Case (a pseudonym) v The King
[2023] VSCA 12
•10 February 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0033 |
| EDGAR CASE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | EMERTON P, McLEISH and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 November 2022 |
| DATE OF JUDGMENT: | 10 February 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 12 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1488 (Judge McInerney) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of sexual penetration of a child under 12, involving a child in the production of child abuse material and producing child abuse material – Applicant alleged to have caused his domestic partner to engage in acts of sexual penetration with her six year old son and to film herself whilst so doing – Applicant alleged to have done so from South Australia while acts of penetration and their recording occurred in Victoria – Whether verdicts unreasonable and could not be supported by the evidence – Whether substantial miscarriage of justice occurred because jury could not be satisfied that applicant engaged in criminal conduct in Victoria – Leave to appeal against conviction granted – Appeal against conviction dismissed.
CRIMINAL LAW – Appeal – Sentence – Parity – Applicant sentenced to total effective sentence of 13 years and six months’ imprisonment – Co-offender sentenced to total effective sentence of 11 years’ imprisonment – Whether disparity between sentences reasonably open – Leave to appeal refused.
Crimes Act 1958, ss 49A–49S, 51A–51I.
Madafferi v The Queen [2017] VSCA 302, M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, Dansie v The Queen (2022) 96 ALJR 728, MFA v The Queen (2022) 213 CLR 606, applied; Thompson v The Queen (1989) 169 CLR 1, McNeilly v The Queen (1981) 4 A Crim R 46, Lipohar v The Queen (1999) 200 CLR 485, DPP v Sutcliffe [2001] VSC 43, Green v Burgess [1960] VR 158, considered.
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| Counsel | |||
| Applicant: | Ms A Brennan | ||
| Respondent: | Ms K Hammill | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
McLEISH JA
TAYLOR JA:
Introduction and summary
In June 2021 the applicant faced a trial by jury in the County Court with respect to a 29 charge indictment alleging various sexual offending against a child. In all cases the child was alleged to be the applicant’s stepson (‘IS’). Charlotte Gillen,[2] the biological mother of IS and the applicant’s then de facto partner, was alleged to be his co-offender.
[2]A pseudonym.
The applicant pleaded guilty before the jury to three charges concerning child abuse material (charges 27, 28 and 29).
On 18 June 2021 the jury found the applicant guilty of three charges of sexual penetration of a child under 12 contrary to s 49A of the Crimes Act 1958 (charges 10, 11 and 12), one charge of involving a child in the production of child abuse material contrary to s 51B of the Crimes Act (charge 13) and one charge of producing child abuse material (charge 26). He was acquitted of 14 other charges of sexual penetration of a child under 12 (charges 1–6, 14–18, 20, 22, 24 and 25). There was a directed acquittal in relation to five charges of sexual penetration of a child under 12 (charges 7–9, 21 and 23). The jury was hung on one charge of involving a child in the production of child abuse material (charge 19).
Following a plea on 7 September 2021, the applicant was sentenced on 4 October 2021 as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
10 Sexual penetration of a child under 12 25 years 12 years Base 11 Sexual penetration of a child under 12 25 years 12 years Concurrent 12 Sexual penetration of a child under 12 25 years 12 years 12 months 13 Involving a child in the production of child abuse material 10 years 3 years 6 months 26 Producing child abuse material 10 years 9 months Concurrent 27 Producing child abuse material 10 years 6 months Concurrent 28 Distributing child abuse material 10 years 6 months Concurrent 29 Possessing child abuse material 10 years 6 months Concurrent Total Effective Sentence: 13 years and 6 months’ imprisonment Non-Parole Period: 9 years’ imprisonment Pre-sentence Detention Declared: 983 days Section 6AAA Statement: 9 months’ imprisonment for each of charges 27, 28 and 29 Other relevant orders: Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 on all charges.
Subject to reporting obligations for life, pursuant to s 34 of the Sex Offenders Registration Act 2004.
Disposal order pursuant to s 78(1) of the Confiscation Act 1997.
Gillen had earlier pleaded guilty to four counts of sexual penetration of a child or lineal descendant, one count of sexual assault of a child under 16 and one count of producing child abuse material. She was sentenced on 26 August 2019 as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Sexual penetration of a child or lineal descendant 25 years 7 years Base 2 Sexual assault of a child under 16 10 years 2.5 years 6 months 3 Sexual penetration of a child or lineal descendant 25 years 7 years 12 months 4 Sexual penetration of a child or lineal descendant 25 years 7 years 12 months 5 Sexual penetration of a child or lineal descendant 25 years 7 years 18 months 6 Producing child abuse material 10 years 2 years Nil Total Effective Sentence: 11 years’ imprisonment Non-Parole Period: 7 years and 6 months’ imprisonment Pre-sentence Detention Declared: 307 days Section 6AAA Statement: 19 years’ imprisonment with a non-parole period of 15 years Other relevant orders: Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 in respect of charges 3, 4, 5, and 6.
Subject to reporting obligations for a period of 15 years, pursuant to s 34 of the Sex Offenders Registration Act 2004.
Forensic sample order, pursuant to s 464ZF of the Crimes Act 1958.
Undertaking noted in the court record, pursuant to s 5(2AB) of the Sentencing Act 1991.
The applicant seeks leave to appeal against conviction on the following grounds:
1.The verdicts on charges 10, 11, 12 and 13 were unreasonable and could not be supported by the evidence in that it was not open to the jury to be satisfied beyond reasonable doubt that:
(a) the applicant caused IS to sexually penetrate [Gillen]; or
(b) the applicant involved IS in the production of the first video; or
(c) the applicant’s charged conduct occurred within Victoria.
2.A substantial miscarriage of justice occurred because the learned trial judge failed to direct the jury that for charges 10, 11, 12 and 13 they could only be satisfied of the applicant’s guilt based on evidence of conduct he engaged in within Victoria.
The applicant seeks leave to appeal against sentence on the following single ground:
The learned sentencing judge erred in his application of the parity principle in that he imposed sentences on charges 10, 11 and 12 that were so disparate from the sentences imposed on the co-offender [Gillen] as to give rise to a justifiable sense of grievance in the applicant.
Extension of time
The applicant applies for an extension of time in which to bring an application for leave to appeal against conviction and sentence. The applicant filed his application on 29 March 2022, some five months after the statutory time limit expired.
The applicable principles governing the granting of an extension of time were summarised by this Court in Madafferi v The Queen.[3]
[3][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA). See also Kentwell v The Queen (2014) 252 CLR 601, 613–14 [29]–[33] (French CJ, Hayne, Bell and Keane JJ); Derwish v The Queen [2016] VSCA 72, [55]–[57] (Weinberg AP, Redlich and Kyrou JJA); Chen v The Queen [2017] VSCA 335, [22]–[23] (Osborn, Whelan and Ashley JJA).
The application for an extension of time is supported by an affidavit of the applicant’s solicitor, Josephine Elizabeth McColl, affirmed 29 March 2022. Ms McColl deposes that within three days of his sentence, the applicant’s then solicitor had received advice from trial counsel that there was merit in a sentence appeal only but had instructions to appeal against conviction. That solicitor contacted Ms McColl, who reviewed the documents, conferred with the applicant and, on 1 November 2021, completed the necessary memorandum to apply for legal aid. A backlog of funding applications meant that aid was not granted until 10 January 2022. Ms McColl then sought available counsel. On 10 February 2022, the first counsel briefed notified Ms McColl that he was unable to prepare the relevant materials. New counsel was then briefed on 17 February 2022.
The outcome of the application for an extension of time largely depends upon the merits of the application for leave to appeal against conviction and sentence.
For the reasons outlined below, we would grant the application for an extension of time. We would grant leave to appeal against conviction but dismiss the appeal. We would refuse leave to appeal against sentence.
The prosecution case at trial
The 29 charges on the indictment were alleged to relate to five incidents. The charges found proven by the jury related to part of the third of those incidents. So as to understand the application for leave to appeal against both conviction and sentence, it is necessary to detail the prosecution case in respect of all five incidents.
The applicant and Gillen commenced a relationship in about November 2015. IS, who was born in 2011, was then aged 4 years. He has attention deficit hyperactivity disorder (ADHD), autism and early developmental learning difficulties.
Initially Gillen and IS lived with the applicant in Adelaide. IS called the applicant ‘daddy.’ In September 2017 the applicant, Gillen and IS relocated to Kialla in Victoria. They lived in a two bedroom converted garage attached to the residence of the applicant’s parents.
Gillen, who gave evidence in the applicant’s trial, alleged that the applicant was demanding and controlling. He wanted constantly to know where she was and installed a tracking device on her phone.
