Xerri v R

1. [1]

   BELL P: I agree with the reasons of Price J and the orders his Honour proposes.

2. [2]

   PRICE J: Section 66EA(1) of the Crimes Act 1900 (NSW) provides that an adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The maximum penalty is imprisonment for life. The section commenced on 1 December 2018.

3. [3]

   An unlawful sexual relationship is defined in s 66EA(2) as a “relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period”.

4. [4]

   The unlawful sexual acts which constituted the offence contrary to s 66EA(1) to which the applicant pleaded guilty took place between 9 November 2016 and 14 July 2018.

5. [5]

   At the time the applicant committed these unlawful sexual acts, the maximum penalty for an offence contrary to s 66EA(1) (“the predecessor offence”) was 25 years imprisonment. The predecessor offence was repealed on 1 December 2018.

6. [6]

   When the applicant was sentenced by Wass SC DCJ (“the judge”) on 12 February 2020, none of the parties raised with her Honour that the applicable maximum sentence was other than life imprisonment. Unsurprisingly, her Honour in her remarks on sentence stated that the offence carried a maximum penalty of life imprisonment.

7. [7]

   The applicant contends in this Court that her Honour was in error when he was sentenced “on the basis that the maximum penalty was life imprisonment when the maximum sentence applicable at the time of offending was 25 years imprisonment” (Ground 1 of the appeal).

8. [8]

   He also complains that his sentence is manifestly excessive (Ground 3 of the appeal). The applicant’s argument on the applicable maximum penalty is central to both grounds of appeal.

9. [9]

   The second ground of appeal raises the contention that her Honour “erred in accumulating the sentence imposed for the s 166 related matter”.

10. [10]

    I will now turn to the sentencing proceedings and the judge’s remarks on sentence.

The sentence proceedings

1. [11]

   The applicant pleaded guilty on arraignment in the Newcastle District Court on 29 August 2019 to an offence contrary to s 66EA(1) of the Crimes Act which was in the following terms:

2. [12]

   The applicant also pleaded guilty to a charge of contravening an apprehended violence order (“AVO”) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which had been placed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (“the CPA”).

3. [13]

   The proceedings on sentence took place before the judge on 7 February 2020.

4. [14]

   A victim impact statement was read to the court and a report from Tamar Macks, a clinical psychologist from the Newcastle Sexual Assault Service was tendered in the Crown case as was a statement of agreed facts.

5. [15]

   Ms Macks reported that the victim had been attending fortnightly counselling which had addressed ongoing symptoms of a trauma response. It was considered that the victim exceeded the criteria for Posttraumatic Stress Disorder.

6. [16]

   Ms Macks reported that the victim’s symptoms include “severe levels of distressing intrusive memories, frequent distressing dreams, extreme levels of flashbacks (daily) where she experiences physical sensations of being harmed by [the applicant]”. [1]

7. [17]

   Ms Macks considered that the victim had developed strong negative cognitive beliefs of self-blame, lack of trust of others, and a belief that she is “bad” and “wrong”. The victim described “often feeling distressed and depressed, leading to an ongoing struggle with urges to deliberately self-harm”. She had great difficulty with being able to sleep, was estranged from her biological family and experienced a lack of meaningful emotional connection to others in a safe environment.

8. [18]

   Ms Macks opined that the victim was vulnerable to being taken advantage of by others and was in need of ongoing support. Ms Macks considered that the victim would require long-term ongoing trauma focussed counselling as a direct result of the applicant’s ongoing psychological grooming and sexual assault of the victim.

9. [19]

   The applicant did not give evidence but written material was tendered in his case which included a report from Dr Travis Wearne, a psychologist and Dr Amanda White, a forensic psychologist and clinical neuropsychologist (“the Pulman report”).

10. [20]

    Dr Wearne, who conducted a neuropsychological assessment of the applicant, reported that the applicant presented with “extremely low” verbal intellectual skills, attention and processing speed, “borderline” perceptual reasoning abilities and “low average” working memory. [2] Dr Wearne considered that there was no evidence of adaptive difficulties in his day to day functioning and opined that his demonstrated independence with daily activities, including his success in engaging in full time employment, was inconsistent with a diagnosis of an intellectual disability.

11. [21]

    Dr White reported there was no evidence to suggest that the applicant had a history of or was currently suffering a mental illness. His offending behaviours, Dr White wrote, suggested some sexual deviance.

12. [22]

    The results of neuropsychological testing indicated, Dr White reported, that the applicant’s overall intellectual functioning fell within the “Extremely Low” range. Dr White considered that the applicant’s visual reasoning and non-verbal skills were “a strength, falling within the Borderline range”. [3]

13. [23]

    Dr White reported that the applicant did not express any contrition or remorse nor did he take responsibility for his actions or their implications and did not accept guilt.

14. [24]

    After hearing oral submissions, the judge reserved her decision until 12 February 2020. On that day, the judge sentenced the applicant for the s 66EA offence to a term of imprisonment of 8 years with a non-parole period of 4 years 9 months to date from 14 September 2018.

15. [25]

    For the contravention of the AVO, her Honour sentenced the applicant to a fixed term of imprisonment for 4 months to date from 14 July 2018.

16. [26]

    The overall sentence was one of 8 years 2 months with a non-parole period of 4 years 11 months. The applicant will be eligible for release to parole on 13 June 2023.

Details of the s 66EA(1) offence

1. [27]

   The applicant was born on 18 March 1968 and the victim was born on 10 October 2002. The victim and the applicant’s son commenced a relationship in mid-2014. In late 2014, the applicant began spending more time around the victim when she was visiting his son. His actions included touching her inner thigh, giving her a mobile phone and telling her that he was attracted to her.

2. [28]

   Their relationship got to a point where they were communicating nearly every day. The applicant told the victim that he was attracted to her and they soon began communicating about wanting to have sexual intercourse with one another. At that time, the victim and the applicant’s son were still in a relationship. This relationship ended in 2016.

