R v Lamey

1. [1]

   THE COURT: By notice of appeal filed on 1 October 2024, the Director of Public Prosecutions (NSW) appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on the respondent, Benjamin Mark Lamey, on 3 September 2024 by Judge Bourke SC in the Newcastle District Court.

2. [2]

   On 20 May 2024, the respondent pleaded not guilty to 14 child sexual assault offences and a trial commenced before his Honour and a jury. The offending, which pertained to three victims, all occurred in 2007. Two of the victims, AR (aged 6 at the time of the offences) and MH (aged 11 at the time of the offences) were sisters. The respondent was a close family friend of their mother and stepfather and would regularly visit or stay over at their house and babysat them and their other siblings. The third victim, MC (aged 5 to 6 at the time of the offences) was the respondent’s maternal niece and the offences in relation to her occurred at her grandfather’s home where the respondent also lived at that time.

3. [3]

   On 31 May 2024, the jury returned verdicts of guilty in relation to eight of the 14 charges. Counts 2 and 3 were alternative counts to count 1 upon which the respondent was convicted thus no verdict was required in relation to them. The four acquittals pertained to some of the charges concerning the victim MH.

4. [4]

   Of the eight offences of which the respondent was convicted, count 1 was the most serious. It was an offence contrary to s 66EA of the Crimes Act 1900 (NSW) (maintaining an unlawful relationship with a child) and carried a maximum penalty of life imprisonment. The victim of that offence was AR. Counts 4, 5, 6 and 7 were all offences contrary to s 66A of the Crimes Act (sexual intercourse with a child under 10). They carried a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 15 years’ imprisonment. They all pertained to the victim MC.

5. [5]

   Counts 8 and 9 were offences contrary to s 61M(1) of the Crimes Act (aggravated indecent assault) which carries a maximum penalty of 7 years’ imprisonment and a standard non-parole period of 5 years. Those offences pertained to MH as did count 13 which was an offence contrary to s 66C(2) of the Crimes Act which carries a maximum penalty of 20 years’ imprisonment.

6. [6]

   In relation to all offences against the three young victims, including the s 66EA offence, his Honour imposed an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) of 8 years and 6 months’ imprisonment with a non-parole period (“NPP”) of 4 years and 9 months: R v Lamey [2024] NSWDC 490.

7. [7]

   The indicative sentences were as follows:

The Crown appeal

1. [8]

   It is well established that the primary purpose of a Crown appeal, as described by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310, is to “establish some matter of principle” and to permit the court to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. That passage was cited with approval in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 300. Their Honours then went on to observe:

2. [9]

   In Everett v The Queen, McHugh J described the role of Crown appeals against sentence in this way at 306:

3. [10]

   The Crown ultimately relied on the following two grounds of appeal:

4. [11]

   Ground 1 is directed solely at his Honour’s findings of fact in relation to count 1 and it raises yet again the difficult task faced by sentencing judges in finding facts after trial in relation to an offence against s 66EA of the Crimes Act.

5. [12]

   Although s 66EA was enacted in 1999, it was significantly amended in 2018. Since that time, the relevant sentencing principles concerning s 66EA of the Crimes Act have been considered in numerous decisions including most recently MK v R [2024] NSWCCA 127, RA v R [2024] NSWCCA 149 and R v Fisher [2024] NSWCCA 191. Further, the High Court has also considered the new provision in Xerri v The King (2024) 278 CLR 276; [2024] HCA 5. We will consider these and other decisions further below, but it is pertinent at this point to note the terms of s 66EA which are as follows:

6. [13]

   As is evident from the statutory language, the gravamen of the offence is to maintain an “unlawful sexual relationship with a child”.

7. [14]

   We note at the outset that most of the submissions in this appeal were directed at the fact-finding exercise in relation to count 1. The scope of the argument has meant that these reasons contain more factual detail than would ordinarily be necessary in an appeal against sentence.

Facts: Areas of dispute

1. [15]

   As is always the case when an offender is convicted after a trial, it was necessary for the sentencing judge to find the relevant facts upon which the respondent was to be sentenced, consistent with the jury’s verdicts. In relation to count 1, that fact-finding included determining the nature and frequency of the sexual offending by the application of well established principles including R v Isaacs (1997) 41 NSWLR 374, The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54, Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 and Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14.

2. [16]

   In order to assist the sentencing judge, the Crown tendered a document at the proceedings on sentence titled “Proposed facts consistent with jury verdict”. The respondent accepted those facts as being consistent with the jury verdicts insofar as they pertained to MH. Two discrete issues were disputed for the charges pertaining to MC: it was submitted that his Honour would not accept that count 6 lasted for five minutes nor that count 7 lasted “for a number of minutes”.

3. [17]

   Significantly, the respondent did not accept most of the Crown’s suggested facts in relation to count 1 pertaining to the victim AR. The position advanced on his behalf was that the sentencing judge could only be satisfied beyond reasonable doubt that two unlawful sexual acts had been committed against AR.

4. [18]

   The proposed facts as they pertained to AR were in these terms:

5. [19]

   The Crown relied on other evidence in support of its position that his Honour would find the facts as outlined in this document in relation to count 1. It was noted that AR’s father gave evidence that in the first half of 2007 the respondent was at the house “pretty well every day” and would stay “three nights a week […] at least”, and that in the weeks prior to AR disclosing the offending to him the respondent stayed at the house full-time. The Crown also relied on the evidence that when AR first complained to her father, at a time close in time to the offending, she said the respondent kept her awake, “plays with my undies”, “plays drums on my bum”, “touches my rude bits” and “puts his finger in my rude bit and smells it”.

6. [20]

   The Crown noted that in AR’s first interview with police on 15 June 2007, she told police that the respondent touched “it” (her “rude bits”) every time he came over, and “never stops”. She said he touched her “every time” and “heaps of times”. She also said he had used his lips to kiss her “rude bits”. Further, in AR’s second interview with police on 5 August 2008, she told them that the respondent had touched her underneath a blanket “about 8 times”. She also indicated he touched her in the family vehicle.

7. [21]

   Finally, the Crown relied on AR’s evidence at trial that the respondent was at the house “every day” and that every time she saw him, he would “either get me out of bed or put a blanket over both of us”.

8. [22]

   Although the Crown acknowledged that his Honour could not be satisfied beyond reasonable doubt of the specific number of occasions on which the respondent committed unlawful sexual acts with AR, it was submitted that his Honour would be satisfied that it was “regular and ongoing” for the first half of 2007, that it involved “multiple incidents” and certainly a “significantly higher number than two”.

9. [23]

   In response, it was submitted on behalf of the respondent that his Honour would not accept that the respondent committed offences of a sexual nature against AR “every time” or “heaps of times”, or that he engaged in all the acts referred to in the proposed facts document. It was submitted that AR’s evidence was not “cogent enough” to accept the allegation of digital penetration, which was based, not on her evidence, but on evidence given by her father of the complaint made by AR to him. In written submissions it was contended that such acts would be “so significant that the victim would have recalled the event with greater specificity and would have given that evidence”.