Incident one
Gillen said that on Boxing Day 2017 the applicant’s parents were absent from the house. She drank a quantity of alcohol from about 11:30 am or 12:00 pm, and did so in consultation with the applicant and as an experiment to see how she would handle alcohol in advance of New Year’s eve. Gillen said that after a few glasses of wine and a few shots, she vomited and felt dizzy. The applicant helped her to the bathroom (which was in the main part of the house) and to undress. He left her on the floor before returning with IS. He carried a butcher’s knife in one hand.
Gillen said that the applicant put the knife down and told IS to get undressed and have a shower. The applicant also got undressed and showered with IS. The applicant then kneeled down beside Gillen, who was still lying on the floor, and told IS to kneel down beside him. The applicant told Gillen to ‘just go with it’ and not fight what was going to happen. The applicant penetrated Gillen’s vagina with his finger and then instructed IS to do the same, before assisting him to do so (charge 1). The applicant caused IS’s finger to penetrate Gillen’s vagina a second time (charge 2). The applicant then picked up IS and positioned him near Gillen’s face. He pinched IS’s penis before instructing IS to grab his own penis in the same manner. He told Gillen to open her mouth and put his hand on the back of her head. IS’s penis penetrated Gillen’s mouth (charge 3). The applicant again picked up IS and then placed him between Gillen’s legs. He told IS to grab his own penis and used his hand to spread Gillen’s labia. The applicant helped IS to penetrate Gillen’s vagina with his penis and pushed IS backwards and forwards (charge 4).
The applicant told IS to leave the bathroom before penetrating Gillen’s vagina with his penis. He then assisted Gillen to their bedroom and thereafter refused to discuss the incident with her.
Incident two
The following day, 27 December 2017, Gillen was in the bedroom when the applicant came in with IS and told her that they were going to do ‘the same’ as they had the day before. He told them both to get undressed. The applicant also got undressed.
The applicant instructed Gillen to lie on her back on the bed. He guided IS’s hand so that his finger penetrated Gillen’s vagina (charge 5). He then guided IS to withdraw his finger, before inserting two of IS’s fingers into Gillen’s vagina. The applicant repeated that process, adding an extra finger each time, until IS’s fist penetrated Gillen’s vagina (charge 6).
The applicant then licked Gillen’s vagina before instructing IS to do the same. The applicant then penetrated Gillen’s mouth with his penis before assisting IS to put his penis in Gillen’s mouth.[4] At the same time the applicant penetrated Gillen’s vagina with his own penis.
[4]Charge 7, on which an acquittal was directed, alleged that the applicant caused IS to introduce his penis into the vagina of Gillen.
Gillen said that after the incident the applicant took her and IS to the shops and bought IS a toy for being a good boy.
Incident three
Gillen said that over the Easter weekend in 2018 she was home alone with IS. The applicant was in Adelaide with friends. His parents were away.
On Easter Sunday, being 1 April 2018, Gillen had breakfast with IS and then allowed him to watch Netflix on the television. She said she received a phone call from the applicant who said that he wanted her to make a video with IS. The applicant provided step-by-step instructions of what he wanted her to do. He told her that the recording device was already set up in the bedroom (charge 13). The applicant also requested that she take photos to send to him via Snapchat in real time as proof of what was occurring. Gillen said she had an argument with the applicant about it, but eventually agreed to comply after he threatened to go to see her mother (who lived in Adelaide).[5]
[5]Charges 8 and 9, on which acquittals were directed, alleged that the applicant caused IS to respectively introduce his penis into the mouth of Gillen, and his finger into the vagina of Gillen, but not during the course of the videos.
Gillen said that she spoke with IS and told him that the applicant wanted them to ‘do what they had done previously.’ IS said he didn’t want to. Gillen replied that they had no choice. She then took IS for a shower before going to the bedroom and pressing ‘play’ on the recording device.
The first video
The video was not introduced into evidence. Rather, the jury received a transcript of it (Exhibit F), and an agreed statement of facts (Exhibit K) of what it depicted. The relevant portion of Exhibit K was in the following terms.
Time Stamp (MIN:SEC)
Sexual Act
00:13 to 00:45
[Gillen] kisses IS on his mouth three times.
00:51 to 01:19
[Gillen] places IS’s penis into her mouth. Acts relating to Charge 10.
01:19 to 01:34
[Gillen] removes her mouth from IS’s penis and then masturbates his penis.
01:34 to 01:45
[Gillen] places IS’s penis into her mouth. Acts relating to Charge 11.
01:52 to 05:05
[Gillen] lays on her back and spreads her legs open. IS is positioned between her legs. [Gillen] takes hold of IS’s hand and holds it near her vagina. IS is resistant to requests of [Gillen]. [Gillen] picks up and holds mobile phone during this sequence. A ‘camera clicking’ sound can be heard while [Gillen] pointing phone towards her groin area. At one point in this exchange [Gillen] can be heard saying ‘do you want chocolate?’ and ‘do you wanna eat your Easter Bunny presents?’ Later in the same exchange [Gillen] says ‘we’ll go have a shower together.’
05:06 to 05:18
An outgoing phone dial sound can be heard while [Gillen] is holding the mobile phone at 05:06. IS asks [Gillen] what she is doing, to which she replies, ‘calling Dad’ at 05:07.
05:20 to 06:55
[Gillen] takes hold of IS’s hand and guides it towards her vagina. [Gillen] holding a mobile phone during this period.
06:58 to 07:33
[Gillen] states ‘I’m calling Daddy’ at 06:58 and picks up a phone from beside her. An outgoing phone dial sound can be heard while [Gillen] is holding mobile phone at 07:13.
07:40 to 08:21
[Gillen] places IS’s finger into her vagina. She can then be heard saying ‘we’ll go and get ice cream.’ Acts relating to charge 12.
Gillen gave evidence about the first video, somewhat at odds with the agreed facts.
She said that she made IS lie down on the bed and took a Snapchat[6] with her phone of her kissing him. She sent it to the applicant. He replied to say ‘continue.’ Gillen then caused IS to introduce a finger into her vagina. She took a Snapchat of that and sent it to the applicant. Gillen said that IS was upset and crying. She then encouraged him to place further fingers in her vagina. All the while she was taking photos and sending them to the applicant.
[6]Gillen gave evidence that when a photo is taken with the Snapchat app open, she could press ‘send’ at the bottom of the screen to send the photo to a person in her ‘friends’ list.
Gillen said that she did not engage in any other sexual activity with IS at that point. IS was really upset and wouldn’t continue with anything she told him to do. She told him to get dressed and go back to watching television. Following that she turned off the recording device and telephoned the applicant.
Gillen said that the applicant was aggressive and said words to the effect of ‘that couldn’t be over by now.’ She told him that IS was too upset to continue. She then allowed the applicant to speak directly to IS, who told him that if he continued Gillen would give him all his Easter eggs at once (charge 19).
Gillen then took IS back to the bedroom and again pressed ‘play’ on the recording device.
The second video
Again, the jury was not required to view the video, but received both a transcript of it (Exhibit F) and agreed facts about what it showed (Exhibit K). The portion of Exhibit K relevant to the second video was in the following terms.
Time Stamp (MIN:SEC)
Sexual Act
00:15 to 00:32
[Gillen] kisses IS on his mouth.
00:19: to 01:29
[Gillen] places IS’s penis into her mouth while holding mobile phone which is directed towards her face and the penis of IS. Acts relating to charge 14.
01:44 to 01:48
[Gillen] places IS’s penis into her mouth while holding mobile phone which is directed towards her face and the penis of IS. Acts relating to charge 15.
01:53 to 2:05
[Gillen] places IS’s penis into her mouth. Acts relating to charge 15 continued.
02:09 to 02:18
[Gillen] tells IS to touch her breasts. IS then touches [Gillen’s] breasts.
02:20 to 03:05
[Gillen] places IS’s penis into her mouth. Acts relating to charge 15 continued.
03:17 to 03:33
[Gillen] places IS’s penis into her mouth. Acts relating to charge 15 continued.
03:35 to 04:02
[Gillen] picks up and looks at mobile phone.
04:55 to 5:06
[Gillen] places IS’s penis into her mouth while holding mobile phone which is directed towards her face and penis of IS. Acts relating to charge 16.
05:43 to 06:35
[Gillen] directs IS’s finger into her vagina. Acts relating to charge 17.
06:53 to 07:34
[Gillen] directs IS’s finger into her vagina and progresses to him inserting three of his fingers into her vagina. [Gillen] is holding a mobile phone which is directed onto her vagina during this sequence. Acts relating to charge 17 continued.
07:34 to 09:28
[Gillen] guides IS’s fist into her vagina. On two separate occasions [Gillen] holds a mobile phone which is directed towards her during this timeframe. [Gillen] can be seen without her phone in her hand and can be heard to say ‘put in and out, harder, oh yeah, baby, fuck yeah.’ Acts relating to charge 17 continued.
