Xerri v The King

[2023] HCATrans 142

[2023] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S76 of 2023

B e t w e e n -

BRIAN XERRI

Appellant

and

THE KING

Respondent

GAGELER J
GORDON J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERA ON WEDNESDAY, 18 OCTOBER 2023, AT 9.47 AM

Copyright in the High Court of Australia

MR N.M. STEEL:   Your Honours, I appear with MS R.J. RODGER for the appellant.  May it please the Court.  (instructed by Ryan Payten Le)

MS H.R. ROBERTS, SC:   May it please the Court, I appear with MR B.A. HATFIELD, SC and MS E.S. JONES for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER J:   I noticed that the estimates of time seem rather generous.  How long do you expect to be, in practice, Mr Steel?

MR STEEL:   Your Honour, I was thinking I would be 45 minutes to an hour.

GAGELER J:   And Ms Roberts?

MS ROBERTS:   Yes, I would be able to give a similar estimate, your Honour.

GAGELER J:   Yes, thank you.  Very well.  Mr Steel. 

MR STEEL:   Yes.  Thank you, your Honour.  Your Honours, can I start by indicating there were two documents that we were seeking to hand up, to which I understand there may be no objection to.  One of them, in turn, is the second reading speech for the Crimes (Sentencing Procedure) Amendment Bill, which introduced a new section, 21B, into the Crimes (Sentencing Procedure)Act, which has been referred to in these written submissions of the appellant.

The other document is a document that shows the change in section 25AA, from just prior to the amendment, where 21B came in force, where certain provisions were applied not merely to child sexual offences but to all offences. Then it shows 25AA, as it appears now that 21B is in force with various provisions no longer being in force. Could I hand copies of those to the Court?

GAGELER J:   Yes.

MR STEEL: Your Honours, the primary appeal in this appeal is whether a new maximum penalty of imprisonment for life for an offence of persistent sexual abuse of a child contrary to section 66EA of the Crimes Act (NSW) has retrospective application when at the time of the appellant’s offending the applicable maximum penalty was 25 years’ imprisonment. The appellant submits that the current section 66EA is partly retroactive, that is, that it operates retrospectively but for the maximum penalty due to the operation of section 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as made clear by section 25 of that Act, which is one of the documents that I have just handed up.

The current section 66A provision was enacted in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The earlier or predecessor form of section 66A had been in force in New South Wales since 1999. In the second reading speech for the Bill that introduced the current section 66A, the New South Wales Attorney‑General noted the interpretation of the predecessor offence that meant that specific particulars of individual occasions of incidents of abuse that were required was undermining the operation of the offence. The Attorney‑General went on to say that the Royal Commission made detailed recommendations for a new way of reformulating the offence, and that the Bill amends the Crimes Act to introduce this model in New South Wales.

So, the same amendment Act that resulted in the enactment of the current section 66A offence also introduced a new section 25AA into the Crimes (Sentencing Procedure) Act with the total sentencing for child sexual offences, and that provided in subsection (1) that:

A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

This was a change from the previous sentencing practice, and it was recommended by the Royal Commission. Section 25AA(4) provides that:

This section does not affect section 19.

Section 19(1) of the (Sentencing Procedure) Act 1999 (NSW) provides:

If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

In the case of MJR, Chief Justice Spigelman observed that section 19(1):

reflects a principle of perceived fairness applicable to maximum and minimum penalties –

when there has been a change in penalty. The appellant argues that the majority of the Court of Criminal Appeal – President Bell, as his Honour then was, and his Honour Justice Price – erred in upholding that it was correct for the appellant to be sentenced on the basis that the maximum penalty was imprisonment for life. The appellant maintains that his Honour Justice Hamill was correct in his minority judgment that the operation of section 19(1) of the Crimes (Sentencing Procedure) Act had the effect that the appropriate maximum penalty to which the appellant was liable was that which was applicable at the time of his offending, which was 25 years’ imprisonment.

GAGELER J:   Do you say something different from what is said in the dissent?

MR STEEL:   No.  We only may say additional things.

GAGELER J:   And in outline, what additional things do you say?

MR STEEL:   So, the additional things in terms of – we refer to a case of Cooper v State of Western Australia where the Western Australian Court of Appeal – the three judges in that case – applied a principle where there is a change in penalty where there has been a repealed offence, as opposed to a self‑same offence, that it would be too narrow to simply restrict the operation of whether a person was entitled to the benefit of the change simply by looking at precise same offences. 

The court, in that case, took the view that if the elements of the repealed offence were included within the new offence, that a broad interpretation should be taken so that, in fairness to the offender, they receive the benefit of the change, whether it is a reduction in penalty or whether the lower penalty applies prior to an increase in penalty.

STEWARD J:   The issue in that case, though, was really whether section 10 applied to replacement provisions, as distinct from merely amending the section.  Is that not right? 

MR STEEL:   I think so, yes.  Whether it went that far, in terms of whether there would be a narrow interpretation or a broad interpretation. 

STEWARD J:   In that case, they found that the replacement provision had the same legal elements.

MR STEEL:   In effect, yes.

STEWARD J:   Is that any different to the test propounded by the respondent here?

MR STEEL:   We would say that, to a large degree, the legal elements in the predecessor offence are incorporated in the current offence.  There is one particular difference in terms of a decision that was made by the Court of Criminal Appeal this year of MK v The King; RB v The King, where it was held that there is an additional requirement of the current section 66EA offence, that the element of the offence requires proof of a relationship; a relationship in which the unlawful sexual acts were committed. So, that is something that did not arise in the predecessor offence but does arise in the current offence.

We say the practical effect of that is, with the predecessor offence, to be guilty under the predecessor offence there had to be – three child abuse offences had to be committed.  Under the current offence, a lower amount of two are required.  The current situation is that if a person was liable under the previous offence because they would have committed a minimum of three child abuse offences, on that basis they would be caught within the current provision.  But if that occurred in the context where there was no ongoing relationship above the sexual conduct, they would not be liable under the new section.

GLEESON J:   Could Mr Xerri have been charged on the basis of only two sexual acts?

MR STEEL:   Well, because both provisions – one has three or more, he could have been charged on the basis of only two.

GLEESON J:   Then what would the maximum penalty have been?

MR STEEL:   So, he could not have been charged at the previous – the predecessor offence merely on two.

GLEESON J:   That is right.

MR STEEL:   But on the current offence, he could be charged merely on two.

GLEESON J:   With a maximum penalty of life.

MR STEEL:   In the current offence?

GLEESON J:   Yes.

MR STEEL: Yes, if section 19(1) did not apply, whereas we say that it should apply.

GLEESON J:   Well, how could it have applied if, on the basis of two unlawful sexual acts, he could not have committed the predecessor offence?

MR STEEL:   So, because the predecessor offence included at least the minimum requirements in terms of that requirement, we say that – and because there is not merely two, it is two or more in the current provision, so the same level of offences that he did actually commit, which was far more than two, would be caught by both provisions.  So, he would be guilty on both on that basis.  And in his case, there was no dispute that there was a relationship in which the sexual offence occurred.