3. [29]

   On 10 November 2016, the applicant, who was 48 years old and the victim, then 14, had sexual intercourse for the first time. This concluded with the applicant ejaculating inside her vagina.

4. [30]

   After their first act of sexual intercourse, the victim and the applicant considered themselves to be in a consensual intimate relationship.

5. [31]

   Between 10 November 2016 and 1 January 2017, the applicant and the victim had penile vaginal intercourse for the second time, with the applicant ejaculating inside her vagina.

6. [32]

   In early 2017, the applicant and the victim had penile vaginal sexual intercourse on another occasion. The applicant ejaculated inside the victim’s vagina.

7. [33]

   In the first half of 2017, the applicant and the victim had penile vaginal intercourse together almost every Thursday at her parent’s house and every weekend in the applicant’s house. The only exceptions to that were when the applicant was menstruating, but that was very irregular due to a birth control implant.

8. [34]

   In July 2017, the victim was placed into Allambi Care.

9. [35]

   From July 2017 to 14 July 2018, the applicant and the victim had penile vaginal sexual intercourse at the applicant’s house on occasions when she ran away from Allambi Care.

10. [36]

    On 20 April 2018, the applicant picked up the victim without the consent of her carers. She became a “Missing Person” after police were notified. On 24 April 2018, police attended the applicant’s address to serve him with an AVO which prohibited him from contacting the victim or her parents in any way. After initial denials, the applicant admitted the victim was with him inside his home. She was returned to her carers.

Details of the contravention of the AVO – the s 166 matter

1. [37]

   On 13 July 2018, the applicant sent the victim a number of text messages of an intimate and sexual nature. These included a message that read “you need to learn how to look after your husband as we need to really learn and how to truly love him and only him” followed by an MMS picture of his flaccid penis. The applicant then sent the following message, “I sent you another photo of your little boy so turn on your data” to which the victim replied, “Thanks he is very sexy”. Further text messages were exchanged and a plan was formed for the applicant to attend the victim’s house whilst her parents were out.

2. [38]

   The applicant drove and parked his vehicle about 80 metres from the victim’s home. He approached the house on foot and entered the victim’s bedroom through the bedroom window. Later, a neighbour saw him jumping out of the bedroom window and returning to his vehicle. The neighbour confronted him and police were contacted.

3. [39]

   Police subsequently called the applicant, who admitted to having recently been at the victim’s address on her request. At 10:30pm, the applicant sent more text messages to the victim enquiring as to the whereabouts of her parents and asking her to call. The victim did not respond until the following morning.

4. [40]

   On 14 July 2018, the applicant was arrested.

The remarks on sentence

1. [41]

   Before summarising the agreed facts, the judge said that an offence contrary to s 66EA(1) of the Crimes Act carried a maximum penalty of life imprisonment and there was no standard non-parole. Her Honour observed that the maximum penalty served as a valuable guidepost in the overall sentencing process.

2. [42]

   In determining the objective seriousness of the s 66EA(1) offence, the judge took into account the maximum penalties of the actual acts that made up the offence. Her Honour said “[t]hey are instructive but not determinate”. Her Honour also took into account that the relationship continued for “about a year and eight months, ceasing only with the intervention of others”. However, her Honour noted that the “grooming behaviour” commenced some two years earlier.

3. [43]

   The judge found that the applicant took steps over many months in order to commit the crime. He bought the victim a mobile phone so she could contact him and “where her parents had not allowed her to have one”. The applicant had been told by his son to stop but he persisted whilst the victim was in a relationship with his son. The judge found that the applicant must have known that his offending was wrong but her Honour concluded that it was the kind of planning that is inherent in the offence and was not an aggravating factor.

4. [44]

   Her Honour referred to the victim impact statement and noted that the facts did not disclose actual physical violence although the victim impact statement spoke of an abusive, controlling and violent relationship. Her Honour said that the statements by the victim which spoke of her loss of childhood and family, her depression, insomnia, frustration, other emotional problems and her lack of trust and understanding of healthy relationships were “sadly the very kinds of ongoing and deep, detrimental effects of this kind of offending”.

5. [45]

   The judge noted that the sexual activity included a number of occasions of penile vaginal intercourse with ejaculation but observed that although the victim had a birth control implant, there was “no added suggestion of the further aggravating feature of there being any real risk of pregnancy”.

6. [46]

   Her Honour found there had been no strict parent or protective relationship between the two. Her Honour declined to make a finding that the applicant was in a position of trust or authority.

7. [47]

   Her Honour recounted that the sexual intercourse took place between the victim and the applicant when the victim was between 14 and almost 16 years old. However, her Honour observed that the sexual grooming behaviour commenced when she was 12. The applicant was aged between 46 and 50.

8. [48]

   The judge said that although the victim was not significantly younger than the maximum age of 16, it was relevant that she was “a young person burgeoning into adulthood”. The victim, her Honour said, was “at a particularly impressionable stage of her life where she was no doubt exploring her own sexuality and vulnerable to the types of attention that [the applicant] bestowed on her and which made it easy…for him to progress the matter sexually”. Her Honour took into account that some of the offending occurred in the victim’s home.

9. [49]

   The judge found that the offending was “below the mid-range of seriousness of offending although, not significantly so”.

10. [50]

    As to the applicant’s plea of guilty, the judge said that she did not regard it as an indication of remorse “where [the applicant]…denied his offending, offered no explanation and expressed absolutely no regret”. However, her Honour noted that he had at least spared the victim “the added trauma and indignity of having to give evidence in a trial”. The judge allowed a discount on sentence of 20% for the plea. Her Honour observed that at the age of 52, the applicant had no relevant convictions but noted an assault on his record in 1995. Her Honour considered that the applicant’s very limited criminal history would result in some leniency on sentence. Her Honour also noted that it would be the applicant’s first experience of full time custody.

