MK v R

1. [1]

   MITCHELMORE JA: I have had the advantage of reading in draft the reasons of Sweeney J. I agree with the orders her Honour has proposed and may state my reasons shortly.

2. [2]

   The jury in the present case delivered verdicts of guilty in respect of three offences contrary to s 66EA(1) of the Crimes Act 1900 (NSW). Those verdicts established that the jury was satisfied beyond reasonable doubt that the applicant maintained an unlawful sexual relationship with each of the three complainants, each of whom was under the age of 16 years, in which he engaged in two or more unlawful sexual acts of the nature set out in the indictment. Consistently with s 66EA(5), in reaching those verdicts:

   1. (1)

      the jury must have been satisfied beyond reasonable doubt that the evidence established that the unlawful sexual relationship existed (s 66EA(5)(a));

   2. (2)

      the jury was “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” (s 66EA(5)(b) (reflecting the terms of s 66EA(4)(a), which provides that the prosecution “is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence …”)); and

   3. (3)

      the members of the jury were “not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship” (s 66EA(5)(c)).

3. [3]

   The duty of the sentencing judge is to find facts relevant to sentencing, with any findings made against an offender arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374 at 377-378. In Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, Gleeson CJ, Gummow and Hayne JJ made the following observations about that task:

4. [4]

   In circumstances where an offence contrary to s 66EA(1) of the Crimes Act can be established based on only two sexual acts, the number of sexual acts beyond that as well as the nature of those sexual acts is relevant to the assessment of objective seriousness of the offence: GP (a pseudonym) v R [2021] NSWCCA 180 at [8] (N Adams J). The applicant’s central contention in this appeal was that in making the necessary findings on sentence, it was not open to the sentencing judge to rely on the estimates that the complainants gave of the frequency of the occasions on which the applicant engaged in the types of unlawful sexual acts about which they gave evidence. This led, in his submission, to his Honour sentencing him for what was, in effect, a course of conduct. The applicant submitted that the sentencing judge needed to make findings as to the precise occasions on which he engaged in unlawful sexual acts, and state the facts as to each act.

5. [5]

   In support of his central proposition, the applicant relied principally on s 66EA(8) of the Crimes Act, which provides:

6. [6]

   Sweeney J has detailed the legislative history behind s 66EA as now in force, including by reference to the decision of the High Court in Xerri v The King [2024] HCA 5. Section 66EA(7) applies the provision to relationships that existed wholly or partly before the commencement of the “relevant amendments” or the “predecessor offence” (both of which are defined in s 66EA(15)). Section 66EA(8) applies in particular circumstances, namely, when a court is “imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments”. In those circumstances, the subsection requires a sentencing judge to take into account (without being limited by) the maximum penalty that applied to the unlawful sexual acts that an offender is found to have engaged in “during the period in which the unlawful sexual relationship existed”.

7. [7]

   The purpose of s 66EA(8) is thus to ensure that notwithstanding the retrospective operation of the provision, regard is had to the maximum penalties that applied at the time of the offending. It does not support the approach to sentencing which forms the applicant’s central contention, nor does the balance of the provision. I note in particular s 66EA(4)(a), by which the prosecution is not required to allege the particulars of unlawful sexual acts that it would need to if the acts were charged as separate offences. By contrast, the approach for which the applicant contended would require the Court to identify in every case, in his counsel’s words, “the specific occasions of abuse”.

8. [8]

   The submission that it is not open to a sentencing judge to rely on the evidence of a complainant, whose reliability is accepted, estimating the frequency with which an offender engaged in particular unlawful sexual acts would also be contrary to the broader legislative context, which as Sweeney J points out includes the purpose of the provision and the mischief that it was intended to remedy: Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [30] (Bell P). As Beech-Jones CJ at CL stated in MK v R; RB v R (2023) 112 NSWLR 96 (“MK”) at [96] (Ward P, Price, Wilson and Lonergan JJ agreeing):

9. [9]

