencing Procedure) Amendment Act 2022 (NSW), which came into force on 18 October 2022.

When will this Court depart from its own previous decisions?

24. The circumstances in which an intermediate appellate court should depart from one of its previous decisions were set out in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 (Gett). In that decision, after a comprehensive review of authorities, Allsop P, Beazley and Basten JJA held that an intermediate appellate court should not depart from its own previous decision(s) unless the court is satisfied that the previous decision was “plainly wrong” or “clearly wrong”, and that there are compelling discretionary reasons not to follow it. At [294]–[295], their Honours said:

“The phrases “plainly wrong” or “clearly wrong” can be understood to focus on at least one or more of the following attributes of a ruling:

(a)   the fact of error is immediately […] apparent from reading the relevant judgment;

(b)   the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred …, and

(c)   the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis.

In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority.” (emphasis added)

25. Their Honours went on to say, however, that the fact that an earlier decision is plainly wrong is “a necessary, but not sufficient, condition for departure from earlier authority”: at [296]. Once it is established that the earlier decision was plainly wrong, the court must then turn to consider whether there is a “compelling reason” for the departure from the earlier authority: Gett at [301], citing RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265 at [104] per Nettle JA (as his Honour then was).

26. The principles laid down in Gett have since been applied on a number of occasions in the Court of Criminal Appeal: see eg Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [127]–[129]; Park v R [2020] NSWCCA 90 at [33]; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (Totaan) at [72]–[74].

27. It is not correct, as was put by the Crown in its written submissions, that this Court should decline to follow one of its previous decisions if that decision is plainly wrong or if there are compelling reasons to do so. Rather, it must be established that the previous decision is plainly wrong and that there are compelling reasons to depart from it: see Totaan at [72]. In the context of identifying reasons to depart from an earlier decision, I said in Totaan that:

“[c]onsiderations that may bear upon an intermediate court’s approach to departing both from its own earlier decisions … and those of courts at a similar level of the federal judicial hierarchy include whether the challenged decision(s) are closely reasoned, whether the principle for which the decision stands has been worked through in a series of cases, and whether the decision(s) challenged have been unanimously followed or whether there is some tension between decisions of courts of coordinate authority in relation to the challenged decision(s).”

28. A number of matters were advanced by Ms Wilkins, on behalf of the Crown, as to why this Court should be prepared to revisit the recent decision in GL. These were that it was a split decision (Brereton JA reserving his position and inclining provisionally to a different construction) and the fact that the New South Wales Director of Public Prosecutions did not appear in GL as that case involved a mixture of state and federal offences and was prosecuted by the Commonwealth Director. It was also submitted that the point appeared to have been raised late in the day in GL, with the consequence that the Court did not necessarily have the benefit of full argument in that case. While I would not reject these points as irrelevant, and accept that they are able to be taken into account in considering whether there are compelling reasons for this Court to depart from its recent decision in GL, they do not bear upon the question of whether that decision is plainly wrong.

29. This Court is routinely engaged in consideration of difficult questions of statutory interpretation. It is not unknown for the legislature to express itself in a manner that is not altogether clear or, while apparently clear, does not necessarily take account of other existing statutory provisions which may be affected by an apparently clear amendment to legislation. Moreover, the literal meaning of a statutory provision may not always accord with its legal meaning (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]) although, as Leeming JA observed in Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [144], “[i]t may not be often that a court will depart from the literal meaning in order to give effect to the imputed intention and to promote the legislative purpose.”

30. Where questions of statutory construction are finely balanced, it may be difficult to conclude that a particular prior interpretation of a statutory provision is “plainly wrong”. Certainly, the jurisprudence relating to an intermediate appellate court departing from its previous decisions requires rather more than simply that a subsequent bench takes a different view of a particular piece of legislation than the earlier bench. In cases where a definitive ruling may be obtained from the High Court following the grant of special leave to appeal, considerations of certainty, continuity and predictability militate against this Court or the Court of Appeal too readily departing from their own recent decisions. This is the principal reason for the stringency of the “tests” articulated in cases such as Gett and Totaan.

31. An important question raised in the present case relates to the extent of the reach of what I will refer to for convenience as the Gett principles. In oral argument, a question arose as to whether the conclusion of the majority in GL about the issue of statutory construction fell within the scope of the Gett principles. The Chief Judge at Common Law suggested that, on a strict view of the principles of precedent, it might be argued that the conclusion on the construction of s 25AA(2) did not form part of the ratio decidendi of GL in light of the fact that Garling and Hamill JJ, after upholding the relevant ground of appeal and proceeding to re-exercise the sentencing discretion, ultimately considered that no less severe sentence was warranted in law and thus dismissed the appeal (see s 6(3) of the Criminal Appeal Act).

32. This suggestion raises two related and overlapping issues. First, are the principles relating to departure from recent decisions of this Court confined to departures from the strict ratio decidendi of previous decisions? Embedded in this issue is the ambit of the concept of ratio decidendi. And second, for the purposes of the Gett principles, did the conclusion reached by Garling and Hamill JJ form part of the ratio decidendi of GL?

33. As to the first issue, namely whether the Gett principles apply only in respect of the ratio decidendi of previous decisions of this Court (or the Court of Appeal or other intermediate courts of appeal or courts of criminal appeal), the distinction between ratio and obiter is easy to state but sometimes less easy to identify. In Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817 (Wu) at [24], the Full Court of the Federal Court observed that the principles governing the identification of ratio decidendi in any given case are “difficult to articulate with precision” and, as shall be seen, views differ as to what should be considered ratio decidendi.

34. The orthodox position at English law, often attributed to the judgment of Vaughan CJ in Bole v Horton (1673) Vaugh 360 at 382, was that a conclusion of law will form part of a case’s ratio decidendi only if it was essential or necessary to the outcome of the case (in the sense that the judgment or orders of the court would not have been the same if not for the conclusion in question). A corollary of that proposition is that (putting to one side rulings that go to a court’s own jurisdiction) where a court decides a case in favour of one party, conclusions of law against the winning party will generally be obiter dicta: see eg Penn-Texas Corp v Murat Anstalt (No 2) [1964] 2 QB 647 at 660–661 and In Re State of Norway’s Application (No 2) [1990] 1 AC 723 at 749–750, 769–770. It is on this strict application of this theory of precedent that the approach taken by Garling and Hamill JJ to the interpretation of s 25AA(2) might be considered not to form part of the ratio decidendi of GL, as it was not dispositive of the appeal.

