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Court of Criminal Appeal 26 March 2025

Dixon v R

[2025] NSWCCA 41

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL NO POINT OF PRINCIPLE

Citation: Dixon v R [2025] NSWCCA 41
Court: Court of Criminal Appeal, NSW
Date: 26 March 2025
Judges: Davies J, Chen J, Sweeney J (Sweeney J writing)

Background

The applicant had pleaded guilty in the Local Court to 27 offences, including nine counts of sexual intercourse with a child outside Australia, one count of attempting to engage in such intercourse, one count of preparing to engage in such intercourse, fifteen counts of producing child pornography material outside Australia, and one count of possessing child abuse material. All sexual offending occurred in the Philippines. The sentencing judge in the District Court imposed an aggregate sentence of 16 years imprisonment with a non-parole period of 11 years, commencing 6 July 2021.

The applicant sought leave to appeal the sentence, requiring an extension of time because his Notice of Appeal was filed nearly two months late. His previous solicitors had advised him there was no merit in an appeal. The Crown did not oppose the extension.

  • Whether the sentencing judge mistook the facts regarding the age of the victim in one of the sexual intercourse offences (Ground 1(a))
  • Whether the sentencing judge mistook the statutory age limit under s 272.8(1) of the Criminal Code Act 1995 (Cth) for child sexual intercourse offences (Ground 1(b))
  • Whether the sentencing judge erred by incorrectly identifying the offence provision for the child abuse material possession offence (Ground 2)
  • Whether any of the established errors warranted a lesser sentence

Decision

Grounds 1(a) and 1(b): Age of victim and statutory age limit

The offence under s 272.8(1) requires that the child be under 16. For one of the sexual intercourse offences (Sequence 61), the agreed facts described the victim as aged between 15 and 17. The sentencing judge referred to this range without anchoring her analysis to the relevant statutory age limit of 16. The Crown conceded that her Honour had thereby mistaken both the relevant fact (the age of the child for sentencing purposes) and the applicable age threshold, treating it as though 18 were the limit rather than 16. The Court accepted these were genuine errors that had the capacity to affect the sentencing discretion.

However, the Court found neither error had any practical consequence. The applicant's plea of guilty admitted all elements of the offence, including that the victim was under 16. For sentencing purposes, the victim's age had to be accepted as under 16 and as close to that limit as consistent with the agreed facts. The Court concluded that even with the corrected age limit, the objective seriousness of Sequence 61 was not less than her Honour assessed, and no lesser sentence was warranted in law.

Ground 2: Incorrect identification of the possession offence provision

The Court declined to find that her Honour's mis-statement of the provision for the possession offence (Sequence 1) produced any material error. The sentencing discretion was not vitiated on this ground.

Resentencing

Despite granting leave to appeal, the Court undertook a resentencing exercise and arrived at indicative sentences and an aggregate sentence no less than those imposed at first instance. The Court had regard to updated evidence of the applicant's circumstances in custody, including work undertaken, rehabilitation courses, physical health issues, mental health conditions, and limited family contact. The Court was satisfied that the original aggregate sentence of 16 years with an 11-year non-parole period remained appropriate.

Orders Made

  • Time to file the Notice of Appeal extended to 13 June 2024
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where an error by a sentencing judge is conceded, the appeal court still asks whether that error had any practical consequence; an error without consequence will not produce a lesser sentence.
  • Under s 272.8(1) of the Criminal Code Act 1995 (Cth), the relevant age threshold for the offence of sexual intercourse with a child outside Australia is under 16, not under 18, which applies to the separate production and possession offences.
  • A plea of guilty admits all elements of the offence, including the age element; at sentence, the court must assess the victim's age consistently with the admitted facts and the statutory limit, even where the agreed facts describe a broader range.
  • In dismissing the appeal, the Court of Criminal Appeal conducted its own resentencing exercise and confirmed that the objective seriousness of the offences was not diminished by correcting the age-related errors.
  • Delay in filing an appeal does not automatically defeat an application for extension of time; the Court extended time in circumstances where the applicant had received incorrect earlier advice that no appeal was available.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 272.8, 272.20, 273.5, 473.1, 474.22, 474.22A
- Crimes Act 1914 (Cth), s 16A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- DH v R [2019] NSWCCA 128
- Hurkmans v R [2024] NSWCCA 126
- Kentwell v the Queen (2014) 252 CLR 60; [2014] HCA 37
- Minehan v R (2010) 201 A Crim R 24; [2010] NSWCCA 140
- R v Delzotto (2022) 298 A Crim R 483; [2022] NSWCCA 117
- R v Hutchinson [2018] NSWCCA 152
- Weber v R [2020] NSWCCA 103
- Wu v R [2016] NSWCCA 96
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- ZZ v R [2019] NSWCCA 286