R v Chiro
[2015] SASCFC 142
•30 September 2015
Supreme Court of South Australia
(Court of Criminal Appeal)
R v CHIRO
[2015] SASCFC 142
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
30 September 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeals against conviction and sentence for persistent sexual exploitation of a child. The appellant, a former high school teacher, was found guilty by a jury of committing various acts of sexual exploitation against one of his students from July 2008 to November 2011. The acts included kissing on the lips, touching of the vagina and breasts, digital penetration of the vagina, causing the victim to touch his penis, and inserting his penis into the victim's mouth. The appellant was sentenced in the District Court to imprisonment for ten years with a non-parole period of 6 years.
Upon appeal the appellant contends that in circumstances where the prosecution had clear evidence of identifiable instances of sexual abuse, those offences rather than persistent sexual exploitation should have been charged - that since acts of varying seriousness were alleged special verdicts should have been taken to demonstrate the basis of the verdict and in the absence of special verdicts the conviction was void for uncertainty - that the jury's verdict was unreasonable - that in the absence of special verdicts the appellant should have been sentenced on the basis that only the least serious particulars were proved.
Held per Vanstone J (Kelly J and David AJ agreeing) dismissing the appeal:
1. It is for the prosecution to select and frame the charges and it has no duty to construct them so as to obtain a verdict on all issues of significance to sentencing.
2. The judge was correct not to take special verdicts, as to have done so would have potentially led to confusion amongst the jury and detracted from its focus on determining the question of guilt. There was no need for special verdicts since the finding of facts for the purpose of sentence falls within the ambit of the judge's role.
3. An examination of the evidence of the victim and the other prosecution witnesses demonstrates that it was well open to the jury to find the appellant guilty, such that the jury's verdict of guilt was not unreasonable.
4. The sentence imposed was not, in all the circumstances, manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 50(1), s 51(4), s 353, referred to.
M v The Queen (1994) 181 CLR 487; Nguyen v The Queen (2010) 242 CLR 491; R v Stehbens (1976) 14 SASR 240; R v Olbrich (1999) 199 CLR 270, applied.
Cheung v The Queen (2001) 209 CLR 1, discussed.
R v N, SH [2010] SASCFC 74; Maxwell v The Queen (1996) 184 CLR 501; Barton v The Queen (1980) 147 CLR 75; Elias v The Queen (2013) 248 CLR 483; R v Liang (1995) 124 FLR 350; R v Dowdall & Smith (1991) 13 Cr App R (S) 441; R v Isaacs (1997) 41 NSWLR 374; R v Spanos (2007) 99 SASR 487; R v D (1997) 69 SASR 413, considered.
R v CHIRO
[2015] SASCFC 142Court of Criminal Appeal: Vanstone and Kelly JJ and David AJ
VANSTONE J: This is an appeal against conviction and sentence for persistent sexual exploitation of a child. It raises the manner of particularising such a charge and the ramifications which the selection of particulars might have when the judge comes to sentence for the offence. The grounds include a contention that the judge should have sought special verdicts from the jury so that the particular acts upon which the jury found guilt could be established and that, because that was not done, the resulting conviction is void for uncertainty. In addition it is argued that the verdict was unreasonable.
The appellant also appeals against the sentence imposed, being a term of imprisonment of ten years with a non-parole period of six years.
Background
The appellant, Marco Chiro, was a teacher at the “middle campus” of Norwood Morialta High School during the years 2007 to 2012. The complainant, to whom I shall refer as “V”, was in a class given by the appellant in 2007 and 2008, and in 2009 she was supervised on a major project by the appellant. By 2010 and 2011 V had moved to the senior school campus, but she would attend at the middle school campus to obtain assistance from the appellant with her Italian lessons.
The prosecution alleged that conduct of a sexual nature commenced in 2008 when V was in Year 9, and continued until either 2010 or 2011. The complainant reported the conduct to police in about April 2012. The conduct commenced with kissing and became progressively more intimate.
In its final form the information appeared as follows.
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.
It can be seen that the particularised conduct ranged from kissing on the lips, which though serious enough having regard to the appellant’s position as V’s teacher, was less serious than the penetrative offending referred to in particulars 4 and 6.
