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District Court 5 December 2025

R v Starke (a pseudonym)

[2025] NSWDC 525

Sexual offences

Citation: [2025] NSWDC 525
Court: District Court of New South Wales
Date: 5 December 2025
Judge(s): Priestley SC DCJ

Background

The offender (proceeding under a pseudonym) was arraigned on an indictment containing six counts of sexual intercourse with a child. Counts 1, 2, and 3 were charged under s 66A(1) of the Crimes Act 1900 (NSW), alleging sexual intercourse with a child under the age of 10 in April 2014. Counts 4, 5, and 6 were charged under the Commonwealth Criminal Code, alleging sexual intercourse with a child under 16 outside Australia between May 2015 and October 2017.

The offender was either 14 or 15 years old at the time of five of the six counts. The offender admitted that sexual intercourse occurred within the statutory definitions but disputed the specific nature of the acts. The Crown contended the intercourse was penile/vaginal, while the offender maintained it was limited to cunnilingus and fellatio.

This judgment addressed the first stage of a two-stage sentencing hearing: the determination of the disputed factual question about the nature of the sexual acts. The hearing spanned five days and included recorded child interviews, pre-recorded evidence of the complainant, evidence from three family members, the officer in charge, and the offender himself.

  • Whether the Crown proved beyond reasonable doubt that the sexual intercourse in counts 1, 3, 4, 5, and 6 was penile/vaginal intercourse, as opposed to cunnilingus or fellatio as the offender contended.
  • Which statutory definition of "sexual intercourse" applied to each set of counts, given the NSW Crimes Act definition changed between the relevant offending period and the hearing.
  • What standard of proof applied to a disputed fact at sentencing where the fact in question goes directly to an element of the offence.
  • Whether appropriate self-directions (including a Liberato direction and directions under s 133 of the Criminal Procedure Act 1986 and Fleming v R) were required given the judge-alone determination.

Decision

The court accepted that because the disputed fact went directly to an element of the offence, the criminal standard of proof (beyond reasonable doubt) applied, rather than the ordinary sentencing approach set out in R v Olbrich. The Crown also accepted that a Liberato direction was appropriate: if the court accepted the offender's evidence, it must find the disputed fact in his favour, and even if it did not accept that evidence, it must still ask whether the Crown had proved its case beyond reasonable doubt.

The court carefully identified the applicable definitions of "sexual intercourse." For the NSW counts (1, 2, and 3), the relevant definition was contained in s 61H as it stood in 2014, which referred to "cunnilingus" rather than the current s 61HA(1)(c) formulation of "application of the mouth or tongue to the female genitalia." For the Commonwealth counts, the definition in s 272.4 of the Criminal Code similarly referred to cunnilingus without further elaboration. The court noted that the term "cunnilingus" had been held in BA v R to be satisfied by conduct that does not penetrate the female genitalia, making it consistent with both the earlier and current legislative definitions.

The court gave itself extensive self-directions drawn from R v Duffy, adapted for the nature of the proceeding. These included standard directions on the burden and standard of proof, witness reliability (distinguishing honesty from accuracy), the right to silence, the offender's right not to give evidence (noting he did give evidence in this hearing), and the proper use of tendency and coincidence evidence.

The judgment as published is truncated and does not include the court's ultimate findings on whether the Crown discharged its burden in respect of each count. The decision sets out the procedural framework and self-directions that governed the fact-finding exercise, with the substantive conclusions presumably contained in the remainder of the judgment.

Orders Made

  • The published portion of the judgment does not contain final orders. It establishes the framework for determination of the disputed fact as the first stage of a two-stage sentencing hearing.

Key Takeaways

  • Where a disputed fact at sentencing goes directly to an element of the offence, the Crown must prove that fact beyond reasonable doubt, consistent with the principles in R v Olbrich, rather than applying the ordinary sentencing standard.
  • The District Court held that a Liberato direction was appropriate in the context of a sentencing fact-finding hearing where the offender gave evidence contesting the Crown's version of events.
  • Under s 61H of the Crimes Act 1900 (NSW) as it stood at the time of the offending, "cunnilingus" did not require penetration of the female genitalia, a position confirmed by the Court's reliance on BA v R.
  • Correct identification of the applicable statutory definition of "sexual intercourse" proved critical, as the Court applied s 61H rather than the current s 61HA, underscoring the need to assess each element by reference to the law in force at the date of the alleged conduct.
  • In acting as sole fact-finder in a proceeding equivalent to a judge-alone trial, the District Court adopted the practice of giving detailed self-directions (following R v Duffy and Fleming v R), including directions on tendency evidence, delay, and the assessment of child complainant evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61HA, 66A(1)
- Commonwealth Criminal Code, s 272.4
- Criminal Procedure Act 1986 (NSW), s 133

Cases:
- BA v R [2015] NSWCCA 189
- Fleming v R (1998) 197 CLR 250
- R v AJP [2004] NSWCCA 434
- R v Duffy [2022] NSWDC 227
- R v Olbrich (1999) 199 CLR 270