Stephens v R

Case •

[2021] NSWCCA 152

•

09 July 2021

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Stephens v R [2021] NSWCCA 152
Hearing dates: 16 April 2021
Date of orders: 9 July 2021
Decision date: 09 July 2021
Before: Simpson AJA at [1]
Davies J at [82]
Button J at [83]
Decision:

(1)   Appeal against conviction on counts 6, 7 and 13 dismissed;

(2)   Appeal against conviction on count 14 allowed; verdict of guilty on that count quashed and a verdict of acquittal entered;

(3)   Sentence imposed on 13 November 2019 set aside; in lieu thereof, the appellant is sentenced to an aggregate term of imprisonment for 6 years, to date from 26 August 2019 and expire on 25 August 2025, with a non-parole period of 3 years and 9 months that will expire on 25 May 2023.

Catchwords:

CRIME – sexual offences – offences alleged to have been committed between 1982 and 1987 – legislative changes with respect to sexual offences – Crimes Act 1900 (NSW) – s 81 repealed with effect from 8 June 1984 and s 78K enacted with effect from that date – appellant arraigned on indictment that charged offences against s 81 and s 78K in the alternative with dates commensurate with dates the provisions in force – indictment amended to take benefit of s 80AF Crimes Act – s 80AF allowed prosecution to rely on s 81 (as the offence carrying the lesser maximum penalty) for the entirety of the charged period, beyond the date s 81 was in force – whether judge erred in granting leave to amend indictment – whether principles against retrospectivity of legislation offended – when criminal proceeding commences – when criminal proceeding “pending”

STATUTORY INTERPRETATION – retrospectivity – whether s 80AF Crimes Act substantive or procedural – whether provision affects existing rights or obligations – to classify s 80AF as substantive and deny it retrospectivity would undermine legislative intention and deprive it of effectiveness – even if substantive, s 80AF clearly intended to alter the existing law – need for interpretation of statute in context of circumstances

CRIME – sexual offences – charge for offence against s 78K Crimes Act of homosexual intercourse with a male person aged between 10 and 18 years – indictment alleged offence committed during time when complainant 14 to 16½ years old – s 78T(1) Crimes Act provided that prosecution must be commenced within 12 months where complainant aged over 16 years at time of alleged offence – prosecution commenced much later – whether prosecution statute-barred – dates were an essential fact of prosecution and statutory time limit applied – conviction quashed and verdict of acquittal entered

CRIME – appeals – successful appeal against conviction on one count – aggregate sentence quashed and appellant re-sentenced on other counts

Legislation Cited:

Crimes (Amendment) Act 1984 (NSW), Sch 1

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A

Crimes Act 1900 (NSW), ss 78K, 78T, 80AF, 81

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Legislation Amendments (Child Sexual Abuse) Act 2018 (NSW)

Criminal Procedure Act 1986 (NSW), ss 20, 130, 154

Interpretation Act 1987 (NSW), s 30

Cases Cited:

CJW v R [2018] NSWCCA 80

GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230

Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121

Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7

R v Greenaway [2000] NSWCCA 368

R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281

R v Nicolaidis (1994) 33 NSWLR 364

R v Page (Court of Criminal Appeal (NSW), 25 November 1991, unrep)

R v Taylor [2003] NSWCCA 194

Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19

Truong v The Queen (2004) 233 CLR 122; [2004] HCA 10

Texts Cited:

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (7th ed, 2020, Federation Press)

Department of Justice (NSW), Discussion Paper: Strengthening child sexual abuse laws in NSW (2017)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (15 December 2017)

Category:Principal judgment
Parties: Peter Leonard Stephens (Appellant)
The Crown
Representation:

Counsel:
O P Holdenson QC/J O’Connor (Appellant)
D Kell SC/M W R Adams (Crown)

Solicitors:
Macedone Legal (Appellant)
Director of Public Prosecutions (Crown)
File Number(s): 2017/331553
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of, or any matter which could identify the complainant, is prohibited.
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
13 November 2019
Before:
Woodburne SC DCJ
File Number(s):
2017/331553

HEADNOTE

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

The appellant was alleged to have committed sexual offences against the complainant between January 1982 and December 1987. On 8 June 1984, the Crimes Act 1900 (NSW) was amended so that s 81 (indecent assault on a male person) was repealed and s 78K (homosexual intercourse with a male person between the ages of 10 and 18 years) was inserted.

On 29 November 2018 the appellant was arraigned on an indictment that contained 18 counts. Where the date range for an alleged offence extended across 8 June 1984, the indictment was drafted so that one count alleged an offence against s 81, and another count, pleaded in the alternative, alleged an offence against s 78K; with dates commensurate with the dates the provisions were in force. On 5 February 2019, the indictment was amended to take the benefit of s 80AF of the Crimes Act, which had come into effect on 1 December 2018. Section 80AF allowed the prosecution to rely on the offence carrying the lesser maximum penalty (s 81) for the entirety of the charged period (beyond the date the provision was in force, being 8 June 1984). The indictment was again amended on 11 and 19 February 2019. Following the amendments, the indictment contained 14 counts: relevantly, counts 5-8, 11 and 13 alleged offences against s 81 said to have been committed between dates which extended beyond 8 June 1984.

Count 14 alleged an offence against s 78K, said to have been committed when the complainant was aged 14 to 16½ years. Section 78T(1) of the Crimes Act provided that where a complainant was aged over 16 years at the time of the alleged offence, the prosecution must be commenced within 12 months. The prosecution against the appellant was commenced much later.

The appellant was convicted on counts 1, 2, 3, 6, 7, 13 and 14. He appealed against his convictions on counts 6, 7, 13 and 14 to the Court of Criminal Appeal. The principal issues on appeal were:

  1. with respect to counts 6, 7 and 13: whether the primary judge erred in granting the prosecution leave to amend the indictment, and, relatedly, whether s 80AF applied;

  2. with respect to count 14: whether the prosecution was statute-barred.

The Court (by majority) allowed the appeal in part.

Issue 1 (amendment of the indictment; the applicability of s 80AF):

(Per Simpson AJA, Davies J agreeing): A statute will not be given retrospective operation where to do so would affect an existing right or obligation unless the statute, expressly or by necessary implication, so demands. Excepted from that general proposition are statutes that affect “mere matters of procedure”: [37]-[38]. Section 80AF did not affect any existing rights or obligations and was therefore procedural: [41]-[43]. Even if it were substantive, it was clearly intended to alter the existing law with respect to proof of sexual offending against children: [44]. An overtly retrospective statute, which may have the effect of making past acts criminal, will not be understood to apply to proceedings that have already been instituted, in the absence of express words or a necessary intention: Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121. Both statute and case law supported that the criminal proceedings against the appellant had commenced by no later than 29 November 2018, with his arraignment and plea: [48]. However, s 80AF does not have the effect of making past acts criminal; nor does it create a criminal offence; nor does it alter a pre-existing criminal offence: [58]. The grounds of appeal on this issue were accordingly rejected.

Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19, applied.

(Per Button J, contra): Parliament did not enact a transitional provision that stated explicitly that s 80AF was applicable to proceedings that had already commenced, nor did any extrinsic material explicitly set out such an intention: [90]-[91]. Section 80AF constitutes a mechanism whereby inculpation is expanded, in the practical sense of the ability of the prosecution to obtain a verdict of guilty in certain circumstances of chronological uncertainty in which a verdict of guilty would not previously have been available: [95]. This is the kind of legislative change that attracts the principles discussed in Lodhi: [98]. The convictions on counts 6, 7 and 13 should be quashed and new trials ordered.

Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121, applied.

Issue 2 (whether Count 14 was statute-barred):

(Per Simpson AJA, Davies and Button JJ agreeing): The framing of count 14 in the indictment incorporated a period that was subject to the time limit under s 78T(1): [62]. It was no answer to say that the evidence supported a view that, at the time the conduct the subject of the charge was committed, the complainant was under the age of 16 years: [62]. The specific date (on which the complainant attained the age of 16 years) was an essential fact in the prosecution; bringing this case within the recognised exception to the rule that allegations as to date in the indictment are not “of the essence”: [63]. The proviso to s 6(1) Criminal Appeal Act 1912 (NSW) could not apply to defeat a statutory time limit: [64]. The appellant’s conviction on count 14 was quashed and a verdict of acquittal entered: [65], [81].

CJW v R [2018] NSWCCA 80, referred to.

(The aggregate sentence imposed on the appellant was quashed and he was and re-sentenced on counts 1, 2, 3, 6, 7 and 13: [66]-[80]).

Judgment

  1. SIMPSON AJA: Over a period of 5 years commencing in 2013 a Royal Commission heard evidence of historic sexual abuse of children in institutions throughout the States and Territories of the Commonwealth. On 15 December 2017 it presented its report to the Governor-General: Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (“Report”). Among many findings made by the Royal Commission was that it commonly takes many years for individuals who have been sexually abused as children to come forward with their complaints: Report, Vol 4 at [2.3] (p 30). That finding came as no surprise to legal practitioners who had been engaged in the prosecution or defence of such allegations or to judges who had been engaged in the adjudication of those prosecutions. The delay in reporting has a number of consequences, one of which is that it may be extremely difficult for a complainant, who was a child at the time of the events in question, to pinpoint a date on which the asserted events took place. That created complications in the prosecution of the offences alleged.

  2. Allied with and compounding those complications is the history of legislation creating sexual offences and providing for the prosecution thereof. As originally enacted the Crimes Act 1900 (NSW) provided in s 63:

“Whosoever commits the crime of rape shall be liable to suffer death.

The consent of the woman, if obtained by threats or terror, shall be no defence to a charge under this section.”

Section 63 was amended once only, in 1955, to remove the death penalty and substitute, as the maximum penalty, penal servitude for life.

  1. “Rape” was not defined in the statute, but was interpreted, in conformity with the common law, as involving carnal knowledge, which was defined in s 62 as being complete on proof of penetration. As is apparent from the suffix to s 63, the provision created an offence of which only females could be victims. There was no equivalent offence of which males could be victims.

  2. Other sexual offences contained in the Crimes Act as enacted in 1900 were s 67 (carnal knowledge of a girl under 10 years, for which the penalty was death), s 71 (carnal knowledge of a girl of or above the age of 10 years, but under the age of 14 years, later, in 1910, amended to 16 years). Section 77 created an offence of indecent assault on a girl under the age of 14 years (with or without her consent). Again, there were no equivalent provisions with respect to sexual offences against boys, although s 81 provided for an offence of indecent assault upon a male person, of any age, and with or without consent, with a penalty of penal servitude for five years.

  3. By s 79, “the abominable crime of buggery, or bestiality, with mankind, or with any animal” was penalised by penal servitude for life, or for any term not less than five years; by s 80 an attempt to commit such a crime was penalised by penal servitude for five years.

  4. In 1924 and 1974 respectively, ss 76 and 76A were enacted to provide for offences, respectively, of indecent assault on a female, and committing an act of indecency on a girl under the age of 16 years, or inciting a girl under that age to any act of indecency with the person accused or another.

  5. In 1981, following a 1977 Report of the Criminal Law Review Division of the Department of the Attorney General and of Justice into Rape and Other Sexual Offences, the law was radically amended, to provide for a series of graduated offences: see Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (7th ed, 2020, Federation Press) at [8.2.4], ff.

  6. Thereafter, from time to time, statutory amendments came into force, the effect of which was to create different offences, with different elements, and different penalties. These provisions were in operation at different times. This is not the occasion to review the entire history of legislative reform in this area of the law. It is sufficient to note that the Crimes Act was relevantly amended in 1981, by the Crimes (Sexual Assault) Amendment Act 1981 (NSW) (No 42 of 1981) (“the Sexual Assault Amendment Act”); and by the Crimes (Child Assault) Amendment Act 1985 (No 149 of 1985), with effect from 23 March 1986 (“the Child Assault Amendment Act”).

  7. From 1981 there was an increasing tendency to introduce more specificity into the offence-creating provisions, often by reference to the age of the child victim, or by reference to certain circumstances that aggravated the offence. One example will suffice. Section 61E, which was inserted into the Crimes Act by the Sexual Assault Amendment Act, created in subs (1) and subs (2) two offences: the first was indecent assault, with a penalty of imprisonment for 4 years, or, if the person assaulted was under the age of 16 years, penal servitude for 6 years. The second was an offence of committing an act of indecency with or towards a person under the age of 16 years, or inciting a person under that age to an act of indecency with that or another person, with a penalty of imprisonment for 2 years.

  8. By the Child Assault Amendment Act two additional offences were created under s 61E: indecent assault on a person under the age of 16 years who was (whether generally or at the time of the assault only) under the authority of the person, with a penalty of penal servitude for 6 years (subs 1A). The second was an offence of committing an act of indecency with or towards a person under the age of 16 years, who was under the authority of the person accused, with a penalty of imprisonment for 4 years (subs 2A). In each case the additional element was that the alleged victim was under the authority of the person accused. The difficulty created by these variations was that it could be difficult for the prosecution to determine under which provision a person accused of an offence ought to be prosecuted.

  9. Not all of the amendments are of direct application to the present case. One that is of direct application is the Crimes (Amendment) Act 1984 (NSW), discussed in more detail below. Inter alia, s 79 was amended by the removal of the reference to buggery, and, by s 78K, an offence of homosexual intercourse by a male person (of any age) with a male person between the ages of 10 and 18 years was introduced, with a penalty of penal servitude for 10 years. Section 81 was omitted.

