MK v The King

[2024] NSWCCA 127

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MK v R [2024] NSWCCA 127

Hearing dates:

5 June 2024

Date of orders:

17 July 2024

Decision date:

17 July 2024

Before:

Mitchelmore JA at [1]
Sweeney J at [11]
Huggett J at [87]

Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Persistent sexual abuse of a child — Sentence after trial — Fact finding on sentence

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of

Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

ARS v R [2011] NSWCCA 266

Burr v R [2020] NSWCCA 282

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

GP (a pseudonym)v R [2021] NSWCCA 180

JJP v R (2021) 139 SASR 91; [2021] SASCA 53

MK v R; RB v R [2023] NSWCCA 180

R v D (1997) 69 SASR 413

R v Fitzgerald [2004] NSWCCA 5

R v Isaacs (1997) 41 NSWLR 374

R v RB [2022] NSWCCA 142

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

Xerri v The King [2024] HCA 5

Zreika v R [2012] NSWCCA 44

Texts Cited:

Nil

Category:

Principal judgment

Parties:

MK (Applicant)
Crown (Respondent)

Representation:

Counsel:
T Ramrakha (Applicant)
B Hatfield SC (Respondent)

Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/00280458

Publication restriction:

Publication of the identity of the complainants or any matter likely to lead to their identification prohibited pursuant to s 578A Crimes Act 1900 (NSW).

Publication of the name of the complainants and/or any other witness who was a juvenile at the time of the offending prohibited pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW).

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

30 April 2021

Before:

McLennan SC DCJ

File Number(s):

2018/00280458

HEADNOTE

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

The applicant was found guilty after trial of three counts of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW). The victims were three brothers whose mother was in a relationship with the applicant. The sentencing judge imposed an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years. The applicant had previously unsuccessfully appealed his convictions and the sentence appeal was stood over pending the High Court’s decision in Xerri v The King [2024] HCA 5.

The applicant sought leave to appeal on two grounds; that the sentencing judge failed to properly determine the facts of the applicant’s offending by sentencing him on the basis of the estimated frequency of offending, and that the sentence was manifestly excessive.

The applicant’s primary complaint was that the sentencing judge relied on the victims’ estimated frequency of the offending conduct as the basis for sentencing the applicant, which led to his being sentenced for a course of conduct. He submitted the current s 66EA required the sentencing judge to identify specific occasions of offending and to treat them as representative of a course of conduct. He submitted the factors in s 66EA(5) do not apply to sentencing, and that s 66EA(8) directs the sentencing judge’s attention to the specific constituent unlawful sexual acts to assess the seriousness of the offending. In support, he argued the factors relevant to assessing objective seriousness under the predecessor offence as identified in Burr v R [2020] NSWCCA 282, affirmed in GP (a pseudonym) v R [2021] NSWCCA 180, provide guidance as to the correct approach under the current provision.

The Crown submitted the current s 66EA departs from the focus on proving the underlying unlawful sexual acts. It requires the jury to be satisfied an unlawful sexual relationship existed and that at least two unlawful sexual acts occurred, although the jury need not agree on which acts. The Crown submitted the decisions relied on by the applicant provided no assistance as to the approach to sentencing under the current s 66EA. The Crown further relied on the principle in Zreika v R [2012] NSWCCA 44 to argue the applicant’s complaints on appeal were inconsistent with the way in which the sentencing hearing was conducted.

Held (per Sweeney J, Mitchelmore JA and Huggett J agreeing), granting leave to appeal but dismissing the appeal:

The applicant’s submitted approach to sentencing under s 66EA is contrary to the terms of the provision and its intent and purpose. It cannot be correct that s 66EA(4) and (5) do not apply to sentencing. The applicant failed to establish that the sentencing judge made any errors of fact in his Honour’s findings or that he failed to properly determine the facts of the offending.

Xerri v The King [2024] HCA 5; GP (a pseudonym)v R [2021] NSWCCA 180; MK v R; RB v R [2023] NSWCCA 180; Alcan (NT) Alumina Pty Ltd v Commissioner of  Territory Revenue (2009) 239 CLR 27; [2009] HCA 41; Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 applied.

Ground 1 did not succeed. Ground 2, being dependent on the success of ground 1, did not succeed either.

JUDGMENT

1. MITCHELMORE JA: I have had the advantage of reading in draft the reasons of Sweeney J. I agree with the orders her Honour has proposed and may state my reasons shortly.

2. The jury in the present case delivered verdicts of guilty in respect of three offences contrary to s 66EA(1) of the Crimes Act 1900 (NSW). Those verdicts established that the jury was satisfied beyond reasonable doubt that the applicant maintained an unlawful sexual relationship with each of the three complainants, each of whom was under the age of 16 years, in which he engaged in two or more unlawful sexual acts of the nature set out in the indictment. Consistently with s 66EA(5), in reaching those verdicts:

1. the jury must have been satisfied beyond reasonable doubt that the evidence established that the unlawful sexual relationship existed (s 66EA(5)(a));

2. the jury was “not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence” (s 66EA(5)(b) (reflecting the terms of s 66EA(4)(a), which provides that the prosecution “is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence …”)); and

3. the members of the jury were “not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship” (s 66EA(5)(c)).

3. The duty of the sentencing judge is to find facts relevant to sentencing, with any findings made against an offender arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374 at 377-378. In Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, Gleeson CJ, Gummow and Hayne JJ made the following observations about that task:

“[5] The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury’s verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace.

…

[7] It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict.

[8] On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender's culpability, and the proper measure of punishment. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt.”

