Xerri v The King

Case [2024] HCA 5

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, STEWARD, GLEESON AND JAGOT JJ

BRIAN XERRI  APPELLANT

AND

THE KING  RESPONDENT

Xerri v The King

[2024] HCA 5

Date of Hearing: 18 October 2023
Date of Judgment: 6 March 2024

S76/2023

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

N M Steel with R J Rodger for the appellant (instructed by Ryan Payten Le)

H R Roberts SC with B A Hatfield SC and E S Jones for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Xerri v The King

Criminal law – Sentence – Calculation – Statutory interpretation – Maximum penalty – Persistent child sexual abuse offence – Where s 66EA of Crimes Act 1900 (NSW) came into effect from 1 December 2018 with maximum penalty of life imprisonment – Where previous s 66EA of Crimes Act provided for maximum penalty of 25 years – Where appellant pleaded guilty to offence of being an adult who had maintained an unlawful sexual relationship with child – Where appellant sentenced under current s 66EA to eight years imprisonment – Where maximum penalty of life imprisonment served as "valuable guidepost" in sentencing – Where appellant's offending occurred prior to commencement of current s 66EA and appellant pleaded guilty after current s 66EA commenced – Whether replacement of s 66EA of Crimes Act constituted new offence or increase in penalty for "offence" which already existed for purposes of s 19 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Procedure Act") – Meaning of word "offence" in s 19 of Procedure Act – Where retrospective operation of s 66EA offence – Whether maximum penalty for offence committed by appellant remained 25 years imprisonment by operation of s 19 of Procedure Act – Whether significant differences between former and current s 66EA of Crimes Act such that they are not same offence.

Words and phrases – "child sexual abuse", "differences of substance", "increased penalty", "life imprisonment", "maximum penalty", "new offence", "offence", "persistent sexual abuse of a child", "retrospective", "retrospective offence", "sentence".

Crimes Act 1900 (NSW), s 66EA.
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 25AA.

  1. GAGELER CJ AND JAGOT J. This appeal turns on the proper construction of the new s 66EA of the Crimes Act 1900 (NSW) ("the Crimes Act"), which was introduced by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) as part of a suite of legislative reforms responsive to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission").[1] It also raises the proper construction of s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act"), which regulates the effect of any Act or statutory rule that increases the penalty for an offence.

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AGLC
Xerri v The King [2024] HCA 5
Case
[2024] HCA 5
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Xerri against his sentence for an offence under section 66EA of the *Crimes Act 1900* (NSW). The dispute concerned whether the appellant should be sentenced under the current version of section 66EA, which carries a maximum penalty of life imprisonment, or the previous version, which had a maximum penalty of 25 years imprisonment. The appellant's offending occurred before the commencement of the current section 66EA, but he pleaded guilty after its commencement.

The central legal issue before the High Court was whether the legislative amendment to section 66EA constituted an increase in the penalty for an existing offence, thereby engaging section 19 of the *Crimes (Sentencing Procedure) Act 1999* (NSW). Section 19 provides that an increased penalty only applies to offences committed after the commencement of the amending Act. The appellant argued that the current section 66EA was merely a reformulation of the former offence, and thus section 19 should apply, limiting the maximum penalty to 25 years. Conversely, the Crown contended that the amended section 66EA created a new and distinct offence, meaning section 19 was not applicable.

The High Court, by majority, dismissed the appeal. The Court reasoned that the current section 66EA, with its significantly increased maximum penalty of life imprisonment and other substantive differences from the former provision, constituted a new and distinct offence. Therefore, section 19 of the *Crimes (Sentencing Procedure) Act 1999* (NSW) did not apply to the appellant's offending, which occurred prior to the commencement of the amended section. The Court also considered section 431A of the *Crimes Act 1900* (NSW), concluding that it did not apply to offence provisions enacted after its own commencement.

Consequently, the appeal was dismissed, and the appellant was sentenced under the current section 66EA, with the maximum penalty of life imprisonment serving as a guidepost for sentencing.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ JAGOT J (dissent) GORDON, STEWARD AND GLEESON JJ (dissent)
After the hearing, the Court granted leave for the proceedings to be reopened to allow for the filing of supplementary submissions regarding s 431A of the Crimes Act. Section 431A was enacted in 1989 to provide certainty in respect of the terms of imprisonment then mandated for serious offending. It did so by specifying that a person is not liable to the punishment of penal servitude for life for any offence except murder or an offence carrying that punishment under the Drug Misuse and Trafficking Act 1985 (NSW), and offence provisions carrying a maximum sentence of life imprisonment at the time were amended to substitute "25 years" and not "life" as the maximum period of imprisonment.[28] That s 431A(2) was not amended to refer to s 66EA or the new s 66EA is immaterial as s 431A, construed in its context, does not apply to offence provisions enacted after that date (the inclusion of some such provisions in s 431A(2) being a matter of abundant caution and not necessity).[28]See Crimes (Life Sentences) Amendment Act 1989 (NSW).Conclusion These conclusions mean that the Crown's notice of contention does not arise for determination. They also mean that the appeal must be dismissed. In August 2019, the appellant pleaded guilty to the offence of being an adult who had maintained an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The relationship had taken place between 9 November 2016 and 14 July 2018. Section 66EA was enacted by the Criminal Legislation Amendment (Child Sexual Abuse) Act2018 (NSW) ("the 2018 Amendment Act") with effect from 1 December 2018. In this appeal, there was no dispute that the offence applied with retrospective force.[29] However, it was not agreed that the prescribed sentence for the offence – a maximum penalty of life imprisonment – also applied with retrospective effect. The appellant contended that he should have been sentenced in accordance with the predecessor to s 66EA – also numbered s 66EA – which provided for a maximum penalty of 25 years imprisonment. That former s 66EA was omitted by the 2018 Amendment Act. The appellant's contention relied upon an application of s 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Procedure Act") to his offending.[29]By reason of s 66EA(7) of the Crimes Act. Section 19(1) relevantly provides that if an Act "increases the penalty for an offence", the increased penalty only applies to offences committed after the commencement of that Act. Here, it was not in dispute that the appellant's offending occurred prior to the commencement of current s 66EA. The principal issue for determination in this appeal is whether the replacement of s 66EA constituted an increase in the penalty for the "offence" already created by former s 66EA. If the current offence is different to the old, and is a new offence, s 19 will not apply. A majority of the Court of Criminal Appeal of New South Wales decided that s 19 of the Procedure Act had no application to the offence with which the appellant had been charged because the current s 66EA had created a new and distinct offence.[30] In his appeal to this Court, the appellant challenges that holding. Relying on the dissenting reasons of Hamill J, he submits that a close analysis of the offence created by former s 66EA and that created by current s 66EA shows that the present provision is merely a reformulation of an offence that had already existed.[31] Because that reformulation included an increase in the penalty for that offence, s 19 of the Procedure Act applied.[30]Xerri v The Queen (2021) 292 A Crim R 355 at 374 [100] per Price J (with whom Bell P agreed).[31]Xerri v The Queen (2021) 292 A Crim R 355 at 383-385 [156]-[164].

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ,

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