  10. One result of these legislative changes has been that, where a complainant who was a child at the time of the event or events giving rise to the prosecution is unable to pinpoint with precision the date or dates of the event or events alleged, it may not be possible for the Crown to prove, in the circumstances, that the conduct in question constituted an offence against the provision under which a charge is laid, that is, that the conduct was committed at a time when a specific offence-creating provision was in force. A case in point is R v Page (Court of Criminal Appeal (NSW), 25 November 1991, unrep). Mr Page was charged with a number of offences, including two offences of indecent assault (Crimes Act s 81) and one of buggery (Crimes Act s 79). As will be seen below, s 81 was repealed with effect from 8 June 1984, and s 79 was, at the same time, amended in such a way as to remove from the section the conduct alleged to have constituted the offence with which Mr Page was charged. That would not have affected the outcome (Interpretation Act 1987 (NSW), s 30) had the complainant’s evidence been such as to establish, beyond reasonable doubt, that the conduct alleged in any count had been committed, and committed within a period when the relevant provision was in force. However, the evidence of the complainant was described as “very confused as to matters of dates and sequence” and inadequate to prove, to the requisite standard, that the conduct alleged had occurred within the time frame in which the offence-creating provisions operated. Mr Page was acquitted on appeal. See also R v Greenaway [2000] NSWCCA 368, also involving alleged offences against s 81 of the Crimes Act.

  11. In or about 2017, on the recommendation of a Joint Select Committee of the NSW Parliament on Sentencing of Child Sexual Assault Offenders, the NSW Department of Justice undertook a review of child sexual offences in the Crimes Act. It published a Discussion Paper titled “Strengthening child sexual abuse laws in NSW”, which contained the following:

“Date of offence can be difficult to pinpoint

6.8 Even when a survivor of historic child sexual abuse can recall a particular offence, they must be able to say with some accuracy when the offence occurred. It is common for the prosecution to phrase the indictment in terms of a date range, rather than refer to a particular date. For example, the complainant may recall that the offence occurred when she was in a particular grade at school and hence the indictment will refer to the offence occurring between the start and finish of the school year. Such a range can create a number of issues. Firstly, it may result in the offence falling across two offences depending on when during that date range it was committed. For example, if the allegation is of sexual penetration and the complainant turned 10 years during the period of time particularised in the indictment, the offence is either have sexual intercourse with child under 10 years (s 66A) or the offence of sexual intercourse with child 10 years or older and under 14 years (s 66C(1)).”

  1. With these issues in mind, and expressly in response to the departmental review and the Royal Commission Report, in 2018 the NSW Parliament enacted significant amendments to the Crimes Act by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW). The amendments were wide-ranging and extensive. Among them was s 80AF, which provided:

“Uncertainty about time when sexual offence against child occurred

(1)  This section applies if:

(a)   it is uncertain as to when during a period conduct is alleged to have occurred, and

(b)   the victim of the alleged conduct was for the whole of that period a child, and

(c)     there was no time during that period that the alleged conduct, if proven, would not have constituted a sexual offence, and

(d)   because of a change in the law or a change in the age of the child during that period, the alleged conduct, if proven, would have constituted more than one sexual offence during that period.

(2)    In such a case, a person may be prosecuted in respect of the conduct under whichever of those sexual offences has the lesser maximum penalty regardless of when during that period the conduct actually occurred, and in prosecuting that offence:

(a)   any requirement to establish that the offence charged was in force is satisfied if the prosecution can establish that the offence was in force at some time during that period, and

(b)   any requirement to establish that the victim was of a particular age is satisfied if the prosecution can establish that the victim was of that age at some time during that period.”

Subsection (3) contains definitions of “child” (a person under the age of 16 years) and “sexual offence” (by reference to different provisions in the Crimes Act, including provisions that had been repealed or replaced). Subsection (2) has since been amended, but it was common ground that the version as originally enacted is applicable.

  1. Introducing the Bill to Parliament, the Attorney General, Mr Speakman, said:

“… the bill makes three procedural reforms to facilitate prosecutions for child sexual offences. Schedule 1 [46] inserts a new section 80AF to cover the complexities that currently arise for the prosecution where the offending has taken place during a period and the applicable offence changes during that period. This can happen either because the child’s age has changed during the period – meaning that the conduct is covered by a different offence at different times during that period – or because the relevant law has been amended. This can be a problem for the prosecution where it is not clear which offence should apply. Section 80AF will address this. It will ensure that the prosecution can rely on whichever offence carries the lesser maximum penalty, and can rely on this offence in relation to the entirety of the period.” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 at 7.)

Section 80AF came into force on 1 December 2018. It is central to the present appeal, to which I will now come.

The appeal

  1. The appeal involves offences alleged to have been committed by the appellant against the complainant between January 1982 and December 1987. The offences are offences against s 81 and s 78K of the Crimes Act (both now repealed).

  2. Section 81 created an offence of indecent assault on a male person. It provided:

“Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.”

Section 81 was in force from the enactment of the Crimes Act in 1900 until it was omitted with effect from 8 June 1984: Crimes (Amendment) Act 1984 (NSW), Sch 1.

  1. Section 78K created an offence of homosexual intercourse with a male person between the ages of 10 years and 18 years. It provided:

“A male person who has homosexual intercourse with a male person of or above the age of 10 years, and under the age of 18 years, shall be liable to penal servitude for 10 years.”

Section 78K was inserted into the Crimes Act by the amending Act by which s 81 was omitted, with effect from 8 June 1984, and remained in force until 12 June 2003. It is worth observing, perhaps unnecessarily, that there was no overlap between the two offences. Section 81 ceased to have operation on the commencement of s 78K.

  1. On 5 February 2019 the appellant was arraigned on an indictment that contained eight counts of offences against s 81, and six counts of offences against s 78K. He entered a plea of not guilty to each and a jury trial proceeded. During the course of the trial the trial judge directed the jury to return verdicts of not guilty on four counts, one of an offence against s 81 and three of offences against s 78K (counts 4, 9, 10 and 12). On 4 March the jury returned verdicts of not guilty on three counts (counts 5, 8 and 11) and guilty on seven counts (counts 1, 2, 3, 6, 7, 13 and 14). Six of the convictions were of offences against s 81; the remaining conviction (count 14) was of an offence against s 78K.

  2. On 13 November 2019 the appellant was sentenced to an aggregate term of imprisonment of seven years and nine months commencing on 26 August 2019, with a non-parole period of four years and nine months which will expire on 25 May 2024. The sentencing judge appropriately stated the sentences that she would, if sentencing separately, have imposed in relation to each individual offence: Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), s 53A.

  3. The appellant now appeals against the convictions on counts 6, 7, 13 and 14. He does not appeal against the convictions on counts 1, 2 and 3. As the grounds on which he appeals involve questions of law alone, his appeal against conviction is as of right: Criminal Appeal Act 1912 (NSW), s 5(1)(a).