09:58 to 11:34
IS introduces his penis into [Gillen’s] vagina. [Gillen] places her hands on IS’s bottom, pulls him towards her and commences moving him in a back and forth motion. At one point [Gillen] holds a mobile phone which is directed at her vagina during this sequence. Acts relating to charge 18.
At the end of this sequence [Gillen] is heard to say ‘Do you wanna go and have a quick shower with mummy?’
Gillen’s evidence about the second video was also at odds with the agreed facts.
She said that she undressed IS and laid him next to her, before putting his penis in her mouth and taking a Snapchat. IS then lay on his back and she again put his penis in her mouth while trying to take Snapchat photos. She sent them to the applicant, who replied ‘keep going, it’s not that hard.’ Gillen then got IS between her legs. He began crying and got off the bed. She then said something like ‘it’s only a few more seconds, you promised dad to do this.’ Gillen then caused IS to penetrate her vagina with his penis. She took a photo and sent it to the applicant. Gillen then told IS to go back to the lounge room and watch television.
Gillen said that there was no other sexual activity she engaged in with IS at that time.
Gillen said that when the applicant returned from Adelaide that evening, he watched the recordings on the television in the bedroom.
On 27 April 2018 the applicant copied both video files recorded on 1 April 2018 onto a green USB (charge 26). On 1 October 2018 the applicant copied both video files onto a red and black USB (charge 27).
Incident four
On an occasion after the applicant returned from Adelaide, Gillen and the applicant had an argument about sex in which the applicant complained that she was too boring. The applicant left the room and returned with IS. The applicant told IS to lie down next to Gillen before telling her to kiss him. The applicant then penetrated Gillen’s vagina with his finger before instructing IS to do the same (charge 20). The applicant then penetrated Gillen’s mouth with his penis while she masturbated IS’s penis.[7] The applicant then had IS penetrate his mouth with his penis (charge 22) while Gillen masturbated the applicant’s penis.
Incident five
[7]Charges 21 and 23, on which there were acquittals directed, alleged that the applicant caused IS to introduce his penis into the mouth of Gillen on two separate occasions.
On a further and final occasion a few weeks before September 2018, Gillen and the applicant had another argument, following which the applicant brought IS into the bedroom. The applicant undressed IS and had Gillen kiss him. The applicant then caused IS to penetrate Gillen’s vagina with his finger (charge 24). The applicant then penetrated Gillen’s mouth with his penis, telling IS to watch. The applicant then penetrated IS’s mouth with his penis (charge 25).
End of relationship between Gillen and the applicant
In October 2018 Gillen decided to leave the applicant and go with IS to Adelaide. Once there she commenced a new intimate relationship. Following her departure from Victoria, there was some electronic communication between Gillen and the applicant.
On 16 October 2018 the applicant sent Gillen a photograph via text message. It was a screenshot of her and IS engaged in sexual activity from the 1 April 2018 video (charge 28). Upon receipt of that photograph Gillen made a phone call to Shepparton police to report the offending and was contacted and arrested by South Australian police the following day.
On 18 October 2018 a search warrant was executed at the applicant’s address. He directed police to an UGG boot in his bedroom which contained the green USB with the 1 April 2018 videos (charge 29). Police also seized computer equipment, namely a HP All-in-One PC and Lenovo tower.
CONVICTION APPEAL
Grounds 1(a) and (b): unreasonable verdict unsupported by evidence
It is convenient to consider grounds 1(a) and (b) together, as they concern whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s participation in the offending relevant to the first video, namely, whether he caused IS to sexually penetrate Gillen and whether he was involved in its production.
Applicant’s submissions
The applicant’s submission that it was not open to the jury to be so satisfied rested upon a number of interrelated arguments.
First, the applicant compared the circumstantial evidence relevant to each of the two videos. The Crown relied upon the pattern and timing of phone calls, SMS messages and data grabs depicted in the call charge records (‘CCRs’) of both Gillen’s mobile phone service (Exhibit G) and the applicant’s mobile phone service (Exhibit H) as supportive of Gillen’s account of the applicant’s participation in the first video and the transcript of and agreed facts concerning it. There was no similar, supportive correlation between the CCRs, the transcript of the video, the agreed facts about it and Gillen’s evidence concerning the second video, in respect of which the applicant was acquitted.
Counsel for the applicant argued that this evidence of pattern and timing in relation to the first video was insufficient to extinguish reasonable doubt as to the applicant’s guilt in respect of charges 10 to 13 and explain the different verdicts with respect to the two videos. Notwithstanding the transcript and agreed facts that show that Gillen made two calls during the first video, Gillen did not give any evidence about trying to call the applicant at that time.[8] Consequently, it was argued that the evidence of the CCRs was only possibly consistent with her evidence about that video. Further, Gillen gave evidence about calling the applicant during the second video, but no calls corresponding to the timing of that video were noted on the CCRs. In addition, evidence given by a forensic digital analyst about the device used to record the videos established that the time stamps on the videos would only be accurate if the time on that device had been correct when the recordings were made.
[8]Gillen’s evidence was that the applicant did not become involved in directly speaking to IS and encouraging him until after the first video was recorded. The applicant accepted that there was a dial tone that could be heard twice during the first video.
Second, even if the jury accepted that Gillen called the applicant twice during the first video, that alone could not satisfy them that the applicant was a substantial and significant cause of her sexual acts with IS or that she recorded them at his behest.
Third, the interpretation of the metadata of the CCRs depended entirely on Gillen’s evidence of the purpose and content of the communications. Other than her evidence there was nothing about the content of the phone calls or messages. The other verdicts indicated that the jury had reservations as to her credibility and reliability. Against a background where the applicant and Gillen were domestic partners, shown by the CCRs to be in frequent contact throughout 1 April 2018, the CCRs of each of their phones provided ‘false corroboration’ of Gillen’s evidence relevant to charges 10 to 13.
Fourth, it was a reasonable hypothesis consistent with innocence that Gillen was engaged in a frolic of her own, merely invoking the wrath of ‘Daddy’ to secure IS’s participation. This was because of:
(a)the absence of the applicant and his parents from the house at the time the videos were made;
(b)admitted, persistent lies told by Gillen about the applicant’s involvement in other alleged offending and about him generally;
(c)Gillen’s strong motivation to implicate the applicant;
(d)Gillen’s decision to continue to live with the applicant after April 2018 but only until she had met another man in South Australia;
(e)specific weaknesses in Gillen’s evidence about the nature of the applicant’s encouragement on 1 April 2018;
(f)the absence of any corroboration from IS, from the transcript of the video or otherwise, as to encouragement he received from the applicant;
(g)the absence of any reference to the applicant’s role in the videos in the text exchange between him and Gillen on 16 and 17 October 2018; and
(h)the absence of forensic evidence that the videos had been played prior to 1 October 2018.
Discussion
The approach by a court of criminal appeal to a ground of appeal that a verdict is ‘unsafe and unsatisfactory’ was established by the High Court in M v The Queen.[9] Section 276(1)(a) of the Criminal Procedure Act 2009 now provides that the Court of Appeal must allow an appeal against conviction if the appellant satisfies the court that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. The approach to the statutory test remains the same as the approach to its common law predecessor.[10]
[9](1994) 181 CLR 487 (‘M’).
[10]Pell v The Queen (2020) 268 CLR 123, 146 [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
Where, as a matter of law, there is sufficient evidence to sustain a guilty verdict and an appellate court is asked to conclude that the verdict is unreasonable, the court must consider whether it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt. In answering that question the court must not disregard that the jury is entrusted with the primary responsibility of determining guilt and that it will have enjoyed the advantage of seeing and hearing the witnesses. In most cases a doubt experienced by an appellate court through its independent evaluation of the evidence will be a doubt which a jury ought to have experienced. It is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by that court that it may conclude that no miscarriage of justice occurred. If the evidence on the record is tainted, contains discrepancies, displays inadequacies or otherwise lacks probative force such as to lead the appellate court to conclude that there is a significant possibility that an innocent person has been convicted, even making full allowance for the advantages enjoyed by the jury, that court is bound to act and set aside the impugned verdict.[11]
[11]M (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ).
The appellate court is to proceed upon the assumption that the jury assessed the complainant’s evidence to be credible and reliable.[12] It must also examine the record to satisfy itself as to whether, notwithstanding that assessment, a reasonable jury ought to have entertained a reasonable doubt, either because of inconsistencies, discrepancies or other inadequacies in the evidence, or in light of other evidence.[13]
[12]Pell (2020) 268 CLR 123, 145 [39].
[13]Ibid. See also Dansie v The Queen (2022) 96 ALJR 728, 732 [13] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25 (‘Dansie’).
