Xerri v The King [2024] HCA 5

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, STEWARD, GLEESON AND JAGOT JJ

BRIAN XERRI APPELLANT

AND

THE KING RESPONDENT

Xerri v The King

[2024] HCA 5

Date of Hearing: 18 October 2023

Date of Judgment: 6 March 2024

S76/2023

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

N M Steel with R J Rodger for the appellant (instructed by Ryan Payten Le)

H R Roberts SC with B A Hatfield SC and E S Jones for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Xerri v The King

Criminal law – Sentence – Calculation – Statutory interpretation – Maximum penalty – Persistent child sexual abuse offence – Where s 66EA of Crimes Act 1900 (NSW) came into effect from 1 December 2018 with maximum penalty of life imprisonment – Where previous s 66EA of Crimes Act provided for maximum penalty of 25 years – Where appellant pleaded guilty to offence of being an adult who had maintained an unlawful sexual relationship with child – Where appellant sentenced under current s 66EA to eight years imprisonment – Where maximum penalty of life imprisonment served as "valuable guidepost" in sentencing – Where appellant's offending occurred prior to commencement of current s 66EA and appellant pleaded guilty after current s 66EA commenced – Whether replacement of s 66EA of Crimes Act constituted new offence or increase in penalty for "offence" which already existed for purposes of s 19 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Procedure Act") – Meaning of word "offence" in s 19 of Procedure Act – Where retrospective operation of s 66EA offence – Whether maximum penalty for offence committed by appellant remained 25 years imprisonment by operation of s 19 of Procedure Act – Whether significant differences between former and current s 66EA of Crimes Act such that they are not same offence.