R v Cemitis, Andrew [No 1]

[2010] NSWDC 158

CITATION:	R v Cemitis, Andrew [No 1] [2010] NSWDC 158
HEARING DATE(S):	17/12/2009 and 12/02/2010
JUDGMENT DATE:	8 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application to vacate or withdraw pleas of Guilty refused.
CATCHWORDS:	Criminal Law - Interlocutory application - application to vacate pleas of guilt (x3) - pleas relate to charges alleging child pornography - filming and possession - claimed recent appellate court case not considered prior to giving advice - claimed pleas of guilty therefore uninformed - material constituting the alleged child pornography depicted images where subjects qualified as children - the circumstances of their depiction could cause offence to reasonable persons - the images of children portrayed them in sexual context - advice to appellant based upon proper criteria - client was properly informed by advice given - appellant's pleas were informed pleas - no real opportunity for acquital lost.
LEGISLATION CITED:	Crimes Act 1900 Poisons Act 1966
CASES CITED:	DPP v Annetts (2009) NSWCCA 86
PARTIES:	Regina Andrew Lamons Cemitis
FILE NUMBER(S):	2008/11994
COUNSEL:	Defence: S Orman-Hales and G Jauncey
SOLICITORS:	Crown: Mr C Bailey

JUDGMENT

Application to vacate pleas of guilty earlier entered

1. This is an application by Andrew Lamons Cemitis to vacate a plea earlier entered. In his introductory remarks to his submission the Crown set out, it seems to me very satisfactorily, if I may say so, what the matter was all about and I take from his submissions the following.

The Course of Proceedings

2. The applicant, represented by counsel, was arraigned at Moree District Court on 10 March 2009 on an indictment containing five counts. The applicant entered pleas of guilty to two counts of production of child pornography (s 91H Crimes Act 1900), one count of possession of child pornography (s 91H), and one count of using an offensive weapon to hinder apprehension (s 33B). The prosecution accepted those pleas in full satisfaction of the indictment. No convictions were recorded and the case was adjourned for sentence.

3. On 10 March 2009 the prosecution case on sentence commenced. Agreed facts were tendered together with particulars of the applicant’s criminal history.

4. The prosecution case on sentence was continued on 29 May 2009 when further details of the applicant’s criminal history were tendered by the prosecution. The applicant gave evidence in the sentencing proceedings. The case was adjourned once more.

5. On 6 November 2009 the applicant indicated to the court that it was intended to make an application for leave to withdraw the pleas of guilty.

6. On 2 December 2009 the applicant filed a notice of motion seeking such leave.

The Nature of the Application

7. Broadly put the applicant seeks that leave should be granted following the delivery of reasons for judgment on 31 March 2009 by the Court of Criminal Appeal in the case of DPP v Annetts (2009) NSWCCA 86.

8. It is asserted that the applicant should be granted leave to withdraw his pleas of guilty (to production of child pornography) as the statute was revealed by the reasons of the Court in Annetts to make nugatory any question touching upon the state of mind of the accused at the time that the material that is asserted to be child pornography was produced. The Court explained in Annetts the significance of the phrase “sexual context” as it appears in s 91H(1).

The Crown’s First Argument

9. The application is opposed says the Crown, “firstly it is of fundamental significance that the plea was entered three weeks before the judgment was delivered in Annetts. In R v Unger [1977] 2 NSWLR 990 the Court of Criminal Appeal considered the application for leave to extend the time in which an appeal might be lodged against a conviction by the District Court for selling Indian hemp, an offence against the Poisons Act 1966. After the applicant’s conviction the District Court, in an unrelated case, delivered a judgment that found a regulation to the statute that described the relevant amount of drug was ultra vires. Unger sought an extension of time in which to challenge his conviction on the basis of a later judgment.

10. In considering the exercise of a discretion to allow an extension of time Street CJ with whom Justices Begg and Ash JJ concurred said (at p 995):

“The court has an ultimate discretion in the matter but it is a discretion to be exercised by regard not only to all of the facts and circumstances of the particular application but also to what the Court of Criminal Appeal said in R v Ramsden [1972] Cr.L.Rev.547 where it described an alarming consequence flowing from a general policy of permitting the re-opening of cases in consequence of the subsequent exposure of a misconception as to the prior state of the law.

There is no difference in principle between a subsequent judicial decision which has the effect of exposing a prior misconception in relation to a principle of law which was wrongly regarded as well-founded at that time of the trial and a subsequent judicial decision exposing the invalidity of regulations that were wrongly treated as valid at the time of the trial.”