Accordingly, we assume that the jury considered Gillen to be a reliable and credible witness with respect to the first video. Having done so, we shall examine the record to determine whether any such defects in the evidence ought to have led the jury to have a reasonable doubt as to the applicant’s guilt on charges 10 to 13.
In this regard, we note that during the trial Gillen’s credit came under a sustained attack.
Gillen admitted she told and maintained a number of lies to police about the applicant’s alleged offending with IS. When she first spoke with the Shepparton Police in October 2018, Gillen said that during the first incident where the applicant got her drunk, the applicant had put a knife to IS’s throat and said he would slit IS’s throat unless she let IS do sexual things to her. She also said that on the Easter weekend the applicant had physically been in the room, filming her and IS. When arrested by South Australian police the following day, Gillen maintained both those lies and further said that on another two occasions of offending the applicant had a knife sitting on the bedside table. Following her extradition to Victoria, Gillen maintained the falsehoods about the applicant being in the room on Easter Sunday and threatening her with a knife until the informant told her that the police knew he had been in Adelaide on that day.
At the committal Gillen gave evidence that the applicant had not used a knife during any of the offending involving IS. At trial she said that the applicant was holding a butcher’s knife ‘down beside his leg’ during incident one.
Gillen also told a civilian witness that she was forced by the applicant to do sexual things to IS at knifepoint.
Gillen further told lies about the applicant unrelated to the offending, including that he had forced her to work as a prostitute at knifepoint.
Other aspects of Gillen’s credibility ventilated before the jury included her willingness to remain with or return to the applicant notwithstanding his behaviour towards her and IS, even after obtaining an intervention order in April 2018, only leaving him when she met a new boyfriend in Adelaide in October 2018. Further, there was the benefit to her in terms of the number of charges faced — she was convicted and sentenced in relation to incident three only — and the lesser sentence received as a result of implicating the applicant as the instigator of the offending.
There was no evidence independent of Gillen that any of the charged sexual acts, apart from incident three, occurred at all. The two videos taken on 1 April 2018 proved the occurrence of those acts. That Gillen’s evidence about incident three was somewhat inconsistent with the transcript of the videos and the agreed facts relating to them is, in that respect, of little moment. The attribution of some of the sexual activity from the first video to the second and the omission of oral penetration from the first is explicable by the fact that she gave evidence some three years after the event, the recordings were made about 50 minutes apart and it was unchallenged before the jury that she had not watched them.
The returned verdicts across the indictment are explicable on the basis that the jury was not prepared to convict the applicant on the basis of Gillen’s testimony alone. But this does not compel the conclusion that the jury must necessarily have regarded her as an untruthful witness or that her credibility was undermined in respect of counts 10–13.[14] Rather, it ‘may simply reflect a cautious approach to the discharge of a heavy responsibility.’[15]
[14]MFA v The Queen(2002) 213 CLR 606, 618 [35] (Gleeson CJ, Hayne and Callinan JJ), 632 [89] (McHugh, Gummow and Kirby JJ) (‘MFA’) citing Jones v The Queen (1997) 191 CLR 439. See also Landale v The Queen [2022] VSCA 121, [43] (Kyrou, T Forrest and Walker JJA).
[15]MFA (2002) 213 CLR 606, 617 [34].
The applicant does not argue to the contrary, but does submit that in light of the jury’s demonstrated cautious approach to Gillen’s evidence and given that there was no question that all of the recorded sexual acts of 1 April 2018 had taken place, there is insufficient other evidence to explain the different verdicts returned with respect to the first and second videos made that same day.
An analysis of the record reveals a proper basis for this discrimination.
First, the CCRs show a number of voice calls and SMS messages between the applicant and Gillen as well as data use by her throughout 1 April 2018. There is a strong correlation between the pattern of communications and data usage in the CCRs with the transcript of and agreed facts about the first video and Gillen’s evidence as to her communication with the applicant during it.
The first video was timestamped as having commenced at 09:42:35. Gillen’s evidence was that prior to recording the first video she had a telephone conversation with the applicant in which she received his instructions concerning both sexual activity with IS and the recording of it. The CCRs show a voice call of 3 minutes and 49 seconds duration between Gillen and the applicant, commencing at 09:37:29. That call would have ended at 09:41:18. If, contrary to its timestamp, the recording was started at exactly that time, then five minutes and six seconds later would be 09:46:24. That is when the first dial tone can be heard while Gillen is depicted holding a mobile phone as IS asks ‘what are you doing?’ and she replies ‘calling dad’. The CCRs record that Gillen made an unanswered phone call to the applicant at 09:47:44, being six minutes and 26 seconds after the end of the first phone call at 09:41:18. Gillen’s evidence is that the recording was not started immediately as she took IS for a shower before taking him to the bedroom. Whether or not a shower could be completed in about 90 seconds or whether Gillen’s evidence about showering at that point was an inaccurate or transposed detail — recalling that at the end of Exhibit K she is recorded as telling IS that they will then have a shower — the timing strongly suggests that the recording started shortly after the end of that phone call.
Further, the transcript of the video shows that the first dial tone about five minutes into the recording can be heard after IS has repeatedly said that he ‘can’t do it’ and ‘I don’t like this,’ and Gillen has variously responded, ‘Daddy wants to see us do it’, ‘I know you don’t like it but you need to do it … OK. Daddy just wants to see us do it so come on’ and ‘you told Daddy that you were gunna do it, come on, you can do it, mummy help you.’
And the transcript also shows that in response to continued resistance from IS, Gillen tells him ‘Daddy’s gunna call and go ballistic’ and ‘…daddy hasn’t even left Adelaide yet, we’ve still got nine hours’ before saying ‘I’m calling daddy.’ To this, IS responds by saying ‘… I just said, what are you calling daddy for?’ and ‘Mum, don’t ring daddy’. The agreed facts state that a second dial tone can be heard while Gillen is depicted holding a mobile phone at time stamp 07:13, that is some two minutes and six seconds after the first dial tone. The CCRs show a second unanswered call from Gillen to the applicant at 09:50:08, being two minutes and 24 seconds after the first dial tone.
The CCRs relating to Gillen’s phone further show data grabs during the period of the first video consistent with her evidence of sending photographs to the applicant via Snapchat.
The correlation between the transcript of and agreed facts about the first video, the CCRs of both the applicant’s and Gillen’s phones and Gillen’s evidence about the content of the communications between her and the applicant before and during the first video is noteworthy. It is also in contradistinction to the matrix of evidence relevant to the second video. During that video the transcript shows that Gillen made only a single reference to ‘daddy’ and the CCRs show no attempt by her to call the applicant before or during the recording nor any data grabs from her phone.
Second, there was evidence before the jury that the HP All-in-One computer located in the bedroom and capable of recording the videos had been connected to the internet and would therefore have maintained an accurate time. Slight differences in the timestamps and timings of the various pieces of evidence are not of great moment. What is striking about the matrix of evidence concerning the first video is the consistency of the periods between provable actions. Further, the fact that Gillen consistently told IS that she was going to call ‘daddy’ and that ‘daddy’ wanted them to ‘do it’ came not from her later evidence at trial, but from the undisputed transcript of the contemporaneous video.
Third, given the frequency of telephone contact between the applicant and Gillen revealed in the CCRs and the very few instances of either missing a call from the other, it is highly improbable that Gillen would have twice risked the applicant answering a call or returning a missed call while she was engaged in sexual activity with her son, if the applicant was not knowingly involved in that activity.
Fourth, in similar vein, the frequent invocation of the threat of ‘daddy’ would have been unbelievably reckless if the applicant was ignorant of the sexual activity. It risked a six year old child with developmental difficulties disclosing such behaviour to his step-father.
Fifth, the two people with whom the applicant had travelled to Adelaide over the 2018 Easter weekend both gave evidence as to their motel check out times and later travel with the applicant on Easter Sunday. That evidence made it impossible for either of them to have been with him during the making of the first video. That was not the case with respect to the second video.
There is a further and separate basis on which it was open to the jury to discriminate between the applicant’s involvement in the first and second videos and which was presented to them as an argument by defence counsel. Some of Gillen’s utterances during the second of the videos are suggestive of her deriving sexual pleasure from the sexual activity. There are no such utterances recorded during the first. There is nothing in the recorded utterances from IS throughout the whole of the transcript which would suggest any difference in his behaviour or level of resistance to explain any change or difference in Gillen’s behaviour or response during the second video.
Considering the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 10 to 13 inclusive.
Reservations as to Gillen’s credibility and reliability with respect to other counts on the indictment only indicate that the jury were not prepared to find those charges proven beyond reasonable doubt. She is not to be taken to be a discredited witness. She reported the existence of the videos to police. The jury heard her explanations for her admitted lies. And, as demonstrated above, there was evidence independent of Gillen’s account that strongly supported her account of the applicant’s involvement in the first video. There was no such supporting evidence with respect to the second video. It was therefore open to the jury to draw the ultimate inference that the applicant’s guilt had been satisfied to the criminal standard with respect to counts 10 to 13.
