R v Chonka

[2000] NSWCCA 466

CITATION:	Regina v Chonka [2000] NSWCCA 466
FILE NUMBER(S):	CCA 60504/99
HEARING DATE(S):	18/07/00
JUDGMENT DATE:	7 November 2000
PARTIES :	REGINA Michael CHONKA (Appellant)
JUDGMENT OF:	Fitzgerald JA at 1; Smart AJ at 59; Ireland AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0338
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

COUNSEL :	S J Odgers (Appellant) L M B Lamprati (Crown)
SOLICITORS:	T A Murphy (Appellant) S E O'Connor (Crown)
CATCHWORDS:	Criminal law - offences against the person - obscene phone calls - appeal against conviction - leave to appeal against sentence - whether the trial judge failed to properly direct the jury regarding the elements of the offences charged - whether the convictions were unreasonable and unsupported by the evidence
DECISION:	The appeal should be allowed and the convictions quashed. Verdicts of acquittal should be entered on counts 1, 4 and 8. New trial directed on counts 2, 3, 5, 6, and 9.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60504/99
DC 98/11/0388

FITZGERALD JA
SMART AJ
IRELAND AJ

TUESDAY 7 NOVEMBER 2000

REGINA v Michael CHONKA

JUDGMENT

1    FITZGERALD JA & IRELAND AJ: On 7 June 1999, the appellant was indicted before his Honour Judge Twigg QC at the Sydney District Court on the following charges:-

2    Count 1: For that he on 23 June 1997 at Sydney in the State of New South Wales did incite ASF, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

3    Count 2: Further, that he on 23 June 1997 at Sydney in the State of New South Wales did incite WSF, a person under the age of 16 years, namely 10 years of age, to an act of indecency with ASF.

(Section 61N(1) Crimes Act, 1900 , maximum penalty 2 years imprisonment)

4    Count 3: Further, that he on 25 June 1997 at Sydney in the State of New South Wales did incite KP, a person above the age of 16 years, namely 18 years of age, to an act of indecency towards Michael Chonka.

(Section 61N(2) Crimes Act, 1900 , maximum penalty 18 months imprisonment)

5    Count 4: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

6    Count 5: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Arthur Stevens.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

7    Count 6: On 6 July 1997 at Sydney in the State of New South Wales did incite JS, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Kerry Louanne Stevens.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

8    Count 7: On 6 July 1997 at Sydney in the State of New South Wales did incite CO, a person under the age of 10 years, namely 6 years of age, to an act of indecency with Michael Chonka.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

9    Count 8: On 6 July 1997 at Sydney in the State of New South Wales did incite WL, a person under the age of 10 years, namely 7 years of age, to an act of indecency with Michael Chonka.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 7 years imprisonment)

10    Count 9: On 6 July 1997 at Sydney in the State of New South Wales did incite JT, a person under the age of 10 years, namely 9 years of age, to an act of indecency with KNL.

(Section 61O(2) Crimes Act, 1900 , maximum penalty 5 years imprisonment)

11    The appellant pleaded not guilty to each Count and was tried before his Honour and a jury of twelve.

12    A verdict of not guilty by direction was returned on Count 7.

13    On 21 June 1999, the jury returned with verdicts of guilty to Counts 1, 2, 3, 4, 5, 6, 8 and 9.

14    On 5 August 1999, the appellant was sentenced as follows:-

15    Count 2: Fixed term of 12 months imprisonment to commence on 5 August 1999 and to expire on 4 August 2000.

16    Count 3: Fixed term of 9 months imprisonment to commence on 5 August 1999 and to expire on 4 May 2000.

17    Counts 1, 4, 5, 6, 8 and 9: Minimum term of 2 years and 6 months imprisonment to commence on 5 August 1999 and to expire on 4 February 2002 with an additional term of 2 years and 6 months to commence on 5 February 2002 and to expire on 4 August 2004.

18    Subsections 61O(2), 61N(1) and 61N(2) are expressed in the following terms:-

61O …
(2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years.


61N (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.
(2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.

19    The Crown case may be summarised as follows:-

Count 1:

20    On 23 June 1997, ASF and her brother, WSF, were at home sick. ASF was then aged 7 years and WSF was aged 10 years.

21    ASF answered a telephone call from the appellant who asked questions about the family names and details. The phone conversation extended over a period described by the complainant as seeming like a long time.

22    The appellant said that he would give the complainant and her brother $4,000 each year commencing from the previous year, 1996, to enable them both to attend university and that he would "… make us both doctors". The complainant gave evidence that at one stage during the telephone conversation, "He [the appellant] said to take a banana and stick it up my vagina".

Count 2:

23    WSF gave evidence of the telephone call answered by his sister, ASF, on 23 June 1997. He corroborated her evidence of being on the telephone for a long time. WSF spoke to the appellant who told him that he and his sister had been awarded something for school.

