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Court of Criminal Appeal 21 February 2025

R v Lamey

[2025] NSWCCA 17

Sexual offences
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE PERSISTENT SEXUAL ABUSE OF A CHILD S 66EA OF THE CRIMES ACT REMITTAL TO SENTENCING JUDGE

Citation: R v Lamey [2025] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 21 February 2025
Judge(s): N Adams J, Dhanji J, Faulkner J

Background

A jury convicted the respondent of eight child sexual assault offences involving three victims aged 5, 6, and 11 years, all pertaining to conduct in 2007. The most serious offence was count 1: maintaining an unlawful sexual relationship with a child under s 66EA of the Crimes Act 1900 (NSW), which carries a maximum penalty of life imprisonment. The victim of that count was a 6-year-old girl whom the respondent babysat as a close family friend. The remaining counts involved sexual offences against the victim's 11-year-old sister and the respondent's 5-year-old niece.

The sentencing judge imposed an aggregate sentence of 8 years and 6 months' imprisonment with a non-parole period of 4 years and 9 months. The indicative sentence for count 1 alone was 6 years and 9 months.

The Director of Public Prosecutions appealed, contending that the sentencing judge had applied an incorrect legal principle when assessing the objective seriousness of the s 66EA offence, and that the aggregate sentence was manifestly inadequate.

  • Whether a sentencing judge, when assessing the extent and frequency of sexual abuse making up a s 66EA "maintaining an unlawful relationship" offence, must be satisfied of each individual incident of abuse beyond reasonable doubt before treating the abuse as regular and ongoing.
  • Whether, having found error on that ground, the Court of Criminal Appeal could re-assess objective seriousness itself based on findings already made by the sentencing judge, or whether remittal was required.
  • Whether the aggregate sentence was manifestly inadequate (ground 2).

Decision

Ground 1: Error of principle in assessing count 1

The victim of count 1 gave evidence that the sexual abuse occurred regularly over a period of six months. The sentencing judge described her evidence as "cogent", "compelling", and "honest", but declined to find that the abuse was regular and ongoing because she could only specify a limited number of discrete acts. The Court of Criminal Appeal held that this reasoning reflected a misapprehension of the law.

Section 66EA targets the existence of a particular kind of abusive relationship, not the proof of a specific number of individual sexual acts. The Court confirmed, consistent with its recent decisions in RA v R, R v Fisher, and Massaquoi v R, that a sentencing judge assessing the objective seriousness of a s 66EA offence is not required to be satisfied of each individual incident beyond reasonable doubt before finding that abuse was regular and ongoing. The sentencing judge's approach was therefore an error of principle.

Whether the Court could re-sentence or must remit

After upholding ground 1, the Court considered whether it could undertake the fact-finding exercise itself to avoid further delay. It concluded it could not. Although the sentencing judge had described the victim as credible in qualitative terms, he had not made any express finding about her reliability with respect to the frequency of the offending. Without that finding, the Court was not in a position to assess the objective seriousness of count 1 afresh, particularly following a trial. The matter was accordingly remitted to the sentencing judge to make the necessary findings applying the correct principles.

Ground 2: Manifest inadequacy

Having upheld ground 1 and ordered remittal, the Court was not in a position to consider whether the aggregate sentence was also manifestly inadequate, or whether any residual discretion arose. That question was left to be addressed at resentencing.

Orders Made

  • The appeal is allowed.
  • The aggregate sentence imposed by Judge Bourke SC on 3 September 2024 is quashed.
  • The matter is remitted to be reheard by Judge Bourke SC consistent with the findings of the Court of Criminal Appeal.
  • The matter is listed for mention before Judge Bourke SC at Newcastle District Court on 26 February 2025 at 10.00 am to fix a sentence hearing date, with parties having leave to appear by audio-visual link.

Key Takeaways

  • Under s 66EA of the Crimes Act 1900 (NSW), the focus is on proving the existence of a particular kind of unlawful relationship, not on proving a specific number of individual sexual acts. A sentencing judge is not required to be satisfied of each incident beyond reasonable doubt before finding that abuse was regular and ongoing.
  • The Court of Criminal Appeal confirmed and extended guidance from its recent decisions in RA v R [2024] NSWCCA 149, R v Fisher [2024] NSWCCA 191, and Massaquoi v R [2024] NSWCCA 125 on the correct approach to fact-finding at sentence for s 66EA offences.
  • Where a sentencing judge finds a victim to be credible but makes no express finding about the victim's reliability as to the frequency of offending, that gap can prevent an appellate court from conducting the fact-finding exercise itself, making remittal necessary.
  • On remittal following a successful Crown appeal, the sentencing judge is not bound by any "ceiling" principle; the remittal requires the judge to apply the correct principles to reach whatever finding of fact the evidence supports, not necessarily a different finding.
  • A Crown appeal serves the public interest by promoting uniformity and adequacy in sentencing, particularly where the gravity of the most serious count has not been properly assessed at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 66A, 66C(2), 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- RA v R [2024] NSWCCA 149
- R v Fisher [2024] NSWCCA 191
- Massaquoi v R [2024] NSWCCA 125
- MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180
- MK v R [2024] NSWCCA 127
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Gilmore (1979) 1 A Crim R 416
- R v Todd [1982] 2 NSWLR 517
- R v Isaacs (1997) 41 NSWLR 374
- Burr v R [2020] NSWCCA 282
- GP (a pseudonym) v R [2021] NSWCCA 180
- R v Gavel [2014] NSWCCA 56
- R v Lamey [2024] NSWDC 490