11. [51]

    In further referring to the applicant’s subjective case, the judge accepted the applicant’s personal history in the Pulman report and took into account the information provided by Dr Wearne and the opinions reached. The judge accepted the findings of the applicant’s low intellectual functioning, his vulnerability in his own childhood, his previous issues and insecurities with respect to “past adult [intimate] relationships”, which her Honour said, “may have made him more predisposed to forming a relationship with someone so much younger and more vulnerable than he was”.

12. [52]

    The judge observed that there had been no expressions of understanding or remorse. Her Honour said that “even in the face of pleading guilty, [the applicant] denied his offending to his psychologist, a person who was in place to help him”. The judge considered that kind of denial “[was] counter-productive to any form of rehabilitation”.

13. [53]

    There was, her Honour said, a prospect that the applicant would not offend again because of his lack of a criminal record. However, her Honour had little doubt that, should the applicant be placed in the same situation again, there would be a very real risk of similar offending. The judge referred to the applicant’s lack of insight into his offending and his lack of willingness to explore the reasons and motivation for offending. Her Honour considered that the applicant needed significant counselling and psychological treatment.

14. [54]

    When referring to general deterrence, the judge said that given the low level of the applicant’s intellectual functioning, “this is a matter not particularly a good example to set for general deterrence”.

15. [55]

    The judge found special circumstances based on the need for a lengthy treatment regime, including in the community, “particularly given [the applicant’s] intellectual and cognitive deficits”. Her Honour said that the applicant would serve his time in full time custody more onerously than would ordinarily be the case.

16. [56]

    When sentencing the applicant for the s 166 matter, the judge found that the contravention of the AVO was inextricably bound up in the offending, however it was a serious breach. Her Honour imposed the sentences which are detailed at [24]-[26] above.

Ground 1: The Sentencing Judge erred by sentencing the applicant on the basis that the maximum penalty was life imprisonment when the maximum sentence applicable at the time of offending was 25 years imprisonment

1. [57]

   The applicant submitted that during the period of his offending (9 November 2016 to 14 July 2018), the predecessor offence carried a maximum penalty of 25 years imprisonment. However, the section was amended, including a change in the maximum penalty to life imprisonment to commence on 1 December 2018.

2. [58]

   The applicant placed reliance on s 19 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”) which provides that if an Act increases a penalty, the increased penalty applies only to offences committed after the commencement of the provision of the Act which in this case was 1 December 2018.

3. [59]

   Particular reference was made to s 66EA(8), which specifies that a court imposing a sentence for an offence concerning a relationship that existed wholly or partly before the commencement of the relevant amendments must take into account the maximum penalties for the unlawful sexual acts engaged in; however, it does not specify how the previous maximum penalty for a s 66EA(1) offence was to be taken into account.

4. [60]

   The applicant noted that the “new” s 66EA(1) was introduced by virtue of the enactment of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The applicant pointed out that by virtue of the same amending legislation, s 25AA of the CSP Act was introduced which included subsection (4) which notes that s 25AA does not affect s 19 of the CSP Act.

5. [61]

   The applicant cited R v MJR (“MJR”) [4] in which s 19 was considered, and placed emphasis on [19]-[27] and [31] of Spigelman CJ’s judgment. Whilst the applicant accepted that this decision predated the introduction of s 25AA, the applicant submitted that the “principle of perceived fairness” was not narrowly confined.

6. [62]

   A further submission was made that the present circumstances were not comparable to those in Siganto v The Queen (“Siganto”). [5]

7. [63]

   The applicant referred to the Second Reading Speech delivered by the Honourable Mark Speakman SC, the Attorney General of NSW (“the Attorney General”), in relation to the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (“the Bill”) in the Legislative Assembly on 6 June 2018 and observed that there was no express statement by the Attorney General to make the maximum penalty for the “new” s 66EA offence retrospective. The applicant submitted that if the Parliamentary intention had been to retrospectively increase the maximum penalty, an express statement would be expected which would include a reference to s 19 of the CSP Act not applying.

8. [64]

   In oral argument in this Court, Ms Rodger, counsel for the applicant submitted that s 66EA should not be considered a new offence, but a re-working of an existing offence. Ms Rodger argued that the object of the re-working was to implement the recommendations of the Royal Commission and to amend the section to bring it into “equivalencies with other sections in jurisdictions in Australia such as Queensland and [S]outh Australia”. [6]

9. [65]

   Ms Rodger argued that the reformulated s 66EA was substantially similar to the predecessor offence. Ms Rodger submitted that the use of the term “predecessor” in the section supported the contention that the “new” s 66EA was a reformulation of the offence and not a new offence.

10. [66]

    Ms Rodger submitted that s 66EA(8) did not address the same subject matter as s 19 of the CSP Act.

11. [67]

    The Crown argued that s 66EA was repealed and reconstituted in a new offence on 1 December 2018. The Crown submitted that the relevant amendments incorporated a “manifest legislative intention that the new s. 66EA [has] retrospective effect” which was “easily discernible from the legislative text”. [7]

12. [68]

    The Crown observed that it was uncontroversial that courts will give effect to a clear intention that a new statutory regime will operate retrospectively and cited Siganto. The Crown’s argument was that the current s 66EA was an entirely new offence with distinct elements.

13. [69]

    The gravamen of the current offence, the Crown argued, involved the maintenance of an unlawful sexual relationship, being an element that was not present in the predecessor offence. The Crown pointed out that in addition, the number of sexual offences requiring particularisation had become not less than two (as opposed to three) and the current offence did not require the jury to agree on the unlawful sexual acts that formed the unlawful sexual relationship.

14. [70]

    The Crown contended that the effect was not to “increase the maximum penalty for the [then] s 66EA(1) offence”, [8] but to “enact a new offence, carrying a maximum penalty of life imprisonment, with retrospective effect”. [9] The Crown argued that s 19 of the CSP Act had no work to do and did not assist the applicant.

15. [71]

    The Crown contended that the plain intent of the amending provisions to replace the predecessor offence with a new offence was supported by the Attorney General’s Second Reading Speech.

