Nda v The State of Western Australia - [2023] WASCA 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NDA -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 50
CORAM:   BUSS P
BEECH JA
HALL JA

HEARD:   24 FEBRUARY 2023
DELIVERED          :   29 MARCH 2023
FILE NO/S:   CACR 48 of 2022
BETWEEN:   NDA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   QUAIL P
File Number            :   PE XXXX of XXXX & PE XXXX of XXXX

Catchwords:

Criminal law - Appeal against conviction - Child sex offences - Procuring a child to do indecent act - Meaning of word 'procures' in s 321 of Criminal Code (WA) - Whether word has its ordinary meaning - Whether procuring requires abuse or a power imbalance between the person and the child

Legislation:

Criminal Code (WA), s 321

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T Houweling
Respondent	:	Mr L M Fox SC

Solicitors:

Appellant	:	Cornerstone Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Brand v The State of Western Australia [2011] WASCA 269
CIC Insurance v Bankstown Football Club [1997] HCA 2; (1997) 187 CLR 384
Conservation Council of WA Inc v The Hon Stephen Dawson MLC Minister for the Environment and Disability Services [2019] WASCA 102
DRH v The State of Western Australia [2021] WASCA 97
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Mammoth Investments Pty Ltd v Donaldson [2022] WASCA 144
Marris v The Queen [2003] WASCA 171
MKP Management Pty v The Shire of Kalamunda [2020] WASCA 130
Project Blue Sky Inc v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
SZATL v The Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
The State of Western Australia v Lee [2008] WASCA 150
The State of Western Australia v Lewis [2019] WASC 429
Valance v The Queen [1961] HCA 42; (1961) 108 CLR 56

JUDGMENT OF THE COURT:

Introduction

The appellant was convicted after a trial in the Children's Court of two counts of procuring a child of or over the age of 13 and under the age of 16 years to do an indecent act, contrary to s 321(5) of the Criminal Code (WA) (the Code) and one count of assault occasioning bodily harm, contrary to s 317(1) of the Code. He was acquitted of a number of other charges. He seeks leave to appeal against the convictions on the two procuring counts.
The essential issue raised on the appeal is whether the trial judge erred in his interpretation of the word 'procures' in s 321(5) of the Code. The appellant contends that the word as used in that section has a more limited meaning than the ordinary or literal meaning of 'to effect, cause or bring about'. This is said to be because the offence is intended to only apply in circumstances where there is abuse or a power imbalance between the offender and the child. Thus, the appellant submits that 'procures' in s 321(5) means 'to effect, cause or bring about as a result of abuse or a power imbalance between a person and a child'.[1] The error is said to be material because the appellant and the complainant were close in age and the relationship between them did not involve a power imbalance.
[1] Appeal ts 13.
There is no merit in the appellant's contention. The word 'procures' in s 321 has its ordinary meaning. The offence created by that section is not limited to circumstances in which there is some additional element of abuse or a power imbalance between the offender and the child. Such matters are aggravating factors in sentencing, not essential elements of the offence. Leave to appeal should be refused and the appeal dismissed.

Prosecution case

In 2021, when the relevant events occurred, the complainant was 15 years old. She and the appellant were of a similar age and attended the same suburban High School.[2]
[2] ts 7.
The prosecution case in respect of the procuring charges was that, in early April 2021, the appellant and the complainant sent messages to each other on Instagram after school hours. In one such exchange the appellant sent the complainant a photograph of his penis together with a message to the effect 'not going to lie, I'm kind of hard'.[3]
[3] ts 11.
The appellant then asked the complainant to send him a photograph. The complainant said that she did not want to. The appellant repeated the request and received the same response. The appellant then sent a message to the effect 'if you don't, I will do something to you before school'. The appellant did not say what he would do, but the complainant was sufficiently concerned about that prospect that she sent him a photograph of her naked breasts.[4]
[4] ts 11.
In response, the appellant sent another photograph of his penis to the complainant and asked her to send him another photograph. He sent a message to the effect 'you know what I will do to you'. This again worried the complainant, so she sent him a photograph of her genitals.[5]
[5] ts 11.
The prosecution case was that the appellant had procured the complainant to take and send the two photographs of her body and that, on each occasion, this constituted an indecent act.[6]
[6] ts 11.