  4. The appellant also seeks leave, in the event that the appeal against conviction is wholly or partly successful, to appeal against the sentence imposed. He does not otherwise complain of the sentence.

Factual background

  1. The following background facts are uncontroversial. The appellant was born in 1954. In 1982 and thereafter he was a pilot and a flying instructor. He was also a qualified solicitor. The complainant was born on 6 July 1971 and, in 1982, was 10 and 11 years of age. The two met at the appellant’s workplace in about 1982, when the appellant was about 28 years of age. They became friends. The appellant showed the complainant and his brother and friend around his workplace, bought him gifts, gave him money, and, on at least one occasion, represented him in court. He introduced the complainant to drugs (marijuana and amphetamines).

  2. In 2015 the complainant reported to police that the appellant had committed sexual offences against him but did not at that time proceed with the complaint. In 2017 he reactivated the complaint. Ultimately the appellant was charged with a number of offences.

  3. On 29 November 2018 the appellant was arraigned before Bennett SC DCJ on an indictment that contained 18 counts (“the 29 November indictment”). He entered a plea of not guilty to each count. Counts 1 to 4 alleged offences against s 81 of the Crimes Act, said to have been committed between 1 January 1982 and 6 July 1983 (the complainant’s 12th birthday). Count 5 also alleged an offence against s 81, said to have been committed between 6 July 1982 and 7 June 1984 (the last day of operation of s 81). Count 6 was pleaded in the alternative to count 5, and alleged an offence against s 78K, said to have been committed between 8 June 1984 (the first day of operation of s 78K) and 6 July 1984 (the complainant’s 13th birthday). Counts 7 and 8, 9 and 10 and 11 and 12 were similarly pleaded as alternatives and alleged offences against s 81 (counts 7, 9 and 11) and s 78K (counts 8, 10 and 12), said to have been committed between 6 July 1982 and 6 July 1984, with ranges of dates commensurate with dates on which the provision (s 81 or s 78K) under which the charges were brought, was in force. Counts 13-16 alleged offences against s 78K, said to have been committed between 6 July 1984 and 6 July 1986. Count 17 alleged an offence against s 78K, said to have been committed between 6 July 1985 and 6 July 1986. Count 18 also alleged an offence against s 78K, said to have been committed between 6 July 1987 and 31 December 1987. In each count in which a s 78K offence was charged, the approximate age of the complainant, in the range of dates pleaded, was specified. That was necessary because an element of the s 78K offence is that the person on, or with, whom the offence is committed is of or above the age of 10 years and under the age of 18 years.

  4. The structure of the 29 November indictment is explained by the circumstances to which I have alluded above; with respect to the conduct alleged against the appellant in counts 5 and 6, 7 and 8, 9 and 10 and 11 and 12, the Crown recognised that it could not with confidence assert that it had occurred before 8 June 1984 (giving rise to a charge under s 81) or on or after that date (giving rise to a charge under s 78K). The conduct alleged was, however, if proved, capable of satisfying the elements of either offence. The charges were therefore formulated in pairs, to provide the best possible chance of bringing the conduct (if proved) within one of the offence-creating provisions. The strategy was not foolproof; if the evidence given at trial failed (as happened in Page) to bring the conduct on one side of the cut off date or the other, the Crown would fail to prove either offence.

  5. The hearing of the charges against the appellant did not commence at his arraignment on 29 November 2018. That proceeding appears to have been a formality, possibly for the purpose of bringing into play the provisions of s 130 of the Criminal Procedure Act 1986 (NSW), which gives jurisdiction to a trial court, after presentation of an indictment and arraignment of the accused, but before a jury is empanelled, to make orders with respect to the conduct of the trial. A hearing was fixed to commence on 4 February 2019 before Woodburne SC DCJ and a jury. The following day, 5 February 2019, the Crown Prosecutor sought and was granted leave, pursuant to s 20 of the Criminal Procedure Act, to file an amended indictment (“the 5 February indictment”). Section 20 permits the amendment of an indictment after it has been presented, with the leave of the court or the consent of the accused, and, by subs (3), extends to the substitution of an indictment. The 5 February indictment was filed in substitution for the 29 November indictment and contained 14 counts. Counts 1 to 8 alleged offences against s 81 and were the same allegations as had been contained in counts 1 to 5, and 7, 9 and 11 (with a minor adjustment to the dates) of the 29 November indictment. Count 5 replaced counts 5 and 6 on the 29 November indictment; count 6 replaced counts 7 and 8 on the 29 November indictment, count 7 replaced counts 9 and 10 on the 29 November indictment; count 8 replaced counts 11 and 12 on the 29 November indictment; count 9 replaced count 13 on the 29 November indictment; count 10 replaced count 14 on the 29 November indictment; count 11 replaced count 15 on the 29 November indictment; count 12 replaced count 16 on the 29 November indictment; count 13 replaced count 17 on the 29 November indictment; and count 14 replaced count 18 on the 29 November indictment. In the case of counts 5, 6, 7 and 8 the end date in the range of dates specified was 6 July 1984 – a month after s 81 had ceased to have operation.

  6. Omitted from the 5 February indictment were the alternative counts originally pleaded in the 29 November indictment as counts 6, 8, 10 and 12. They were subsumed, respectively, in counts 5, 6, 7 and 8 in the 5 February indictment.

  7. Counts 9 to 14 alleged offences against s 78K, said to have been committed between 6 July 1984 and 6 July 1986 (counts 9 – 12), between 6 July 1985 and 6 July 1986 (count 13) and between 6 July 1987 and 31 December 1987 (count 14). The date ranges specified were within the period during which s 78K was in force.

  8. The express purpose of the substitution of the 5 February indictment was to enable the Crown to take the benefit of the newly enacted s 80AF and the more liberal means of proof of historic allegations by children of sexual misconduct it provided. Counts 1 to 4, which alleged date ranges wholly within the period during which s 81 was in operation, were unaffected by the substitution. No opposition was advanced on behalf of the appellant to the substitution. The effect of s 80AF was that, notwithstanding that counts 5, 6, 7, and 8 alleged offences against s 81 said to have been committed within a range of dates that extended beyond the dates that s 81 was in force, the prosecution could nevertheless succeed. In short, that was because:

  1. it was uncertain as to when during the range of dates specified the conduct was alleged to have occurred (s 80AF(1)(a));

  2. the complainant was for the whole of that period a child (s 80AF(1)(b));

  3. the conduct alleged to constitute the offence was, throughout the range of dates specified, always a sexual offence (s 80AF(1)(c));

  4. because of a change in the law (the repeal of s 81 and the enactment of s 78K), the conduct alleged against the appellant would have constituted more than one sexual offence during the period specified (s 80AF(1)(d));

  5. section 81 was in force at some time during the period charged (s 80AF(2)(a)).

