RA v The King

[2024] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

RA v R [2024] NSWCCA 149

Hearing dates:

03 July 2024

Date of orders:

09 August 2024

Decision date:

09 August 2024

Before:

Adamson JA at [1];
Wilson J at [5];
Dhanji J at [119]

Decision:

(1)   Grant leave to appeal on ground 1;

(2)   Dismiss the appeal.

Catchwords:

CRIME – appeal against sentence – historic child sexual offences against own children and recent sex offences against step-grandson – application of MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180 – approach to sentencing for s 66EA offences discussed – complaint of manifest excess considered

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19, 21A, 21B, 23, 25AA, 25D, 32, 33, 44, 53A

Crimes Act 1900 (NSW) ss 61M, 66A, 66C, 66DA, 66EA, 578A

Criminal Appeal Act 1912 (NSW), s 6

Criminal Law Consolidation Act 1935 (SA), s 50

Criminal Legislation Amendment (Child Sexual Abuse) Bill (NSW) 2018

Cases Cited:

AA v R [2024] NSWCCA 132

AJ v R [2023] NSWCCA 158

ARS v R [2011] NSWCCA 266

Benn v R [2023] NSWCCA 24

BM v R [2023] NSWCCA 68

Bravo v R [2015] NSWCCA 302

BS v R [2021] NSWCCA 39

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

Cheung v R [2022] NSWCCA 168

Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37

CMB v The AttorneyGeneral for New South Wales (2016) 256 CLR 346; [2015] HCA 9

Croxon v R [2017] NSWCCA 213

Decision Restricted [2023] NSWCCA 2

Faehringer v R [2017] NSWCCA 248

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

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

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

Killic v the Queen (2016) 259 CLR 256; [2016] HCA 48

Lee v R [2023] NSWCCA 70

Mills v R [2017] NSWCCA 87

MJL v R [2007] NSWCCA 261

MK v R [2024] NSWCCA 127

MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180

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

Newman (a pseudonym) v R [2019] NSWCCA 157

Panetta v R [2016] NSWCCA 85

PN v R [2024] NSWCCA 86

R v Cattell [2019] NSWCCA 297; 280 A Crim R 502

R v CTG [2017] NSWCCA 163

R v D (1997) 69 SASR 413

R v Ellis (1986) 6 NSWLR 603

R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5

R v Isaacs (1997) 41 NSWLR 374

R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209

R v JJ [2019] NSWCCA 148

R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59

R v MAK, R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v RB (2022) 300 A Crim R 1; [2022] NSWCCA 142

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

S v The Queen (1989) 168 CLR 266; [1989] HCA 66

Simpson v R [2019] NSWCCA 137

SL v R (2015) 249 A Crim R 295; [2015] NSWCCA 30

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Xerri v R (2021) 292 A Crim R 355; [2021] NSWCCA 268

Xerri v The King [2024] HCA 4

Z v R (2015) 256 A Crim R 48; [2015] NSWCCA 323

Texts Cited:

New South Wales Legislative Assembly, Second Reading Speech (Hansard), Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW), 6 June 2018

Category:

Principal judgment

Parties:

RA (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Ramrakha (Applicant)
E Nicholson (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the Director of Public Prosecutions (Respondent)

File Number(s):

2020/00321160;
2021/00131167

Publication restriction:

Statutory non-publication order in respect of the complainants.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 September 2022

Before:

Shead SC DCJ

File Number(s):

2020/00321160; 2021/00131167

HEADNOTE

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

The applicant, RA, pleaded guilty to three sex offences in relation to his step-grandson and three historic sex offences in relation to his three children, including two s 66EA offences of maintaining an unlawful relationship with a child. On 30 September 2022, her Honour Judge Shead SC (“the sentencing judge”) sentenced the applicant to an aggregate sentence of 20 years imprisonment with a non-parole period of 13 years, commencing 10 November 2020.

The applicant advanced two grounds of appeal:

1. The aggregate sentence imposed on the applicant is manifestly excessive or otherwise affected by reason of the sentences indicated for the offences on the first indictment and the sentence indicated for Count 9 on the second indictment.

2. The sentencing judge erred in sentencing the applicant for the offences on the second indictment on the basis of the construction of s 66EA in R v RB (2022) 300 A Crim R 1; [2022] NSWCCA 142.

The Court (per Wilson J and Adamson JA agreeing), granted leave to appeal on ground 1 and dismissed the appeal; Dhanji J agreeing that the appeal should be dismissed but providing separate reasons.

Per Wilson J (Adamson JA agreeing):

Ground 1: The indicative sentences given by the sentencing judge were not erroneously high, and the aggregate sentence was not manifestly excessive. It was open to the sentencing judge to make the findings her Honour did, and it cannot be said that either the indicative terms, or the aggregate sentence imposed, were unfair or unjust (at [114]).

Ground 2: In relation to the s 66EA offences, the sentencing judge did not err by not identifying particularised sexual offences and imposing a sentence to reflect only those offences. The gravamen of the offence, and that which must be proved against an accused, is the maintenance of an unlawful sexual relationship with a child (at [92]).

Per Dhanji J:

Ground 1: Indicative sentences reflecting a starting point of over 20 years for each of counts 1 and 2, and a notional starting point of 10 years with respect to count 3, are excessive (at [156]). This error had the capacity to affect the sentence (at [157]) requiring the re-exercise of the sentencing discretion. There is no error in relation to the second indictment, and although there is error in the relation to first indictment, a fresh exercise of sentencing discretion does not result in a total sentence any less than that determined by the sentencing judge.

Ground 2: In respect of the sentencing approach to the s 66EA offences, there was no question of the applicant having been sentenced for offences with respect to which he had not been convicted (at [162]). Determination of facts is to be approached by the application of orthodox principles (at [163]).

JUDGMENT

1. ADAMSON JA: I agree with the orders proposed by Wilson J, largely for the reasons set out by her Honour, whose draft judgment I have had the benefit of reading.

2. I note that although all judges who constituted this Court agree that the appeal ought be dismissed, Wilson J and Dhanji J differ as to the approach taken by the applicant’s counsel in this Court in challenging the sentence imposed on the applicant by the sentencing judge.

3. While this Court does not encourage and, indeed, positively discourages, arguments which it regards as without merit, it recognises the efforts made by those who challenge sentences on behalf of offenders and appreciates that it may at times be difficult to predict a judicial response to a submission. The phrase instinctive synthesis incorporates an approach to sentencing which requires all relevant matters to be “synthesised” in order to produce a sentence, which, if one of imprisonment, is to be measured in years and months: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [24] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In these circumstances, it is understandable that, when seeking to challenge a sentence, submissions are made as to factors, whether objective or subjective, which affect the resultant sentence.

4. As the observations made by Wilson and Dhanji JJ in this regard turn on the facts and circumstances of this particular case and as there is no disagreement about the result – that the appeal ought be dismissed – I would prefer not to express a view about the differences between their Honours’ reasons since it is not necessary to do so.

5. WILSON J: RA – a pseudonym assigned to the applicant during District Court proceedings – is the father of three children, and the step-grandfather of another child. In late 2020 it came to light that he had sexually abused his step-grandson and, earlier, his three children; he was criminally charged. The applicant entered pleas of guilty on 3 August 2021 to the most recent offences, those committed against his step-grandson; he entered pleas of guilty to the charges relating to his own children – offences which occurred much earlier in time – on 24 February 2022. The pleas, to charges on two separate indictments, with an acknowledgement of his guilt of a further offence placed on a Form 1 document pursuant to ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), were repeated before the District Court. The applicant was sentenced for his crimes on 30 September 2022 by her Honour Judge Shead SC to an aggregate sentence of 20 years imprisonment with a non-parole period (“NPP”) of 13 years. A finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act explains the non-statutory ratio of that term.

6. The applicant seeks the leave of this Court to appeal against that sentence. The grounds of appeal in their final form, as amended by Notice filed on 26 June 2024, which the applicant seeks to advance are:

1. The aggregate sentence imposed on the applicant is manifestly excessive or otherwise affected by reason of the sentences indicated for the offences on the first indictment and the sentence indicated for Count 9 on the second indictment.

2. The sentencing judge erred in sentencing the applicant for the offences on the second indictment on the basis of the construction of s 66EA in R v RB.

7. The offences encompassed by the aggregate sentence imposed upon the applicant, the victims of them (using the pseudonyms assigned by the District Court to the children in compliance with statutory non-identification provisions¹), the maximum penalties together with any standard non-parole period (“SNPP”) for the offences, and the indicative term announced with respect to each are as follows:

Indictment 1

Count	Offence and Child	Maximum Penalty	Indicative Term
1	Sexual intercourse with a child under 10 s 66A(1) Crimes Act (NSW) Victim: WA; 5 years, step-grandson	Life Imprisonment SNPP 15 years	10 years and 9 months imprisonment; NPP 7 years
2	Sexual intercourse with a child under 10 s 66A(1) Crimes Act Victim: WA; 5 years, step-grandson	Life Imprisonment SNPP 15 years	10 years and 9 months imprisonment; NPP 7 years
3	Intentionally inciting a child under 10 to sexually touch s 66DA(b) Crimes Act Victim: WA; 5 years, step-grandson	16 years imprisonment SNPP 8 years	5 years imprisonment; NPP 3 years and 3 months

Indictment 2

Count	Offence	Maximum Penalty	Indicative Term
1 8	Maintaining an unlawful sexual relationship with a child s 66EA(1) Crimes Act Victim: YA; 8, 9, and 10 years, daughter On Form 1 to count 1: Aggravated indecent assault (child under 16 years) s 61M(1) Crimes Act Victim: OA; 13 or 14 years, daughter	Life Imprisonment 7 years imprisonment	10 years and 11 months imprisonment Taken into account in sentence for count 1
9	Maintaining an unlawful sexual relationship with a child s 66EA(1) Crimes Act Victim: LA; 9 to 12 years, son	Life Imprisonment	15 years imprisonment

The Proceedings in the District Court

8. The sentence hearing came before her Honour on 28 June 2022. Because of minor amendments that were made to the charges that proceeded to committal for sentence, the Crown presented two indictments against the applicant, and he was arraigned, again entering pleas of guilty. There was no issue as to the quantum of the discount on sentence to be afforded to the applicant in recognition of what were pleas entered prior to committal, being 25%.