Defence case

The defence case in respect of the procuring charges was that the complainant initiated the exchange of photos by saying that she was 'horny'. The appellant only asked the complainant for photos once and did not make any threats. In effect, the defence case was that the appellant had not procured the complainant to do anything because he had not caused her to take and send the photographs of her breasts and genitals.[7]
[7] ts 224 - 225.

Prosecution evidence

The complainant

The State relied primarily on the evidence of the complainant. She participated in a child witness interview on 29 April 2021. She gave additional evidence at the trial.[8]
[8] ts 198.
The complainant's evidence in respect of the procuring charges was that whilst she was at home one evening in April 2021 the appellant sent her a photograph of him with no shirt on. She could see his face and that he was in a bathroom. He then sent a message to the effect 'Not going to lie, I'm kind of hard'. He then sent a photograph of his penis. He asked the complainant to send a photograph back and the complainant responded by saying that she did not want to.[9]
[9] ts of the complainant's interview 33 - 34.
The complainant said that the appellant 'kept on asking', and that she 'kind of kept on saying "no… don't want to'''. She said that the appellant said 'if you don't I will do something to you before school'. He did not explain what he meant. This worried the complainant.[10]
[10] ts of the complainant's interview 34 - 35.
The complainant sent the appellant a photo of her breasts and her face. She was not wearing any clothing. The appellant then sent her another photograph of his penis. His hand was also in the photograph, and she recognised the hand as his because he had a cut on his thumb.[11]
[11] ts of the complainant's interview 35 - 36.
The complainant and the appellant continued to communicate. After a while the appellant asked her to send another photograph. She did not want to, but the appellant repeated his threat to do something to her and so she complied. The second photograph was of her vagina. Soon after this photograph was sent the communication ended and the complainant went to bed.[12]
[12] ts of the complainant's interview 36 - 38.
In cross-examination the complainant agreed that she started messaging the appellant to check on him because he was a friend at the time. She sent messages to the appellant to ask about his day. She was in her room by herself at the time. After she sent messages to the appellant, he wrote back to her. The initial conversation was about general things such as what sort of day they were each having.[13]
[13] ts 69 - 70.
The complainant said that after the appellant sent her a photo of him without his shirt on she responded 'Okay?'. The appellant then sent a message saying 'Not going to lie, I'm kind of hard'. When defence counsel put to the complainant that she had told the appellant that she was feeling horny, she disagreed. She responded to other suggestions as to the sequence of events by saying that she could not remember.[14]
[14] ts 70 - 71.
The complainant agreed that the only reason that she sent the photograph of her breasts was because she and the appellant were engaging in an exchange of photos. She agreed that after exchanging some photos she sent him a close-up photo of her vagina. When it was put to the complainant that this was more of an exchange of photographs between friends, she said that she did not know. When it was put to the complainant that the appellant did not have to make threats in order for her to send the photographs, she said that she could not remember. When it was put to the complainant that no threats were made, she said that she was not sure.[15]
[15] ts 71.

