R v RB

1. [1]

   HARRISON J: I agree with Fagan J.

2. [2]

   WRIGHT J: I have had the advantage of reading the judgment of Fagan J in draft and agree with the orders proposed by his Honour for the reasons he has given.

3. [3]

   FAGAN J: This is a Crown appeal against inadequacy of sentence following conviction of the respondent on one count of persistent sexual abuse of a child, contrary to s 66EA of the Crimes Act 1900 (NSW). The offence was charged as having been committed between 30 January 2013 and 28 December 2016. The charge was laid under s 66EA as in force from 1 December 2018, because subs (7) provided for retrospective effect. For ease of understanding I will refer to the respondent by that title throughout these reasons although he is also an applicant, seeking leave to appeal against the sentence imposed.

4. [4]

   For the offence contrary to s 66EA the respondent was sentenced to 10 years imprisonment with a non-parole period of 7 years. In the same trial he was convicted and sentenced on one count of indecent assault of a child, contrary to s 61M(2) of the Crimes Act. The appeal and application for leave are not concerned with the s 61M(2) offence.

5. [5]

   The complainant was a vulnerable young person when these offences were committed. In order to avoid identification of her, in compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the complainant’s name is not given in this judgment, the respondent is referred to only as “RB”, the place where the offences occurred is not specified and persons connected with the respondent’s background are not named.

6. [6]

   The grounds relied upon by the Crown are as follows:

7. [7]

   The following are the grounds for which the respondent seeks leave to appeal:

Crown appeal ground 1

1. [8]

   I will address ground 1 of the Crown appeal first, under headings as follows:

2. [9]

   This ground raises the question of how a sentencing judge is to determine facts relevant to the objective gravity of an offence against s 66EA after a jury has made a finding of guilt. The question arises because s 66EA has been enacted in such terms that a guilty verdict does not require jury unanimity regarding what sexual acts towards a child have been committed to constitute the unlawful sexual relationship. The sentencing judge who is required to assess the seriousness of the offending does not merely face a difficulty of identifying or inferring what sexual acts the jury may have found proved but must proceed upon the basis that, expressly by statute, the verdict does not entail that any finding at all with respect to any sexual act has been made unanimously by the jury.

The charge laid under s 66EA

1. [10]

   Section 66EA of the Crimes Act, as in force from 1 December 2018, is in these terms (omitting subs (9)-(12), which are not relevant to the appeal):

2. [11]

   The count under s 66EA upon which the respondent was convicted alleged the maintenance of an unlawful sexual relationship with his biological daughter. He was aged between 35 and 39 years during the charge period and the complainant was 8-11. The charge was pleaded as follows:

The complainant’s evidence

1. [12]

   The complainant’s evidence in chief was tendered by playing back to the jury video recordings of her being interviewed by police on 27 May 2019 (1 hour and 45 minutes) and 15 April 2020 (20 minutes). Pre-recorded evidence that she had given on 20 and 21 July 2020, approximately seven weeks before the trial commenced, was also played back. In her evidence the complainant adopted the answers she had given in the police interviews and identified and explained some documentary exhibits. The pre-recorded evidence included cross-examination of the complainant. It was put to her on behalf of the respondent that he had never committed any sexual act towards her.

2. [13]

   The respondent did not give evidence in the trial or call any witness. The Crown tendered an electronically recorded police interview during which the respondent denied any sexual acts with or towards the complainant.

The directions to the jury

1. [14]

   The jurors were each provided with a copy of the indictment. Her Honour directed the jury as to the elements of the offence against s 66EA in these terms (paragraph numbers added for ease of reference):

2. [15]

   The summing up continued with a reminder of the passages of the complainant’s evidence that were referable to each of the alleged sexual acts, (a)-(h), respectively. Her Honour then directed the jury as follows:

The proceedings on sentence

1. [16]

   In the proceedings after verdict the Crown submitted the following concerning sentence of a person found guilty of an offence against s 66EA:

2. [17]

   The respondent, on the other hand, submitted that it was not open to her Honour to embark upon such fact-finding and that she was constrained to sentence on the basis that the unlawful sexual relationship found by the jury was one in which the respondent had engaged in only the two least serious unlawful sexual acts alleged in the charge. Her Honour concluded that on the authority of Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37, KMC v Director of Public Prosecutions (2020) 267 CLR 480; [2020] HCA 6 and Gould v R [2021] NSWCCA 92 she was bound to accept the offender’s submission.

3. [18]

   Accordingly, her Honour held as follows:

4. [19]

   For the purpose of taking into account the maximum penalty for the unlawful sexual act in par (c), as required by s 66EA(8), the respondent’s conduct had to be considered as an assault with act of indecency in contravention of s 61M(2) of the Crimes Act. The applicable maximum was a sentence of 10 years and the standard non-parole period was 8 years. The multiple unlawful sexual acts in par (h) were alleged to have occurred “frequently” between 31 January 2013 and 27 December 2016. So far as those acts took place in the first two years of the charge period they would have constituted attempts to have sexual intercourse with a person under the age of 10, contrary to s 66B of the Crimes Act. Each such act in that period would have carried a maximum of 25 years. Each act of this description that occurred in the third and fourth years of the charge period would have constituted an attempt to commit the aggravated offence of sexual intercourse with a child aged between 10 and 14 years, contrary to ss 66C(2) and 66D of the Crimes Act, carrying a maximum of 20 years. All of the above references to maximum penalties are to the provisions in force at the dates of the alleged acts.