The Crown Case

9. The Crown tendered two statements of facts, each of which had been agreed as accurate by the applicant. The first statement set out the facts of the offences committed against WA in the period August to October 2020; the second related to the offences committed against YA, OA, and LA, in the period 1983 to 1996. In her remarks on sentence her Honour accepted that the facts established by the evidence were as agreed between the parties. The following is drawn from the remarks on sentence.

10. Indictment 1: RA and his wife cared for his wife’s grandsons, WA (born in December 2014) and a younger sibling (born in June 2018), two days each week. The couple looked after WA for the whole of each day, and the younger child for half of each day.

11. On the afternoon of 6 November 2020, the applicant was sitting with WA, who was five years old, in the loungeroom of the applicant’s house. They were seated on a lounge, reading a book together. The applicant’s wife had gone to her bedroom to rest. The applicant stood up in front of WA, undid the zipper on his pants and took his penis out of his pants. He was standing around one arm’s length from WA. He asked the boy to touch his penis. WA said, “no, no” and hit out in a pushing action towards the applicant’s penis, pushing it away. The applicant had his penis exposed for around one minute or less. (This conduct was charged as count 3 of indictment 1, an offence of intentionally inciting a child under 10 years to sexually touch another person.)

12. As the offence was occurring, the applicant’s wife appeared and saw the applicant with his penis exposed to the victim. She yelled out and then went straight back to her room; the applicant followed her. The applicant’s wife was very upset and expressed fear that WA would tell his parents. Later, the couple took WA to the park and then returned him to his home. The applicant did not care for WA again.

13. The following day the applicant searched the internet for a counsellor he could speak to. His searches were for “need help with sex addiction” and “sex therapist near me”. On Monday 9 November 2020, the applicant saw a counsellor, Joel Helmes. During the appointment, he told Mr Helmes that he had been sexually abused by different people himself as a child and admitted that he had sexually touched his step-grandson. Mr Helmes observed that when the applicant told him about touching WA, he was “very emotional and crying”. Mr Helmes observed that the applicant “did seem genuinely remorseful about it and said he had been praying to God for forgiveness and that he was ashamed and disgusted about what he had done”. The counsellor made a mandatory notification to Sutherland Police that evening.

14. The following day, detectives spoke to the applicant at his home. This conversation was recorded, and the applicant was cautioned. He told police that the Friday before he had “exposed himself to the kid”. He said the “kid” was his wife’s grandchild, WA, who he thought was turning six in December. He went on to say, “I exposed my penis to him and I said, ‘Will you touch it?’ Then my wife came in and she was shocked”. Police told him they would need to make more enquiries and that he was not under arrest but asked if he would come back to the police station to speak with them. He agreed. At the police station later that same day the applicant was interviewed and admitted a number of sexual assaults he had committed on WA. He said that he was “triggered” when he took his penis out in front of WA. When the applicant went to speak to his wife, she was upset and angry and said she would no longer be his wife.

15. The applicant admitted to two further specific sexual crimes against WA, each an offence of sexual intercourse with a child under 10 years.

16. The first occasion on which this happened was on a day between 3 August 2020 and 31 October 2020. The applicant said that WA came out of the bathroom one day when he was at the applicant’s home. Five-year-old WA was running around, not wearing any pants or underwear. The applicant told him he needed to get dressed and gathered clothes for the boy. The applicant approached WA, who was sitting on the lounge, in order to put his underwear on. He knelt in front of the victim and, he said, “I just went for his penis. He laugh, and then I put his underwear and his pants”. He explained, “I was putting his underwear up and his penis was sort of erect... I suck it and then just put it back and put his pants on”. When asked how long he sucked the child’s penis for, he said “just in and out”. He was asked how this made him feel and he said:

“I don’t know what I could say except I was enjoying it, I don’t know. I don’t know whether that was the sensation, or whether it was just something out of the blue. Something that trigger, no idea”.

17. The applicant said he had waited until his wife was resting in the bedroom before doing anything to WA. This incident of oral intercourse with a child under 10 years was charged as count 1 of indictment 1.

18. The applicant described another incident that had occurred in the period from 3 August 2020 to 31 October 2020, when he was reading with WA when sitting on the lounge at the applicant’s house. The applicant recalled that WA said, “oh my penis is up”. The applicant responded by saying, “show me”. WA did as he was asked and pulled his pants down, exposing his erect penis. The applicant sucked WA’s penis for a few seconds. This incident was charged as count 2 of indictment 1, another count of sexual intercourse with a child under 10 years.

19. The applicant acknowledged that he had sucked his step-grandson’s penis on other occasions when he and his wife were minding the child in the period August to October 2020. He said, “in that period, roughly, could’ve been maybe 10 times all up. Touching, touching him”, and later said “it could have been even less”. All incidents occurred at the applicant’s home when he was looking after WA.

20. The applicant told the police:

“I don’t know why, why it happened, why it, what actually triggers me to do things like that… I just cannot explain it. That’s why I wanted to go for counselling, to see what I, I can get something, some light at the end of this tunnel. …

To be honest, ah, when I went to see the counsellor, I was expecting to, something like this was gunna [sic] happen because they have the right to, to say things… when you are talking about minor… I was aware of that. But I was still prepared to face the consequences. I need to… get this out of me. …

It's definitely wrong. It definitely totally wrong. It’s not what it should be done at all… with a child that I have, it is under my care. Definitely not. …

Why I keep doing it, I don’t know why.”

21. The applicant was arrested after his interview and charged. The applicant’s wife refused to provide a statement to police.

22. WA was briefly interviewed by detectives on 10 November 2020. He did not disclose any sexual abuse. He was re-interviewed on 19 November 2020 in relation to the charged matters and, in response to leading questions from detectives, WA acknowledged one instance of sexual intercourse (fellatio) and having seen the applicant’s penis.

23. Indictment 2: The applicant’s three children are now adults: YA was aged 46 years at the time of sentence; OA was aged 44 years; and LA, 38 years of age. The period of the offences is that from 2 October 1983 to 1 June 1996. In that period the applicant, his then wife (the mother of the children), and the children all lived together at the family home.

24. YA is the applicant’s eldest child. When she was five years old, the family moved to a suburb in Sydney. At that time her younger sister, OA, was aged two. The girls shared a bedroom next door to their parents’ bedroom and slept in bunkbeds.

25. YA recalled being sexually assaulted by the applicant, her father, on multiple occasions in the family home. The offending addressed by count 1 of indictment 2, an offence of maintaining an unlawful sexual relationship with YA, a child, between 2 October 1983 and 31 December 1985, commenced when she was aged eight and nine, in the year before her brother, LA, was born in 1984. The offending continued until 1985, when YA was around 10 years of age, and before the applicant had a workplace accident that year. YA recalled that the assaults occurred on the weekends either in her bedroom or her parents’ bedroom.

21. The first incident YA could describe occurred on a date in 1983, before LA was born. YA was in her parents’ bedroom during the day. She recalled that her mother and sister were at home. She saw tissues laid out on the side of the bed. The applicant pulled his pants down and sat on the side of the bed beside the tissues. YA saw that his penis was exposed. The applicant then said something like, “Put it in your mouth and move your head back and forth”. YA knelt in front of the applicant, and he put his penis into her mouth. YA moved her head back and forth for a number of minutes. The applicant then pulled away from her and grabbed the tissues from the bed beside him and she saw him ejaculate into the tissues. YA recalled tasting some semen, which had an unpleasant taste. The applicant wiped his penis and pulled up his pants. They then left the room. The applicant placed his penis in YA’s mouth another four or five times before he progressed to other conduct with her; she was eight to 10 years of age when these other incidents occurred. YA turned 10 on 2 October 1985.

22. Another incident YA could describe occurred when she was 8 years old, between 2 October 1983 and 1 June 1984. YA and the applicant were in the latter’s bedroom; no one else was in the house. The applicant pulled down his pants and sat on the side of the bed. YA saw a tub of Vaseline either beside the bed or on the bedside cabinet next to the applicant, and tissues laid out on the bed. The applicant said, “Take your pants off and turn around on the bed”. YA remembered pulling her pants and underwear completely off and seeing the applicant put Vaseline onto his penis. She turned around so that her stomach was on the bed and her legs were hanging off the side, with her feet touching the floor. The applicant was behind her, and she felt his penis between her buttocks, rubbing against the outside of her vagina. The applicant rocked back and forth, and it felt slimy and unpleasant to YA. She did not recall any penetration of her anus. After a number of minutes, the applicant pulled away from her and put a tissue on her lower back. She stayed in the same position and her bottom felt slimy. He then told her she could leave, which she did.

23. The applicant assaulted YA in this way approximately five times, until she turned 10. She recalled the applicant rubbing his penis between her buttocks in this way after her brother was born, because she recalled that the baby’s cot was in her parents’ room at the time.

24. A third incident that YA could describe occurred between 1 June 1984 and 31 December 1985 when she was aged 8 to 10 years old. On a night “sometime between 1984 and 1985”, after her brother was born, YA recalled being in bed on the top bunk of the bunk beds she shared with her sister. They were ready to go to sleep. The applicant came in “as if he was saying good night”, but instead put his hand under the blankets and partially pulled down YA’s underwear. He put his palm onto her pelvic bone and cupped his fingers in and around the lips of her vagina, without penetration. She was startled, and the applicant patted her head with his other hand and made a sound, “Shhhh”. He touched her in this way for some minutes.

25. It was common for the applicant to pat YA’s head and say “Shhhh” when he touched her sexually. YA’s reaction was to freeze and try not to move. The applicant repeatedly touched YA in this way “at least weekly” from when she was nine to when she was around 10. The night-time assaults stopped around the time she was 10.