24    The appellant asked the complainant if he thought his sister was pretty and also asked WSF to touch his sister on the vagina.

25    WSF gave evidence corroborating a number of the matters of which his sister, ASF, had given evidence as forming part of her conversation with the appellant, including her having asked him (WSF) if they had a banana in the house, to which he had responded in the negative.

26    During his telephone conversation with the appellant, WSF was informed by the appellant, who had introduced himself as Mr O'Brien, that he and his sister had been awarded $4,000 so they could become doctors.

27    The appellant told WSF to kiss his sister and to tell her to touch him on the penis. The appellant also told WSF to kiss and suck his sister's tongue, to rub her vagina and to tell her to rub his penis.

Count 3:

28    On 23 June 1997, KP, who was then 18 years of age, had some minor surgery which required her to have a week off school. On 25 June 1997, she was asleep in her bed when her mother came into her bedroom and gave her the telephone. She said that the appellant introduced himself as Dr Ryan. He told her that he was ringing in regard to winning a scholarship to study medicine at Sydney University and that she had won the scholarship because of her personality and not as a result of her academic abilities. He said that she would be receiving $40,000 for each year she studied.

29    The appellant made inquiries about other members of the complainant's family and, among other things, said, "While you're talking to me I'd like you to stick your forefinger between your legs and reach a climax".

30    The appellant then made a number of suggestions to the complainant about undressing her younger sister and performing sexual acts upon her and also upon the complainant's mother.

31    The appellant asked the complainant, "Have you ever seen a man cum (sic)" and upon answering in the negative said "next time you're in that situation you should suck on the penis cause it's good for you".

Counts 4, 5 and 6:

32    The material upon which these Counts were based is contained within Exhibit A2, being a transcript of a telephone conversation recorded between JS and the appellant on 6 July 1997.

33    At that time, JS was 7 years of age. She answered a telephone call from the appellant who identified himself as Dr Ryan from the Education Department.

34    The appellant asked a number of questions of the complainant and then told her that her teachers at school had recommended her for a special scholarship under which she would receive $40,000 every year until she finished high school. He told her also that she was to be put through university to study medicine and become a doctor. The appellant, during the course of further conversation, told the complainant to put her right hand inside her underwear and slide it down the front of her vagina and rub it up and down hard. He told her to keep doing this whilst they were talking.

35    The appellant then engaged in what might be described as the active coaching of the complainant in acts of masturbation. This is the conduct giving rise to Count 4.

36    The appellant asked the complainant if she had seen her mother and father making love and kissing, and described to her acts of cunnilingus and fellatio between her parents. The appellant then described acts of sexual intimacy which might be conducted between the complainant and her father and the complainant and himself, including, in both instances, acts of fellatio. These conversations are the basis of Count 5.

37    The appellant then turned his conversation with the complainant to acts of sexual intimacy with the complainant's mother, including the performance by the complainant of acts of cunnilingus with her mother. These conversations are the basis of Count 6.

Count 8:

38    This Count also relies on the tape of a telephone conversation. The appellant introduced himself as Dr Ryan from the Education Department and informed the complainant, WL, who was then 7 years of age, that she was to receive a scholarship from the Government, to the value of $40,000, so that she could become a doctor.

39    Following a conversation with the complainant, concerning her mother and herself carrying out certain sexual intimacies, the appellant told the complainant to put her hand inside her underpants and inside her "rude part" and to rub herself up and down.

40    The appellant asked the complainant, "Have you seen daddy's dick?" and further asked, "Does daddy's dick stick up or stick down". The appellant then said "… if you rub mine", "If you touch it and rub it, it will stick up", "It gets stiff and hard so you can rub it".

Count 9:

41    This Count relies also on the tape of a telephone conversation, once again, the appellant introducing himself as Dr Ryan from the Education Department and informing the complainant, JT, who was then 9 years of age, that she had been chosen to receive a scholarship of $40,000 to put her through school and university to become a doctor.

42    Following a conversation relating to the complainant's "rude parts" and her mother's "rude parts", the appellant asked the complainant to put her hand under her pants and slide it down to her vagina and to rub it up and down.

43    The appellant on this occasion also undertook what might be described as coaching the complainant to perform sexual intimacies upon her mother, including the act of cunnilingus.

44    Each Count in the indictment relates to a charge of incitement. It is common ground that incitement involves an intention to bring about a particular result or a reckless indifference as to whether that act occurs or not. See R v Massie (1998) 103 A Crim R 551, 557. Three of the counts left to the jury (Counts 1, 4 and 8) alleged incitement to an act of indecency “with” the appellant; one count (Count 3) alleged incitement to an act of indecency “towards” the appellant; and four counts (Counts 2, 5, 6 and 9) alleged incitement to an act of indecency “with” another person.