10. [24]

    Having considered these competing submissions, his Honour ultimately found the facts as follows.

Facts on sentence

1. [25]

   His Honour found the following facts in relation to count 1 which pertained to AR at [7]-[16]:

2. [26]

   His Honour found the following facts in relation to MC at [17]-[23]:

3. [27]

   His Honour went on to find the following facts in relation to the third victim, MH, at [24]-[27]:

Procedural history

1. [28]

   After AR disclosed the offending to her natural father on 8 June 2007, police were informed. She subsequently provided two interviews to police: on 15 June 2007 and 5 August 2008. The respondent was arrested and participated in an electronically recorded interview in which he denied the allegations. Although he was charged with the offences against AR, these were withdrawn in March 2009.

2. [29]

   MH was interviewed by police in 2007, after AR complained, but did not disclose the offending to police as she thought she would get into trouble.

3. [30]

   MC complained to school friends in 2009, which led to police interviewing her in 2009 but at that time neither MC nor her mother wished to go through the court process.

4. [31]

   On 14 October 2019, both MH and MC went to police. On 6 January 2020, the respondent was arrested in relation to the offences against MH and MC in Queensland, brought to NSW and released on bail on 7 January 2020. On 17 January 2020, further charges were brought, and the respondent was refused bail until 1 April 2020 at which time he was granted Supreme Court bail. On 29 May 2020, he was charged in relation to the offences against AR. He remained on bail until the jury verdicts on 31 May 2024 and has remained in custody since that date.

Proceedings on sentence

1. [32]

   The Crown tendered a bundle of documents which included the respondent’s criminal history in NSW and Queensland, his custodial history in NSW and the victim impact statements of AR and MC (a victim impact statement from MH was withdrawn from tender). A sentencing assessment report dated 1 August 2024 was also tendered as was a case note report from Yeuk-Wah Ng dated 29 July 2024 pertaining to the respondent’s risk of reoffending.

2. [33]

   The offences were all committed in 2007 when the respondent was 26-27 years old. Prior to that date, he had some driving offences on his record, and he was fined on both 17 July 2006 and 13 November 2006 for larceny offences. The respondent was charged on 14 March 2007 and placed on a bond on 30 April 2007 for contravening an order. He was charged on 13 June 2007 and sentenced to a suspended sentence of imprisonment on 6 April 2009 for destroying property and larceny. He was charged on 15 June 2007 and sentenced to a suspended sentence of imprisonment on 6 April 2009 for further larceny offences. He was charged on 27 June 2007 and sentenced to a suspended sentence of imprisonment on 6 April 2009 for multiple break, enter and steal offences. These offences were committed during the period of the sexual offending against the children in 2007. On 21 April 2008, the respondent was charged with further larceny and break, enter and steal offences and sentenced to a suspended sentence of imprisonment on 6 April 2009.

3. [34]

   The respondent’s only criminal record after the offending in 2007 and 2008 was in Queensland in 2016 for contravening a direction and no conviction was recorded.

4. [35]

   The sentencing assessment report noted that the respondent was assessed as a medium-low risk of reoffending based on the Level of Service Inventory–Revised (LSI-R) but this was overridden following the STATIC-99R risk assessment which assessed his overall risk of reoffending as “Tier 3/medium” or “Average”.

5. [36]

   AR stated in her victim impact statement that when she was seven years old, she started getting night terrors and struggled to be able to eat her food. In her night terrors, the respondent would come into her room at night, and she would wake up scratching at her face. She started self-harming at 11 years of age to control her pain. She attempted suicide at 14 years old because she had no self-worth due to what the respondent had done to her. She observed that because of the respondent she lost her innocence, still does not know who she can trust, does not trust men and finds it hard to trust men in her own family.

6. [37]

   MC stated in her victim impact statement that she continued to “suffer tremendously” across all aspects of her life due to what the respondent did to her, that he took something from her that will never be returned and that she lost her childhood. She continues to suffer from numerous mental health issues including post-traumatic stress disorder, anxiety and depression.

7. [38]

   The respondent did not give evidence on sentence. He relied on a psychologists’ report of Dr Jenna Bollinger dated 30 July 2024 and character letters from some of his family members and a friend: Julie and Christopher Lamey dated 3 August 2024 (the respondent’s parents), Jacqueline Lamey dated 4 August 2024, Kelley Lamey dated 4 August 2024 and Georja Lamey dated 4 August 2024 (three of the respondent’s sisters), Ricky Jarmain dated 4 August 2024 (a friend) and Nicole Lamey dated 5 August 2024 (the respondent’s wife).

8. [39]

   None of the respondent’s family nor his friend accepted the jury verdicts and continue to assert his innocence. None of them had any difficulty with the respondent being around their children.

9. [40]

   Dr Bollinger assessed the respondent as meeting the criteria for a major depressive disorder and generalised anxiety disorder. She also assessed the respondent to be a low risk of reoffending. She reported that the respondent told her that he used crystal methamphetamine (“ice”) for a short time in early 2007. He told her that he did not like what it was doing for him, and he started stealing to pay for his habit. He told her that after that he “never touched it again”. Although he continued to deny the offending to Dr Bollinger, she noted that at the time of the offending against AR and MH the respondent was using both ice and cannabis, although he was only using cannabis at the time of the offending against MC.

Remarks on sentence

1. [41]

   After setting out the above facts, his Honour turned to assess the objective seriousness of each of the offences at [30]-[51]. His Honour commenced by noting the oft-cited passage in R v Gavel [2014] NSWCCA 56 at [110] to the effect that child sexual assault offences have profound and deleterious effects upon victims for many years, if not the whole of their lives.

2. [42]

   His Honour then turned to consider the objective seriousness of count 1. His Honour used the non-exhaustive list of matters relevant to the objective seriousness of such an offence set out by Wilson J in RA v R (considered further below) as factors in his consideration. He expressed those factors to be:

   1. (1)

      The offending extended over a period of up to six months.

   2. (2)

      The respondent was a trusted member of the victim’s family, a regular visitor to the house and in a position of some authority over AR;

   3. (3)

      The victim was 6 years old and so very much towards the lower end of the age range for a “child”, while the offender was in his mid-20s, and so a great deal older;

   4. (4)

      As to the number of incidents beyond the statutory threshold of two, count 1 involved a minimum of five incidents: cunnilingus, touching of AR’s genitals through her clothes while travelling in the van, two incidents of rubbing AR’s genitals through her clothes while they were sitting under a blanket, being once on the lounge and another in the van and when the respondent pulled down AR’s pants and touched or played with her buttocks with his hands.