Ground alleging conviction void for uncertainty
It was suggested by Ms Chapman SC for the appellant that in circumstances where the prosecution had clear evidence of specific instances of sexual abuse and, at least in respect of those instances, did not need to lay a s 50 Criminal Law Consolidation Act 1935 (SA) (CLCA) offence, it should specifically charge those offences. Indeed, she pointed out that at the previous trial of the appellant the information had consisted only of charges of specific acts. Ms Chapman relied on a statement by this Court in R v N, SH [2010] SASCFC 74 at [11] to this effect:
The section clearly contemplates a course of conduct as distinct from particular specific acts being proved beyond reasonable doubt. If the particularity is such, as in this case, to amount to identifiable offences then it is appropriate to charge a number of offences rather than resorting to s 50 of the Act. For that reason it was unnecessary for the Judge to take the verdicts in the way he did.
In that case a s 50 charge had been laid and the trial judge had taken special verdicts from the jury to establish which of the acts mentioned in the particulars it had found proved. The convictions for two counts of offences against s 50 were quashed on the basis there should have been separate trials and that inadmissible evidence was introduced. For that reason the statement of the Court referred to above was obiter dicta.
The question of prosecutorial discretion arose in Maxwell v The Queen (1996) 184 CLR 501. There the High Court considered the power of a judge to reject a plea of guilty in circumstances where the prosecution had accepted it. Two concurring judgments were delivered. Relevant to the present issue Dawson J and McHugh J made this statement at 512:
Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial.
Reference was made to Barton v The Queen (1980) 147 CLR 75 at 90-91 and 96. Gaudron and Gummow JJ said this at 534:
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted.
(references omitted)
The issue of the prosecutorial function came up again more recently. In Elias v The Queen (2013) 248 CLR 483 the High Court considered whether, when sentencing for a particular offence, the Court should take into account that on the same facts the defendant might have been charged and convicted for an offence carrying a lesser maximum penalty. The Court rejected that proposition and in doing so disapproved a line of authorities in Victoria starting from R v Liang (1995) 124 FLR 350. In a joint judgment the Court said at [33] that such a contention “is inconsistent with recognition of the separation of prosecutorial and judicial functions, which in this country has a constitutional dimension. And further at [34] the Court said:
… the separation of functions does not permit the court to canvass the exercise of the prosecutor’s discretion in a case in which it considers a less serious offence to be more appropriate any more than when the court considers a more serious charge to be more appropriate.
The Court referred to Maxwell v The Queen.
Of course the decisions in Maxwell and Elias were given in a different context. However, in my view the general principle that it is for the prosecution to select the particular charges upon which a defendant will be presented holds good. Consequently, I do not consider that it is for this Court to advise the Director of Public Prosecutions that one charge is to be preferred to another. It will be for the Director to determine what charge will be laid and what conduct will found the charge or charges. It can be accepted that (in its earlier iteration) s 50 was introduced into the CLCA for a particular purpose. But there is no indication in the section of any constraint upon the Director’s power to utilise it. Indeed, s 50 contains provisions dealing with the way in which charges against the section are to be framed, and it contemplates that specific charges may be either included in the s 50 particulars or charged separately in the alternative: s 50(4). Therefore I consider that whether s 50 is to be utilised falls within the ambit of the Director’s discretion, and his decision regarding that matter may not be reviewed by this Court.
Ms Chapman’s fallback position was that, even if use of a s 50 charge was a matter of prosecutorial discretion, the selection of that charge and of the conduct relied upon to prove it had consequences in terms of sentence. She argued that where the indecent acts selected by the Director as a basis for a s 50 charge ranged from the less serious to the more serious, in the absence of special verdicts, there remained uncertainty as to what was established by the guilty verdict of the jury. In counsel’s submission this led to a conclusion that the verdict of guilty was void for uncertainty.
Ms Chapman relied on certain statements in the High Court decision of Cheung v The Queen (2001) 209 CLR 1, an appeal against sentence. There, the appellant was found guilty by verdict of a jury of being knowingly concerned in the importation of heroin. The prosecution called an accomplice. Had his evidence been accepted then the appellant’s involvement in the relevant importation would have been proved over a longer period. But the prosecution contended that even without the accomplice’s evidence the charge was still proved. The appellant suggested that the prosecution had presented its case in two ways: although that expression was apt to mislead since only one importation was alleged against the appellant.