35. It is true that, as is noted in the reasons of Beech-Jones CJ at CL, the orthodox position was summarised by Finkelstein J in Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316 (Bristol-Myers Squibb) at [150] in the following way: “a statement of principle that is not necessary to found the judgment or order of the Court, that is a statement which if not made or if decided differently, would not alter the outcome, is obiter”. However, Finkelstein J did not endorse this conception of ratio decidendi. Rather, his Honour went on to express doubt about the orthodox view, putting forward an alternative position at [157]–[160]:

“[157]   In an increasingly complex society the disputes that come before the courts are also increasing in their complexity. Many cases raise numerous and complicated issues. Nowadays it is generally accepted that a trial judge, and even an intermediate appellate court, should deal with all (or at least most) of the issues raised for consideration by the parties. If a judge fails to adopt this approach and on appeal it is held that the ruling is in error, it would inevitably lead to a new trial so that the unresolved issues can be determined. If a judge, mindful of his duty, has dealt with all of the issues that have been raised for his decision, a new trial can often be avoided. The beneficial effect of this approach, both to the parties to the litigation and to the administration of justice generally, cannot be overstated.

[158]   When a judge takes it upon himself, conformably with his duty, to decide all of the issues that are raised for decision, particularly those issues which he regards as a necessary step to resolve the case, then should those of his reasons which do not form the basis of the order ultimately made be treated as a mere obiter to be disregarded by later courts? In my view, they should not be so treated. In the first place, there is no reason in logic to draw a distinction between a case where a judge decides two points of law in favour of one party that support the order made in favour of that party (where both rulings of law are part of the ratio) and a case where a judge decides one of those points against the party in whose favour an order is made. … Common law principles should be developed in an orderly and logical fashion to provide the certainty that a society demands from its legal system.

[159]   Second, to limit the ratio of a case to rulings that support the order ultimately made is to defer too much to form. It would often leave to the hand of the pleader the decision of what is and what is not to be the ratio of a case. The ever-increasing use of the declaratory order, negative and positive, shows the ease with which almost every issue that is raised in a case could be made the subject of an order if the pleader is sufficiently careful or, some might say, unnecessarily pedantic. Presumably, if the parties in Penn-Texas (No 1) and In re State of Norway's Application (No 1) had sought declaratory relief in relation to the power of the court to make the orders sought, or if they had raised as questions for the determination of the court the proper construction of the applicable statutes, that would have transformed into ratio what the two subsequent Courts of Appeal decided was dicta.

[160]   In the third place, a more satisfying approach would be to discard the broad view of Vaughan CJ [in Bole v Horton (1673) Vaugh 360 at 382] that a ruling can only be treated as ratio if it supports the ultimate order of the court … at a minimum, I would hold that the ratio of a case should at least include every ruling on a point of law that is treated by the judge as a necessary step in reaching his ultimate conclusion in a case whether or not that ruling is in favour of or against the party who obtains an order or judgment: see R Cross and J W Harris Precedent in English Law, 4th ed (1991) at 72.” (emphasis added)

36. This passage has been referred to in a number of subsequent decisions: see eg Wu at [24]–[25]; Cadbury Schweppes Pty Ltd v Amcor Ltd (No 3) [2008] FCA 1668 at [6]; ReFrench Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008 at [59].

37. Differing views as to the ambit of the doctrine of precedent were noted but not ultimately resolved by the New South Wales Court of Appeal in Klewer v Attorney-General (NSW) [2010] NSWCA 219 (Klewer) at [18]–[22] which also referred to the decision of Finkelstein J in Bristol-Myers Squibb. The approach favoured by Finkelstein J was, however, referred to and applied by Sackville AJA in Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 at [121], who said, relevantly for present purposes:

“… if the meaning of a statute is disputed and the Court rules, as part of its justification for its conclusion, that it has one meaning rather than another, the ruling is the ratio decidendi.”

38. As is clear from the above discussion, the approach to the identification of ratio decidendi and obiter dicta is not entirely settled, and much ink has been spilt on this subject by academics and jurisprudes over many years: see, for example, J Stone, Precedent and Law: Dynamics of Common Law Growth (1985, Butterworths); R Cross and JW Harris, Precedent and English Law (4^th ed, 1991, Clarendon Press). Moreover, in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134] (Farah), the High Court introduced the notion of “seriously considered” obiter dicta and impliedly suggested that the doctrine of stare decisis could operate at varying levels of strictness: see also at [147], [158]. To the extent that the effect of Farah was to introduce the notion of “binding dicta”, this area of discourse is made more complex and uncertain.

39. The question of the ambit of the Gett principles falls for consideration in a context where intermediate appellate courts are not strictly bound by their previous decisions, and where it has been held by the High Court that the extent to which an intermediate appellate court regards itself as free to depart from its previous decisions must be a matter of practice for that court to determine for itself: Nguyen v Nguyen (1990) 169 CLR 245 at 268–270; [1990] HCA 9 (Nguyen).

40. Cases such as Gett and the rich seam of cases that preceded and were considered in it used the terminology of departure from “previous decisions” or “earlier authority” (see, for example, Gett at [261], [281], [296] and [300]) and did not focus on what may often be the somewhat elusive distinction between ratio and obiter. Sixty-three years before Farah, Jordan CJ had referred to a “considered judgment of the Full Court” in the context of disregarding or departing from prior authority: Bridges v Bridges (1944) 45 SR (NSW) 164 at 172. That expression was apt to include both strict ratio and at least what may now be thought of as “seriously considered dicta” (as to which, see B Chen, “Seriously Considering ‘Seriously Considered Dicta’: Precedent after Farah Constructions” (2021) 95 ALJ 186; M Harding and I Malkin, “The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts” (2012) 34 MULR 239).