4. In circumstances where an offence contrary to s 66EA(1) of the Crimes Act can be established based on only two sexual acts, the number of sexual acts beyond that as well as the nature of those sexual acts is relevant to the assessment of objective seriousness of the offence: GP (a pseudonym) v R [2021] NSWCCA 180 at [8] (N Adams J). The applicant’s central contention in this appeal was that in making the necessary findings on sentence, it was not open to the sentencing judge to rely on the estimates that the complainants gave of the frequency of the occasions on which the applicant engaged in the types of unlawful sexual acts about which they gave evidence. This led, in his submission, to his Honour sentencing him for what was, in effect, a course of conduct. The applicant submitted that the sentencing judge needed to make findings as to the precise occasions on which he engaged in unlawful sexual acts, and state the facts as to each act.

5. In support of his central proposition, the applicant relied principally on s 66EA(8) of the Crimes Act, which provides:

A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

The applicant submitted that when read with the definition of “unlawful sexual act” in s 66EA(15), subs (8) directed attention to the specific unlawful sexual acts in which the applicant engaged.

6. Sweeney J has detailed the legislative history behind s 66EA as now in force, including by reference to the decision of the High Court in Xerri v The King [2024] HCA 5. Section 66EA(7) applies the provision to relationships that existed wholly or partly before the commencement of the “relevant amendments” or the “predecessor offence” (both of which are defined in s 66EA(15)). Section 66EA(8) applies in particular circumstances, namely, when a court is “imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments”. In those circumstances, the subsection requires a sentencing judge to take into account (without being limited by) the maximum penalty that applied to the unlawful sexual acts that an offender is found to have engaged in “during the period in which the unlawful sexual relationship existed”.

7. The purpose of s 66EA(8) is thus to ensure that notwithstanding the retrospective operation of the provision, regard is had to the maximum penalties that applied at the time of the offending. It does not support the approach to sentencing which forms the applicant’s central contention, nor does the balance of the provision. I note in particular s 66EA(4)(a), by which the prosecution is not required to allege the particulars of unlawful sexual acts that it would need to if the acts were charged as separate offences. By contrast, the approach for which the applicant contended would require the Court to identify in every case, in his counsel’s words, “the specific occasions of abuse”.

8. The submission that it is not open to a sentencing judge to rely on the evidence of a complainant, whose reliability is accepted, estimating the frequency with which an offender engaged in particular unlawful sexual acts would also be contrary to the broader legislative context, which as Sweeney J points out includes the purpose of the provision and the mischief that it was intended to remedy: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [30] (Bell P). As Beech-Jones CJ at CL stated in MK v R; RB v R (2023) 112 NSWLR 96 (“MK”) at [96] (Ward P, Price, Wilson and Lonergan JJ agreeing):

“The purpose or mischief that this aspect of the Royal Commission Report was addressing is clear, namely, the perceived difficulty in providing particulars and securing unanimity amongst the jury in cases where evidence of repeated sexual abuse is given by children as required by decisions such as KBT and S v The Queen.”

9. Of course, it is necessary for a sentencing judge to make what Fagan J referred to, in R v RB [2022] NSWCCA 142 (“RB”) at [69], as “evidence-based findings … concerning the extent and seriousness of the offending”. Although his Honour’s construction of s 66EA was found, in MK, to be plainly wrong, both the applicant and the Crown in this case relied on this unexceptional observation regarding the approach to fact-finding. The applicant also emphasised Fagan J’s observation that the section reposes in the trial judge a heavy responsibility (at [72]), and so much may be accepted. Sweeney J has addressed the sentencing judge’s reasons on sentence in detail below, in which his Honour made careful findings as to the unlawful sexual acts in which the applicant engaged with ML, MS and JD respectively, and the nature of those acts. His Honour’s findings rested on the evidence of the three complainants, given both in police interviews and at the trial, including his Honour’s acceptance beyond reasonable doubt of estimates the children provided about the frequency of the unlawful sexual acts to which they were subjected (ROS 2). No error in the fact-finding process has been established.

10. Further, I consider that the Crown’s submission, that the considerations in Zreika v R [2012] NSWCCA 44 at [80]-[83] apply in the present case, has force. Before the sentencing judge, counsel for the applicant accepted, in relation to each of the complainants, that the offending conduct was “sustained over the period of a year”, although he submitted that it should be characterised as opportunistic. No attempt was made by his counsel to challenge the reliability of the complainants’ evidence, either in whole or as to any part. The approach for which the applicant contended in this court was at odds with the manner in which his counsel conducted the hearing before the sentencing judge.

11. SWEENEY J: MK, the applicant, seeks leave to appeal against the aggregate sentence imposed on him for three offences of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is life imprisonment. The applicant was sentenced to an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years, after a trial by jury.

Procedural history

12. The applicant stood trial in the District Court at Lismore before Judge McLennan SC and a jury of 12 on an indictment containing three counts of persistent sexual abuse of three brothers, contrary to s 66EA(1) of the Crimes Act. There were also 24 alternative counts of sexual and indecent assaults against the complainants which alleged specific offences. The trial began on 23 November 2020 and on 9 December 2020 the applicant was found guilty of each of the three counts of persistent sexual abuse. It was therefore unnecessary for the jury to return verdicts on the alternative counts.

13. On 30 April 2021 Judge McLennan SC sentenced the applicant to the aggregate sentence of 28 years imprisonment with a non-parole period of 21 years. The indicative sentences were 15 years for count 1 (relating to complainant ML), 12 years for count 14 (complainant MS) and 18 years for count 19 (complainant JD).

14. The applicant appealed against his conviction. The appeal was dismissed: MK v R; RB v R [2023] NSWCCA 180 (per Beech-Jones CJ at CL (as his Honour then was), Ward P, Price, Wilson and Lonergan JJ agreeing). The applicant's appeal in respect of his sentence was stood over by this Court to await the decision of the High Court in Xerri v The King [2024] HCA 5. The High Court delivered that judgment on 6 March 2024.

