Dean Patrick James v The Queen
[2013] VSCA 177
•4 July 2013
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 to a person facing a criminal charge to pay the closest attention to the terms of the charge.
[4][2012] VSCA 142.
The factual background
The alleged offence took place in April 2012. At that time, the applicant (‘DJ’) was aged 36. The victim (‘P’) was aged 13.[5]
[5]The use of the applicant’s initials is for ease of reference only. The use of an initial for the name of the victim is for anonymity.
The first contact between P and DJ was made through an internet ‘chat site’. As P explained in her first videotaped interview with police, she had been ‘having a few fights’ with her mother. A friend suggested that she should talk to DJ, saying, ‘He’s a really good bloke, you know, he’s decent, he doesn’t try anything and just talk[s] to you’. So P added DJ as one of her contacts on the internet site. He responded and they ‘started to get to know each other really well’.
Subsequently, P and DJ began communicating by text message, using their respective mobile telephones. On 24 March 2012, P sent DJ by text message a photograph showing her naked breasts. At around the same time, she sent him a message stating (falsely) that she had been born in 1996 and was 15 years’ old.
On 26 March 2012, DJ paid for a train ticket for P to use to travel from her home in Northern Victoria to Ballarat. The following day, P travelled via bus and train to Ballarat, wearing her school uniform. DJ met her at the train and they went back to his house.
P was reported missing by her parents. Ballarat police attended at DJ’s home. He initially pretended that P was not in his company but then showed them where she was hiding in the backyard. P was taken away and housed overnight in welfare accommodation. During the night, without having communicated with DJ, P left the accommodation and returned to his home. There was no sexual contact between them at any time.
On 28 March 2012, DJ and P were in Ballarat City Centre. DJ was arrested and interviewed. P was reunited with her family, who had travelled from their home to Ballarat to collect her.
At interview later that day, P was asked how she got ‘the idea to come down to Ballarat’. She said:
Well, me and my dad had a massive fight and … dad told me he didn’t want me at home, he didn’t care if I left, and said a few other things. And so I’d had enough and I just asked [DJ] if I could just stay with him until things blew over and then I’d go back and sort it out with dad.
P was asked what DJ had said in response to her request:
He said that it couldn’t be for long because of the consequences he can go through. I said … that was fine as I only wanted to stay probably until Friday and then I’d go home again.
The interviewer continued as follows:
Q: What did he mean by the consequences?
A: Well, he knows my age …
Q: So … what did he mean, though?
A:Like, what could happen, like, DHS has got involved but … that was all we were worried about really.
Q: So why was he worried about it?
A: Because DHS can put him in gaol.
The following further exchange took place:
Q:Now, when we were coming back in the car you, I asked you if [DJ] was your boyfriend and you said, Technically, yes.
A:Kind of, but we’re not actually in a relationship as the sense of in a relationship. We’re more really, really close friends and that’s all it’s gunna come to anyway.
Q:So were you wanting it to develop so that you, was he - - -
A:Nuh. I’ve got a boyfriend back home anyway.
Q:Yeah. Was Dean wanting it to develop?
A:Nuh. I already told him I didn’t want anything out of it and he said he didn’t either so - - -
On 17 April 2012, P again travelled to Ballarat via train and bus. She was again wearing school uniform. DJ met her at the railway station. P proposed to DJ that they should drive to South Australia. DJ then stole registration plates from a vehicle and attached them to the station wagon which he had recently acquired. He was a disqualified driver at the time, and had never held a driver’s licence.
DJ and P then drove back to his home, put together some clothing and bedding, and then travelled to Mt Gambier via Geelong and the Great Ocean Road. They camped near Mt Gambier, with DJ sleeping in the car and P sleeping in a tent which they had purchased in Mt Gambier. On 21 April 2012, they were sighted by a member of the public and were located by police a short time later. P was conveyed back to Ballarat where she was reunited with her parents.
At a second interview, on 22 April, P was asked to ‘tell … everything about how it came to be that you ran away from home’. She answered:
Well, me and my dad had a blue and there, he was accusing me of something I didn’t do and he hit me and so I organised with [DJ] that I come up the next morning.
…
I rang him and I just said, Can I come up for a couple of days just until things blow over, and yeah, he said that that was OK.
Asked to detail the conversation, P said:
We just had a normal conversation, like a friend-to-friend conversation.