Defence evidence

The appellant

The appellant was 16 years old when he gave evidence. He attended the same High School as the complainant and said that they were friends. They would communicate with each other by telephone using Instagram.[16]
[16] ts 161.
At one time the complainant said she could not message the appellant because she did not have her mobile telephone. When he asked why, the complainant said that her mother had taken it off her as she was caught sending inappropriate photographs. Those photographs were not sent to him.[17]
[17] ts 161.
The appellant said that sometimes the complainant would ask him to send a photo and that sometimes he would ask her. He said that he was never aggressive and that if the complainant did not want to respond he did not say anything.[18]
[18] ts 161.
On or about 15 April 2021 the complainant messaged the appellant. He said that they were just talking and that it seemed normal. The complainant then said she was 'horny' and asked how he was feeling. He said 'I'm not going to lie, kind of hard'. The complainant said 'Show me' and the appellant sent a picture of his penis. The complainant then sent a photograph of her face and breasts, without any clothes on. The complainant also sent him a photograph of her vagina and a video.[19] He denied saying anything or making any threats to make the complainant provide indecent photographs.[20]
[19] ts 162.
[20] ts 162.
In cross-examination the appellant said that he was not the person who initiated the talk about being hard. When asked whether he sent the photograph of his penis to the complainant without her prompting or asking, the appellant said that the complainant 'did ask'.[21]
[21] ts 182.
The appellant agreed that he asked the complainant to send him a photograph of her breasts. He said that the complainant did not say no. When it was put to him that he repeatedly asked the complainant to send him a photograph of her naked breasts and face, the appellant said that he only asked her once. He denied threatening her.[22]
[22] ts 183.
The appellant agreed that after the complainant sent him a photograph of her naked breasts and face, he then sent her a second photograph of his penis with his hand at the base of his penis.[23]
[23] ts 183.
When it was put to the appellant that he asked the complainant repeatedly for a photograph of her vagina, the appellant said he did not. He said that he asked her for a photograph of her vagina once. He accepted that she then sent him the photograph.[24]
[24] ts 183

Trial judge's reasons

The trial judge commenced his remarks by setting out the charges and the prosecution case in respect of each of them. As regards the procuring charges, his Honour said:[25]
The final elements that I must direct myself in relation to are on the charges of procuring a child to engage in sexual behaviour. There are two elements. The first element the State must prove is that [the appellant] procured [the complainant] to engage in an indecent act. Those words specifically in the context of this trial, the focus of the trial not so much on the indecent act - photographing of the vagina - but on the meaning of the word 'procure'.
Procure carries its ordinary English meaning. It's simply means to try to bring about or cause to be done. The second element of those charges is that the complainant was a child of or over the age of 13 years and under the age of 16 years.
[25] ts 261.
The trial judge then turned to consideration of the evidence. He said that the complainant was an intelligent and confident witness, apart from a brief period in cross‑examination. He said that the complainant was open and cooperative and answered questions immediately. The complainant provided a detailed narrative and displayed an impressive memory.[26]
[26] ts 267 - 268.
The trial judge said that the only time the complainant was shaken in cross‑examination was when she made a number of concessions regarding her lack of memory, effectively withdrawing what she had said in a child witness interview about the appellant having threatened her to send the photographs. However, his Honour noted that the complainant was otherwise a credible and convincing witness. He rejected any suggestion that the complainant had a motive to lie, had been coached by her mother or been told what to say.[27]
[27] ts 268.
As regards the appellant's evidence, the trial judge noted that the appellant had admitted that he asked the complainant to send him, once on each occasion, the photographs which were the subject of the charges.[28]
[28] ts 268.
The trial judge made the following factual findings regarding the procuring charges:[29]
1.On the evening of 15 April 2021 the complainant was at home in her bedroom when she sent a message to the appellant to see how he was.
2.There was a general discussion between the complainant and the appellant. The conversation became flirtatious and the complainant, at some point, asked the appellant if he was horny. His Honour accepted the complainant's evidence that she did not say that she was horny.
3.In response the appellant said 'I'm not going to lie, I'm kind of hard' or words to that effect. The complainant said words to the effect of 'Show me' and the appellant then sent her two pictures of his genitals.
4.The appellant then asked the complainant for a photograph of her breasts. His Honour was satisfied that the appellant asked the complainant to do that at least once.
5.In response to that request the complainant took a photograph of her breasts and sent it to the appellant. This was the relevant indecent act for the first procuring count.
6.The appellant then asked the complainant for a photograph of her vagina, and she again obliged. This was the relevant indecent act for the second procuring count.
[29] ts 268 - 269.
Having made the above factual findings, the trial judge said:[30]
It follows that notwithstanding that [the appellant] asked for the photos after [the complainant] had asked him for a photo when she said 'Show me', in asking her, [the appellant] procured [the complainant], a child, to do an indecent act. Asking even once brought about [the complainant] taking the photograph and sending it to him. It caused her do so. She would not have taken and sent those photos unless [the appellant] had asked. I am satisfied beyond reasonable doubt those photographs, the taking of them, were indecent acts, and they were clearly sexual. It follows that I am satisfied beyond reasonable doubt that [the appellant] is guilty of [the relevant] charges.
[30] ts 269.