41. In a number of decisions post-dating Gett which raised the issue of departure from a previous decision, judges have first sought to identify the ratio of the earlier decisions: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at [192]­-[202]; Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396 at [215]–[216]. On the other hand, in Kendirjian v Lepore [2015] NSWCA 132 (Kendirjian) at [28], Macfarlan JA referred to Gett in the context of discussing whether to follow the seriously considered dicta of a previous decision of the Court of Appeal. (Although an appeal from Kendirjian was upheld in the High Court, there was no substantive discussion of the application of the Gett principles in this context: see Kendirjian v Lepore (2017) 259 CLR 275; [2017] HCA 13 esp at [23].)

42. It may also be observed that, in the somewhat similar context of an intermediate appellate court departing from the decisions of other intermediate appellate courts concerning the interpretation of Commonwealth legislation or uniform national legislation (as to which, see Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; [1993] HCA 15), it was recently held that the obiter dicta of other intermediate appellate courts do not engage the relevant principles of restraint, although such dicta should ordinarily be given great weight: Hill v Zuda Pty Ltd (2022) 96 ALJR 540; [2022] HCA 21 at [26].

43. As the issue was not fully argued in the present appeal, and as it is not strictly necessary to decide, I do not express a concluded view about whether the operation of the principles of restraint discussed in Gett is confined to, or requires the strict identification of, the ratio decidendi of a previous decision. At the very least, however, it may be said that confining the operation of the Gett principles to an unduly narrow conception of what is strict ratio is undesirable for a number of reasons.

38. First, it may lead to arid debates as to the true content of that jurisprudential concept both as an abstract proposition and in the context of a particular earlier decision or line of authority that is being challenged. As has been seen, the question of what constitutes ratio decidendi is not uncontested. Moreover, even on an orthodox view of precedent, the identification of what conclusions of law directly support the orders ultimately made by a court will not always be a simple task. An overly technical approach to ascertaining whether a conclusion forms part of the ratio decidendi of any given case may be apt to distract from the fundamental objectives underpinning the decision in Gett, being “the underlying principles of certainty, predictability and transparency upon which the theory of precedent is founded”: Gett at [301].

39. Second, a narrow conception of what is “strictly” ratio may give rise to confusion and uncertainty in lower levels of the judicial hierarchy. The matter can be tested by asking whether a sentencing judge in either the District Court or the Supreme Court, required to apply s 25AA of the CSPA or any successor analogues, would consider him or herself obliged to follow the majority position in GL in a relevantly identical case. On the analysis suggested by Beech-Jones CJ at CL that what Garling and Hamill JJ said in relation to s 25AA in GL was obiter, the sentencing judge would not be obliged to follow the majority position in GL, notwithstanding that two members of the Court of Criminal Appeal had expressed a clear and unequivocal view as to the proper construction of the legislation. This would be a surprising and unsatisfactory result. In my view, a sentencing judge would consider him or herself to be bound by the majority position in GL, and properly so.

40. Third, if the approach proposed by the Chief Judge were applied in other contexts, it would in many cases have the consequence that, although an appellate court has reached a considered conclusion that a primary judge erred or that a judicial function miscarried, the reasons given for that conclusion would not be binding on lower courts, nor would they attract the operation of the principles in Gett. For example, if this Court were to unanimously conclude in an appeal against conviction that the trial judge had misdirected the jury, but then went on to dismiss the appeal by invoking the proviso in s 6(1) of the Criminal Appeal Act, the Court’s reasons about the proper directions to be given would not constitute ratio decidendi. Indeed, whenever the proviso is successfully invoked in an appeal against conviction, on a strict application of the orthodox view of ratio decidendi, nothing said by this Court about the grounds of appeal could ever form part of the ratio decidendi of the case.

41. Similar issues are likely to arise where, for example, the Court of Appeal, when considering an application for judicial review, concludes that a decision-maker misconstrued a statutory provision and thereby fell into error, but that the error was not material to the outcome and therefore did not go to jurisdiction: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]. In such cases, on the traditional and narrow view of the meaning of ratio decidendi, the Court’s reasons about the construction of the statute would not fall within the scope of the Gett principles for the purposes of not following an earlier decision of the Court.

42. The same is true of sentence appeals, such as GL, where this Court finds that the sentencing discretion miscarried but that the appeal should nonetheless be dismissed because no less severe sentence is warranted. Indeed, on the approach proposed by the Chief Judge, if the five judges who heard the present appeal were to decide that the construction adopted by Garling and Hamill JJ was correct but that the Applicant should not receive any shorter sentence on a resentence, there would (after two appeals) still be no extant ratio decidendi to bind a sentencing judge in relation to the important issues of statutory construction which were presented by this appeal.

43. This would be the case notwithstanding that the identification of error and the re-exercise of the sentencing discretion are conceptually independent and entirely sequential inquiries, in the sense that the existence of error is a necessary precondition to the exercise of the sentencing discretion. As was explained in Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42]–[43], this Court will not turn to re-exercise the sentencing discretion unless and until a ground of appeal is found to be made out.

44. In this context, whether a statement of principle engages the principles in Gett may be informed by the nature of the appellate task performed by the court in the earlier decision. In my view, at least for the purposes of the Gett principles, the ratio decidendi of a previous decision should generally be taken to include a conclusion arrived at by the earlier court in resolving an issue for determination in circumstances where:

• the relevant issue was fully argued; and

• the issue was treated by the court as a necessary step in reaching its conclusion to uphold a ground of appeal; even if

• the appeal is ultimately dismissed by reason of the exercise of a consequential power, in the nature of a residual discretion, to dismiss an appeal notwithstanding the presence of error.

51. For these reasons, I am inclined to disagree with the view suggested by the Chief Judge that what was said by Garling and Hamill JJ in GL did not form part of the ratio decidendi in that decision. For their Honours to have reached the conclusion they did in the context of a resentencing exercise, it was first necessary for them to have reached the conclusion they did as to the effect of s 25AA(2). Otherwise, there would have been no occasion to exercise the sentencing discretion afresh, no other ground of appeal having succeeded.

52. It is true that it may have been open to Garling and Hamill JJ to adopt the approach taken by Brereton JA at GL at [1], that is, to express only a provisional view about the issue of statutory construction on the basis that, even if the ground were upheld, no lesser sentence was warranted in law. However, that is not the approach that was taken.