Subsection (2) of s 80AF required that the appellant be prosecuted under s 81, as the offence carrying the lesser penalty.

  1. A jury was empanelled and a trial proceeded on the 5 February (14 count) indictment.

  2. On 11 February count 14 was amended (without opposition) to replace “6 July 1987” with “6 July 1986”, and thus to plead that that offence was committed between 6 July 1986 and 31 December 1987, when the complainant was approximately 15 years of age. (There is a curiosity here that need not be explained; the indictment, as presented, stated 6 July 1987 as the commencement of the range of dates specified; as recorded in the transcript of the arraignment the date was read as 6 July 1986). No alteration was then made to that part of the count that asserted that the offence was committed when the complainant was 15 years of age, although that is plainly incommensurate with the range of dates the offence was said to have been committed, when the complainant would have been 15 to 16½ .

  3. On 19 February 2019, the trial judge allowed further amendment to the indictment, it seems to conform with the evidence as it had emerged in the trial. Count 8 in the 5 February indictment was amended so that the offence was alleged to have been committed between 1 January 1982 and 6 July 1984. Counts 11 and 13 in the 5 February indictment, which were then pleaded as offences against s 78K, were amended to plead offences against s 81, said to have been committed between 6 July 1983 and 31 December 1986 (count 11) and 6 July 1983 and 6 July 1986 (count 13). In each case, the end date of the range of dates specified was considerably beyond the date when s 81 ceased to be in force. The application of s 80AF meant that, notwithstanding a range of dates extending beyond the time that s 81 was in force, the offences charged could be proved, provided that the jury was satisfied that the conduct alleged had occurred within the pleaded range of dates. Count 14 was further amended so that that offence was alleged to have been committed between 6 July 1985 and 31 December 1987. The complainant’s age was pleaded to have been 14 to 16 years. (The complainant attained the age of 16 on 6 July 1987. That is significant with respect to ground 5 of the appeal.)

The grounds of appeal

  1. As indicated above, the appellant now appeals against the convictions on counts 6, 7, 13 and 14. He does not appeal against the convictions on counts 1, 2 and 3. Although five grounds of appeal are pleaded, only two issues arise. The first concerns the conviction of the appellant on counts 6, 7 and 13, and the correctness of the leave given to amend the indictment, by the substitution of the 5 February indictment for the 29 November indictment on which the appellant had originally been arraigned before Bennett SC DCJ, and, later, the 19 February amendment of counts 11 and 13 (which had originally pleaded offences against s 78K) to plead offences against s 81. In those cases, too, the purpose of the amendment was to allow s 80AF to operate. The first issue concerns the applicability, in the circumstances, of s 80AF (grounds 1-4). The second issue concerns count 14, prosecution of which, the appellant asserts, was statute-barred (ground 5). I will return to count 14 and ground 5.

Grounds 1 – 4:

Amendment of the indictment; the applicability of s 80AF

  1. The amendments made to the indictment on 5 February 2019 and 19 February 2019 had the effect of bringing s 80AF into play in respect of counts 6, 7 and 13. The conduct alleged against the appellant, if proved, could have established his guilt of offences against s 81 or against s 78K, depending on when it occurred. Thus, on the application of s 80AF, provided the Crown could prove the commission of the conduct alleged, within the range of dates specified, s 80AF permitted conviction of the appellant of whichever of those offences carried the lesser maximum penalty. That was s 81.

  2. Notwithstanding the acquiescence of counsel for the appellant at trial in the substitution of the 5 February indictment, it is now contended on behalf of the appellant that, in permitting the substitution, and in allowing the amendments of 19 February, the trial judge was in error. Grounds 1 to 4 of the appeal were directed to this proposition. The contention made on behalf of the appellant is that, in the circumstances, allowing the trial to proceed on the basis that s 80AF applied offended against long standing principles concerning retrospectivity of legislation.

  3. It is well established (and not in contest) that a statute will not be given retrospective operation where to do so would affect an existing right or obligation unless the language of the statute, expressly or by necessary implication, so demands: Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19 at 518-519, citing, inter alia, Maxwell v Murphy (1957) 96 CLR 261 at 267, [1957] HCA 7, per Dixon CJ.

  4. The High Court, however, in Rodway, excepted from the stated presumption statutes that affect “mere matters of procedure” – and immediately observed the difficulty of drawing the distinction between substantive law and procedure. Interestingly in the context of the present case, their Honours nominated as an instance of a procedural statute “[a] statute which prescribes the manner in which the trial of a past offence is to be conducted”– and therefore exempt from the presumption against retrospectivity “provided that they [ie procedural statutes] do not affect existing rights or obligations”. Their Honours went on (at 521):

“But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has vested right in any form of procedure …”

  1. The statute that was in issue in Rodway removed, by amendment, a pre-existing requirement that, in relation to charges of certain sexual offences, the evidence of a complainant be corroborated. The amendment came into force after Mr Rodway was charged, but before he was committed for trial, and, obviously, before the trial began.

  2. The High Court held (i) that the amendment was procedural in character as it did not operate to affect Mr Rodway’s existing rights or obligations and was therefore outside the presumption against retrospectivity; and (ii) that, in any event, the amendment was intended to alter the existing law in respect of corroboration. It therefore came within the recognised exception to the presumption against retrospectivity.

  1. The reasoning in Rodway is directly apposite to the present case. Section 80AF did not affect any existing rights or obligations; that was because, if the appellant committed the conduct alleged against him at any time during the period encompassed by the charges in the indictment, he was guilty of a criminal offence and liable to be convicted and subjected to criminal punishment. It is true that, depending on whether the conduct alleged in each of the pairs of charges pleaded in the 29 November indictment was shown to have been committed before 8 June 1984 or on or after that date, the appellant was exposed to different penalties; that is accommodated in the 5 February indictment, in which he was charged, as required by subs (2) of s 80AF, with the offence that carries the lesser penalty. Section 80AF did not expose him to greater punishment than that to which he would have been exposed prior to its enactment.

  2. On behalf of the appellant it was argued, contrary to the conclusion stated above, that the effect of s 80AF is substantive and not merely procedural because, it was contended, s 80AF affects a pre-existing substantive right of the appellant and therefore comes squarely within the presumption against retrospective operation. The “pre-existing substantive right” was identified as “the right not to be convicted of an offence unless the prosecution is able to prove that the particular offence charged [scil – “offence-creating provision”] was in force at the time of the alleged conduct which the prosecution asserts constitutes that offence”.

