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13
Court of Criminal Appeal 29 June 2022

R v RB

[2022] NSWCCA 142

Also reported as (2022) 300 A Crim R 1
Sexual offences
CRIME APPEALS PERSISTENT SEXUAL ABUSE OF A CHILD NATURE OF THE OFFENCE EFFECT OF LEGISLATIVE REFORMS DIFFICULT FACT

Citation: R v RB [2022] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 29 June 2022
Judges: Harrison J, Wright J, Fagan J

Background

The respondent was convicted after trial in the District Court of one count of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW). The offending involved his biological daughter and was alleged to have occurred over a period spanning January 2013 to December 2016, when she was aged between 8 and 11. The charge specified multiple particular sexual acts said to constitute the unlawful sexual relationship.

The respondent was sentenced to 10 years imprisonment with a non-parole period of 7 years. He was also convicted and sentenced separately for an offence of indecent assault of a child under s 61M(2) of the Crimes Act, though that conviction was not the subject of this appeal.

The Crown appealed on the ground that the sentencing judge erred by treating herself as obliged to sentence on the facts most favourable to the offender, and also contended that the sentence was manifestly inadequate. The respondent separately sought leave to appeal against his own sentence on several grounds relating to the applicable maximum penalties.

  • Whether the sentencing judge was required to adopt the most favourable version of the facts when the jury had returned a guilty verdict under s 66EA without being required to agree on which specific sexual acts constituted the unlawful sexual relationship
  • How a sentencing judge is to determine the objective gravity of a s 66EA offence where no jury finding of unanimity exists on any particular underlying sexual act
  • Whether the applicable maximum penalty was correctly identified for the s 66EA offence and for particular underlying acts charged as particulars
  • Whether the sentencing judge erred in finding that more than one attempt at sexual intercourse had been committed

Decision

Section 66EA requires the jury to be satisfied beyond reasonable doubt that an unlawful sexual relationship existed, but expressly provides that jurors need not agree on which specific sexual acts constituted that relationship. Fagan J identified this as a significant structural feature of the offence: the verdict does not carry with it any unanimous jury finding about any individual sexual act. As a result, the sentencing judge is not merely faced with uncertainty about what the jury may have found, but faces a situation where the statute expressly forecloses the possibility that any particular act was unanimously accepted by the jury.

The Court held that the sentencing judge erred in treating herself as bound to sentence on the facts most favourable to the offender. Rather, a sentencing judge dealing with a s 66EA conviction must independently determine the relevant facts to the requisite standard, making her or his own findings on the evidence about the nature and extent of the offending. This involves a difficult fact-finding exercise, but it is the task the legislature has assigned to the sentencing court by enacting the provision in its current form.

The Court drew support from the South Australian Court of Appeal's decision in Henry v The Queen [2022] SASCA 60, which reached the same conclusion about a materially identical provision. The Crown's first appeal ground was therefore upheld, and the sentence was quashed and remitted to the District Court for resentencing. The respondent's application for leave to appeal against his own sentence was dismissed.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court on 4 June 2021 for the s 66EA offence quashed
  • Proceedings remitted to the District Court for rehearing on sentence for that count
  • Matter listed in the District Court at Newcastle on 7 July 2022 for allocation of a hearing date
  • Respondent's application for leave to appeal against sentence dismissed

Key Takeaways

  • Under s 66EA of the Crimes Act 1900 (NSW), a jury need not be unanimous about which specific sexual acts constituted the unlawful sexual relationship, meaning a guilty verdict carries no unanimous finding about any individual underlying act.
  • A sentencing judge dealing with a s 66EA conviction is not permitted to default to the most favourable version of the facts for the offender; instead, the judge must conduct an independent fact-finding exercise to determine the nature and extent of the offending.
  • The legislative design of s 66EA effectively shifts significant questions of criminal culpability from the jury to the sentencing judge, creating a demanding fact-finding task at the sentencing stage.
  • In dismissing the respondent's leave application, the Court of Criminal Appeal also confirmed that errors relating to applicable maximum penalties and the number of underlying acts were not established on the grounds argued.
  • The South Australian Court of Appeal reached the same conclusion about a materially identical provision, providing consistent judicial interpretation across jurisdictions on this sentencing question, though the courts in those two states appear to differ on what must be proved to establish the "maintenance" of an unlawful sexual relationship.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA, s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Criminal Law Consolidation Act 1935 (SA), s 50
- Criminal Code (Qld)
- Commonwealth Constitution
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases:
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Henry v The Queen [2022] SASCA 60
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- KMC v Director of Public Prosecutions (2020) 267 CLR 480; [2020] HCA 6
- XY v R (2013) 84 NSWLR 363; [2013] NSWCCA 121
- Burr v R [2020] NSWCCA 282
- Park v R [2020] NSWCCA 90
- Xerri v R [2021] NSWCCA 268
- Gould v R [2021] NSWCCA 92
- KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- R v Isaacs (1997) 41 NSWLR 374
- R v CAZ [2011] QCA 231
- Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44