53. It follows that the decision in GL should not be departed from unless it is considered to be plainly wrong and there are compelling reasons to depart from it. I do not consider it to be so. Indeed, as the reasons that follow demonstrate, I do not consider that it was wrongly decided at all, whether “plainly” so or otherwise.

What standard non-parole period should apply?

54. It is convenient first to deal with the submissions advanced by the Crown as to the non-parole period to be applied to the offences against s 61M(2), as it was the Crown which sought to persuade this Court to depart from its previous decision in GL.

55. First, the Crown made the submission that the words “the standard non-parole period … that applied at the time of the offence” in s 25AA(2) do not refer to the standard non-parole period that existed at the time of the offence, but rather that which “should be applied to an offence”. (Both Hamill J and Garling J had used the term “existed” in expressing their understanding of the operation of s 25AA(2) in GL.) The Crown contended that, on this reading of s 25AA(2), there was no conflict or inconsistency between, on the one hand, s 25AA(2) of the CSPA, and on the other hand, cll 57 and 91 of Schedule 2.

56. This argument about the construction of s 25AA(2) should, in my view, be rejected. As Garling J pointed out in GL, “s 25AA uses two distinct and different phrases: ‘at the time of sentencing’ and ‘at the time of the offence’”. Indeed, it does so in both s 25AA(1) and (2). Moreover, s 25AA(2) draws an express contrast between those two concepts: it refers to the standard non-parole period “that applied at the time of the offence, not at the time of sentencing” (emphasis added). This language is emphatic, as is the use of the past tense “that applied”.

57. On the Crown’s proposed construction, it is unclear what s 25AA(2) would add to the CSPA; it would merely amount to a circular statement that that the non-parole period to be applied to an offence is the non-parole period to be applied to that offence.

58. The Crown’s submission also does not sit comfortably with the plain words of s 25AA(2) and the phrase “at the time of the offence”. The standard non-parole period at the time of the offence was 5 years and the fact that, in 2008, it was increased to 8 years with retrospective effect did not alter that fact. In this context, Garling and Hamill JJ were correct in their understanding that the phrase “applied at the time of the offence” in s 25AA(2) referred to the non-parole period that “existed” at that time.

59. It is correct, as the Crown observed, that the passage of s 25AA(2) in 2018 had a practical effect on the operation of cl 57 which is set out at [14] above, although that clause continued to operate. The only difference was that, whereas previously it operated to give retrospective effect to the new sentencing provisions introduced by the 2007 Amendment Act (unless the court had already convicted the person being sentenced of the offence, or a court had accepted a plea of guilty and the plea had not been withdrawn), a further qualification was introduced to its operation by s 25AA(2) in the case of standard non-parole periods for offences that took place prior to cl 57’s introduction. This was not to create inconsistency; rather, to the extent that the newly introduced s 25AA(2) qualified the operation of cl 57, the more recent legislative provision will generally be taken to prevail: P Herzfeld and T Prince, Interpretation (2^nd ed, 2020, Lawbook Co) at [11.120].

60. In this context, I do not agree with the observation of the Chief Judge at [132] below that “on the applicant’s construction, s 25AA(2) does not really engage with cl 57 of Schedule 2” and am, with respect, unclear as to what operation s 25AA(2) is left to have on his Honour’s reasoning.

61. Clause 57 should be read as subject to s 25AA(2) both by reason of the fact that s 25AA(2) was later in time and extraordinarily clear in its language: Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 at [34] (Shergold). It should be noted that the amendments referred to in cl 57, namely the amendments made to the CSPA by the 2007 Amendment Act, went well beyond those that fell within the scope of s 25AA, introduced in 2018. Thus cl 57 and s 25AA can “stand or live together”: Shergold at [35], citing Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 280; [1961] HCA 32.

62. The question then becomes whether this analysis is affected by cl 91 of Sch 2 to the CSPA. The Crown contended that it was, submitting that s 25AA was in some way qualified by, or subject to, cl 91 (which was said to confirm the ongoing effect of cl 57 to Sch 2 in the case of s 61M (1) and (2)). In support of this argument, the Crown invoked the principle of statutory construction that, where there is a conflict between a general and a specific provision, the specific provision will prevail (“generalia specialibus non derogant”). This submission assumed that there was some inconsistency between s 25AA(2) and cl 91.

63. It is true that at least Hamill J in GL also saw some inconsistency between these two provisions but I must confess that I do not see any necessary inconsistency. Both sections serve different purposes. As Hamill J said in GL at [108], while s 25AA abolished the longstanding practice of applying the sentencing practices and patterns at the time of offending, at the same time, it tempered the effect of the amendment by making the applicable standard non-parole period that which existed at the time of the offence (not the time of sentence). It would be odd that such a clear provision was intended to be qualified by cl 91 of a schedule to the CSPA (as opposed to this being made plain in s 25AA itself, as could readily have been done).

64. Clause 91 has its own work to do, although its inclusion in the CSPA may not have been strictly necessary in light of s 25AA(2). What it does do is to make plain that, although s 61M(1) and (2) have been removed from the statute book, the previous standard non-parole periods continue to apply after the abolition of the offences. This transitional provision plainly recognises that persons may have been charged for offences against s 61M prior to the removal of those offences from the Crimes Act. For any offences which occurred between 2008 and 2018, the standard non-parole period will be that identified in the Table. For offences prior to 2008, s 25AA(2) operates according to its plain terms.

65. Another reason for concluding that cl 91 was not intended to qualify s 25AA(2) is that cl 91 applies to both s 61M(1) and (2). While s 61M(2) related to an assault involving an act of indecency on a person under 16 years, s 61M(1) was not restricted to child sexual offences: it created an offence of indecent assault in circumstances of aggravation (which included, for example, where the offender was in the company of others, or the victim had a serious physical disability). The standard non-parole period for offences against s 61M(1) also was not altered by the 2007 Amending Act (or indeed by any other Act). This strongly undermines any argument attributing to Parliament a circuitous legislative intent to qualify the operation of s 25AA, which is confined in its terms to child sexual offences, by cl 91.