5. [20]

   Her Honour took into account the respondent’s subjective circumstances and other sentencing factors to arrive at the sentence of 10 years with a non-parole period of 7 years for the s 66EA offence.

General principles of fact-finding relevant to sentence after verdict

1. [21]

   The general principles upon which a trial judge makes findings of fact relevant to sentence following a jury verdict of guilty were summarised by this Court in R v Isaacs (1997) 41 NSWLR 374 at 377-378 as follows (some citations omitted):

2. [22]

   That summary was approved in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, in which Gleeson CJ, Gummow and Hayne JJ made the following general observations:

3. [23]

   Where persistent sexual abuse of a child is charged under s 66EA of the Crimes Act and a verdict of guilty is returned at the conclusion of a trial by jury, the section gives rise to acute difficulties in determining, according to the above principles, the facts relevant to the objective gravity of the offending. The nature of those difficulties will become apparent from the following discussion of cases in which comparable provisions have been interpreted and applied.

4. [24]

   To resolve this appeal the Court must decide whether a trial judge called upon to sentence an offender found guilty on a charge under s 66EA is required to do so on the basis that he has committed the two least serious unlawful sexual acts particularised in the indictment, presuming that course to be consistent with the most favourable view of how the jury may have reached their verdict; or whether the judge is required to make his or her own findings, from the evidence in the trial, as to what unlawful sexual acts were committed. Section 66EA makes no express provision in this regard. With a view to determining whether one of the above alternatives is necessarily implicit in the section, or is otherwise shown to have been intended by Parliament, I find it necessary to consider the significantly different wording of s 66EA that was in force from 15 January 1999 until 1 December 2018 and to consider some decisions on similar sections that have been enacted in other states. I have considered the judgment of Johnson J in Burr v R [2020] NSWCCA 282, which concerned sentencing under the earlier form of s 66EA, particularly [100]-[105] of that judgment. I have reviewed the numerous decisions on comparable statutory provisions cited by his Honour at [102] but I do not find it necessary to quote from any more than a small number of them.

Persistent child abuse offences that require extended unanimity

1. [25]

   With effect from 3 July 1989 the Queensland Parliament enacted in s 229B of the Criminal Code (Qld) an offence constituted by the commission of multiple unlawful sexual acts with children, the prosecution of which would not require the Crown to particularise dates or exact circumstances of each act. It may be inferred that this was a response to a commonly recurring phenomenon of complainants who, by reason of having been very young or traumatised, or both, when they were subjected to repeated sexual abuse, could not give evidence of dates, occasions, or other specific and differentiating features of each, or any, instance. Section 229B was enacted as follows:

2. [26]

   In KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 the High Court heard an appeal against a conviction under that section for an offence alleged to have been committed between 3 July 1989 and 30 January 1991. The complainant gave evidence of various incidents, described generally and imprecisely, constituting “a course of sexual misconduct or a pattern of sexual misbehaviour by the appellant, rather than specific sexual acts”. The jury were directed that in order to convict they had to be satisfied beyond reasonable doubt that on at least three occasions within the timeframe charged the appellant had in some respect “unlawfully and indecently dealt with a child” but they were not told that they had to be satisfied unanimously as to the commission of the same three instances. It was conceded by the Crown that the jury should have been directed that there had to be unanimity as to the commission of the same three acts. All members of the High Court said that this concession was rightly made and that the proviso to the appeal provision, applicable in cases where “no substantial miscarriage of justice actually occurred”, was not engaged.

3. [27]

   Brennan CJ, Toohey, Gaudron and Gummow JJ held as follows at 422-423:

4. [28]

   With effect from 15 January 1999 s 66EA was inserted in the NSW Crimes Act in the following terms (extracted so far as relevant). It remained in this form until replaced from 1 December 2018 with the provision that has been set out at [10] above:

5. [29]

   The Attorney General of the day proposed the insertion of this section on the basis that it would:

6. [30]

   In S v The Queen (1989) 168 CLR 266; [1989] HCA 66 the appellant had been tried on three counts of incest with his daughter, each offence alleged to have been committed on an unidentified occasion during a nominated year. The High Court held that the Crown’s failure to supply particulars of the alleged occasions had prejudiced the appellant in his defence and that the trial had been unfair. The complainant in that case was not able to be any more specific about the three counts than to say that the appellant had had sexual intercourse with her on multiple occasions during each of the three charge periods, “a couple of times … every couple of months”. Dawson J’s judgment at 274-276 included the following observations:

7. [31]

   To similar effect, Gaudron and McHugh JJ said this at 287-288:

8. [32]

   Section 66EA as inserted from 15 January 1999 was similar to s 229B of the Criminal Code (Qld), considered in KBT v The Queen. Both sections required that, in order to convict, a jury would have to be unanimous as to the same three instances of “act[s] defined to constitute an offence of a sexual nature” (in the case of s 229B(1)) or “conduct that constitutes a sexual offence” (in the case of s 66EA(1)). This has in subsequent cases been referred to as a requirement of “extended unanimity”. The High Court in KBT v The Queen recognised the requirement as flowing from an interpretation of s 229B informed by general principles of criminal proof in jury trials. In the original form of s 66EA extended unanimity was an express requirement by force of subs (6)(c).