   Of course, it is necessary for a sentencing judge to make what Fagan J referred to, in R v RB [2022] NSWCCA 142 (“RB”) at [69], as “evidence-based findings … concerning the extent and seriousness of the offending”. Although his Honour’s construction of s 66EA was found, in MK, to be plainly wrong, both the applicant and the Crown in this case relied on this unexceptional observation regarding the approach to fact-finding. The applicant also emphasised Fagan J’s observation that the section reposes in the trial judge a heavy responsibility (at [72]), and so much may be accepted. Sweeney J has addressed the sentencing judge’s reasons on sentence in detail below, in which his Honour made careful findings as to the unlawful sexual acts in which the applicant engaged with ML, MS and JD respectively, and the nature of those acts. His Honour’s findings rested on the evidence of the three complainants, given both in police interviews and at the trial, including his Honour’s acceptance beyond reasonable doubt of estimates the children provided about the frequency of the unlawful sexual acts to which they were subjected (ROS 2). No error in the fact-finding process has been established.

10. [10]

    Further, I consider that the Crown’s submission, that the considerations in Zreika v R [2012] NSWCCA 44 at [80]-[83] apply in the present case, has force. Before the sentencing judge, counsel for the applicant accepted, in relation to each of the complainants, that the offending conduct was “sustained over the period of a year”, although he submitted that it should be characterised as opportunistic. No attempt was made by his counsel to challenge the reliability of the complainants’ evidence, either in whole or as to any part. The approach for which the applicant contended in this court was at odds with the manner in which his counsel conducted the hearing before the sentencing judge.

11. [11]

    SWEENEY J: MK, the applicant, seeks leave to appeal against the aggregate sentence imposed on him for three offences of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is life imprisonment. The applicant was sentenced to an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years, after a trial by jury.

Procedural history

1. [12]

   The applicant stood trial in the District Court at Lismore before Judge McLennan SC and a jury of 12 on an indictment containing three counts of persistent sexual abuse of three brothers, contrary to s 66EA(1) of the Crimes Act. There were also 24 alternative counts of sexual and indecent assaults against the complainants which alleged specific offences. The trial began on 23 November 2020 and on 9 December 2020 the applicant was found guilty of each of the three counts of persistent sexual abuse. It was therefore unnecessary for the jury to return verdicts on the alternative counts.

2. [13]

   On 30 April 2021 Judge McLennan SC sentenced the applicant to the aggregate sentence of 28 years imprisonment with a non-parole period of 21 years. The indicative sentences were 15 years for count 1 (relating to complainant ML), 12 years for count 14 (complainant MS) and 18 years for count 19 (complainant JD).

3. [14]

   The applicant appealed against his conviction. The appeal was dismissed: MK v R; RB v R [2023] NSWCCA 180 (per Beech-Jones CJ at CL (as his Honour then was), Ward P, Price, Wilson and Lonergan JJ agreeing). The applicant's appeal in respect of his sentence was stood over by this Court to await the decision of the High Court in Xerri v The King [2024] HCA 5. The High Court delivered that judgment on 6 March 2024.

4. [15]

   The High Court refused the applicant special leave to appeal against this Court's decision on his conviction appeal.

5. [16]

   The applicant now seeks leave to rely on the following grounds of appeal against his sentence:

6. [17]

   The applicant submitted that his two grounds of appeal could be dealt with at the same time, and if the first ground of appeal is upheld, it may lead to consideration of the second.

7. [18]

   Because the essence of the appeal is that Judge McLennan SC erred in his approach to sentencing the applicant, it is necessary to refer in some detail to his Honour's remarks on sentence. Because the statutory non-publication order in s 578A of the Crimes Act applies, the three child victims will be referred to by initials.

8. [19]

   Before turning to the remarks on sentence, it is necessary to set out the terms of the three counts for which the applicant was sentenced, and the terms of s 66EA of the Crimes Act, as the applicant's appeal focuses on how an offender is to be sentenced for an offence against s 66EA.