66. It should also be observed that cl 91 of Sch 2 to the CSPA adopts a similar form to cl 60(2), which was introduced in 2009 and relates to s 66A of the Crimes Act concerning sexual intercourse with a child under the age of 10. At the time that cl 60(2) was introduced, s 66A was amended to add an aggravated variant of the offence, which attracted a higher penalty. [9] The table in the CSPA containing standard non-parole periods was also amended to specify that the non-parole period applied to both offences. [10] The fact that cl 91 is drafted in the same standard form as cl 60 significantly undermines the force of the Crown’s argument that it was intended to qualify or reverse the operation of s 25AA(2) in the context of offences against s 61M(2).

    9. See Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 1, cl 9 (which came into effect on 1 January 2009).

    10. Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 2.4, cl 5.

67. It follows that I agree with the conclusion of the majority in GL, although perhaps arriving at that conclusion by a different route which rejects the premise that cll 57 and 91, on the one hand, and s 25AA, on the other hand, are necessarily inconsistent with each other. As I have sought to demonstrate, they can be read together without distorting the clear language of s 25AA. A distorted reading would, however, be the consequence of accepting the Crown’s submissions.

68. Even if there be inconsistency, I would not resolve it in the way contended for by the Crown. Section 25AA is not said to be subject to cl 91 of Sch 2. Secondly, cl 91 does not in terms purport to qualify s 25AA; it is simply a statement to the effect that a table continues to apply in respect of an offence against s 61M(1) and (2) committed before the 2018 amendments, whereas s 25AA contains an explicit direction to a sentencing judge as to how to go about his or her task in sentencing a person for a “child sexual offence”.

69. Although s 25AA applies to more offences than simply s 61M(2) offences, that does not make it more general than cl 91. Section 25AA is concerned with “child sexual offences” and operates in a very specific and deliberate way.

70. Finally, although transitional provisions are important and must be given effect according to their terms, one would not expect, absent extremely clear language, that a transitional provision would have the effect of limiting the scope or operation of a very clearly drafted substantive provision introduced into the Act at the same time as the transitional provision.

71. I should add that I have had regard to the second reading speech to the 2018 Amendment Act which introduced s 25AA into the CSPA, together with a raft of new offences to the Crimes Act, following the Royal Commission into Institutional Responses to Child Sexual Abuse. The background to the introduction of s 25AA is identified in the separate reasons for judgment of the Chief Judge at Common Law.

72. As the Crown acknowledged, nothing in the second reading speech addressed s 25AA(2) specifically. Rather, the relevant passage of Attorney General Speakman’s speech was as follows (with the reference to s 25A presumably intended as a reference to s 25AA):

“Schedule 3 [6] inserts a new section 25A 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.”

This passage of the Attorney General’s speech appears to be directed to ss 25AA(1) and (3), and makes no mention of standard non-parole periods. The Chief Judge has emphasised at [126] below that the Attorney General also stated that the “penalties for the [newly introduced] sexual act offences are the same as for the existing acts of indecency offences” and has suggested that this statement “sits uneasily with any suggestion that any part of the 2018 Amendment Act was intended to reduce the standard non parole period for offences committed under s 61M during any time after the introduction of standard non-parole periods.” With respect, I disagree. It is an accurate and unsurprising statement that newly created offences will bear the same penalties as for the offences that they replaced, as indeed they did.

73. Similarly, the reference from Recommendation 76 of the Royal Commission Report quoted by the Chief Judge at [128] of his reasons says nothing in terms about non-parole periods. Contrary, perhaps, to what his Honour suggests, the Royal Commission’s reference to what was said by Basten JA in MPB v R [2013] NSWCCA 213 was not by way of approbation or adoption but, rather, was in the context of reproducing an extract of a submission which had been made by the New South Wales Office of the Director of Public Prosecutions, just as portions of other submissions were reproduced in the Report.

74. Whilst the general purpose of the 2018 Amendment Act that introduced s 25AA was clear enough, as Gleeson CJ observed shortly after his retirement from the Bench, much legislation involves compromise: A M Gleeson, “Statutory Interpretation” (Justice Hill Memorial Lecture, Taxation Institute of Australia, Sydney, 11 March 2009). Parliaments, he said:

“… rarely pursue a single purpose at all costs. The problem of interpretation may be to decide how far Parliament has gone. Its general purpose may be clear enough, but the dispute may be as to the extent to which it has pursued that purpose. In such a case, to identify the general purpose may not be of assistance in finding the point at which a balance has been struck or a political compromise reached.”

110. The resolution of this issue turns upon the interaction of three provisions of the Sentencing Act that came into force at different times. The task of interpreting these provisions must “begin with a consideration of the text itself” although ascertaining the “meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]; “Alcan” per Hayne, Heydon, Crennan and Kiefel JJ; see also Interpretation Act 1987 (NSW), s 33). The consideration of the text of a statute does not involve only considering the text of the particular section relied on. It involves a consideration of the text of the statute as a whole (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 304 per Gibbs CJ and at 320 per Mason J).

111. As observed by Bell P, as Bell CJ then was, in Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 (“Sydney Seaplanes”), the “statutory context, encompassing legislative purpose and history, sometimes requires the literal or ordinary meaning of words to be read more narrowly than they may, on a first review and when regard is had solely to the text of the legislation, appear to be appropriate” (at [57]). This is particularly so when the legislation, or a provision thereof, is intended to have a “remedial character” (Sydney Seaplanes at [50]). The result is that when “the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance” (Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388 per McHugh J cited in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408).

112. This approach has even more force when one is seeking to reconcile the “apparently plain words” of one statutory provision (e.g. s 25AA(2)) with the conflicting but “apparently plain words” of another provision (e.g. cl 91 of Sch 2 to the Sentencing Act). As I will explain, however one describes the object of the inclusion of s 25AA(2) or the “mischief” it was intended to remedy, it was certainly not intended to reduce the standard non-parole period for an indecent assault on a child by implicitly repealing a partially retrospective increase in that period (or by any other means). There are other principles that can be invoked to reconcile apparently conflicting provisions of statutes such as subordinating a general provision to a more specific provision (TheOmbudsman v Laughton (2005) 64 NSWLR 114 at [19]; [2005] NSWCA 339). However, the difficulty with the application of that principle in this context is that it is directed to two provisions, or sets of provisions, dealing with the same subject matter and not two (or three) provisions each dealing with their own specific topic (see Amos v Brisbane City Council (2018) 230 LGERA 51; [2018] QCA 11 at [115]; P Herzfeld and T Prince, Interpretation (2^nd ed, 2020, Thomson Reuters) at [5.2.10]; “Herzfeld and Prince”). An analogous principle operates with respect to statutory powers conferred on a decision maker (Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59], [61] and [70] per Gummow and Hayne JJ).