Grounds of Appeal

The appellant advances three grounds of appeal. They are as follows:[31]
1.The learned sentencing judge erred in law by adopting an interpretation of the word 'procure' for the purpose of section 321(5) of the Criminal Code Compilation Act 1913 (WA) that was inconsistent with the intent of the provision.
2.The learned sentencing judge erred in law by making a finding of guilt with respect to two counts of a section 321(5) offence which was not open on the evidence given the circumstances of offending and reciprocal conduct as between children under the age of consent engaging in an exchange of photographs.
3.In the alternative, it was a miscarriage of justice to make a finding of guilty with respect to the Appellant in relation to section 321(5).
[31] WAB 6.
In oral submissions, counsel for the appellant accepted that ground 1 rested upon a contention that the word 'procures' in s 321(5) is to be read as meaning 'a person who effects, causes or brings about as a result of abuse or a power imbalance between the person and the child'. He accepted that if that contention was wrong then ground 1 must fail.[32]
[32] Appeal ts 13 - 14.
Indeed, counsel said that the 'whole appeal rests on that point'. Counsel accepted that grounds 2 and 3 relied upon the same issue and that, unless that issue was decided favourably to the appellant, those other grounds fell away and there was no need to deal with them separately.[33]
[33] Appeal ts 13 - 15.

Appellant's submissions

The appellant submits that the purpose of s 321 is to target sexual activity in relation to children that involves some element of abuse. It is contended that the primary concern of the provision is the protection of children from sexually motivated adults.[34]
[34] WAB 11.
The appellant submits that the learned trial judge 'failed to properly consider the word procure in its proper context'. Whilst accepting that the dictionary meaning of 'procure', is, relevantly, 'to effect, cause or bring about', the appellant submits that the meaning of the word is modified by the context. It is contended that the context of s 321(5) requires that procuring incorporates an element of abuse or the existence of a power imbalance between the person and the child.[35]
[35] WAB 11 - 12.
The appellant submits that, in the present case, the appellant and the complainant were of a similar age and their relationship involved no element of abuse or imbalance of power. The appellant's conduct in 'mere asking' is inconsistent with the legislative aims of s 321 and did not constitute procuring under that section.[36]
[36] WAB 12.

Relevant legal principles

The rules of statutory interpretation as they apply to the Code are well known. The Code is intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do any more than re‑state the existing law.[37] It may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language that previously acquired a technical meaning, but the first duty of an interpreter is to look at the current text.[38]
[37] Brennan v The Queen[1936] HCA 24, (1936) 55 CLR 253, 263; Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 236.
[38] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437; Valance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 74 ‑ 75; Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, 30 ‑ 31.
The starting point for asserting the meaning of a statutory provision is the text of the statute whilst, at the same time, having regard to its context and purpose.[39] Context should be considered at the first stage and should be regarded in its widest sense.[40] This is not to deny the importance of the natural and ordinary meaning of words. However, context and purpose may reveal that some other meaning is suggested. If the ordinary meaning is not consistent with the statutory purpose it must be rejected.[41]
[39] Project Blue Sky Inc v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] ‑ [71]; SZATL v The Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14], [35] ‑ [37].
[40] CIC Insurance v Bankstown Football Club [1997] HCA 2; (1997) 187 CLR 384, 408.
[41] SZTAL [14].