26. In order to stop the applicant touching her vagina, YA began to sleep on her stomach and wrap herself in the covers. She would even do this on very hot nights. She would pretend to be asleep and face away from the applicant. She would hear him enter the room and be beside her bed.

27. Sometime around the time she turned 10, in the year after her brother was born, the applicant stopped sexually assaulting YA.

28. In 2003, YA was studying Child Protection as part of a TAFE course. The subject brought back memories of the applicant’s assaults upon her and she left the class upset. She subsequently told the TAFE teacher that she had memories of experiencing events such as those covered in the course. In 2013, after the applicant had been to visit her sister in hospital, YA told her husband, “You are aware that something happened to me as a kid. Yes, it did happen and yes it was my dad”.

29. OA is the second of the three siblings. On an evening in the period 1 January 1992 and 31 December 1992, when OA was 13 or 14 years old, she and her sister, YA, were planning to watch “Home and Away” on television, when she was sent to her room at around 6:45pm. She was upset at missing the programme. The applicant entered her room to “check on her”. She was sitting on the floor at the foot of YA’s bed. The applicant asked her to lie down on the floor and he lay beside her. He lay on his side while she lay on her back. He propped his head up on his hand. He tried to appease her and make her feel better because she was not allowed to watch television. The applicant began rubbing OA’s stomach with his hand, leading her to tense up. He said, “Shh, stay quiet”, lifted her shirt to just above her midriff, and began to wriggle her shorts off with the same hand. He managed to lower her shorts to just below her pubic hair line. OA was just going through puberty and had some pubic hair. The applicant made a comment that it was cute. He continued to rub her belly above the pubic bone. When the applicant asked OA if she liked it, she responded, “No I feel sick.” The applicant suggested that something OA had eaten was responsible and stopped. He left the room. This conduct was reflected by count 8 on indictment 2, an offence of aggravated indecent assault, which was taken into account when sentence was imposed for count 1 of indictment 2.

30. The charged incident was not an isolated event; OA could not, however, provide clear details of the other occasions when such events occurred.

31. In 1996, OA told a friend at high school that she “thought [the applicant] touched me and I didn’t know what that meant”. In 2008, OA told her then boyfriend that, her “father was inappropriate with [her]”.

32. The last charge to which the applicant pleaded guilty was count 9 of indictment 2, an offence of maintaining an unlawful sexual relationship with LA, a child, between 1 June 1993 and 1 June 1996. LA was aged 9 to 12 years at the time of this offending. He is the younger brother of YA and OA, and the son of the applicant. LA recalled moving to a new home by the time he commenced Year 3 at a school in Sydney when he was aged eight years old.

33. The applicant commenced an “unlawful sexual relationship” with LA in 1993 when LA was around nine years old. He turned nine on 1 June 1993. This continued until LA was 12 years of age, in 1996.

34. The applicant performed fellatio on LA and encouraged LA to perform fellatio on the applicant. Most such occasions would occur in the applicant’s bedroom. The applicant repeatedly tried to convince LA to allow him to anally penetrate him. After he initially resisted, the applicant convinced LA by saying that he would start slowly. The applicant would tell LA to take off his pants and lie face down on the bed, bent over the side of the bed. He applied Vaseline to his finger and inserted it into LA’s anus. This happened a number of times.

35. After some time, the applicant progressed to penile/anal intercourse, which was preceded by digital anal intercourse by the applicant. The applicant would stand behind LA, who was bent over the side of the bed, insert his finger into LA’s anus and then follow this by inserting his penis into LA’s anus. This hurt LA.

36. On occasions during that anal penetration, LA would make up an excuse that he needed to go to the toilet, so that the applicant would stop. The applicant would tell him to hurry up on the toilet so that they could continue before someone came home. The offending occurred, on average, every two to three weeks and usually on weekends when LA played basketball when no one else was home. The applicant also had LA perform fellatio on him when they were away on a family holiday.

37. LA ultimately told the applicant he did not want to do it anymore and said that if he did not stop, LA would tell his mother. The applicant stopped. LA did not tell anyone what had happened although, in 2016, when LA and OA were living in the same house, LA told his sister that “something had happened with me and dad”.

38. On 15 November 2020, LA learnt that the applicant had been arrested and charged with offences against WA. LA later reported the applicant’s conduct to police. On becoming aware of the charges relating to WA, OA spoke to her siblings and she too made a statement to police.

39. On 18 December 2020, after the family became aware of the charges against the applicant relating to WA, the three adult children met with their mother. They told her that the applicant had been arrested for the sexual assault of a child. They told her that the applicant had also sexually assaulted them.

40. On 26 March 2021, at a time when the applicant was remanded with respect to the charges concerning WA, YA telephoned the applicant. The conversation was lawfully recorded. YA recounted what she recalled the applicant having done to her when she was younger and what she understood he had done to her siblings. The applicant was recorded saying, “I understand what you are saying, I know … what I have done, and I, I’m, sorry. I don’t know what else I can say. I’ve done it. I deserve what you are telling me”. The applicant became unwell during the call and fainted. The call was terminated so that medical assistance could be administered.

41. On 11 May 2021, the applicant was spoken to by police. He declined to be interviewed and was charged with the offences against YA, OA, and LA.

The Crown Case on Sentence

47. Other than the agreed statements of fact, outlined above, the Crown tendered the applicant’s criminal history, which showed no convictions recorded in New South Wales, together with an unremarkable custodial history. Four victim impact statements (“VIS”) were read to the court.

48. WA’s parents told her Honour about the devastating impact the applicant’s crimes had had upon their child’s and their own lives. They described the changes in their happy, fun-loving little boy, who had become a sad, frightened and angry child, who expressed the fear that the applicant would escape from prison and come after him. WA was unwilling to play in his back garden in case the applicant came onto the property. At night he became very frightened and frequently woke up screaming. Flashbacks affected him badly and WA had begun to wet his pants. His parents told her Honour:

“Hardly a day goes by without [WA] yelling, screaming, and trying to hurt himself.”

49. They said WA was “hurt in mind, body and spirit” and they are fearful for his future as he struggles with confusion and distress connected with the offending.

50. YA told the court that her innocence had been taken away when her father, the person she had trusted the most, began to sexually abuse her. She said that the memories she had tried for decades to suppress had emerged as her nightmares, and the father who should have kept her safe from the monsters under the bed became the monster. YA continues to be plagued by nighttime fears, routinely locking her house securely at night against the dangers that lurk in the dark. She lives with shame at what happened, guilt for not having spoken up sooner and (as she sees it) potentially sparing her siblings and WA from abuse, confusion, and a sadness that overwhelms her daily. She hurts herself physically as a mechanism to distract her thoughts. YA said that the memories, feelings, hurt, and mistrust are always with her, and she becomes again the scared little girl who did what her father told her to do, and lives always with the pain of what was done to her.

51. OA described to her Honour the day when she became aware of the abuse of WA by the applicant, causing her memory of his abuse of her, deliberately buried for almost 30 years, to come “flooding back like a tsunami”, leaving her feeling both sick and guilty, as she realised for the first time that she and her sister had not been her father’s only victims, and her brother and later WA had also been assaulted. Shortly after being made aware of the charges against the applicant, OA lost her voice and, despite specialist medical intervention, she was unable to speak for some time. Her voice returned to her after she was advised that the applicant intended to plead guilty to the charges. OA believes that her inability to speak was connected to the stress of the events, and her inability to vocalise the trauma she endured at the hands of a father she had trusted. She told the court that the abuse had an enduring effect on her, leaving her untrusting, anxious, fearful, and unable to enjoy intimacy. She has been diagnosed with depression and post-traumatic stress disorder.

52. In his statement to the court LA said that he had tried to deal with the trauma of what had been done to him by his father by “stash[ing] it away into a compartment” in his brain. He was forced to confront it when told that his father had been charged with assaulting WA, and faced the distressing task of telling others, including his partner and sisters, about his childhood experiences. This left LA feeling angry and distressed.

53. In anticipation of evidence to be called in the applicant’s subjective case, the Crown also tendered handwritten notes made by Mr Helmes of his discussion with the applicant on 9 November 2020 ^[1] , and excerpts from the transcript of the electronically recorded interview between the applicant and investigating police conducted on 10 November 2020. Each recorded a history inconsistent with the other, and with the account of his childhood that the applicant later gave to Dr Andrew Ellis.

    1. The relevant provisions are s 578A of the Crimes Act and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Because of the family relationship between the applicant and his victims the applicant’s name must also be anonymised.

54. In the first document, the counselling notes, Mr Helmes recorded the account the applicant gave him of having been sexually assaulted by “a bigger boy” at school, when the applicant was about 9 years old; of entering a sexual relationship with a same aged boy at summer camp at age 12 years; and of having a sexual relationship with his brother. Of the offence against WA, the applicant asserted that WA “was clothed” when the incident witnessed by his wife occurred. He said he did not know why he had done it. The applicant did not mention having also sexually abused his own children.

55. In his police interview the applicant gave an account of the events of 6 November 2020 which he said had been an ordinary day until, after reading a book with WA, the applicant said:

“[…] suddenly, out of the blue, I just stand up in front of him and expose myself. And I asked him to touch my penis.”

56. The applicant told police that as a child in Chile he had been “raped by an older boy” at school, when he was about 8 years old and the older boy about 12 or 13 years. Later, at summer camp, he said he had engaged in sexual activity with another boy with whom he was friends; and he had “had sex” with his brother, who was about 2 years older than him. As to any relevant act in Australia, the applicant said that “once, I touch my boy”. He said that “it never happened again”. The one occasion was described as an incident in which the applicant had been bathing his then eight-year-old son and dried the boy’s penis for longer than was necessary. The applicant said that he did this without any intention and for no reason; he said it was not sexual.

The Subjective Case on Sentence

57. The applicant read his affidavit, sworn on 14 June 2022. Although the Crown did not object to the tender, the applicant was required for cross-examination.