15. The High Court refused the applicant special leave to appeal against this Court's decision on his conviction appeal.

16. The applicant now seeks leave to rely on the following grounds of appeal against his sentence:

“1. The sentencing judge failed to properly determine the facts of the applicant's offending by sentencing the applicant on the basis of the estimated frequency of offending.

2. The sentence imposed on the applicant is manifestly excessive.”

17. The applicant submitted that his two grounds of appeal could be dealt with at the same time, and if the first ground of appeal is upheld, it may lead to consideration of the second.

18. Because the essence of the appeal is that Judge McLennan SC erred in his approach to sentencing the applicant, it is necessary to refer in some detail to his Honour's remarks on sentence. Because the statutory non-publication order in s 578A of the Crimes Act applies, the three child victims will be referred to by initials.

19. Before turning to the remarks on sentence, it is necessary to set out the terms of the three counts for which the applicant was sentenced, and the terms of s 66EA of the Crimes Act, as the applicant's appeal focuses on how an offender is to be sentenced for an offence against s 66EA.

Counts for sentence

20. Count 1, which concerned the victim ML, was in terms that:

"Between 1 January 2018 and 11 September 2018… [the applicant] did maintain an unlawful sexual relationship with ML, a child under the age of 16 years, namely between 11 and 12 years, in which the [applicant] engaged in two or more of the following unlawful sexual acts:

1. Indecent assault on ML

2. Committing an act of indecency towards ML

3. Fellatio with ML

4. Penile-anal sexual intercourse with ML."

21. Count 14, which concerned the complainant MS, was in terms that:

"Between 1 August 2017 and 31 August 2018… [the applicant] did maintain an unlawful sexual relationship with MS, a child under the age of 16 years, namely between 10 and 12 years, in which the [applicant] engaged in two or more of the following sexual acts:

1. Fellatio with MS

2. Penile anal-intercourse with MS

3. Indecent assault on MS

4. Committing an act of indecency towards MS.”

22. Count 19, which concerned the victim, JD, was in terms that:

"Between 1 August 2017 and 13 September 2018… the [applicant] did maintain an unlawful sexual relationship with JD, a child under the age of 16 years, namely between 11 and 13 years, in which the [applicant] engaged in two or more of the following unlawful sexual acts:

1. Fellatio with JD

2. Digital-anal sexual intercourse with JD

3. Penile-anal sexual intercourse with JD

4. Inciting an act of indecency by JD."

Section 66EA of the Crimes Act

23. The offence provision in s 66EA of the Crimes Act commenced operation on 1 December 2018. It has retrospective operation. It is in the following terms, relevantly:

“(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.

Maximum penalty—Imprisonment for life.

(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.

(3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.

(4) In proceedings for an offence under this section, the prosecution—

(a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and

(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(5) In order for the accused to be convicted of an offence under this section—

(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and

(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and

(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

(6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).

(7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.

(8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

…

(15) In this section—

…

unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences—

(a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,

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

(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b),

(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c),

(e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)–(d).”

The remarks on sentence

24. His Honour began by stating that the offender was to be sentenced for three offences of persistent sexual abuse of a child, contrary to s 66EA of the Crimes Act, the maximum penalty for which is life imprisonment and there being no applicable standard non-parole period.

25. His Honour stated that each charge related to a different child, that the three children were brothers and the offender was the partner of the children's mother, and acting as their stepfather. He noted the periods of offending in respect of each child and that two of the brothers were aged 11 at the time of the offending.

26. His Honour stated:

"With the offender having been found guilty following a trial by jury it is my responsibility to find the facts upon which [MK] is to be sentenced. Those facts must not be inconsistent with the verdicts of the jury. Any matters of fact which, in my view, aggravate the sentence to be imposed must be found by me beyond reasonable doubt.”

27. His Honour stated:

"Each complainant child impressed me with their honesty… I accept their accounts in full, both as to the nature of the conduct engaged in by the offender and the circumstances in which the conduct was engaged in. As to the frequency with which the conduct was engaged in, part of the difficulty with repetitious conduct over time is providing an accurate estimate as to frequency. A precise numerical calculation is often elusive. However I am satisfied beyond a reasonable doubt that the offender sexually abused each child as often as the circumstances permitted and that a high level of frequency was involved. Essentially, I accept the estimates as to the frequency given by the children, as set out by me."

28. His Honour noted that in 2017 the applicant and the boys’ mother formed a relationship, so that by August 2017 the applicant had moved into the household in which the three boys lived with their mother and sister. The applicant then described himself as the stepfather to the children. He was then aged 29 years. His Honour found that the boys’ mother was "unwittingly duped" into a sham relationship with the applicant in order that he could gain sexual access to the boys and offend against them. His Honour stated that the applicant's "deceit and manipulation of the boys' mother… demonstrates to my mind how calculated his conduct was in relation to the three boys."

29. In August 2018 the boys’ mother terminated her relationship with the applicant and he moved back to his parents’ house. After the relationship ended the applicant tried to persuade the boys’ mother to resume the relationship, and he continued to contact the boys and try to see them, including going to the house in the early morning while their mother was at the gym. In September 2018 the boys disclosed to their mother and the police the sexual abuse committed by the applicant.

The offending against ML

30. His Honour recounted the facts of the offending against ML from the child's interviews and his evidence given in the trial, which his Honour stated he accepted. The applicant approached ML in the loungeroom of his home in late December 2017 and asked him if he wanted to do some grown up stuff in bed. The child replied no. Four weeks later, in January 2018, the applicant came into the child's bedroom at about 5:00am, when the child's mother was at the gym. The applicant grabbed the child's penis and inserted it into his anus; the child told him four times not to do it. The applicant then sat on top of the child and masturbated, then forcibly turned the child over and penetrated the child’s anus with his penis. The child said, "It didn't work because his penis was too big" and it was hurting and [the applicant] "just went faster and faster" for five minutes and it hurt. The applicant told the child if he told anyone he would be very angry with him. The child described pain in his anus. He told his mother about feeling pain but that was dismissed. The applicant then told the child "Don't say those things cause that can make it obvious".