Whilst the meaning of the word 'procures' in s 321 has not been previously considered by this court, that word also appears in s 7(d) of the Code. In that context the meaning of the term was considered in MKP Management Pty v The Shire of Kalamunda:[42]
The term 'procure' in s 7(d) (and cognate forms of that term in that provision) connotes 'to produce by endeavour'. A person procures something 'by setting out to see that it happens and taking the appropriate steps to produce that happening'. A person cannot procure another person to commit an offence unless 'there is a causal link between what [the person does] and the commission [by the other person] of the offence'. See Attorney-General's Reference No 1 of 1975. See also R v Broadfoot; R v Castiglione; R v Menniti; R v F; Ex Parte Attorney-General (Qld).
In R v Adams; Ex Parte Attorney-General (Qld), Fitzgerald P stated that, in the context of the Queensland equivalent of s 7(d) of the Code, 'procure' means more than 'mere encouragement' to commit an offence. Procurement requires successful persuasion to do something. A person will not procure another person to commit an offence merely by attempting to induce. The person must have induced the other person actually to have committed the offence. See also Hawke [58] ‑ [59] (Philippides JA).
Although s 7(d) does not expressly state a mental element for counselling or procuring, it has been held that it is implicit in the provision that a person will not be criminally responsible under s 7(d) unless the person knew all of the essential facts that constitute the offence committed by 'the principal' and the person intentionally counselled or procured the commission by 'the principal' of that offence. See R v Beck; R v Jervis; Ward v The Queen; Hawke [39] (Fraser JA), [61] (Philippides JA). (footnotes omitted)
[42] MKP Management Pty v The Shire of Kalamunda [2020] WASCA 130 [94] ‑ [96].
Ordinarily at least, the starting point is that a given word or phrase is to be taken to have the same meaning within a particular provision, or in different provisions of an Act. That presumption is displaced if there is a positive reason, to be found in the text, context of object of the provision or the Act as a whole, for doing so.[43]
[43] Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618 (Mason J); Conservation Council of WA Inc v The Hon Stephen Dawson MLC Minister for the Environment and Disability Services [2019] WASCA 102 [156]; Mammoth Investments Pty Ltd v Donaldson [2022] WASCA 144 [49].