  3. I reject that characterisation of the appellant’s “substantive right”. I accept that he had a (relevant) substantive right to be free of conviction of and punishment for conduct that was not an offence at the time that it was committed. But, as I have noted above, there was no time during the range of dates spanned in the 5 February indictment (as amended on 19 February) that the conduct charged would not have constituted a sexual offence for which he was liable to be convicted and punished. Section 80AF did not affect the appellant’s substantive right so characterised. To classify the provision as substantive and therefore deny it retrospectivity would undermine the legislative intention and deprive it of much of its effectiveness. In concluding that s 80AF is procedural and not substantive I do not rely on the language used by the Attorney General (“the bill makes three procedural reforms”), which I do not consider to have been used with that distinction in mind.

  4. That conclusion is in line with the first strand of the conclusions in Rodway, which, in my opinion, is directly applicable to the present circumstances. The second strand is equally applicable – that, even if the effect of s 80AF is substantive and not procedural, it was clearly intended to alter the existing law with respect to proof of sexual offending against children. The authorities on retrospectivity invariably recognise the entitlement of the legislature to take that course, provided that it does so unmistakably (“with reasonable certainty” – Maxwell v Murphy; “expressly or by necessary implication” – Rodway).

  5. Section 80AF has to be interpreted in the context of the circumstances in which it came to be enacted. As I have outlined at the commencement of these reasons, the enactment of s 80AF was in direct response to what was perceived to be (and clearly was) a problem in the prosecution of what have come to be called “historic sexual offences” against children. The Royal Commission into Institutional Responses to Child Sexual Abuse recognised that disclosure of sexual misconduct towards children is commonly not reported for many years. The Joint Select Committee of the NSW Parliament (see [13] above) identified some of the problems of proof that result from those delays. The Second Reading Speech of the Attorney General (see [15] above) explicitly states the purpose of the provision.

  6. Disposal of these contentions does not necessarily conclude the issues raised on behalf of the appellant, who had another string to his bow. That was an argument that the criminal proceedings against the appellant had already commenced (with the presentation of the 29 November indictment and his arraignment thereon) and that, accordingly, the proceedings were “pending”, and that particular considerations arise in those circumstances.

  7. This argument drew significantly on a decision of this Court in Lodhi v R [2006] NSWCCA 121. The decision in Lodhi involved charges of terrorism offences under the Criminal Code (Cth). Relevant provisions of the Code were amended after Mr Lodhi had been arraigned and had pleaded not guilty. Spigelman CJ, with whom McClellan CJ at CL and Sully J agreed, recognised (at [23]):

“… a body of case law in which retrospectivity with respect to pending proceedings is treated as a distinct category.”

  1. That proposition calls for some consideration of when a criminal trial is “pending”. Both statute and case law support the appellant’s contention that the criminal proceedings against the appellant had commenced by no later than 29 November 2018, with his arraignment on the 29 November indictment, and his plea of not guilty to each count. In GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230 Beazley JA, with whom Buddin J and Barr AJ agreed, said (at [63]):

“The question as to when a trial begins depends upon both or either the common law or statute of the relevant jurisdiction … in New South Wales, it has been held that a trial does not begin until the accused person has been arraigned”,

citing R v Nicolaidis (1994) 33 NSWLR 364, and at [68], Truong v The Queen (2004) 233 CLR 122; [2004] HCA 10; and others.

  1. Section 154 of the Criminal Procedure Act provides:

“Plea of ‘not guilty’

154    If an accused person arraigned on an indictment pleads ‘not guilty’, the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.”

  1. Section 130 of the Criminal Procedure Act relevantly provides:

“Trial proceedings after presentation of indictment and before empanelment of jury

130   …

(2)    The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

(3)     If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled—

(a)     the proceedings are part of the trial of the accused person, and

(b)     the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.

…”

  1. In R v Taylor [2003] NSWCCA 194 (at [154]) Bell J (with whom Spigelman CJ and Miles AJ agreed) said that the “institution and conduct of proceedings on indictment [in the Supreme Court] is governed by the provisions of the Criminal Procedure Act”. (The same plainly applies to proceedings in the District Court). By reference to s 154, her Honour considered that the proceedings in that case were instituted no later than on the arraignment of Mr Taylor on an indictment when he entered a plea to a charge of murder. That was so notwithstanding that Mr Taylor had later been rearraigned on a new indictment in identical terms. In the course of her reasons Bell J also made reference to s 130.

  2. In R v Nicolaidis at 367 Gleeson CJ, with whom Smart and Studdert JJ agreed, observed:

“The arraignment marks the commencement of a trial by jury.”

  1. What followed immediately indicated that what his Honour had in mind was arraignment in the presence of a jury panel. However, he also made reference to the practice that then existed in the District Court of arraignment prior to the date on which the hearing of the allegations against the accused person was to commence, for the purpose of pre-trial case management – a procedure which has since been formalised in s 130.

  2. The observation that arraignment marks the commencement of a trial by jury was taken up by Howie J in R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 at [219].

  3. I do not understand the Crown to have contested the proposition that the proceedings against the appellant commenced on or before 29 November 2018. The principles stated by Spigelman CJ in Lodhi are applicable.

  4. Spigelman CJ may be taken to have accepted (at [35] in Lodhi) reasoning in United Kingdom cases and in Moss v Donohoe (1915) 20 CLR 615; [1915] HCA 61:

“… that an overtly retrospective statute, which may have the effect of making past acts criminal, will not be understood to be applicable to criminal proceedings that have already been instituted, unless the Court can identify express words or a necessary intention that that is the intention of Parliament.”

  1. His Honour observed that, of particular significance in that case, was the fact that retrospective effect was sought to be given to a provision creating a criminal offence (at [43]). He considered that “Parliament is ‘prima facie expected to respect’ the principle that a statute will not retrospectively alter a criminal offence where a trial has commenced” (at [49]). His Honour concluded (at [50]) that, in that case, Parliament had not indicated with sufficient clarity an intention that the amendment apply to criminal proceedings already commenced – “on which criminal issue was joined”.

  2. Even accepting, as I do, that, in this case, the criminal proceeding against the appellant commenced with his arraignment on the 29 November indictment, I am not persuaded that these observations of the Chief Justice have a material bearing on the present case. That is because s 80AF does not “have the effect of making past acts criminal”; nor does it create a criminal offence; nor, indeed, does it even alter (as was the case in Lodhi) a pre-existing criminal offence. It does no more than facilitate the proof of criminal conduct as an offence, whatever nomenclature was used in the offence-creating provision.

  3. I would, accordingly, reject grounds 1 – 4. I find it unnecessary to address the Crown’s further contentions that the acquiescence of counsel for the appellant at trial should operate to deprive him of the benefit of the principles of law concerning retrospectivity.