45    Grounds of Appeal

(1) The trial judge failed properly to direct the jury regarding the elements of the offences charged.
(2) The convictions were unreasonable and cannot be supported having regard to the evidence.
These grounds may be conveniently considered together.

46    The prosecution offered no explanation of the difference in language between Counts 1, 4 and 8 (which relate to incitement to acts of indecency “with” the appellant) and Count 3 (which relates to incitement to an act of indecency “towards” the appellant). As might be expected, there is a material distinction between the alternatives referred to in the statutory phrase “with or towards”. Broadly speaking, an act of indecency “with” another requires two participants in the indecent act, while an act of indecency “towards” another is committed by a person who acts indecently towards a non-participant. See R v Page NSWCCA, 25 November 1991; R v Orsis (1997) A Crim R 457.

47    Counts 1, 3 4, and 8 each alleged a telephone call in which, on the prosecution case, the appellant incited an auto-erotic act (if that description can be applied to the actions of 7 year old children who were the complainants for Counts 1, 4 and 8). Those acts could not be described as indecent acts “with” the appellant. It is unnecessary to decide whether the appellant’s suggestion to the 18 year old complainant for Count 3 that she engage in auto-erotic behaviour in the course of the telephone call which the appellant had made to her could constitute an indecent act “towards” him. Even if that is theoretically possible, the need for a careful direction to the jury is obvious.

48    The material parts of the summing-up were extremely brief. The jury were told that:

(a) the prosecution was required to prove that:
(i) the accused incited a person to commit an act of indecency; and
(ii) the act of indecency involved the accused or some other person; and
(b) “[t]he ordinary meaning of the word incite is to do some act intending to urge, suggest, or stimulate to action”. cf Young v Cassells (1914) 33 NZLR 852, 854.

The trial judge did not elaborate. Further, no reference was made in the summing-up to recklessness, although that omission favoured the appellant.

49    The directions given to the jury were seriously deficient. Further, the combination of the deficiency and the brevity of the summing-up was prejudicial to the appellant. The jury could easily have considered that the appellant’s guilt was a necessary consequence if it was satisfied that the appellant made the statements attributed to him in the telephone conversations alleged. Some confirmation that the jury might have proceeded on that basis might be found in the appellant’s convictions on Counts 1, 4 and 8 on which he could not have been properly convicted on the evidence.

50    One other specific defect in the summing-up should be noted. There is a degree of ambiguity in the trial judge’s statement “that the ordinary meaning of the word incite is to do some act intending to urge, suggest or stimulate to action”. The point can be illustrated by reference to a suggestion relied upon as an incitement. The suggestion might be intentionally (i.e. deliberately) made without any intention that it be acted upon; for example, a suggestion intentionally made might be ironic or vulgar abuse. Before the appellant could be convicted, the jury had to be satisfied beyond reasonable doubt that he intended the complainants to engage in the sexual activity which he suggested with the persons whom he identified (or was recklessly indifferent to whether or not they did so).

51    Counts 1, 4 and 8 involved an allegation that the appellant intended the 7 year old children to whom he spoke on the telephone to engage in acts of indecency with the appellant. However, he plainly did not intend that they should ever learn his identity. Counts 2, 5, 6 and 9 involved an allegation that the appellant intended that the children to whom he spoke engage in acts of indecency with the complainant’s sister (Count 2); the complaint’s father (Count 5); and the complainants’ mothers (Counts 6 and 9). While it might be theoretically possible that, even if the appellant did not expect the complaints to perform those acts of indecency, he intended them to do so, the brief directions given to the jury were insufficient to direct its attention to its proper task. It was not adequately explained to the jurors that, before they convicted the appellant, they had to be satisfied beyond reasonable doubt that he intended his suggestions to the complainants to be acted upon.

52    Although no complaint as to the directions, as given, was made by trial counsel for the appellant and no other or further direction was sought, the proper directions in relation to the appellant’s intention were fundamental to a fair trial and the inadequate direction has resulted in a miscarriage of justice. That that is so is emphasised by our conclusion that, even if properly directed, the jury could not have correctly convicted the appellant on the evidence on Counts 1, 4 and 8 and possibly 3.

53 The sections under which the appellant was charged, s 61N and s 61O of the Crimes Act, proscribe both the commission of an act of indecency and the incitement to an act of indecency. The prosecution submitted, correctly, that the jury must have been satisfied beyond reasonable doubt that the appellant made the statements attributed to him in the telephone calls which it was alleged that he had made. Accordingly, it was submitted by the prosecution that, if the Court proposed to uphold the appeal and quash the appellant’s convictions, it should exercise its power under s 7(2) of the Criminal Appeal Act 1912 to substitute for the verdicts found by the jury verdicts that the appellant was guilty of committing an act of indecency on each occasion when he made the statements in question in the course of the material telephone calls.