11. If there is a real opportunity for acquittal I would, in exercising my discretion, be loath to exercise that discretion against an accused by denying to him or her the opportunity to seek an acquittal. The Crown’s first argument fails. The defence position is that it would lose a real opportunity for acquittal and hence the plea was uninformed. The defence rely upon the decision in Annetts and what it contends flows from that decision. It relies upon the affidavit of Mr Jauncey, who was counsel first having carriage of this matter. He states in his affidavit:

“3. On or about 1 February 2009 the applicant was to face trial at Moree Sittings of the District Court in respect of a number of charges, including two counts of child pornography and one of possess child pornography.

4. I had not had an opportunity to view the material the subject of the charge prior to the trial but I had two conferences with the applicant concerning the charges.

5. The applicant always maintained that he had taken certain video images of young girls that were the subject of the charge but was relying upon my advice as to whether his acts constituted a criminal charge.

6. The charges were laid under s 93H of the Crimes Act 1900 and the basis [of] the charge [s] was that the images depicted the children in a sexual [context] 3 April 2009.

7. The images were taken by the applicant standing outside the bedroom/bathroom windows of the children and filming them without their knowledge.

8. In viewing the images I was of the view that they were very low on the COPINE Scale. I was satisfied that the images themselves, the subject of possess child pornography, were sufficient...for a jury to be satisfied that they were child pornography.

9. I researched s 93H of the Crimes Act 1900 but was unable to find any assistance from my researches. I discussed the matter with a number of colleagues and came to the conclusion that the manner in which the images were filmed surreptitiously, through the window without the knowledge of the young girls, would be sufficient to show that the images were in a sexual context when combined with the actual images.

(i) After confirming that the images would not be classified by the Film and Classification Board I advised the client to plead guilty to all three charges.

5. (sic) On or about 7 November 2009 I became aware of the matter Director of Public Prosecutions v Richard Annetts delivered by the Court of Criminal Appeal on 31 March 2009. I was obviously not aware of Annetts at the time I advised the applicant.

6. The decision indicates “that although the motivation of the photographer and the method used to film the victims was not relevant all of the content of the images, including that all the images concentrated on their genitalia.”

7. The decision continues, “Relevant to the question of whether or not the material depicts a person in a sexual context”.

8. I took the opportunity to view the images again in the presence of the Crown Prosecutor and the informant Senior Constable Andrew MacLean.

9. I was only able to view on [one] DVD containing one set of images (the other would not work on the court recorder). However, upon the consideration of the content of the video, including a video containing a sequence of images of the breasts, buttocks and genitals, I cannot be certain the video depicts the victims in a sexual context.

10. In the light of Annetts’ decision I believe my advice to the applicant may in fact be incorrect.”

12. The numbering used in this judgment was the numbering used by Mr Jauncey. It is repetitive from number 5. There are also some words apparently missed out in some of the sentences in Mr Jauncey’s affidavit.

13. In coming to his view to advise the accused in respect of his plea it would appear Mr Jauncey took the following matters into account:

• The images when viewed objectively were low on the COPINE Scale.
• The fact that the images were filmed surreptitiously through a window without the knowledge of the young girls.
• The images would not be classified by the Film and Classifications Board as having any artistic merit.
• In coming to that view he relied on Annetts’ case.

14. In Annetts’ case the Court of Criminal Appeal was dealing with an aspect of the definition of child pornography, namely that child pornography means material that depicts or describes a person under or apparently under the age of sixteen years in a sexual context in a manner that would, in all the circumstances, cause offence to reasonable persons. What can be taken from Annett’s are the following propositions:

• Whether the material qualifies as pornography is to be determined by applying an objective test.
• The reasons that motivated the creator of the images are not relevant consideration.
• It is the context of the images themselves that determine whether they are depicting under sixteen year olds in a sexual context.
• The display or focus upon the genitalia and semble objects of sexual interest such as breasts, anus and buttocks are relevant to the question of whether or not the images depicted of under sixteen year olds are in a sexual context.
• Images depicting persons in a sexual context may be informed by the number of images, the gestures of those photographed, the portions of the bodies depicted.
• Other context may be excluded or ruled out before making a finding that the images are in a sexual context, e.g. ruling out medical or artistic purposes.
• The circumstances in which the under sixteen year olds were placed when the images were taken, if that is apparent from the images, may be relevant to determine whether or not the material depicts a person in a sexual context, e.g. if all of a series of images were taken in a shower or in a change room.