Q: So can you tell me what was said?
A:Well, after that he just goes, Why, and I told him why and he goes, all right, that’s OK then, and I said that we probably can’t stay in Ballarat and I said that we could probably go to Mt Gambier ‘cause it’s in South Australia and he agreed to it and, ‘cause he’d just gotten his car. He said that he’d pick me up from the train station, we’d go fill up, go pick up his stuff and then we’d go.
…
I just kept my warning up that there was gunna be no sex and if there was, that, If you try anything then I would go to the police.
The interviewer pressed P for further detail on how the conversation had commenced. She replied:
It was just a normal conversation, Hey, how are ya, Good, yourself, Yeah, good, and then I said, I had a blue with dad, not sure what over, can I come up for a few days until things blow over, and he was extremely hesitant on it, and I said it was all right if he didn’t feel, wasn’t all right with him, and he said, Nuh, it’s all right, and yeah.
…
And then I just went around and said, I’m keeping up my warning. I said, If you try anything I will go to the police and I’m not joking, and he knew I wasn’t.
DJ was interviewed by police on 21 April 2012. He gave the following account of the events of March and April:[6]
[6]The interviewer’s questions have been edited out.
I was trying to protect the young girl from her step-father, who has been sexually assaulting her and abusing her …, over a number of years … [W]e have seeked (sic) help for her in the past and nothing has been done.
…
[A]nd this was the only way that either of us could think of trying to get her help.
…
[I]t started out two (2) … approximately two years ago… [W]e were talking … talking on the internet and … one (1) day she came out and … actually said that she had some problems and would like to talk about it. And I’ve gone, ‘Well, okay … not a problem’ and … she told me what had … what her step-father had been doing to her … I made some inquiries and … I let her know what she could do … [S]he informed me that she had tried … like few days later, she informed me that she tried to … speak to a counsellor and … and nothing was done. It was like, as … and her words, it was like they didn’t believe her, that it was going on.
The March incident
[W]e continued talking and it was a week or so later, … I got a message on the internet, … stating that she was in hospital. … [h]e had assaulted her again … and was actually put in hospital … I was informed that her brother … her older brother drove her to the hospital.
…
That’s right … yeah, she got … she got released … went back … she was put into, into … a brick wall; head first … by her step-father. … she asked if I could her … a bus ticket to Ballarat and from then she was going to go to Melbourne. … which I did. I brought her the ticket. She ended up rocking up on me doorstep.
…
She was meant to be going at … well from what she told me, she was to be going to … Melbourne the next day … but … Police came and got her that night.
[S]he rocked up on me doorstep at about ooh, six thirty (6:30) in the morning again. Actually, it might have been … it might have been about four thirty (4:30) I think. I’m not a hundred percent sure.
[S]o I put her in the back bedroom, where she had a couple hours sleep … [W]e got up later on the next day, I went to a mate’s place ‘cause he … has a bit to do with … the Aboriginal Co-Op …
[W]e’ve taken her down there, to try and get her some help. … I was arrested. And unfortunately, … she was sent back to her step-parents, where it started again.
The April incident
[O]h that was, what, a couple of weeks ago; a few weeks back.
… Tuesday gone, I got a phone call, … ‘Can you come and pick me up from the train station?’ And I’m thinking … ‘Pick you up from the train station?’ which I went, ‘Okay’ so I did. … she shown me a photo … on her … on her camera. Of her face ‘black and blue’ …bruised up … from where she’d been assaulted again. … [S]he had swelling on the back of her head. … yeah she had swelling on the back of her head … bruised ribs … she’s got marks on her back … trying … left hand side of her back … just below the shoulder blade.
[S]he begged me to get her out’a State and … hopefully she’d be able to get some help that way.
[T]hat’s when we jumped in the car and … we came over to South Australia.
Okay … alright … picked her up from the train station … drove to Sebas … I grabbed a couple of blankets, some clothes for me-self (sic) … I looked at her and I said, ‘Alright well you navigate … which way you want to go’ … [W]e drove toward Geelong … she wanted to go along the Great Ocean Road, so we turned on … onto there … well toward there and headed out. I can’t even remember where we stopped on the way but I did stop a couple of times to get something to eat for her and … to top the car up with fuel.