58. In his affidavit the applicant said that he had seen Dr Andrew Ellis, forensic psychiatrist, on 1 April 2022 so that Dr Ellis could prepare a report for use at the sentence hearing. He said he had done his best to give the doctor accurate information.

59. The applicant outlined his life in Australia, after arriving here from Chile in March 1970. He said he gained work in a textile factory almost immediately after arriving in Australia, with the assistance of the Chilean Consul General. The work was hard and, after a few months, the applicant got a better paid job in boilermaking, a job he retained for about 8 years. He continued in the same work, although moving from one employer to another to secure better wages.

60. In 1973 the applicant became a citizen of Australia. He married at around that time, with the children YA, OA, and LA, born during the marriage. The applicant separated from the children’s mother in 2007 and divorced in 2008. WA’s grandmother is the applicant’s second wife, whom he met in 2009 on a return visit to Chile.

61. The applicant suffered a workplace injury in 1985 and was hospitalised for three months, undergoing rehabilitation for “a couple of years”. With compensation that was paid to him the applicant discharged the mortgage he and his wife had over the family property, and bought a second property, allowing one to be used as a rental property. Whilst rehabilitating the applicant re-trained, qualifying as an accountant. He worked in that field until his retirement in 2017.

62. The applicant said that he was remorseful, describing himself as “a perpetrator” against his children and step-grandchild. He said he had “taken their innocence away from them as mine was taken from me when I was young”. He said he also felt guilty about the distress occasioned to his wife.

63. The applicant described his conditions of custody, being housed in protection and, insofar as he was affected by the COVID-19 pandemic or staff shortages, the time spent under “lock-in”. The applicant also described the difficulties that he experienced on entering custody in getting access to his medications and a respirator which he used at nights to assist with sleep apnoea; it took some time until his medication and respirator were available to him.

64. The applicant said that he accepted the diagnosis [of paraphilia] made by Dr Ellis.

65. In oral evidence before the sentencing judge on 28 June 2022 the applicant repeated that he was remorseful for his crimes. When asked to explain what he meant by “remorseful” he said, “I cannot believe what I have done […]”. The applicant was asked by his counsel to explain why he had given Dr Ellis a much more extensive history of sexual abuse as a child than he had given to Mr Helmes or police. He said it was because he was “confused” and more focused on saving his marriage than thinking about his childhood experiences.

66. In cross-examination the applicant confirmed that he was an intelligent person who knew right from wrong although, he said, at the times when he assaulted the four children his mind was “definitely incorrect”, and he was unaware that his conduct was wrong. He maintained that, despite not having mentioned it to Mr Helmes, to whom he “opened [his] heart”, or the police, he had been the victim at school of sexual abuse, including anal penetration, by religious brothers and a priest, for a ten-year period commencing when he was 7 or 8 years old.

67. As to his assertion to interviewing police that he had touched his son only once when drying him after a bath the applicant said, whilst he had immediately regretted mentioning the incident to the police, “there was nothing in [his] mind to remember” on that subject.

68. The report of Dr Ellis to which the applicant referred was dated 25 April 2022. Dr Ellis saw the applicant for a two-hour period on 1 April 2022, via an audio-visual link. The applicant described himself to Dr Ellis as “anxious, stressed, and depressed” because of his legal predicament, and his wife’s situation. Medical records established that the applicant had sustained a head injury in 1985 after a fall, causing epilepsy and some memory and cognitive decline, not all of which was recovered. Dr Ellis believed that the applicant had a minor neurocognitive disorder. He noted that treatment was administered to the applicant for high cholesterol, prostatism, arthritis, sleep apnoea, and epilepsy.

57. The applicant gave a history of having been placed in a boy’s home after the death of his mother when he was aged 2 years. He said he was “rescued” by a wealthy family who fostered him and, from age 6 to 16, he was enrolled in “an expensive boarding school”. The applicant claimed to have been sexually abused from age 6 by each of an older pupil, the school priest, and a number of religious brothers. He also said he was sexually abused by the “leader of a summer camp” he had attended.

58. Of his offending history the applicant said that he could not understand why he had done it but acknowledged that the acts had given him a sense of sexual satisfaction. Dr Ellis observed:

“He said that he blames himself for what happened. He did note that similar acts had been perpetrated against himself when he was younger.”

71. Dr Ellis concluded that the applicant met diagnostic criteria for a paraphilic disorder, with “sexual arousal directed at prepubescent children over a number of years”. The doctor suggested that the applicant’s expressed inability to understand his motivation “may indicate that he has a difficulty in being consciously aware of his sexual arousal and interests”. Whilst his 1985 head injury “may have exacerbated” his paedophilic conduct, it was an independent disorder, given that sexual offending pre-dated the injury in part.

72. Although Dr Ellis stated that most people who are sexually abused as children do not go on to sexually offend, he observed that:

“… there is likely some effect of childhood sexual abuse leading to an increased risk of developing a disordered pattern of sexual arousal and difficulty in managing relationship problems.”

73. However, the applicant did not have any of the “frank psychiatric conditions” typically associated with abusers who had themselves been abused as children. Dr Ellis concluded:

“It is likely that sexual arousal directed towards children is the primary motivation for the offences, opportunity presented in the form of babysitting and disinhibition from his head injury combine to lead to him acting.”

74. The doctor thought that the applicant required psychological intervention to address paraphilia.

75. An affidavit affirmed by the applicant’s solicitor on 14 June 2022 set out information as to the difficulties the applicant initially experienced in getting access to necessary medical treatment and supports, and the impact of the pandemic on his conditions of custody.

76. The applicant’s wife wrote to the sentencing court “to tell the court about [her] personal circumstances and how [RA’s] case ha[d] affected” her. Mrs RA said that since coming to Australia with RA in about 2009 she had always lived with him, and she found it hard without his presence and income. Since his incarceration she had supported herself on a disability pension, having become an Australian citizen in 2015. She said that she had not known how to pay a bill or withdraw money from a bank, and now had to learn how to do these things for herself, a process made even more difficult by her limited English. Mrs RA said she had “lost” her family because of these events, and it was terrible being alone. A letter from a psychologist referred to a suicide attempt by Mrs RA, after which she was hospitalised (in November 2021).

The Remarks on Sentence

77. In a 98 page (and 362 paragraph) judgment, her Honour carefully set out the evidence before the court and noted the relevant legal principles. She found the facts to be as agreed between the parties. Of those matters in dispute between them, her Honour found in the applicant’s favour that the applicant had not exaggerated or embellished the account of childhood sexual abuse that he gave to Dr Ellis for the benefit it might confer upon him on sentence, being satisfied on balance that the applicant had suffered the abuse he claimed to have been subjected to. Her Honour was not, however, prepared to find that the applicant had not understood that his conduct against the four child victims was both morally and legally wrong, as he had claimed in his evidence. She concluded that the contrary proposition was correct. Her Honour correctly observed:

“It follows that it is without question that the court needs to take a stern approach when sentencing offenders. The sentence imposed for these offences must protect the community and the victims from further harm and recognise the harm suffered by the victims. The sentence imposed must also send a strong message to prospective offenders that sexual crimes against children will be punished sternly.” (footnotes omitted)

78. Of the approach to be taken to sentence for an offence contrary to s 66EA of the Crimes Act, which is in issue in this application, her Honour proceeded in the way urged upon her by the parties. Having been referred by counsel for the applicant to the decisions of Xerri v R (2021) 292 A Crim R 355; [2021] NSWCCA 268^[2] (“Xerri CCA”) and GP (a pseudonym) v R [2021] NSWCCA 180, her Honour set out relevant parts of those decisions, and of the decisions of R v RB (2022) 300 A Crim R 1; [2022] NSWCCA 142 (“RB (No 1)”) and R v Cattell [2019] NSWCCA 297; 280 A Crim R 502, referring additionally to the Second Reading Speech ^[3] and what was said by the President of the Royal Commission into Institutional Responses to Child Sex Abuse on 16 September 2013 ^[4] , as informing the approach she adopted to the imposition of sentence for the two s 66EA offences brought against the applicant. That is, her Honour noted that:

    2. There are inconsistent references in the evidence to the date of the consultation (e.g., AB132) but this date appears to be correct.

    3. As at the dates of sentence hearing, and judgment on sentence, the decision in Xerri CCA had not yet been considered by the High Court. The High Court judgment in Xerri v The King [2024] HCA 4 was delivered on 6 March 2024.

    4. New South Wales Legislative Assembly, Second Reading Speech (Hansard), Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW), 6 June 2018.

1. The offence created by s 66EA was intended to overcome the difficulties faced by the prosecution in establishing particulars of time, date, and individual offence frequently experienced in cases of repeated child sexual abuse;

2. The gravamen of the offence is the maintenance of an unlawful sexual relationship in which multiple unlawful sexual acts have been committed against a child;

3. It is unnecessary to identify the “ingredient offences” and uncharged acts, with the offender to be sentenced for the whole of the unlawful sexual relationship;

4. The features identified by Johnson J in Burr v R [2020] NSWCCA 282 at [106] remain relevant to the assessment of the objective gravity of a s 66EA offence following the 2018 legislative amendment;

5. The precise number and description of individual sexual acts is not an essential part of proof of the elements of the offence;

6. The terms of s 66EA(8) of the Crimes Act had to be given effect; as must s 25AA of the Crimes (Sentencing Procedure) Act and, accordingly, her Honour took into account as a yardstick the lower historical maximum penalties, but not the sentencing patterns that applied historically.

79. With respect to the operation of s 66EA(8) the sentencing judge referred to a table of the unlawful sexual acts that had been provided by (then) counsel for the applicant, which set out the identifiable unlawful sexual acts encompassed by the s 66EA offences, and the relevant applicable penalties, as “helpful”, and her Honour adopted its contents. This included, favourably to the applicant, treating conduct that might have been regarded as consistent with an offence contrary to s 66A of the Crimes Act, as conduct consistent with the less serious offence contrary to s 66C(2) of the Act, an offence carrying a much lower maximum penalty.