31. The child ML described the conduct as going on for a period of seven months, mostly twice a week, sometimes once a week, when his mother was at the gym. The child also described the applicant licking the child’s anus multiple times and licking his penis. The conduct ceased when, in August 2018, ML yelled at the applicant that "I'm not going to do this anymore. I’ll tell on you if you keep doing it". The applicant agreed. The child's silence was procured by the threat that the applicant would become “very, very angry” if ML told anyone, and the threat was repeated more than once over time until the child threatened to report the applicant's behaviour.

32. His Honour summarised as follows (ROS 7):

“Sexual acts were engaged in over a 7 to 8 month period from January 2018 and were committed at least once a week and often twice a week. The sexual acts engaged in were as follows:

1. The offender performed fellatio on the child.

2. The offender had the child anally penetrate the offender.

3. While the child had anally penetrated the offender, the offender was sitting on him, masturbating, sometimes to ejaculation.

4. The offender anally penetrated the child. On occasion he split the child’s anus, causing it to bleed (question and answer 51).

5. The offender, on multiple occasions, licked the child’s anus.

I am satisfied beyond a reasonable doubt of the child ML's evidence, as set out above."

The offending against MS

33. His Honour stated the facts of the applicant’s offending against the child MS from the child's interview and his evidence in the trial. He said the child described the applicant first making a form of sexual contact with him when his mother first started dating the applicant. The first contact was in the locker room of a local surf club. The child said the applicant said "Can I hug you? I love you so much. Do you love me?" and was "kind of rubbing his penis (through his swimwear) on [the child] a little bit”. The child said it made him feel uncomfortable, but he felt it was rude to tell the applicant he did not like it.

34. For the child's 11th birthday the applicant suggested the child could download Minecraft, a computer game, if he were to allow the applicant to suck the child's penis, have the child suck the applicant's penis and allow the applicant to engage in penile-anal intercourse with the child. The child said the applicant said "I'll let you download Minecraft if you take the pain and stick my penis up your bum". As the child really wanted to play Minecraft, he allowed the applicant to attempt to penetrate him anally. The child said it hurt and he said he did not want to do it anymore, and the applicant said he would let him buy something on his computer. The child said he would end up doing it then he would end up crying and the applicant told him he was a good boy, he loved him and he would not ever tell anybody. The child said it was mainly always night time and sometimes it was day time.

35. The child said on the first occasion of attempted penile intercourse the applicant made him lie on the bed and he covered his mouth with a pillow before attempting to penetrate him. The child said he did not tell anyone about this because the applicant said if he left and went to gaol, the child would not play Minecraft. His Honour said the child MS estimated there were more than 30 times, possibly up to 50 times, when the applicant tried to put his penis in the child’s anus. The child said that the applicant did not succeed because it hurt too much.

36. MS gave evidence that the applicant asked him to perform fellatio in exchange for letting him play Minecraft; the child said he did so for "a quick second". The child said the applicant used pawpaw cream to facilitate his attempts at anal penetration of the child, as well as attempting to bribe him with lollies. The child said the applicant put him on the bed, put a pillow down, and the child's face was in the pillow, then he put his hand on his back and side, put pawpaw on the child's "bum" and the applicant's penis, and then started trying to "put it up there". The child said, "No, I don't want this, it hurts” and started crying. The child said that the applicant then masturbated himself and ejaculated into the toilet, after which the applicant encouraged the child to inspect his ejaculate in the toilet bowl.

37. MS said he was shown homosexual pornography on the applicant's phone a lot. It was an agreed fact at the trial that analysis of the applicant's phone’s web history revealed that a particular website was accessed on numerous occasions during the relevant period of offending, that the website made available "hardcore heterosexual and homosexual pornography" and the internet sites were deleted by the user of the phone.

38. The child said on one occasion the applicant photographed the child's anus after the child complained it was really sore.

39. His Honour summarised:

"…the offender bribed MS (primarily with promises to play Minecraft) in order to persuade him to have:

1. MS perform fellatio on him.

2. The offender perform fellatio on MS (see question and answers 569 to 574).

3. MS agree to be anally penetrated.

The [applicant] attempted on some 30 to 50 occasions to anally penetrate MS in spite of a complete awareness that it would, and did, cause the child pain. Full penetration was never effected, principally because the child would protest too much when the pain became unbearable, at which time the child was often reduced to tears. Homosexual pornography was displayed on occasions to the child. The child’s silence was obtained by the spectre of the [applicant] going to gaol if his offending was discovered. That would result in the loss of opportunity to play Minecraft, as well as feelings of guilt on the part of the child. I am satisfied beyond a reasonable doubt of all of the matters to which I have made reference and summarised."

The offending against JD

40. His Honour stated that JD was the older brother of ML and MS. He drew on the child's interviews and his evidence at trial.

41. His Honour stated that JD gave evidence of the applicant performing oral sex on him, "every morning and night", from a couple of weeks after the applicant moved into the family home up until a couple of weeks prior to the child's interview with police on 12 September 2018, by which time the applicant had left the family residence.

42. The child said that he was bribed with KFC in order to allow the applicant to have penile-anal intercourse with him. The child said the applicant asked if he could put his penis "up" the child and the child said he did not want to do that. The applicant offered KFC. The child did not want to do it, but said the applicant did it and then did not take him to KFC, but took him the next night. The child described the relationship between the applicant and his mother commencing and said "All of a sudden, someone made the decision that he was going to move in and then he moved in… and that's when he started doing more stuff".

