Dean Patrick James v The Queen - [2013] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0029

DEAN PATRICK JAMES	Applicant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and BUCHANAN JA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 June 2013
DATE OF ORDERS	24 June 2013
DATE OF JUDGMENT	4 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 177
JUDGMENT APPEALED FROM	DPP v James (Unreported, County Court of Victoria, Judge Maidment, 4 February 2013)

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CRIMINAL LAW – Appeal – Conviction – Child stealing – Whether applicant ‘enticed’ victim out of possession of mother – Victim left home of own accord – Applicant harboured and assisted victim after she had left home – Evidence could not support conviction – Appeal allowed – Conviction quashed – Resentenced on remaining counts – Crimes Act 1958 (Vic) s 63(2).

WORDS AND PHRASES – ‘Entice’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Danos	Jeremy Harper
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA:

Summary

This appeal concerns the offence of child stealing under s 63(2) of the Crimes Act 1958 (Vic). The applicant pleaded guilty to a charge of having ‘enticed away … a child under the age of 16 years, out of the possession and against the will of [her mother]’. He was sentenced to 20 months’ imprisonment.[1]
[1]The applicant pleaded guilty to five other offences, and a total effective sentence of 28 months was imposed, with a non-parole period of 18 months.

On the hearing of an application for leave to appeal against sentence, the Court raised with counsel whether on the admitted facts the applicant could have been guilty of ‘enticement’. After initial oral argument, the applicant was given leave to file out of time an application for leave to appeal against conviction, and directions were made for the filing by both parties of further written submissions on this issue.

After considering those submissions, we concluded that on the evidence before the judge the applicant could not have been convicted of the offence charged. On 24 June 2013, we made orders that the conviction appeal be allowed, and the conviction quashed.[2] The applicant was resentenced on the remaining charges.[3]
[2]Because of the urgency of the matter, Maxwell P made a determination under s 11(1A) of the Supreme Court Act 1986 (Vic) that the Court be constituted by two judges.
[3]See [36] below.

As will appear, this offence requires conduct on the part of the alleged offender which can properly be said to constitute intentional ‘enticement’ of the child out of the possession of her parent or guardian. The evidence in the present case established no such conduct on the applicant’s part. The child in question left home of her own accord. At most, what the applicant did was to harbour her, and assist her, after she had left the custody of her mother.

As in Eade v The Queen,[4] the quashing of this conviction underlines how important it is for anyone giving advice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dean Patrick James v The Queen

Details

AGLC: James v The Queen [2013] VSCA 177
Case: [2013] VSCA 177
Decision Date: 4 July 2013

CaseChat Overview and Summary

The matter of Dean Patrick James v The Queen involved an appeal against the applicant's conviction for child stealing. The applicant was found guilty under section 63(2) of the Crimes Act 1958 (Vic) for enticing a child out of the possession of her lawful guardian and then harbouring and assisting the child after she had left home of her own accord. The applicant sought to overturn this conviction on the basis that the evidence did not support the necessary elements of the offence.

The court was required to determine whether the applicant enticed the victim out of her mother's possession, as required by the statutory definition. The court also needed to examine whether the evidence supported the applicant's guilt on the charge of harbouring and assisting the child, given that the child had left home voluntarily. The interpretation of the word "enticed" and its application to the facts of the case were central to the legal issues.

The court found that the evidence did not support the applicant enticing the victim out of her mother's possession. The court held that the child left home of her own accord, thus negating the necessary element of enticement. Additionally, the court concluded that the evidence did not support the applicant harbouring and assisting the child after she had left home voluntarily. Consequently, the court allowed the appeal, quashed the conviction, and ordered a resentencing on the remaining counts.

Orders