Having reviewed the evidence, that conclusion was sound.
Grounds 1(a) and 1(b) are not made out.
Grounds 1(c) and 2: conduct outside Victoria
The issue
The evidence at trial was that the applicant was in South Australia on 1 April 2018 when he allegedly committed the offences by giving Gillen, who was in Victoria, ‘a step by step guide’ as to what he wanted her to do.
Because the evidence does not establish that he was in Victoria when he spoke to Gillen on the phone and allegedly gave her the relevant instructions, the applicant seeks leave to appeal against his convictions on the following further bases:
(a)The verdicts on charges 10, 11, 12 and 13 were unreasonable and could not be supported by the evidence in that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant’s charged conduct occurred in Victoria.
(b)A substantial miscarriage of justice occurred because the learned trial judge failed to direct the jury that for charges 10, 11, 12 and 13, they could only be satisfied of the applicant’s guilt based on evidence of conduct he engaged in within Victoria.
The proposition underlying these grounds is that conduct which takes place outside Victoria is not captured by s 49A or s 51B of the Crimes Act, whether or not the offending otherwise took place in Victoria. Insofar as the applicant’s conduct could be established as alleged and constituted criminal conduct, the crime was committed in South Australia, not in Victoria, as ss 49A and 51B do not operate extra-territorially.
The applicant submits that without the conduct alleged against him that occurred in South Australia, the evidence as it pertained to the first video (and charges 10, 11, 12 and 13) could not have supported findings of guilt beyond reasonable doubt on those charges. It follows that it was of fundamental importance that the trial judge identify for the jury those facts regarding the applicant’s conduct that could validly be considered in deciding charges 10, 11, 12 and 13. The trial judge’s failure to direct the jury in these terms gave rise to a substantial miscarriage of justice.
The further grounds therefore turn on whether s 49A and s 51B captured the conduct of giving instructions to Gillen from a place outside Victoria to cause a child — IS — to sexually penetrate Gillen and to cause Gillen to record that activity, where both the penetration and the recording took place in Victoria.
In order to consider this question, it is necessary to first set out the statutory context in which ss 49A and 51B appear.
Statutory framework
Part 1 div 1 sub-div 8B of the Crimes Act (‘Sexual offences against children’) creates a suite of offences against children, commencing with s 49A.
Section 49A provides:
Sexual penetration of a child under the age of 12
(1) A person (A) commits an offence if —
(a) A intentionally —
(i) sexually penetrates another person (B); or
(ii) causes or allows B to sexually penetrate A; or
(iii) causes B —
(A) to sexually penetrate themselves; or
(B) to sexually penetrate another person (C); or
(C) to be sexually penetrated by C; and
(b) B is a child under the age of 12 years.
(2)A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
In this case, the conduct constituting the offences charged was the conduct described in s 49A(1)(a)(iii)(B). It was alleged to involve the applicant (person A), the child (person B) and a third person (person C) whom the applicant caused the child to penetrate.
Section 49A is followed by provisions creating an offence for the sexual penetration of a child under 16 (s 49B), the sexual penetration of a child aged 16 or 17 under care, supervision or authority (s 49C), and offences for the sexual assault of children under the age of 16 (s 49D) and children aged 16 or 17 under care, supervision or authority (s 49E). Each of these provisions also creates an offence where another person, person C, is involved in interacting in a relevant way with the child. None of these sections make express provision for the offender, person A, to be outside Victoria when he or she causes the child to suffer (or engage in) penetration or suffer (or engage in) sexual touching.
Sections 49F, 49G, 49H and 49I are concerned with sexual activity in the presence of a child. Sections 49F and 49G concern sexual activity by the offender where he or she knows that a child is present; ss 49H and 49I concern sexual activity by another person, where the offender causes or allows a child to be present.
Each of ss 49F–49I is expressed to capture conduct that takes place outside Victoria, as long as there is a relevant connection with Victoria. The subsections capturing conduct or persons outside Victoria provide as follows:
(5)For the purposes of subsection (1), when A [the offender] engages in an activity, B [the child] may be present —
(a)in person; or
(b)by means of an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000, that is received by B in real time or close to real time.
(6)It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as B [the child] was in Victoria at the time at which that conduct occurred.
(7)It is immaterial that B was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A [the offender] was in Victoria at the time at which that conduct occurred.
These subsections therefore provide that the child may be ‘present’ while outside Victoria if the sexual activity takes place in Victoria, and that the sexual activity may occur outside Victoria provided that the child is in Victoria.
There are equivalent or similar provisions in other sections of sub-divs 8B and 8D.[16]
[16]See Crimes Act ss 49F(6)–(7), 49G(6)–(7), 49H(5)–(7), 49I(5)–(7), 51D(4)–(5), 51E(4)–(5), 51F(5)–(6), 51G(4)–(5), 51I(4)–(5).
Sections 49K and 49L criminalise ‘encouraging’ a child to engage in or be involved in sexual activity. They provide that the ‘encouraging’ may be carried out by means of electronic communication. They further provide that it is immaterial that some or all of the conduct constituting the offence occurred outside Victoria as long as the child was in Victoria, and that it is immaterial that the child was outside Victoria if the person conducting the encouragement was in Victoria at the time that conduct occurred.
We pause to observe that, had the applicant spoken directly to IS by telephone from South Australia and encouraged IS to engage in sexual activity with Gillen, that conduct would have been captured by s 49K, providing that IS was in Victoria at the time he received the encouragement.[17]
[17]As noted above, it was alleged that the applicant spoke to IS after the conclusion of the first video and prior to the making of the second. In respect of that conduct he was charged with involving a child in the production of child abuse material pursuant to s 51B of the Crimes Act (charge 19). The jury was hung in respect of the charge.
Section 49M prohibits grooming for sexual conduct with a child and expressly provides that the grooming may take place by electronic communication and that it is immaterial that all parties are not in Victoria as long as either the communication was made or received in Victoria or the offender intended that the sexual offence would occur in Victoria.
Sections 49Q and 49R concern, respectively, causing or allowing and inviting or offering a sexual performance involving a child. The sexual performance may be a performance in person or by an electronic communication. In this case, there is no express statement that it is immaterial that the sexual performance takes place outside Victoria or that the causing, allowing or inviting the child to take part in a sexual performance takes place outside Victoria.
Section 49S prohibits conduct that aids, facilitates or contributes in any way to another person engaging in sexual conduct (whether or not in Victoria) in relation to a child. The sexual conduct undertaken by the other person may take place outside Victoria if, had the conduct occurred in Victoria, it would have constituted an offence under sub-div (8B), among other laws.
Sub-division 8D creates offences in relation to child abuse material. Section 51B provides:
Involving a child in the production of child abuse material
(1) A person (A) commits an offence if —
(a)A intentionally involves another person (B) in the production of material; and
(b)B is a child; and
(c)A knows that B is, or probably is, a child; and
(d)the material is child abuse material; and
(e)A knows that the material is, or probably is, child abuse material.
(2)A person who commits an offence against subsection (1) is liable to level 5 imprisonment (10 years maximum).
(3)For the purposes of subsection (1), the ways in which A involves B in the production of material may include —
(a)inviting or encouraging B to be involved, or offering B to be involved, in the production of the material; or
(b)causing or allowing B to be involved in the production of the material; or
(c)using B in the production of the material.
Again, there are provisions in sub-div 8D concerning the distribution of child abuse material (s 51D), administering a website used to deal with child abuse material (s 51E), encouraging the use of a website to deal with child abuse material (s 51F) and possession of child abuse material (s 51G) that state that it is immaterial that a person was outside Victoria or some of the conduct occurred outside Victoria so long as some person was or some conduct occurred (as the case may be) in Victoria at the relevant time.
Submissions
In support of the proposition that ss 49A and 51B do not apply to conduct that takes place outside Victoria, the applicant relies on the legislative history of ss 49A and 51B and the context in which they appear in the Crimes Act. He submits that when s 49A was originally inserted into the Crimes Act in 1994, it provided that a person who in Victoria did or omitted to do an act which aided, facilitated or contributed to another person’s commission of a sexual offence against a child was guilty of an indictable offence, even if that offending took place outside Victoria. However, that provision was replaced in 2016 when the Crimes Amendment (Sexual Offences) Act 2016 introduced into the Crimes Act a suite of new sexual offences against children in sub-divs 8B and 8D. This included the new s 49A and the new s 51B, neither of which is expressed to have extraterritorial operation.[18] In contrast, many of the provisions creating the new offences against children are expressed to operate extraterritorially.[19] The applicant submits that this is a clear indication that Parliament did not intend ss 49A and 51B to operate on conduct outside Victoria.