16. [72]

    The Crown submitted that the predecessor offence did not apply retrospectively, whereas the operation of the current offence applies “even to an unlawful relationship that existed wholly before the commencement of the predecessor offence on 15 January 1999”. [10]

17. [73]

    Another argument was that the applicant’s construction created an absurdity whereby relevant offending between 15 January 1999 and 30 November 2018 (the operation of the predecessor offence) would attract a maximum penalty of 25 years imprisonment, whereas the same offending committed prior to that period, being a time when there was no like offence for persistent sexual abuse of a child, would attract the current maximum penalty of imprisonment for life.

18. [74]

    The “predecessor offence”, which commenced on 15 January 1999, provided as follows:

19. [75]

    The current offence in s 66EA(1) of the Crimes Act is as follows:

20. [76]

    At the time of the applicant’s sexual offending and his arrest, the maximum penalty for the predecessor offence was 25 years imprisonment. However, when he was arraigned in the District Court on 29 August 2019, the predecessor offence had been repealed and the s 66EA(1) offence to which he pleaded guilty had a maximum penalty of life imprisonment.

21. [77]

    The Crown’s contention that the applicable maximum penalty is life imprisonment faces two hurdles. The first is the general assumption that legislation is not intended to operate retrospectively, which Professor Pearce explains “is most strictly applied in relation to Acts creating an offence because of the manifest injustice that the alternative approach would bring about”. [11] However, the presumption is rebuttable.

22. [78]

    The second hurdle is s 19 of the CSP Act. Prior to the enactment of s 19, there had been debate regarding the presumption against retrospectivity when there had been an increase in the maximum penalty for an offence between the offending and trial. A number of English decisions, not followed in Australia, determined that the maximum penalty at the date of conviction was applicable. The issue was resolved by s 19 of the CSP Act which provides:

23. [79]

    In MJR, Spigelman CJ made the following observations concerning s 19 of the CSP Act:

24. [80]

    As Spigelman CJ makes clear in [26] above, the presumption against retrospectivity of a penal statute and the principle of perceived fairness are subject to the legislative intention of Parliament.

25. [81]

    An issue in Siganto was whether the sentencing regime embodied in the Sentencing Act 1995 (NT) was intended to apply to offenders sentenced after the commencement of that Act for offences committed before its commencement.

26. [82]

    The plurality in the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) (Gaudron J dissenting) said:

27. [83]

    An important question in determining what was the Parliamentary intention when s 66EA(1) commenced on 1 December 2018 is whether s 66EA was enacted as a new offence and not simply a re-enactment of the predecessor offence with an increased maximum penalty. The applicant argues that s 66EA was a reformulation of the predecessor offence whereas the Crown contends that it is a new offence.

28. [84]

    Case law supports the conclusion that s 19 of the CSP Act will have no role to play when a new offence is created.

29. [85]

    In R v Ronen (“Ronen”), [12] the offenders were sentenced for offences of conspiracy to defraud the Commonwealth of taxation revenue under ss 86A, 29D and 86(2) of the Crimes Act 1914 (Cth). The prescribed maximum penalty for each offence was 20 years imprisonment. However, after the offences were committed but before the offenders were sentenced, s 86(2), the most recent provision dealing with defrauding the Commonwealth was repealed. In its place a series of offences were created in the Criminal Code (Cth) by s 135.4. The maximum penalty prescribed for offences falling within that section was imprisonment for 10 years.

30. [86]

    The offenders argued that the sentencing judge erred in finding that the maximum penalty for the offences under s 86A and s 86(2) of the Crimes Act 1914 (Cth) was 20 years imprisonment.

31. [87]

    A relevant statutory provision for the Court’s consideration was s 4F(2) of the Crimes Act 1914 (Cth), which is in similar terms to s 19(2) of the CSP Act.

32. [88]

    Howie J (with whom Spigelman CJ and Kirby J agreed) said:

33. [89]

    A similar question was raised in Woodward v R. [13] The offender was sentenced for five counts of rape and one count of buggery for offences committed in the early to mid-1970s. The maximum penalty for the common law offence of rape at the time of the offending was penal servitude for life. This offence was abolished in 1981 by the Crimes (Sexual Assault) Amendment Act 1981 (NSW) which created various categories of sexual assaults that included s 61D(1), which had a maximum penalty of penal servitude for 10 years.

34. [90]

    RA Hulme J (with whom Beazley P and Bellew J agreed) favourably cited Ronen. His Honour considered at [61] that s 19 of the CSP Act had no direct application to the issue before the Court as the penalty for rape was not reduced by Parliament; “rather, the common law offences were replaced with statutory offences in somewhat different terms”. [14]

35. [91]

    An analysis of the predecessor offence and the current offence reveals the following differences:

    1. (1)

       The applicable penalty was 25 years under the predecessor offence compared to the maximum penalty of life imprisonment for the current offence. [15]

    2. (2)

       The predecessor offence required that a person, on three 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. The current offence, however, requires that an adult maintain an unlawful sexual relationship with a child, meaning a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period. [16]

    3. (3)

       Under the predecessor offence, a “child” was defined as a person under the age of 18 years. Under the current offence, a “child” is defined as a person under the age of 16 years. [17]

    4. (4)

       The predecessor offence does not refer to or define an “adult”, whilst the current offence refers to an “adult who maintains an unlawful sexual relationship with a child” and defines “adult” as a person of or above the age of 18 years. [18]

    5. (5)

       Under the predecessor offence, the charge had to specify with reasonable particularity the period during which the offence occurred and had to “describe the nature of” the separate offences alleged to have been committed by the accused during that period. The current offence states 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. [19]

    6. (6)

       Under the predecessor offence, the jury had to be satisfied beyond reasonable doubt that the evidence establishes at least three separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge. Under the current offence, however, the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed (i.e. that the evidence establishes a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period). [20]

    7. (7)

       Under the predecessor offence, the jury had to be “so satisfied” about the material facts of the three such occasions but need not be “so satisfied” about the dates or order of those occasions. The current offence states that 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. [21]

    8. (8)

       Under the predecessor offence, if more than three such occasions were relied on as evidence of the commission of an offence against the section, all the members of the jury had to be “so satisfied” about the same three occasions. Under the current offence, the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. [22]

    9. (9)

       The predecessor offence required the jury to be satisfied that the three such occasions relied on as evidence of the commission of an offence against the section occurred after the commencement of the section. The current section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed. [23] The “relevant amendments” are defined as “the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018” and the “predecessor offence” is defined as “this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018”. [24]

    10. (10)

        The current offence provides that a court, when imposing a sentence for an offence under the section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed. [25] There is no like provision in the predecessor offence.

