R v Lamey [2025] NSWCCA 17

R v Lamey [2025] NSWCCA 17

The sentencing judge erred in principle by requiring satisfaction beyond reasonable doubt of each individual incident of sexual abuse, rather than considering the overall nature, extent, and frequency of the offending as required by s 66EA Crimes Act and established authority. Because the sentencing judge did not make an express finding as to the reliability of the complainant's evidence regarding frequency, it is not possible for the appellate court to determine the objective seriousness of the most serious count. The proper course is to quash the sentence and remit the matter to the sentencing judge to reconsider sentence consistent with the correct principle.

Parties
Applicant: Rex; Respondent: Benjamin Mark Lamey
Jurisdiction
Australia
Judgment Date
21 February 2025
Procedural Posture
Crown Appeal Against Sentence / Court of Criminal Appeal Determination on Crown Appeal From District Court Sentence
Outcome
Appeal allowed; sentence quashed and matter remitted for re-sentencing
Legal Topics
Crown Appeals Against Sentence, Persistent Sexual Abuse of a Child, Sentencing Principles for S 66 EA Crimes Act
Criminal Law Crown Appeals Against Sentence Persistent Sexual Abuse of a Child Sentencing Principles for S 66 EA Crimes Act

Case Brief

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Parties

Rex

Applicant

Benjamin Mark Lamey

Respondent

Procedural Posture

Crown Appeal Against Sentence / Court of Criminal Appeal Determination on Crown Appeal From District Court Sentence

Legal Issues

  1. 1 Did the sentencing judge err in principle by requiring satisfaction beyond reasonable doubt of each individual incident of sexual offending for an offence contrary to s 66EA Crimes Act?
  2. 2 Is the aggregate sentence manifestly inadequate?

Ratio Decidendi

The sentencing judge erred in principle by requiring satisfaction beyond reasonable doubt of each individual incident of sexual abuse, rather than considering the overall nature, extent, and frequency of the offending as required by s 66EA Crimes Act and established authority. Because the sentencing judge did not make an express finding as to the reliability of the complainant's evidence regarding frequency, it is not possible for the appellate court to determine the objective seriousness of the most serious count. The proper course is to quash the sentence and remit the matter to the sentencing judge to reconsider sentence consistent with the correct principle.

Court Disposition

Appeal allowed; sentence quashed and matter remitted for re-sentencing

Orders

  • The appeal is allowed.
  • The aggregate sentence imposed by Judge Bourke SC on 3 September 2024 is quashed.