Ground 5: count 14

  1. As finally pleaded, after the various amendments set out above, count 14 alleged an offence against s 78K, committed between 6 July 1985 and 31 December 1987, when the complainant was 14-16 years of age. The sole ground of appeal in relation to count 14 is that it was statute-barred. That was because s 78T(1) of the Crimes Act provided:

“No prosecution in respect of any offence under section 78K … shall, if the person upon whom the offence is alleged to have been committed was at the time of the alleged offence over the age of 16 years and under the age of 18 years, be commenced after the expiration of 12 months from the time of the alleged offence.”

  1. From 6 July 1987 the complainant was over the age of 16 years. The period during which the offence was alleged to have been committed extended beyond that date, for a further 5½ months. Accordingly, prosecution for an offence alleged to have been committed during that period of time had to be commenced within 12 months of the date on which the offence was alleged to have been committed. The evidence does not disclose with precision when the appellant was first charged, but it was well outside the 12 month period allowed by s 78T(1).

  2. The Crown sought to maintain the verdict of guilty on count 14 by pointing to evidence that supported a view that, at the time the conduct the subject of the charge was committed, the complainant was under the age of 16. In his evidence, the complainant said that he was between 14 and 15 at that time, and he said that sexual activity between him and the appellant ceased when he was 15. Accordingly, the Crown argued, the jury convicted on the premise that the complainant was, at the time of the conduct, 15 years or younger. That, however, is no answer. Section 78T(1) was directed to when the offence was alleged to have been committed. The framing of the count in the indictment incorporated a period that was subject to the time limit.

  3. The Crown also pointed to authority (CJW v R [2018] NSWCCA 80) that, as a general rule, allegations as to date in the indictment are not “of the essence” but acknowledged that an exception exists where the range of dates during which the offence is alleged to have been committed is an essential element which has to be proved beyond reasonable doubt. The former proposition may be correct, but it is difficult to see how that principle can apply in a case where a specific date (in this case, the date on which the complainant attained the age of 16 years) is an essential fact in the prosecution. This case comes within the recognised exception. The contention is rejected.

  4. The Crown’s final argument was to invoke the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) on the basis that, had attention been drawn to the relevance of the dates, an application could have been made to amend the indictment so that the dates reflected the evidence (as had, in fact, in the case of other counts, happened). No authority was cited for the proposition that the proviso could apply to defeat a statutory time limit, and the proposition is contrary to principle. I reject it.

  5. Ground 5 of the appeal must be upheld, and the conviction on count 14 quashed. That makes it necessary to consider the application for leave to appeal against sentence.

Sentence

  1. Although grounds 7 and 9 of the Notice of Appeal asserted, respectively, that both the aggregate head sentence and the aggregate non-parole period were manifestly excessive, no argument was directed to either of those propositions, and, indeed, senior counsel for the appellant said in oral submissions that the application was only pursued in the event that the conviction appeal succeeded; and, further, that no issue was taken with any of the findings of fact or determinations made by the sentencing judge.

  2. My conclusion with respect to count 14 carries the consequence that the sentence imposed must be set aside and the appellant resentenced. It is appropriate, in the circumstances, to undertake that task on the basis of the findings of fact and conclusions drawn by the sentencing judge.

  3. The sentencing judge found, consistently with the jury verdicts, the facts on which she proceeded to sentence. She set out, in some detail, the facts of the offences of which the appellant was convicted. The first took place on his first meeting with the complainant. The complainant, with his brother and a friend, were at the airport where the appellant worked as a flying instructor, looking at aeroplanes. They came across the appellant who was with a friend. The appellant engaged the boys in conversation and then asked the complainant to “show me your penis”. The complainant complied; the appellant, who was seated in a motor vehicle, reached his hand out of the driver’s side window and touched the complainant’s penis. He invited the boys to return the following day to be shown around the flying school.

  4. The sentencing judge found the offence constituting count 1 to be “below the mid-range of [objective] seriousness, falling towards the lower end of the range of objective seriousness but not at the lowest end of that range”. She indicated that, had she been sentencing separately for that offence, she would have imposed a sentence of imprisonment for 12 months.

  5. The remaining s 81 offences all consisted of acts of fellatio by the appellant on the complainant, in various, but not significantly different, circumstances. The sentencing judge found each to be above the mid-range of objective seriousness for offences of their kind. That assessment could not be, and is not, contested, bearing in mind that an offence against s 81 is an offence of indecent assault, for which the maximum penalty is imprisonment for 5 years. With respect to count 2 the sentencing judge indicated a sentence of 3 years and 3 months; with respect to counts 3, 6, 7 and 13 she indicated sentences of imprisonment for 3 years.

  6. Her Honour found the count 14 offence (homosexual intercourse, subject to a maximum penalty of imprisonment for 10 years) to be in the mid-range of objective seriousness and indicated a sentence of imprisonment for 4 years. With specific reference to the principle of totality, she imposed an aggregate sentence of 7 years and 9 months with a non-parole period of 4 years and 9 months. In doing so she found special circumstances warranting departure from s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which specifies that, in the absence of special circumstances, the non-parole period of a sentence should be not less than three-quarters of the total sentence.

  7. The sentencing judge reviewed in detail the favourable evidence given in the appellant’s case and accepted that he had (in the 32 years since the last of the offences) successfully rehabilitated himself. At the time of sentencing the appellant was 65 years of age; and in poor physical and mental health. His health issues included possible spinal disc herniation and insomnia. He was also diagnosed as suffering from chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He had no criminal history; he had a steady history of employment, having moved between the practice of law, including lecturing in aviation law, and operating as a flying instructor, and, finally, holding a responsible and highly remunerated position with a state government corporation. He had a history of illicit drug use which ceased in January 2001, on his promotion to a senior position at a major corporation.

  8. The appellant has lived an openly homosexual lifestyle from the age of 21 and has been in a stable relationship for 13 years; prior to that, for about 2 years between 1984 and 1986 he was in another same-sex relationship.

  9. During a period in custody on remand the appellant was held in protective custody, at times subject to surveillance for the risk of suicide. He fears for his safety in prison, even in protective custody.

  10. An array of relatives, friends, acquaintances and work colleagues attested to the appellant’s good character.

  11. As the sentencing judge correctly observed, general deterrence is a significant sentencing consideration with respect to offences of this type, including those that were committed long in the past and have not been repeated. Having regard to the appellant’s lengthy history without repetition of offences of any kind, and his now stable domestic circumstances, specific deterrence is of little weight.

  12. There is no reason to depart from the sentencing judge’s assessment of objective seriousness of any of the s 81 offences (it is not necessary to consider the assessment in respect of count 14). In re-sentencing, the seriousness of the conduct should not be under-estimated. The complainant was, at the time of the offences between 10 and/or 11 and 15 years of age. The appellant was, as the sentencing judge described him, “a well-educated, professional man more than twice the age of his teenage victim”.