54 The jury was undoubtedly satisfied that the acts which the appellant described to the complainants would have constituted acts of indecency. However, it was not required to consider whether the statements made by the appellant constituted acts of indecency by him. That is a jury question. This Court cannot conclude that the jury “must have been satisfied of facts which proved the appellant guilty” of committing acts of indecency. Accordingly, the Court has no power under s 7(2) of the Criminal Appeal Act to substitute the verdicts sought by the prosecution. Spies v R [2000] HCA 43.

55    The appeal should be allowed and the convictions quashed. Verdicts of acquittal should be entered on counts 1, 4 and 8. New trial directed on counts 2, 3, 5, 6, and 9.

56    In deciding whether the appellant should be retried on the other counts, the Director or Public Prosecutions will no doubt take into account the doubt which we feel about count 3, the undesirability of the children to whom the appellant made his disgusting remarks again having to give evidence, and the circumstance that the appellant has spent more than 16 months in custody.

57    The appellant also applied for leave to appeal against sentences imposed. In the circumstances, it is unnecessary to express a concluded view on whether the sentences were manifestly excessive. While the appellant’s conduct was reprehensible, there was no personal confrontation, there was no physical interference by penetration or other physical contact, and there was no violation of trust or undue exercise of a position of authority.

58    The report of a psychiatrist, Dr Canaris, of 30 July 1999 speaks of the psychosexual problems from which the appellant suffers as well as his deep depression and need for treatment. The affidavit evidence from the appellant discloses the steps which he has taken and is taking in an effort to obtain treatment. His behaviour has not gone unpunished.

59    SMART AJ: The background and an outline of the facts are set out in the joint judgment of Fitzgerald JA and Ireland AJ. Counts 1, 4, 7 and 8 allege that the appellant (Michael Chonka) incited a seven year old child to an act of indecency with him. Count 3 alleges that the appellant incited an eighteen year old lady to an act of indecency towards him. Counts 5, 6 and 9 each allege that the appellant incited a nominated child under the age of ten years to an act of indecency with a nominated person. In two instances the nominated person was an adult and in one instance a child. Count 2 alleges that the appellant incited a 10 year old child to an act of indecency with his sister. The offences allegedly occurred between 23 June 1997 and 6 July 1997.

60    The modus operandi of the appellant was to telephone people (mostly children) whom he did not know, represent that he was a person of standing, engage them in conversation, elicit personal details and advise them that they were to receive substantial benefits, usually of an educational character. The tenor and tone of the conversation then gradually changed as he incited them to commit an act or acts of indecency. One example will suffice. JS, a seven year old girl was told that she was going to be put through University to study Medicine and become a doctor. The appellant’s manner and speech were authoritative. He introduced himself as Dr Ryan of the Education Department. JS was reminded Medicine was the study of the human body and told that all doctors study on their own body and the bodies of their family members and close friends. She was urged to keep her body beautiful and told that she had to rub her vagina for half an hour each day to circulate the blood. He urged her to slide her hand inside her panties and rub her hand up and down her vagina until it was very wet and she felt it explode. This was said to be healthy. She was told that the more explosion feelings she experienced the more beautiful her body became. The appellant kept urging her to continue rubbing. She was urged to look at her mother’s vagina and told not to worry as that was part of her home study to become a doctor. She was urged to keep rubbing and insert her finger into her vagina and to slide it in and out until it became wet and explosive. She was asked about witnessing her parents kissing and making love. She was told that she could look at her father’s penis now as she was going to become a doctor. She was told that she could rub his penis and make it stiff. It would stick up in the air and she could suck it and lick it. The appellant described committing acts of cunnilingus with her. The conversation continued with him giving instructions in similar vein and checking periodically as to the sexual experiences which she was having and urging her to have indecent sexual activity with others.

61 The charges were laid under sections 61N and 610(2) of the Crimes Act 1900 which provide:

“61N (1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.
(2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.
610…
(2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 7 years.”

62    It is to be noted that all counts except count 3 refer to inciting the victim to commit an act of indecency with either the appellant or a nominated third person. Count 3 refers to inciting an act of indecency towards the appellant.

Three questions of law arise, namely, the meaning of the words “with or towards that or another person”, the correct directions when inciting is charged and whether the evidence is sufficient to support the convictions.