When it came to sentence Cheung argued that the judge should penalise him only on the basis of the lesser degree of involvement, contending that, had it so chosen, the prosecution could have laid the charge in the alternative, so that the verdict might be rendered on the basis which was found proved. In the plurality judgment of Gleeson CJ, Gummow and Hayne JJ that argument was rejected. At [44] it was noted that there was no obligation on the prosecution to frame an indictment in such a manner as to elicit, in an artificial fashion, a jury verdict covering every possible view of the facts which might be of significance to sentencing. Further, the plurality referred to the English Court of Appeal case of R v Dowdall & Smith (1991) 13 Cr App R (S) 441. There, Dowdall was charged with theft, the allegation being that he had stolen a book from a woman’s handbag at a supermarket. He admitted theft, but only on the basis that he had found the book. With that in mind the prosecution split the charges into two counts, one to accommodate each version. The Court of Appeal held that the indictment should not have been split in that way and quashed the conviction, saying that it was not appropriate to “proliferate alternative counts”. Returning to the facts of Cheung’s case, the plurality said that laying two counts would not have served to establish the critical matter of motive. Further, the judges said that it was wrong to suggest that the prosecution was under a “duty” to frame charges in one way rather than another. The charges only had to properly reflect the criminality of what had been done.
Gaudron J dissented in the result. Kirby J said it was desirable as a matter of prosecution practice that, wherever practicable, offences should be framed with specificity so as to enable the judge to sentence an accused as near as possible to the basis of the facts found by the jury: [132]. In that regard Kirby J agreed with Callinan J. His Honour also said that it was desirable in a case such as Cheung’s to take special verdicts to elucidate the basis upon which the jury had convicted. Callinan J at 160 said that the Crown should try to formulate a count or counts so as to enable the judge to fix a penalty in accordance with the manner in which the jury reached the verdict.
In my view the pronouncements of Kirby J and Callinan J, relied on by Ms Chapman in support of her argument, do not have behind them the force of the decision in Cheung’s case. That decision establishes that it is for the prosecution to frame the charges, and it has no duty to endeavour to construct them so as to obtain a verdict on all issues of significance to sentencing: [51].
Ground alleging error in not taking special verdicts
The appellant’s counsel argued that, even if the conviction was not void for uncertainty, because of the wide range of acts particularised and the judge’s directions that even two instances of kissing would suffice in terms of the actus reus, there was a need for the judge to take one or more special verdicts to determine on what basis the guilty verdict had been rendered. The appellant argued that the trial judge wrongly denied herself the power to take a special verdict. It was submitted that, absent a special verdict, the only fair way of sentencing would be to take only the lower level offending as being proved.
In R v Isaacs (1997) 41 NSWLR 374 the New South Wales Court of Criminal Appeal said that it was undesirable to ask a jury for the factual basis of its verdict. The Court set out a number of considerations which operated against asking “special questions”. In Cheung the plurality referred with approval to this aspect of the Isaacs judgment. The considerations included the fact that foreshadowing a later request to be provided with the basis of the verdict might distract the jury from its task of seeking unanimity on the general verdict and might provoke unnecessary confusion and disagreement; the answers might be of themselves uncertain; in a case where a particular verdict, such as manslaughter, might be reached in different ways, different jurors might have reached the result via those different avenues; the jury might be invited to make a decision upon which there had been no thorough address by counsel; and the judge might be embarrassed if he or she did not agree with the jury’s answer. In Cheung the plurality said that there would be very few cases in which it would be appropriate or useful to ask a jury the process of reasoning by which it came to its verdict: [18].
In this Court in N, SH the trial judge was criticised for taking a special verdict after a trial upon a s 50 CLCA charge. In R v Spanos (2007) 99 SASR 487 at 500 this Court expressed the view that there would be occasion to interfere with a trial judge’s decision not to take a special verdict only in very rare circumstances.
In my view the judge was correct not to take a special verdict. The prospect of having to answer for its findings on specific conduct or types of conduct might have confused the jury in its deliberations on the general issue and, as well, the framing of the question or questions which counsel would have had the judge ask is not necessarily straightforward. Ms Chapman was asked during the appeal hearing what questions should have been posed and she suggested that the jury should have been asked in turn about each numbered particular in the information. That might have elicited a clear response, but equally, there could have been disagreement within the jury on certain particulars, or whether the conduct occurred more than once; and, in addition, the jury might have chosen not to reach a firm view on all particulars, once it had determined that the appellant was guilty.