  13. Applying my own independent assessment to each of the offences, I have come to the view that the appropriate indicative sentences are, in respect of count 1, imprisonment for 12 months, and, in respect of each of the remaining s 81 offences, imprisonment for 3 years. Except for count 2, these sentences coincide with those indicated by the sentencing judge. However, the aggregate sentence must be determined absent any contribution to the overall criminality by the much more serious offence that constitutes count 14. It is inescapable that that offence had a marked effect on the sentencing judge’s assessment of totality, and on the aggregate sentence, both head sentence and non-parole period, imposed.

  1. The aggregate sentence must reflect six counts of indecent assault, one of which was below the mid-range of objective seriousness, the others being of significantly greater than mid-range objective seriousness. I agree with the sentencing judge, for the reasons she gave, that a finding of special circumstances for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act is warranted.

  2. Putting out of mind the aggregate sentence imposed by the sentencing judge, I have come to the view that the appropriate sentence is imprisonment for 6 years with a non-parole period of 3 years and 9 months.

  3. I propose the following orders:

  1. Appeal against conviction on counts 6, 7 and 13 dismissed;

  2. Appeal against conviction on count 14 allowed; verdict of guilty on that count quashed and a verdict of acquittal entered;

  3. Sentence imposed on 13 November 2019 set aside; in lieu thereof, the appellant is sentenced to an aggregate term of imprisonment for 6 years, to date from 26 August 2019 and expire on 25 August 2025, with a non-parole period of 3 years and 9 months that will expire on 25 May 2023.

    1. DAVIES J: I agree with Simpson AJA for the reasons she gives.

    2. BUTTON J: I have had the very significant benefit of reading the judgment of Simpson AJA in draft. I gratefully adopt the conspectus of the history of reform of sexual offences in New South Wales provided by her Honour, the discussion of the background and complex procedural history of this case, and the analysis of the way in which the grounds of appeal were argued.

    3. As for ground 5 to do with count 14, discussed at [60] to [65] of the judgment of her Honour, I respectfully agree and have nothing to add.

    4. I also respectfully agree with the analysis of her Honour of consequent adjustment of sentence, if only count 14 were to be quashed.

    5. With regard to grounds 1 to 4 pertaining to counts 6, 7, and 13, however, I have respectfully come to a different view. Because I understand my view is a minority one, I shall be concise.

    6. My determination of those grounds is arrived at by way of acceptance of a number of propositions, as follows.

    7. The proceedings had commenced (at the latest) when the appellant was arraigned before Judge Bennett SC on 29 November 2018. As her Honour demonstrates at [48] to [54], that proposition is established by statute and case law.

    8. The legislation under consideration commenced on 1 December 2018.

    9. There can be no doubt that Parliament intended that the legislation would capture subsequently commenced proceedings of allegations of child sexual assault said to have been committed before 1 December 2018, perhaps many decades before. That was the whole point of the legislation.

    10. Parliament did not enact a transitional provision that stated explicitly that the enactment was applicable to proceedings that had already commenced.

    11. Nor does any extrinsic material explicitly set out such an intention with regard to pending proceedings.

    12. The social and political context in which the legislation was enacted suggests that Parliament may well have intended that the legislation apply to pending proceedings.

    13. It is quite true that the legislation did not create any new criminal offence, nor expand the elements of any pre-existing offence. It is also true that, at all of the times at which the appellant was alleged to have had sexual contact with the complainant, such contact was a criminal offence, because the complainant was under the relevant age of consent, and there was no lacuna in the operation of the two offences under consideration. And it cannot be said that the appellant had any ongoing “right” to stand trial for an offence on the procedural rules applying to criminal trials on 30 November 2018, the day before the legislation commenced.

    14. Nevertheless, s 80AF of the Crimes Act 1900 (NSW) constitutes a mechanism whereby inculpation is expanded, in the practical sense of the ability of the prosecution to obtain a verdict of guilty in certain circumstances of chronological uncertainty in which a verdict of guilty would not previously have been available. To express things bluntly: the commencement of the legislation has the practical effect that some accused persons who previously would have been at liberty at the conclusion of their trial, having been acquitted, will now be in prison, having been convicted.

    15. Those circumstances could well have applied to the trial of the appellant.

    16. I accept that there is no bright line in the classification of legislative changes as substantive or procedural, and that such a bifurcation has its limits in any event. Even so, the legislation “runs only one way” in a criminal trial: it assists the prosecution to prove its case in particular circumstances in which it may previously have been unable to do so. Unlike, for example, a loosening of the rule against hearsay, it cannot be thought of as sometimes favouring one party and sometimes the other, depending upon the evidence in the trial.

    17. In my opinion, because it is to be thought of as an expansion of inculpation in a real and practical sense, not least in terms of outcomes of criminal proceedings, it is the kind of legislative change that attracts the principles applicable to pending proceedings discussed by Spigelman CJ (with whom McClellan CJ at CL and Sully J agreed) in Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121 at [22] to [56]. I do not understand those principles as applying only to the circumstances that arose in that case, whereby the elements of a criminal offence were sought to be explicitly expanded retrospectively. I respectfully believe that the principles have work to do in a case such as this.

    18. Applying those principles to this legislation, and bearing in mind the complete statutory silence on the question, I am not satisfied that Parliament necessarily intended that the legislation is to apply to the relatively small subset of criminal proceedings for child sexual assault that had already commenced and that would feature the specific chronological problem of proof to which the legislation is addressed. In my opinion, it is not inconceivable that Parliament was determined to make the change to all subsequently commenced proceedings, but content for pending proceedings to be concluded on the basis upon which they had started.

    19. To adopt the words of Spigelman CJ at [50] with regard to capture of pending criminal proceedings by legislation enacted after the commencement of those proceedings, in my opinion “Parliament has not indicated an intention to achieve that result with sufficient clarity”.

    20. As for the acquiescence of defence counsel at trial in the amendment of the indictment founded upon the applicability of the legislation to commenced proceedings, I would not rely on that to deny the grounds success. Quite apart from the question of whether defence counsel had reflected upon the submission made in this Court that I respectfully believe is correct, to reject these grounds would permit the prosecution to have relied upon legislation that I am not satisfied was applicable.

    21. With regard to remedy consequent on my opinion, because it is not absolutely clear to me that counts 6, 7, 13 were doomed to fail because of chronological uncertainty, I would not enter a verdict of acquittal on those counts. Instead, I would order a new trial of each of them, and leave the question of whether such a trial should proceed to the determination of the Director of Public Prosecutions.

    22. Finally, adoption of my view would require a different resentencing exercise, one that is founded only on the convictions on counts 1, 2 and 3. But because my opinion is not efficacious, I shall not embark upon that merely theoretical task.

    23. In accordance with that limitation, the orders that I propose in contrast to those of Simpson AJA are:

    1. Appeal against conviction on counts 6, 7 and 13 allowed.

    2. Those convictions are quashed, and a new trial is to be had on those counts.

**********

Decision last updated: 09 July 2021

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