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Court of Criminal Appeal 9 September 2026

ST v R

[2026] NSWCCA 136

Sexual offences

Citation: ST v R [2026] NSWCCA 136
Court: Court of Criminal Appeal
Date: 9 September 2026
Judge(s): Adamson JA, Chen J, McNaughton J

Background

The applicant was sentenced in the District Court to an aggregate term of 19 years and 6 months for sexual offences against three children aged between 8 and 12 years, committed over nine years. He had pleaded guilty to some charges in the Local Court, attracting a 25% discount under the fixed statutory scheme in the Crimes (Sentencing Procedure) Act 1999 (NSW). He contested the remaining counts and was committed for trial.

After committal, two separate dates were listed: 13 November 2024 for a pre-recorded evidence hearing (at which the child complainants would give their evidence before trial), and 28 July 2025 for the jury empanelment hearing. On 13 November 2024, the first day of the pre-recorded evidence hearing, the applicant indicated he would plead guilty to the remaining counts and was re-arraigned.

The sentencing judge applied only a 5% discount to the indicative sentences for those remaining counts, on the basis that the applicant had not pleaded guilty at least 14 days before the first day of the trial. The applicant sought leave to appeal, arguing that the "first day of the trial" was 28 July 2025 (the jury empanelment date), and that his plea on 13 November 2024 was therefore well within the window attracting a 10% discount.

  • Whether the "first day [fixed for] the trial" under s 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) refers to the first day of the pre-recorded evidence hearing or the first day fixed for jury empanelment.
  • Whether the guilty plea on 13 November 2024 entitled the applicant to a 10% discount (not less than 14 days before the trial) or only a 5% discount (on the day of the trial).

Decision

The sole ground (correct discount applicable): The Court of Criminal Appeal held that the first day of the applicant's trial was 13 November 2024, the first day fixed for the pre-recorded evidence hearing, not 28 July 2025, the date fixed for jury empanelment. Accordingly, the guilty pleas were entered on the first day of the trial, and the 5% discount was correctly applied. The applicant's concession at the sentence hearing was correctly made.

Statutory construction: The Court read the Crimes (Sentencing Procedure) Act and the Criminal Procedure Act 1986 (NSW) together to achieve a harmonious result, having regard to extrinsic materials including Second Reading Speeches. Evidence given at a pre-recorded evidence hearing is evidence given in the trial, even though it is given before a jury is empanelled and the recording is played to the jury later. The pre-recorded evidence hearing is part of the trial, not a preliminary or separate proceeding.

Legislative purpose: Under s 33 of the Interpretation Act 1987 (NSW), the Court preferred the construction that promotes the statutory purpose. The fixed discount scheme is designed to incentivise early guilty pleas, thereby reducing costs and minimising trauma to witnesses who would otherwise give evidence. The pre-recorded evidence regime for child complainants serves to obtain their best evidence at the earliest time, reduce trauma, and preserve that evidence. Construing the first day of the pre-recorded evidence hearing as the first day of the trial advances both purposes, while the applicant's construction would not.

Textual indicators: The provisions of the Criminal Procedure Act requiring certain witnesses to give evidence at a pre-recorded evidence hearing provided a strong textual basis for the conclusion that the hearing is an integral part of the trial, not a discrete pre-trial event. The Second Reading Speech for the 2023 amending Act confirmed that the pre-recorded evidence hearing was intended as the first part of the trial, with jury empanelment being the second part.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • For the purposes of s 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the "first day [fixed for] the trial" in child sexual offence proceedings that include a pre-recorded evidence hearing is the first day fixed for that hearing, not the date fixed for jury empanelment.
  • Evidence given at a pre-recorded evidence hearing is evidence given in the trial itself, even though it is recorded before the jury is empanelled and played to the jury at a later stage.
  • A guilty plea entered on the first day of the pre-recorded evidence hearing attracts only the 5% discount under s 25D(2)(c), not the 10% discount available when a plea is entered at least 14 days before the first day of the trial.
  • In resolving this question, the Court of Criminal Appeal applied the harmonious construction principle, reading the Crimes (Sentencing Procedure) Act and the Criminal Procedure Act together and having regard to parliamentary materials to identify statutory purpose.
  • The decision resolves a previously undetermined question of statutory construction described by the Court as one of general application, which is why leave to appeal was granted even though the appeal was dismissed.

Legislation and Cases Referenced

Legislation
- Crimes ( Sentencing Procedure) Act 1999 ( NSW), ss 25A, 25C, 25D, 25E, 25F, Pt 3 Div 1A,
- Crimes Act 1900 (NSW), s 423
- Criminal Procedure Act 1986 ( NSW), ss 59, 129, 130, 130A, 131, 132A, 139, 141, 154, 164A, 247G, 294F, 294G, 294H, 294I, 294K, 294O, 294P, 306U, Ch 3 Pt 3 Div 2, Ch 6 Pt 5 Div 1A, Sch 2 Pt 29
- Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW)
- Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 (NSW), Sch 1
- Evidence Act 1995 (NSW), s 189
- Interpretation Act 1987 (NSW), ss 33, 34

Cases
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2
- DS v R [2012] NSWCCA 159; (2012) 221 A Crim R 235
- Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
- Gurin v R [2022] NSWCCA 193
- Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67
- Jarrett v State of New South Wales [2026] NSWCA 62
- Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362
- PJ v R (2023) 111 NSWLR 414; [2023] NSWCCA 105
- R v Basha (1989) 39 A Crim R 337
- R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323
- R v Taylor [2003] NSWCCA 194
- Rokovada v R [2025] NSWCCA 64
- Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31
- Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204
- Thompson v Byrne (1999) 196 CLR 141; [1999] HCA 16