43. JD described the applicant's first sexual approach to him as the applicant walked into his bedroom, closed the door behind him, walked over to the bed and told the child "Come over here". The child said the applicant asked "Do you want to get more close?" When the child asked what he meant the applicant said "Can I go up inside of you, because that's the closest we can be." The child said no, he didn't want to do that. The applicant begged the child, saying "Mate, I need this". The penile-anal intercourse was facilitated by the use of pawpaw moisturiser and was preceded by an act of digital anal penetration by the applicant. The applicant locked the bedroom door to avoid being interrupted. The child described the applicant "thrusting back and forth" and the activity hurting.

44. The child described the second event of penile-anal intercourse as the applicant came into the room and shut the door behind him and took his clothes off, walked over to the child and said "Give it to me" and the child said he was not doing that again and he did not want to do it. JD said the applicant did it and he was really uncomfortable at first and "It just kept getting worse"; the child started to yell and the applicant put his hand over the child’s mouth so he could not yell. JD said the third event resulted in his anus bleeding. He also described having to masturbate the applicant while the applicant performed oral sex on him. His Honour said "I am satisfied beyond a reasonable doubt of [JD's] evidence concerning the sexual abuse perpetrated by the [applicant] as described in the first interview."

45. His Honour said in the second interview JD gave evidence of more extensive acts of penile-anal intercourse which occurred in the applicant's car when the applicant and child were going to Coles or KFC, as well as acts of intercourse at the applicant's parents’ place. His Honour described himself as "satisfied beyond a reasonable doubt as to the truthfulness of this evidence”.

46. His Honour said JD described the applicant driving him to his parents’ house, maybe three times a week, and en route the applicant would make the child perform oral sex on him. On one occasion the applicant bought a fishing rod for the child's birthday, which was given in exchange for the child performing oral sex on the applicant. The child said on the same occasion, the applicant said he had done something and got something for the child, and the child had to do something for him. The applicant then closed the door, pulled his pants down, lay back on the bed and made the child sit on his penis. The child said it really hurt. The child said he cried and the applicant kept saying “Just a bit longer”. The child said he was trying to extricate himself and the applicant held him until he ejaculated, which on other occasions the applicant had done on the child's body.

47. His Honour stated that on other occasions when the applicant and child went for a drive in the applicant's car to buy drinks and lollies from Coles, the applicant would make the child sit on top of him while the applicant penetrated the child’s anus with his penis. The child estimated he was taken to Coles maybe two or three times a week and once a week to KFC. The child's protests were ignored. Force was used to make the child continue to suck the applicant’s penis from time to time. The child said the applicant would hold his hand on the child's head while he was sucking his penis and held his head down so he could not lift it up. If the child tried to stop, the applicant would cry and say "I always do good stuff for you and you never do good stuff for me”.

48. The abuse on the drive to the applicant's parents’ house commenced with the applicant touching the child on the outside of his pants in the genital region, then progressed to touching the child on the inside of his pants. The child was going to complain to his mother but the applicant told him not to in an aggressive, angry voice and the child became scared and made no complaint. Thereafter, when the applicant made the child suck his penis or touched him, the applicant told the child to not tell his mother and sometimes cried while saying to not tell the child's mother, and the child felt bad so he did not tell his mother.

49. His Honour said the child described many occasions at the applicant’s parents’ home when he had to perform oral sex on the applicant. The applicant always tried to ejaculate in the child's mouth but the child refused and the applicant would often ejaculate on the child. The child described other acts of penile-anal penetration at the applicant's parents’ home when the parents were absent. The child said he was punished by the applicant by making him feel pain so that his "bum" would bleed and he would not be able to go to the toilet and “wipe his bum” for a week or so.

50. His Honour said JD said the abuse continued after the relationship with his mother ended. The applicant appeared at the child's window and encouraged the child to allow the applicant to perform oral sex on him.

51. His Honour summarised:

"…the [applicant] commenced the sexual abuse of [JD] by touching him on the outside of his pants above his genitals during trips to the [applicant's] parents’ residence. When it appeared to the [applicant] that the child might complain to his mother, the applicant became angry and appeared aggressive. That procured the child's silence. Once the [applicant] commenced fellatio and had the child fellate him, emotional blackmail and manipulation were used to control the child. From time to time the child was physically prevented from ceasing the abuse, whether it be oral or anal.

Sexual abuse of JD occurred at his home, in the [applicant's] Prado and at the [applicant's] parents’ house. There were multiple acts of the [applicant] anally penetrating the child at those various locations. Food was the usual bribe, but on one occasion a fishing rod was the bribe. When the child tried to escape from the abuse, he was punished by an aggressive act of anal penetration that inflicted pain and caused the child’s anus to bleed. The frequency of all forms of abuse were such that the child's best description of it was ‘full on’.

I accept the child’s account of the abuse as detailed in the second interview. I am satisfied of it, aspects of which I have recounted and attempted to summarise, beyond a reasonable doubt."

The approach to sentencing

52. His Honour noted that the offence under s 66EA as now enacted was introduced on 1 December 2018 with retrospective effect. His Honour referred to the decision of Burr v R [2020] NSWCCA 282. His Honour stated that at [106] of Burr:

“… the court set out what was declared to be a non-exhaustive list of factors which will bear upon an assessment of the objective seriousness of the offence. It is not disputed that these matters are relevant to this sentencing exercise under the new s 66EA. Those factors are said to be:

(a) The number of sexual offences as defined in s 66EA(12) which were committed on separate occasions by the offender against the victim.

(b) The nature of the sexual offences committed by the offender against the victim.

(c) The age of the victim at the time of the ingredient offences… the younger the victim is then the more serious the offence.

(d) The period of time during which the ingredient offences were committed against the victim.