Counts for sentence

1. [20]

   Count 1, which concerned the victim ML, was in terms that:

2. [21]

   Count 14, which concerned the complainant MS, was in terms that:

3. [22]

   Count 19, which concerned the victim, JD, was in terms that:

Section 66EA of the Crimes Act

1. [23]

   The offence provision in s 66EA of the Crimes Act commenced operation on 1 December 2018. It has retrospective operation. It is in the following terms, relevantly:

The remarks on sentence

1. [24]

   His Honour began by stating that the offender was to be sentenced for three offences of persistent sexual abuse of a child, contrary to s 66EA of the Crimes Act, the maximum penalty for which is life imprisonment and there being no applicable standard non-parole period.

2. [25]

   His Honour stated that each charge related to a different child, that the three children were brothers and the offender was the partner of the children's mother, and acting as their stepfather. He noted the periods of offending in respect of each child and that two of the brothers were aged 11 at the time of the offending.

3. [26]

   His Honour stated:

4. [27]

   His Honour stated:

5. [28]

   His Honour noted that in 2017 the applicant and the boys’ mother formed a relationship, so that by August 2017 the applicant had moved into the household in which the three boys lived with their mother and sister. The applicant then described himself as the stepfather to the children. He was then aged 29 years. His Honour found that the boys’ mother was "unwittingly duped" into a sham relationship with the applicant in order that he could gain sexual access to the boys and offend against them. His Honour stated that the applicant's "deceit and manipulation of the boys' mother… demonstrates to my mind how calculated his conduct was in relation to the three boys."

6. [29]

   In August 2018 the boys’ mother terminated her relationship with the applicant and he moved back to his parents’ house. After the relationship ended the applicant tried to persuade the boys’ mother to resume the relationship, and he continued to contact the boys and try to see them, including going to the house in the early morning while their mother was at the gym. In September 2018 the boys disclosed to their mother and the police the sexual abuse committed by the applicant.

The offending against ML

1. [30]

   His Honour recounted the facts of the offending against ML from the child's interviews and his evidence given in the trial, which his Honour stated he accepted. The applicant approached ML in the loungeroom of his home in late December 2017 and asked him if he wanted to do some grown up stuff in bed. The child replied no. Four weeks later, in January 2018, the applicant came into the child's bedroom at about 5:00am, when the child's mother was at the gym. The applicant grabbed the child's penis and inserted it into his anus; the child told him four times not to do it. The applicant then sat on top of the child and masturbated, then forcibly turned the child over and penetrated the child’s anus with his penis. The child said, "It didn't work because his penis was too big" and it was hurting and [the applicant] "just went faster and faster" for five minutes and it hurt. The applicant told the child if he told anyone he would be very angry with him. The child described pain in his anus. He told his mother about feeling pain but that was dismissed. The applicant then told the child "Don't say those things cause that can make it obvious".

2. [31]

   The child ML described the conduct as going on for a period of seven months, mostly twice a week, sometimes once a week, when his mother was at the gym. The child also described the applicant licking the child’s anus multiple times and licking his penis. The conduct ceased when, in August 2018, ML yelled at the applicant that "I'm not going to do this anymore. I’ll tell on you if you keep doing it". The applicant agreed. The child's silence was procured by the threat that the applicant would become “very, very angry” if ML told anyone, and the threat was repeated more than once over time until the child threatened to report the applicant's behaviour.

3. [32]

   His Honour summarised as follows (ROS 7):

The offending against MS

1. [33]

   His Honour stated the facts of the applicant’s offending against the child MS from the child's interview and his evidence in the trial. He said the child described the applicant first making a form of sexual contact with him when his mother first started dating the applicant. The first contact was in the locker room of a local surf club. The child said the applicant said "Can I hug you? I love you so much. Do you love me?" and was "kind of rubbing his penis (through his swimwear) on [the child] a little bit”. The child said it made him feel uncomfortable, but he felt it was rude to tell the applicant he did not like it.