113. The context in which these principles come to be applied is as follows. At all material times prior to the repeal of s 61M of the Crimes Act on 1 December 2018, s 61M(1) made it an offence to assault “another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commit an act of indecency on or in the presence of the other person”. Subsection 61M(2) made it an offence to assault “another person, and, at the time of, or immediately before or after, the assault, commit an act of indecency on or in the presence of the other person … if the other person is under the age of 10 years.” The maximum penalty for an offence against s 61M(2) was 10 years’ imprisonment.

114. With effect from 1 February 2003, Division 1A of Part 4 of the Sentencing Act, which made provision for standard non-parole periods, came into force (by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)). At that time, the Table to Division 1A (the “Table”) specified a standard non-parole period of five years for an offence under s 61M(2).

115. On 1 January 2008, the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) (the “2007 Amendment Act”) came into force. Clause 10 in Schedule 1 to the 2007 Amendment Act increased the standard non-parole period in the Table for offences against s 61M(2) from five to eight years. [11] It also inserted (what is now) cl 57 of Schedule 2 to the Sentencing Act as follows

“57 Existing offences and proceedings

The amendments made to this Act by the Crimes (Sentencing Procedure) Amendment Act 2007 apply to the determination of a sentence for an offence whenever committed, unless—

(a)   the court has convicted the person being sentenced of the offence, or

(b)   a court has accepted a plea of guilty and the plea has not been withdrawn,

before the commencement of the amendments.”

11. See 2007 Amendment Act, Sch 1, cl 10.

118. Neither (a) nor (b) was applicable to the applicant. In such circumstances it was accepted that this clause had retrospective effect, although in R v Lane [2011] NSWSC 289 at [61], Whealy J held that it did not apply to offences committed prior to the commencement of Division 1A of Part 4 on 1 February 2003.

119. In 2018, the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) (the “2018 Amendment Act”) was enacted. Schedule 1 to the 2018 Amendment Act made wholesale changes to the provisions of the Crimes Act concerning sexual offences including sexual offences committed against children. This included the repeal of s 61M. [12] Schedule 3 made amendments to the Sentencing Act. Clause 6 of Schedule 3 became s 25AA of the Sentencing Act as follows:

     12. Cl 7 of Sch 1.

“25AA   Sentencing for child sexual offences

(1)   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.

(2)   However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3)   When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4) This section does not affect section 19.

(5)   In this section—

child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years—

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b)   an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c)   an offence of attempting to commit any 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).” (emphasis added)

120. Other amendments made by the 2018 Amendment Act made an offence under s 61M(2) a “child sexual offence” for the purpose of this provision. [13]

     13. See Sch 1, cl 59 and Sch 3, cl 4 to the 2018 Amendment Act.

121. Schedule 3 to the 2018 Amendment Act also made various changes to the Table. It included what is now cl 91 of Schedule 2 to the Sentencing Act as follows:

“91   Standard non-parole periods

The Table to Division 1A of Part 4 of this Act, as in force immediately before its amendment by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, continues to apply in respect of an offence against section 61M (1) or (2) of the Crimes Act 1900 committed before that amendment.”

122. Immediately before the 2018 Amendment Act, cl 9B of the Table provided that the standard non-parole period applying to an offence against s 61M(2) was eight years.

123. Section 25AA came into force on 31 August 2018. Clause 91 and the bulk of the changes effected by Schedule 1 of the 2018 Amendment Act, including the repeal of s 61M, took effect from 1 December 2018. The Crown noted that, in GL, both Garling and Hamill JJ wrongly assumed that s 25AA and cl 91 to Schedule 2 were introduced at the same time (GL at [106]). The Crown submitted that the staggered introduction of these provisions supports its construction in that, if the applicant is correct, then, for the period between 31 August 2018 and 1 December 2018, s 25AA(2) revived the standard non-parole period of five years for an offence against s 61M(2) committed between 1 December 2003 and 1 December 2008 whereas the Table specified a standard non-parole period of eight years for all such offences. It is not necessary to address that submission because the issue in the present cases arises in relation to the construction of the Sentencing Act as in force after 1 December 2018 when all the relevant provisions were operative.

124. With effect from 18 October 2022, ss 25AA(1), (2) and (4) were repealed and re-enacted in an expanded form in s 21B of the Sentencing Act, so that the application of these provisions extends to sentencing for all offences and not just child sexual offences (see Crimes (Sentencing Procedure) Amendment Act 2022 (NSW); Schedule 1).

125. It can be accepted that, on a literal reading, s 25AA(2) operates to make the standard non-parole that “applied” at the time of the offending during the period 2003 to 2008, being five years, the standard non-parole period for such an offence when sentence is imposed after 1 December 2018. Equally, on a literal reading, the effect of cl 91 of Schedule 2 is that the Table which was in force immediately before the 2018 Amendment Act came into force, and which specified a non-parole period of eight years for an offence against s 61M(2), continues to apply in respect of an offence against that provision committed before that amendment, including during the period between 1 February 2003 and 1 January 2008. The applicant’s submissions in this Court heavily relied on the former proposition without ever confronting the latter, other than to assert that by some unspecified means the reference to the “Table” in cl 91 of Schedule 2 did not include the period of eight years for an offence under s 61M(2). This (apparent) conflict between a literal reading of both provisions so far as offences against s 61M(2) is concerned brings to the fore the principles of statutory construction outlined above.