9. [33]

   In the prosecution of offences under these two sections, because of the requirement of extended unanimity there was not taken away from the jury any significant issue concerning the extent of wrongdoing. The extent of reform in this area of the law, up to this point, was to dispense with the need for full and precise particulars of any unlawful sexual act alleged to have been committed against a child in the course of a sexual relationship, so that such an allegation could be tried and proved notwithstanding uncertainty of the complainant about date, place and other circumstances.

10. [34]

    In a prosecution under either of these sections, if the Crown should allege more than three separate instances of sexual offending, then although the jury would be directed as to the requirement of extended unanimity, a verdict of guilty would not of itself reveal which three acts they had found proved to the requisite standard. Nor would the verdict reveal whether the jury had found that the Crown’s evidence actually established more than three of the alleged instances, or all of them. The question of how, in this situation, the sentencing judge should determine the objective facts of the offending for the purpose of arriving at an appropriate sentence arose in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37. The appellant in that case had been convicted of an offence of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA), as then in force. Relevant subsections of that provision were as follows:

11. [35]

    The Crown particularised six acts as constituting the offence. The first, and least grave, was in these terms:

12. [36]

    The trial judge in Chiro v The Queen had refused a request by defence counsel that a special verdict should be taken as to which of the six particularised acts they found proved beyond reasonable doubt. Kiefel CJ, Keane and Nettle JJ summarised what occurred at first instance as follows:

13. [37]

    Kiefel CJ, Keane and Nettle JJ made these further observations concerning the necessity to determine, for sentencing purposes, which of the alleged “act[s] of sexual exploitation” had been committed:

14. [38]

    Their Honours considered that the trial judge had been right not to direct the jury to bring in a special verdict and that their general verdict of guilty was not uncertain. However, it was held that the judge should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved. As that course had not been followed, their Honours gave the following reasons for ordering that the appellant’s sentence be set aside and the case be remitted to the Court of Criminal Appeal for resentence (some citations omitted):

15. [39]

    The reasons of Bell J for joining in the above disposition of the appeal in Chiro v The Queen include the following:

16. [40]

    Edelman J dissented, holding that s 50 of the Criminal Law Consolidation Act, as then in force, had not modified the common law approach whereby a sentencing judge is permitted to find facts relevant to the circumstances and gravity of the offending provided that such findings are not inconsistent with the verdict of the jury and that any facts found adversely to the accused are established beyond reasonable doubt. His Honour concluded that s 50 did not contemplate or create a need for special questions to be asked of the jury and did not require that sentencing proceed on a deemed basis, most favourable to an offender, if special questions were not asked.

17. [41]

    In Gould v R [2021] NSWCCA 92 Adamson J (with whom Davies J agreed) analysed Chiro v The Queen at [193]-[247] and referred to cases in which the decision has subsequently been considered. The trial judge in Gould v R had given an extended unanimity direction with respect to particulars of the appellant’s conduct that were alleged to constitute the offence of attempting to pervert the course of justice. The jury returned a verdict of guilty after having been instructed that they had to be unanimous about at least one of the particulars. In the sentence proceedings, for the purpose of determining the objective gravity of the offence, the trial judge made his own findings as to which particulars had been proved beyond reasonable doubt, based on the evidence given in the trial. This Court held that he had been right to do so and was not bound to assume that only the least serious particular of the offence had been established to the jury’s satisfaction. Adamson J concluded that the principle of Chiro v The Queen, permitting sentencing upon a most favourable basis where an omnibus offence depends upon proof of underlying particulars that themselves constitute single offences of different types, does not extend more widely to all cases where an extended unanimity direction is required with respect to multiple particulars of alternate acts, any one or more of which would constitute the offence. Bathurst CJ considered the issue at [7]-[25] and expressed reservations as to whether the principle in Chiro v The Queen is limited to omnibus offences.

18. [42]

    The inapplicability of the principle to the charge under s 66EA in the present case is clearer still. The reasons and the conclusions of the majority in Chiro v The Queen depend fundamentally upon the circumstance that the jury in that case was directed, correctly, that in order to convict under s 50 of the Criminal Law Consolidation Act as then in force they would have to reach unanimity as to the same two or more acts of sexual exploitation separated by at least three days. Having regard to that direction, it could be taken from the guilty verdict that two or more such acts were the subject of findings made unanimously. The conclusion that the trial judge should have asked the jury which acts they had found proved depended, obviously, upon the premise that there were unanimous findings that could be identified. In circumstances where the judge had made no such enquiry of the jury, the default position that the two least serious particularised acts should have been adopted again proceeded on the basis that unanimous findings of the same two or more particular acts had been made and that the judge could only avoid passing sentence for a crime more grave than that of which the jury had found the offender guilty by assuming that they had been satisfied of only the two least serious instances. As a matter of logic, all of this reasoning would apply equally to a majority verdict in a case where the jury had been directed, in accordance with statute, that they might return a verdict in which a majority of them agreed.