2. [34]

   For the child's 11th birthday the applicant suggested the child could download Minecraft, a computer game, if he were to allow the applicant to suck the child's penis, have the child suck the applicant's penis and allow the applicant to engage in penile-anal intercourse with the child. The child said the applicant said "I'll let you download Minecraft if you take the pain and stick my penis up your bum". As the child really wanted to play Minecraft, he allowed the applicant to attempt to penetrate him anally. The child said it hurt and he said he did not want to do it anymore, and the applicant said he would let him buy something on his computer. The child said he would end up doing it then he would end up crying and the applicant told him he was a good boy, he loved him and he would not ever tell anybody. The child said it was mainly always night time and sometimes it was day time.

3. [35]

   The child said on the first occasion of attempted penile intercourse the applicant made him lie on the bed and he covered his mouth with a pillow before attempting to penetrate him. The child said he did not tell anyone about this because the applicant said if he left and went to gaol, the child would not play Minecraft. His Honour said the child MS estimated there were more than 30 times, possibly up to 50 times, when the applicant tried to put his penis in the child’s anus. The child said that the applicant did not succeed because it hurt too much.

4. [36]

   MS gave evidence that the applicant asked him to perform fellatio in exchange for letting him play Minecraft; the child said he did so for "a quick second". The child said the applicant used pawpaw cream to facilitate his attempts at anal penetration of the child, as well as attempting to bribe him with lollies. The child said the applicant put him on the bed, put a pillow down, and the child's face was in the pillow, then he put his hand on his back and side, put pawpaw on the child's "bum" and the applicant's penis, and then started trying to "put it up there". The child said, "No, I don't want this, it hurts” and started crying. The child said that the applicant then masturbated himself and ejaculated into the toilet, after which the applicant encouraged the child to inspect his ejaculate in the toilet bowl.

5. [37]

   MS said he was shown homosexual pornography on the applicant's phone a lot. It was an agreed fact at the trial that analysis of the applicant's phone’s web history revealed that a particular website was accessed on numerous occasions during the relevant period of offending, that the website made available "hardcore heterosexual and homosexual pornography" and the internet sites were deleted by the user of the phone.

6. [38]

   The child said on one occasion the applicant photographed the child's anus after the child complained it was really sore.

7. [39]

   His Honour summarised:

The offending against JD

1. [40]

   His Honour stated that JD was the older brother of ML and MS. He drew on the child's interviews and his evidence at trial.

2. [41]

   His Honour stated that JD gave evidence of the applicant performing oral sex on him, "every morning and night", from a couple of weeks after the applicant moved into the family home up until a couple of weeks prior to the child's interview with police on 12 September 2018, by which time the applicant had left the family residence.

3. [42]

   The child said that he was bribed with KFC in order to allow the applicant to have penile-anal intercourse with him. The child said the applicant asked if he could put his penis "up" the child and the child said he did not want to do that. The applicant offered KFC. The child did not want to do it, but said the applicant did it and then did not take him to KFC, but took him the next night. The child described the relationship between the applicant and his mother commencing and said "All of a sudden, someone made the decision that he was going to move in and then he moved in… and that's when he started doing more stuff".

4. [43]

   JD described the applicant's first sexual approach to him as the applicant walked into his bedroom, closed the door behind him, walked over to the bed and told the child "Come over here". The child said the applicant asked "Do you want to get more close?" When the child asked what he meant the applicant said "Can I go up inside of you, because that's the closest we can be." The child said no, he didn't want to do that. The applicant begged the child, saying "Mate, I need this". The penile-anal intercourse was facilitated by the use of pawpaw moisturiser and was preceded by an act of digital anal penetration by the applicant. The applicant locked the bedroom door to avoid being interrupted. The child described the applicant "thrusting back and forth" and the activity hurting.

5. [44]

   The child described the second event of penile-anal intercourse as the applicant came into the room and shut the door behind him and took his clothes off, walked over to the child and said "Give it to me" and the child said he was not doing that again and he did not want to do it. JD said the applicant did it and he was really uncomfortable at first and "It just kept getting worse"; the child started to yell and the applicant put his hand over the child’s mouth so he could not yell. JD said the third event resulted in his anus bleeding. He also described having to masturbate the applicant while the applicant performed oral sex on him. His Honour said "I am satisfied beyond a reasonable doubt of [JD's] evidence concerning the sexual abuse perpetrated by the [applicant] as described in the first interview."