   5. (5)

      His Honour was unable to come to any clear finding as to the frequency or time gap between these five incidents other than to find that they occurred during the period from about early January to about early June 2007.

3. [43]

   His Honour noted that s 66EA(8) requires the court to have regard to the maximum penalty for the relevant unlawful sexual acts engaged in by the offender during the period in which the unlawful sexual relationship existed. His Honour noted the relevant maximum penalties and that the cunnilingus offence was the most serious (carrying 25 years’ imprisonment as a stand-alone offence).

4. [44]

   His Honour went on to find that the incidents were of relatively brief duration (although this is of limited significance), the offending was opportunistic, and it did not involve planning or sophistication. His Honour was also satisfied that the offending did not involve gratuitous threats or violence or any physical injury although, again, he noted that this did not mitigate the offending.

5. [45]

   His Honour ultimately found the objective seriousness in relation to count 1 to be “a relatively serious example of this type of offence and one that is well above the low range but below the mid-range of objective seriousness”: at [39]. The findings of objective seriousness in relation to the other counts were as follows.

6. [46]

   For count 4, the finding was “well above the low range but below the mid-range of objective seriousness”. In so finding, his Honour took into account:

   1. (1)

      The offence involved penetration of MC’s vagina with a finger or fingers, which hurt her badly;

   2. (2)

      The occurrence was relatively brief because MC was trying to get off the respondent’s back, albeit the brevity was of limited significance;

   3. (3)

      MC was aged 5 or 6 at the time, well under the age of 10 (an element of the offence);

   4. (4)

      The respondent was aged in his early 20s;

   5. (5)

      The offence involved a breach of trust and authority;

   6. (6)

      The offence appeared to have been opportunistic;

   7. (7)

      There was no evidence of threats or additional violence, noting that absence of threats of violence did not mitigate the offence given the nature of the offending.

7. [47]

   For counts 5 and 6, the finding was “well above the low range but below the mid-range of objective seriousness”. In so finding, his Honour took into account:

   1. (1)

      The offence involved penetration of MC’s vagina;

   2. (2)

      The penetration was “fairly brief” because MC was trying to get off the respondent’s back, albeit the brevity was of limited significance;

   3. (3)

      It caused MC considerable pain;

   4. (4)

      MC was aged 5 or 6, well under 10 years;

   5. (5)

      The respondent was in his early 20s;

   6. (6)

      The offence was opportunistic and unplanned;

   7. (7)

      The offence did not involve threats, additional violence or lasting injury, noting that absence of threats of violence did not mitigate the offence given the nature of the offending.

8. [48]

   For count 7, the finding was “slightly more serious than counts 4, 5 and 6, but below the mid-range of objective seriousness”. His Honour took into account:

   1. (1)

      MC was 5 or 6 years of age;

   2. (2)

      The respondent was in his early 20s;

   3. (3)

      The penetration was considerably more than the previous incidents and caused MC considerable pain;

   4. (4)

      The offence was preceded by MC protesting;

   5. (5)

      The offence resulted in MC crying and running into the lounge to hide;

   6. (6)

      The offence involved a breach of trust and authority;

   7. (7)

      The offence was opportunistic rather than planned;

   8. (8)

      The offence did not involve any gratuitous violence or threats, noting that absence of threats of violence did not mitigate the offence given the nature of the offending.

9. [49]

   For count 8, the finding was “comfortably above the low range but below the mid-range”. His Honour took into account:

   1. (1)

      The nature of the offence;

   2. (2)

      The offence was relatively brief, although that was due to MH squirming, albeit the brevity was of limited significance;

   3. (3)

      The offence occurred in MH’s bed and in her home;

   4. (4)

      The offence involved a breach of trust and authority;

   5. (5)

      MH was 11 to 12 years of age, comfortably under the age of 16;

   6. (6)

      The respondent was in his mid-20s, considerably older than MH;

   7. (7)

      The offence did not involve any threats, pain or injury, noting that absence of threats of violence did not mitigate the offence given the nature of the offending;

   8. (8)

      The offence was opportunistic rather than planned.

10. [50]

    For count 9, the finding was “approaching the mid-range of objective seriousness”. His Honour took into account:

    1. (1)

       His Honour was unable to be satisfied that the offence involved skin-to-skin contact;

    2. (2)

       The offence occurred at MH’s home;

    3. (3)

       The offence involved a breach of trust and authority;

    4. (4)

       MH was 11 to 12 years of age, comfortably under 16 years;

    5. (5)

       The respondent was in his mid-20s, considerably older than MH;

    6. (6)

       The duration could not be determined but it was not brief or momentary, and as it went on it became rougher and more painful;

    7. (7)

       There was no evidence of threats or physical injury, or additional violence, noting that absence of threats of violence did not mitigate the offence given the nature of the offending.

11. [51]

    For count 13, the finding was “approaching the mid-range” of objective seriousness. His Honour took into account:

    1. (1)

       MH was 11 to 12 years of age, comfortably under the threshold of 14 years;

    2. (2)

       The respondent was much older, in his mid-20s;

    3. (3)

       The offence caused her considerable pain;

    4. (4)

       The duration could not be determined, but it was not brief (a few minutes) and only stopped because MH was squirming and eventually rolled over;

    5. (5)

       MH was in her bed in the family home;

    6. (6)

       The offence involved a breach of trust;

    7. (7)

       MH was under the authority of the respondent, however, this was an element of the offence and not an aggravating feature;

    8. (8)

       There was no evidence of threats, additional violence or lasting injury, noting that absence of threats of violence did not mitigate the offence given the nature of the offending.

12. [52]

    Before turning to the respondent’s subjective case, his Honour noted that AR and MC had provided victim impact statements which provided “clear confirmation of the serious and often life-long psychological scars that are the almost inevitable result of sexual offending against children” and confirmed the “helpless position in which the victims were placed”. Although MH did not provide a victim impact statement, his Honour noted that he had no doubt that the effects and consequences have been similar for her.

13. [53]

    His Honour considered the respondent’s personal circumstances at [53]-[56]. The respondent was aged 44 at the time of sentence. He had no prior convictions for sexual offences although he had a number of convictions for offences involving breaking and entering and dishonesty committed around 2005 to 2006 which was a year prior to the offending for which he was stood for sentence. He was disentitled to leniency on that basis.

14. [54]

    His Honour referred to the material put before the Court in the report of Dr Bollinger. The respondent had a positive childhood although he suffered some bullying at school. Since leaving school in Year 10, he had usually been employed. At the time of the report, he was a truck driver. Although he had a history of alcohol and drug usage, this was not at “problematic” levels.

15. [55]

    The respondent had been with his wife for about 24 years. She gave birth to a stillborn baby in 2014 and this remained a matter of significant distress for both of them. However, he and his wife had a daughter who was two-and-a-half-years-old at the time of sentence.