[W]e got into … I can’t remember what time we got into Mount Gambier but it was pretty … it would’a been approximately two … three o’clock in the morning. We went to a service station and filled up. Grabbed a cup of coffee. … [W]e went and parked the car. She slept in the back, I slept in the driver’s seat. Woke up a couple of hours later, she was hungry so we went and got MacDonald’s. And then, from there we went out … went and … she wanted to buy a tent so we got a … we went and bought a tent. And … went out to Carpenters Rocks. Stayed there for a couple of nights … where she slept in the tent. And I’ve slept in the car … last night she didn’t want to stay there so … we went for a drive, we found somewhere that was … that had a … like trees as a windbreak. Set the tent up … I put her in there … it started to rain. … [S]o I put her in the car and I jumped in the tent.
Then … woke up this morning. She wanted to keep moving so, we drove to Millicent.
Child stealing
The ground of the application for leave to appeal against conviction is that ‘the depositions failed to disclose evidence capable of supporting count 3 (child stealing) on the Indictment filed herein’.
The indictment charged DJ that ‘at Ballarat in Victoria between the 17th day of April 2012 and the 21st day of April 2012’ he ‘enticed away [P] a child under the age of 16 years, out of the possession and against the will of [her mother] … contrary to s 63(2) of the Crimes Act 1958’. The offence charged concerned P’s second visit to DJ in Ballarat.
Section 63(2) provides:
Whosoever unlawfully takes decoys or entices away any child under the age of 16 years out of the possession and against the will of the child’s parent or guardian or of any other person having the lawful care or charge of the child shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum).
The evidence available to the Crown consisted of P’s VARE interviews and DJ’s record of interview. We have set out the relevant parts of the interviews. It was common ground that the Crown was required to establish a causal link between the actions of the applicant and the removal of the child from the possession of her mother. Proof of such a link has been held to be necessary to establish the cognate offences of ‘taking’ and ‘keeping’ a child out of the custody of her parent(s).[7]
[7]R v Mackney (1903) 29 VLR 22; Stanton v The Queen (1981) 3 A Crim R 294 (‘Stanton’); Jackson v The Queen (1999) 113 A Crim R 299.
Counsel for the respondent submitted that, in the 19th century, seduction took place ‘in the parlours and lounge rooms of homes’. Now it takes place ‘on line in chat rooms and through social media’. It was contended that there was no evidence that P ‘had sought to leave the custody of her parents no matter what’. She left in order to ‘[consort] with DJ’. She had no alternative plan. The applicant did not passively accept the fact that P had left home. Rather, so it was said, he gave her the means to do so and facilitated her departure.
Counsel for the respondent further submitted that, after P left home and was on her way to meet DJ, she was still in the possession of her mother. The person who drafted the indictment appears to have been of the same opinion, for it was alleged that the offence (of enticement) was committed at Ballarat.
We do not agree that P’s mother lost possession of her child only when DJ met her at the railway station in Ballarat. A child may of course be in the possession of a parent even when not in the parent’s physical company. Thus, a child travelling to a shop or local park under the direction or with the consent of the child’s parent may be said to be in the possession of the parent.[8]
[8]Moore v Police (SA) (2008) 182 A Crim R 468.
R v Charman[9] concerned a girl who left her mother’s house in the company of the accused with the consent of her mother. After the girl left her home, the accused persuaded her to go away with him. It was held that there was evidence of a taking of the girl by the accused from the possession of the mother. Gordon J said:
In my opinion these facts, if believed by the jury, were sufficient evidence that the prisoner ‘took’ the girl, and that at the time he so took her she was in the possession of her mother. … I am of opinion that, if the girl was at the time of the taking absent from the mother’s actual physical possession merely in obedience to and in pursuance of the mother’s orders to go to Mrs Evans, and while on her way there was induced by the prisoner to depart from those orders and run away with him instead of going to Mrs Evans as she had been told by her mother to do, the prisoner was guilty of taking her out of the possession of the mother.[10]
[9](1910) 10 SR (NSW) 540.
[10]Ibid 547–8 (citation omitted).
In the present case, on the other hand, P’s mother lost both actual and notional possession of P when P departed from her home. At that point, P was acting entirely of her own volition and not pursuant to any instruction or permission from her mother.