Our position is that because the earlier provision required at least three sexual offences, in those circumstances it is likely that – or it is difficult to envisage a situation where there would not have been some sort of a relationship over and above the sexual offending.  So, some sort of relationship, neighbours, there is examples in the case of MK v The King as to what sort of relationships they might be.  There could be all sorts of different types of relationships where an offender would have access to a child, familial contexts, various other contexts, but it is in that context where, from that case of MK v The King, that the sexual offending has to occur.

Our submission is, really, it is unlikely under the predecessor offence, given that there has to be at least three, there would not have been some relationship.  Obviously, if there was an incidence where there was no relationship – because the current offence requires that – they would not be liable under the current offence, but they would be liable under the predecessor offence.  But we would submit that would be a rare case.

GAGELER J:   So, Cooper v Western Australia is an additional argument.  Was there something else you wanted to highlight?

MR STEEL:   If I might just have a moment.  Just in terms of – there is another matter that I would like to raise.  Some of the authorities in this case, such as Ronen, that deal with this test – in Cooper v Western Australia, they had considered a case of R v Melville, a 2003 Western Australia case.  In that case there was discussion as to the maximum penalty for an offence in terms of a sexual offence.  The majority of the court made certain comments in terms of the position in terms of the common law in relation to the operation of maximum penalties.  I will just see if I can turn that out.

STEWARD J:   I think it is paragraph 131, where they say that the word “offence” can mean:

conduct which is punishable by a written law.

MR STEEL:   Yes, that is correct.  So, the issue with the case in Melville is that the court in Cooper applied the decision of the majority in that case, but in the cases of Ronen, Justice Howie – I believe it was in that particular case – preferred the position of the minority judge.  So, it took a different pathway from the pathway the Western Australian court has.  There is another case relied on in the Crown’s submission:  Commissioner of Taxation v Price.  In that case, they had regard to the earlier judgment of Justice Whealy in Ronen – who did the original trial – where he had also preferred the same view of the minority in Melville.  That was taken into account in the matter of Commissioner of Taxation v Price.

The appellant’s position is, given that in Melville and in Cooper those authorities were – where they took a broad approach to the interpretation of increases or decreases of maximum penalties, whether they apply to self‑same offences or offences of the precise same offence – it took a bit of a detour from the common law.  We would submit the correct approach is there should not be a narrow interpretation because it denies the benefit that was always recognised as a fundamental aspect of a criminal law.  If the penalty increases, the offender gets the benefit of the previous lower sentence, but if it decreases, then they also get the benefit of the changed attitude of Parliament to that sort of offending. 

GAGELER J: Mr Steel, there is a question I want to ask about how you reconcile the application of these provisions. So, you say section 66EA applies, and you say also that section 19 applies. How then do you deal with section 66EA(8)?

MR STEEL:   Can I just turn that up, your Honour? 

GAGELER J:   Yes.  Particularly (b), the bracketed words.

MR STEEL:   So, just in terms of this particular issue, the Court really needs to have regard to what was the model offence proposed by the Royal Commission.  If I can take your Honours to that.  If your Honours have the joint appeal book at 791 ‑ ‑ ‑

GORDON J:   This is tab 28 of the book?

MR STEEL:   Yes, sorry, the joint book of authorities, your Honours.  I said the wrong book – I apologise if I have, your Honours. 

GAGELER J:   The page number, please?

MR STEEL:   Page 791.  So, it is the large book of all the various case authorities.  Do your Honours have those materials?

GAGELER J:   I think we do. 

MR STEEL:   At 790, the draft provision that was recommended by the Royal Commission in relation to the proposed 66EA offence – and equivalents for other States, et cetera – commences there.  You will see that subsection (8) in that proposed model indicated that:

A court that imposes a sentence for an unlawful sexual relationship offence constituted by an unlawful sexual relationship that is alleged to have existed wholly or partly before the commencement of this section must, when imposing sentence, take into account:

(a)the maximum penalty for the predecessor offence, if the predecessor offence was in force during any part of the alleged period of the unlawful sexual relationship, and

(b)the maximum penalty for the unlawful sexual acts that the unlawful sexual relationship is alleged to have involved, during the period of the unlawful sexual relationship, if the unlawful sexual relationship is alleged to have existed wholly or partly before the commencement of the predecessor offence.

You can see there that that provision, section (8), has not been replicated in the current section 66EA, in New South Wales. The second portion, (b), may have, but the first portion, where the maximum penalty for the predecessor offence:

if the predecessor offence was in force during any part of the alleged period of the unlawful sexual relationship –

is not included as something that the court has to take into account in the current provision in New South Wales. 

GLEESON J:   So, subsection (8) is looking at the maximum penalty for each of the unlawful sexual acts?

MR STEEL:   Well, part (b) is, but part (a) is actually directing the court to look at the maximum penalty for the predecessor offence – which, in this case, would be 25 years – when sentencing ‑ ‑ ‑ 

GLEESON J: I am sorry. I have gone back to the actual section 66EA(8) as enacted.

MR STEEL: Yes, that is right. The current section 66EA is only, really, looking at the maximum penalty for the unlawful sexual acts. So, that is for the actual – if you go to the definitions there, those particular offences, not the actual predecessor offence. The provision, and the Attorney‑General in the second reading speech, did not say how previous maximum penalty of section 66EA was to be taken into account. It is our submission that ‑ ‑ ‑

STEWARD J:   So, just – I am sorry, Mr Steel.  Are you saying with the current 66EA(8), when it refers to:

must take into account . . . the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

You are saying that that is not a reference to the predecessor 66EA?

MR STEEL:   That is correct, and it has been interpreted ‑ ‑ ‑ 

STEWARD J:   Well, what is the reference to?

MR STEEL:   Well, if your Honour goes over to page 19, “unlawful sexual act” is defined, and it includes all of those things, which does not include the predecessor offence.

GLEESON J:   Subsection (15)?

MR STEEL:   Subsection (15), that is correct, your Honour.

STEWARD J:   Thank you.

MR STEEL: Now, our submission why that is not in the provision in New South Wales is because an inference can be drawn that it was anticipated that section 19(1) would apply, so that the court would be applying the lower maximum penalty of 25 years, in which case that provision in the model offence by the Commission would not be required. So, it is our position that it can be inferred that Parliament has made a choice to enact it without putting any fetter or any indication that there would be a disapplication of section 19(1) for when the new provision came into force.

STEWARD J:   Be that as it may, though, does the reference to these sections and section 15 not mean that subsection (8) is assuming that there has been a retrospective rule for sentencing as well as a retrospective rule for the offence itself?

MR STEEL:   Not necessarily, because the former Act had the same provisions.  If you go to page 15, they had the ‑ ‑ ‑

STEWARD J:   Page 15 of?

MR STEEL:   Sorry, the joint book of authorities, which has the – page 15 has the previous version of the offence, and you can see there it is a different definition for “child” and that the “sexual offence” definition – Justice Hamill, in his judgment, indicated that both sections were close to similar to the previous sections, although some of them have changed and the names of ‑ ‑ ‑

GORDON J:   What do we do about subsection (d), which was added in the new 66EA(15)?  Does that alter the argument at all?

