Case (a pseudonym) v The King

Case [2023] VSCA 12

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

  1. 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.

  2. The applicant pleaded guilty before the jury to three charges concerning child abuse material (charges 27, 28 and 29).

  3. 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…

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Case (a pseudonym) v The King [2023] VSCA 12
Case
[2023] VSCA 12
Decision Date

CaseChat Overview and Summary

In the case of Case (a pseudonym) v The King, the applicant was convicted of sexual penetration of a child under 12, involving a child in the production of child abuse material, and producing child abuse material. The applicant was alleged to have caused his domestic partner to engage in acts of sexual penetration with her six-year-old son and to film herself while doing so. The acts and their recording occurred in Victoria, but the applicant was in South Australia at the time. The applicant appealed against his conviction and sentence, arguing that the verdicts were unreasonable and could not be supported by the evidence, and that there was a substantial miscarriage of justice because the jury could not be satisfied that he engaged in criminal conduct in Victoria. The applicant also appealed against his sentence, arguing that the disparity between his sentence and that of his co-offender was unreasonable.

The legal issues before the court were whether the verdicts were unreasonable and could not be supported by the evidence, and whether a substantial miscarriage of justice had occurred because the jury could not be satisfied that the applicant engaged in criminal conduct in Victoria. The court also considered whether the disparity between the applicant's sentence and that of his co-offender was reasonable. The court examined the evidence and the applicable statutory provisions, including section 49A of the Crimes Act 1958, which provides for the offence of sexual penetration of a child under the age of 12. The court considered relevant case law, including Madafferi v The Queen, M v The Queen, Pell v The Queen, Dansie v The Queen, MFA v The Queen, Thompson v The Queen, McNeilly v The Queen, Lipohar v The Queen, and DPP v Sutcliffe.

The court found that the verdicts were not unreasonable and were supported by the evidence. The court held that the applicant's conduct constituted the offences charged under section 49A of the Crimes Act 1958, even though the applicant was in South Australia while the acts and their recording occurred in Victoria. The court noted that the statutory provisions and relevant case law provided for the possibility of an offender being outside Victoria while causing a child to suffer (or engage in) penetration or suffer (or engage in) sexual touching. The court also held that there was no substantial miscarriage of justice because the jury could be satisfied that the applicant engaged in criminal conduct in Victoria. The court further found that the disparity between the applicant's sentence and that of his co-offender was reasonable, and dismissed the appeal against sentence.

The court granted leave to appeal against conviction but dismissed the appeal against conviction and sentence. The applicant's appeal against conviction was dismissed because the court found that the verdicts were not unreasonable and were supported by the evidence. The court also held that there was no substantial miscarriage of justice because the jury could be satisfied that the applicant engaged in criminal conduct in Victoria. The applicant's appeal against sentence was dismissed because the court found that the disparity between his sentence and that of his co-offender was reasonable. The court's decision was based on a thorough examination of the evidence, statutory provisions, and relevant case law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.