19. [43]

    It has been observed earlier in these reasons that the form of s 66EA of the Crimes Act under which the respondent was prosecuted in the present case, as in force from 1 December 2018, did not require that in order to return a guilty verdict the jury would have to find unanimously that the same unlawful sexual acts took place to constitute the relationship maintained by him. The effect of the direction was that all jurors had to be individually satisfied that at least two acts had been committed but they did not have to agree upon which acts those were. It follows that the jury’s verdict of guilty on the count laid under s 66EA does not reflect that they made a unanimous finding upon any of the large number of unlawful sexual acts particularised in pars (a)-(h) on the indictment. The reasoning and conclusions of the majority of the High Court in Chiro v The Queen are therefore inapplicable. There would have been no basis upon which her Honour could have asked the jury to identify which acts they found proved. Such a request would have contradicted the summing up, which, in accordance with s 66EA(5)(c), did not require the jury to agree upon any of the acts: see pars 7-12 of the extract from the summing up quoted at [14] and [15] above.

20. [44]

    Likewise, there was no basis for her Honour’s adoption of the two least serious particulars. In light of the directions given pursuant to s 66EA(5)(c), the guilty verdict does not signify that the jury, as a collective body constituting the tribunal of fact, made any finding that any one of the alleged unlawful sexual acts was committed. Only findings that have been made unanimously (or by statutory majority, where circumstances permit) can be spoken of as findings of a jury. The satisfaction of one juror that particular (c) of the charge in this case had been proved beyond reasonable doubt would not be a jury finding. Nor would the satisfaction of three jurors with respect to an event within particular (a), or of seven jurors as to particular (e). In Cheatle v The Queen (1993) 177 CLR 541 the High Court identified the ancient origins and modern acceptance of “the common law’s unwavering insistence” that the verdict of a criminal jury must be unanimous. The statutory modification of the common law in New South Wales, permitting majority verdicts, does not detract from the essential nature of jury determinations, as expressed in the following statement quoted by the High Court from R v Bain [1992] 1 SCR 91 at 128:

21. [45]

    It could not be imputed to the jury that they found facts falling somewhere within a range between the two least serious particulars and, at the opposite extreme, all of the particulars. The jury must be taken to have complied with the s 66EA(5)(c) direction, meaning that as regards specific sexual acts they made no findings with which the sentencing judge could have endeavoured to be consistent. Conventional adoption of the two least serious particulars could not be justified as directed to achieving consistency. The adoption by the learned trial judge of any particulars at all, as if they represented the least serious findings inherent in the finding of guilt, in fact would involve sentencing the offender on a basis that exceeded anything the jury could be said to have determined unanimously against him.

Persistent child abuse offences that do not require extended unanimity

1. [46]

   Section 229B of the Criminal Code (Qld) was replaced with effect from 28 March 2003 by an entirely reworded section. The reformulation of the offence was evidently intended to dispense with the requirement of extended jury unanimity in respect of any of the unlawful sexual acts particularised by the prosecution as having been committed in the course of the relationship. The new section included the following subsections:

2. [47]

   Subsequent minor amendments have been made to s 229B but it has remained substantially in the above terms since March 2003. The substitution of this offence in place of the original form of s 229B was a much more significant development than the mere relief of the prosecution from the obligation to provide full particulars of individual sexual acts. The new section dispensed altogether with jury decision upon the commission of identifiable, individual sexual acts alleged to constitute a sexual relationship with a child.

3. [48]

   In R v CAZ [2011] QCA 231 the Queensland Court of Appeal considered a contention that the section offends Ch III of the Commonwealth Constitution because it dispenses with jury unanimity regarding the particularised unlawful sexual acts and because it does not require the prosecution to provide full particulars. In reliance on Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 60 it was argued that these features of s 229B have the effect that a District Court judge trying a charge under the section would not exhibit the essential defining characteristics of a Ch III Court.

4. [49]

   In rejecting the argument Fraser JA (Chesterman and White JJA agreeing) explained the operation of the section in the following paragraphs:

Interpretation of s 66EA of the Crimes Act

1. [50]

   For ease of reference the first two subsections of s 66EA as enacted from 1 December 2018 are now reproduced from the full text of the section, which is set out at [10] above:

2. [51]

   In his second reading speech when the Bill by which the current form of s 66EA of the Crimes Act was before Parliament, the Attorney General expressly stated that the amendment followed a recommendation of the Royal Commission into Institutional Responses to Child Abuse. The Executive Summary of the Royal Commission’s Criminal Justice Report issued in 2017 included the following at pp 38-39:

3. [52]

   The Commissioners’ full consideration of these issues is in Part III, Section 11, of the Report at pp 10-74. Their recommendations are set out at p 74 of Part III and repeated at p 41 of the Executive Summary, as follows:

4. [53]

   The Royal Commission’s draft provision in Appendix H to its Report (p 550) has been followed very closely in the drafting of s 66EA, except that the maximum penalty is imprisonment for life instead of for 25 years as proposed by the Royal Commission.