16. [56]

    The respondent was diagnosed as meeting the criteria for major depressive disorder and generalised anxiety disorder. It was not suggested that there was any link between these conditions and the offences. It was not contended that the respondent’s moral culpability was reduced in any way.

17. [57]

    As for the factor of delay, his Honour referred to the statement of principle in R v Todd [1982] 2 NSWLR 517 that “sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach”. His Honour went on to observe that this principle may not apply with such force in a case where the offender has remained silent and hoped that his offending remains undetected. His Honour was satisfied that these observations “might be said to have some application to the case now before the Court”.

18. [58]

    His Honour then observed that rehabilitation during the period of delay may mean that general deterrence was of less significance which was also of relevance to the respondent’s case given that there was no evidence that he had committed any offences since 2007. It was further noted that the character references established that the respondent had frequent contact with numerous young children from his extended family during that period. He had maintained a stable relationship with his wife, who remained completely supportive of him, as did various other members of his family. His Honour was ultimately satisfied that the respondent had achieved a great deal towards his own rehabilitation which reduced the importance of general deterrence.

19. [59]

    Given that one of the victims went to police in 2007 when he was first charged, his Honour was also satisfied that the respondent had experienced the stress and uncertainty of potential criminal proceedings hanging over his head.

20. [60]

    His Honour was satisfied that the respondent’s time in custody would be more onerous for him for three reasons: his depression referred to by Dr Bollinger, his geographical separation from his wife and child in Queensland (who were unable to relocate to New South Wales due to aging parents) and the fact that he was housed in a Special Management Area Placement, which involved a form of protective and thus more restrictive custody.

21. [61]

    His Honour was unable to make any finding of remorse, but it was noted that the respondent had been assessed as a low risk of reoffending. His prospects of rehabilitation were found to be “reasonable”.

22. [62]

    His Honour observed that he found the case to be “a difficult sentencing exercise” because of the need for the sentence to recognise the serious nature of the offences and the fact that there were three young victims whilst not losing sight of the fact that the respondent is now a very different person to when he committed the offences.

23. [63]

    As for the application of the totality principle, his Honour noted the need to ensure that the sentence was not “crushing” given his findings about rehabilitation but that there should be some notional accumulation among the sentences to recognise that there were three victims and various individual crimes committed on separate occasions.

24. [64]

    His Honour made what he described as a “reasonably generous finding of special circumstances based on this being the offender’s first period of full-time custody, the onerous nature of that custody and the need for him to be subject to a reasonably lengthy period of supervision after release to parole”.

Relevant sentencing principles: s 66EA

1. [65]

   The consideration of ground 1 and to a lesser extent ground 2 concerns the relevant sentencing principles for an offence against s 66EA of the Crimes Act. We propose to consider the relevant sentencing principles for that offence now before turning to consider the respective submissions.

2. [66]

   The amendments to s 66EA came into effect from 1 December 2018. They were made following the findings and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Two problems were identified in relation to the provision (which appeared in similar terms in legislation in other jurisdictions) as it then stood. The first difficulty was that children struggled to identify individual instances of sexual abuse (rather than the ongoing nature of it) which was required following the decision in S v The Queen (1989) 168 CLR 266; [1989] HCA 66. The second difficulty was that the sentencing court was required to ascertain the jury unanimity in relation to discrete instances of sexual abuse relied upon to support the offence. This appeal is concerned with the amendments which addressed the first of these two problems.

3. [67]

   In MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180, Beech-Jones CJ at CL (as his Honour then was) (with whom Ward P, Price, Wilson and Lonergan JJ agreed), considered the question of whether an offence under s 66EA is established by proof of the commission of two or more unlawful sexual acts or proof of the existence of a relationship “in which” two or more unlawful sexual acts were committed or proof of the existence of a sexual relationship over and above the commission of two or more unlawful sexual acts. There was no need in that decision to consider the issue the subject of the present appeal, but a number of helpful principles are derived from that decision.

4. [68]

   As the terms of s 66EA make clear, in order to prove the existence of an unlawful sexual relationship, the prosecution need only prove to the satisfaction of each individual juror that two unlawful sexual acts were committed by the offender in any period: s 66EA(2), s 66EA(5)(c); MK v R; RB v R. Nor is it necessary for the prosecution to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence: s 66EA(4).

5. [69]

   It is not necessary for the Crown to prove beyond reasonable doubt that the offender’s conduct was habitual or continuous in the sense of needing to prove the existence of a sexual relationship over and above the commission of two or more unlawful sexual acts that s 66EA(2) requires: MK v R; RB v R at [95]-[96].

6. [70]

   The authorities pertinent to the previous iteration of the section should be approached with some caution because, as the High Court observed in Xerri v The King, the offence under s 66EA is a distinct and different offence from the precursor offence which it replaced: see also MK v R at [68].

7. [71]

   The present appeal is concerned with the fact-finding exercise required by the sentencing judge when the evidence discloses that the offending was ongoing during the relevant period, but the victim cannot particularise every incident during the course of the sexually abusive “relationship”.

8. [72]

   In Xerri v R [2021] NSWCCA 268; 292 A Crim R 355, Price J (with whom Bell P (as his Honour then was) agreed) noted (at [94]-[96]) the differences between the current offence and the predecessor including that it is the relationship which is the “centrepiece” of the new offence. His Honour went on to observe the following at [97]:

9. [73]

   In MK v R, the applicant sought leave to appeal against the severity of the aggregate sentence imposed on him for three offences contrary to s 66EA in relation to three separate victims. His primary complaint on appeal was that the sentencing judge was not permitted to have regard to the victims’ estimated frequency of the offending conduct in sentencing because s 66EA required the sentencing judge to identify specific occasions of offending. It was contended that it was “not open” for a sentencing judge to rely on such estimates. Rather, it was contended that the judge is required to make findings as to the precise occasions on which an offender engaged in unlawful sexual acts. In support of that argument, reliance was placed on decisions concerned with the predecessor offence. The applicant’s argument was unanimously rejected by the Court (Mitchelmore JA, Sweeney and Huggett JJ).

10. [74]

    Mitchelmore JA noted the applicant’s reliance on s 66EA(8) and observed the following at [7]:

11. [75]

    Her Honour went to observe at [8]:

12. [76]

    And further at [9]:

13. [77]

    Similarly, Sweeney J observed the following at [85]:

14. [78]

    In RA v R, a similar argument was relied upon by the applicant, who sought leave to appeal against the aggregate sentence imposed on him for a number of offences including two against s 66EA. Again, the Court (Adamson JA, Wilson and Dhanji JJ) unanimously rejected that argument and dismissed the appeal.