126. The Attorney General’s Second Reading Speech in relation to the 2018 Amending Act described the Act as “strengthen[ing] our child sexual abuse laws, responding to the criminal justice recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse” (the “Royal Commission”). [14] The speech addresses the offences introduced (and amended) by Schedule 1 in detail. The Attorney General noted that the “conduct currently covered by the offences of indecent assault and acts of indecency will be covered by the offences of sexual touching and sexual act” and the “penalties for the sexual act offences are the same as for the existing acts of indecency offences”. That statement sits uneasily with any suggestion that any part of the 2018 Amendment Act was intended to reduce the standard non-parole period for offences committed under s 61M during any time after the introduction of standard non-parole periods.

     14. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 (Second Reading, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW)); Interpretation Act 1987, s 34(2)(f).

127. The Attorney General then addressed what became s 25AA stating as follows:

“Schedule 3[6] inserts a new section 25A [ie s 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.”

128. The Second Reading Speech was referring to the Royal Commission’s “Criminal Justice Report”. [15] Recommendation 76 of that Report was to the effect that “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”. [16]

     15. Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, June 2017); “Royal Commission Report”.

     16. Royal Commission Report at 101, 322.

129. This aspect of the Royal Commission’s Report was addressing authority in this Court, and in other intermediate courts of appeal, to the effect that an offender being sentenced for an historical sexual offence was to be sentenced in accordance with the sentencing practices prevailing as at the date of the commission of the offence charged when sentencing practices have developed adversely to an offence since that time (R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129 at [31] per Spigelman CJ, at [71] per Grove J and at [105] per Sully J). Thus, for example, it was held that, in sentencing an offender after the passage of the Sentencing Act for an offence committed in 1982, sentencing courts “should endeavour to apply the practice that existed in 1982 in specifying a non‑parole period” (AJB v The Queen (2007) 169 A Crim R 32; [2007] NSWCCA 51 at [37]; “AJB”). This “practice” involved the specification of a non-parole period of somewhere between a third and half of the term of the sentence (AJB at [39]). In MPB v The Queen [2013] NSWCCA 213 (“MPB”) Basten JA was critical of this line of cases especially so far as it involved the fixing of non-parole periods under the Sentencing Act by reference to previous practice in relation to remissions (at [20] to [31]). The Royal Commission Report specifically referred to Basten JA’s judgment in MPB when considering the submissions that resulted in Recommendation 76. [17]

     17. Royal Commissions Report at 313.

130. This material supplements, or at least reinforces, what can be discerned about the object or purpose of s 25AA from its terms. Subsection 25AA(1) refers to “sentencing patterns and practices”. The secondary materials confirm that this is a reference to judicial and not executive practices (in relation to the granting of remissions) or the effect of legislative provisions. Subsection 25AA(2) commenced with the phrase “however” which meant that it operated as a limitation or qualification on, or at least clarification of, s 25AA(1). Subsection 25AA(2) confirmed that, notwithstanding the effect of Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, a standard non-parole period is not a “sentencing pattern [or] practice” for the purposes of s 25AA(1). This is significant given that one of the relevant “practices” sought to be excluded related to the fixing of non-parole periods (by reference to the approach adopted by the courts in sentencing for the same offences around the time the subject offence was committed). Subsection 25AA(4) clarified that s 19 of the Sentencing Act was not affected by s 25AA(1). Section 19 addresses the effect of change in maximum penalties for offences. Subsection 19(1) provides that where a maximum penalty for an offence is increased by an Act or statutory rule then the increased penalty only applies to offences committed after the commencement of the relevant Act or rule. This aspect of s 25AA is also consistent with recommendation 76 of the Royal Commission noted above.

131. When s 25AA(4) is considered with s 25AA(1) and (2), the overall object or purpose of the statutory provision becomes clear, namely, to remove or correct what was seen as erroneous sentencing practices of the courts but not to alter the statutory regime governing the imposition of sentence. To the extent that it may be relevant, the proscribing by legislation of the application of certain sentencing patterns and practices developed by the courts does not “overthrow fundamental principles, infringe rights, or depart from the general system of law” (Bropho v Western Australia (1990) 171 CLR 1 at 18; [1990] HCA 24).

132. Subsection 25AA(2) identifies two points in time for the selection of the applicable standard non-parole period, namely that which applied “at the time of sentencing” and that which applied “at the time of the offence” and chose the latter. However, strictly speaking cl 57 of Schedule 2 to the Sentencing Act does not fit within that dichotomy. Adopting the concept of the word “applied” to which Garling and Hamill JJ in GL and the applicant subscribe (i.e. “existed”), clause 57 “applied”, that is brought into existence, a standard non-parole period of eight years at a time between the commission of the offence and the sentencing of the applicant (and gave it retrospective effect so that it applied to an offence “whenever committed”). Thus, on the applicant’s construction, s 25AA(2) does not really engage with cl 57 of Schedule 2. This only emphasises that s 25AA was not directed to, and does not operate to unravel, the retrospective change effected by clause 57 because s 25AA was not directed to altering the statutory regime governing the sentencing exercise for child sexual offences. Instead, to the extent necessary, the preservation of the operation of cl 57’s retrospective effect was itself given effect to by cl 91 of Schedule 2.

133. Otherwise, no assistance either way can be garnered from attempting to characterise the subject matter of either s 25AA or cl 91 as specific or general. Instead, they operate on different subject matters. Section 25AA deals with the specific topic of correcting what was considered to be errant sentencing practices of the courts in dealing with child sexual offences (and not altering the statutory regime governing the sentencing for such offences). Clause 91 is a specific, albeit standard, provision directed to preserving the existing standard non-parole periods for offences that have been repealed by the 2018 Amendment Act (including s 61M(2)). It reflects the operation of cl 57 which extended the application of the standard non-parole period of eight years for offences against s 61M(2) back to 1 February 2003. On the proper construction of these provisions, that period continues to apply when sentencing an offender after 1 December 2018 for offences committed against s 61M(2) between 1 February 2003 and 1 January 2008.

134. Since writing a draft of the judgment I have had the benefit of reading the Chief Justice’s draft. The areas of disagreement between his Honour’s judgment and mine do not require further elaboration save to note that on the interpretation I favour the purpose and role of s 25AA(2) is as set out above at [130] to [131] (cf Bell CJ’s judgment at [60]).