    11. (11)

        The current offence also states that for the purposes of subsections (9)-(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside. [26] This is not stated in the predecessor offence.

36. [92]

    As may be seen from the above analysis, there are marked differences in the legislation. Of particular significance are the application of the offence of “persistent sexual abuse of a child” to a child under the age of 16 years and to an unlawful sexual relationship that existed wholly or partly before the commencement of the predecessor offence.

37. [93]

    Furthermore, there is the numerical reduction of the sexual offending to the minimum of two unlawful sexual acts and the introduction of the maintenance of an “unlawful sexual relationship” as being an essential element of the offence.

38. [94]

    As the predecessor offence was focussed upon the separate offences alleged to have been committed, the prosecution was required to describe the nature of those separate offences.

39. [95]

    It was common under the predecessor offence for the prosecution to charge an offender with what were referred to as “ingredient offences” which did not constitute the whole of an offender’s sexual misconduct against a child. The approach to uncharged acts under the predecessor offence was made clear in Burr v R (“Burr”) [27] by Johnson J (with whom Leeming JA and Rothman J agreed) at [96]-[99]:

40. [96]

    On the other hand, the centrepiece of the current offence is the jury’s satisfaction beyond reasonable doubt that the evidence establishes that “an unlawful sexual relationship existed”. The prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act was charged as a separate offence.

41. [97]

    Accordingly, it is unnecessary for the prosecution to identify “ingredient offences” and uncharged acts. It is the whole of the evidence of the relationship between an accused person and the child that may be put before the jury to establish that an unlawful sexual relationship existed and for an offender to be sentenced for all of an offender’s sexual misconduct whilst he maintained that unlawful sexual relationship.

42. [98]

    A consideration of the language employed in s 66EA(7) makes clear the retrospective legislative intent of the current offence as it includes in its wide embrace an unlawful sexual relationship which may have existed wholly before 15 January 1999, the commencement date of the predecessor offence. As observed in the analysis in [91(9)] above, the commission of the predecessor offence must have occurred after 15 January 1999.

43. [99]

    Another matter of significance is s 66EA(8) of which there is no like provision in the predecessor offence. [28] By requiring a court to take into account the maximum penalty for an accused’s sexual offending during the period in which the unlawful sexual relationship existed, the principle of perceived fairness is not overlooked in the exercise of the sentencing discretion.

44. [100]

    Subsections 66EA(7)-(8) support a conclusion that the current offence is a new offence with retrospective effect to which s 19 of the CSP Act does not apply.

45. [101]

    The applicant argued that the absence of any reference to s 19 of the CSP Act in the current offence supported a conclusion that s 19 continues to apply. The applicant referred to s 25AA(4) of the CSP Act which provides as follows:

46. [102]

    Section 25AA(1) requires 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. The applicant does not submit that s 25AA(1) applies to his offence, but rather the provision concerning s 19 in s 25AA(4) and the absence of such a provision in the current offence demonstrates that s 19 continues to apply in the circumstances of his offending.

47. [103]

    In my view, it is unsurprising that there is no mention of s 19 in the current offence as the retrospective intent of the Parliament is clear from the text of the offence. The absence of a reference to s 19 does not support, in my opinion, the applicant’s contention but reinforces the conclusion that s 19 has no application to s 66EA.

48. [104]

    Consideration may be given to the Second Reading Speech of the Attorney General when he introduced the Bill to confirm the meaning of the current offence is the meaning conveyed by the text of the provision itself, taking into account its context in the Act and the purpose or object underlying the provision. [29]

49. [105]

    The Attorney General said:

50. [106]

    When referring to s 66EA, the Attorney General said:

51. [107]

    The Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) recommended that each state and territory government should introduce legislation to amend its persistent child sexual abuse offence in numerous ways. In particular, the Royal Commission recommended that the offence be amended so that “the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed” and “on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application”. [31]

52. [108]

    The Royal Commission’s draft provisions in relation to the persistent child sexual abuse offence (Appendix H) also include the following jurisdictional note:

53. [109]

    The reference to the “relevant lower statutory maximum penalties” quoted at [107] above is reflected in subsection (8) of the current offence.

54. [110]

    In my view, the clear meaning of the section is confirmed by the Second Reading Speech and the Royal Commission’s report.

55. [111]

    Although the current offence covers broadly the same subject matter as the predecessor offence, it is not a re-enactment of the predecessor offence with an increased maximum penalty. It is a different offence to which s 19 of the CSP Act has no application and the maximum penalty of life imprisonment is intended to apply to offenders who have engaged in two or more sexual acts towards a child before the current offence commenced.

56. [112]

    The two hurdles confronting the Crown to which I referred at [77]-[78] above have been overcome. The judge did not err when the applicant was sentenced on the basis that the maximum penalty for the offence was life imprisonment.

57. [113]

    I would reject Ground 1 of the appeal.

Ground 2: The Sentencing Judge erred in accumulating the sentence imposed for the s 166 related matter

1. [114]

   The applicant referred to s 168(3) of the CPA which provides that when sentencing a person for a related offence, the District Court has the same functions and is subject to the same restrictions and procedures as the Local Court. The applicant submitted that the judge was subject to the restrictions upon accumulation of sentences in the Local Court by s 58 of the CSP Act of not more than 5 years.