15. [79]

    The applicant in RA v R contended that s 66EA was introduced to facilitate verdicts on “uncertain” evidence but that did not extend to the proceedings on sentence. It was contended that it was an error to sentence the applicant for the unlawful sexual relationship by taking into account that it occurred repetitively without particularising each incident. Complaint was made that the sentencing judge had described the relationship as “prolonged and predatory”, involving “multiple occasions” of fellatio and digital-anal intercourse, which occurred “on average every two or three weeks”. It was contended that the only relevance of the offending that was not specifically particularised was a “a sort of context evidence” which was not relevant to an assessment of the gravity of the offence: at [84].

16. [80]

    In rejecting this argument, Wilson J noted at [87] that, as is clear from the discussion in MK v R; RB v R, the purpose for the amendments to s 66EA was to overcome problems of proof that had historically hindered the prosecution of sexual offences committed against children who had been subjected to repeated and prolonged abuse. After referring to the relevant second reading speech at [88], her Honour went on to observe the following at [89]:

17. [81]

    Her Honour noted (at [96]) the decision of the High Court in Xerri v The King and the observation by Gageler CJ and Jagot J at [15] that:

18. [82]

    Her Honour went on to note (at [99]) the differences between the current offence and its predecessor as identified by Gageler CJ and Jagot J in Xerri v The King including that the focus of s 66EA is not on proof of a particular number of individual sexual offences, but on proving the existence of a particular kind of relationship. Her Honour then observed the following at [100]:

19. [83]

    Her Honour noted at [101] that s 66EA “criminalises the maintenance over a designated period of an unlawful sexual relationship by an adult with a child” before going on to observe the following at [102]:

20. [84]

    We pause to note that the sentencing judge in the present appeal relied on these factors in RA v R at [102] in assessing the objective seriousness of count 1.

21. [85]

    In R v Fisher, the same issue arose for consideration, albeit this time in the context of a Crown appeal. The Crown appealed against the manifest inadequacy of the aggregate sentence imposed on the respondent for three offences one of which was brought contrary to s 66EA. The Crown contended that the sentencing judge had erred in acting on a wrong principle in respect to the unlawful sexual acts or incidents which were not specifically charged as alternative counts on the indictment. It is to be noted that, unlike in the present case, the sentencing judge was not assisted by any recent authority and, rather, was provided with decisions concerned with the predecessor offence, which, as is now clear, was a different offence. Accordingly, his Honour wrongly confined himself to sentencing the respondent on the acts he was satisfied of beyond reasonable doubt. Despite this, his Honour found that there was a “pattern of abuse” and the two unlawful acts he found beyond reasonable doubt were not isolated acts: at [47].

22. [86]

    The Court (Rigg J with whom Price AJA and Garling J agreed) unanimously upheld the Crown appeal and re-sentenced the respondent. Rigg J observed the following at [114]:

23. [87]

    Her Honour went on to observe the following at [120]:

24. [88]

    In addition to these decisions, the respondent relied upon the decision in Massaquoi v R [2024] NSWCCA 125 at [97]-[99], which also concerned fact-finding after a trial:

25. [89]

    Finally, we note that one of the decisions relied upon by Rigg J in R v Fisher (at [80]) in her Honour’s considered analysis of the relevant authorities on this question is GP (a pseudonym) v R [2021] NSWCCA 180. As her Honour acknowledged, that appeal was not directly concerned with the same issue. Rather, it concerned a straightforward mistake of fact in that the sentencing judge sentenced on the basis that there had been ejaculation on “some occasions” when the agreed facts supported one occasion only. In considering the Crown submission that the factual error could not have the capacity to affect the sentencing outcome, N Adams J observed the following at [8]:

26. [90]

    Her Honour went on to observe (at [64]) that although the wording in the sections was different, the factors identified by Johnson J in Burr v R [2020] NSWCCA 282; (2020) 285 A Crim R 506 as being important to assessing objective seriousness under the predecessor offence would be no different when sentencing under the new provision. In the interests of clarity, it should be noted that observation was limited to the issue in dispute in that appeal. Clearly, although some of the relevant factors are the same, the proper approach since the amendments to s 66EA is to have regard to factors such as those identified by Wilson J in RA v R at [102], rather than to Burr v R which concerned the predecessor offence.

Ground 1: Error of principle

1. [91]

   The Crown’s position was that despite the fact that the sentencing judge accepted AR to be “compelling”, “credible”, and “honest” he found that only “a minimum of” five incidents occurred due to the limited specificity in her descriptions in the context of the standard of proof being beyond reasonable doubt. The result was that there was no acceptance for sentencing purposes of any frequency of offending beyond the five incidents found by his Honour. It was submitted that this finding involved a misplaced focus on the number of individual sexual offences.

2. [92]

   It was submitted that his Honour acted upon a wrong principle by focusing on the isolated incidents that his Honour found established. This approach limited the assessment of objective seriousness to a small number of specific and numerate acts which defeated the purpose of s 66EA. Making a finding as to the specific number of incidents was not an accurate reflection of the features identified by Wilson J in RA v R. It was submitted that the distinction between the number of incidents and the extent of the offending may be subtle but in the present context it was an important one. Whereas the number of offences focuses upon countable acts, the extent of the offending implicitly acknowledges that the acts may not be able to be counted. In this regard, the word “extent” is consistent with the offence contrary to s 66EA and is to be considered alongside the concept of frequency: RA v R at [102(7)].

3. [93]

   It was submitted that an estimate of frequency of unlawful sexual acts committed upon AR could have been determined beyond reasonable doubt on the evidence available to his Honour based on AR’s evidence and the fact that his Honour found it to be credible and compelling.

4. [94]

   It was noted that one consequence of the finding of only five acts having been established relates to the significance of his Honour’s findings that the sexual acts were of brief duration. It was submitted that had his Honour found that the unlawful sexual acts were committed on very many additional occasions (as the Crown contended he would), the brevity of each act would have had little significance.

5. [95]

   As for the fact that his Honour was not satisfied that the respondent placed his finger inside AR as she alleged, because her evidence was insufficiently precise to establish “actual penetration”, it was submitted that it was not necessary to prove actual penetration for such acts to be considered.

6. [96]

   Although strictly not relevant to the findings of frequency, it was further submitted that his Honour’s finding of “opportunism” overlooked the fact that the offence is one of maintaining an unlawful relationship over time.

7. [97]

   The respondent’s position was that it was open to the sentencing judge to find the facts that he did based on the evidence given by AR at the trial.

8. [98]

   As for the relevant principles, they were accepted but it was submitted that a “significant and insurmountable point of distinction” in this case is that in each of the decisions relied upon by the Crown the sentencing judge was satisfied beyond reasonable doubt as to the entirety of the victim’s evidence: Massaquoi v R at [65], [81], [98]-[100]; MK v R at [9], [26]-[27]; R v Fisher at [25], [31]. Reliance was placed on the fact that issue was joined as to the relevant facts in this matter. It was submitted that different considerations might arise in another case where issue was joined: in Massaquoi v R at [99] it appears to have been acknowledged that “a minute analysis of the evidence with a view to making ‘evidence-based findings of fact’” might be required where issue is joined on the extent of the offending.