80. Her Honour went on to consider the subjective case, the applicant’s moral culpability, ^[5] aggravating or mitigating features, the objective gravity of the offending, the discounts on sentence that were to be applied, ^[6] the question of remorse, and the applicant’s prospects of rehabilitation. The applicant makes no complaint about these aspects of the sentencing judgment, and it is not necessary to set out here in full the conclusions reached by the sentencing judge; suffice to say they were thorough, reasoned, and carefully considered.

    5. Tcpt, 16 September 2013, p 36: “What many consider to be low levels of abuse of boys and girls can have catastrophic consequences for them, leading to a life which is seriously compromised from what it might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties with intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in lifelong difficulty in relationships which can cause problems in other aspects of their lives.”

    6. Found to be “somewhat reduced” for all counts other than those involving YA, because of the head injury the applicant suffered at work in 1985 and the subsequent reduction in his cognitive capacity.

81. Her Honour determined to impose an aggregate sentence upon the applicant pursuant to s 53A of the Crimes (Sentencing Procedure) Act. In compliance with s 53A(2)(b), she set out the sentences that would have been imposed for each offence, following the application of discounts on sentence, had separate sentences been imposed for each crime, as noted at [4] above. Sentence was imposed. The ratio of sentence is reduced because of a finding of special circumstances such that the NPP is 65% of the overall term.

The Application to this Court

82. Because the argument in support of ground 1 relies to some extent upon that advanced in support of ground 2, it is sensible to determine the proposed ground 2 first.

Ground 2

83. By this ground the applicant argues that the decision of a five member bench of this Court in MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180 (“MK & RB”) departed from the principles earlier set out by the Court in RB (No 1) and XerriCCA as to the determination of a sentence to be imposed for a s 66EA Crimes Act offence, such that the focus in sentencing an offender for this offence must be on the “ingredient offences”, as it was with the previous incarnation of s 66EA that applied prior to the 2018 amendments to the provision. Indeed, in oral submission counsel for the applicant went so far as to suggest that his client had been sentenced “for an offence not known to law”, in that her Honour had failed to individually identify particularised sexual offences and impose sentence to reflect only those offences. The applicant referred the Court to a number of decisions relevant to the predecessor offence in New South Wales or similar interstate provisions, including R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5; ARS v R [2011] NSWCCA 266, and R v D (1997) 69 SASR 413, to argue that the correct approach to sentence was to identify specific occasions on which sexual offences were committed, and impose sentence reflecting only those offences, treating them as representative counts.

84. The applicant suggested that s 66EA had been introduced by the legislature to “enable verdicts of guilty to be returned by a jury on the basis of uncertain evidence”, but submitted that s 66EA does not “extend the innovation” with respect to proof to proceedings on sentence. He argued that her Honour erred in the imposition of sentence because she approached the task relevant to counts 1 and 9 of the second indictment as “sentencing the offender […] for the unlawful sexual relationship he maintained with YA and LA”, wrongly taking into account offending that, although it occurred repetitively, had not been particularised. Counsel was critical of the sentencing judge for describing the unlawful sexual relationship the applicant maintained with LA as “prolonged and predatory”, with offending involving “multiple occasions” of fellatio and digital-anal intercourse, which occurred “on average every two or three weeks”. The applicant contended that the only relevance to the determination of sentence of sexual offending that was not specifically particularised was as “sort of context evidence” ^[7] which was not relevant to an assessment of the gravity of the offence.

    7. The applicant was given the benefit of a 25% discount on sentence to recognise the early pleas for all offences. He was given a further reduction in sentence with respect to counts 1 and 2 of indictment 1 (15%) and count 3 of indictment 1 (10%), in recognition of his disclosure of offences committed against WA, pursuant to s 21A(3)(m) of the Crimes (Sentencing Procedure) Act.

85. The applicant’s argument must be rejected. It most certainly does not reflect what this Court said in MK & RB, and it traverses basic principles of sentencing law.

86. In explaining why the applicant’s argument must, in my view, be rejected, it is useful to give some consideration to the rationale behind the introduction of s 66EA and the development of the jurisprudence surrounding the section and its predecessor. The discussion need not be extensive because the exercise has already been undertaken, in the judgment of this Court in MK & RB. In that decision, Beech-Jones CJ at CL, as his Honour then was, set out the history of the offence and its interstate counterparts, and discussed the most important decisions relating to them, from [17]ff. At [94]ff, his Honour discussed the proper construction of s 66EA, overruling to the extent necessary what had fallen from this Court in RB (No 1), and approving the construction given to the provision by Basten AJA in Decision Restricted [2023] NSWCCA 2. What follows assumes knowledge of that discussion, which is not repeated here.

87. As is clear from the discussion in MK & RB, offences of persistent child sexual abuse were enacted in various jurisdictions in Australia to overcome problems of proof that had historically hindered the prosecution of sexual offences committed against children who had been subjected to repeated and prolonged abuse. In cases of that nature, complainants frequently had difficulty in describing an individual assault located in place and time with sufficient specificity to overcome the issue considered by the High Court in S v The Queen (1989) 168 CLR 266; [1989] HCA 66.

88. The response to that problem, in jurisdictions across Australia, was to create offence provisions akin to s 66EA to address the need for an offence which encompassed the particular evil of acts of persistent and repetitive sexual abuse of children. The first iteration of s 66EA was introduced into the Crimes Act in 1999; it was replaced in 2018 following the delivery of the findings and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, in June 2017. The Royal Commission addressed both the difficulties for children in identifying individual instances of sexual abuse, and the difficulties for any court in ascertaining jury unanimity as to the instances of sexual abuse found to be proved. ^[8] Referring to the recommendations of the Royal Commission in the Second Reading Speech in support of the passage of the Criminal Legislation Amendment (Child Sexual Abuse) Bill (NSW) 2018, the Attorney said:

“Current section 66EA of the Crimes Act contains the offence of persistent sexual abuse of a child. It was introduced in 1999 as a tool to assist the prosecution of the most terrible cases of abuse where many largely indistinguishable incidents of abuse made it difficult for victims to recall specific occasions with sufficient particularity for individual charges. Unfortunately, in practice, section 66EA has not fulfilled this objective. The royal commission found that courts' interpretation of this provision has meant that significant particulars of individual occasions are still required, undermining the operation of the offence. The royal commission made detailed recommendations for a new way of formulating the offence, based on the offence currently provided under Queensland law, which has also been adopted in South Australia. Schedule 1 [20] to the bill amends the Crimes Act 1900 to introduce this model in New South Wales.

The new section 66EA will provide that it is an offence to maintain an unlawful sexual relationship with a child under 16. A person will have maintained an unlawful sexual relationship if they have engaged in two or more unlawful sexual acts with a child. The prosecution will be required to specify over what period the unlawful sexual relationship is alleged to have occurred, but will not be required to specify the particulars of the unlawful sexual acts with the same degree of detail as they would if the acts were charged as separate offences. The jury will be required to unanimously agree beyond reasonable doubt that the unlawful sexual relationship took place, but will not be required to necessarily agree on the same unlawful acts that make up the relationship.

The offence will only be able to be committed by an adult and will be punishable by a maximum penalty of life imprisonment. This maximum penalty recognises that some of the constituent acts that make up the unlawful sexual relationship may themselves carry life imprisonment if they were charged as separate sexual offences. In individual cases, the sentencing court will consider the nature and seriousness of the acts in question when formulating a sentence within this maximum penalty.” ^[9]

8. Tcpt, 3 July 2024, p 9(15).

9. MK & RB at [39]-[48].

89. That extract makes it clear that, in introducing a new version of s 66EA with the 2018 amendments, the Parliament intended that the section in the form it now is would both facilitate proof of the offence of persistent child abuse, and ensure that a sentencing court could have regard to all features relevant to the proper assessment of the gravity of the unlawful sexual relationship maintained by the adult offender with a child under 16 years to formulate the sentence to be imposed.

90. Section 66EA as amended by the 2018 legislation is in these terms:

66EA   Persistent sexual abuse of a child

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

Maximum penalty—Imprisonment for life.

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

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

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

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

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

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

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

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

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

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

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

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

(9)  A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.

(10)  A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).

(11)  A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.

(12)  For the purposes of subsections (9)–(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.

(13)  If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.

(14)  Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.

(15)  In this section—

adult means a person who is of or above the age of 18 years.

child means a person who is under the age of 16 years.

predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

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

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

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

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

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

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

91. This Court gave consideration to the application of the provision in RB (No 1) which was directed principally to the resolution of some doubt as to the elements of an offence contrary to s 66EA, and in particular whether proof of the commission of two or more unlawful sexual acts is sufficient to make out the offence or whether some further proof as to the relationship between the offender and child was required. In MK & RB, Beech-Jones CJ at CL discussed three differing constructions of the provision to resolve that issue, with the Court determining that the second of the posited constructions was correct. That is, to prove an offence under s 66EA in its current form what is required is proof to the criminal standard of the existence of a relationship in the course of which two or more unlawful sexual acts were committed (at [6]).

92. To the extent that RB (No 1) differed from that statement, it is not to be followed. In other respects, however, including the approach to be taken to the task of sentencing an offender for a s 66EA offence, RB (No 1) remains of relevance. Neither it nor MK & RB dictate the approach argued for by the applicant of imposing sentence only with respect to identified individual ingredient offences. The provision itself establishes the contrary proposition, with s 66EA(4)(b) making clear that the particulars that must be provided by the Crown with respect to a charge brought under s 66EA are only those that specify “the period of time over which the unlawful sexual relationship existed”. It is not necessary for the Crown to specify any ingredient or underlying unlawful sexual acts. That is because the gravamen of the offence, and that which must be proved against an accused, is the maintenance of an unlawful sexual relationship with a child. A relationship is an unlawful sexual relationship by virtue of the commission of two or more unlawful sexual acts within – or in the course of – the relationship. ^[10]  

    10. New South Wales Legislative Assembly, Second Reading Speech (Hansard), Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW), 6 June 2018 at 3.