6. [45]

   His Honour said in the second interview JD gave evidence of more extensive acts of penile-anal intercourse which occurred in the applicant's car when the applicant and child were going to Coles or KFC, as well as acts of intercourse at the applicant's parents’ place. His Honour described himself as "satisfied beyond a reasonable doubt as to the truthfulness of this evidence”.

7. [46]

   His Honour said JD described the applicant driving him to his parents’ house, maybe three times a week, and en route the applicant would make the child perform oral sex on him. On one occasion the applicant bought a fishing rod for the child's birthday, which was given in exchange for the child performing oral sex on the applicant. The child said on the same occasion, the applicant said he had done something and got something for the child, and the child had to do something for him. The applicant then closed the door, pulled his pants down, lay back on the bed and made the child sit on his penis. The child said it really hurt. The child said he cried and the applicant kept saying “Just a bit longer”. The child said he was trying to extricate himself and the applicant held him until he ejaculated, which on other occasions the applicant had done on the child's body.

8. [47]

   His Honour stated that on other occasions when the applicant and child went for a drive in the applicant's car to buy drinks and lollies from Coles, the applicant would make the child sit on top of him while the applicant penetrated the child’s anus with his penis. The child estimated he was taken to Coles maybe two or three times a week and once a week to KFC. The child's protests were ignored. Force was used to make the child continue to suck the applicant’s penis from time to time. The child said the applicant would hold his hand on the child's head while he was sucking his penis and held his head down so he could not lift it up. If the child tried to stop, the applicant would cry and say "I always do good stuff for you and you never do good stuff for me”.

9. [48]

   The abuse on the drive to the applicant's parents’ house commenced with the applicant touching the child on the outside of his pants in the genital region, then progressed to touching the child on the inside of his pants. The child was going to complain to his mother but the applicant told him not to in an aggressive, angry voice and the child became scared and made no complaint. Thereafter, when the applicant made the child suck his penis or touched him, the applicant told the child to not tell his mother and sometimes cried while saying to not tell the child's mother, and the child felt bad so he did not tell his mother.

10. [49]

    His Honour said the child described many occasions at the applicant’s parents’ home when he had to perform oral sex on the applicant. The applicant always tried to ejaculate in the child's mouth but the child refused and the applicant would often ejaculate on the child. The child described other acts of penile-anal penetration at the applicant's parents’ home when the parents were absent. The child said he was punished by the applicant by making him feel pain so that his "bum" would bleed and he would not be able to go to the toilet and “wipe his bum” for a week or so.

11. [50]

    His Honour said JD said the abuse continued after the relationship with his mother ended. The applicant appeared at the child's window and encouraged the child to allow the applicant to perform oral sex on him.

12. [51]

    His Honour summarised:

The approach to sentencing

1. [52]

   His Honour noted that the offence under s 66EA as now enacted was introduced on 1 December 2018 with retrospective effect. His Honour referred to the decision of Burr v R [2020] NSWCCA 282. His Honour stated that at [106] of Burr:

2. [53]

   His Honour stated "In my view, the alteration to the structure of s 66EA does not affect matters relevant to the objective seriousness of the offender's conduct." (ROS 18).

3. [54]

   His Honour stated:

4. [55]

   His Honour stated:

5. [56]

   His Honour stated:

His Honour’s assessment of the objective seriousness of the offence against ML

1. [57]

   His Honour stated:

His Honour’s assessment of the objective seriousness of the offence against MS

1. [58]

   In assessing the objective seriousness of the offence involving MS, his Honour stated:

His Honour’s assessment of the objective seriousness of the offence against JD

1. [59]

   In assessing the objective seriousness of the offence against JD, his Honour stated:

2. [60]

   His Honour stated:

Victim Impact Statements

1. [61]

   His Honour referred to the contents of the Victim Impact Statement from each child. His Honour stated "One of the purposes of punishment is to recognise the harm to the victims. This sentence will do that." His Honour said "… the extent to which he has robbed these children of their joy of life is nonetheless profound."

