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8
Court of Criminal Appeal 12 November 2021

Xerri v R

[2021] NSWCCA 268

Also reported as (2021) 292 A Crim R 355
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE CONSIDERATION OF S 25AA(4) CSP ACT CONSIDERATION OF SECOND READING SPEECH WHETHER ERROR IN ACCUMULATION WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Xerri v R [2021] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 12 November 2021
Judge(s): Bell P; Price J; Hamill J (dissenting on Grounds 1 and 3)

Background

The applicant pleaded guilty to maintaining an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The offending involved repeated penile-vaginal intercourse with a child aged 14 to 15 years, committed between November 2016 and July 2018. The applicant was 48 years old when the relationship began. The victim suffered significant psychological harm, including symptoms consistent with PTSD, ongoing self-harm urges, and long-term need for trauma counselling.

At the time of sentencing on 12 February 2020, the sentencing judge imposed a term of 8 years imprisonment with a non-parole period of 4 years 9 months for the s 66EA(1) offence, plus a cumulative fixed term of 4 months for contravening an apprehended violence order. The sentencing judge proceeded on the basis that the applicable maximum penalty was life imprisonment.

The applicant appealed, arguing that because all the relevant sexual acts occurred before 1 December 2018 (the commencement date of the amended s 66EA), the applicable maximum penalty at the time of offending was 25 years imprisonment, not life. This question was central to both the maximum penalty ground and the manifest excess ground.

  • Whether the maximum penalty applicable to the applicant's offence was life imprisonment (under the current s 66EA(1)) or 25 years imprisonment (under the predecessor provision in force at the time of offending)
  • Whether s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates to cap the sentence at the maximum applicable when the offence was committed
  • Whether s 66EA as amended in 2018 created a new offence or merely replaced the predecessor offence, and whether Parliament intended the new maximum penalty to operate retrospectively
  • Whether the sentencing judge erred in the order of accumulation by imposing the s 166 (AVO contravention) sentence first
  • Whether the sentence imposed was manifestly excessive

Decision

Ground 1 (Maximum Penalty): Dismissed by the majority

The majority (Bell P and Price J) held that the applicable maximum penalty was life imprisonment, not 25 years. The majority reasoned that s 66EA as enacted in 2018 created a new offence, distinct from the predecessor provision, even though all the underlying acts occurred before the amendment commenced. The current s 66EA(1) contains materially different elements from its predecessor, including a broader definition of unlawful sexual acts and significant structural differences. Parliament's intention, as revealed by the text of the legislation, the Second Reading Speech, and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, was that the new offence would apply to relationships where the constituent acts predated commencement.

The majority also rejected the argument that s 19(1) of the Crimes (Sentencing Procedure) Act operated to limit the maximum penalty to 25 years. Section 25AA(4) of that Act contemplates that the maximum penalty for a s 66EA offence is life imprisonment, and Parliament's intent to apply the new maximum to this category of offending was sufficiently clear to displace any ambiguity. Hamill J dissented on this ground, concluding that the principle against retrospective operation of laws, and the rule that penal legislation should be construed in favour of the accused, required the 25-year maximum to apply.

Ground 2 (Accumulation): Dismissed unanimously

The applicant argued that the sentencing judge erred by imposing the AVO contravention sentence (which predated the s 66EA offence in time) first, and then accumulating the s 66EA sentence on top of it. The Court found no error in this approach. Section 168(3) of the Criminal Procedure Act gives a sentencing court discretion in structuring the order of sentences, and the judge's exercise of that discretion was not shown to be erroneous.

Ground 3 (Manifest Excess): Dismissed by the majority

The majority found the sentence was not manifestly excessive. The offending was serious, sustained, and involved significant grooming of a vulnerable child over an extended period. The discount for the guilty plea was appropriate, and the sentence fell within the available range. Hamill J again dissented, taking the view that the error on Ground 1 infected the sentencing exercise and that a lesser sentence should have been imposed.

Orders Made

The orders noted in the extracted text reflect the dissenting position of Hamill J only. The majority dismissed all three grounds of appeal.

Hamill J (dissenting) would have:
- Granted leave to appeal
- Allowed the appeal against sentence
- Either imposed a less severe sentence or remitted the matter to the District Court for resentencing

The majority dismissed the application on all grounds. No orders allowing the appeal were made.

Key Takeaways

  • Section 66EA(1) of the Crimes Act 1900 (NSW), as enacted on 1 December 2018, was treated by the majority as a new offence rather than a mere replacement of the predecessor provision, carrying a maximum penalty of life imprisonment even where all the underlying sexual acts predated commencement.
  • The majority held that Parliament's intention for the life imprisonment maximum to apply to offences of this kind was sufficiently clear from the legislative text and extrinsic materials to displace any argument based on the general principle against retrospective application of penal laws.
  • A significant dissent from Hamill J emphasised the rule that penal statutes should be construed in the accused's favour where ambiguity exists, and that s 19(1) of the Crimes (Sentencing Procedure) Act should have capped the available maximum at 25 years.
  • No error was established in the sentencing judge's decision to impose and accumulate the AVO contravention sentence ahead of the principal s 66EA sentence, given the discretion afforded by s 168(3) of the Criminal Procedure Act.
  • In dismissing the manifest excess ground, the majority confirmed that a sentence of 8 years with a non-parole period of 4 years 9 months was within the available range for serious, prolonged child sexual abuse involving grooming of a vulnerable victim.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 25AA, 58
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 168(3)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Interpretation Act 1987 (NSW), ss 23(1)(b), 34(1)(a), 34(2)(f)
- Criminal Appeal Act 1912 (NSW), s 12(2)

Cases:
- Burr v R [2020] NSWCCA 282
- Corliss v R [2020] NSWCCA 65
- MC v R [2017] NSWCCA 316
- R v MJR (2002) 54 NSWLR 368
- R v Ronen [2006] NSWCCA 123
- Moon v R [2000] NSWCCA 534
- Markarian v R (2005) 228 CLR 357
- Barbaro v The Queen (2014) 253 CLR 58
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Kentwell v The Queen (2014) 252 CLR 601
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
- Beckwith v the Queen (1976) 135 CLR 569
- Re Bolton; Ex Parte Beane (1987) 162 CLR 514
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27