5. [54]

   Putting aside for the moment the operation of subs (2), the words “sexual relationship” in subs (1) would, according to ordinary usage, refer to multiple sexual acts committed reasonably frequently as part of an ongoing course of conduct. The use of the word “relationship” in other contexts may connote nothing more than a connection between people deriving from the status of each of them, or from respective offices that they hold. However, a sexual relationship necessarily consists of sexual activity. According to ordinary English meaning, the word “maintains” when used in relation to a sexual relationship, as occurs in subs (1), would refer to successive acts committed frequently enough to provide an element of connection and continuity so that the coherent course of activity that they constitute may be seen to be maintained by the perpetrator.

6. [55]

   Subsection (2) of s 66EA is drafted in terms that would usually signify a definition, in which the defined term is equated with circumstances or criteria that are both necessary and sufficient. But I do not consider that Parliament intended by subs (2) to prescribe that an “unlawful sexual relationship” for the purposes of subs (1) would be sufficiently established by proof, without more, of the commission of at least two unlawful sexual acts as defined in subs (15). For one thing, if that was Parliament’s intention then there would have been no reason to structure the offence across the two subsections. More directly the offence could have been drafted as follows:

7. [56]

   Secondly, if it were intended to define an “unlawful sexual relationship” as nothing more or less than an adult engaging in two or more unlawful sexual acts with or towards a child over any period, then the use of the word “maintains” in subs (1) would be incongruous. If two sexual acts would be sufficient, alone, to establish a sexual relationship, then “maintains” would be an inappropriate and redundant word. It would not be sensible to speak of an element of maintaining in a sequence of only two acts.

8. [57]

   Thirdly, the avowed purpose of the section as reflected in the Attorney General’s second reading speech was to give effect to the recommendation of the Royal Commission. As quoted at [51] above, the Royal Commission intended that its drafting at Appendix H would incorporate the structure of “the Queensland offence, in making the actus reus the relationship rather than the individual occasions of abuse”. If subs (2) of s 66EA were to be interpreted as making engagement in two or more unlawful sexual acts equivalent to, or sufficient to constitute, an “unlawful sexual relationship”, then s 66EA would not create an offence of which “the actus reus [is] the relationship rather than the individual occasions of abuse”, at all. If subs (2) were so interpreted, the actus reus and the gravamen of the offence would simply be the commission of the two or more acts.

9. [58]

   When introducing the Bill the Attorney General said this:

10. [59]

    Fourthly, Parliament’s intention is to be inferred and the section is to be interpreted with due regard for subs (5)(c), which is also reproduced here for ease of reference:

11. [60]

    On my reading of subs (2) it stipulates a minimum criterion of an unlawful sexual relationship for the purposes of the offence but does not specify sufficient facts to constitute such a relationship on their own. Subsections (2) and (5)(c) in combination have the effect that each juror, individually, must be satisfied that at least two unlawful sexual acts as defined in subs (15) were committed during the charge period. That threshold does not derogate from the necessity for the Crown to satisfy the jury, unanimously and beyond reasonable doubt, that the accused maintained a sexual relationship with the complainant child according to the ordinary understanding of the words “maintains” and “sexual relationship” discussed at [54] above.

12. [61]

    On this view, subs (2) performs a negligible function. The definition of unlawful sexual act in subs (15) refers to a wide range of offences encompassing every conceivable kind of sexual misconduct towards a child. A jury would not be able to find that an accused maintained a sexual relationship with a child without finding multiple sexual acts that would necessarily fall within the definition in subs (15). The minimum criterion specified in subs (2) would always be incidentally satisfied. The principle of statutory interpretation according to which the Court usually does not assign a meaning that would render some words redundant must in this instance give way to the other considerations to which I have referred. Subsection (2) appears to be an unnecessary and ineffectual carryover from subs (1) of the previous iteration of s 66EA (quoted at [28] above).

13. [62]

    I conclude that s 66EA is to be interpreted as requiring that in order to return a verdict of guilty on a count laid under the section, a jury would have to be satisfied that for some duration within the charge period the accused committed against the complainant child multiple unlawful sexual acts, as defined in subs (15), with a frequency and continuity of the same order as that which the Queensland Court of Appeal has held to be required under s 229B of the Criminal Code (Qld). It is an element, indeed it is the gravamen, of the offence that multiple unlawful sexual acts must have been perpetrated not merely in isolated circumstances or sporadically but with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity. This may be characterised as a course of conduct offence, comparable with offences of trafficking in drugs or keeping a disorderly house, as referred to by Brennan CJ, Toohey, Gaudron and, Gummow JJ in KBT v The Queen at p 42.

14. [63]

    In accordance with the general law of criminal procedure the jury must be satisfied of the requisite degree of continuity either unanimously or by majority under s 55F of the Jury Act 1977 (NSW). The jury must find that the accused maintained the relationship. Conduct amounting to maintaining would commonly be inferred from the inherent nature of adult sexual activity with a child, from the recurrence of sexual acts and from the imbalance of influence and sexual awareness that would exist between an adult accused and a child complainant. A sexual relationship with a child would almost self-evidently be maintained by the adult.