MR STEEL:   I would not think so because there are many offences that were amended by the amendment Act, and 66EA is not substantially similar to any of the ones in (a), (b) or (c).  They are standalone type offences of unlawful sexual acts, whereas 66EA is a broad encompassing section where, in the current provision, three or more offences can be taken into account.  So, we say that that definition there is specific to particular sexual offences in the singular but will have to be taken into account when the court is sentencing for what may be multiples and many more in excess of the minimum of two, potentially.

Our position is you would have expected some indication as to how the previous maximum penalty was to be taken into account if section 19(1) was not to apply to the former offence. You would also have expected that there would have been something indicating in the section that section 19(1) does not apply to the former 66EA because it is the only offence in all the offences in New South Wales where section 19(1) would not apply to an increased or decreased maximum penalty if that were the case.

GORDON J:   If we were outlining the argument, it is that 66EA is a new offence because it is not ‑ ‑ ‑

MR STEEL:   So, we are saying it is a reformulated offence, consistent with ‑ ‑ ‑

GORDON J:   Sorry, I am wrong.  That is right.  You say it is reformulated and not a new offence and therefore section 19 cannot apply to it?

MR STEEL: No, we say that section 19(1) does apply to it. The respondent’s submission is that because a new offence is created that section 19(1) has no work to do. We say that Justice Hamill was correct when he found that the offence was a – and I do not have the specific phrase in front of me, but he said that it was a reformulated offence. I took your Honours earlier to the second reading speech where the Attorney‑General said there was a new way of reformulating the offence, and it was reformulated because of the difficulties in proof.

To a large extent, the core elements are the same offence with that one particular difference in terms that there now has to be the unlawful sexual relationship in which the sexual offences occur.  But, otherwise, if you were to look at the sections – if I can take your Honours to that.  So, if you look at ‑ ‑ ‑

GAGELER J:   We are looking at section 66EA and section 19, are we?

MR STEEL: So, section 66EA – I have to make sure I turn up the right one again. So, in terms of the current offence, which is on page 17 of the joint book of authorities, we say that the portions of the particular section that go to the actus reus of the offence are subsection (1), subsection (2), which defines partly what an “unlawful sexual relationship” is with:

2 or more unlawful sexual acts –

then, also, the definition, where you have the indication for an adult and child, and what are the unlawful sexual acts.  So, those are, we say, the core elements of that offence.  If you go back to looking at the earlier offence on page 15, subsection (1) goes to one of the core elements, or actus reus, and that refers to: 

3 or more separate occurring on separate days . . . engages in conduct in relation to a particular child that constitutes a sexual offence –

Then, subsection (12), which has a definition for “child” under that provision, and then “sexual offence”.  Essentially, the core elements of offences are the same, whereas the other provisions are mainly facilitative, particularly in the new section, where subsection (4) are ways of improving the proof of those offences by the difficulties that were with children being able to give particulars, and not requiring particulars for proof, and a new way of formulating the offence.  So, the jury did not need to be laboured by those sort of difficult things where children may be unable to recall specific dates, specific incidents, and they could have a wider consideration of the totality of evidence.

GLEESON J:   Is not that another example of how the new offence could be proved in relation to historical charges, but could not have been proved in relation to the predecessor offence? 

MR STEEL:   That is true.

GLEESON J:   So, what would be the maximum penalty be there?

MR STEEL:   We say that that is not an element of the offence.  We say that is a facilitative, almost evidentiary‑type aspect of the offence, where, really, in terms of looking at the offending conduct, you look at the actus reus of what occurred; the person had to do for the provisions to be engaged.

We say that the underlying core elements are those aspects of the offence.  The various other provisions concern things such as those facilitating aspects to make the offence; to increase the way in which the offence can be proven.  Then, there are also things dealing with what happens in terms of acquittals, et cetera, which do not go to the core elements.  Then, obviously, there is the issue of retrospectivity as well, which does not go to core elements.  So, there are differences in the offences, but when you go down to the core elements of the criminal conduct involved, we say that they are very similar.

The big difference, obviously, is that in the earlier offence you had the three occasions that had to be proved and the child was someone under 18.  In the current offence, only two occasions, as a minimum, have to be proved, and that a child is someone under 16.  Obviously, in the new offence, they have to prove the relationship in which the unlawful sexual acts occurred.  But, as I have already indicated, because there would have had to have been at least three unlawful sexual acts under the old offence, it would be very unlikely that there would not have been some sort of relationship in which they occurred just for the opportunity and access, regrettably.

STEWARD J:   Having regard to what you have shown us from the Royal Commission, do you accept that 66EA(8) reflects the work of a Royal Commission – is the product of it?

MR STEEL:   The one that was not put into the provision?

STEWARD J:   No, the actual one.

MR STEEL:   The one that is in the provision.  It is part of the work, it is not the whole of it.

STEWARD J:   I have not seen an equivalent to subsection (8) in the predecessor provision. 

MR STEEL:   Let me look. 

STEWARD J:   But I may have missed it.

MR STEEL:   Yes.  That is true, your Honour.  It is not in the ‑ ‑ ‑

STEWARD J:   My understanding – and you correct me if I am wrong – is that the Royal Commission formed a view in relation to historical child sex abuse offending that it would be appropriate to have retrospectivity, in particular in relation to sentencing, but that a way of ameliorating the harshness of that recommendation was to recommend a form of the subsection (8) that you showed us from the Royal Commission.  Namely, that you apply a retrospective sentence but you would have to take into account relevant sentencing rules at the time of the commission of the offence.  I am paraphrasing.  Is that understanding right or ‑ ‑ ‑

MR STEEL:   That is, your Honour, but I think the Royal Commission went a little bit further.  If I can just have a moment just to have a look at the draft recommendations.  That is true, your Honour.  It does seem to be that that is the position.  But the way that the New South Wales Parliament has applied that recommendation is they have only put in half of the recommended part of the model provision (8).  They have put in ‑ ‑ ‑

STEWARD J:   Which is (b), is it?

MR STEEL:   Yes, (b).

STEWARD J:   Yes, all right, thank you.

MR STEEL: They have not put in (a). Our position is that it can be inferred that Parliament has made a choice there because nothing is said about the disapplication of 19(1) in the section or in the second reading speech. To not include that suggests that Parliament did not intend to depart in New South Wales from the current 66EA being any different in terms of the operation of section 25AA and section 19(1). Section 25AA brought in a number of different provisions, and I think I refer to my written submissions about triple retrospectivity.

There was a change in which courts were required to no longer sentence in accordance with the standards and approaches of past sentencing but had to sentence now in terms of current sentencing standards, and that was seen in other jurisdictions, the Royal Commission noted, as being criticised for involving the degree of retrospectivity.  This offence also is retrospective in terms of the offence has been made retrospective by subsection (7).

Of course, the further issue which the respondent is contending is retrospectivity is also the penalty. It is our position that it was not the intention of the New South Wales Parliament to add this third element of retrospectivity without section 19(1) applying to it because, as in the examination of Justice Johnson in the case of Corliss, section 19(1) and 25AA were seen as a way of counterbalancing the effects of the changed sentencing practices where they had to sentence in terms of current sentencing standards. So, it is our submission that Parliament in New South Wales has made a choice to enact the legislation in a particular way that means that section 19(1) is not fettered in the way contended by the Crown.