9. [99]

   Even though the relevant principles were accepted, it was submitted that they should not be read so as to obscure the profound difficulties in fact-finding that a sentencing judge faces following a trial on s 66EA. Nor should they be read so as to limit the scope of findings that a sentencing judge may make where issue is joined on sentence as to the nature, extent or frequency of the offending.

10. [100]

    It was submitted that the verdict of the jury did not demand an outcome whereby the sentencing judge accepted all of AR’s evidence and that the positive credit findings made by his Honour did not demand acceptance of all of her evidence beyond reasonable doubt.

11. [101]

    The respondent’s counsel then identified aspects of AR’s evidence at trial which lacked specificity. It was noted that in her first interview with police on 15 June 2006 she stated simply that “he touches it every time he comes over”. When asked when the last time this occurred was, she responded, “I don’t know. He never stops”. When asked how many times the respondent had “played with her rude bits”, she responded, “every time actually, every time” and that this was “heaps of times”.

12. [102]

    Reliance was placed on the fact that AR did not remember the first time that it happened nor the last time. AR could not remember if the respondent kissed her “rude bits” on the inside or outside. She could not remember the last time that he woke her up and got her out of bed and took her to the lounge room. She referred to an occasion when he got out of bed and kept her awake until morning. Although she could remember that the respondent was lying on the lounge with her, she could not remember if anything else happened. She said that the respondent put the blanket over her “about eight times” and that he touched her on the “rude bits” “only in the lounge room and in the car”.

13. [103]

    In evidence in chief, when AR was asked about how often the respondent touched her “rude bits” she was reminded of what she said in her first interview (“heaps of times” etc) and stated, “today, all I can remember is him touching me”. When pressed to be more concrete about the number of times, she replied, “I can just say the same thing. Just heaps”.

14. [104]

    It was noted that AR gave evidence as to what the respondent would do to her as follows:

15. [105]

    The respondent relied upon these and other inadequacies in AR’s evidence at trial including the fact that she told police in her first interview that three other persons were present in the lounge room when the respondent put a blanket over her and kissed her “rude bits” but that she clarified this in her evidence that they were not there when he used his mouth; it was only when he was using his hand. She agreed in her evidence that this was the first time she had said that. Further she could not recall the terms of her complaint to her father.

16. [106]

    AR was reminded of her evidence in her second interview that the respondent put a blanket over her about “eight times”. Although she had stated that the respondent touched her every time he came over (in her first interview) she had only provided details of two occasions. She was asked about this and gave the following answers:

17. [107]

    AR’s evidence at trial was that she was conveying something different than “eight times” when she told police in her first interview that the respondent played with her “rude bits” “every time” and “heaps of times”. She explained it in this way:

18. [108]

    The respondent also relied upon the fact that AR did not mention anything happening in the van until her second interview with police. When asked why that was the case she replied, “I don’t think I remembered then”.

19. [109]

    Reliance was placed on the fact that AR gave evidence of some matters for the first time in court including that the respondent pulled her pants down and evidence about him kissing her when the siblings were not present in the lounge room. It was submitted that the finding that the offending occurred in the van on at least one other occasion was made in the context where there was no particularity in the evidence about that occasion and her evidence was that it occurred “more than once” in the van.

20. [110]

    Having regard to these shortcomings in the complainant’s evidence, it was submitted that the complaint in relation to his Honour’s findings of fact is without merit. The quality of AR’s evidence was not such to require a different finding to that found by his Honour.

21. [111]

    Reliance was placed on the differences between the quality of the evidence in this case as opposed to other reported cases such as MK v R. It was submitted that the evidence of the three victims in that case as to the nature of the offending was far more detailed than in the respondent’s case: see MK v R at [30]-[51].

22. [112]

    It was submitted that the evidence was “especially indistinct” as it did not go further than AR simply stating that it happened “every time” or “heaps of times” which is also inconsistent with her earlier claim that it only happened eight times. The lack of specificity in the victim’s evidence was a relevant consideration and did not necessarily indicate that his Honour was searching for conduct that could be particularised. His Honour drew a distinction between findings regarding “specific incidents” being the two incidents which were capable of being particularised as standalone offences and the other three incidents. The evidence of the other incidents of which his Honour was satisfied beyond reasonable doubt were not in fact of a kind that would have enabled those offences to have been prosecuted as standalone offences.

23. [113]

    As for the specific complaint about his Honour not being satisfied there had been actual penetration, it was submitted that this submission misstates the reasons why his Honour rejected the evidence. He did so not only because it was insufficiently precise but also because the victim had not referred to it in either of her police interviews or her evidence in chief. Nor was the sentencing judge asked to make the finding for which the Crown now contends, namely, that it was evidence of direct touching and reinforced the repeated nature of the offending.

Consideration: Ground 1

1. [114]

   The complaint under this ground was not a challenge to the finding of objective seriousness per se. Nor did the Crown contend that the findings of fact made were not open to his Honour. The ground proceeded on the narrow issue of whether in making the findings of fact he did, his Honour misunderstood and/or misapplied the relevant principles. The specific error was identified as the sentencing judge proceeding on the basis that before an assessment of the extent and frequency of the offending can be made, he had to be satisfied beyond reasonable doubt of each incident relied upon by the Crown.

2. [115]

   The respondent did not take issue with any of the relevant principles relied upon by the Crown; the area of dispute under this ground was whether his Honour did in fact misapply those well established principles as the Crown contended.

3. [116]

   As the language of s 66EA and the principles derived from the decisions which have considered it make clear, the respondent was to be sentenced for maintaining an unlawful sexual relationship with AR. Her evidence was that the sexual abuse was regular and ongoing over a period of six months. His Honour’s reasons disclose that he proceeded on the basis that in order to determine the scope of the relationship he had to be satisfied beyond reasonable doubt of each specific act.

4. [117]

   As Wilson J observed in RA v R, the focus of s 66EA is not on proof of a particular number of individual sexual offences, but on proving the existence of a particular kind of relationship. Similarly, as Rigg J observed in R v Fisher there was no need for the sentencing judge to determine specifically the number of discrete offences, look for “ingredient offences”, or “representative offences” or to contrast these with “uncharged offences” or “other offences”.

5. [118]

   The relevant portion of his Honour’s reasons is at [11]-[15] extracted above at [25]. After his Honour noted AR’s evidence that the respondent would touch her sexually “every time” he would come over, he made no finding as to whether he accepted that evidence or not. His Honour then went on to apparently accept the evidence from AR’s father (sic stepfather) to the effect that the respondent would stay over at least three nights per week and was over nearly every day noting that the respondent had many opportunities to offend against AR.

6. [119]

   His Honour found AR to be a credible and compelling witness (based on both of her interviews and her evidence in court) and immediately went on to state that he found her account to be “an honest one”.