With or Towards

63    In Regina v Hall [1964] 1 QB 273 the Court of Criminal Appeal when considering a somewhat similar section held that the word “with” meant “directed towards” or “against”. In DPP v Burgess 1971 1 QB 432 the Court of Criminal Appeal held, when construing a corresponding section, that there was only one offence of committing an act of gross indecency involving a child and that one reads “with or towards a child” as a phrase “with or towards.” “The words ‘or towards’ may be said to be explaining the word ‘with’ ”. That view was shared by Hulme J in his dissenting judgment in Regina v Orsos (1997) 95 A Crim R 457 at 462-465. However, in Regina v Preece [1977] 1 QB 370 the Court of Appeal declined to follow Hall. That case was regarded as inconsistent with earlier authority. In Preece it was held that the offence required “the participation, the co-operation, of two men.” This was distinguished from the situation where one man commits an act of indecency in the presence of another intending that that person should watch him. The other person is disgusted and does not participate. The act of indecency was directed towards that other person. This is an illustration. I would not doubt that an act of indecency could be directed towards a person over the telephone or by other means not involving the act of indecency being carried out in the personal presence of the other person. This would apply even more strongly in the case of incitement to an act of indecency.

64    In Regina v Page, unreported NSW CCA 25 November 1991 Campbell J; with whom Gleeson CJ & Mahoney JA agreed, said at page p4:

“However in Regina v Preece (1977) 1 QB 370 the Court of Appeal expressly declined to follow Hall and it was held that the word “with”, in a section which is not relevantly different to the one being considered here, involved the participation of two people and that for the act of indecency merely to be directed “against” or “toward” a non participating person was not sufficient for it to be said that it was committed “with” him.”

65    The Court followed Preece.

66    In Orsos Grove J, with whom Priestley JA agreed, said at 460:

“In the light of the judgments in Preece and Page I consider that there is a distinction between ‘with’ and ‘towards’. To commit an act of indecency ‘with’ a person involves two participants whereas logically and grammatically one person may commit an act of indecency ‘towards’ another.”

67    Page and Orsos represent the law in New South Wales.

68    In respect of counts 1, 4, 5, 6, 8 and 9 the jury were told that the elements which the prosecution must prove “are firstly that the accused incited a person under the age of 10 years to commit an act of indecency (2) that the act of indecency involved the accused or some other person.” (SU 7).

69    The judge continued (SU 8):

“In respect of counts 2 and 3 the elements are the same except the prosecution alleges that the child WSF in relation to count 2 was 10 on 23 June 1997 and in respect of count 3 the elements are again the same but the prosecution must prove that KP was aged over 16 years on 25 June 1997 and there was clear evidence from documents and herself that she was 18 years on 25 June 1997.”

70    In summing up the judge drew no distinction between inciting a person to an act of indecency with the accused or another person and towards the accused or another person. Inciting a person to commit an act of indecency with the accused or another person does not involve the act being carried out but it does mean that when the incitement takes place that what is intended by the accused is that the person incited will commit the act of indecency either with the accused or some other person.

71    Although the directions given (and quoted above) could have better and more fully explained the position, the effect was to tell the jury that the Crown had to prove that the accused incited a person of the requisite age to commit an act of indecency and that that act involved the accused or some other person. In other words, the accused incited the child to commit an act of indecency with himself or another person as the case may be. In the context, the word “involved” conveys the meaning that the intended or incited act of indecency was with the accused or another person. The direction given was sufficient to bring home to the jury that the Crown had to prove that the accused incited a person of the specified age to an act of indecency with the accused or another person.

72    As to count 3 the judge did not explain in express terms what was involved in an act of indecency towards the accused or another person. What the judge said was this:

“Count 3 as I said involves [KP] and the allegation there is that in a phone call on 23 June the caller said I would like you to stick your forefinger between your legs and reach a climax. That is that the accused incited KP to an act of indecency with the accused …” (SU 7-8)
… in respect of count 3 the elements are again the same but the prosecution must prove that [KP] was aged over 16 years on 25 June 1997.

73    This takes us back again to the use of the phrase “involved the accused or some other person”. From the context of the Summing Up the jury would have understood that they had to be satisfied that the accused incited KP to an act of indecency with the accused. That covers an act of indecency towards the accused. This follows because “with” involves the participation of two persons and “towards” involves one person performing the act of indecency to another, that is towards another. KP was being incited to masturbate herself and reach a climax. The request came from the accused by telephone and the response was to him. The accused does not have to be physically present to see the response. Telephone and electronic methods of communication must be taken into account. With inciting, it is the urging to do the indecent act which is important and, as in the present case, the urging is to do it towards or for the accused.

74    In his closing address (T 264) counsel for the accused said:

“… where the word ‘with’ is used it has to be an act of indecency with him. There must be his participation in it. That he would have to be present for that to be carried out. There must be a suggestion that there be a meeting for that act of indecency to have been carried out.
Alternatively, that the word ‘towards’ would not involve him being actively involved but the act of indecency should be directed to him even though he might not actively be taking place, taking part.”