Departure from GL

135. The applicant contended that the Crown’s invitation to depart from the approach of Garling and Hamill JJ in GL engaged the principles applicable to a decision by this Court to depart from its own decisions. The relevant principles were distilled by Bell CJ in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [72] (“Totaan”) as follows:

“Th[e] principle is to the effect that, whilst intermediate appellate courts are not legally bound by their own earlier decisions, they should only depart from such authority or the authority of courts of co-ordinate jurisdiction within the national system if they are of the view that the decision in question is ‘plainly wrong’ and, such an error having been identified, there are “compelling reasons” to depart from the earlier decision or decisions. The fact that reasonable minds might differ on the interpretation of a statutory provision will generally be insufficient to warrant a conclusion that an earlier or existing interpretation of the provision or provisions in question was ‘plainly wrong.’”

136. To the extent that the applicant’s reliance on this passage assumes that a five‑member bench of this Court may only depart from an earlier decision of a three member bench of this Court in the circumstances postulated, then the applicant’s assumption is correct (see Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212 at [102] to [103] per Emmett JA and Ball J). Totaan was such a case. However, the applicant’s submissions also appeared to assume that the above passage from Totaan is applicable to the construction of s 25AA(2) favoured by Garling and Hamill JJ in GL. That assumption needs to be considered closely.

137. The current position appears to be that “a statement of principle that is not necessary to found the judgment or order of the Court, that is a statement which if not made or if decided differently, would not alter the outcome, is obiter” (Bristol-Myers Squibb Company v F H Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316 at [150] per Finkelstein J cited in ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 at [222] per Barrett J). Herzfeld and Prince formulate the principle as “[w]here a court decides a case in favour of one party, the orthodox view is that a conclusion of law against that party are strictly dicta” (at [34.80]). As noted, in GL, Garling and Hamill JJ, concluded that the effect of s 25AA(2) of the Sentencing Act is that any court sentencing an offender for an offence under s 61M(2) after s 25AA came into force must apply the standard non-parole period that existed at the time the offence was committed, which, prior to 1 January 2008, was five years. Brereton JA was doubtful of that conclusion (at [1]). However, all three judges dismissed the appeal. Each of Garling J and Hamill J concluded that, even though the sentence the subject of the appeal was affected by error, no lesser sentence was warranted and the appeal should be dismissed (at [8] and [125]; Criminal Appeal Act 1912 (NSW), s 6(3)). It follows that on a strict view of what constitutes the ratio of a judicial decision the approach to s 25AA(2) favoured by each of Garling J and Hamill J is not part of the ratio in GL as that approach was not necessary to found the orders of the Court dismissing the appeal. If the opposing construction had been adopted then it would not have affected the outcome.

138. On this approach the above discussion in Totaan as to the circumstances in which this Court may depart from its own decisions is not engaged in this case as, on one view Totaan (and Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; “Gett”) assume that the relevant aspect of the decision called into question is binding ratio. However, I have had the benefit of reading a draft of the Chief Justice’s judgment which suggests that either a wider approach to ascertaining what constitutes the ratio of a previous decision or a narrower approach to departing from previous judicial “decisions” regardless of whether the point in issue is strictly ratio or obiter should be adopted. I accept the force of why his Honour considers it undesirable to treat the principles in Gett as only engaged by a strict reading of what constitutes the ratio of a previous judicial decision.

139. It is not necessary to consider this further as I will assume, without deciding, that the principles in Gett and Totaan are applicable. Adopting the approach in Totaan, then I respectfully consider the construction of s 25AA favoured by Garling and Hamill JJ in GL to be “clearly wrong”. Regardless of how wide or narrow one conducts the inquiry into the purpose and object of s 25AA including s 25AA(2), I do not accept that it was open to conclude that it effected some form of “compromise’ or tempering by undoing a retrospective increase in the standard non-parole period that came into force 10 years prior to the enactment of s 25AA.

140. Further I consider there are “compelling reasons” to warrant a departure from this aspect of GL (Gett at [301]). GL is a relatively recent decision of this Court. It is not a decision that “has been worked through in a series of cases” (Totaan at [76]). The Director of Public Prosecutions (NSW) (“DPP (NSW)”) was not a party to the proceedings in GL as the Director of Public Prosecutions (Cth) (the “DPP (Cth)”) had the carriage of the appeal. In the ordinary course, the DPP (NSW) is the obvious prosecutor with an interest in being heard on any question concerning the application of the Sentencing Act to historical child sexual offences. Lastly, it seems overwhelmingly likely that criminal courts of this State will continue to impose sentences for offences committed under s 61M(2) of the Crimes Act between 2003 and 2008 for many years to come. Such sentencing should be conducted by reference to the appropriate standard non-parole period.

Conclusion on ground 1

141. It follows that I would reject ground 1 of the notice of appeal. The applicant must be resentenced on the basis that the applicable standard non‑parole period for the offences he committed against former s 61M(2) of the Crimes Act was eight years imprisonment and not five years.

Resentencing

142. I agree with the findings and reasons of the Chief Justice in relation to re-sentencing save for what follows from an application of a standard non-parole period of eight years for the offences under s 61M(2). Hence in relation to counts 1,2 and 9 I agree with the sentences indicated by the Chief Justice. I also agree with the sentences indicated by the Chief Justice for counts 5 and 6. With count 3 I would indicate a sentence of 2 years and 8 months with a non-parole period of 2 years. With each of counts 4 and 7 I would indicate a sentence of 4 years and six months with a non-parole period of three years and four months. With count 8 I would indicate a sentence of 5 years imprisonment with a non-parole period of three years and 9 months.

143. I propose that the applicant be sentenced to eight years imprisonment with a non-parole period of six years.

144. ADAMSON JA: I agree with the Chief Justice.

145. IERACE J: I have had the considerable benefit of the reading the draft judgments of the Chief Justice and the Chief Judge at Common Law. I would uphold both grounds of appeal, for the reasons expressed by the Chief Justice.

146. I am also in agreement with the Chief Justice as to the proposed aggregate sentence.

147. CHEN J: I agree with the Chief Justice.

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Endnotes

Amendments

14 June 2023 - Headnote: paragraph numbering changed from (4) to (1) onwards from "As to the Gett issue ..."

Decision last updated: 14 June 2023