Your Honours, you have my written submissions.  I will just see if there is any – yes.  So, your Honours, the material that I handed up to you earlier ‑ ‑ ‑

GAGELER J:   So, we have a second reading speech and we have another document called Crimes (Sentencing Procedure) Act.

MR STEEL:   That is right.

GORDON J:   These are the ones that effected amendments with effect this year.

MR STEEL:   Sorry, your Honour?

GORDON J:   These are the documents relevant to the amendments that were effected this year.

MR STEEL:   Yes, that is right.  Just in terms of ‑ ‑ ‑

GORDON J:   Why are they relevant to your argument?

MR STEEL:   They are relevant because the same approach has been adopted in terms of current sentencing standards for all offences in New South Wales rather than historic offences, and the Attorney‑General made various comments during the second reading speech ‑ ‑ ‑

GORDON J:   Which bits would you like us to look at?

MR STEEL: Yes, I am just trying to get to that, your Honour. So, could I ask your Honours firstly to have a look at the document with the two versions of section 25AA. You will see there that subsections (1), (2) and (4) have been repealed and these now have been transferred into section 21B. I think that is in the ‑ ‑ ‑

GAGELER J:   Can you just tell us what we are meant to get from these recent amendments?

MR STEEL:   Yes, your Honour.  Mainly what is in the second reading speech, your Honour.  So, you will see there when the – if your Honours go down to – you will see that there is a heading “Leave granted”, and after (g) in the subparagraph, the Attorney‑General says there:

A central tenet of the rule of law is that the law should be knowable and able to be obeyed.  A corollary of this is the fundamental principle of criminal law that a person may only be punished for an act that would have constituted a criminal offence at the time it was committed and should be given no greater sentence than the maximum penalty that would have been available at that time.  That means that where a person is charged with a historical offence, they can only be convicted of an offence that was in force at the time that the act was committed and can only be sentenced in accordance with the maximum penalty and, if applicable, standard non‑parole period that was in place at the time.

That seems to be the approach that has been adopted in terms of wider provision of 21B. 

GAGELER J:   And how do we use that?

MR STEEL: So, there was an opportunity, when these provisions were moved over, for the drafters of the legislation when their changes were being made to 25AA – which is the current provision, and its understanding came into force on 24 January – to make some indication as to whether there was a disapplication of section 19(1) to 66EA offences. There was an opportunity for the Attorney‑General to say something about that in the second reading speech if it was thought that that was an issue that needed to be addressed. There is nothing of that nature in that material where there has been this specific widening of the same principles.

GAGELER J:   This sort of submission can cut both ways because, by this stage, the Parliament can be said to have been apprised of the decision under appeal in this case and did nothing about it.  It does not help much, I think.

MR STEEL:   Yes, correct.  I understand, your Honour.  Your Honours, just while I am on my feet, can I just see, given the way things have evolved, whether there is anything further I need to address?

GAGELER J:   Of course.

MR STEEL: I should just indicate that the appellant’s position with the notice of contention is that, even if the Court found a new section was created – of course, we would say there should be a broad interpretation of the application of section 19(1), even if a new offence is created with slightly different elements that covers, essentially, the same field – in those

circumstances, even if it was the case that the Court found a new or different offence had been created, we would still say that section 19(1) should still have application, so that the lower maximum penalty from an earlier time did apply, applying the approach taken in Cooper v Western Australia. 

The other concluding thing that I wanted to really say is that, in the matter of Stephens v The Queen, which would be familiar to your Honours, it was observed that a statute is not to be construed to any greater extent than the clearly expressed intention that the legislature indicates.  In that case, the Court of Appeal had held that a provision applied retrospectively to trials that had already commenced.  The applicant submits that any intention by the legislature for the maximum penalty for life imprisonment to apply retrospectively has not been clearly expressed.

To the contrary, we submit that the preservation of section 19 in 25AA, and now 21B, was consistent with the fundamental principle of the criminal law that a person who has committed a criminal offence should receive no greater sentence in the maximum penalty that would have been available at the time of the offence.  It is respectfully submitted that the Court should allow the appeal, and remit these proceedings to the Court of Appeal, the Supreme Court of New South Wales, for determination of appeal against sentence.

Thank you, your Honours.

GAGELER J:   Thank you, Mr Steel.  Ms Roberts.

MS ROBERTS:   Thank you, your Honours. Your Honours, there are two aspects to the appellant’s contention with respect to whether section 19 applies, and that is whether the offence – the section 66EA is correctly described or fairly described as a “new offence”, as was held by the Court of Criminal Appeal, and whether the words “an offence” within section 19 appropriately cover the amendments, or not, that were made to section 66EA ‑ ‑ ‑

GAGELER J:   Ms Roberts, could you speak up a little, please?

MS ROBERTS: Yes, I apologise, your Honour. And I will address each, but in our oral outline, we commence with the proposition that the majority of the Court of Criminal Appeal was correct to find that the new section 66EA was a new offence, and not a re‑enactment of, or a continuation of, the predecessor offence with an increased maximum penalty.

“New offence”, of course, is not the expression found in the statute, but it is the expression or phrase used by the Court of Criminal Appeal to describe something which does not come within the proper meaning of “an offence” as that phrase is used in section 19.

GAGELER J:   

Maybe a better way of putting it is a “different offence”.

MS ROBERTS:   Yes, your Honour.  Equally a “different offence” could be used, and we would be equally content with that language.  The background – we do not accept the appellant’s contention or description that the core elements are essentially the same as between the predecessor offence and the new offence.

Whilst it is underlying conduct that may be similar – that is, each of the offences deal with the ongoing sexual abuse of a child – it is our submission that the elements of the two offences are different and deliberately so, or intentionally so. In order to make good this proposition, I do wish to take your Honours just to some aspects of the history in relatively brief terms. Your Honours have already been taken to the original section 66EA offence in New South Wales, the predecessor offence, which commenced in 1999. The Act described the offence as:

A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence –

That offence was enforced between 15 January 1999 until 1 December 2018, when it was repealed and replaced by the current offence which commenced on that date.

GORDON J:   Mr Steel said that he accepted, as I understood his submission, that the one that existed until 1 December 2018 had three occasions, child less than 18, and not a requirement for a relationship to have been proved by the Crown; as distinct from the new offence, which was two occasions, child less than 16, and the maintenance of a relationship.  Is there anything to add to those distinctions?  Because there seems to be common ground at least in respect of those elements.

MS ROBERTS: There is, in our submission, yes, your Honour, which is this: it is the requirement for particulars and the question of jury unanimity that are significant changes as between the offences. That was brought about by and based on the recommendations of the Royal Commission. So, section 66EA(6) of the predecessor offence makes clear, your Honours, that it was necessary for the jury to be unanimously satisfied that on each of three separate occasions the accused engaged in conduct constituting a sexual offence towards the child.

GORDON J:   This is subsection (6)?