7. [120]

   Nonetheless his Honour considered that he could only be satisfied that five specific incidents had occurred, although he explained (at [15]) that he thought it was “very highly probable” that there were “many more incidents” than those five. His Honour stated that he was conscious of the important purpose behind s 66EA before concluding that:

8. [121]

   The determination of the ground that falls to be considered is on whether it was open to his Honour to find that AR’s evidence was not “specific” enough to find that the offending was as frequent as the Crown contended it was. Having considered his Honour’s reasons in the context of the relevant sentencing principles, we are satisfied that his Honour proceeded under the misapprehension that before he could be satisfied beyond doubt that the abuse was occurring regularly, as AR contended, he had to be satisfied of each incident beyond reasonable doubt.

9. [122]

   We have reached this conclusion despite the fact that his Honour acknowledged the purpose of s 66EA as being in response to the difficulty children have in remembering specific standalone events that can be charged on indictment. Further, and unlike the decision in R v Fisher, the sentencing judge was provided with assistance including the decision in RA v R and referred to it in his reasons. Although it is to be accepted that his Honour stated the principles correctly, his reasons disclose that he erred in their application. This is apparent in his Honour’s statement at [11], prefacing the fact-finding exercise where he said:

10. [123]

    In so stating, his Honour appears to have approached the exercise on the basis that, given the challenge to the complainant’s evidence, he was required to find specific incidents proved (albeit those incidents may not have been capable of being particularised) for the purpose of sentencing the respondent.

11. [124]

    We have considered the respondent’s submission that the principles derived from the relevant decisions to which we have referred only apply when the relevant complainant’s evidence is not challenged by an offender for the purposes of sentencing and that different principles may apply in those circumstances. Reliance was placed on the observations by Wilson J in Massaquoi v R in support of this submission.

12. [125]

    In Massaquoi v R, Wilson J observed at [99], in the context of finding that it was open to the sentencing judge to accept the victim’s evidence in its entirety, that there had been no argument put in that case that some portions of it were unreliable. Her Honour then went on to note that there was no necessity for the sentencing judge to “undertake a minute analysis of the evidence with a view to making ‘evidence based findings of fact’.” The respondent relied on this passage in support of the general submission that in a case such as the present, where the complainant’s reliability was impugned, different principles might apply. Whatever be the case in this regard, the point in the present case is that the fact-finding exercise was not constrained by a need to find individual instances of offending proved beyond reasonable doubt.

13. [126]

    The finding that his Honour erred in this case is not meant to suggest that, in every case of an offence against s 66EA(1), a sentencing judge must make a determination in terms of frequency rather than in terms of specified events. In some cases, there will be a known number of incidents constituting the entirety of the criminal conduct. In others, there may be evidence of a frequency of abuse given by a complainant that is accepted beyond reasonable doubt. Alternatively, it may be that there is evidence given of unparticularised conduct occurring at a frequency that is not accepted beyond reasonable doubt. In such a case, a judge may be able to find the conduct occurred at some lower frequency, or alternatively, may only be satisfied beyond reasonable doubt of a number of specific instances rather than a particular frequency of offending behaviour.

14. [127]

    In fact-finding in the present case, any of the above alternatives may have been open to his Honour. The error, however, was that his Honour appears to have limited himself by taking the view that he was required to sentence the respondent only on the basis of the particular “incidents” of which he could be satisfied beyond reasonable doubt, to the exclusion of the possibility of the applicant being sentence based on a finding as to frequency.

15. [128]

    We would uphold this ground.

Disposition of appeal

1. [129]

   Acceptance that his Honour erred under ground 1 raises the question of what this Court should do with respect to determining the facts on which the adequacy of the sentence should be assessed. As Mitchelmore JA observed in MK v R at [8] and [9], once a sentencing judge accepts the reliability of a witness they are entitled to rely on that evidence as to the frequency of the offending, although the findings must be “evidence based”. In RA v R, Wilson J observed at [100] that the fact-finding exercise was straightforward in that case because the applicant specifically acknowledged for the purposes of the agreed fact that he had abused his children repeatedly. In R v Fisher, Rigg J observed at [114] that once the sentencing judge was satisfied beyond reasonable doubt of the totality of the evidence of both victims, the respondent was to be sentenced for all of it.

2. [130]

   Thus, if this Court was satisfied that the sentencing judge accepted that AR was a reliable witness it would be open to this Court to determine the adequacy of the sentence, and if necessary, re-sentence the respondent, based on the facts as found by his Honour. The question is whether the sentencing judge’s findings regarding AR’s credit are sufficiently clear as would permit this Court to assess the objective seriousness on count 1 afresh based on those findings and the trial transcript.

3. [131]

   His Honour was required to sentence the respondent having presided over his trial. The principles with respect to sentencing after trial are well established. In Cheung v The Queen at [14], Gleeson CJ, Gummow and Hayne JJ adopted the following summary from the decision of this Court in R v Isaacs:

4. [132]

   A qualification applies, in some limited cases, to the proposition in [5] above, that the sentencing judge is not required to sentence an offender on the basis of facts that is most favourable to the offender while still consistent with the verdict: see Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 at [52]-[53]; [68]-[74].

5. [133]

   The Crown prepared a proposed summary of the facts, including those for count 1 based on the evidence in the trial. That version was based on an acceptance of the evidence of AR, together with evidence of conduct alleged by AR in a complaint made to her father. Reading AR’s evidence as a whole, it was consistently to the effect that the abuse occurred regularly over the six-month period. But the proposed facts were not accepted by the respondent. Issue was thereby joined. It fell then to the sentencing judge to resolve the facts, to the extent this was possible, consistently with the verdict of the jury.

6. [134]

   His Honour indicated at the outset of his reasons that he would accept the Crown’s proposed facts, so far as they were not in issue, and address the areas in dispute.

7. [135]

   At no time in his reasons did his Honour expressly make any finding as to whether he found AR to be either reliable or unreliable insofar as the frequency of the offending is concerned. His reasons suggest that it was her lack of specificity which precluded him from finding that the offending occurred as regularly as the Crown contended. But it is of some note that his Honour did not expressly state that he accepted the evidence she gave at trial, or that he accepted the proposed facts provided by the Crown as they related to AR. This is in the context of the onus being on the Crown to prove, beyond reasonable doubt, the extent of the sexual relationship beyond that which was not in dispute.