93. The concern as to jury unanimity was addressed directly by ss 66EA(5)(b) and (c), which provide that the jury is not required to be satisfied of the particulars of any unlawful sexual act or reach unanimous agreement as to the commission of any such act. ^[11] If a jury is not required to be unanimous as to proof of the commission of particular sexual acts there can be no risk of an individual being sentenced by a court for an offence on a basis inconsistent with the verdict of the jury. See MK & RB at [53]-[54]; R v M, DV (2019) 133 SASR 470; [2019] SASCFC 59 at [16].

    11. MK & RB at [18].

94. The applicant’s argument, as I understood it, is that MK & RB “rejected the notion that s 66EA was a course of conduct offence” and, on that basis, the decision should be taken as endorsing a requirement for proof of particular ingredient offences, with sentence imposed on the basis of the commission only of those identified offences. Counsel for the applicant was not able to point to any specific statement to that effect in MK & RB that supported that contention, instead falling back on authorities concerning provisions similar to s 66EA although including a requirement for jury unanimity as to particular sexual acts.

95. To accept the applicant’s argument it would be necessary to ignore the operation and effect of s 66EA(4) and (5), the proper construction of the section as discussed in MK & RB, and the decision of the High Court in Xerriv The King [2024] HCA 5 (“Xerri HCA”). The judgment in the latter was handed down by the High Court on 6 March 2024. Although the case is principally concerned with questions of the operation of s 19(1) of the Crimes (Sentencing Procedure) Act and its effect if any on the maximum penalty for offences contrary to the present s 66EA that were committed during the currency of the 1999 iteration of the offence (and which carried 25 years imprisonment as opposed to imprisonment for life under the current section), the decision has much to say of relevance to the present issue.

96. Critical to the court’s reasoning in XerriHCA is the distinction drawn between the offence introduced into the Crimes Act as s 66EA in 1999 which, reflecting the phrase used in s 66EA(15), the High Court referred to as the “predecessor offence”, and the offence introduced to the Act in 2018. Upholding the decision of the majority in Xerri CCA, Gageler CJ and Jagot J concluded, at [15]:

“The predecessor offence ceased to exist on the commencement of the new s 66EA(1). The offence created by the new s 66EA(1) is not the predecessor offence.”

97. A material difference between the present offence and its predecessor is:

“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”. ^[12]

12. Because particulars and unanimity are not required the approach to sentencing discussed by the High Court in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37, a case considering an offence of persistent sexual exploitation of a child pursuant to s 50 of the Criminal Law Consolidation Act 1935 (SA), has no application to the sentencing exercise undertaken by a court in this State when dealing with a s 66EA offence.

98. Gageler CJ and Jagot J itemised another “five differences of substance” between the 2018 provision and its 1999 predecessor, whilst the plurality noted eight distinctions. That alone makes inutile the applicant’s insistence on referring this Court to earlier authorities of this and other courts concerning the 1999 version of s 66EA or its interstate equivalents as of relevance to the approach to be taken when sentencing for the 2018 offence.

99. Further, the High Court referred (at [24] and [33]-[34]; and [59]) to the significance of s 66EA(8), which requires the sentencing court to take into account, without being “limited by”, the maximum penalty for unlawful sexual acts committed during the period when the unlawful sexual relationship existed. The section is of particular significance in considering the applicant’s submission in support of this ground, because its application must lead to an outcome starkly different to that urged upon this Court by him. Section 66EA(8) refers to the need for the sentencing court to consider the applicable maximum penalty for an “unlawful sexual act” that occurred during the period averred by the indictment, without being confined only to that aspect of the matter. An “unlawful sexual act” is defined by s 66EA(15) as “any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised)” ^[13] one of the offences listed in s 66EA(15)(a)-(e). It is beyond question that sentencing judges are required to take into account any conduct that occurs within the period of the offence as charged that would amount to an offence of the nature listed in s 66EA(15), whether or the not individual instances of the offending conduct can be identified, enumerated, or particularised. It is enough that the sentencing judge is satisfied that the unlawful sexual acts were committed. The focus of s 66EA is not on proof of a particular number of individual sexual offences, but on proving the existence of a particular kind of relationship. ^[14]

    13. Xerri HCA at [17] per Gageler CJ and Jagot J.

    14. Emphasis added.

100. Applying that conclusion to the applicant’s case, her Honour was correct to have regard to multiple acts that “would [have] constitute[d] … if sufficiently particularised” an offence of a type referred to in s 66EA(15)(a)-(e). That evidence established the nature and gravity of the unlawful sexual relationship. The gravity of the applicant’s crimes against YA and LA was the repetitive and persistent sexual abuse of his children by his commission against them of multiple unlawful sexual acts in the periods averred by the relevant counts. That was what he was to be sentenced for. The fact-finding exercise in this instance was straightforward, as the matter proceeded on the basis of agreed facts, with the applicant specifically acknowledging that he had abused his children repeatedly. Her Honour accepted the agreed factual outline and the applicant’s concession as to its accuracy as establishing facts adverse to the applicant to the criminal standard.

101. As a general observation, it is unhelpful to characterise an offence contrary to s 66EA as a “course of conduct offence” or an offence constituted by “ingredient offences”, or to seek to retrospectively interpret decided cases by reference to those labels. Neither are sentencing considerations determined by such categories. Section 66EA criminalises the maintenance over a designated period of an unlawful sexual relationship by an adult with a child.

102. Although what follows is not intended to be an exhaustive enumeration of all relevant features to be considered by a sentencing court, the gravity of any particular offence falls to be determined by:

1. The length of the period over which the unlawful sexual relationship was maintained;

2. The nature of the relationship in which the unlawful sexual acts were committed, such as a parental relationship, or that between a coach and player;

3. Whether the relationship placed the offender in a position of authority over or trust towards the child;

4. The age of the child at the commencement, and during the period, of the unlawful sexual relationship, and how far below 16 years of age the child was;

5. The age differential between offender and child;

6. The extent of the commission of unlawful sexual acts against the child above the statutory threshold of two;

7. The frequency with which unlawful sexual acts were committed;

8. The nature of the unlawful sexual acts that were committed within the period averred; and

9. Where the unlawful sexual relationship existed wholly or partly before the commencement of the relevant amendments, being 2018, the maximum penalties applicable to particular unlawful sexual acts committed within the period of the relationship.

103. There may be other relevant features to be considered in an individual case in assessing the gravity of the crime and, as in the applicant’s case, ss 21B and 25AA of the Crimes (Sentencing Procedure) Act may have application.

104. In sentencing the applicant, her Honour found the agreed facts established to the criminal standard and thereafter considered each of the matters I have set out above at [99]. There was no error in the approach taken by the sentencing judge.

105. This proposed ground is so legally flawed I would refuse leave to advance it.

Ground 1

106. By ground 1 the applicant complains that the aggregate sentence is manifestly excessive “or otherwise affected” by the erroneously high indicative sentences noted with respect to all offences charged by indictment 1, and that for count 9 of indictment 2. The indicative sentences for counts 1 and 2 of indictment 1, both s 66A offences against WA, were terms of 10 years and 9 months imprisonment, with a NPP of 7 years. For count 3, an offence of intentionally inciting sexual touching by a child, WA, the term was one of 5 years imprisonment with a NPP of 3 years 3 months. The term indicated for count 9 of indictment 2, an offence of persistent sexual abuse of a child, was 15 years imprisonment.

107. Acknowledging the principles that apply to a ground asserting manifest excess, as summarised in Hughes v R [2018] NSWCCA 2 at [86] for example, the applicant contends that the indicative sentences announced for the offences charged by indictment 1 were all erroneously high, leading to error in the aggregate term. In support of that contention, he raises the following points:

1. Count 1 of indictment 1 was an offence involving a “fleeting” incidence of fellatio, committed largely opportunistically.

2. Similarly, count 2 of indictment 1 was an act of fellatio that occurred over a matter of a few seconds and, whilst there was some premeditation, the offending was opportunistic.

3. Neither of these counts involved penetration of the body of WA.

4. Count 3 of indictment 1 reflected an offence “minimally” factually described that involved the applicant very briefly exposing his penis, with a request that WA touch it. Although there was some premeditation, the offence was largely opportunistic.

5. None of the offences involved violence, there were no threats made to secure WA’s silence, “the offences did not result in any injury” to WA.

6. The assumed “starting point” for each of these offences, absent the discounts, was so high as to be unreasonable.

108. With respect to count 9 of indictment 2, the applicant argues that, by reference to the penalty indicated for the same offence, one contrary to s 66EA, charged by count 1 of this indictment, the indicative term can be seen to be erroneous. He submits that, because count 1 encompassed three specific incidents of abuse, as opposed to count 9 which did not, relying instead on a course of conduct, the latter could not have been properly assessed as more serious, with a higher penalty indicated. That conclusion is further supported, the applicant contends, by the fact that the sentence indicated for count 1 took into account the offence against OA that was before the sentencing court on a Form 1 document.

109. The applicant’s arguments are, without exception, flawed. They approach the process of determining sentence in a piecemeal fashion, quite contrary to the proper approach to the sentencing task. The process of assessing the gravity of an offence and, having considered all other relevant features including the maximum penalty, any SNPP, and the subjective case, the process of determining the penalty to be imposed, is not one undertaken by looking in isolation at individual features of the crime. It is a process of synthesising all relevant features to arrive at a sentence that appropriately reflects the criminality involved, gives fair weight to the subjective case, and which achieves the purposes of sentence provided for by s 3A of the Crimes (Sentencing Procedure) Act.