15. [64]

    The degree of continuity that is necessary to constitute a sexual relationship and to demonstrate that it was being maintained by the accused will necessarily be a matter for the jury to evaluate, within a wide latitude, on the facts of each case. Section 66EA has been drafted in such terms that a verdict of guilty on a charge laid under the section will, of itself, always be entirely opaque as to what, specifically, the convicted offender has done and what he is to be punished for. The Report of the Royal Commission shows that the offence has been created in this form expressly to enable the prosecution to secure convictions where a complainant’s evidence is thought to be insufficiently clear and cogent to support findings beyond reasonable doubt regarding specific instances of misconduct. It is unsurprising that a section designed to create criminal liability on the basis of uncertain evidence should give rise to verdicts of uncertain import.

Directions on continuity of sexual acts in the present case

1. [65]

   The respondent in this case has not appealed against conviction. The relevant parts of the summing up have been extracted at [14] and [15] above. With due respect, there were internal contradictions between (a) her Honour’s statement at par 4 that the familial relationship of father and daughter “satisfies that element of the offence”; (b) the reference to “an habitual, continuous course of sexual activity between herself and accused” at par 5; (c) the reiteration of the wording of subs (2) in the last sentence of par 6 and (d) the statement at pars 11 and 12 that the critical element of an unlawful sexual relationship would be sufficiently established by non-unanimous findings of at least two sexual acts.

The absence of findings about the nature and extent of the offending

1. [66]

   In a prosecution under s 66EA, the fact that the jury need only be unanimous as to the maintenance of a sexual relationship without having to make unanimous findings about any specific sexual acts has the consequence that upon a verdict of guilty being returned and the jury being discharged there has been no determination of any of the facts that must be ascertained in order to assess, meaningfully, what the offender is to be punished for. Any instance of maintaining such a relationship will be serious. Obviously some instances will be worse than others. A sentencing judge must decide where the case before him or her stands, on a scale up to the worst category warranting life imprisonment.

2. [67]

   In the present case the gravity of the respondent’s offence could be assessed very differently according to how many, if any, instances of digital penetration occurred as alleged in particular (a). Sexual acts of this type were alleged to have been perpetrated “frequently” between 31 January 2013 and 30 January 2014. Is there proof beyond reasonable doubt that they occurred monthly, giving rise to 12 instances, weekly, giving rise to 52 instances, or at some other frequency? Were the occasions spread evenly over the nominated period so that, in this respect, sexual activity was carried on for a full year; or did all of the frequent digital penetration take place within six months, for example?

3. [68]

   Similar factual issues must be resolved in relation to the allegations in particular (d) (that the accused “frequently” had penile-vaginal intercourse with the complainant between 31 January 2014 and 27 December 2016, a span of nearly three years) and in particular (h) (that the accused “frequently” attempted to perform cunnilingus during the nearly four years between 31 January 2013 and 27 December 2016). The earliest date particularised for any sexual act is 31 January 2013 and the latest date is 27 December 2016. If there should be no finding of the commission of sexual acts falling within some paragraphs of the particulars then the duration of the sexual relationship would shorten to something less than this interval of four years. If it should be found that only sexual acts of the kind particularised in pars (a), (b) and (c) took place then the relationship for which the respondent is to be punished would have subsisted for only one year.

4. [69]

   The Crown asked her Honour to find a more serious course of conduct than merely the two least significant pleaded particulars. There was evidence in the trial bearing upon some of the above-mentioned issues of gravity. Difficulties in resolving those issues beyond reasonable doubt, having regard to the quality of the evidence, are referred to below. The present concern is not whether findings by the judge would be of greater seriousness than the two least significant matters. The concern is that, for a sentence to be passed, there have to be evidence-based findings of a tribunal of fact concerning the extent and seriousness of the offending. At present there are none. There are none by the jury as a collective body because they were not required to reach unanimity on any particular act or acts and there are none by the judge because the two least grave particulars were just adopted conventionally. Evidence-based findings are essential to this Court’s consideration of whether the sentence imposed at first instance is inadequate. Public confidence in the ultimate sentencing outcome depends upon the facts of the misconduct having been determined by a lawful and credible process.

5. [70]

   As the decision in Chiro v The Queen is inapplicable for the reasons given at [42]-[45] above, the learned trial judge was required to determine the facts of the respondent’s offending, applying the principles established in The Queen v Olbrich, Cheung v The Queen and R v Isaacs. This Court should remit the case to the District Court for her Honour to undertake that task.

The task of the sentencing judge on the proceedings being remitted

1. [71]

   Upon return of the sentence proceedings to the District Court the learned judge will be required to apply the criminal standard of proof beyond reasonable doubt. Yet the whole premise of the introduction of s 66EA from 1 December 2018 and, presumably, the premise of the Director of Public Prosecutions’ approval under subs (14) for the laying of this charge, is that the complainant’s evidence is not adequate to prove any of the particularised sexual acts (a)-(h) beyond reasonable doubt. If the complainant’s evidence was capable of meeting that standard of proof then specific substantive child sexual offences could and should have been charged so that the jury’s verdict could have been taken.

2. [72]

   A patently contradictory and unsatisfactory situation arises as a direct consequence of s 66EA having been drafted with the object of enabling an accused to be convicted on the indistinct basis that he or she maintained a sexual relationship, the content and physical acts of which do not have to be resolved at the point of the jury determining guilt. After a guilty verdict the section reposes in the trial judge the heavy responsibility of fixing a penalty that may be as great as imprisonment for life, the maximum possible punishment under the law of this State, without the benefit of implicit unanimous jury findings upon any specific acts that comprised the relationship and in reliance upon evidence that the prosecution has implicitly deemed insufficient to prove any such acts, to the criminal standard, if charged separately.

