Stephens v R [2021] NSWCCA 152

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stephens v R [2021] NSWCCA 152 Hearing dates: 16 April 2021 Date of orders: 9 July 2021 Decision date: 09 July 2021 Before: Simpson AJA at [1] Davies J at [82] Button J at [83] Decision: (1) Appeal against conviction on counts 6, 7 and 13 dismissed; (2) Appeal against conviction on count 14 allowed; verdict of guilty on that count quashed and a verdict of acquittal entered; (3) Sentence imposed on 13 November 2019 set aside; in lieu thereof, the appellant is sentenced to an aggregate term of imprisonment for 6 years, to date from 26 August 2019 and expire on 25 August 2025, with a non-parole period of 3 years and 9 months that will expire on 25 May 2023. Catchwords: CRIME – sexual offences – offences alleged to have been committed between 1982 and 1987 – legislative changes with respect to sexual offences – Crimes Act 1900 (NSW) – s 81 repealed with effect from 8 June 1984 and s 78K enacted with effect from that date – appellant arraigned on indictment that charged offences against s 81 and s 78K in the alternative with dates commensurate with dates the provisions in force – indictment amended to take benefit of s 80AF Crimes Act – s 80AF allowed prosecution to rely on s 81 (as the offence carrying the lesser maximum penalty) for the entirety of the charged period, beyond the date s 81 was in force – whether judge erred in granting leave to amend indictment – whether principles against retrospectivity of legislation offended – when criminal proceeding commences – when criminal proceeding "pending" STATUTORY INTERPRETATION – retrospectivity – whether s 80AF Crimes Act substantive or procedural – whether provision affects existing rights or obligations – to classify s 80AF as substantive and deny it retrospectivity would undermine legislative intention and deprive it of effectiveness – even if substantive, s 80AF clearly intended to alter the existing law – need for interpretation of statute in context of circumstances CRIME – sexual offences – charge for offence against s 78K Crimes Act of homosexual intercourse with a male person aged between 10 and 18 years – indictment alleged offence committed during time when complainant 14 to 16½ years old – s 78T(1) Crimes Act provided that prosecution must be commenced within 12 months where complainant aged over 16 years at time of alleged offence – prosecution commenced much later – whether prosecution statute-barred – dates were an essential fact of prosecution and statutory time limit applied – conviction quashed and verdict of acquittal entered CRIME – appeals – successful appeal against conviction on one count – aggregate sentence quashed and appellant re-sentenced on other counts Legislation Cited: Crimes (Amendment) Act 1984 (NSW), Sch 1 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A Crimes Act 1900 (NSW), ss 78K, 78T, 80AF, 81 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Legislation Amendments (Child Sexual Abuse) Act 2018 (NSW) Criminal Procedure Act 1986 (NSW), ss 20, 130, 154 Interpretation Act 1987 (NSW), s 30 Cases Cited: CJW v R [2018] NSWCCA 80 GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230 Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 R v Greenaway [2000] NSWCCA 368 R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 R v Nicolaidis (1994) 33 NSWLR 364 R v Page (Court of Criminal Appeal (NSW), 25 November 1991, unrep) R v Taylor [2003] NSWCCA 194 Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19 Truong v The Queen (2004) 233 CLR 122; [2004] HCA 10 Texts Cited: Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (7th ed, 2020, Federation Press) Department of Justice (NSW), Discussion Paper: Strengthening child sexual abuse laws in NSW (2017) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 June 2018 Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (15 December 2017) Category: Principal judgment Parties: Peter Leonard Stephens (Appellant) The Crown Representation: Counsel: O P Holdenson QC/J O'Connor (Appellant) D Kell SC/M W R Adams (Crown)