110. Thus, it is, for example, unhelpful to point to the length of time over which a sexual offence was committed as demanding a lesser sentence than the sentence indicated or imposed at first instance. The short duration of an offence is rarely a mitigating feature, as Bellew J pointed out in Croxon v R [2017] NSWCCA 213, at [38]:

“[…] the fact that each episode of offending may have been relatively short in time is of limited significance. This Court has observed on many occasions that offending of this nature is capable of having a profound and deleterious effect upon victims for many years, if not for the whole of their lives: R v Gavel [2014] NSWCCA 56 at [110] per the Court (Leeming JA, Johnson and Hall JJ)) and the authorities cited therein; MLP v R [2014] NSWCCA 183 at [31] per Bellew J (Macfarlan JA and Adamson J agreeing); R v Egan [2016] NSWCCA 285 at [143]-[147] per Bellew J (Macfarlan JA and Hall J agreeing).”

111. Even the briefest duration will not diminish for the child victim the destructive horror of what was done to him or her. In any event, the duration of the offences was but one feature to be considered, and not in isolation. Fleeting offences counts 1 and 2 of indictment 1 may have been, but each was committed on a child of 5 years old, significantly below the upper age limit of 10 years relevant to a s 66A offence; they occurred in the home of the child’s grandmother, where WA should have been safe from sexual predation; they were committed by a person who had not just a familial position of trust, but who had been specifically entrusted with the care of the child by his parents; they occurred as part of a continuing pattern of sexual abuse; and there was some planning, in that the applicant waited for his wife to go to her bedroom before abusing WA. These were features that all tended to call for an elevated penalty to be imposed (or indicated). The history of the applicant’s earlier abuse of his own children, and the paraphilic condition that endured, must have had the same upwards effect on the proper sentence. Similar considerations applied to count 3 of indictment 1.

112. It is immaterial to point to features of the offending that did not apply as calling for a lesser penalty, as this Court has emphasised time and time again over many years: Faehringer v R [2017] NSWCCA 248 at [49]-[50]; R v CTG [2017] NSWCCA 163 at [60]-[63]; Bravo v R [2015] NSWCCA 302 at [45]; Mills v R [2017] NSWCCA 87 at [57]; BM v R [2023] NSWCCA 68 at [46]. The fact that the offences were not more serious did not make them less serious. Had the offending involved threats, physical violence, or a different form of intercourse judged in the circumstances to be worse than fellatio, the offences would no doubt have been assessed as demanding a higher term than those indicated.

137. While the applicant’s wife was a witness in relation to count 3, even after the offences had come to light, she refused to make a statement to police. There is thus no basis on which it could be inferred that the offence would have come to light absent the applicant’s voluntary disclosure. Further, as noted above, the complainant agreed to having seen the applicant’s penis. The applicant’s wife also saw the applicant with his penis exposed. There was no evidence that either the complainant or the applicant’s wife could or would give evidence that the applicant incited the complainant to touch his penis, or that the complainant made contact in pushing the applicant’s penis away. That is, there was no evidence beyond the applicant’s admission as to the inciting, which was the essential criminality in count 3. It is not apparent to me that there was any basis for applying a lesser discount for count 3 than that applied to counts 1 and 2.

138. In considering the adequacy of the discount it is important to understand that the discount is assessed separately to the discount for the plea of guilty: see Panetta v R [2016] NSWCCA 85; SL v R (2015) 247 A Crim R 295; [2015] NSWCCA 30 at [11]-[12] per Basten JA; Z v R (2014) 256 A Crim R 48; [2014] NSWCCA 323 at [27]-[34] per McCallum J. To the extent that there may have been controversy in the past as to whether the voluntary disclosure of guilt, or what is often referred to as an Ellis discount (R v Ellis (1986) 6 NSWLR 603), is assistance requiring a separate quantified discount, the High Court in CMB v The Attorney General for New South Wales (2016) 256 CLR 346; [2015] HCA 9 accepted that assistance of this type is assistance within s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). That being the case, s 23(4) mandates that the court states the sentence it would have imposed but for the discount.

139. It may be that where there is a plea of guilty and a substantial discount for assistance, the discount must be reduced to ensure compliance with s 23(3) of the CSPA. That subsection requires that where a sentence is discounted for assistance, the sentence “must not be unreasonably disproportionate to the nature and circumstances of the offence”. (I note that s 23 applies to an indicative sentence is if it was an actual sentence as was implicitly acknowledged by the sentencing judge). The restriction is not on a disproportionate sentence but one that is unreasonably so: see CMB v Attorney General for New South Wales at [41].

140. Panetta v R was, like the present case, a case in which the admissions were made in circumstances where the authorities were neither aware of the commission of an offence, nor the identity of the perpetrator. Adams J, after a review of various authorities, was of the view that the discount for assistance in that case should have been 60 percent. His Honour would have allowed a further discount of 20 percent for the plea of guilty. In the result, the combined discount of 80 percent would have breached s 23(3) and therefore his Honour reduced the discounts to produce a combined discount of 60 percent. His Honour was in the minority as to this result (but not as to the proper approach).

141. The majority, Ward JA (as her Honour then was) and Bellew J, considered the appropriate discount for the applicant’s voluntary disclosure was 50 percent. Their Honours would have allowed a further 10 percent for the plea of guilty, but considered that the combined discount of 60 percent would breach s 23(3) of the CSPA. Their Honours, as a result, reduced the discount to a combined discount of 50 percent for both assistance and the plea of guilty.

142. It is difficult to reconcile discounts of 10 percent and 15 percent applied here with the level of discount determined to be appropriate in Panetta v R. The discounts in Panetta v R were arrived at after consideration of various authorities. Those authorities discuss the strong public policy considerations which underlie the discount for assistance to authorities, including the disclosure of otherwise unknown offending. Those considerations apply here, arguably with even more force, where the voluntary disclosure was made by the applicant for the purposes of receiving assistance with his aberrant behaviour.

143. The discount of 50 percent for assistance applied in Panetta v R, if applied in the present case, when combined with the 25 percent discount for the utilitarian value of the applicant’s pleas of guilty, would produce a discount of 75 percent. Such a discount is unlikely to be appropriate given the constraints of s 23(3). It has been said that the constraint imposed by s 23(3) will not generally be met by allowing a combined discount of more than 50 percent: Z v R at [33]. While there is no bright line, this does suggest that a discount of up to 50 percent can generally be accommodated within the applicable constraints. The present matter can be approached on the basis that the discount for assistance on its own would have been something at least approaching 50 percent, with the result that the combined discount, after adjusting for s 23(3), should have been in the order of at least 50 percent.

144. On the above approach, the indicative sentences should be seen as commensurate with starting points in the order of 21 and a half years imprisonment for counts 1 and 2, and 10 years imprisonment for count 3.

145. Starting points of this order, having regard to the conduct involved, and the applicant’s subjective case, seem to me to be excessive, with the result that, after application of the minimum discount which I regard as appropriate, the indicative sentences are manifestly excessive. Ground 1 is, in my view, made out with respect to the offences on the first indictment.

146. Before leaving this ground, I would also make the following observations. In seeking to make his point that various of the indicative sentences were manifestly excessive (or would have been, had they been passed), the applicant pointed to particular features of the offending. Contrary to what has been said by Wilson J, I regard counsel’s approach as entirely orthodox. As the authorities referred to by Wilson J indicate, the absence of an aggravating factor does not amount to a mitigating factor. But to understand where an offence falls on the scale, it is necessary to understand the range of conduct that may be captured by the offence. In that context, regard is had to the maximum penalty, that being reserved for the worst case (as explained in Killic v the Queen (2016) 259 CLR 256; [2016] HCA 48); any standard non-parole period (applying Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39), and potentially, sentences imposed in comparable cases (relevant in the manner discussed in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55]). In arguing the appeal, counsel was not sentencing the applicant but constructing an argument in relation to the (very substantial) sentence passed on him. I did not understand him to be suggesting that any relevant features were to be ignored. The Court is obviously well aware of all the relevant features of the offending. Rather, I understood counsel to acknowledge the seriousness of the offending while seeking to highlight particular features which affect, to the applicant’s advantage, where the offence falls on the scale. Indeed, counsel’s written submissions on the application (at [146]) explicitly acknowledge that the factors on which he placed emphasis were not mitigatory as such, but rather relied on in the manner I have suggested. As stated in the applicant’s submissions, the particular features were highlighted “simply to place the offences on the spectrum of seriousness”, referring to Simpson v R [2019] NSWCCA 137 at [27]. Such an argument may fail for a variety of reasons, including the significance of other factors an applicant may seek to downplay. But the approach is not only understandable, but commonplace. How else can counsel argue the instinctive synthesis has produced an unreasonable starting point than by seeking to emphasise particular features of the offending or of the offender?

147. With respect to the duration of the offending in counts 1 and 2, I accept that this factor, for the reasons given by Bellew J in Croxon v R [2017] NSWCCA 213 at [38], referred to by Wilson J at [110], is “of limited significance”. That is not to say it is irrelevant. However, in the present matter, the relevance of this matter was further diminished by the fact that the counts were representative counts. An offence that was both fleeting and isolated may have been expected to be treated more favourably.

148. The sentencing judge found the objective seriousness of the offences in counts 1 and 2 “approaches the mid-range”. If, by this assessment, her Honour meant the offending was below, but getting close to the mid-range, I would not depart from this assessment. In doing so I acknowledge that the inherent imprecision in such assessments has the result that the meaning I give to the expression may not be the same as that intended by the sentencing judge.

149. With respect to count 3, there is no doubt it is a serious offence. The applicant exposed his penis to a five year old child and requested that he touch it while standing about one arm’s length from the complainant. The child said “no” and hit out towards the applicant’s penis, pushing it away. It was certainly not an offence at the lowest end of the range given this offence could be committed without exposure of the genitals (having regard to the definition of “sexual touching” in s 61HB of the Crimes Act 1900 (NSW). It can also be committed without actual contact of any kind (given the meaning of “incites”).

150. Her Honour found this offence to be “just below the mid-range”. I would again adopt her Honour’s assessment, with the same caveat.

151. Subjectively, the applicant was remorseful and, indeed, went to the lengths of seeking out assistance from a counsellor, knowing that his disclosure would not be confidential. When interviewed by police, he revealed the offending constituting counts 1 and 2. While there should be no double counting of the pragmatic basis on which the discount for assistance is given, the applicant’s remorse and desire for treatment remain relevant.

