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Court of Criminal Appeal 28 May 2025

R v LPCM

[2025] NSWCCA 78

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE CHILD SEXUAL OFFENCES GUILTY PLEA IN DISTRICT COURT APPEALS

Citation: LPCM v R [2025] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 28 May 2025
Judges: Harrison CJ at CL; Hamill J; Rigg J

Background

The respondent, LPCM, pleaded guilty in the District Court at Parramatta to two counts of maintaining an unlawful sexual relationship with a child, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). Both complainants were his cousins, and the offending occurred at a unit shared with their maternal grandparents, where the complainants would visit after school and on weekends.

LPCM did not admit all the particularised unlawful acts alleged under each count. A contested disputed facts hearing ran over several days before the sentencing judge, who ultimately found that the offending against the first complainant (then aged approximately 8) occurred across roughly ten occasions over six to seven months in late 2004 to mid-2005, and the offending against the second complainant (then aged 11) occurred on two separate occasions between April and July 2007.

The sentencing judge imposed an aggregate term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years commencing 12 September 2024. The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912, contending both that the objective seriousness assessment was flawed and that the sentence was manifestly inadequate.

  • Whether the sentencing judge took an unduly limited approach to assessing the objective seriousness of the s 66EA offences by relying principally on the factors set out in Burr v The Queen and focusing on the number of "ingredient offences"
  • Whether the sentencing judge understated the extent of the unlawful sexual acts established at the disputed facts hearing
  • Whether the sentencing judge's description of the offending as "opportunistic" erroneously infected the objective seriousness assessment
  • Whether the aggregate sentence of 3 years and 6 months was manifestly inadequate

Decision

Ground 1: Objective seriousness

The Court of Criminal Appeal rejected the Crown's argument that the sentencing judge took an unduly limited approach. His Honour had conducted an extensive contested fact-finding hearing and expressly incorporated his disputed facts judgment into the sentencing remarks. The Court held it could not be inferred that the sentencing judge had failed to consider relevant matters simply because he did not recite them one by one in the sentencing remarks. The factors identified by Wilson J in RA v R are not a checklist requiring formal recitation at the sentencing stage.

The Court also rejected the submission that the sentencing judge confused the number of occasions of offending with the number of discrete unlawful sexual acts. His Honour was found to be acutely aware of that distinction throughout the sentencing exercise.

On the use of the word "opportunistic," the Court found this caused no error. The sentencing judge was conveying that LPCM had not embarked on a deliberate course of conduct designed to attract and exploit the complainants, rather than minimising the seriousness of what occurred.

Ground 2: Manifest inadequacy

The Court dismissed this ground, holding that a complaint about the weight given to a particular sentencing consideration does not, of itself, establish that a sentence is inadequate. The sentencing remarks reflected a careful and detailed assessment of competing and complementary factors. The sentence was not plainly unjust, and the use of indicative sentences for each count did not constitute error.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentencing judge's reference to the Burr v The Queen factors, including the concept of "ingredient offences," is not necessarily an error when the offending involves a finite number of discrete, well-particularised unlawful sexual acts.
  • A sentencing judge is not required to recite every relevant consideration from a prior authority's list one by one; detailed engagement with those matters in a disputed facts judgment can properly inform the sentencing exercise without repetition in the sentencing remarks.
  • The factors identified in RA v R at [102] for assessing objective seriousness under the current form of s 66EA are not a formal checklist or schedule requiring studied recitation at sentencing.
  • Arguing that a sentencing judge gave insufficient weight to a nominated consideration does not, without more, establish manifest inadequacy; the relevant question remains whether the sentence imposed was plainly unjust.
  • Rigg J's concurring reasons highlight an ongoing distinction in the authorities between cases involving a finite number of discrete, well-particularised acts (where Burr factors remain appropriate) and cases where the relationship offence involves a less defined course of conduct requiring a different sentencing approach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA, 61M (repealed), 61N (repealed), 61O (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504
- GP (a pseudonym) v R [2021] NSWCCA 180
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JG v R [2023] NSWCCA 33; (2023) 306 A Crim R 130
- R v Fisher [2024] NSWCCA 191
- R v Lamey [2025] NSWCCA 17
- RA v R [2024] NSWCCA 149
- Towse v The Queen [2022] NSWCCA 252
- Xerri v R [2021] NSWCCA 268; (2001) 292 A Crim R 355