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District Court 5 November 2025

R v Van Heerden

[2025] NSWDC 556

Sexual offences
CRIME FEDERAL OFFENCES CHILD SEX OFFENCES CHILD ABUSE MATERIAL CRIMINAL CODE 1995 (CTH), S 474.24A DEFINITION OF “SEPARATE OCCASIONS”

Citation: [2025] NSWDC 556
Court: District Court of New South Wales (Criminal Jurisdiction)
Date: 5 November 2025
Judge(s): Turnbull SC DCJ

Background

The accused, Philip Van Heerden, faced a nine-count indictment relating to child abuse material offences involving the use of carriage services, contrary to the Criminal Code 1995 (Cth). He pleaded guilty to eight of the nine counts and also pleaded guilty to a further count on a separate indictment involving additional sexual offending. He pleaded not guilty to count 8 alone.

Count 8 was an aggravated offence under s 474.24A(1) of the Criminal Code. This provision — which carries a maximum penalty of 30 years' imprisonment and a mandatory minimum of seven years — applies where the underlying child abuse material offences (under s 474.22) are committed on "three or more separate occasions" and each occasion involves two or more people. The five underlying offences particularised in count 8 all occurred within an 81-minute period on a single day. The accused did not dispute the underlying conduct or that two or more people were involved; the sole contest was whether at least three of those underlying offences occurred on "separate occasions" as a matter of law.

It was noted that guilty pleas to the underlying offences had been offered to the Crown at the committal stage but were rejected, with the Crown insisting on the aggravated charge.

  • What is the proper construction of "separate occasions" in s 474.24A(1)(a) of the Criminal Code 1995 (Cth)?
  • Were five underlying offences committed within an 81-minute window on the same day capable, as a matter of law, of constituting "three or more separate occasions"?
  • What principles of statutory construction apply to a penal provision carrying a mandatory minimum sentence?

Decision

Turnbull SC DCJ determined the meaning of "separate occasions" as a question of law, consistent with the approach in Tognolini v R [2011] VSCA 113. His Honour drew on a line of interstate appellate authority — principally Kelly v The Queen [2010] NTCCA 8, Tognolini, and R v Harradine [2019] SASCFC 144 — all of which established that for acts to constitute separate "occasions," there must be a "clear separation in time or circumstance" between them. As the Victorian Court of Appeal stated in Tognolini, acts forming "an unbroken sequence" of activity on a single night constituted a single occasion as a matter of law.

His Honour emphasised the significance of the word "separate" in the Commonwealth provision, noting its absence in the Northern Territory statute considered in Kelly. The insertion of "separate" reinforced the need for a clear temporal or circumstantial distinction. Drawing on KRM v The Queen [2001] HCA 11, the Court acknowledged that a single "occasion" can encompass multiple distinct acts or even multiple discrete offences. A lengthy and varied course of conduct is not, for that reason alone, evidence of multiple separate occasions.

Turnbull SC DCJ also relied on the explanatory memorandum to the Crimes Legislation Amendment (Sexual Offences against Children) Bill 2010, which stated that the aggravated offence was intended to capture a "sustained or repeated course of conduct" — language drawing an important distinction between a single course of conduct (which may contain several acts) and the repetition of such courses. Applying the established principles of strict construction applicable to a penal statute affecting personal liberty (Monis v The Queen (2013) 249 CLR 92; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27), His Honour concluded that offences committed within a continuous 81-minute period on the same day could not, as a matter of law, constitute "three or more separate occasions."

Accordingly, his Honour directed a verdict of not guilty on count 8, being satisfied that no jury could properly find the element of separate occasions established on the evidence.

Orders Made

  • A directed verdict of not guilty was entered on count 8 of the indictment (the aggravated offence under s 474.24A(1) of the Criminal Code (Cth)).
  • The accused's guilty pleas to the remaining eight counts on the indictment and to the further count on a separate indictment stood; he proceeded to sentencing as an offender on those counts.

Key Takeaways

  • Under s 474.24A(1)(a) of the Criminal Code (Cth), "separate occasions" requires clear separation in time or circumstance: The District Court held that the prosecution must prove a clear break in time, circumstance, or both between underlying offences. Multiple offences committed in a continuous or unbroken sequence, even spanning more than an hour, may constitute a single occasion as a matter of law.

  • A single occasion can encompass multiple acts and offences: Drawing on KRM v The Queen, the District Court confirmed that numerous discrete criminal acts may fall within one occasion. The number or variety of offences committed during a continuous episode does not, without more, transform a single occasion into multiple ones.

  • Strict construction principles applied with particular force given the severity of the penalty: With a 30-year maximum and a mandatory minimum term of seven years, Turnbull SC DCJ scrutinised whether the statutory language was truly satisfied before allowing the aggravated charge to stand, ultimately finding it was not.

  • The explanatory memorandum proved instructive in identifying the provision's intended scope: The legislative purpose of targeting "sustained or repeated" courses of conduct associated with organised child abuse networks informed the Court's construction, supporting the conclusion that single episodes of offending, however extensive, may fall outside the provision's reach.

  • Particularised underlying offences in a s 474.24A charge must be separated by clear temporal or circumstantial breaks: In the present case, after the "separate occasions" element was found to be unsustainable, guilty pleas to the individual underlying offences were offered and accepted as an alternative disposition.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.22 and 474.24A
- Crimes Act 1900 (NSW), s 66EA
- Crimes Legislation Amendment (Sexual Offences against Children) Bill 2010 (Cth) — Explanatory Memorandum

Cases:
- Tognolini v R [2011] VSCA 113
- John Morris Kelly v The Queen [2010] NTCCA 8
- R v Harradine [2019] SASCFC 144
- KRM v The Queen (2001) 206 CLR 221
- Monis v The Queen (2013) 249 CLR 92
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362