Merits of the appeal

The word 'procures' is an ordinary English word. The dictionary meanings include 'to effect, cause, bring about'[44] and 'bring about, especially by care or with effort; cause to be done'.[45] Those meanings are essentially identical to the meaning ascribed to the word as used in s 7(d) of the Code in MKP Management, that is 'to produce by endeavour'.
[44] Macquarie Dictionary.
[45] Shorter Oxford English Dictionary (6th ed, 2007).
The natural and ordinary meaning of the word 'procures' does not incorporate any requirement that the relationship between the person doing the procuring and the person procured be abusive or be characterised by a power imbalance. A person may 'effect, cause or bring about' an action or event without abuse or reliance on an imbalance of power. Those factors may be present in some cases of procuring, but they are not an essential component of it in the ordinary meaning of the word.
Thus nothing in the text of s 321(5) provides any support for the appellant's construction.
The same is true of s 321 as a whole.
Section 321 of the Code relevantly provides as follows:
Child of or over 13 and under 16, sexual offences against
(1)In this section, child means a child of or over the age of 13 years and under the age of 16 years.
(2)A person who sexually penetrates a child is guilty of a crime and is liable to the punishment in subsection (7).
(3)A person who procures, incites, or encourages a child to engage in sexual behaviour is guilty of a crime and is liable to the punishment in subsection (7).
(4)A person who indecently deals with a child is guilty of a crime and is liable to the punishment in subsection (8).
(5)A person who procures, incites, or encourages a child to do an indecent act is guilty of a crime and is liable to the punishment in subsection (8).
(6)A person who indecently records a child is guilty of a crime and is liable to the punishment in subsection (8).
(7)A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for -
(a)14 years; or
(b)where the child is under the care, supervision, or authority of the offender, 20 years; or
(c)where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 7 years.
(8)A person who is guilty of a crime under subsection (4), (5) or (6) is liable to imprisonment for
(a)7 years; or
(b)where the child is under the care, supervision, or authority of the offender, 10 years; or
(c)where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 4 years.
(9)Subject to subsection (9a) it is a defence to a charge under this section to prove the accused person -
(a)believed on reasonable grounds that the child was of or over the age of 16 years; and
(b)was not more than 3 years older than the child.
(9a)Where the child is under the care, supervision, or authority of the accused person it is immaterial that the accused person
(a)believed on reasonable grounds that the child was of or over the age of 16 years; and
(b)was not more than 3 years older than the child.
[(10) ‑ (13) deleted]
(14)If an offence under this section is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in whichever of subsection (7) or (8) applies to the offence.
(15)If an offence under this section is committed by a juvenile offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender -
(a)must, notwithstanding the Young Offenders Act 1994 section 46(5a), impose either -
(i)a term of imprisonment of at least 3 years; or
(ii)a term of detention under the Young Offenders Act 1994 of at least 3 years,
as the court thinks fit; and
(b)must not suspend any term of imprisonment imposed; and
(c)must record a conviction against the offender.
(16)Subsection (15) does not prevent a court from making a direction under the Young Offenders Act 1994 section 118(4).
The word 'procures' appears in both s 321(3) and s 321(5). Both of those sub-sections create an offence and use the word in the same way, together with the words 'incites' and 'encourages'. The words 'procures', 'incites' and 'encourages' do not have the same meaning. In particular, a person may encourage another to do something without the necessity for that thing to have occurred. In the case of procuring, a person charged under s 321(5) must do something with the intention of causing a child to do an indecent act, that indecent act must have occurred and there must be a causal connection between the conduct of the person charged and the occurrence of the indecent act.
There is nothing in the terms of s 321 that suggest that an additional element of abuse or a power imbalance between the person and the child is required for a procuring offence under s 321(5). To the contrary, the offence can be committed by any 'person' and that term is not qualified or limited. In particular, it is not either expressly or impliedly limited to adults. There are a number of features of s 321 that make it plain that the offences contained within it can be committed by juveniles:
1.The penalty provisions in s 321(7) and s 321(8) provide for a reduced maximum penalty where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender. This different maximum penalty as between juvenile and adult offenders is not found in offences concerning children under the age of 13 years and is not found in offences where an absence of consent is an element.