2. [115]

   The applicant contended that the accumulation of 2 months of the sentence for the s 66EA(1) offence (“the primary offence”) and the s 166 offence (“the related offence”) resulted in a sentence that ended more than 5 years after the date on which the existing sentence began and was imposed in error.

3. [116]

   It was accepted that the judge accumulated the sentence for the primary offence upon the sentence for the related offence. However, the primary offence occurred over an offending period prior to the related offence. The applicant argued that it could not have been the intention of the combined operation of ss 58 and 168(3) to allow for non-compliance with s 58 “by virtue of commencing the related offence sentence first and by accumulating upon the primary sentence”.

4. [117]

   The applicant argued that the accumulation was in error and this Court should re-sentence by way of a wholly concurrent sentence “or via another course”.

5. [118]

   The Crown submitted that the judge did not partially accumulate the sentence for the related offence on the primary offence sentence, as the related offence sentence was imposed first. The Crown argued there was no “existing sentence of imprisonment” upon which the s 166 offence was to be served consecutively or partly so. Accordingly, s 58 did not apply and the judge did not err.

6. [119]

   It is uncontroversial that s 168(3) of the CPA restricts the District Court to the statutory limitations of the Local Court when sentencing an offender for a related offence. Those limitations include s 58(1) of the CSP Act, which provides:

7. [120]

   The sentence imposed by the judge for the breach of the AVO was 4 months imprisonment which did not exceed the maximum sentence that could have been imposed by a magistrate of 2 years or 50 penalty units or both. The applicant’s complaint is that the accumulation of 2 months imprisonment upon the sentence for the primary offence resulted in an overall sentence that exceeded the statutory constraint imposed by s 58(1) of the CSP Act and s 168(3) of the CPA.

8. [121]

   In advancing this argument, the applicant acknowledged that the judge did not partially accumulate the sentence for the related offence upon the primary offence, as the sentence for the related offence was imposed to commence first in time. In fact, what her Honour did was to partially accumulate the sentence for the primary offence on the related offence. However, the applicant argued that as the primary offence was committed first in time, the sentence for the s 66EA(1) offence should have been imposed before the related offence.

9. [122]

   This submission is neither founded in legislation nor case law. The sentencing discretion requires flexibility and her Honour was not obliged to impose the sentence for the breach of the AVO first.

10. [123]

    I would reject this ground of appeal.

(iii) the applicant is not an appropriate vehicle for general deterrence given his low level of intellectual function.

1. [124]

   The applicant pointed to the notional undiscounted starting point for the s 66EA(1) offence as being 10 years and the judge’s finding of the objective seriousness of the offence as falling below the mid-range of objective seriousness in relation to an offender with a very low level of intellectual functioning.

2. [125]

   The applicant submitted that “[i]f the mid-range offence is notionally considered as 12.5 years, given the maximum penalty of 25 years, then a 20% discount for [a] plea of guilty would result in a total sentence of 10 years for an offender of normal intellectual function”. [33] The applicant further argued that given the applicant’s offence was found to be below the mid-range and given his level of intellectual functioning, the undiscounted starting point of the applicant’s sentence ought to have been lower than 10 years. It was contended that this high undiscounted starting point may be explained by the misapplication of the maximum penalty of life imprisonment, which has resulted in a manifestly excessive sentence.

3. [126]

   A further submission was that the sentence did not reflect the judge’s finding that the applicant was not an appropriate vehicle for general deterrence. The applicant cited Burr as providing support for his complaint of manifest excess.

4. [127]

   The Crown submitted that the applicant’s contention of manifest excess relied on the premise of the relevant maximum penalty being 25 years imprisonment.

5. [128]

   Aside from that contention, the Crown argued that the applicant’s offending was prolonged and predatory, was preceded by at least two years of grooming and involved a sexual relationship when the victim was aged 14 and 15 years. The Crown pointed out that the innumerable occasions of penile-vaginal intercourse, at the time of that offending, would have attracted a maximum penalty of 10 years imprisonment for each unlawful sexual act. Furthermore, the Crown contended that the applicant’s serious breach of the AVO warranted separate and additional punishment.

6. [129]

   Another submission was that the finding of special circumstances substantially reduced the statutory ratio to approximately 60%.

7. [130]

   This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [34] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [35]

8. [131]

   The focus of the applicant’s complaint of manifest excess was on the applicable maximum penalty being 25 years imprisonment, which has been rejected.

9. [132]

   The applicant placed reliance on Burr as a comparative case. The offender in Burr pleaded guilty to an offence of persistent sexual abuse of a child, contrary to s 66EA, being the predecessor offence, for which the maximum penalty was 25 years imprisonment. Johnson J made clear that the judgment was “not concerned with sentencing for a s.66EA offence after the 2018 amendments”. [36]

10. [133]

    In my view, Burr is not a comparative case and does not assist the applicant in his complaint of manifest excess.

11. [134]

    In any event, the applicant’s submission at [125] above appears to place reliance on an arithmetical approach to sentencing which is fundamentally flawed. There is more to the sentencing exercise than an arithmetical calculation coupled with one subjective factor being his low level of intellectual functioning.

12. [135]

    The judge carefully took into account all relevant objective and subjective factors in her remarks on sentence. None of her Honour’s findings have been challenged on appeal. The applicant’s flagrant disregard of the AVO which had been put in place to protect the victim, his lack of insight into his offending and her Honour’s assessment of the very real risk of re-offending, required increased weight to be given to specific deterrence and the protection of the community. Her Honour sympathetically took into account the applicant’s intellectual and cognitive deficits by finding that he was not an appropriate vehicle for general deterrence and being a reason for a finding of special circumstances. Her Honour made a favourable finding of special circumstances so that the overall non-parole period of 4 years 11 months is approximately 60% of the overall head sentence of 8 years 2 months.

13. [136]

    This is a very serious offence. The applicant took advantage of the victim, who was 34 years younger than him, by engaging in penile-vaginal intercourse on numerous occasions. As her Honour aptly observed, the victim was “a young person burgeoning into adulthood” and was “at a particularly impressionable stage”. The enduring harm caused to the victim by the applicant’s sexual offending was succinctly stated in Ms Macks’ report.