I do not accept that the accused had to be present in either case. There is no good reason why the participation should not be by telephone. This was a case in which the appellant gave detailed instructions as to the acts to be done, verified that they were being done and the results of those acts and achieved satisfaction and pleasure on hearing of what he regarded as the good results of the various sexual acts which he had urged upon the complainant. There was a sustained dialogue between the accused and the complainant. It was a step by step process. The acts of indecency which the various children were incited to commit were with the accused or with some other nominated person. In a number of instances the acts were carried out.

Incitement

75    It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that the crime of incitement is a common law misdemeanour and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all. It is merely the incitement which constitutes the offence.

76    As to the element of inciting the judge after telling the jury that they had to be satisfied that the accused incited a person under 10 years of age, under 16 years of age and over 16 years of age respectively said “The ordinary meaning of the word incite is to do some act intending to urge, suggest or stimulate to action.”

77    In Young v Cassells (1914) 33 NZLR 852 Stout CJ said “The word ‘incite’ means to rouse; to stimulate, to urge or spur on; to stir up; to animate’.” The Chief Justice called in aid the Oxford Dictionary. The Macquarie Dictionary defines “incite” as “to urge on, stimulate or prompt to action.” In R v Massie (1998) 103 A Crim R 551 at 564 Brooking JA, with whom Winneke P and Batt JA agreed said of “incite”, “common forms of behaviour covered by the word are: “command”, “request”, “propose”, “advise”, “encourage” or “authorise”. One can thus incite a crime by words or by acts which have any of these tendencies.

78    It was correctly common ground that the offence involved a mental element, namely, that the accused intended that his statements constituting the incitement be acted upon or that he was recklessly indifferent as to whether it occurred or not. See Glanville Williams, Criminal Law, The General Part, 2nd ed, 1961 at para 194; Smith & Hogan, Criminal Law, 7th ed 1992 at 268; Regina v Massie (1998) 103 A Crim R 551 at 557.2 (incite to murder) and R v Ay, unrep. NSWCCA 30 Oct 98 at 20-21 (Smart J), (the analogous case of solicit to murder). As the joint judgment herein points out no reference was made to recklessness in the summing-up and that favoured the accused. I doubt if recklessness applied or could have applied in the present case.

79    The Crown submitted that what the judge said as to the meaning of “inciting” while brief was sufficient. It was pointed out that the jury was required to find some act on the part of the accused by which he intended to urge or suggest or stimulate to action. The urging or suggesting was to take action as advocated by the appellant. The appellant contended that the direction was seriously deficient and that the jury would not have understood that the Crown had to prove that the appellant intended that the act of indecency be carried out by the person to whom he spoke.

80    While the direction given should have been clearer, the question is whether it was sufficient in the circumstances. It was, but barely so. The jury would have understood from the judge’s words “to do some act intending to … stimulate to action” that they had to be satisfied that the appellant in uttering the words used intended that the request, suggestion or instruction be implemented or carried out.

81    The judge was not asked to give any further direction as to the mental element. In his closing address (T 263) counsel for the accused said to the jury:

“The Crown told you that the word incite means to encourage and gave some other words all to a like effect. The word incite, in this instance, is an ordinary word capable of being understood by you, as the jury, without the need to be a lengthy definition.
You must in your deliberations draw a distinction between simply talking about something and encouraging someone else to go and do it. They might be dirty phone calls, as it is sometimes said, but unless you find that there was a suggestion in the telephone calls to actually do something and that something was an act of indecency it can’t be an incitement.”
Counsel for the accused by his reference to the need to find a suggestion in the telephone calls to actually do an act of indecency conveyed to the jury that there has to be serious request which was intended to be acted upon. Counsel hearing the summing-up in the atmosphere of the trial must have thought that it conveyed the notion that the accused intended his instruction, request or suggestion to be carried out.

82    I turn now to the various counts.

Counts 4, 5 and 6

Counts 4, 5 and 6 arise out of the extended conversation between the appellant and JS on 6 July 1997. Count 4 relates to him telling her to place her right hand inside her panties, slide it down to the front of her vagina and rub it up and down hard. He urged her to continue as he checked whether it was getting wet and exploding and confirming that it was f - lovely and f - beautiful. These were the most explicit urgings and instructions. The transcript of the tape and the tape reveal the satisfaction and pleasure which the appellant was experiencing. The facts amply supported count 4, namely, that the appellant incited JS to an act of indecency with him.