152. At the time of the offences, the applicant had no criminal history. This is a factor of less significance in the case of child sexual assault offences. While, as Wilson J points out, the applicant had, at the time of the commission of these offences, committed the offences on the second indictment, those offences had not come to light and he had thus not suffered the public disapprobation of a conviction for those offences. He was, at the time, “of otherwise good character”: see Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.

153. Having regard to the offences and the offender, an indicative sentence reflecting a starting point of over 20 years for each of counts 1 and 2 is very high. In my view, it is excessive. I am of the same view with respect to the notional starting point of 10 years with respect to count 3. My impression in this regard is reinforced by the various authorities referred to by the applicant for the purposes of comparison: Cheung v R [2022] NSWCCA 168; BS v R [2021] NSWCCA 39; R v JJ [2019] NSWCCA 148. Noting the limitations inherent in any such comparative exercise, the results in those cases confirm my view.

154. The error established by the applicant had the capacity to affect the aggregate sentence imposed by her Honour. I am consequently of the view the applicant has established error of a nature that requires this Court to re-exercise the sentencing discretion.

The indicative sentence for count 9 on the second indictment

158. Ground 1 of the appeal also complained that the indicative sentence for count 9 on the second indictment was manifestly excessive. This was an offence against s 66EA of the Crimes Act committed by the applicant against his son. The assessment of the appropriateness of this sentence is, to a large extent, linked to the applicant’s submissions as to the proper approach to sentencing for an offence against s 66EA(1) as advanced in ground 2. It is convenient, therefore, to deal with the complaint relating to this count in the context of ground 2.

Ground 2: The sentencing judge erred in sentencing the applicant for the offences on the second indictment on the basis of the construction of s 66EA in R v RB

159. The applicant’s argument in relation to this ground has been set out by Wilson J. The applicant’s argument centres on the proper construction of the offence provision as determined in MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180. It was submitted that that case resolved that an offence against s 66EA(1) of the Crimes Act is established by proof of the existence of a relationship in which an adult engages in two or more unlawful sexual acts with or towards the child complainant over any period, rejecting any requirement to prove the existence of a sexual relationship, or a course of conduct, over and above the two unlawful sexual acts required by s 66EA(2). It was submitted that, as the result of MK v R; RB v R was to reverse earlier authority which focused on the maintaining of an unlawful sexual relationship, the focus of sentencing must also shift from the relationship to the ingredient offences.

160. The short answer to the applicant’s contention, in my view, is that in sentencing for an offence, the sentencing judge is not limited to the elements of that offence. As was observed in The Queen v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31, per Gibbs CJ, the general principle is that the sentencing judge must take into account all of the circumstances of the offence, subject to the fundamental principle that no one should be punished for an offence for which they have not been convicted.

161. The limitation that a court cannot sentence a person for an offence they have not committed has been a significant issue in cases of historical sexual assaults. It underpins the way courts have sentenced for sexual offences when those offences are said to be “representative” of more widespread offending: R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209. In the circumstances of a charge or charges relating to a particular act, it is plain that it would not be proper to sentence an offender for acts with respect to which they were not convicted. Where, however, the charge relates to maintaining a relationship with a particular quality, it is not apparent that the same issue arises.

162. In the present case, there was no submission that the sentence resulted in the applicant being punished for offences with respect to which he had not been convicted. Nor could there be. Having regard to the terms of the offence, and the nature of the offence as informed by the presence of s 66EA(9) and (10), there is no question of the applicant having been sentenced for offences with respect to which he had not been convicted in breach of the principle in The Queen v De Simoni.

163. Clearly, there is the potential for many more instances of a particular sexual offence to have been committed than is required by the section. There may be difficulties in ensuring an offender is not sentenced on a vague or uncertain basis as to the extent of the criminality engaged in. But determining the facts on which an offender is to be sentenced is a commonplace occurrence. Insofar as the nature and frequency of sexual offending within the period encompassed by the charge is in issue, that is to be determined by application of orthodox principles set out in the authorities, most notably R v Isaacs (1997) 41 NSWLR 374; [1997] NSWCCA , The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, Cheung v Queen (2001) 209 CLR 1; [2001] HCA 67 and Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14.

164. The applicant raised an important question as to the proper approach to sentencing for an offence against s 66EA in the context of the proper construction of the elements of that offence having only relatively recently been settled. For the reasons given above, however, the ground should be dismissed.

165. With respect to count 9 on the second indictment, the applicant’s argument that this indicative sentence was manifestly excessive was essentially premised on the proper approach to sentencing as advanced in ground 2. Having rejected that ground, I am not of the view that the indicative sentence with respect to count 9 on the second indictment was manifestly excessive.

Resentence

166. Given the applicant’s success on ground 1, it is necessary to exercise the sentencing discretion afresh.

167. I would impose an aggregate sentence. To determine that aggregate sentence it is necessary to determine an indicative sentence for each offence. In arriving at those indicative sentences, a discount of 25 percent for the utilitarian value of the pleas of guilty with respect to all offences applies pursuant to s 25D(2)(a) of the CSPA. With respect to the offences on the first indictment I would allow a further discount of 50 percent for the applicant’s assistance to the authorities. As I have noted above, a combined discount of 75 percent will produce indicative sentences which are not just disproportionate but, unreasonably so, contrary to s 23(3).

168. The findings of the sentencing judge were not challenged, other than by the grounds of appeal, and I would to that extent adopt them.

169. In relation to counts 1 and 2, the incidents were relatively brief, and largely opportunistic. They can be contrasted with, by way of example, the qualitatively different intercourse engaged in, in some of the instances covered by the second indictment. That said, an act of fellatio on a child of the complainant’s age is necessarily an extremely serious offence. As I have observed above, the relative brevity of the events may have had more significance had either offence been an isolated transgression. With respect to count 3, the applicant’s attempt to have the complainant touch his penis was clumsy and, unsuccessful, other than to the extent the complainant pushed the applicant’s penis away.

170. Turning to the second indictment, the indicative sentences in relation to the s 66EA offences are significantly informed by the nature and frequency of the sexual misconduct, young ages of the children at the time of the conduct, and the fact that the applicant is their father. They are extremely serious offences. In relation to count 9, I have regard to the applicant having moved his predations from one of his children to another in the commission of this offence, albeit with a gap of some years between the offences.

171. The appropriate sentences for counts 1 and 9 are tempered to an extent by the operation of s 66EA(8) which provides:

66EA     Persistent sexual abuse of a child

…

(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.

172. The sexual misconduct against YA was constituted by acts of fellatio, the applicant rubbing his penis between her buttocks, and the touching of her vagina. That conduct was, in each case, accepted to have constituted an offence of indecent assault on a person under the age of 16, contrary to s 61E(1). The maximum penalty for this offence was imprisonment for 6 years. It must be said, given the boundaries of the offences, these would have been extremely serious examples of such an offence.

173. The sexual misconduct against LA was constituted by the acts of mutual fellatio, digital penetration of the anus and penile penetration of the anus. These would all have amounted to offences of sexual intercourse with a person aged between 10 and 16, under the authority of the offender, contrary to s 66C(2). The maximum penalty for this offence was 10 years imprisonment. Each was a very serious example of such an offence.

172. At first instance it was accepted (and no contrary approach has been suggested) that the Court was required to give effect to both s 25AA of the CSPA and s 66EA of the Crimes Act by taking into account, as a yardstick, the lower maximum penalties that applied at the time of the offending, but not taking into account any sentencing patterns that applied at the time of the offending. The result of that approach, in this case, pulls towards the upper end of the earlier maximum penalties. In expressing myself in this way, it should not be thought that the court should sentence as if sentencing for offences committed against the then extant offence provisions. As s 66EA(8) makes clear, the sentence is not limited by those previous maximum penalties (and it might be noted there were, in any event, multiple occasions constituting such offences). The sentence is imposed for an offence against s 66EA(1) for which the maximum penalty is imprisonment for life.

173. The applicant, having regard to his history of abuse, his acceptance of responsibility and his remorse, presented a somewhat sympathetic subjective case. Her Honour found his moral culpability was “somewhat reduced” with respect to the offences other than that committed against YA, which occurred prior to his head injury. She found the reduction to be “limited and … not substantial”. Her Honour, appropriately, found the weight to be given to retribution, denunciation, and general deterrence was affected, but the extent of the reduction was “limited”. I am mindful of the applicant’s age. He was born in February 1948. His sentence was backdated to 10 November 2020 at which time he was aged 72. The current sentence therefore does not expire until he reaches the age of 92. The non-parole period will not expire until he reaches the age of 85. In other words, the impact of the sentence on him is such that he is likely to have little meaningful life remaining at the end of his sentence. While that is not, itself a basis to reduce an otherwise appropriate sentence, her Honour had regard to the prospect that as he ages, health issues may develop. Particularly in these circumstances it is apposite to recall that, in the context of long sentences, the severity of a sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time: R v MAK, R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16]. Nonetheless, a lengthy sentence is the inevitable result of the applicant’s offending.

174. In relation to indictment 2, I adopt the indicative sentences of 10 years and 11 months and 15 years, respectively, as specified by the sentencing judge. I regard those sentences as appropriate. I note in this regard, I have found no error in relation to the offences on the second indictment, and further note that I would not have indicated lesser sentences.

175. With respect to the offences on the first indictment, I regard the following indicative sentences as appropriate:

Count 1: Imprisonment for 7 years with a non-parole period of 4 years (representing a starting point of 14 years);

Count 2: Imprisonment for 7 years with a non-parole period of 4 years (representing a starting point of 14 years);

Count 3: Imprisonment for 2 years with a non-parole period of 18 months (representing a starting point of 4 years).

178. I would not arrive at a total sentence any less than that determined by the sentencing judge. In other words, I am not of the view that a lesser sentence is warranted. I would grant leave to appeal but dismiss the appeal.

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Endnotes

Decision last updated: 09 August 2024