3. [73]

   It may be that in this and in other cases where a charge has been laid under s 66EA the complainant could have given evidence sufficient to prove individual sexual acts to the criminal standard, if questioned with sufficient patience and care. This Court is aware from its own lists of many cases in which multiple substantive charges have been successfully prosecuted on evidence from complainants who were children when the offences were committed. In some such cases the complainant has still been a very young child at the date of trial and in others evidence has been given of historical offences. In the present case the existence of s 66EA appears to have invited a lax approach to police questioning of the complainant in her interviews. No attempt was made to have the complainant identify specific instances of particulars (a), (b), (d) or (h). She was not asked how frequently the alleged sexual acts in pars (a), (d) or (h) took place. Her answers referrable to the other particulars concerned single instances, or finite numbers of instances, and could possibly have been better identified by the complainant if she had been pressed. The transcripts of the interviews record no sign of distress or resistance to questioning.

4. [74]

   Further questions may have elicited sufficient particulars to have enabled substantive charges to be submitted to the jury. If that had occurred, the jury’s determination on individual counts would have averted the unsatisfactory situation that now arises as referred to above. In her police interviews the complainant described, in unquantified and non-specific terms, extensive sexual activity practised upon her by her father. Assuming that any significant part of that conduct should be found proved beyond reasonable doubt, the respondent would surely receive condign punishment. Thus far, no actual finding has been made, by any tribunal, of what, specifically, the respondent has been proved to have done to constitute the “unlawful sexual relationship” with his daughter.

5. [75]

   This case does not demonstrate any practical utility in the laying of a charge under s 66EA. It illustrates how the section has worked a less than transparent shift of decision-making, on very significant questions of criminal culpability, from jury to judge.

6. [76]

   The effect of a Crown election to lay a charge under s 66EA is to deny the accused trial by jury on specific allegations of sexual acts; to have the accused tried by jury on a threshold, generalised issue of whether a sexual relationship was maintained; then to have specific allegations of what he is to be punished for litigated for the first time in a post-conviction hearing by a sentencing judge alone. The following observations by Kirby J in Cheung v The Queen at [134]-[135] are pertinent to the exercise of the Director’s power to approve prosecutions under this section:

7. [77]

   Certainly it is commonplace, as observed by Gleeson CJ, Gummow and Hayne J in Cheung v The Queen, that “the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability”. The significant innovation in s 66EA is that it leaves everything of substance to be decided by judge alone in the sentence hearing. The only prerequisite is a guilty verdict that is both obscure as to the scope of the wrongful conduct that constituted the relationship and explicitly lacking unanimous jury acceptance of even one or two specific alleged acts.

Conclusion on Crown appeal ground 1

1. [78]

   For the above reasons I conclude that her Honour erred in sentencing the respondent upon the basis of “the most favourable findings as to sexual acts committed by him, that is, the least serious of the acts particularised in the indictment”. There were no such findings of the jury and the learned judge made none. The Crown appeal should be allowed, the sentence imposed by her Honour quashed and the proceedings remitted to the District Court for rehearing on sentence and redetermination.

Crown appeal ground 2 – manifest inadequacy

1. [79]

   In view of the conclusion I have reached on the Crown’s first ground and the orders that I consider should be made, ground 2 of the Crown appeal, asserting manifest inadequacy of sentence, does not arise and cannot be determined. No findings of fact concerning the degree of the respondent’s culpability have been made at first instance on a legally supportable basis. Until that has occurred, this Court cannot consider the Crown’s contention of manifest inadequacy.

Respondent’s ground 1 – maximum penalty for the s 66EA offence

1. [80]

   The respondent’s argument on his ground 1 is that s 66EA as enacted with effect from 1 December 2018, being the provision under which he was convicted, is an amendment of the previous form of this offence for which a maximum penalty of 25 years imprisonment was provided. The respondent submits that the prescription of a maximum penalty of life imprisonment in the replacement section should be regarded as an increase by amendment, to which s 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies. Relying upon the retrospective application of the new wording of s 66EA, by force of subs (7), the respondent was prosecuted for an offence alleged to have occurred before 1 December 2018. He submits that s 19 of the Crimes (Sentencing Procedure) Act has the effect that the maximum penalty for his offence was the pre-amendment maximum of 25 years.

2. [81]

   The learned sentencing judge proceeded on the basis that the maximum was life imprisonment. The Crown argued that this was correct because the form of s 66EA that came into force with retrospective effect from 1 December 2018 was not an amendment of the previous section bearing the same number but an entirely new and different provision.

3. [82]

   This precise question was determined, favourably to the Crown’s present contention by majority (Bell P and Price J) in Xerri v R [2021] NSWCCA 268. The reasoning of Price J is at [76]-[112]. Bell P concurred at [1]. Price J said this:

4. [83]

   The Court as presently constituted is bound to follow the decision in Xerri v R unless satisfied that it is plainly wrong: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76; XY v R (2013) 84 NSWLR 363; [2013] NSWCCA 121; Park v R [2020] NSWCCA 90. Far from being so satisfied, I respectfully agree with the reasons and conclusion of the majority in Xerri v R. The learned sentencing judge made no error in taking into account the maximum penalty of imprisonment for life and I would reject ground 1 of the respondent’s application for leave.

