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District Court 9 July 2025

R v Lamey

[2025] NSWDC 353

Sexual offences
CRIME RESENTENCING

Citation: R v Lamey [2025] NSWDC 353
Court: District Court of New South Wales
Date: 9 July 2025
Judge: Bourke SC DCJ

Background

The offender was convicted by jury of eight counts of sexual offending against children. On 3 September 2024, Bourke SC DCJ imposed an aggregate sentence of eight years and six months, with a non-parole period of four years and nine months. Count 1, maintaining an unlawful sexual relationship with a child under s 66EA(1) of the Crimes Act 1900, attracted an indicative sentence of six years and nine months.

The Crown appealed on two grounds: that the sentencing judge had erred in principle when assessing the objective seriousness of count 1, and that the overall sentence was manifestly inadequate. The Court of Criminal Appeal allowed the first ground, quashed the sentence, and remitted the matter to the original judge for resentencing consistent with the CCA's findings. The second ground was not determined.

The resentencing hearing proceeded on 18 June 2025, with the court reconsidering its factual findings and the indicative sentence for count 1 only, without revisiting the indicative sentences for the other counts.

  • Whether, when sentencing for a maintaining an unlawful sexual relationship offence under s 66EA(1), a court is limited to finding guilt on the basis of specific identified incidents proved beyond reasonable doubt, or whether it may also make findings as to the frequency of abuse.
  • What factual findings were open on the evidence in relation to count 1 following the CCA's clarification of the correct approach.
  • What indicative sentence for count 1, and what aggregate sentence overall, were appropriate in light of any revised factual findings.

Decision

The Court of Criminal Appeal had found that Bourke SC DCJ erred by proceeding on the basis that satisfaction beyond reasonable doubt as to each individual incident was the only path to sentencing for the s 66EA offence. The CCA clarified that a sentencing judge may also find, beyond reasonable doubt, that abuse occurred at a particular frequency, even where the complainant's evidence is not tied to separately particularised occasions.

On remittal, Bourke SC DCJ reconsidered the factual findings for count 1. The judge found the unlawful sexual relationship involved the two specific incidents previously identified (cunnilingus while the victim slept, and digital touching over clothing in the family van), the additional incidents previously found, and also that the sexual conduct occurred with a regularity consistent with the victim's evidence, which the judge accepted beyond reasonable doubt. The victim was six years old at the relevant time.

This revised factual foundation led to a different assessment of the objective seriousness of count 1. The judge increased the indicative sentence for that count, which in turn required reconsideration of the aggregate sentence. Bourke SC DCJ was careful to limit the exercise to count 1, declining to revisit findings or indicative sentences for the remaining counts.

In fixing the aggregate, the judge applied totality principles and considered the need for some notional accumulation to reflect three separate victims and multiple offences on separate occasions. Relevant mitigating factors, including the effects of delay, the offender's low risk of reoffending, and his reasonable prospects of rehabilitation, were weighed against further accumulation. Special circumstances were found based on it being the offender's first period in custody, the onerous nature of that custody, and the need for adequate supervision on parole.

Orders Made

  • Count 1 (maintaining unlawful sexual relationship with a child): indicative head sentence of eight years, with a non-parole period of four years, six months.
  • Count 2: head sentence of three years, four months; non-parole period of one year, ten months.
  • Count 3: head sentence of three years, four months; non-parole period of one year, ten months.
  • Count 7: head sentence of three years, four months; non-parole period of one year, ten months.
  • Count 8: head sentence of 18 months; non-parole period of ten months.
  • Count 9: head sentence of 19 months; non-parole period of ten months.
  • Count 13: head sentence of three years.
  • Aggregate head sentence of nine years, seven months, with a non-parole period of five years, six months.
  • Sentence to date from 13 March 2024; head sentence to expire 12 October 2033; non-parole period to expire 12 September 2029.

Key Takeaways

  • The Court of Criminal Appeal confirmed in R v Lamey [2025] NSWCCA 17 that sentencing for a s 66EA maintaining an unlawful sexual relationship offence is not confined to findings about discrete, individually proved incidents. A judge may also find, beyond reasonable doubt, that abuse occurred at a stated frequency where the complainant's evidence supports such a finding.
  • A sentencing judge is not required to make a finding in terms of frequency in every s 66EA case. Where the evidence establishes a specific number of incidents as the totality of the conduct, sentencing on that basis remains appropriate.
  • On remittal, the District Court was not obliged to reach different factual findings; it was required to apply the correct legal principles in arriving at whatever findings the evidence supported.
  • The scope of resentencing following remittal was deliberately limited. Bourke SC DCJ confined the exercise to reconsidering count 1, leaving all other indicative sentences undisturbed, which reflects the principle that a resentencing on remittal should not become a general review of the original sentence.
  • Totality principles required some notional accumulation across the indicative sentences to recognise the distinct harm to three separate victims across multiple occasions, while avoiding an aggregate that would be crushing given the offender's circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Lamey [2025] NSWCCA 17
- R v LPCM [2025] NSWCCA 78
- R v Fisher [2024] NSWCCA 191
- RA v R [2024] NSWCCA 149
- Towse v R [2022] NSWCCA 252
- Xerri v R [2021] NSWCCA 268
- Eacott (a pseudonym) v R [2019] NSWCCA 158
- Croxon v R [2017] NSWCCA 213