[18]Crimes Act pt 1 div 1 sub-divs 8B, 8D.
[19]See ibid ss 49F(6)–(7), 49G(6)–(7), 49H(6)–(7), 49I(6)–(7), 49K(6)–(7), 49L(6)–(7), 49M(4)–(6), 49O(5)–(6), 49S(1)(d)(iii), 51D(4)–(5), 51E(4)–(5), 51F(5)–(6), 51G(4)–(5), 51I(4)–(5).
The respondent submits that ss 49A and 51B must be construed as having extraterritorial operation.[20] This is because Parliament plainly intended to broaden the scope of the sexual offending against children captured by legislation. In his Second Reading Speech to the Crimes Amendment (Sexual Offences) Bill 2016, the Attorney-General spoke of the failure of ‘some sexual offences’ to ‘keep up to date with new ways of offending and changes in technology’.[21] In this context, so the respondent submits, nothing can be inferred from the absence of express provision for extraterritorial operation in ss 49A and 51B (in contrast to other sections in the same subdivision).
[20]The respondent initially submitted that the issue of the extraterritorial operation of ss 49A and 51B did not arise. This was because, pursuant to s 324(1) of the Crimes Act, the applicant was deemed to have committed the offences as a result of being involved in their commission; that is, he committed the offences on a complicity basis. However, during oral argument, the focus of the respondent’s submission shifted to the applicant’s extraterritoriality argument. This was partly in response to the applicant’s submissions during oral argument that the charges were not prosecuted on the basis of complicity.
[21]Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2016 (Martin Pakula, Attorney-General) 2439.
The respondent further submits there is ample nexus between the offending and Victoria. The victim was present in Victoria; in the case of charges 10, 11 and 12, the penetration occurred in Victoria and the penetration was effected by a person present in Victoria; in the case of charge 13, the child abuse material was produced in Victoria, by a person present in Victoria and who, in producing the material, operated a device located in Victoria. Although the offences were ‘caused’ by the applicant engaging in conduct while he was located interstate, they were not completed until his co-accused acted in Victoria on the applicant’s directions.[22]
Discussion
[22]Citing R v Robert Millar (Contractors) Ltd [1970] 2 QB 54; Skewes v The Queen (1981) 7 A Crim R 276, 281 (Young CJ), 290 (Anderson J).
In issue is the territorial ambit of ss 49A and 51B of the Crimes Act.
The applicant’s argument is based on the proposition that in order to offend against s 49A(1)(a)(iii)(B) of the Crimes Act, the conduct of ‘causing’ the sexual penetration of or by a child had to have taken place in Victoria. In substance, he contends that all of the conduct elements of the offending — the causative conduct and the acts of penetration involving a child — must occur in Victoria. This is said to be the case because s 49A contains no words expressly extending the territorial operation of the section.
The applicant makes the same argument in relation to s 51B: the conduct of ‘involving’ the child in the production of child abuse material and the production of the child abuse material must occur in Victoria.
For the reasons that follow, the proposition that all of the elements of the offending in ss 49A and 51B must occur in Victoria cannot be sustained.
There exists a presumption that penal provisions do not operate extra-territorially.[23] The presumption reflects ‘the territorial focus of the common law of crime’, being that ‘all crime is local’.[24] The jurisdiction of a crime is to be determined by reference to the place in which the crime is committed.[25]
[23]Thompson v The Queen (1989) 169 CLR 1, 23–4 (Brennan J) (‘Thompson’); Lipohar v The Queen (1999) 200 CLR 485, 497–8 [15]–[18] (Gleeson CJ); [1999] HCA 65 (‘Lipohar’); Treacy v DPP (UK) [1971] AC 537, 551 (Lord Reid) (‘Treacy’). The presumption is given statutory recognition by s 48(b) of the Interpretation of Legislation Act 1984, which provides that ‘[i]n an Act or subordinate instrument, unless the contrary intention appears … a reference to a locality, jurisdiction or other matter or thing shall be construed as reference to such locality, jurisdiction or other matter or thing in and of Victoria’.
[24]Lipohar (1999) 200 CLR 485, 497 [15]–[16] (Gleeson CJ), quoting Macleod v A-G (NSW) [1891] AC 455, 458 (Lord Halsbury LC). See also Thompson v The Queen (1989) 169 CLR 1, 33 (Deane J).
[25]R v H, ML (2006) 96 SASR 139, 145 [29] (White J); [2006] SASC 357.
The justification for this presumption is the principle of ‘international comity which requires the courts of each state to respect the sovereignty of others’.[26] The presumption can be rebutted by ‘clear and specific words to the contrary’.[27]
[26]Thompson (1989) 169 CLR 1, 24 (Brennan J).
[27]Ibid, quoting Air-India v Wiggins (1980) 71 Cr App R 213, 217 (Lord Diplock).
However, the courts have long held that the criminal laws of a territory may operate on conduct that takes place outside the territory by ascribing jurisdiction to the courts of the State or Territory in which the consequence of the wrongful act is manifested.[28]
[28]See, eg, McNeilly v The Queen (1981) 4 A Crim R 46, 51 (Street CJ) (New South Wales Court of Criminal Appeal); R v Hansford (1974) 8 SASR 164 (‘Hansford’), 191 (Hogarth J); Lawson v The Queen (1996) 86 A Crim R 111, 117 (Gleeson CJ) (New South Wales Court of Criminal Appeal).
Thus, in McNeilly v The Queen,[29] the offender was convicted of attempted murder in New South Wales, having sent a parcel comprising a quantity of gelignite, a detonator and a battery from Queensland to New South Wales via postal delivery. He submitted that only the courts of Queensland had jurisdiction to try the offence because the acts of making up the parcel and arranging for it to be posted were committed wholly in Queensland. Street CJ rejected this submission, finding that the chain of events ‘in fact ended within New South Wales when the parcel was delivered’ to a recipient of that State.[30]
[29](1981) 4 A Crim R 46 (‘McNeilly’).
[30]Ibid 50, 53.
The so-called ‘terminatory’ theory applied in McNeilly is based on the proposition that ‘the courts of the country where the last element is performed in the series of facts which go to constitute the crime have jurisdiction to try the crime’.[31]
[31]Hansford (1974) 8 SASR 164, 191 (Hogarth J), quoted in ibid 52 (Street CJ).
In Thompson v The Queen,[32] a case involving the murder of two young women where there may have been uncertainty about where the crime was committed, Brennan J referred to ‘result-crime[s]’ that are punishable in the jurisdiction in which the harmful consequences of the offending occur and to which the principle of comity is inapplicable.[33] His Honour explained:
The construction of an offence-creating statute is affected by international comity which requires the courts of each state to respect the sovereignty of others. Where a statute creates an offence in order to suppress the harmful consequences of acts or omissions — a ‘result-crime’ rather than a ‘conduct-crime’ in the terminology discussed by Lord Diplock in Treacy[34] — comity does not require the courts of the forum to abstain from punishing breaches of the statute when the harmful consequences occur within the territory of the forum even if the act which causes those consequences is done outside.[35]
[32](1989) 169 CLR 1.
[33]Ibid 24, quoting Treacy [1971] AC 537, 560 (Lord Diplock).
[34][1971] AC 537, 560.
[35]Thompson (1989) 169 CLR 1, 24.
As for the axiom that ‘all crime is local’, Brennan J said as follows:
When the language of an offence-defining or an offence-creating statute is quite general, the statute is construed as embracing conduct in apparent contravention of its terms only if an act is done or an omission is made or a result occurs within the domestic territory. Whether it is the locality of the act or of the omission or of the result which brings conduct within the ambit of the statute is a question of construction, but there must be some local element of the offence.[36]
[36]Ibid 25.
Extrapolating from the statement in Halsbury’s Laws of England that, ‘[i]f a person, being outside England, initiates an offence, part of the essential elements of which take effect in England, he is amenable to English jurisdiction’,[37] Brennan J said:[38]
It may be that when the result of an act is itself an element of the offence, the offence may be taken to have been committed both in the place where the act was done and in the place where the result occurred: see Treacy;[39] Stonehouse.[40]
[37]Halsbury’s Laws of England, vol 11 (4th ed, 1976) 55 [77], quoted in DPP (UK) v Stonehouse [1978] AC 55, 83 (Lord Edmund-Davies) (‘Stonehouse’).
[38]Thompson (1989) 169 CLR 1, 24–5.
[39]Treacy [1971] AC 537, 562 (Lord Diplock). Lord Diplock stated: ‘Comity gives no right to a state to insist that any person may with impunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no ground for complaint in international law if the state in which the harmful consequences had their effect punishes, when they do enter its territories, people who did such acts.’