(e) The age of the offender at the time of the commission of the ingredient offences against the victim and the age differential between the offender and the victim during the relevant period.

(f) The context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s 66EA offence – if the context involves the offender and the victim being in a family or quasi-family setting, which has a capacity to influence the power differential between the two persons and the susceptibility or vulnerability of the victim, this will elevate the objective seriousness of the s 66EA offence.” (ROS 17).

53. His Honour stated "In my view, the alteration to the structure of s 66EA does not affect matters relevant to the objective seriousness of the offender's conduct." (ROS 18).

54. His Honour stated:

"The differences between the two versions of s 66EA may mean that there is a reduced focus on the maximum penalties for the ‘ingredient offences’, because the new s 66EA is not an offence that is comprised of discrete underlying offences, but rather a course of conduct. Having said that, it is necessary to make reference to s 66EA(8), which I will do in due course.” (ROS 18-19).

55. His Honour stated:

“Thirdly, it may (and I emphasise the word ‘may’) not be necessary for a sentencing judge to be satisfied beyond a reasonable doubt of any particular ingredient offences when sentencing for the course of conduct comprising a new s 66EA offence.

As to this last point, I note that s 66EA(5) reads as follows:

‘(a) The jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.

(b) The jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence and;

(c) The members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.’" (ROS 19).

56. His Honour stated:

"Another yardstick to which I must have reference is the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed: see s 66EA(8).

These offences, examples of which were set out as alternatives to the primary counts, involved offending against s 66C(2), aggravated sexual intercourse of a child between the ages of 10 and 16 where the maximum penalty was 20 years imprisonment; s 66D, which is the attempt to commit the offence under s 66C and carries the same maximum penalty as the offence under s 66C; s 61(2), aggravated indecent assault, for which the maximum penalty is 10 years imprisonment; s 61O(1), aggravated act of indecency for which the maximum penalty is five years imprisonment; and the non-aggravated version of the offence under s 66C, namely s 66C(1), sexual intercourse with a child between 10 and 16 for which the maximum penalty is 16 years imprisonment." (ROS 32-33).

His Honour’s assessment of the objective seriousness of the offence against ML

57. His Honour stated:

"In respect of ML, the offender was some 17 to 18 years older than the child victim. The offender was acting in the role of a father figure. The sexual abuse was commenced by the offender, over the boy’s protests, which were ignored. He was forcibly turned over so that he could be anally penetrated. It is clear that pain was inflicted on the child. The child's silence was procured by the offender expressing his anger at the prospects of a complaint being made. The offender performed fellatio on the child, had the child anally penetrate him, anally penetrated the child, masturbated sometimes to ejaculation over the child and licked the child’s anus multiple times. These acts happened once or twice a week to a very young child. These events occurred in the home of the child and was part of what is not contested to be a deliberate predatory enterprise involving insidious manipulation. The offender desisted because the child finally threatened to report the offender.

I regard this offence, which carries a maximum penalty of life imprisonment, as being above the mid range of seriousness.” (ROS 21-22).

His Honour’s assessment of the objective seriousness of the offence against MS

58. In assessing the objective seriousness of the offence involving MS, his Honour stated:

"Matters in common with the offending perpetrated against his… brother are:

1. The age difference between the offender and MS.

2. The betrayal of a position of trust.

3. The events occurred in the home of the child.

4. The deliberate and predatory enterprise that the offender engaged in.

5. The age of the child.

Matters of difference are:

1. The offender prevailed upon the child to perform oral sex upon him, which the child did.

2. The offender attempted but did not effect penile-anal penetration of the child some 30 to 50 times.

3. The child was shown homosexual adult pornography in lieu of penile-anal intercourse.

4. The attempts at penile-anal intercourse hurt the child, reducing him to tears.

5. Bribery was used to secure the child's participation in the events (ie, the game Minecraft).

6. Emotional blackmail was used to secure the child’s silence, who felt he would be to blame if the offender went to gaol.

7. The duration of the offending was approximately 12 months.

… I characterise it as falling within the mid range, but principally and only because of the lack of actual penetration to the child (which was not due to the want of trying on the part of the offender)." (ROS 22-23).

His Honour’s assessment of the objective seriousness of the offence against JD

59. In assessing the objective seriousness of the offence against JD, his Honour stated:

"The offending against JD has these features in common with the offences perpetrated against his brothers:

1. A betrayal of trust.

2. The young age of the victim (being only a year or so older than his… brothers).

3. Some (but not all) of the offending occurred in the home of the victim.

4. The deliberate and predatory nature of the offending.

5. The significant age difference between the offender and the victim.

Other relevant matters are identified as follows:

1. Bribery with food and lollies (and on one occasion a fishing rod) were used to secure the participation of the child. Bribery was a feature of the offending against MS but not ML.

2. Offending occurred in the offender's motor vehicle and in the offender’s parents’ home (sometimes when his parents were home and sometimes when they were not).

3. The offender performed oral sex on the child (in common with ML but not MS).

4. The offender had the child perform oral sex on him (in common with MS but not ML).

5. The penile-anal penetration caused pain to JD (in common with ML and MS) but was also used as a form of punishment for JD's apparent non-cooperation or other wrongdoing.

6. The offender ejaculated over the child (in common with ML).

7. Force was used to restrain the child during oral intercourse and anal intercourse.

8. Emotional blackmail was also used to secure the child's acquiescence (as opposed to silence).

9. The offender on one occasion digitally penetrated the child to (apparently) facilitate an anal penetration.

10. At times the child had to masturbate the offender while oral sex was being performed on the child.

11. The silence of the child was originally procured by a display of anger (in common with ML but not MS).

12. The offending occurred over a 13 month period and was described by the child as "full on".

…In my opinion, the conduct against JD falls well above the mid range of seriousness and above the level of seriousness involved in the offending against ML" (ROS 23-24).