14. [137]

    The breach of the AVO required separate punishment and the moderate accumulation of 2 months was well within her Honour’s sentencing discretion.

15. [138]

    In my opinion, the applicant has not demonstrated that the sentence imposed was unreasonable or plainly unjust.

16. [139]

    I would reject this ground of appeal.

Orders

1. [140]

   The orders I propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [141]

   HAMILL J: I have had the advantage of reading the draft judgment of Price J. I am unable to agree with it. I cannot conclude that the amendments to the Crimes Act 1900 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW), that came into effect at different times in the latter part of 2018, had the effect of rendering s 19 of the Crimes (Sentencing Procedure) Act inoperative in respect of offences under s 66EA of the Crimes Act. To have that impact on such a fundamental provision would require far clearer language than that which is contained in the relevant parts of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) (“the Amendment Act”). Price J has set out the relevant provisions and I will assume that the reader is familiar with his Honour’s survey of the relevant parts of the legislation both before and after the passage of the Amendment Act.

3. [142]

   The applicant committed the offence under s 66EA between 9 November 2016 and 14 July 2018. He was charged on 15 July 2018. 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. [37] By the time the applicant was charged, the amending legislation had been assented to (on 27 June 2018) but was yet to be proclaimed. Nothing turns on this for two reasons. First, on 29 August 2019, the applicant was arraigned on an indictment framed in terms of the amended s 66EA. Secondly, the current version of s 66EA(7) make it plain that that the section “extends to a relationship that existed wholly or partly before the commencement of the amendments”.

4. [143]

   The Amendment Act introduced a raft of amendments to the law relating to child abuse and child sexual assault in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”). The amendments related to many of the offence creating provisions in the Crimes Act, the maximum penalties and standard non-parole periods applicable to such offences, and to the law of sentencing for child abuse and child sexual assault.

5. [144]

   Some of the amendments to s 66EA were largely 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. Such amendments included the abolition of any requirement that the individual sexual acts relied on be particularised in the way that a stand-alone charge would need to be particularised. [38] Similarly, the amendments dispensed with the requirement that the jury be satisfied beyond reasonable doubt of such particulars or that its members had to agree on which particular sexual acts had been established. [39]

6. [145]

   Other amendments to s 66EA were of more substance. The age of a “child” for the purpose of the section was changed from “a person under the age of 18 years” to “a person who is under the age of 16 years”. [40] At the same time, the expression “unlawful sexual relationship” was defined as a “relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period”. [41] The earlier version of the offence referred to a person who “on 3 or more separate occasions … engages in conduct [with a particular child]… that constitutes a sexual offence”. Both the new and old provisions defined the respective expressions “unlawful sexual act” and “sexual offence” by reference to the relevant offences under the Crimes Act. [42] The list of sections was close to identical although the terms of many of the offences themselves had changed as part of the same raft of amendments introduced by the Amendment Act.

7. [146]

   I accept that it is arguable, and that Bell P and Price J have concluded, that the changes to the terms of s 66EA (especially the two substantive changes to which I have referred), had the effect that the amended provision created a new offence. However, I do not agree that the changes to the section are of such significance that this conclusion is correct. There was an existing offence of persistent sexual abuse of a child and the facts alleged against the applicant (and admitted by him) constituted an offence under the old version of s 66EA.

8. [147]

   The amendments to section 66EA of the Crimes Act were made by the same Amendment Act that introduced s 25AA into the Crimes (Sentencing Procedure) Act. Section 25AA represents a legislative change to the common law principle that a sentencing Judge should apply the sentencing patterns that existed at the time of the offending, rather than the time of sentence. That principle was confirmed, for example, in Moon v R and in R v MJR. [43] However, as the dissenting judgment of Mason P in the latter case demonstrates, it was a principle that was not free of controversy. [44] Section 25AA plainly and specifically overturned the prevailing judicial approach, but it did so with two significant limitations. The first is that if there was a standard non-parole period for an offence, the standard non-parole period existing at the time of the offence is to apply: s 25AA(2). [45] The second is that s 25AA “does not affect section 19”: s 25AA(4).

9. [148]

   Section 19 provides:

10. [149]

    The respondent submitted, and Bell P and Price J appear to accept, that s 19 has “no work to do” in the context of s 66EA. This was based on the contention that s 66EA creates an entirely new offence and, on its terms, operates retrospectively. There can be no doubt that the latter proposition is correct: see s 66EA(7). The former proposition is more difficult. Further, the conclusion that s 25AA, and its incorporation of the fundamental prescript in s 19(1) preserving the shorter maximum penalty applicable at the time of offence, would have the effect of making s 66EA an outlier within this raft of amendments. As counsel for the applicant submitted, it would mean that “s 66EA is the only instance where the reformulated offence does not have s 19 applying to it”. In my assessment, the conclusion urged by the respondent does not conform with Parliament’s intention to create a cohesive legislative scheme in relation to the prosecution of offenders charged with child abuse and child sexual assault.

11. [150]

    Section 25AA applies to “child sexual offences”, which is defined in sub-s (5) as including “(a) an offence under a provision of Division 10 … of the Crimes Act 1900.” Section 66EA is an offence under a provision of Division 10.

12. [151]

    While resort to the Royal Commission’s Criminal Justice Report and Recommendations (“the Report”) is not strictly necessary in this context, both the parties and Price J have referred to the Report. The following parts of the Report distinguish sentencing standards from applicable maximum penalties, and support the conclusion that the applicable maximum penalty should be that which applied at the time of the offence:

13. [152]

    Again, both parties, and Price J, referred to the Second Reading Speech introducing the Amendment Act. Counsel for the applicant accepted the respondent’s submission that resort to secondary materials cannot “displace the clear meaning of the text”, a proposition that is obviously correct. [48] As I have said, there is no ambiguity in the legislation as to the retrospective operation of the offence under s 66EA. However, there may be some ambiguity as to whether it is a new offence altogether and whether the previous maximum penalty applies to offences committed before the commencement of the amended section.

