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Court of Criminal Appeal 29 July 2024

Nolan v R

[2024] NSWCCA 140

Sexual offencesDomestic & family violence

Citation: Nolan v R [2024] NSWCCA 140
Court: Court of Criminal Appeal, NSW
Date: 29 July 2024
Judges: Harrison CJ at CL, Campbell J, Sweeney J

Background

The applicant was convicted in the District Court of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW). The offending involved multiple acts of sexual intercourse and indecent assault against his daughter over a period of time when she was under 16, committed in the family home.

On appeal against sentence, the Crown conceded that the sentencing judge had been misinformed in two respects: the facts of one of the constituent unlawful sexual acts relied upon as evidence of the offence, and the maximum penalty applicable to that act. These errors affected the sentence imposed in the District Court.

The Court of Criminal Appeal granted leave to appeal and proceeded to resentence the applicant.

  • Whether the sentencing judge's reliance on incorrect facts and an incorrect maximum penalty for a constituent unlawful sexual act constituted an error warranting resentencing
  • What sentence was appropriate on resentencing, taking into account the objective seriousness of the offence and the applicant's subjective circumstances
  • As a collateral matter, whether the prosecution practice of particularising the unlawful sexual acts relied upon under s 66EA is preferable, even though not legally required

Decision

The Court accepted the Crown's concession that the sentencing judge had proceeded on a mistaken factual and legal basis in relation to one of the constituent unlawful sexual acts. That error was sufficient to warrant the appeal being allowed and the original aggregate sentence quashed.

On resentencing, Sweeney J assessed the objective seriousness of the offence as very serious. Relevant factors included the duration of the unlawful sexual relationship, the victim's young age, the fact that the offender was her father, the significant age differential, the nature and number of the unlawful sexual acts (including multiple acts of sexual intercourse and indecent assault involving unclothed contact), and that all offending occurred in the child's home. Her Honour also noted the offender had manipulated the child into believing the abuse reflected his special affection for her.

The court gave some weight to the applicant's health, his participation in courses and employment while in custody, and prior hardship experienced during COVID-19 conditions of custody. Those subjective matters, together with the COVID-related special circumstances, justified maintaining a modest reduction from the standard non-parole period ratio.

Campbell J, with whom Harrison CJ at CL agreed, added remarks emphasising that while particularisation of the underlying unlawful sexual acts is not a legal requirement under current s 66EA, there are strong procedural fairness reasons for the prosecution to identify those acts as clearly as circumstances permit. His Honour pointed to the operation of provisions relating to res judicata consequences (ss 66EA(9) and (10)) and alternative verdicts (s 66EA(13)) as specific textual reasons why clarity about the acts relied upon serves the interests of both fairness and legal certainty.

Orders Made

  • Time for filing the notice of appeal extended
  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence imposed in the District Court quashed
  • Applicant resentenced to 16 years imprisonment with a non-parole period of 11 years and 8 months, commencing 10 July 2022, with the non-parole period expiring 9 March 2034

Key Takeaways

  • A sentencing judge's reliance on incorrect facts and an incorrect maximum penalty for a constituent unlawful sexual act under s 66EA is a material error that warrants resentencing by the Court of Criminal Appeal.
  • Under the current s 66EA of the Crimes Act 1900 (NSW), the two unlawful sexual acts necessary to establish an unlawful sexual relationship are not elements of the offence and are not required to be particularised in the indictment: s 66EA(4).
  • The Court of Criminal Appeal confirmed, consistent with MK v R; RB v R and Xerri v The King, that the current s 66EA was enacted to allow prosecution of persistent child sexual abuse without requiring particularisation inconsistent with how complainants remember abuse.
  • Campbell J identified three reasons supporting the practice of providing the best available particulars of each unlawful sexual act relied upon: fundamental procedural fairness, the res judicata consequences under ss 66EA(9) and (10), and the operation of the alternative verdict provision under s 66EA(13).
  • COVID-19 related hardship in custody remained a relevant factor supporting a finding of special circumstances on resentencing, even in the absence of recent evidence about current conditions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA
- Criminal Procedure Act 1986 (NSW), Pt 2 Div 3, ss 15A, 67
- Director of Public Prosecutions Act 1986 (NSW)

Cases:
- ARS v R [2011] NSWCCA 266
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Kentwell v The Queen (2013) 252 CLR 601; [2014] HCA 37
- MK v R [2024] NSWCCA 127
- MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180
- Xerri v The King [2024] HCA 5; 98 ALJR 461