[40]Stonehouse [1978] AC 55, 66 (Lord Diplock), 77 (Lord Salmon).
In other words, some offences, comprised of more than one act, may take place in more than one location.
In Lipohar v The Queen,[41] Gleeson CJ observed that an aspect of the territorial focus of the presumption against extra-territoriality was ‘the idea that most crimes have but a single location’.[42] However, ‘the assumption that the offence is committed in only one place … is not a logical necessity’[43] and ‘[t]he general common law requirement of a single situs has never been absolute’.[44]
[41](1999) 200 CLR 485.
[42]Ibid 497–8 [17].
[43]Ibid 498 [18].
[44]Ibid 499 [21].
More generally, in Director of Public Prosecutions v Sutcliffe,[45] Gillard J remarked that ‘crimes [had] ceased to be confined to single locations’ and that offending was often done ‘without thought to location’.[46] His Honour attributed this in part to the use of technology as a means of instant cross-border communication.[47]
[45][2001] VSC 43.
[46]Ibid [60]–[61].
[47]Ibid [62].
It is plain that a penal provision need not include express words extending the territorial reach of the section. Determining the territorial reach of a penal provision is a question of statutory construction. Thus, whether ss 49A and 51B capture conduct by a person who was not in Victoria is to be answered by construing those provisions in the context of the statute as a whole and by reference to the purpose of their enactment. The presumption against extra-territoriality and the principle of comity do not require any different answer from that given by the statute itself.[48]
[48]Considerations of comity may be less applicable within Australia. In Lipohar, Gaudron, Gummow and Hayne JJ stated that in a federal structure ‘territorial conceptions of national sovereignty and of comity between nation states cannot be determinative. Within Australia, any rationale for the common law rule respecting comity between what became the States disappeared with federation’: (1999) 200 CLR 485, 526 [102], citing Thompson v Australian Capital Television (1996) 186 CLR 574, 584–5 (Brennan CJ, Dawson and Toohey JJ), 591 (Gaudron J), 614–15 (Gummow J).
In this case, it is clear that the offence of causing sexual penetration of or by a child involves more than one act: the act of causing the penetration and the act of penetration itself. The causative conduct, the ‘step by step’ instructions to Gillen conveyed contemporaneously by electronic means from somewhere in South Australia to the scene of the penetrations in Victoria, resulted in a child being forced to sexually penetrate his mother in Victoria. To paraphrase Brennan J, the harmful consequences of the conduct occurred within Victoria, even though the acts leading to those consequences occurred outside Victoria. The harmful consequences are the acts of penetration involving the child. That is what s 49A is directed to suppressing. Based on the foregoing analysis, if the penetration takes place in Victoria, that is sufficient for the application of s 49A of the Crimes Act.
Likewise, s 51B creates an offence comprised of more than one act: the act of ‘involving’ (whether by encouragement, use or otherwise) a child in the production of child abuse material and the production of such material involving the child. The harmful consequence to which the section is directed is the production of child abuse material. If that conduct takes place in Victoria, as it did in this case, that is sufficient for the application of s 51B to the conduct of ‘involving’, whether it takes place inside or outside Victoria.
However, as a matter of statutory construction, the applicant relies on the fact that many, if not most, of the other provisions in sub-divs 8B and 8D are unequivocally expressed to operate on conduct outside Victoria. The absence of the same or similar words in ss 49A and 51B must mean, it is submitted, that those provisions were not intended to operate on conduct outside Victoria, even if the offending was ‘completed’ in Victoria and the harm caused by that conduct took place in Victoria. The applicant also relies on what he asserts was legislative change to remove the words ‘in Victoria and elsewhere’ to impute to the legislature the intention that s 49A apply only to conduct in Victoria.
It is certainly the case that most of the sections in sub-divs 8B and 8D contain express words extending the territorial ambit of the section. A variety of formulations is used to make it clear that conduct outside Victoria is captured, with the following formulation common to many of the sections:
It is immaterial that some or all of the conduct constituting an offence against subsection (1) occurred outside Victoria, so long as B [the child] was in Victoria at the time at which that conduct occurred.
It is immaterial that B [the child] was outside Victoria at the time at which some or all of the conduct constituting an offence against subsection (1) occurred, so long as A [the offender] was in Victoria at the time at which that conduct occurred.
The sexual penetration and sexual assault offences, along with the offences of producing child abuse material and involving a child in the production of child abuse material contain no such words. The significance of such an absence, the applicant submits, is illustrated in the decision of the Court in Green v Burgess.[49]
[49][1960] VR 158 (Supreme Court of Victoria) (‘Green’).
In Green, the defendant was charged with having under his control certain fish in contravention of ss 41(1)(a) and 42(1) of the Fisheries Act 1928. He had taken the fish in Tasmanian, not Victorian, waters. The issue that arose was whether ss 41(1)(a) and 42(1) of the Fisheries Act 1928 operated extraterritorially. Herring CJ held they did not, observing that some other provisions of the Fisheries Act were expressed to operate whether the fish were ‘taken in Victoria or elsewhere’,[50] but ss 41(1)(a) and 42(1) were not expressed in those terms. His Honour considered that this was a ‘strong indication’ that ss 41(1)(a) and 42(1) operated only with respect to fish taken in Victoria[51] and said:
As a matter of construction, effect must be given to these words [‘taken in Victoria or elsewhere’] … and they cannot be rejected out of hand as inserted out of greater caution or as redundant … unless there can be found in the context good reason for so rejecting them.[52]
[50]Fisheries Act 1928, ss 41(1)(b), 42(3).
[51]Green [1960] VR 158, 160.
[52]Ibid 161 (Herring CJ).
The applicant submits that no good reason exists in this case for rejecting the significance of the express extraterritorial operation in other provisions in sub-divs 8B and 8D on the ground that they were inserted merely out of greater caution or are redundant.
We observe, as a preliminary matter, that the decision in Green was based on the holding that the object of the relevant provisions was to stop the ‘taking’ in Victorian waters of fish, in the closed season or under-size, as the case may be. Herring CJ held that this object would not be advanced by making it an offence to have in one’s possession or under one’s control fish taken in other waters. Support for this view was to be found in the provisions expressed to operate whether the fish were ‘taken in Victoria or elsewhere’, such as s 42(3), which had ‘all the semblance of an extension of that operation beyond what might be regarded as its natural operation’.[53]
[53]Ibid 160–1 (Herring CJ).
The applicant effectively seeks to invoke the canon of statutory interpretation known as expressio unius est exclusio alterius: the expression of one is the exclusion of the other. However, as the High Court stated in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW),[54] ‘[t]hat maxim must always be applied with care, for it is not of universal application and applies when the intention it expresses is discoverable upon the face of the instrument.[55] It is a “valuable servant, but a dangerous master”.’[56] There may be an explanation for the differences in the provisions other than a deliberate legislative intention to make different provision,[57] such as ‘inadvertence or accident’.[58]
[54](1982) 148 CLR 88, 94 (Stephen, Mason, Aickin, Wilson and Brennan JJ).
[55]Citing Saunders v Evans (1861) 8 HL Cas 721; 11 ER 611, 615 (Lord Campbell LC).
[56]Colquhoun v Brooks (1888) 21 QBD 52, 65 (Lopes LJ) (‘Colquhoun’).
[57]Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 174–5 [4.43].
[58]Colquhoun (1888) 21 QBD 52, 65 (Lopes LJ).
The sexual penetration and sexual assault provisions (ss 49A–49E) which, as discussed, make no express provision for any of the persons involved (offender, victim or third party/co-offender) to be outside Victoria or for any of the acts or conduct to take place outside Victoria, are built around what we will call the ‘base’ position, which is physical contact between the offender, person A, and person B, the child. In offending of this kind (involving the offender and the child, and penetration or sexual assault), the offender and the child are necessarily co-located. If those sections went no further than to criminalise such physical contact, any extension of their territorial ambit would be superfluous. However, those provisions are now also expressed to capture conduct between the child and a third person, person C, where that conduct is ‘caused’ by person A, the offender. In such a case, the offender need not be in the same location as the child and the third person. The offending by person A, which is causative of sexual penetration or sexual touching involving a child, can take place from a distance. Person A need not be located in the same place as the child when offending against the child.
That is the circumstance here. The applicant did not need to be in the same place as IS in order to offend against IS in the manner contemplated in s 49A(1)(a)(iii)(B). Had it been established that the applicant made the phone call to Gillen from Nhill rather than from somewhere west of the South Australian border, there would be no issue about the application of s 49A to his conduct.