60. His Honour stated:

"The offender submits… that all the offending can be characterised as opportunistic behaviour, taking advantage when the moments presented themselves. With great respect, in light of the offender’s deliberate and manipulative conduct against three children, over the period described, that is not a submission that I can accept." (ROS 24-25).

Victim Impact Statements

61. His Honour referred to the contents of the Victim Impact Statement from each child. His Honour stated "One of the purposes of punishment is to recognise the harm to the victims. This sentence will do that." His Honour said "… the extent to which he has robbed these children of their joy of life is nonetheless profound."

Conditional liberty

62. His Honour noted that for the greater part of his offending against the three children, the applicant was on bail for two offences in respect of two former primary school students, which His Honour treated as a matter of statutory aggravation.

Subjective matters

63. His Honour noted that the applicant had no previous convictions. He referred to his activities contributing to the community. He noted "Remorse is not a consideration". He noted the opinion of a psychologist that the applicant would be considered in the above average risk category for sexual offending. His Honour accepted there was a significant risk the applicant would reoffend. His Honour stated "… I am going to impose an aggregate sentence that will be, in its length, a stern punishment that in part will have the purpose of being a very real specific deterrent to any such conduct in the future".

64. His Honour stated that there must be some notional partial accumulation of the indicative sentences to recognise the harm done to the three individual children, and that complete concurrency would fail to achieve that purpose of punishment. He noted a submission that there was a need to avoid a crushing sentence.

65. His Honour declined to make a finding of special circumstances, finding that because the aggregate sentence would be substantial, the statutory ratio between the head sentence and non-parole period would provide sufficient scope for rehabilitation.

66. His Honour considered matters raised on behalf of the applicant in respect of his mental health, protective custody and the effects of Covid.

67. His Honour stated "The offender has been found guilty by a jury of three offences that reveal appalling conduct towards three children. Those children were vulnerable because of their age and because of their obvious innocence."

The applicant’s submissions

68. The applicant's central submission was that the sentencing judge failed to properly find the facts of the offending by sentencing him on the estimated frequency of offending, and thus the sentencing judge sentenced him for a course of conduct. The applicant submitted that the sentencing judge was required to identify specific occasions on which the applicant committed offences, and to treat those occasions as representative of a wider course of conduct. In support of his contention the applicant relied on the decision of the South Australian Court of Criminal Appeal in R v D (1997) 69 SASR 413, and decisions of this Court in R v Fitzgerald [2004] NSWCCA 5, ARS v R [2011] NSWCCA 266 and Burr in respect of sentencing under the previous s 66EA. Counsel submitted that the approach to sentencing offenders under the predecessor offence may provide clearer guidance on how a sentencing court should proceed in relation to the current offence provision.

69. The applicant submitted, relying on Burr and GP (a pseudonym) v R [2021] NSWCCA 180, that the factors identified in Burr as important to assessing the objective seriousness of an offence against the previous s 66EA remain relevant to the assessment of an offence against the new provision. He submitted the number of sexual acts and the nature of the acts are relevant to the assessment of the objective seriousness of an offence and the offence is not a course of conduct in the strict sense because it requires proof of a relationship and of two or more unlawful sexual acts, relying on JJP v R (2021) 139 SASR 91; [2021] SASCA 53.

70. The applicant submitted that the provisions of s 66EA(5) apply only to facilitating convictions, and do not apply to fact finding in sentencing. He submitted that s 66EA(8) redirects a sentencing judge’s attention to the specific unlawful sexual acts engaged in by the offender, to properly assess the seriousness of the offending; otherwise a person would be sentenced on a potentially opaque basis or on a mistaken factual basis.

71. The applicant submitted that the sentencing judge made factual mistakes and overestimated some sexual acts. Specific factual mistakes asserted were, in relation to ML, that he had caused multiple splits to the child's anus or had ejaculated on the complainant multiple times, contrary to the child's evidence of one occasion where the applicant "split" his anus and one occasion where the applicant ejaculated while masturbating. In respect of MS, the applicant submitted that his Honour was incorrect in finding that the applicant attempted on 30 to 50 occasions to anally penetrate the child, as not an accurate statement of the evidence.

Crown submissions

72. In response the Crown submitted that the particular factual errors asserted were not made by the judge and that the finding his Honour made "on occasion [the applicant] split the child’s anus, causing it to bleed" was supported by reference to a particular question and answer in the child’s interview.

73. In addition, the Crown submitted that the complaint the applicant advanced on his appeal is inconsistent with the manner in which the sentencing proceedings were conducted on his behalf before the sentencing judge, contrary to the statement in Zreika v R [2012] NSWCCA 44 at [81]-[82]. The Crown submitted that in written submissions before the sentencing judge the Crown submitted that the court would find facts generally consistent with the particularised alternative charges and the unparticularised allegations, and submitted that the offending was regular and frequent throughout the offence period. The Crown submitted that in written submissions by counsel for the applicant in the District Court, counsel acknowledged that:

"All the offending can be characterised by opportunistic behaviour, taking advantage when the moments presented themselves. It is conceded though that the offending was sustained over the period of a year.”

74. The Crown submitted that counsel for the applicant in the District Court did not cavil with the judge’s indication of his assessment of the nature and frequency of the applicant's conduct, thus giving rise to the constraint in Zreika.

75. Both the Crown and counsel for the applicant relied on the statement of Fagan J in R v RB [2022] NSWCCA 142 at [69] that “…for a sentence to be passed there have to be evidence-based findings of the tribunal of fact concerning the extent and seriousness of the offending.".