Conditional liberty

1. [62]

   His Honour noted that for the greater part of his offending against the three children, the applicant was on bail for two offences in respect of two former primary school students, which His Honour treated as a matter of statutory aggravation.

Subjective matters

1. [63]

   His Honour noted that the applicant had no previous convictions. He referred to his activities contributing to the community. He noted "Remorse is not a consideration". He noted the opinion of a psychologist that the applicant would be considered in the above average risk category for sexual offending. His Honour accepted there was a significant risk the applicant would reoffend. His Honour stated "… I am going to impose an aggregate sentence that will be, in its length, a stern punishment that in part will have the purpose of being a very real specific deterrent to any such conduct in the future".

2. [64]

   His Honour stated that there must be some notional partial accumulation of the indicative sentences to recognise the harm done to the three individual children, and that complete concurrency would fail to achieve that purpose of punishment. He noted a submission that there was a need to avoid a crushing sentence.

3. [65]

   His Honour declined to make a finding of special circumstances, finding that because the aggregate sentence would be substantial, the statutory ratio between the head sentence and non-parole period would provide sufficient scope for rehabilitation.

4. [66]

   His Honour considered matters raised on behalf of the applicant in respect of his mental health, protective custody and the effects of Covid.

5. [67]

   His Honour stated "The offender has been found guilty by a jury of three offences that reveal appalling conduct towards three children. Those children were vulnerable because of their age and because of their obvious innocence."

The applicant’s submissions

1. [68]

   The applicant's central submission was that the sentencing judge failed to properly find the facts of the offending by sentencing him on the estimated frequency of offending, and thus the sentencing judge sentenced him for a course of conduct. The applicant submitted that the sentencing judge was required to identify specific occasions on which the applicant committed offences, and to treat those occasions as representative of a wider course of conduct. In support of his contention the applicant relied on the decision of the South Australian Court of Criminal Appeal in R v D (1997) 69 SASR 413, and decisions of this Court in R v Fitzgerald [2004] NSWCCA 5, ARS v R [2011] NSWCCA 266 and Burr in respect of sentencing under the previous s 66EA. Counsel submitted that the approach to sentencing offenders under the predecessor offence may provide clearer guidance on how a sentencing court should proceed in relation to the current offence provision.

2. [69]

   The applicant submitted, relying on Burr and GP (a pseudonym) v R [2021] NSWCCA 180, that the factors identified in Burr as important to assessing the objective seriousness of an offence against the previous s 66EA remain relevant to the assessment of an offence against the new provision. He submitted the number of sexual acts and the nature of the acts are relevant to the assessment of the objective seriousness of an offence and the offence is not a course of conduct in the strict sense because it requires proof of a relationship and of two or more unlawful sexual acts, relying on JJP v R (2021) 139 SASR 91; [2021] SASCA 53.

3. [70]

   The applicant submitted that the provisions of s 66EA(5) apply only to facilitating convictions, and do not apply to fact finding in sentencing. He submitted that s 66EA(8) redirects a sentencing judge’s attention to the specific unlawful sexual acts engaged in by the offender, to properly assess the seriousness of the offending; otherwise a person would be sentenced on a potentially opaque basis or on a mistaken factual basis.

4. [71]

   The applicant submitted that the sentencing judge made factual mistakes and overestimated some sexual acts. Specific factual mistakes asserted were, in relation to ML, that he had caused multiple splits to the child's anus or had ejaculated on the complainant multiple times, contrary to the child's evidence of one occasion where the applicant "split" his anus and one occasion where the applicant ejaculated while masturbating. In respect of MS, the applicant submitted that his Honour was incorrect in finding that the applicant attempted on 30 to 50 occasions to anally penetrate the child, as not an accurate statement of the evidence.

Crown submissions

1. [72]

   In response the Crown submitted that the particular factual errors asserted were not made by the judge and that the finding his Honour made "on occasion [the applicant] split the child’s anus, causing it to bleed" was supported by reference to a particular question and answer in the child’s interview.