More importantly, there was no need for a special verdict. It was for the judge to sentence on such of the facts as she found proved so long as they were not inconsistent with the verdict of the jury. The task of sentencing is peculiarly that of the judge. There is no obligation upon the judge to sentence on a basis seen to be most favourable to the defendant. Circumstances of aggravation must be proved to the judge’s satisfaction beyond reasonable doubt before they are brought to account: R v Stehbens (1976) 14 SASR 240; R v Olbrich (1999) 199 CLR 270. As was put to Ms Chapman during the argument, the situation facing a sentencing judge where the Court is concerned with a s 50 offence is little different from a verdict of guilty for manslaughter where different bases for that verdict have been left to the jury.
In summary, it was unnecessary to ask for one or more special verdicts and to have done so would potentially have detracted from the jury’s focus on its real task.
Ground asserting verdict unreasonable
The appellant argues that the jury’s verdict was unreasonable. The statutory provision invoked by this ground is s 353 CLCA. The task for this Court in considering this ground was set out in M v The Queen (1994) 181 CLR 487 at 492-3. The Court must ask whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt; that is, whether the jury must, as distinct from might, have entertained a doubt about guilt. The Court must not disregard or discount the consideration that the jury is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury had the benefit of seeing and hearing witnesses. The principles stated in M were more recently confirmed in Nguyen v The Queen (2010) 242 CLR 491.
In support of this ground the appellant pointed to several features of the evidence. Counsel emphasised that while, on her account, V might have expected support in several particulars from her then classmate Flory, that support was not always forthcoming. For example, V said that on several occasions she and Flory passed (or even threw) notes to the appellant and received notes back from him in the classroom. However, Flory said she neither passed nor received any notes to the appellant in these circumstances. V said that the appellant hugged her on several occasions after Japanese class including in Year 8 in the presence of Flory. They spoke about this and then decided to stop hugging him after class and to leave immediately the class finished. Flory agreed there were occasions when the appellant hugged her and V but she thought nothing of it. The appellant admitted to one occasion when the victim and Flory hugged him after a class.
During Year 9 V claimed that the appellant touched her in front of the whole class. However, no witness was called to support her assertion.
The appellant pointed to the fact that many touchings of an intimate type were said to have occurred in locations which were effectively public areas of the school where teachers or students could enter without notice. The computer room was one example of such a place.
While in her evidence V said that in Year 11 the touchings would occur in certain nominated classrooms, she was cross-examined on previous statements, both in her evidence at the first trial and in an earlier written statement, that most Year 11 touchings were in the computer room. It was suggested that this change of story was due to her ascertaining, or being reminded in the first trial, that there was a closed circuit television in the computer room.
There was a good deal of evidence before the jury of email traffic going to and from V and the appellant. Printed copies of emails sent in July 2010 and 2011 were in evidence. Earlier emails had not been retained. V used an email address calling herself “Lucy Black”. V said the appellant gave her his personal email address in Year 8. She said the emails took on a sexual flavour in Year 9. V said she could not recall when she took on the email address of Lucy Black. The appellant argues that V was inconsistent as to when and why she created the Lucy Black email address. While the emails present as flirtatious and inappropriate communications between teacher and student – implying sexual attraction – there is no reference in them to sexual acts having taken place.
In cross-examination the appellant admitted his conduct in having an email correspondence with V was “inappropriate” and said it had “crossed the line”. However, he also said that although he contemplated a sexual relationship with V when she turned 18 years of age, there was no sexual interaction while she was at the school.
In my view there is nothing in V’s account of the relationship which made it incapable of acceptance by the jury. To the contrary, V’s evidence reads as a plausible account of her exploitation by one of her teachers. It is to be remembered that the relationship occurred over several years. That of itself must have made it difficult, if not impossible, for V to recall every instance of inappropriate conduct. Moreover, it must have made it difficult for her to set the development of the relationship in its chronological sequence. It is true that there were some variations or even inconsistencies between V’s evidence at the second trial, as compared with her evidence at the first trial. However, witnesses, including truthful witnesses, will always recount a story in different terms, given a lapse of time between the two occasions of recounting. That is a function of human memory and human nature. I do not see anything in the suggested inconsistencies which would necessarily cause a prudent jury to doubt V’s account.