MS ROBERTS:   Yes, your Honour.  That offence, the predecessor offence, and similar offences in other jurisdictions were introduced following this Court’s 1989 decision in S v The Queen which made clear the requirement for a complainant in a sexual offence prosecution to be able to particularise an individual occasion of sexual abuse for each individual count on the indictment.  Following S, the first offence in the nature of an ongoing sexual abuse offence to be introduced was in Queensland.  The Queensland provision was considered by this Court in KBT v The Queen in 1997.  That decision is not in the book, your Honours, but it is cited and addressed in MK, the New South Wales Court of Criminal Appeal decision, in some detail.

This Court held in KBT that the Queensland offence, although it did not require the prosecution to prove exact circumstances or dates of the alleged occasions, it was still necessary to identify and particularise three identifiable occasions because of the requirement for jury unanimity with respect to each of the three acts of sexual misconduct constituting the offence.  So, this Court held that the actus reus of that offence – that was the Queensland provision, but it was relevantly similarly worded to the predecessor offence:

is the doing of an act which constitutes an offence . . . in relation to the child concerned on three or more occasions –

rather than maintaining a sexual relationship.  In effect, the amending provisions – that is, the predecessor provision in New South Wales and similar provisions interstate – had not achieved what the legislature had intended them to achieve, which was to overcome ,in some senses, this Court’s decision in S v The Queen and make it easier to achieve a prosecution of ongoing sexual abuse.  That problem is identified and described in the Royal Commission Report.

So, as well as that, studies published as part of the Royal Commission Report – and your Honours can see I am in the joint book of authorities at page 729 at this point – supported the relevantly related propositions that delayed or even very delayed reporting of child sexual abuse is common, with obvious effects upon memory and that, where abuse has “occurred repeatedly and in similar circumstances” on each occasion, it can render a victim or complainant “unable to describe specific or distinct occasions of abuse.”  That was the difficulty of a mischief that the legislature sought to address on the basis of the Royal Commission recommendations.

Following KBT, and by the time of publication of the Royal Commission Report, Queensland and South Australia had each made substantial amendments to their persistent child sexual abuse offences, and these amended offence provisions were discussed in the report.  Focusing on the Queensland offence – which the report described in the joint book at 742, your Honours – the new Queensland offence at that time as:

In Queensland, more than one unlawful sexual act is also required to constitute an unlawful sexual relationship, but the actus reus of the offence is the unlawful sexual relationship and not particular unlawful sexual acts.

One aspect of the South Australian provision that was examined in some detail by the Commission was the requirement in South Australian section for what was referred to as “extended jury unanimity”, which necessarily created the requirement that the prosecution establish two – in South Australia, it was two – individual or separate acts of sexual offending to the satisfaction in respect of each of the entire jury.

The Commissioners – at page 748 of the joint book, your Honours – considered that the requirement in South Australia for “extended jury unanimity” gave rise to a number of risks – “risks” being the word used in the report.  In particular, the risk that even where a jury is satisfied that numerous acts of sexual offending occurred over a number of years, the jury:

may not be able to deliver a guilty verdict –

because of the complainant’s inability to satisfactorily delineate between individual occasions of abuse.  The Commission had received evidence that demonstrated that other than in Queensland the offence provisions were not regularly prosecuted.  So, the Commission has recommended that all States and Territories adopt a form of the offence similar to the Queensland offence, and the recommended model provision – your Honours have already been taken to it, but it appears in the joint appeal book at 795 to 796.  The purpose was to create an offence – and this is at the joint book at page 785, your Honours – that allowed for:

the effective charging and successful prosecution of repeated but largely indistinguishable occasions of child sexual abuse.

The report concluded with the recommendation that they considered:

that the Queensland offence, in making the actus reus the relationship rather than the individual occasions of abuse, provides the best opportunity to charge repeated or ongoing child sexual abuse in a manner that is more consistent with the sort of evidence a complainant is more likely to be able to give.

That purpose was enacted in the new section 66EA and the new offence provision in subsection (1) describes the actus reus as:

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

Subsection (2) provides that:

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.

But in further answer to your Honour Justice Gordon’s question, subsection (5) sets out that:

(a)the jury must be satisfied . . . 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.

In that way, in our submission, it completely changes the elements of the offence, rather than ‑ ‑ ‑

GORDON J:   And so does 6, does it not?  Subsection (6) tells the trial judge he or she must direct in that manner.

MS ROBERTS:   Yes, your Honour. 

GORDON J:   So, the directions are different. 

MS ROBERTS:   Yes, your Honour, they are.  The legislative purpose, we submit, was achieved by removing the requirement for particulars of individual offences, but also the requirement for jury unanimity as to individual acts.  So, in that way, we say it is more than facilitative, but changes the elements of the offence.  We would submit that the characterisation that the core elements remain the same is inapt, with respect.

The appellant relies upon a passage from his Honour Justice Hamill’s judgment at paragraph 144 of the judgment, which is at page 58 of the core appeal book, I apologise, in which his Honour describes some of the amendments as being: 

facilitative and responsive to the difficulties of proof and decisions of the courts which created obstacles to the prosecution and conviction of people, like the applicant, who engaged in the persistent sexual abuse of a child.

Now, that is the purpose, or the reason, for the change.  But we would submit that that description, properly analysed, supports the respondent’s position, rather than the appellant’s, because Parliament overcame the obstacles to prosecution by creating a new offence with different elements, is the respondent’s submission.

GORDON J:   So, you agree it is a proper description of the amendments, but not their characterisation? 

MS ROBERTS:   Yes, your Honour, thank you.  It is a proper description for the reason for them, but it is not to describe them as “facilitative”.  If that is intended by the appellant to suggest that they are not substantive, we would not accept that. 

GLEESON J:   What it suggests is that offences that would not have been proved before the current provision might be proved under the new provision. 

MS ROBERTS:   Yes, your Honour, which was the intention, and which was achieved by changing the elements.

GLEESON J:   Which makes the earlier maximum penalty irrelevant. 

MS ROBERTS:   That is our submission, your Honour, yes.  We have referred just on that question of facilitation of proof in Stephens, which is in the joint book of authorities, commencing at page 311, at paragraph 43.  It is a different statutory context, but the majority of this Court rejected a Crown submission there that section 80AF was a provision concerned only with proof in a procedural sense, finding instead that it changed the law concerning the elements of the offence itself.

So, it is our submission that describing an amendment as facilitating proof does not say anything about the character of the amendment, as your Honour Justice Gordon has put it.  We say, in this case, proof is facilitated by a change of the elements of the offence, making it a new offence. 

Textually, the intention to create a new offence is further confirmed, we say, by subsection (7), which applies a section retrospectively, but I will return to the retrospective aspect of it in just a moment.  It is the repeal of one offence and the replacement of a similar offence with different elements that we say should be regarded as a new offence – or not susceptible to the words “an offence” in section 19.

GAGELER J:   If they were identical elements, the old offence and the new offence, then the retrospectivity of the new offence would not prevent section 19 applying.

MS ROBERTS:   Not in terms, your Honour, no, but it would, perhaps, have no utility.  If the offences were the same, the need for retrospective application of the new offence would be uncertain because it would be similar to an amendment – there would seem to be no purpose for the application of the offence during the period if it is considered to be the same offence.