In the second reading speech for the Crimes Amendment (Sexual Offences) Bill, the Attorney-General observed that some sexual offences had failed to keep up to date with ‘new ways of offending’ and changes in technology, and the amendments sought to remedy this deficiency. Accordingly, the Parliament specifically turned its mind to the possibility of remote offending and the use of telecommunications in relation to sexual activity in the ‘presence’ of a child, in relation to communications constituting ‘grooming’ and in relation to conduct ‘facilitating a sexual offence against a child’. These are offences that readily bring to mind the possibility that telecommunications will be used to carry out the offending. Likewise, the conduct of ‘encouraging’ a child to engage or be involved in sexual activity is conduct that the legislature would readily anticipate could occur remotely.
In contrast, despite extending the way in which the sexual penetration and sexual assault offences may be committed by introducing the agency of a third person, the legislature has not made express the extra-territorial application of the provisions.
We consider that this is most likely a product of oversight, possibly due to the fact that the ‘base position’ did not draw attention to the question of extra-territorial application, and not a deliberate choice to restrict the territorial ambit of the sexual penetration and sexual assault provisions in the Crimes Act. There is no logical or rational basis for any such restriction in the light of the extra-territorial operation given to other sections.
Having regard to the structure of the provision and the harm that it is intended to suppress, the ‘natural’ operation of s 49A of the Crimes Act is not limited to conduct which takes place wholly in Victoria. To the contrary. The sexual penetration offence has been extended to encompass conduct, quintessentially involving the use of words, that causes a third person to engage in acts of penetration with a child. In our view, despite the absence of words expressly extending the territorial ambit of s 49A, its extended structure and its clear object of suppressing harm to children in Victoria give rise to the inference that it is intended to capture conduct outside Victoria where the harm to the child occurs in Victoria. Indeed, the suggestion that Parliament intended to criminalise conduct in Nhill that causes another person to engage in acts of sexual penetration with a child in Kialla, but not the same conduct if it takes place 83 kms to the west of Nhill in Bordertown, South Australia, is absurd.
As to what the amendment of the Crimes Act in 2016 tells us about legislative intention, its immediate predecessor (s 45 of the Crimes Act in operation as at April 2017) relevantly provided:
(1)A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
Like the current provision (s 49A), the immediately preceding provision was silent on the question of its extra-territorial application.[59] Accordingly, it is not the case that in enacting the provision that is currently in force, Parliament took away the extra-territorial application of the offence of sexual penetration of a child.
[59]The only provisions in the previous form of the relevant sub-division of the Crimes Act (sub-div 8C) that make reference to conduct occurring outside Victoria concern the facilitation of sexual offences against children, grooming for sexual conduct with a child and failure to protect a child.
In our view, for the reasons set out above, the legislature must be taken to have intended that s 49A capture conduct causing sexual penetration by or of a child to take place within Victoria, whether that conduct took place within or outside Victoria.
We have reached the same conclusion in relation to s 51B. The applicant caused a child located in Victoria to be involved in the production of child abuse material by giving instructions to his mother. Once again, the offence is capable of being understood as an offence that may take place in more than one location and therefore to have extra-territorial operation, providing there is the relevant connection to Victoria. The absence of words expressly extending the territorial ambit of s 51B (as in other provisions in sub-div 8D) may again be explained by a simple failure to identify the need in an existing provision. In any event, there is no reason why the offence of involving a child in the production of child abuse material should be limited to conduct exclusively in Victoria, given that the harm that s 51B seeks to suppress may well be initiated outside the territory. It remains harm that the legislature is concerned to address.
As a result, there was no error in the trial judge failing to direct the jury that for charges 10, 11, 12 and 13, they could only be satisfied of the applicant’s guilt based on evidence of conduct he engaged in within Victoria.[60]
[60]In light of this conclusion, it is unnecessary to address the possibility raised by the respondent (see above n 20) that the convictions could be sustained in reliance on principles of complicity.
Grounds 1(c) and 2 are not made out.
SENTENCE APPEAL
As noted above, the sole proposed ground of leave to appeal against sentence concerns parity with the sentence imposed on Gillen.
Applicant’s contentions
The applicant contends that there are obvious material differences in the gravity of his offending in comparison to Gillen’s, particularly with respect to the charges of sexual penetration of a child. These compel the conclusion that the quantum of disparity in their sentences was not reasonably open to the sentencing judge, despite their differing personal circumstances.
Several arguments were advanced to support that contention. First, Gillen was sentenced in respect of four charges of sexual penetration, two of which were ‘rolled up’ and therefore encompassed more than one act of penetration. Second, incest is inherently more serious than the three sexual penetration charges faced by the applicant. Third, Gillen’s convictions were referable to both the first and second videos and her conduct in the second video was more serious than that in the first. Fourth, the mitigating factors which Gillen could call in aid did not justify the disparity in sentences.
Respondent’s contentions
The respondent submitted that when the total effective sentences of the applicant and Gillen were compared, the disparity under consideration was two and a half years with respect to the head sentence and one and a half years with respect to the non-parole period. That disparity is justified by the factors personal to Gillen.
As to relative gravity of offending between the applicant and Gillen, the respondent submitted that while it was correct that Gillen’s offending was more grave than that of the applicant, that assessment required nuance. It was submitted that while Gillen engaged in incest and was sentenced with respect to both videos, the applicant’s conduct with respect to the video product of Gillen’s physical acts was more widespread than hers. Further, the applicant’s conduct, as the step-father of IS, also involved a breach of trust. And, as the sentencing judge found, the applicant exercised some level of control over Gillen.
The respondent also submitted that the matters Gillen could call on in mitigation were entirely unavailable to the applicant. She had informed police of the existence of the videos. She had pleaded guilty. She gave an undertaking to give evidence against the applicant and then did. She was a critical witness.
Further, Gillen was 25 years of age at the time of her offending and had no prior convictions. The applicant was aged 35 years at the time of his offending and has a criminal history dating from 2001. He has served multiple gaol sentences since 2012. He has relevant convictions for sexual offending, namely indecent assault against a domestic partner, sexual intercourse with a person under 14 years and both production and possession of child pornography. The person under 14 years was a 13 year old girl who became pregnant as a result of a nine month sexual relationship with the applicant. The applicant made five videos depicting sexual intercourse between her and himself. He also had possession of still images of her and 13 other pornographic images of girls ranging in age from seven to eleven years, a boy of about eight years of age and a seven year old child whose gender could not be determined. While both Gillen and the applicant were sentenced as serious sexual offenders, Gillen was found to be unlikely to reoffend whereas the applicant was assessed as a high risk of sexual re-offending.
Legal principles on parity
This Court in Nipoe v The Queen[61] explained the principles on parity in the following terms:
[61][2020] VSCA 137 (Maxwell P, Niall and Emerton JJA) (‘Nipoe’).
Consistency in the application of the law is a fundamental aspect of the rule of law. In a very different context, but in terms that are relevant to discretions generally, Brennan J said that: ‘[i]nconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.’ The High Court has observed that:
Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’.
Appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention. However, any assessment of an argument based on parity requires this Court to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders and to recognise that:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.
The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgements required’ to arrive at the sentence imposed. It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA, with whom Brooking and Phillips JJA agreed, said in R v Djukic:
Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[62]
[62]Ibid [38]–[40] (citations omitted).
Discussion
In applying these principles to the present case, we are not persuaded that the sentences imposed upon the applicant and Gillen were so disparate as not to have been reasonably open to the sentencing judge.
Gillen’s offending was most grave. A young child with developmental difficulties was emotionally pressured and bribed to participate in multiple sexual acts with his mother, and to be filmed whilst doing so. The applicant was found to have caused the first sequence of that offending. The learned sentencing judge was correct to describe the gravity of his offending as ‘high.’[63]
[63]DPP v Case (a pseudonym) [2021] VCC 1488, [43].
The judge was also correct to describe the issue of parity as ‘exquisite.’[64] His Honour was cognizant of the differences in the circumstances of the applicant’s and Gillen’s respective offending and their respective personal circumstances. In our view, the differences are sufficient to explain the sentences imposed notwithstanding the differences in offending conduct.
[64]Ibid [54].
Gillen received a substantial sentencing discount for her undertaking to give evidence. She was critical to the case against the applicant. That is a compelling circumstance of mitigation.[65] She was found to have some remorse and fair prospects for rehabilitation. Her status as a serious sexual offender arose from the offending then under consideration. Issues of specific deterrence and protection of the community were of lesser moment in her sentence.
[65]Collins v The Queen [2015] VSCA 106, [28] (Whelan, Santamaria and Beach JJA).
The applicant was sentenced as a serious sexual offender, not as a result of the instant offending, but in light of his prior convictions. He had no remorse. His prospects for rehabilitation are poor. He poses a high risk of future sexual offending. The sentence imposed upon him reflects the need for general and specific deterrence, denunciation and punishment as well as protection of the community.
We see no error in the sentencing judge’s approach to the parity question nor in the sentence imposed on the applicant.
It follows that leave to appeal against sentence should be refused.
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