83    Count 5 relates to the appellant’s telephone advice that she can rub her father’s penis up and down and make it stiff and hard. This follows immediately after the appellant had told JS of her father kissing her mother’s vagina, sucking it and licking it for her and her mother sucking her father’s penis. Following the words, the subject of the count, is a description by the appellant of what should be done, namely, sucking her father’s penis and a description of acts of cunnilingus with the appellant and her sucking his penis and an assertion of how good all of this would be. The Crown contended that when the whole of the conversation was taken into account there was ample evidence to support the conclusion that the appellant intended that the complainant, JS, rub her father’s penis. The appellant contended that there was insufficient evidence to conclude beyond reasonable doubt that the appellant intended that JS rub her father’s penis. The perversion, urgency and persistence revealed in the conversation was of such a high order that it was well open to the jury to conclude beyond reasonable doubt that the appellant did so intend. It is the conclusion which I would draw.

84    Count 6 also related to the telephone conversation between JS and the appellant in which JS was told to open her mother’s vagina with her fingers, put her mouth right inside it and suck it and lick it. Reliance was placed not only on this particular instruction but the whole of the conversation. The appellant contended that there was insufficient evidence to conclude beyond reasonable doubt that he intended that JS carry out the actions mentioned. Having regard to the terms of the whole conversation I disagree. The facts support count 6, namely, that the appellant incited JS to an act of indecency with her mother.

Count 8

85 This count relates to the taped telephone conversation between the appellant and WL. After a series of questions and remarks about her mother’s vagina and her father’s penis and an instruction to put her hand inside her underpants and slide it up and down “the rude part” and confirming that it was beautiful he advocated that her mother perform cunnilingus upon WL. After advocating further sexual activity he said “you are rubbing my rude part, if you touch it and rub it it will stick up, it gets stiff and hard so you can rub it”. The words just quoted formed the subject of this count. The appellant submitted that there was simply no possibility of WL rubbing his penis that day or shortly thereafter. The conversation took place on the evening of 6 July 1997. WL, a seven year old girl, was at home with her parents. No arrangements were made to meet. The appellant’s home was searched from about 9.05 am on 8 July 1997 and he was arrested. The appellant contended that there was no evidence capable of satisfying a jury beyond reasonable doubt that he intended that WL rub his penis. What occurred was filthy talk but it fell short of incitement. The appellant received sexual gratification and pleasure from the dialogue directed by him. If the count had focussed on his incitement of her to rub her vagina and his responses there would have been a sustainable charge. On the issue litigated the appellant is entitled to succeed and to be acquitted on this count. I have not overlooked s 7(2) of the Criminal Appeal Act 1912. For the reasons given in the joint judgment the Court cannot use the power conferred by that sub-section. The distinction between inciting to an indecent act and the uttering of the words being an indecent act is a fine one. In the circumstances of this case the result is a little unreal.

Count 9

86    This count related to the telephone conversation between the appellant and JT on 6 July 1997. Initially, the appellant advised her that home study of her body was permissible and desirable. The appellant described the aberrant sexual activity which took place between E (her girlfriend and E’s mother) and how she (JT) could participate in such activity. The sordid details need not be recounted. The appellant urged JT to place her hand inside her pants and rub her vagina. He then described E engaging in sexual activity with JT. The appellant instructed JT to kneel in front of her mother and lift up her mother’s dress and confirmed with JT that she was doing so. (JT’s mother came from Vietnam and had difficulty with the English language). The appellant instructed JT to pull down her mother’s panties and confirmed that this had happened. He then elicited a description of her mother’s private parts. The appellant urged JT to open her mother’s vagina and to rub it and confirmed with JT that she was doing so. The appellant elicited a further description from JT of the condition of the mother’s vagina and confirmed with JT that she was rubbing her mother’s vagina. It is against this background that the words to which this count applied must be considered. He instructed her, as to her mother’s vagina “Put your mouth on it sweetheart …. Keep the phone on your ear, suck it and lick it up and down. Suck it.” JT was instructed to slide her tongue up and down. He verified that she was sucking and that it tasted well.

87    The transcript of this taped telephone conversation extends over 49 pages and contains many urgings by the appellant to JT to engage in indecent acts, checking that the acts were taking place and giving pleasure to JT and her mother. It is evident from the terms of the conversation that the appellant was obtaining considerable pleasure and gratification. It was a case of the appellant inciting JT to an act of indecency with her mother. This count needed no elaborate or sophisticated directions. The tape and the transcript make the position clear. The appeal against conviction on this count must be dismissed.

Count 2

88    This relates to a telephone conversation between the appellant and WSF on 23 June 1997. This was not taped. WSF had a poor recollection of the events but he was able to refresh his memory from a statement which he gave to the police on 25 June 1997. He deposed to his sister, ASF, talking at length on the telephone with the appellant who called himself Mr O’Brien. When WSF took over the telephone receiver from her “Mr O’Brien” spoke to him about the scholarships being awarded. WSF stated that “Mr O’Brien” told him to tell his sister to touch him on his penis. “Mr O’Brien” told him to kiss and suck his sister’s tongue. WSF did not do so and did not reply to “Mr O’Brien’s” question “Isn’t, that beautiful”? “Mr O’Brien” said “Rub her vagina”. WSF did not do so. WSF also gave evidence that “Mr O’Brien” asked him to touch his sister on her vagina. ASF gave evidence of the telephone call from the appellant and of being at home with her brother. The telephone records show that the telephone call to ASF and WSF lasted for about 1 hour 26 minutes. The evidence establishes that the appellant was urging WSF to commit an act of indecency with his sister. The facts were simple and the directions sufficient.