GORDON J:   You would have to face the issues raised in Stephens and determine whether or not the legislature had, with absolute clarity, intended that the increased penalty apply retrospectively if the elements had been the same.  As I understand, if you go to sections (7) and (8) of 66EA, the language would not be in those terms in those circumstances, because you would not have commenced under the relevant amendments or the predecessor offence and you would have to construe them accordingly.

MS ROBERTS:   Yes, your Honour.  One issue or, perhaps, important fact in this construction task is that the new offence – or the new section, we say, because that is the words of subsection (7) – applies prior to the commencement of the predecessor offence as well when there was no comparator offence.  However, that is defined – there was no offence of ongoing sexual abuse of a child at all.  So, the maximum penalty provided for in the section must, we would say, apply to that period of time, and I do not understand the appellant to make a submission in the alternative to that.

So, there is a period of time prior to 1999 where the new offence is now in force by reason of its retrospective application via subsection (7), for which the maximum penalty must be life imprisonment because there is no alternative or comparator.  That is one reason why we say that the construction of the section as a whole clearly achieves the legislative purpose of applying both the offence and the maximum penalty retrospectively.

Further on that point, whilst your Honours have section 66EA, I might address the question about subsection (8) and the variation from the model provision that has been raised, if I could. So, the model provision was based on the Royal Commission recommendations, evidently enough. With respect to the specific issue of retrospectivity, that is dealt with in the report, starting in the joint book at page 788, where the Commissioners conclude that the offence should be retrospective because of the many complaints of ongoing child sexual abuse that occurred in the past which had not been able to be prosecuted successfully under previous criminal enactments.

Their Honours then went on to discuss the concerns or issues to do with potential unfairness of retrospective operation, there recognising in that discussion that one of the concerns related to the question of maximum penalty.  So, the Commissioners there raised the fact:

that, given that persistent child sexual abuse offences tend to have high penalties – the maximum penalty in Queensland is life imprisonment – their retrospective operation may have the effect of exposing the offender to a much higher maximum –

The Commissioners were satisfied that:

this concern . . . can be addressed by requiring the sentencing court to have regard to the maximum penalties that applied to the individual acts of abuse at the time –

We see that in the model provision.  They then went on to raise this recommendation:

Where the new offence is charged retrospectively but for a period of alleged conduct during the (prospective) operation of the earlier persistent child sexual abuse offences, we consider that regard should be had to the maximum penalty for the earlier persistent child sexual abuse and not for the individual offences.

The balance of that paragraph at the top of 789 contains an assumption, in our submission, that the maximum penalty for an earlier ongoing child sexual abuse offence would be higher in general than the maximum penalty for the individual offences.  That is the case, and it would be especially so with particularly historical offences because, in general, maximum penalties for such forms of sexual conduct to have increased.  So, what the Commissioners there say is:

The higher maximum penalties should apply –

and perhaps that word “apply” should be there taken into account:

to conduct committed at the time –

that there were predecessor offences in place:

rather than looking to the lower maximum penalties applying to the individual offences.

That finds its way into the model provision, but not into the New South Wales provision.  In our submission, there is an explanation for that which relates to the maximum penalty for individual offences in New South Wales and a change in those.  It is referred to in the second reading speech, your Honours, which appears at page 800 of the joint book of authorities.  The Attorney‑General there says:

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 constitution 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.

The learned Attorney‑General then goes on to refer to the fact that the:

offence will apply retrospectively as long as the sexual acts that make up the unlawful sexual relationship were illegal at the time they were committed.

This was a key part of the Royal Commission’s recommendation. 

GLEESON J:   Well, what is an example of a constituent act that carried a life imprisonment?

MS ROBERTS: Section 66A, your Honour. That is a provision which we have not included in the legislation book, but we can provide if your Honours require it. The position is this: in 1999, when the predecessor provision commenced with the maximum penalty of 25 years, at that time the maximum penalty for the offence of sexual intercourse with a child under 10 – which is 66A of the Crimes Act (NSW) – was 20 years’ imprisonment, so it was less than the ongoing child sexual abuse offence.

Over the course of time, that was amended. In 2003, it was increased to 25 years – that is for the 66A offence. In 2009, it was amended so that there was a maximum penalty of life for an aggravated form of the offence. That is, such as under authority, sexual intercourse with a child under 10. And the maximum penalty for the offence simpliciter was remained as 25 years. In 2015, it was amended again, to a single offence only with a maximum penalty of life imprisonment, so that by the time of the consideration of, by the New South Wales legislature, an enactment of the new 66EA, section 66A of the Crimes Act (NSW) at that point carried a higher maximum penalty than the predecessor provision, and, of course, it could have been, in any given case, one of the constituent acts or one of the unlawful sexual acts making up the offence. So much is recognised in the second reading speech.

We would say that although the new offence does not operate on the basis of “ingredient offences” – as that term was sometimes used with respect to the predecessor provision – the legislature has seen fit ameliorate the perceived unfairness of the retrospective application of a penalty of life imprisonment by directing a sentencing judge or permitting a sentencing judge to take into account the maximum penalty for the underlying acts of sexual misconduct.

Now, in many cases, those underlying acts will have lesser maximum penalties, but the importance of appreciating the issue with 66A in New South Wales is that it potentially explains the variation from the model provision in a different way from which the appellant seeks to explain it, which is that if it included a requirement to take into account the maximum penalty for the predecessor offence, rather than the maximum penalty for the underlying offences, the incongruity that existed under the predecessor offence would remain.

GAGELER J:   So far as the construction of section 66EA(8) is concerned, I think you and Mr Steel are agreed that the unlawful sexual acts referred to are the individual acts of abuse.

MS ROBERTS:   Yes, your Honour.

GAGELER J:   And the predecessor offence is not being referred to at all in subsection (8).

MS ROBERTS:   No, your Honour.

GORDON J:   That was the point I was putting to Mr Steel.  One reads the definition of “unlawful sexual act” in the way you have just put it – that is, in 66EA – i.e., it is looking at the individual acts in order to pick them up for the relevant purposes of the application of this new provision, as you would put it, of 66EA. 

MS ROBERTS:   Yes, your Honour, the purpose of the definition of “unlawful sexual act” in subsection (15) is, we would say, to identify simply what are unlawful sexual acts for the purpose of the definition of the unlawful sexual relationship.  And then, when it comes to the sentencing task, the maximum penalty applicable, we say, is the maximum penalty in the section, which is life imprisonment.  And that is recognised by – or textually the inclusion of subsection (8) supports that construction, we say.

GORDON J:   Subsections (7) and (8).

MS ROBERTS:   Yes, your Honour.  Subsection (7), fundamentally, because by its words, it applies this section.  It does not say “this offence”, it says “this section” and, of course, the maximum penalty is part of the section.  We say that it applies to the whole section – retrospectively, including the maximum penalty, and that subsection (8) is a recognition of the fact that the maximum penalty will be the one applicable in the section, but the unlawful sexual acts that underlie or constitute the offence are to be taken into account in terms of their seriousness.  If the prosecution is for a time period much earlier in time when, perhaps, those maximum penalties for the constituent offences were lower, then the sentencing judge will take that into account in the offender’s favour.

GORDON J:   So, can I just ask a question about (7) and (8), really.  You made a submission that 66EA in its new form applies to a period before the commencement of the predecessor provision.

