R v Chiro

Case [2015] SASCFC 142

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…

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R v Chiro [2015] SASCFC 142
Case
[2015] SASCFC 142
Decision Date

CaseChat Overview and Summary

The appellant, Marco Chiro, appealed against his conviction for persistent sexual exploitation of a child and the sentence imposed of ten years imprisonment with a non-parole period of six years. The complainant, referred to as "V", was a student at Norwood Morialta High School between 2007 and 2012, during which time the appellant was her teacher. The prosecution alleged that sexual conduct commenced in 2008 when V was in Year 9 and continued until 2010 or 2011, involving acts ranging from kissing to more intimate sexual contact. The information laid charged the appellant with persistent sexual exploitation under section 50(1) of the Criminal Law Consolidation Act 1935 (SA), with particulars detailing specific acts of sexual exploitation.

The legal issues before the court included whether the conviction was void for uncertainty, given that the prosecution had evidence of specific sexual abuse acts and could have charged those individually rather than relying on the broader charge of persistent sexual exploitation. The appellant also argued that the jury's verdict was unreasonable or insupportable having regard to the evidence, and that the sentence imposed was manifestly excessive.

The court considered the appellant's argument that the charge under section 50(1) was inappropriate when specific acts could have been charged, referencing a previous decision of the court in *R v N, SH* [2010] SASCFC 74. However, the court noted that the statement in *R v N, SH* regarding the appropriateness of charging specific offences rather than resorting to section 50 was obiter dicta. The court found that the grounds of appeal against conviction were not made good.

The court also determined that the sentence imposed was not manifestly excessive. Consequently, both the appeal against conviction and the appeal against sentence were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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 OffencePersistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMarco 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, and6. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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