76. The Crown submitted that there is no reason to depart from the established principle that a sentencing judge is not required to sentence on the view of the facts most favourable to the offender, provided that facts determined by the sentencing judge are consistent with the jury's verdict and any findings of fact adverse to the offender are established beyond reasonable doubt: R v RB.

77. The Crown submitted that s 66EA is distinguishable from its predecessor in that it departs from a focus on the proof of underlying particularised sexual acts as the actus reus of the offence and requires the jury to be satisfied beyond reasonable doubt that an unlawful sexual relationship existed, and while the jury must be satisfied that there were at least two unlawful sexual acts, the jury need not agree which unlawful sexual acts occurred. The Crown submitted that the terms of s 66EA(8) make clear that the task of making findings for the purpose of sentencing lies with the sentencing court. The Crown submitted that the decisions relied on by the applicant in relation to the predecessor provision provide no assistance with the approach to sentencing under the current provision.

Consideration

78. In Xerri v The King [2024] HCA 5, the High Court considered the construction of the new s 66EA.

79. Gageler CJ and Jagot J stated:

“[16]… The new s 66EA(1) requires an adult to maintain an unlawful sexual relationship with a child, meaning maintain a relationship with the child in which the adult engages in two or more unlawful sexual acts with or towards a child over any period.

[17] … The new s 66EA(5)(a) and (c) respectively provide that while the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. That is, provided that each member of the jury is satisfied that the accused maintained a relationship in which the accused engaged in two or more unlawful sexual acts with or towards a child over any period, the members do not need to agree that the same two or more unlawful sexual acts occurred.

…

[20] … The new s 66EA(4)(a) provides that the Crown ‘is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence’.

…

[22] These are differences of substance.

…

[26] … both the predecessor offence and the new s 66EA have at least one thing in common: they are engaged by conduct which is otherwise criminal, their focus being the long-term repetitive criminal conduct the Royal Commission found characterised many kinds of child sexual abuse.

[33] … the new s 66EA contains its own provision about sentencing… that provision is s 66EA(8) which provides that a ‘court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed’.”

80. Gordon, Steward and Gleeson JJ referred to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse that there be offences which do not require particularisation in a manner inconsistent with the ways in which complainants remember child sexual abuse and allow for the prosecution of repeated but largely indistinguishable occasions of child sexual abuse, and the Royal Commission's proposal of an offence of persistent child sexual abuse whereby:

"The actus reus of the offence would be maintenance of an ‘unlawful sexual relationship’ in which an adult had engaged in two or more unlawful sexual acts; there would be no obligation to give the usual particulars of any given unlawful sexual acts; the trier of fact would only need to be satisfied about the general nature or character of the unlawful sexual acts…”: [54].

81. Their Honours said at [56]:

"In contrast to former s 66EA, under the current s 66EA(4) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, but is required to give particulars of the period of time over which the unlawful sexual relationship existed."

and

“[57] In order now to convict:

(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed;

(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would otherwise have to be satisfied of if the act were charged as a separate offence; and

(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.”

82. At [60] their Honours said:

“The primary differences between the current and former s 66EA may be seen as follows:

(a) the actus reus of former s 66EA was the committing of three or more sexual offences during any period; the actus reus of the current offence is the maintenance of an unlawful sexual relationship in which an adult engages in two or more unlawful sexual acts.

…

(c) the content of the particulars of the offending which the Crown must provide is different. The Crown no longer needs to describe the nature of the separate offences alleged to have been committed;

(d) what the jury needs to be satisfied about in order to convict is also different. Whereas under former s 66EA the jury needed to be satisfied that a sexual offence had occurred on at least three different occasions on separate days (and to be satisfied about the material facts of those occasions, but not the specific dates of when they occurred), now the jury must be satisfied that an unlawful sexual relationship existed in which an adult has engaged in two or more unlawful sexual acts (without the need to be satisfied about the particulars of each act at the standard required had each act had been charged separately)”;

(e)… Now the jury is not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.”

83. In GP (a pseudonym) v R, N Adams J said at [8]:

“An offence contrary to s 66EA(1) of the Crimes Act 1900 (NSW)… is established if an adult maintains an ‘unlawful sexual relationship’ with a child. Section 66EA(2) provides that an ‘unlawful sexual relationship’ is a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. An offence contrary to s 66EA(1) of the Crimes Act can be established based on only two sexual acts. This means that the number of sexual acts beyond that as well as the nature of those sexual acts is relevant to the assessment of the objective seriousness of the offence.”

84. In MK v R; RB v R, Beech-Jones CJ at CL (as his Honour then was), construing the new s 66EA, said the task of interpreting such a statutory provision must begin and end with a consideration of the text itself: [94] and [101]. His Honour said ascertaining the meaning of a 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 (2009) 239 CLR 27; [2009] HCA 41, Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204. His Honour said the text of s 66EA is clear and the origins of the provision, its legislative purpose and the mischief it was intended to address do not suggest any different meaning: [101].

85. The construction of s 66EA and the approach to sentencing for offences against it contended for by the applicant is contrary to the plain terms of the section, the intent and purpose of the provision and the mischief it was intended to address. It cannot be correct, in principle or logic, that sub-ss (4) and (5) do not apply to sentencing for offences against s 66EA, especially as a sentencing judge’s findings of fact must be consistent with the jury’s verdict(s).

86. In this case, having read the evidence summary, which both counsel accepted as accurate, and having considered the sentencing judge’s findings of fact, and his Honour’s statement that he was satisfied beyond reasonable doubt of the evidence of each child, I am not persuaded that his Honour made any errors of fact in his factual findings or, as contended, that he failed to properly determine the facts of the applicant’s offending. Ground 1 is not established. As ground 2 depended on ground 1 being established, ground 2 does not succeed either. Therefore I would propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

87. HUGGETT J: I agree with Sweeney J.

**********

Decision last updated: 17 July 2024