MS ROBERTS:   Yes, your Honour.

GORDON J:   So, does that mean that the submission you just made now is that, if you applied (8) to a situation where it was in respect of conduct that took place prior to the commencement of the predecessor provision, one would look at and take into account the penalty for the underlying act?

MS ROBERTS:   Yes, your Honour.  We say that subsection (8) operates in the same way whether the period is before the predecessor offence or during its currency, and that the relevant consideration for the sentencing court, the legislature has chosen for that to be the maximum penalties applicable at whatever the time the offence was committed for the unlawful sexual acts that are found to constitute the unlawful sexual relationship.

GORDON J:   Can I ask one more question which will be silly, I suspect, but how does that fit then with what the jury is not required to agree on in terms of acts?  Sorry to ask, but I just want to make sure.  How does that sit together?

MS ROBERTS:   They are findings, we would say, for the sentencing judge then to make.  That is to say, what are the unlawful sexual acts that have made up or satisfied the unlawful sexual relationship, and to then make that application.  I am pausing because it has been – as your Honours will see in MK and RB, the decision in the book – a matter of some debate in New South Wales in the intermediate appellate court about the matter to which your Honour has just directed my attention.

In any event, on the question of retrospectivity, we say that if one is speaking in terms of unfairness or presumptions, that subsection (8) responds to that, or answers that, or makes clear that the legislature recognises that there will be an imposition of a higher maximum penalty retrospectively and this is the legislative choice to ameliorate that unfairness.  The omission of part of the model provision – and a possible explanation for that relates to the incongruity between the maximum penalty for there being life imprisonment offences that could potentially be the underlying unlawful sexual acts.

GAGELER J:   I understand that your primary argument is that within the meaning of section 19 this is not the same offence.  So, we do not get to section 19 being capable of applying at all.  But then, if section 19 is capable of being applied, you say that there is a clash, not with subsection (8), but with subsection (7).

MS ROBERTS:   Yes, your Honour.

GAGELER J:   And it is the opening words of subsection (7) that you primarily rely on? 

MS ROBERTS:   We do, your Honour, yes.  If I could just briefly, before I come to address that point, say this about section 19, and my learned friend’s submission about it.  We rely on the reasoning, and the way that the test, or the construction of the section – in the way that it is expressed in the authorities that we have set out, including Justice Keane’s statement of it in Price, the Queensland Court of Appeal, and in Ronen – we say there is no difference in reasoning at a level of principle in Cooper on our analysis.  So, we say that the expression in – his Honour Justice Howie in Ronen, at paragraph 39 in the Court of Criminal Appeal, finds:

a provision is intended to operate only where the actual penalty for the precise offence –

we would say that means “the same” offence:

is amended and not where an existing offence is replaced with another offence even though the two offences may have some common features or may be addressing similar prohibited conduct. 

In Cooper, your Honours, whilst the court there does refer at points to conduct constituting an offence, that is in the context of the related or complementary provision that had been construed – that is section 11 of the Code in there.  What their Honours ultimately conclude at paragraph 134 is an approach to the construction of the provision, or the application of the provision, which focuses on the offence being “constituted by the same legal elements”.

Concluding there, when comparing the offence of rape – the old offence of rape that was repealed – with the commensurate or complementary offence of either sexual assault, or aggravated sexual assault – the circumstance of aggravation, relevantly, in that case, being that the complainant was under 16 – their Honours concluded that the appropriate commensurate offence was sexual assault without the circumstance of aggravation, even though, in that case, the complainant was under 16.  That was because the offence of rape did not include a provision for an age of a complainant.  So, their Honours were comparing the legal elements of the offences and not the facts and circumstances of the offence under consideration, that is, the offence committed by the individual offender.

The reason we say that is important is because of the appellant’s focus on this offender’s situation, which is to say that he had potentially – as Justice Hamill observed, this particular appellant may have – bearing in mind that, of course, this particular appellant was sentenced after a plea of guilty and so it was a statement of agreed facts, so there is no difficulty in knowing the factual basis of his criminality – but in this particular case, whilst he may have satisfied the requirements of either of the predecessor offence or the new offence, that cannot be so in every case and it cannot, we respectfully submit, be the correct approach to determining whether the section applies.  That is, whether the definition of an offence or the construction of an offence in section 19 operates by looking at the facts and circumstances of an individual offence or an individual offender. 

It must be the legal elements of the offence, and there would be many examples or easily thought of examples where conduct would not be able to be proved to constitute an offence under the predecessor provision but may be able to be so established under the new offence.  That would, of course, include the period of time prior to the predecessor offence which, if that is overlooked, causes, we say, some incoherence in the construction for which the appellant contends, because it would have the life imprisonment penalty applying to some of that period of time.

In terms of our notice of contention, that is our argument about – if the Court is against us with respect to the question of new offence and the application of section 19 and there appears to be a conflict in the provisions, we still stay that section 19 does not operate to deny section 66EA. Its retrospective effect, if the conflict arises, is between, in our submission, section 19 and section 66EA(7), because subsection (7) expressly and clearly, we submit, provides that this section operates retrospectively. We say that includes the maximum penalty and that there is no justification for the textual division for which the appellant contends.

GAGELER J:   Well, this submission is really an implied repeal argument.

MS ROBERTS:   Yes, your Honour, that may be so.  We say in those circumstances that the purpose and operation of section 19 is a – it is a provision which imposes a rule upon prospectively‑framed offence provisions, or offence provisions which are silent as to their temporal application.  My learned friend has addressed your Honours on the purpose or the policy behind section 19, and that is that an offender – if a maximum penalty is increased, the offender is not subject to it; if it is decreased, an offender receives the benefit of that.  It is a policy position and enacted in section 19.

STEWARD J:   Is this part of your argument limited to implied repeal or do you say there is some way in which we can read the two sections, one being a leading section and the other not?

MS ROBERTS:   Yes, our principal argument is that harmonious construction can be achieved by looking at those purposes and reading section 19 as having application in circumstances where the temporal operation of an offence provision is silent.  So that whereas we say that 66EA is a provision in which Parliament has expressly made a choice, a different choice, about temporal application and has determined to retrospectively apply the maximum penalty for well‑articulated policy reasons and should not be construed as subject to section 19 in the way for which the appellant contends.  In effect, that is perhaps a reading as though section 19 applies, subject to any contrary provision with respect to the temporal operation of the maximum penalty, or something like that, your Honours.

We accept that the other way to view that properly is as an implied repeal analysis, but we would say, in those circumstances, section EA(7) should be rewarded as the leading provision.  It makes specific provision for a particular offence and specific provision for its temporal operation, and, in those circumstances, section 19 should be regarded as insusceptible of application or abrogated in its application to EA.

GAGELER J:   Well, your best point there is that subsection (7) applies to the whole of the period before – is it 1 December 2018?

MS ROBERTS:   Yes, your Honour.

GAGELER J:   Only part of which is covered by the predecessor offence, so it would have a kind of differential operation if section 19 applied.

