Criminal Law – Indecent act with child under 16 – Possessing child pornography – Application for leave to appeal against conviction following plea of guilty – Principles to be applied – Meaning of “with” in Crimes Act1958, s.47 – Whether s.47 creates one offence or two separate offences – Indecent act not “with”, but “in the presence of”, the complainant – Leave to appeal against conviction refused – Sentence of two-and-a-half years' imprisonment for indecent act manifestly excessive – Sentence of six months' imprisonment for possessing child pornography not manifestly excessive - Applicant re-sentenced to 18 months' imprisonment, partly suspended for operational period of two years –Crimes Act 1958, ss.47, 49, 51, 52, 60, 70, 568.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr P.A. Coghlan, Q.C., D.P.P. and Ms K. Judd
K. Robertson, Solicitor for Public Prosecutions
For the Applicant
Mr P.F. Tehan, Q.C. and Ms J. Gabelich
Cameron Marshall
CALLAWAY, J.A.:
The applicant, who is now aged 50, pleaded guilty in the County Court at Geelong to one count of committing an indecent act with a child under the age of 16 (count 1), one count of possessing child pornography (count 2) and one count of possession of cannabis (count 3). After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 4th December 2002 to two-and-a-half years' imprisonment on count 1 and six months' imprisonment on count 2. He was fined without conviction on count 3. His Honour directed that three months of the sentence imposed on count 2 were to be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of two years and nine months' imprisonment, of which service of 15 months was suspended for an operational period of three years.
The applicant seeks leave to appeal against the conviction on count 1 and leave to appeal against the sentences imposed on counts 1 and 2.[1] The sole ground of appeal against conviction is that the applicant could not, as a matter of law, and upon the admitted facts, have been found guilty of the offence of committing an indecent act with a child under the age of 16 years.
[1]Originally the applicant sought leave to appeal only against sentence and the matter was listed before a single judge of appeal pursuant to s.582 of the Crimes Act 1958, but on 19th June 2003 the Registrar granted the applicant an extension of time within which to seek leave to appeal against the conviction on count 1.
Before turning to counsel's submissions, I shall say something briefly about the facts. The complainant, who was born on 17th September 1982, was a student at a school…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Coffey [2003] VSCA 155
Case
[2003] VSCA 155
Decision Date
CaseChat Overview and Summary
The appellant, Coffey, appealed against his conviction for engaging in an indecent act with a child under the age of 16 and possessing child pornography. Coffey had pleaded guilty to the charges, but the County Court had imposed a sentence of two-and-a-half years for the indecent act and six months for the possession of child pornography. Coffey sought leave to appeal against his conviction, arguing that the trial judge had misconstrued the meaning of the word "with" in section 47 of the Crimes Act 1958, and that the sentence was manifestly excessive.
The central legal issue was the interpretation of the word "with" in section 47 of the Crimes Act 1958, and whether it created one offence or two separate offences. Coffey argued that the word "with" in the context of the offence meant "in the presence of" and that the trial judge had misunderstood this in imposing the sentence. The court considered whether the trial judge had erred in his interpretation of the statute and whether the sentence imposed was manifestly excessive.
The Court of Appeal held that the trial judge had not erred in his interpretation of the word "with" in section 47 of the Crimes Act 1958. The court held that the word "with" in the context of the offence meant "in the company of" and not "in the presence of". The court also held that the sentence of two-and-a-half years for the indecent act was manifestly excessive, but the sentence of six months for possessing child pornography was not manifestly excessive. The Court of Appeal refused Coffey leave to appeal against his conviction but varied the sentence to 18 months' imprisonment, partly suspended for an operational period of two years.
The court varied Coffey's sentence to 18 months' imprisonment, partly suspended for an operational period of two years. The court held that the sentence of two-and-a-half years for the indecent act was manifestly excessive and that the sentence of six months for possessing child pornography was not manifestly excessive. The court refused Coffey leave to appeal against his conviction, and the sentence was varied as outlined above.