Respondent’s ground 2 – maximum penalty for attempt sexual intercourse

1. [84]

   The respondent’s ground 2 arises from her Honour’s decision to pass sentence on the basis of the two “least serious of the sexual acts particularised on the indictment”, of which one was par (h), as follows:

2. [85]

   The sentencing judge made no determination of how frequently the respondent carried out the alleged attempts to perform oral intercourse. Her Honour proceeded by imputing to the jury that they had found that acts of this nature were committed throughout the period of nearly four years nominated in par (h). From 31 January 2013 to 31 January 2015 these acts would have occurred when the complainant was aged 8-9 years and for the remaining two years of the particularised period, up to 27 December 2016, she would have been aged 10-11.

3. [86]

   It has been mentioned earlier in these reasons that by force of subs (8) of s 66EA her Honour was required to take into account the maximum penalty for the acts of attempted oral intercourse at the time each was committed. Such acts committed up to 30 January 2015 would have constituted offences contrary to s 66B of the Crimes Act, committed against a child under the age of 10 years, with a maximum penalty of 25 years. Such acts between 31 January 2015 and 27 December 2016 would have been offences contrary to s 66D, committed against a person aged between 10 and 14 years in circumstances of aggravation, carrying a maximum of 20 years imprisonment.

4. [87]

   Her Honour was in error in her understanding that all acts comprised in par (h), whenever committed within the particularised period, would have attracted a maximum of 25 years if prosecuted as separate offences. Upon the basis that the Crown appeal should be upheld and the matter remitted to the District Court for redetermination of sentence, it is not necessary to grant leave to the respondent to appeal or to uphold this ground. The error having been identified, it can be avoided upon resentence – assuming that the sentencing judge finds beyond reasonable doubt that the respondent made attempts to perform oral intercourse on the complainant, as alleged in par (h), and that he did so both before and after her tenth birthday

Respondent’s ground 3 – assumption of multiple sexual acts under par (h)

1. [88]

   The respondent’s ground 3 asserts that once her Honour had determined to sentence the respondent on the basis of the most favourable view of the facts that could have supported the jury’s verdict, being that he committed the two “least serious of the sexual acts particularised on the indictment”, it was an error to assume the commission of multiple unlawful sexual acts of the type particularised in par (h). The respondent submitted that the “most favourable basis” would be just two individual sexual acts, not one act as described in par (c) plus numerous, frequently committed acts as described in par (h). On the view that I have taken it was not open to her Honour to adopt a “most favourable basis” and she was bound to make findings of fact with respect to what sexual acts had been perpetrated in the sexual relationship. Therefore, this ground does not arise.

Addendum re Crown appeal ground 1 – Henry v The Queen [2022] SASCA 60

1. [89]

   After these reasons had been prepared the Court of Appeal of South Australia handed down its decision in Henry v The Queen [2022] SASCA 60. That case concerned s 50 of the Criminal Law Consolidation Act as in force from 24 October 2017, which replaced the previous section of that number quoted at [34] above. The new section is set out in the judgment of Doyle JA at [65]. Sub-sections (1) and (2) of s 50 are identical to sub-ss (1) and (2) of s 66EA of the New South Wales Crimes Act. Sub-sections (3), (4) and (5) of s 50 are worded very similarly to sub-ss (4) and (5) of s 66EA and are to substantially the same effect. In particular, s 50(4)(c) of the Criminal Law Consolidation Act dispenses with any requirement that the jury should be unanimous as to particular sexual acts forming part of an alleged sexual relationship.

2. [90]

   All members of the court in Henry v The Queen held that Chiro v The Queen does not apply to sentencing under the current form of s 50 and that the sentencing judge must determine beyond reasonable doubt the facts upon which sentence is to be passed, rather than adopt the most favourable particulars: at [27], [28] and [31] (Livesey JA); [95], [96], [100] and [101] (Doyle JA); [145] (David JA). As explained above, I have reached the same conclusion with respect to s 66EA. On the other hand, at [87]-[89] Doyle JA describes as “relatively settled”, pursuant to South Australian decisions, a view of what has to be proved in order to establish that an accused has “maintain[ed] an unlawful sexual relationship with a child” which is quite different from the view that I have reached (see [54] and [60]-[64] above) and from that which I understand the Queensland Court of Appeal to have decided regarding the equivalent provision in that state (see [49] above).

Orders

1. [91]

   I propose the following orders:

   1. (1)

      Allow the Crown appeal.

   2. (2)

      Quash the sentence passed in the District Court on 4 June 2021 in respect of count 2 being the offence of maintaining an unlawful sexual relationship with a child under the age of 16 contrary to s 66EA of the Crimes Act 1900.

   3. (3)

      Remit the proceedings to the District Court for rehearing with respect to sentence for count 2.

   4. (4)

      List the sentence proceedings in the District Court Newcastle on 7 July 2022 at 9.30am for allocation of a hearing date.

   5. (5)

      Dismiss the offender’s application for leave to appeal against sentence.