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Court of Criminal Appeal 17 July 2024

MK v R

[2024] NSWCCA 127

Sexual offences

Citation: MK v R [2024] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 17 July 2024
Judges: Mitchelmore JA, Sweeney J, Huggett J

Background

The applicant was convicted after trial on three counts of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW). The three victims were brothers whose mother was in a relationship with the applicant. The sentencing judge imposed an aggregate sentence of 28 years imprisonment with a non-parole period of 21 years.

The applicant had previously appealed his convictions without success. The sentence appeal was stood over pending the High Court's decision in Xerri v The King [2024] HCA 5, after which the sentence appeal proceeded.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge improperly relied on the victims' estimates of the frequency of offending rather than identifying specific acts; and second, that the sentence was manifestly excessive.

  • Whether a sentencing judge is permitted to rely on victims' estimates of the frequency of unlawful sexual acts when sentencing for an offence under s 66EA, or must instead make findings as to each specific individual act.
  • Whether ss 66EA(4) and (5) of the Crimes Act, which modify what the prosecution must prove and what the jury must agree upon, apply at the sentencing stage or only at the guilt stage.
  • Whether the aggregate sentence of 28 years was manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on both grounds, with Sweeney J delivering the primary judgment and Mitchelmore JA and Huggett J each agreeing.

On Ground 1, the Court rejected the applicant's contention that the sentencing judge was required to identify precise individual occasions of offending and could not rely on frequency estimates given by the complainants. The Court held that this approach was contrary to the plain terms of s 66EA, its purpose, and the mischief it was designed to address. The offence under s 66EA is directed at the maintenance of an unlawful sexual relationship, not the proof of discrete individual acts as charged offences. Importantly, the Court held it was not logically or legally tenable to argue that ss 66EA(4) and (5) have no application at sentencing, given that a sentencing judge's factual findings must remain consistent with the jury's verdicts.

The Court drew on Cheung v The Queen (2001) 209 CLR 1 to affirm that a jury verdict resolves the elements of guilt but does not determine every fact relevant to sentencing. The sentencing judge retains the task of making further factual findings relevant to culpability, provided those findings are established beyond reasonable doubt. In this case, the Court found no error in the sentencing judge's factual findings. The judge had accepted an evidence summary agreed to by both counsel and stated he was satisfied beyond reasonable doubt of each child's evidence. The number and nature of sexual acts beyond the minimum required to establish the offence remains directly relevant to objective seriousness.

Ground 2 was contingent on Ground 1 succeeding. Because Ground 1 was not established, Ground 2 fell away and was not independently assessed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under the current s 66EA of the Crimes Act 1900 (NSW), a sentencing judge is not required to identify each specific individual act of sexual abuse with precision; reliance on evidence of the frequency and nature of unlawful sexual acts, including estimates given by complainants, is consistent with the structure and purpose of the provision.
  • Sections 66EA(4) and (5), which modify the prosecution's pleading obligations and the jury's agreement requirements, are not confined to the guilt stage. The Court of Criminal Appeal confirmed these provisions inform the sentencing exercise, and a sentencing judge's factual findings must remain consistent with the jury's verdicts.
  • Because s 66EA can be established by as few as two unlawful sexual acts, the number of acts beyond that minimum and their nature are directly relevant to assessing the objective seriousness of the offending.
  • No error was established in the sentencing judge's fact-finding process, including where the judge relied on an evidence summary accepted by both parties and expressly stated satisfaction beyond reasonable doubt as to each complainant's evidence.
  • A ground of appeal alleging manifest excess that depends entirely on a primary sentencing error ground will not succeed independently if the primary ground is not established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66EA (including sub-ss (1), (2), (4), (5), (8))

Cases
- Xerri v The King [2024] HCA 5
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- GP (a pseudonym) v R [2021] NSWCCA 180
- MK v R; RB v R [2023] NSWCCA 180
- Burr v R [2020] NSWCCA 282
- R v Isaacs (1997) 41 NSWLR 374
- Zreika v R [2012] NSWCCA 44
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
- Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204
- ARS v R [2011] NSWCCA 266
- R v Fitzgerald [2004] NSWCCA 5
- R v RB [2022] NSWCCA 142
- JJP v R (2021) 139 SASR 91; [2021] SASCA 53
- R v D (1997) 69 SASR 413