R v Chiro

[2017] SASCFC 144

Supreme Court of South Australia

(Court of Criminal Appeal)

R v CHIRO

[2017] SASCFC 144

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxiliary Justice David)

30 October 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

Having upheld the appellant’s appeal against sentence the High Court of Australia remitted the task of re-sentencing to the Court of Criminal Appeal. The appellant was found guilty of persistent sexual exploitation of a child and aggravated indecent assault. 

The Court is directed by the High Court to sentence on the view of the facts most favourable to the appellant, namely kissing the victim on the lips on more than one occasion in circumstances of indecency.  Discussion of the extent to which other acts of kissing could be taken into account by way of background facts.

The appellant is re-sentenced to imprisonment for three and a half years with a non-parole period of two and a half years. The sentence is taken to have commenced on 15 May 2015.  The appellant is to be subject to an intervention order upon release.

Criminal Law Consolidation Act 1935 (SA) s 50; Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) s 9, referred to.
Chiro v The Queen [2017] HCA 37, discussed.
Weininger v The Queen [2003] 212 CLR 629, considered.

R v CHIRO
[2017] SASCFC 144

Court of Criminal Appeal:   Vanstone, Kelly JJ and David AJ

VANSTONE J.

1. On 13 September 2017 the High Court of Australia upheld the appellant’s appeal against this Court’s rejection of his appeal against sentence for an offence of persistent sexual exploitation of a child: Chiro v The Queen [2017] HCA 37. The High Court remitted to this Court the task of resentencing the appellant. This Court is directed by the High Court to resentence on a basis which is very much narrower than that upon which the trial Judge originally sentenced.

2. On 22 September 2017 the Court held a directions hearing in the matter so that a date could be fixed for submissions relevant to the task of resentencing.  The Court suggested that 28 September 2017 was an appropriate date.  However, counsel for the appellant advised that neither he nor his leader, Mrs Shaw QC, were available on that date.  Consequently 20 October 2017 was fixed for the rehearing.  The Court reserved judgment.

3. The charge against the appellant contained six particulars of acts of sexual exploitation, which varied in terms of seriousness.  The dates between which it was alleged these acts occurred spanned a period greater than three years and three months.  The Information upon which the appellant went to trial was in the following terms, except that I shall not reproduce the victim’s name.

   Statement of Offence

   Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Marco Chiro between the 1st day of July 2008 and the 19th day of November 2011 at Rostrevor, over a period of not less than 3 days, committed more than one act of sexual exploitation of [V], a child under the prescribed age, and in relation to whom he was in a position of authority.

   The acts comprising the persistent sexual exploitation were:

   1.kissing [V] on the lips, on more than one occasion,

   2.touching [V]’s vagina, on more than one occasion,

   3.touching [V]’s breasts, on more than one occasion,

   4.inserting his finger into [V]’s vagina,

   5.causing [V] to touch his penis, and

   6.inserting his penis into [V]’s mouth.

   The trial Judge sentenced on the basis that she was satisfied beyond reasonable doubt of the entirety of the victim’s evidence, which substantiated all of the particulars of the charge.  The sentence imposed was one of 10 years imprisonment with a non-parole period of six years.  It was deemed to have commenced on 15 May 2015, when the appellant went into custody.

4. Appeals to this Court against both conviction and against sentence were dismissed in September 2015.  The High Court later upheld the dismissal of the appeal against conviction, but, as already outlined, allowed the appeal against sentence. 

5. In the High Court, four Justices joined in the decision.  Kiefel CJ, Keane and Nettle JJ delivered a single judgment and Bell J gave separate reasons for joining in the orders.   Edelman J dissented.  In essence the High Court found that, in circumstances where the trial Judge had not asked the jury to “specify which of the particularised acts they were agreed had been proved”: [46], the Judge should have:

   … sentenced on the view of the facts most favourable to the appellant: that the jury had convicted the appellant of persistent sexual exploitation of the complainant on the basis of having committed no more than the acts of sexual exploitation alleged in Particular 1, namely, kissing the complainant on more than one occasion in circumstances of indecency: [53].

   Because the sentence had been imposed on the wider basis, it was manifestly excessive.  Therefore, this Court is directed to resentence the appellant on a strictly confined version of the course of events – kissing – described by the victim.

6. There remains a controversy between the parties as to the precise approach this Court should take to its task of resentencing.  The Court heard an interesting argument as to the extent of the background facts available in circumstances where the trial Judge did not question the jury about which particulars of the charge, or which acts making up any particular of the charge were found proved.  These arguments centred on the following passages of the joint judgment in the High Court.  At [44] the Justices said:

   If the accused is convicted, however, the sentence to be imposed is to be determined by reference to each sexual offence which the alleged acts of sexual exploitation would constitute if charged separately, as if the accused had been convicted of each of those offences.  For that reason, the principle laid down in R v De Simoni is instructive.  Plainly, an accused is not to be sentenced for an offence which the jury did not find the accused to have committed.  Insofar as R v N, SH held to the contrary, it should no longer be followed.

   Later, having acknowledged that a jury could not be compelled to explain its verdict, the Justices said at [52]:

   Consequently, where a jury returns a verdict of guilty of a charge of persistent sexual exploitation of a child contrary to s 50(1) and the judge does not or cannot get the jury then to identify which of the alleged acts of sexual exploitation the jury found to be proved, the offender will have to be sentenced on the basis most favourable to the offender.