15. Defence sides racing to embrace Annetts’ case should note it carefully. The finding of the first instance judge was that the Crown could not prove beyond reasonable doubt the first essential ingredient of the offence. The Court of Criminal Appeal held his Honour, in reaching that position, was only partly correct and remitted the matter to be determined by the first instance court in accordance with the Court of Criminal Appeal reasons.

16. In assessing whether the pleas entered before me were informed or not I have viewed for a second time much of the material the Crown relies upon as establishing child pornography. The images relied upon by the Crown are contained in exhibit B. It comprises four DVDs of video footage taken by the appellant. Video 4 was not viewed because it would not open in response to computer commands. It therefore plays no part in my assessment and if it cannot be opened otherwise should play no part in any further proceedings. Almost all of the video footage is best described as a “peeping Tom trophy cabinet”. The overwhelming focus of the material is on teenage girls dressing or undressing, putting on or taking off pyjamas, changing for a shower, entering a shower, showering, exiting a shower, drying themselves with a towel. The material is replete with views of naked buttocks being dried, shiny, wet, naked buttocks emerging from the shower, pubescent breasts being dried, being put into or taken out of teenage bras, teenage girls in one-piece bathing suits on the sand, in the water, with the costume gathered within the crack between their buttock cheeks.

17. It is fair to say not all images are of teenage girls. One is of a mature woman drying herself after a shower. Nonetheless, it is relevant to context. Several are rear views only of naked buttocks in circumstances where it would be impossible to be satisfied beyond reasonable doubt the subject female was under sixteen. That is not to say they were not teenage girls, indeed they did appear to me to be young women. Again, those photographs, while not going to the offence itself, are relevant to context.

18. My understanding is that Mr Jauncey has viewed this material when he gave his advice. I accept that not all material in the DVD’s reaches a level where it qualifies as child pornography. I have already referred to the images of the mature woman drying herself after the shower. There are others, two girls walking down a street, several children gathered around as a group on the beach, a couple of children at a fair, a woman over sixteen riding at a rodeo, and there are others. But on each of the DVD’s I have seen, none of them has any artistic merit, nor could they so claim. None of them present as any study relating to scientific merit.

19. Their context is to be gathered from the voyeur nature, overwhelmingly young girls with sexual innocence. dressing and undressing, in belief of complete privacy; focus on anatomy of sexual interest and capable, in the circumstances, of sexual arousal of that class of persons not infrequently described as “peeping Toms”.

20. The collection, as a whole catalogues the context as being overwhelmingly pubescent girls dressing and undressing, showering themselves and vulnerable. There is a difference between context and quality. Poor quality, and it is conceded by the defence these are pool quality pictures, may well disguise the context. The advice initially given by Jauncey was sufficient for the purposes of giving adequate information for the purposes of entering a plea. The relevant images may be low on the COPINE Scale. The fact that the images were filmed surreptitiously is one that goes to a question of sexual context, namely voyeur, sexual experience, in respect of pubescent girls.

21. I am satisfied Jauncey was also aware that in some images age was difficult to tell, in others the females concerned could not be proved beyond reasonable doubt to have been under sixteen and some images would not have caused offence. I am satisfied Jauncey familiarised himself with s 90H(1) of the Crimes Act1900. I am satisfied that on each of the three disks that I have viewed there was material relating to persons under sixteen that would cause offence to reasonable persons and that had a sexual context.

22. With respect to him, a close reading of Jauncey’s affidavit leaves open to me the question of whether he has grasped what Annetts’ case really said. Although I note in fairness he was equivocal in his affidavit when he said, “I believe my advice may in fact have been incorrect.” He was not adamant in that regard.

23. I do not regard the applicant as being in a position where he is losing a real opportunity for acquittal. Annetts, properly applied in jury directions, would see a jury with more than enough material on each of the CDs that I have seen to satisfy itself of the offender’s production and possession of child pornography.

24. I am satisfied the advice given did not leave the offender uninformed. There is, in this case, no risk of miscarriage of justice in rejecting the application. The application to withdraw the plea of guilty to produce child pornography or possession of child pornography is refused.

25. I do not understand the application to extend to the other charge pleaded. I confirm pleas of guilty will remain entered in respect of all three charges pleaded to on indictment.