Publications news

Sexual Assault Trials Handbook Update 42 published

Sexual Assault Trials Handbook cover
23 April 2024

[6-000] Recent sexual assault law on JIRS

The following recent cases have been added:


  • GN v R [2024] NSWCCA 39 — Evidence — Criminal Procedure Act 1986, s 293 (now s 294CB) — evidence of prior sexual experience — sexual offences — 11-year old complainant described applicant’s ejaculation to police 12 months after offence — judge’s inference such a detailed description unlikely unless actually experienced not contrary to s 293 — reasoning did not depend on judicial notice but was common sense — Crown’s closing address suggesting 11-year old unable to give such detail unless subject to applicant’s conduct did not cause miscarriage of justice


  • Hurt v The King; Delzotto v The King [2024] HCA 8 — Cth sentencing — Crimes Act 1914 (Cth), s 16AAB — mandatory minimum sentences for child sexual abuse offences — Criminal Code (Cth), s 474.22A(1) — possess child abuse material accessed by carriage service — transitional provision — s 16AAB applies if offender possesses material after provision commenced, regardless of when accessed — mandatory minimum sentences serve double function of providing yardstick, the opposite of maximum penalty, and restricting sentencing power to the minimum sentence subject to limited exceptions
  • Xerri v The King [2024] HCA 5 — Sentencing — Crimes Act 1900, s 66EA(1) — maintain unlawful sexual relationship with child — offending conduct committed while predecessor offence in force — applicant sentenced on basis of current s 66EA which carries life imprisonment — former s 66EA carried 25 years imprisonment — CCA majority correct to conclude current offence applies retrospectively so life imprisonment applies — current s 66EA is a new offence such that s 19 of the Crimes (Sentencing Procedure) Act 1999 does not apply
  • BB v R [2024] NSWCCA 13 22/02/2024 — Sentencing — Children (Criminal Proceedings) Act 1987 (C(CP) Act), ss 16, 18 — applicability of Children’s Court sentencing regime — Crimes Act 1900, s 61J(2)(d) — aggravated sexual assault (victim under 16) committed by applicant when a child — although judge misstated s 61J offences were “serious children’s indictable offences” (C(CP) Act, s 3), they were to be dealt with according to law as applicant over 21 when charged — judge did not err by failing to consider lost opportunity for applicant to be sentenced under Children’s Court regime
  • Stein v R [2023] NSWCCA 324 — Sentencing — sexual assault — sentencing judge did not err in finding moral culpability relevant to objective seriousness — applicant’s state of mind relevant in assessing moral culpability and objective seriousness — applicant’s knowledge of lack of consent elevated blameworthiness and offence seriousness — Bugmy principles — no error in judge refusing to reduce sentence because of childhood deprivation — applicant claimed sexual activity consensual, not that early dysfunction left him unable to understand consent
  • Pender v R [2023] NSWCCA 291 — Sentencing — Crimes Act 1900, s 61HE(3), (4) (rep) — knowledge of sexual consent and offender’s self-induced intoxication — Crimes (Sentencing Procedure) Act 1999, s 21A(5AA) — self-induced intoxication not mitigatory — applicant convicted of sexual assault after jury trial — judge found applicant knew victim not consenting — no error in judge’s approach — s 21A(5AA) prohibits taking into account applicant’s self-induced intoxication as mitigating factor — Fisher v R [2021] NSWCCA 91 (Fullerton and Adamson JJ) followed
  • Melville v R [2023] NSWCCA 284 — Sentencing — extra-curial punishment — applicant convicted of child sexual offences was subject to public/media attention regarding previous like offending — judge did not err by finding applicant not subject to extra-curial punishment — public denunciation following conviction does not generally constitute extra-curial punishment — media reporting naming offender ordinary consequence of such offences — personal consequences including loss of employment may still be relevant on sentence


  • Lam v R [2024] NSWCCA 6 — Offences — Crimes Act 1900, s 81 (rep) — historic indecent assault — offences allegedly committed by female — s 5F(3) Criminal Appeal Act 1912 — appeal against orders refusing demurrer and refusing to quash indictment — offence not known at law — s 81 offence can only be committed by males — indictment quashed

[6-050] Other publications

The following publication from NSW Bureau of Crime Statistics & Research (BOCSAR) has been added:

[8-520] Bugmy Bar Book — the impact of child sexual abuse

Links have been updated to the Bugmy Bar Book, an online resource summarising key research relating to experiences of disadvantage and deprivation: see Bugmy Bar Book.

[10-270] District Court Practice Note 28

District Court Practice Note 28 — Child sexual offence evidence practice note has been added. Practice Note 28, commenced 29 January 2024, replaces Practice Note 11 published 6 August 2019 and applies to proceedings commenced after 29 January 2024.