Crucially for present purposes, it is clear that DJ played no part in the departure of P from her home.[11] The accounts respectively given to police by P and by DJ were entirely consistent on this point: P made up her own mind to leave home, on account of disputes with her stepfather. No ‘persuasion, inducement, or blandishment [was] held out to her’ by DJ.[12] Nothing done by DJ caused her to leave. In the context of this case, that conclusion is unaffected by the fact of their prior communications, including those with sexual content.
[11]See R v Jarvis (1903) 20 Cox CC 249. Cf R v Jenkins (1906) 6 SR (NSW) 38; R v Davis (1897) 13 WN 144a; R v Mejac [1954] Tas SR 26.
[12]R v Olifier (1866) 10 Cox CC 402, 404 (‘Olifier’), cited in Stanton (1981) 3 A Crim R 294, 295.
Even if, contrary to our opinion, the applicant’s actions (in taking P from the train station to his house, accommodating P in his house and driving her to Mt Gambier) constituted enticing P away from her parents, the evidence fell short of establishing that DJ acted with an intention to entice P away from her parents, that is to say, acted with the purpose of bringing about the criminal harm charged, namely, depriving P’s parents of possession of their child.
The evidence available to the Crown constituted by the interviews of P and DJ did not provide a basis to conclude that DJ intended to lure P away from her parents. At their highest, their accounts established only that DJ acceded to P’s requests, rather than extending any invitation to P. P said that she asked JD, ‘[C]an I come up for a few days until things blow over’, and described DJ as being ‘extremely hesitant’. In his record of interview, DJ said that he received a phone call from P, who said, ‘Can you come and pick me up from the train station?’ P herself arranged and paid for her travel to Ballarat.
Neither P nor DJ suggested that there was a prior invitation by DJ and it could hardly be said that, in accommodating P in March 2012, the applicant intended to influence P to return to him in April. Even though DJ may have seemed enticing to P, DJ did not entice her, that is, he made no conscious endeavour to persuade P to travel to Ballarat in April 2012.
Finally, we should point out that DJ committed no offence by failing to return P to her parents. As long ago as 1866, Bramwell B said in Olifier, in relation to the offence of unlawfully taking a child out of the possession and against the will of her parents
I am of opinion that if a young woman leaves her father’s house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parents’ custody, yet his not doing so is no infringement of this Act of Parliament, for the Act does not say he shall restore her, but only that he shall not take her away.[13]
[13]Olifier (1866) 10 Cox CC 402, 404.
In the course of submissions on the plea, however, both defence counsel and the sentencing judge appeared to proceed on the assumption that, while it was P’s decision to leave home, ‘the onus [was] very much on the adult … [t]o … do everything possible to discourage the conduct’. The plea of guilty was said to have been entered because, instead of discouraging P from leaving home, DJ had assisted her.
It would always be open to Parliament to make it an offence for an adult to assist, or harbour, a child who has run away from home. But, as we have said, that is not the offence created by s 63(2).
For the foregoing reasons, we concluded that the application for leave to appeal against conviction should be granted, the appeal allowed, the conviction sustained by the applicant below set aside. We resentenced the applicant as set out in the table below. We reduced the sentence for theft from 6 months to 2 months but otherwise reimposed the sentences imposed below.
Charge on indictment Offence Maximum Sentence Cumulation 1. Possession of Child Pornography [s 70(1)
Crimes Act 1958]5 y 2 m Nil 2. Theft [s 74(1) Crimes Act 1958] 10 y 2 m 2 m Summary Charge 5006 Drive while Disqualified [s 30(1) Road
Safety Act 1986]
240 penalty
units/2 y
4 m Base Summary Charge 5005 Fraudulently use Registration Plates [s 72(1) Road Safety Act 1986] 10 penalty
units/2 m
14 days Nil Breach of Suspended Sentence [s 31(5), (5A) (6) (b) Sentencing Act 1991] 1 m Nil Total Effective Sentence: 6 m Pre-sentence detention declared: 430 days including today 6AAA Statement: If the appellant had been convicted after trial the total effective sentence would have been 9 months. Other relevant orders: The quashing of the conviction on the child stealing charge meant that, by operation of s 464ZF(7), the forensic sample order made below, pursuant to s 464ZF(2), ceased to have effect.
As we pointed out to counsel at the time of the resentencing, the effect of the Court’s order was that the applicant must be released immediately.
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