MS ROBERTS:   Yes, your Honour.  We would say that it would have some incoherence or inconsistency which should not – and a construction consistent which avoids that inconsistency should be preferred in those circumstances.  Just as one additional point, it is paragraph – in my outline, paragraph 6, which is with respect to 25AA.  We submit that the ‑ ‑ ‑

GORDON J:   This is paragraph 6, did you say?

MS ROBERTS: Yes, of my outline, thank you, your Honour. We submit that section 25AA has no impact on the construction of section 19 or section 66EA, or an impact on the question of whether section 19 applies, in its terms, to 66EA. Just very briefly – and the New South Wales Court of Criminal Appeal decision of Corliss speaks to this, your Honours, but section 25AA introduces a specific amendment. Its purpose was to overturn a common law rule applicable in New South Wales, which was that – and the leading case is MJR, which is also in the book, your Honours.  It was to overturn that rule, which was that when sentencing for an historical child sexual assault offence, courts should attempt to discern and then apply the sentencing patterns and practices from the time of the offence.

His Honour Justice Johnson in Corliss, writing for the majority, observed that section 19 formed a significant part of the reasoning in the leading majority judgment of Chief Justice Spigelman in MJR.  On the other hand, the dissenting judgment of President Mason in MJR formed the basis of the introduction of section 25AA. So, this was a matter to which a great deal of consideration was given – in MJR, of course, but also by the Royal Commission.  We say, against this background, it is unsurprising that the legislature decided to include an express carve‑out for section 19 when introducing 25AA to clarify the relationship between the two, given the relationship between section 19 and the principle to which 25AA was addressed in the decisions of the appellate court.

We say that the absence of a similar carve‑out for section 19 in section 66EA is unsurprising because if the court is satisfied that the legislative intention to create a new offence with retrospective application is

achieved and is clear, there would be no need for the legislature to provide that section 19 did not apply because it simply would not in its terms.  If the Court would just excuse me.

I just have one additional point, unless there is anything else.  It is not a matter of substance, but I just wanted to deal with it as a correction of sorts.  Your Honours, in the Court of Criminal Appeal judgment, at paragraph 142 of his Honour Justice Hamill’s judgment – which is at page 57 of the core appeal book – in the introduction or the procedural background, his Honour there makes the observation in paragraph 142:

Oddly, the Court Attendance Notice was in the terms of the amended s 66EA, even though those amendments did not take effect until 1 December 2018.

Your Honours do not have the CAN – the court attendance notice, I beg your pardon – but it was in the Court of Criminal Appeal papers, and I can provide it to the Court if the Court wishes; we have copies.  But I have spoken to Mr Steel about this because we have looked into it.  The information on the face of the CAN is somewhat ambiguous, but it is agreed between the parties that the CAN for the current offence was not laid until after the commencement of the amending Act.

GAGELER J:   So, that sentence can just be crossed out.  It is inaccurate. 

MS ROBERTS:   Yes, your Honour.  It is, perhaps, a misreading of the slightly unclear information that may have been before his Honour. 

GAGELER J:   Of course, his Honour almost immediately says nothing turns on this. 

MS ROBERTS:   We still say that, your Honour, but just in case, I thought it would be, perhaps, appropriate to correct that.  He was, procedurally speaking, committed for trial initially on just that charge – that is, the new offence – and then pleaded at arraignment, which appears in the chronology of their Honours’ judgments in the Court of Criminal Appeal judgment.  If your Honours would just excuse me. 

Unless there is anything further, your Honours. 

GAGELER J:   Thank you, Ms Roberts.  Mr Steel, do you have something in reply?

MR STEEL:   Yes, your Honour, just briefly.  Your Honours, the respondent took you to page 788 of the joint book of authorities. 

GAGELER J:   Do you want us to go back to it? 

MR STEEL:   Unless your Honours remember.  I am just taking you to the passage.  I can go through it.  It would probably be easier if your Honours can look that page up.

GAGELER J:   We have it. 

MR STEEL:   At the very bottom of that page, there was that passage where the respondent took you to, where it indicated: 

Where the new offence is charged retrospectively but for a period of alleged conduct during the (prospective) operation of the earlier persistent child sexual abuse offences, we consider that regard should be had to the maximum penalty for the earlier persistent child sexual abuse and not for the individual offences.  We consider that it is only where the new offence is charged retrospectively for a period of alleged conduct before the earlier persistent child sexual abuse offences that regard should be had to the lower maximum penalty for individual offences.

So, there was a contemplated difference of approach by the Royal Commission, but what has occurred in New South Wales is there has only been provision put in place with the current 66EA to deal with the provisions before and after the current offence, but nothing to deal with the lower maximum penalty of the predecessor offence as recommended.

I am just repeating my submission, perhaps, with some different emphasis, that the inference flowing from that is it was expected that 19(1) would apply by the Parliament, notwithstanding the respondent has taken you to subsection (7) of the current 66EA, which refers to this section.  The appellant’s position would be – you would still expect greater clarity of language than merely a word, “this section”, to indicate that it was impliedly repealing the previous offence, and also that the new maximum penalty of life imprisonment was to be retrospective over the period where there was a lower maximum penalty in play earlier.  That is the first point I seek to make.

The other point:  even if there was an implied repeal, you have now the section 21B that still captures all these same aspects, in terms of the sentencing principles in 25AA that still applies to every offence.  So, that would capture this new offence, if it was a new offence, to which the former 25AA was not sought to have application to.  The current 21B would apply in the same terms because it comprises the same particular factors as the former 21A, and it covers the field for all offences in New South Wales now, which would be a complicating factor if your Honours

were to consider the implied repeal.  Given the time in which it has been considered, how do you then deal with the issue of – there is a new section 21B that carries all the same provisions, plus there is still some remaining portions of the 25AA provision.

Obviously, there should be caution in determining whether there is an implied repeal of a former provision because there may be instances – as it stands now, the way the Interpretation Act is in New South Wales, as I understand it, is that the prosecution has a choice.  It could bring a – still, because the liability is still present under the Interpretation Act – and we have included the provision for New South Wales in the book – if there was a situation where there was sexual abuse in a context, somehow, where there was no relationship, the prosecution could bring a prosecution under the former provision, whereas if there is an implied repeal, the prosecution may not be able to do that in those circumstances. 

Just on the issue in terms of the fact that the period prior to the predecessor offence operating being subject to the higher maximum penalty as compared to when the predecessor offence was in force, that really flows from the principles where a person has a reasonable expectation where, if there is offending committed, the principles are at a particular time when there was a lower penalty in force.  A person has a reasonable expectation that that would be the penalty that would be imposed; the maximum.

GAGELER J:   So, you say there is no incongruity.  It is to be expected.

MR STEEL:   Yes.  And I think in the judgment, Justice Hamill dealt with that issue at 168, where it was talked about it being an “absurdity”.  But we say, well, there is a reason for the difference, because there is a reasonable expectation, which is what one of the considerations are as to whether an offence should, or a penalty should, be applied retrospectively or not. 

Unless there is anything further, they were the matters that I wanted to raise in reply, your Honours.

GAGELER J:   Thank you, Mr Steel.  The Court will consider its decision in this matter and will adjourn until 9.30 am tomorrow for the pronouncement of orders.

AT 11.34 AM THE MATTER WAS ADJOURNED