14. [153]

    In his speech, the Attorney-General referred to the “suite of reforms” that included “new offences, improved offences and procedural amendments”. [49] The Attorney-General went on to provide specific examples of new offences and improved offences within the legislation. An example of a “new offence” was s 43B, which was referred to on the second reading of the bill as follows:

15. [154]

    Counsel for the applicant referred to this as a clear example of a “new” offence being introduced by the Amendment Act. She went on to contrast the language used by the Attorney-General in relation to s 66EA in the passage set out by Price J at [106]. I do not accept that the Minister’s remarks support the respondent’s contention that s 66EA created a new offence. On the contrary, the Attorney-General adopted the language of the Royal Commission, and referred to the identified problems in the operation of the existing offence of “persistent sexual abuse of a child”, and referred to its “recommendations for a new way of formulating the offence”. (Emphasis added.) [51]

16. [155]

    Ms Rodger also relied on what was said about s 25AA on the second reading of the Bill:

17. [156]

    I accept the applicant’s submission that these passages from the second reading speech support the argument that (1) the Amendment Act did not create a new offence, but reformulated, refined and “improved” an existing offence, and (2) the legislative intention and the language of s 25AA specifically preserved the fundamental provision in s 19 of the Crimes (Sentencing Procedure) Act.

18. [157]

    It is not necessary to resort to the secondary materials to reach the conclusion that s 19 remains determinative of the appliable maximum penalty under s 66EA. The limitations on the use of such extrinsic material was acknowledged by Mason CJ, Wilson and Dawson JJ in Re Bolton; Ex Parte Beane: [53]

19. [158]

    As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky): [55]

20. [159]

    Section 66EA must be read in the context of the Amendment Act and the statutes thereby amended, read as a whole, including ss 19 and 25AA of the Crimes (Sentencings Procedure) Act. As Mason J (as his Honour then was) said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd:

21. [160]

    In Project Blue Sky, the majority again emphasised that:

22. [161]

    To similar effect is the statement of Kourakis CJ in Palace Gallery v Workcover Premium Review Panel that the words of a statute must be read:

23. [162]

    Where there appears to be a conflict between the provisions of a statute, the court must “determine which is the leading provision and which the subordinate provision, and which must give way to the other.” [60] The objective of establishing this “hierarchy” is to give effect to the “purpose and language” of the provisions and to maintain “the unity of the statutory scheme”. [61]

24. [163]

    If there is a conflict in the provisions under consideration here, a proposition I doubt, it is between the retrospective operation of s 66EA of the Crimes Act and the maintenance of s 19 of the Crimes (Sentencing Procedure) Act by s 25AA. That conflict is readily reconciled, and the legislative scheme given a cohesive and unified operation, once it is accepted that the retrospectivity of s 66EA relates to the offence, while the increase in the maximum penalty is precluded by the overarching sentencing provisions in ss 19 and 25AA “notwithstanding the literal command” of s 66EA. [62] To again adopt the language of the majority in Project Blue Sky, s 25AA (and in turn, s 19) “provides the conceptual framework in which the functions conferred” by s 66EA operate. [63]

25. [164]

    The conclusion that s 66EA is a reformulation of the existing offence and that s 19 continues to operate is reached by undertaking a plain reading of the text of the Amendment Act, considering that Act and the statutes it amends as a whole, and striving to give effect to Parliament’s clear intention to create a single, cohesive legislative scheme.

26. [165]

    As Gageler J put it in Esso Australia Pty Ltd v Australian Workers’ Union, the “constructional choice” involves:

27. [166]

    While the traditional approach to the construction of penal statutes to favour the liberty of the subject has been qualified in more recent times, [65] those principles remain of importance. That is particularly so where, as here, the legislation evinces a clear intention to temper the operation of the retrospectivity of a penal statute. That intention is plain from the language of s 25AA. The courts ought to still adopt a cautious approach when the statutory construction under consideration involves matters impacting on an individual person’s liberty. [66] The construction I favour not only allows the provisions to operate in a cohesive and unified way, but also accords with this older, protective principle.

28. [167]

    The respondent submitted that:

29. [168]

    Assuming this (implicit) analysis of the operation of s 19(1) and (2) is correct, a matter that need not be determined in this case, I do not accept that the result is “absurd” or than any such “absurdity” should result in all offenders being subject to the higher maximum penalty in the face of s 19. Further, I accept the submission of Ms Rodger in responding to this argument on the hearing of the appeal:

30. [169]

    It follows that the appropriate maximum penalty to which the applicant was liable was 25 years, not life imprisonment, and that the sentencing Judge was led into error by the parties appearing at the sentencing hearing. Ground 1 should be upheld.

31. [170]

    Ordinarily, this would result in the Court either embarking on the exercise of sentencing afresh in accordance with the decision in Kentwell v The Queen [67] or remitting the matter to the District Court for sentencing. [68] However, because mine is a minority opinion, and the majority would dismiss the appeal, there is no need either to embark on re-sentencing exercise or to decide whether the preferable order is to remit the matter to the District Court. It is unnecessary to state the sentence I would have imposed in exercising the sentencing discretion afresh. However, I indicate that I would not have found that no lesser penalty was warranted, thereby justifying the dismissal of the appeal pursuant to s 6(3) Criminal Appeal Act.

32. [171]

    I agree with Price J that no error is established under ground 2 and agree with his Honour’s reasons for that conclusion.

33. [172]

    In view of the conclusion I have reached in relation to ground 1, it is unnecessary for me to consider whether the sentence imposed was manifestly excessive. If I re-sentenced, taking into account the lower maximum penalty, I would impose a lesser sentence. That is a different question to the one that arises pursuant to ground 3.

34. [173]

    For those reasons I would have granted the application for leave to appeal, allowed the appeal against sentence and either (i) imposed a less severe sentence or (ii) remitted the sentencing proceedings to the District Court.