Count 1

89    This relates to the telephone conversation on 23 June 1997 between the appellant and ASF, the younger sister of WSF. He asked her a series of questions about herself and her family. She was unable to recall the terms of the lengthy conversation between them. She thought that he asked “What part of your mother’s body do you like the best.” She replied “the eyes”. She stated that he said to take a banana and stick it up her vagina. ASF thought that she replied that they didn’t have any bananas. WSF said that ASF asked him if there was a banana and that he replied “no”.

90    Because of the ages of ASF (aged seven) and WSF (aged ten) and their consequent incomplete recollections the evidence on this count is limited. Unfortunately, the conversation was not taped. The inquiry by ASF of her brother as to whether they had a banana suggests that she was taking the instruction seriously and not dismissing it. The count alleges that the appellant incited ASF to an act of indecency with him. There is no good reason why the inciting cannot take place over the telephone especially in an extended dialogue. It was the appellant who was to achieve pleasure and satisfaction from ASF carrying out the indecent act. Again, the facts were simple and the direction, although brief sufficient.

Count 3

91    This count relates to a telephone conversation between the appellant and KP aged eighteen years on 25 June 1997. The appellant introduced himself as Dr Ryan and spoke in a calm, professional and convincing manner. He told her of the scholarship which she had won to study medicine. He moved to the topic of the study of the human body. Having ascertained that KP was sitting on her bed, the appellant said to her “While you’re talking to me I’d like you to stick your forefinger between your legs and reach a climax.” These were the words relied upon as the basis of this count. Reliance was also placed on the context. She did not do as he directed. He inquired as to how many climaxes she had had and asserted that, if she was doing what he said, she should be pretty wet by now. He then advocated in some detail acts of indecency which she should commit with her sister and her mother. I will not repeat the details. KP resisted the appellant’s suggestions. He again returned to the number of climaxes she had reached and asserted that she should feel good. He next told her when she was next in a situation where a man “came” she should suck his penis as it was good for her.

92    The appellant intended KP to do what he said. He went to some lengths to persuade her and checked to see that she was obtaining favourable results from carrying out his instructions. It is not to the point that she did not carry out his instructions. As mentioned earlier, this is the count which alleges that the appellant incited KP to an act of indecency towards the appellant. The appellant by both his urging and his checking as to the results was a person for whom the acts were to be performed. He was to obtain sexual pleasure and gratification. The acts were to be performed towards the appellant. There was ample material to sustain the count and for the reasons earlier given the direction was sufficient.

93    If I am wrong in the view I have taken there should not be directed verdicts of acquittal but rather an order for a new trial. The offences are serious. It would be a matter for the Director of Public Prosecutions to ascertain and take into account the wishes of the children and the families. The course proposed of directed verdicts may leave them with a sense of injustice. I note that the children were not cross-examined at the first trial. The crux of the Crown case lies mainly in the tapes.

Appeal Against Sentence

94    The appellant by his various acts of incitement sought to lead some four young children (aged ten and under) to acts of indecency and down a path of sexual perversion. He used some cunning and deception in his efforts as I have earlier detailed. The offences were serious and questions of public and private deterrence loom large. Children must be protected from those who would seek to lead them to acts of indecency. The conviction on count 8 has been quashed. A head sentence in excess of 4 years is manifestly excessive as is a minimum term of 2 years 6 months. These remarks apply to counts 1, 4, 5, 6, 8 and 9. I would not disturb the other sentences. I agree that there are special circumstances.

95    I propose that:

(a) The appeal against conviction on count 8 be allowed, the conviction and sentence quashed and a verdict of acquittal entered.

(b) The appeals against conviction on other counts be dismissed.

(c) Leave to appeal against the sentences be granted.

(d) The appeals against sentence on counts 2 and 3 be dismissed.

(e) The appeals against sentence on counts 1, 4, 5, 6 and 9 be allowed.

( f) In lieu of the sentence imposed on count 1 the appellant be sentenced to a fixed term of imprisonment of 18 months starting on 5 August 1999.

(g) In lieu of the sentences imposed on counts 4, 5, 6 and 9 the appellant be sentenced to 4 years imprisonment starting on 5 August 1999 with a non-parole period of 2 years starting from that date and ending on 4 August 2001.

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