2.The defence under s 321(9) can only apply where the accused is not more than 3 years older than the child. A 'child' for the purposes of s 321 is defined as being a child of or over the age of 13 years and under the age of 16 years. The clear purpose of this defence is to exclude from criminal liability persons who are relatively close in age to the child and who have a reasonable belief that the child was over the age of 16 years. The defence could potentially be available to persons between the ages of 16 and 19. That defence is thus confined to juvenile offenders under the age of 18 years and very young adults who have not reached their nineteenth birthday at the time the offence was committed. On a plain reading this provision is directed to juvenile accused.
3.Sub-section 321(9a) provides for an exception to the defence which is contained in s 321(9). The effect of s 321(9a) is that the defence is not available where the child is under the care, supervision or authority of the accused. On a plain reading of this provision it is capable of applying to juvenile accused. A juvenile accused who has a child under his or her care, supervision or authority cannot raise as a defence that they had a reasonable belief that the child was over the age of 16 years, even if they are 3 years or less older than the child.
4.Sub-sections 321(14) and s 321(15) provide for a different penalty regime for offences under s 321 where the offence is committed in the course of an aggravated home burglary. Sub‑section 321(14) expressly only applies to adult offenders. Sub‑section 321(15) expressly only applies to juvenile offenders. Subsection 321(15) provides, in effect, for the imposition of minimum penalties for sexual offences under s 321 (including s 321(5)) committed by juveniles in the course of an aggravated home burglary.
5.Sub-section 321(16) provides an exception to s 321(15). The effect is to permit a court dealing with a juvenile offender under s 321(15) to make a direction under s 118(4) of the Young Offenders Act 1994 (WA), namely a direction that an offender over the age of 16 and under 18 years is to serve the sentence of imprisonment in an adult prison.
It is apparent from the context of s 321 as a whole that Parliament has seen fit to criminalise consensual sexual behaviour where one or both of the participants are between 13 and 16 years of age. Parliament has also seen fit to provide for a reduction in the maximum penalty where the offender is also a young person (and does not have care, supervision or authority for the child).
It is also instructive to compare s 321 with s 320. The essential difference between the sections is that s 320 deals with offences involving children under the age of 13 years, whereas s 321 deals with offences involving children over the age of 13 years and under the age of 16 years. The equivalent procuring offences in s 320 are s 320(3) and s 320(5). The maximum penalties for those offences are higher and do not provide for a reduced maximum for offenders under the age of 18 years. This reinforces the conclusion that s 321 is intended to encompass, and the reduced maximum penalties for juvenile offenders in s 321(3) and s 321(5) are intended to make allowance for, consensual teenage sexual activity.
The wider statutory context firmly suggests that the word 'procures' in s 321 should be construed in the same manner as it is construed in s 7. In both provisions, the word is used as the criterion for attributing to one party criminal liability arising from conduct that is physically engaged in by another. This identity in the purpose of the term 'procures' in each provision reinforces the presumption that the same meaning should be attributed to the term in the two provisions.
The statutory context referred to at [44] to [51] together with the statutory text itself all point firmly against the appellant's construction and in favour of attributing to the word 'procures' its ordinary meaning.
The appellant suggests that the history of s 321 indicates that Parliament was concerned with the disparity in power between a child and an adult and that the meaning of 'procures' has to be determined having regard to that purpose. The implication of this submission is that the purpose was only to criminalise conduct by an adult offender. Such a purpose is not reflected in the terms of the section which, for the reasons given at [48], plainly makes provision for juvenile offenders.
As regards the history of s 321 the appellant relies on comments made by Wheeler J in Marris v The Queen.[46] That was a case involving an appeal against sentence for offences under s 321. In referring to the facts of the case Wheeler J noted that there was no lengthy attempt at persuasion, no pressure or blackmail and no force of any kind used by the appellant. The issue in the case was to what extent the presence or absence of such factors was relevant in sentencing. It was in that context that Wheeler J said:[47]
The history of s 321 demonstrates the understanding of the Legislature that the reason that absence of consent should not be an element of offences of this kind is that a child is not in a position to assess fully the meaning and consequences of sexual activity. It is clear that Parliament understood that both for that reason, and because of the disparity in power (physical, social, emotional and so on) which exists between a child and an adult, the concept of a child's 'consenting' to sexual intercourse with an adult should not find a place in the legislation.
However, it was also clearly appreciated that the consent or otherwise of the child and the degree of pressure or persuasion on the part of the adult would both be of relevance to sentencing.  For example, on 13 May 1992 (Hansard, page 2191) the Hon Derek Tomlinson referred to the report of the Child Sexual Abuse Task Force, which was one of a number of documents which had contributed to the introduction of a number of amendments to the Criminal Code then before the Parliament which dealt with issues of sexual assault.  Paragraph 6.26 of that report recognised the vulnerability of children to various types of pressure, which might result in an apparent, but ill informed, 'consent'.  It read:
'The common law provides that no one may deliberately touch the person of another unless that person consents to it.  There is, however, a substantial difference between consent - the communication by one intelligent mind to another of a voluntary choice to agree to a request or proposal made by the other - and mere submission or acquiescence.  Moral, social, emotional or other pressure can be applied in such a way that the person's will is overwhelmed.
It is not possible for a person to give consent to the request of another unless they are placed in full command of the facts.'
More succinctly perhaps, the Hon J M Berinson, the then Attorney‑General, in responding to a number of comments by members of the Legislative Council on the legislation in question, said that ' ... the clear intention and target is not sexual activity as such, but sexual activity involving some element of abuse'.  That, it seems to me, is a concept of considerable importance in relation to sentencing.  The greater the element of abuse, as evidenced by matters such as disparity in age, or the use of force, or other types of pressure, or by corruption of a child, the greater the culpability.
[46] Marris v The Queen [2003] WASCA 171.
[47] Marris [12] - [13].
There can be no doubt that where there is a misuse of power or some element of abuse, that will be an aggravating factor in sentencing. It does not follow that where those factors are absent no offence under s 321 will occur. Indeed, the case of Marris illustrates this, as it was a case, albeit involving an adult offender, in which there was no allegation of abuse, force or use of pressure. Properly understood, Marris and the sources referred to in it, do not support the appellant's argument that s 321 is restricted in its scope to adult sexual predators. Indeed, it has been noted in many cases that the purpose of provisions such as s 321 is the protection of children, first from those who seek to prey or otherwise exploit their vulnerability and second from themselves regardless of their maturity and sexual experience.[48]
[48] The State of Western Australia v Lee [2008] WASCA 150 [11]; Brand v The State of Western Australia [2011] WASCA 269 [43].
The appellant has referred to two cases where there was an age disparity between the child and the offender in an apparent attempt to show that such a disparity is a necessary component of an offence under s 321. The two cases referred to were DRH v The State of Western Australia[49] and The State of Western Australia v Lewis.[50] DRH was an appeal against conviction and sentence in which the primary issues were whether the verdicts of the jury were inconsistent and whether the sentence imposed was manifestly excessive. There was no suggestion in that case that absent an age disparity no offence would have been committed. Lewis is the decision of a judge on a preliminary hearing for a supervision order under the Dangerous Sexual Offenders Act 2006 (WA). The fact that two, apparently randomly selected, cases involving offences under s 321(5) related to offenders who were significantly older than the child victims provides no support whatsoever for the appellant's contentions.
[49] DRH v The State of Western Australia [2021] WASCA 97.
[50] The State of Western Australia v Lewis [2019] WASC 429.
Having regard to the plain meaning of the words in s 321, the context of those words and the purpose of the section, the appellant's contentions cannot be accepted. The word 'procures' has its ordinary meaning and there is no requirement for an additional element of abuse or an imbalance of power. Insofar as such circumstances may exist, they are relevant to sentencing.
In the present case the trial judge's interpretation of the word 'procures' as meaning to 'try to bring about or cause to be done' was only questionable to the extent that he used the word 'try'. As explained earlier, procuring requires that the action or event has occurred. But no complaint is made in this regard; the grounds are confined to the contention that procuring requires an element of abuse or disparity of power. In any event, the phrase 'bring about or cause to be done' accords with the proper meaning of the word and it is likely that the word 'try' was a mere linguistic slip. This is borne out by the fact that when the trial judge came to apply the law to the facts of the case he found that the appellant had asked the complainant to provide each of the photographs and that that had caused her to take and send them. There was no error in concluding that this met the legal requirements of procuring an indecent act.
The fact that the appellant was of a similar age to the complainant and that the trial judge was not satisfied that there had been threats, were matters relevant to sentencing. Those factors are reflected in the outcome, in that no conviction was recorded and the appellant was sentenced to an undertaking pursuant to s 67 of the Young Offenders Act 1994 (WA).
No error on the part of the trial judge has been established. Leave to appeal in respect of ground 1 should be refused. Given the concession made by the appellant's counsel at the hearing of the appeal, grounds 2 and 3 fall away.

Conclusion

Leave to appeal should be refused and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AZ
Associate to the Honourable Justice Hall
29 MARCH 2023