The taking of what might seem to be improbable risks by a sexual predator is a hallmark of many of the cases which come before the criminal courts. It seems that as time passes predators tend to become more confident both in the acquiescence of their victims and also in their impregnability. Typically a predator who has legitimate access to a child quite subtlety initiates low level touchings over a period and, if he encounters no resistance, increases the intimacy of the contact. This is often referred to as “grooming”. Here, V’s evidence indicated such a pattern.
In any event, in this case there was significant evidence to support an inappropriate relationship between V and the appellant. The fellow student Flory saw the appellant hug V. Another girl witnessed hugs or something similar between the two of them on a handful of occasions. One of the teachers, Mr Haga, noticed that V would sit at the appellant’s desk during class. He observed this not only during class but when they were alone. He saw them together in the language teachers’ office on one occasion. This was also observed by another student, Ms Jackson.
The emails passing between the appellant and V amounted to clear and objective evidence of an attraction between them.
Notwithstanding the appellant’s submissions on appeal, I consider the case against the appellant was a strong one. An examination of the evidence of the victim and the other prosecution witnesses demonstrates that it was well open to the jury to find the appellant guilty.
Appeal against sentence
As mentioned, the appellant was sentenced to imprisonment for ten years with a non-parole period of six years.
There were two aspects of the argument in support of the appeal against sentence. First counsel relied on the argument previously discussed, that it was not clear what conduct the jury found proved and therefore the appellant should have been sentenced only on the basis of the “low level” offending. Then it was argued that, even having regard to all the allegations, the sentence was excessive.
As already explained, I do not find that there was any unfairness in the way the information was framed or the way in which the case was left to the jury. That being so, the usual rules as to the judge’s approach to sentencing applied. I have already discussed the principle that the factual basis for sentence is a matter for the trial judge. In this case the judge accepted the evidence of the complainant with respect to all particulars of the charge beyond reasonable doubt.
In light of the way in which Ms Chapman seemed to approach the factual basis of this charge, it might be thought that the earliest personal interactions between the appellant and V were all but colourless and therefore not such as to justify a substantial sentence. I do not consider that such a characterisation is correct. As I read the evidence of V, from the earliest interactions with the appellant there was a clear intention to cultivate V’s affection. V’s young age at that time was an important factor. There was steadily increasing intimacy. The relationship continued over several years and the extent of the sexual interaction steadily increased. Bearing in mind the position of trust the appellant held with respect to V and the way in which he cultivated her, I consider that even the earliest touchings were of a very serious nature. It is not accurate to characterise the earlier conduct involving episodes of hugging and kissing accompanied by superficial touchings on the one hand, as “low level”, and to confine the descriptor “serious” to those incidents involving penetrative conduct.
The maximum penalty for an offence of this nature is life imprisonment. As I have already said, the position which the appellant held with respect to V and the period over which the offending occurred – being about three years – made this a very serious example of the offence. The conduct was only brought to an end by V’s withdrawal. As she explained in her victim impact statement, the offending has had a marked impact on her.
Ms Chapman complained that the trial judge’s reference to R v D (1997) 69 SASR 413 and to the statements of Doyle CJ made in that case was inappropriate, since D was a case about multiple acts of unlawful sexual intercourse. However, the statements made by the former Chief Justice were of a general nature and were particularly directed to offences which amount to a breach of trust. They have constituted a useful guide as to the proper approach to such offences for sentencing judges since that time. It is clear that the appropriate starting point of ten years suggested by Doyle CJ for that case and cases of its type was only said to be, and should be taken as, a guide. The fact that the sentencing judge settled on a figure of ten years does not mean that she did not bring to bear her own assessment of the charge and the various considerations unique to it in sentencing the appellant.
In my view the sentence imposed was not manifestly excessive.
Conclusion
Neither the grounds in support of the appeal against conviction nor the appeal against sentence have been made good.
I would dismiss both appeals.
KELLY J: I agree that both appeals should be dismissed for the reasons given by Vanstone J.
DAVID AJ: I would dismiss the appeals against conviction and sentence. I agree with the reasons of Vanstone J.
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