2. [73]

   In addition, the Crown submitted that the complaint the applicant advanced on his appeal is inconsistent with the manner in which the sentencing proceedings were conducted on his behalf before the sentencing judge, contrary to the statement in Zreika v R [2012] NSWCCA 44 at [81]-[82]. The Crown submitted that in written submissions before the sentencing judge the Crown submitted that the court would find facts generally consistent with the particularised alternative charges and the unparticularised allegations, and submitted that the offending was regular and frequent throughout the offence period. The Crown submitted that in written submissions by counsel for the applicant in the District Court, counsel acknowledged that:

3. [74]

   The Crown submitted that counsel for the applicant in the District Court did not cavil with the judge’s indication of his assessment of the nature and frequency of the applicant's conduct, thus giving rise to the constraint in Zreika.

4. [75]

   Both the Crown and counsel for the applicant relied on the statement of Fagan J in R v RB [2022] NSWCCA 142 at [69] that “…for a sentence to be passed there have to be evidence-based findings of the tribunal of fact concerning the extent and seriousness of the offending.".

5. [76]

   The Crown submitted that there is no reason to depart from the established principle that a sentencing judge is not required to sentence on the view of the facts most favourable to the offender, provided that facts determined by the sentencing judge are consistent with the jury's verdict and any findings of fact adverse to the offender are established beyond reasonable doubt: R v RB.

6. [77]

   The Crown submitted that s 66EA is distinguishable from its predecessor in that it departs from a focus on the proof of underlying particularised sexual acts as the actus reus of the offence and requires the jury to be satisfied beyond reasonable doubt that an unlawful sexual relationship existed, and while the jury must be satisfied that there were at least two unlawful sexual acts, the jury need not agree which unlawful sexual acts occurred. The Crown submitted that the terms of s 66EA(8) make clear that the task of making findings for the purpose of sentencing lies with the sentencing court. The Crown submitted that the decisions relied on by the applicant in relation to the predecessor provision provide no assistance with the approach to sentencing under the current provision.

Consideration

1. [78]

   In Xerri v The King [2024] HCA 5, the High Court considered the construction of the new s 66EA.

2. [79]

   Gageler CJ and Jagot J stated:

3. [80]

   Gordon, Steward and Gleeson JJ referred to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse that there be offences which do not require particularisation in a manner inconsistent with the ways in which complainants remember child sexual abuse and allow for the prosecution of repeated but largely indistinguishable occasions of child sexual abuse, and the Royal Commission's proposal of an offence of persistent child sexual abuse whereby:

4. [81]

   Their Honours said at [56]:

5. [82]

   At [60] their Honours said:

6. [83]

   In GP (a pseudonym) v R, N Adams J said at [8]:

7. [84]

   In MK v R; RB v R, Beech-Jones CJ at CL (as his Honour then was), construing the new s 66EA, said the task of interpreting such a statutory provision must begin and end with a consideration of the text itself: [94] and [101]. His Honour said ascertaining the meaning of a text “may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204. His Honour said the text of s 66EA is clear and the origins of the provision, its legislative purpose and the mischief it was intended to address do not suggest any different meaning: [101].

8. [85]

   The construction of s 66EA and the approach to sentencing for offences against it contended for by the applicant is contrary to the plain terms of the section, the intent and purpose of the provision and the mischief it was intended to address. It cannot be correct, in principle or logic, that sub-ss (4) and (5) do not apply to sentencing for offences against s 66EA, especially as a sentencing judge’s findings of fact must be consistent with the jury’s verdict(s).

9. [86]

   In this case, having read the evidence summary, which both counsel accepted as accurate, and having considered the sentencing judge’s findings of fact, and his Honour’s statement that he was satisfied beyond reasonable doubt of the evidence of each child, I am not persuaded that his Honour made any errors of fact in his factual findings or, as contended, that he failed to properly determine the facts of the applicant’s offending. Ground 1 is not established. As ground 2 depended on ground 1 being established, ground 2 does not succeed either. Therefore I would propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

10. [87]

    HUGGETT J: I agree with Sweeney J.