CRIMINAL LAW – appeal against sentence – s 66EA(1) maintaining an unlawful sexual relationship with a child – unlawful sexual acts committed prior to the repeal of the predecessor offence – Ground 1 whether maximum penalty for the offence was life imprisonment or 25 years imprisonment – whether intent of legislation was to operate retrospectively – whether s 19(1) of the Crimes (Sentencing Procedure) Act (CSP Act) applies – whether s 66EA was enacted as a new offence – consideration of differences between predecessor offence and current offence – consideration of s 25AA(4) CSP Act – whether the intent of the Parliament is clear from text of the offence – consideration of Second Reading Speech – Ground 1 dismissed by majority
CRIMINAL LAW – whether error in imposing sentence for s 166 related offence first – whether error in accumulation – Ground 2 dismissed by the Court
CRIMINAL LAW – whether sentence manifestly excessive – Ground 3 dismissed by majority
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Xerri v R [2021] NSWCCA 268
Case
[2021] NSWCCA 268
Decision Date
CaseChat Overview and Summary
The appellant, Xerri, appealed against his sentence for maintaining an unlawful sexual relationship with a child, contrary to s 66EA(1) of the Crimes Act. The appellant's appeal was heard by the Court of Criminal Appeal, which considered the arguments put forward by the appellant's counsel and the submissions from the respondent. The court was required to determine whether the maximum penalty for the offence was life imprisonment or 25 years imprisonment, whether the intent of the legislation was to operate retrospectively, and whether s 19(1) of the Crimes (Sentencing Procedure) Act (CSP Act) applies.
The court considered whether the maximum penalty for the offence was life imprisonment or 25 years imprisonment, and whether the intent of the Parliament was to operate retrospectively. The court found that the maximum penalty for the offence was 25 years imprisonment, and that the intent of the Parliament was not to operate retrospectively. The court also found that s 19(1) of the CSP Act did not apply to the appellant's case, as the offence was not a new offence but rather a continuation of a predecessor offence. The court considered the differences between the predecessor offence and the current offence, as well as the text of the offence and the Second Reading Speech. The court found that the intent of the Parliament was clear from the text of the offence, and that s 66EA was not enacted as a new offence.
The court also considered whether there was an error in imposing the sentence for the related offence under s 166, and whether there was an error in accumulation. The court found that there was no error in imposing the sentence for the related offence, and that there was no error in accumulation. Finally, the court considered whether the sentence was manifestly excessive, and found that it was not. The appeal was dismissed by the majority.