7. The alternative approaches put by Senior Counsel in this Court included the following. 

   (a)The Court should sentence for two instances of kissing on the lips in circumstances of indecency.  The Court should not have regard to the balance of V’s evidence of kissing, except (perhaps) the first kiss described by V as a quick peck on the cheek.  (This was not the subject of any particular of the charge.)  It will be for the Court to select the two least serious instances, consistent with its task of sentencing on the basis most favourable to the appellant.  It is accepted that the appellant can make no submission that the two selected instances were isolated, as such a submission would enable the prosecution to call in aid the trial Judge’s findings that all the conduct was proved beyond reasonable doubt.

   This is the position for which the appellant’s counsel contends.

   (b)The Court should sentence for two instances of kissing on the lips in circumstances of indecency.  The sentence should be imposed on the basis that those two acts were committed against a background of other acts of indecent kissing encompassed by Particular 1, described in evidence by V and found proved by the trial Judge.  Reference to these background facts may be used to show that the appellant had ample time to reflect on his actions and made a calculated decision to continue his conduct notwithstanding the possible detrimental effect on V.  Reference to this background might have the effect of increasing the “starting point” used for sentence.

   This is the respondent’s position.  Counsel argues that the position is consistent with the approach countenanced by the High Court in Weininger v The Queen [2003] 212 CLR 629.

8. I should add that it is not a matter of dispute between the parties that we are also entitled to consider other evidence of conduct not amounting to offending, such as the email correspondence passing through the appellant and the victim.  That evidence supported the prosecution case that the appellant demonstrated his intention to cultivate the victim’s affection over an extended period. 

9. Each counsel attempted to isolate the instances of kissing on the lips which, apart from (i) below, were available for selection as the two instances for which sentence is to be imposed.  These can be summarised as follows.

   (i)The first kiss, in year 9; a “quick peck” not falling within Particular 1.

   (ii)The second occasion on which the appellant kissed V in year 9.  It was an open mouthed kiss.  It happened in the language teacher’s office where V was going quite often to help the appellant plan the school tour to Italy. 

   (iii)An occasion in year 10, during a break when no other students were present; they stood and kissed inside a classroom, while the appellant rubbed himself against V.

   (iv)During year 10 V said she and the appellant would “kiss a lot”.  She said, “there were times when he [would] pull me against him while we were kissing and rub himself against me”. 

   (v)An occasion in year 10 in the computer room when the appellant was concerned that the two of them might have been seen to be kissing by another teacher.

   It can be seen that there were quite limited occasions when V described kissing which was not part of an episode encompassed by Particulars 2 to 5.

10. In my view this Court should select option (a) above as the basis for sentencing. This is the position for which the appellant contends. While option (b) may represent the usual approach where a court is concerned with other instances of offending associated with charged conduct but not the subject of a charge and verdict, the allegations of further kissing were here the subject of the charge and, like the conduct described in the other particulars, were not the subject of questioning of the jury. Accordingly, in the particular circumstances of a charge pursuant to s 50 and this case, that approach seems preferable. It may be noted that in future, with one qualification, it is unlikely that courts will have to grapple with these issues in this context. That is because of the amendments to s 50 of the Criminal Law Consolidation Act and amendments to other relevant legislation made by the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 which we understand was passed recently. Those amendments appear to restore the law as understood and set out by this Court in its earlier decision regarding this appellant. It does not, however, apply to the appellant himself. The qualification of which I speak will apply where a Judge chooses to ask questions of the jury directed to ascertaining which particulars of the offence alleged, or which acts of sexual exploitation were found to be proved. (See s 50(11) of the amended section.)

11. In my view it is not a matter of moment which of instances (ii) to (v) are selected as the proved instances.  The earlier instances occurred when V was younger; the later ones appear to have been more intimate and seductive.  All occurred in the context of the appellant targeting and grooming V.

12. As this Court said in its earlier judgment, all the conduct alleged against the appellant was of a serious nature, having regard to his position of trust as a teacher at her school and the clear intent to “groom” the victim to eventually submit to greater intimacy.  The victim was 14 years of age at the time the cultivation commenced and it continued for over three years.  The conduct was brought to an end by the victim’s withdrawal.  Her victim impact statement spoke to the marked effect it had on her.  Even the very limited approach set out in (a) leaves the appellant facing a significant sentence.

13. The appellant has been in custody for a little over two years and five months.  The sentence we are constrained to impose will mean that he will be released very soon.

14. We have heard submissions as to the appellant’s time in gaol and the good use to which some of that has been put.  We are also told that the appellant has good support in the community.  It is no doubt true, as Mrs Shaw QC put, that the appellant has lost his marriage and his career as a teacher through his offending.

15. The sentence I propose is that the appellant be imprisoned for three and a half years.  A non-parole period of two and a half years should be fixed.  The sentence would be deemed to have commenced on 15 May 2015.  An intervention order should be made, containing the terms proposed by counsel for the respondent, which include prohibiting conduct with the victim, and the usual firearms prohibitions.

16. KELLY J:             I agree.

17. DAVID AJ:            I agree with the orders proposed by Vanstone J and with her Honour’s reasons.