8. [136]

   The closest his Honour came to a finding that he accepted the evidence of AR was his statement that she was “a credible and compelling witness” as well as “honest”. It is convenient to, again, set out the paragraph in which that statement was made:

9. [137]

   The expression “credible and compelling” can be contrasted with the more commonly used expression “credible and reliable”. The latter expression is generally used to express a finding that a witness was both honest (or credible) and not mistaken (or reliable). While we accept it is not pellucidly clear, we are unable to accept his Honour’s use of “credible and compelling” as simply being an alternative formulation of “credible and reliable”. In that regard, we do not accept that “compelling” was used by his Honour as a synonym for “reliable”. That a person provides a compelling account of an event does not mean that the account is necessarily reliable. It may mean, as we understand it to mean here, that the manner in which AR gave her evidence made her more believable. The manner in which evidence is given, or demeanour, is not the sole (or even, necessarily, a reliable) determinant of the reliability of an account.

10. [138]

    There are a number of indictors in his Honour’s reasons supporting the view expressed above. Having found AR to be “credible and compelling” his Honour immediately went on to state that he accepted her account was honest, in other words credible. But, having done so his Honour qualified his finding of honesty with the word “however”. His Honour then went on to engage in resolution of the factual dispute. This is, in our view, inconsistent with the wholesale acceptance of AR’s evidence.

11. [139]

    Further, in resolving the factual dispute his Honour rejected the Crown submission that the offending included an instance of digital penetration of AR’s vagina. This submission was based on AR’s first complaint which was made to her father. His Honour noted that AR did not incorporate such an event in her oral evidence or in any of her interviews. This did not amount to a rejection of the evidence of AR, and indeed was not necessarily inconsistent with her evidence. It does, however, demonstrate that his Honour was not willing to fully accept the Crown’s proposed facts. It also demonstrates that determination of the reliability of AR’s evidence was not a straight-forward exercise.

12. [140]

    There were, in addition to the above, other issues that at least raised a question as to whether AR’s evidence should be accepted to the extent submitted by the Crown. While in her first interview AR said that it happened “every time he comes over”, other things said by AR at least arguably, undermined the reliability of this statement. AR also said, in her first interview:

13. [141]

    In her second interview she said:

14. [142]

    Whilst AR gave an explanation in her evidence for her statement that “he put a blanket over me about 8 times”, his Honour was not obliged to accept that explanation. He made no finding that he did. His Honour did refer to the “limited degree of specificity in the victim’s descriptions” as a matter which impacted on his ability to make findings. That observation reflects some of the matters we have set out above. That lack of specificity impacted the quality of the evidence in that it left the evidence in the form of a generalised assertion. As such it also limited the respondent’s ability to test the evidence by cross-examination. It thus told against finding, as submitted by the Crown, that it happened “every time” the respondent was at the home of AR. In other words, it impacted his Honour’s ability to find the evidence to be reliable. His Honour’s reference to this issue supports the view we have expressed above that his Honour did not accept all AR’s evidence with respect to the frequency of the abuse in its entirety.

15. [143]

    Regrettably, we have concluded that there is sufficient doubt as to whether the sentencing judge found AR to be reliable on the question of the frequency of the assaults on her such as to preclude this Court from determining the facts for the purposes of determining the adequacy of the sentence imposed (and if necessary) re-sentencing the respondent. The relevant ground does not assert an error of fact. Rather it asserts an “error of principle in the determination of the objective seriousness for the offence”, an error which we accept occurred. Given the limited nature of the ground, it is doubtful that this Court could, at least in the circumstances of this case, determine the facts for itself. In any event, this Court should be slow to step into the role of a sentencing judge in determining disputed facts. That is particularly so where, as here, witnesses have given evidence.

16. [144]

    Further, the difficulties for an appellate court in making findings of fact following a trial are not limited to not having the advantage of the sentencing judge in having seen and heard the witnesses give evidence. The judge at first instance also enjoys a considerable advantage in hearing the evidence as it is given, and consequently the “opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23].

17. [145]

    For these reasons, we have found error but conclude that the appropriate course, if persuaded to intervene, is to remit the matter to the sentencing judge to assess the objective seriousness of count 1 in accordance with our findings under ground 1.

18. [146]

    When exercising jurisdiction under s 5D of the Criminal Appeal Act, this Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24] (“Bugmy”). It is for the appellant to satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised in the present case: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] (French CJ and Gageler J), at [54] (Kiefel, Bell and Keane JJ); Green v The Queen; Quinn v The Queen at [1], [36]; Bugmy at [24].

19. [147]

    The difficulty with the consideration of the residual discretion in the present appeal is that in upholding ground 1 and concluding that this Court is not in a position to re-find the facts, we have not proceeded to determine ground 2. The fact that ground 1 has been established means that this Court is not in a position to proceed further to consider other matters such as whether ground 2 is also established and whether the residual discretion should be exercised.

20. [148]

    On the other hand, the order that this matter be remitted to the trial judge follows on from our order that the appeal be allowed. It seems to us that the question of whether this appeal should be allowed is one that remains discretionary. In Green v The Queen; Quinn v The Queen, French CJ, Crennan and Kiefel JJ observed the following at [43] as to possible reasons why the court may decline to intervene in a Crown appeal:

21. [149]

    As Rigg J observed in R v Fisher, it is to be accepted that the principles in relation to s 66EA have been addressed in the recent decisions of this Court in MK v R and RA v R but, as was her Honour, we are satisfied that confirmation of error in the specific way demonstrated in this matter provides an opportunity for further guidance. That guidance could, in theory, be provided by stating the correct principle and dismissing the appeal. Such a course would avoid further delay, a matter of some significance, especially in a Crown appeal. Against the above, the Crown has established patent error. As a result, the respondent has been sentenced for serious crimes, without proper findings of fact having been made with respect to the most serious of the offences. In the present case, that fact-finding exercise goes to heart of the nature of the offence created by parliament and of which the respondent was convicted. To dispose of the matter without the gravity of the offending having been properly assessed is prone to undermine public confidence in the administration of justice. That is in the context of a sentence which, on any view, is a lenient one. In our view, the appropriate order is for the matter to be remitted to be dealt with by the sentencing judge in accordance with the reasons of this Court.

22. [150]

    To be clear, the remittal should not be understood as requiring his Honour to make a different finding of fact. Rather, his Honour is required to arrive at any finding of fact by correctly applying applicable principle. With respect to the sentence itself, having regard to the Crown appeal, his Honour ought not to regard himself bound by any “ceiling” principle that may apply in other circumstances: cf R v Gilmore (1979) 1 A Crim R 416; Tarrant v R [2007] NSWCCA 124; (2007) 71 A Crim R 425.

Orders

1. [151]

   Accordingly, we would propose the following orders:

   1. (1)

      The appeal is allowed.

   2. (2)

      The aggregate sentence imposed by Judge Bourke SC on 3 September 2024 is quashed.

   3. (3)

      The matter is remitted to be reheard by Judge Bourke SC consistent with the findings of this Court.

   4. (4)

      The matter is listed for mention before Judge Bourke SC at Newcastle District Court on Wednesday, 26 February 2025 at 10.00am to fix a sentence hearing date. The parties have leave to appear by way of audio-visual link.