R v GJB

Case [2002] VSCA 54 19 April 2002

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4 of 2001

THE QUEEN
	v.
G.J.B.

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JUDGES:	WINNEKE, P., BATT, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2002
DATE OF JUDGMENT:	19 April 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 54

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Criminal law – Offence of “maintaining a sexual relationship” with a child under the age of 16 contrary to s.47A Crimes Act 1958 – Elements of offence discussed – Difference between elements of offence before and after amendments made by Act 81 of 1997 – Presentment alleging offence against s.47A in one count, and further counts alleging substantive offences occurring within period of “relationship” which themselves could have been particulars of such relationship – Whether latter counts “alternatives” to the “relationship” count – Whether judge entitled to impose separate penalties for substantive offences alleged and to cumulate such penalties upon the punishment imposed upon the “relationship” count – Whether presentment oppressive and “abuse of process”.

Criminal law – Practice and procedure – Circumstances in which appellate court will entertain appeal against conviction in circumstances where applicant has pleaded guilty in court below.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. A. Shwartz	Victoria Legal Aid

WINNEKE, P.:

The appellant pleaded guilty before the County Court at Melbourne on 4 December 2000 to a presentment containing five counts. All counts arose out of a sexual relationship which developed between the appellant, a 40 year old man, and a child of 13-14 years of age (whom I shall call the complainant) who was a daughter of a friend of the appellant. This sexual relationship, so the Crown alleged, extended over a period from July 1999 until 7 April 2000 when its existence was discovered by the complainant’s mother. The disparity in ages between the appellant and the complainant reveals not only that the relationship was unlawful but suggests that the conduct of the appellant was predatory in nature, and that of the complainant the product of infatuation. That assessment of the relationship is, in my view, warranted notwithstanding the love professed by each of its participants towards the other. However, this appeal is based not so much on the gravity of the appellant’s behaviour as it is upon the procedure adopted by the Crown for dealing with it.

As its first count on the presentment, the prosecution alleged the offence of “maintaining a sexual relationship” contrary to s.47A of the Crimes Act 1958. The offence was alleged to have occurred from 1 July 1999 to 7 April 2000; that is the entire period of the sexual relationship between the appellant and the complainant. The remaining counts on the presentment (namely counts 2 to 5 inclusive) alleged specific offences of “wilfully indecent act” contrary to s.47 of the Crimes Act (count 2) and acts of “unlawful sexual penetration of a child between the ages of 10 and 16” contrary to s.46 of the Crimes…

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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Details

AGLC: R v GJB [2002] VSCA 54
Case: [2002] VSCA 54
Decision Date: 19 April 2002

CaseChat Overview and Summary

In the matter of R v GJB, the appellant was convicted of maintaining a sexual relationship with a child under the age of 16, contrary to section 47A of the Crimes Act 1958. The case proceeded in the Supreme Court of Victoria, with the appellant subsequently appealing to the Court of Appeal. The dispute centred around the interpretation and application of the amended provisions of section 47A, introduced by the Crimes (Amendment) Act 1997, and the proper way to charge and sentence the appellant for the alleged offences.

The court was required to determine whether the charges laid out in the presentment, which included both the offence of maintaining a sexual relationship and additional counts of substantive offences occurring within that relationship, were valid. Specifically, the court needed to decide whether the latter counts were alternatives to the relationship count or if they could be considered separately. Furthermore, the court had to consider whether the judge was entitled to impose separate penalties for the substantive offences and cumulate them with the punishment for the relationship count, and whether this constituted an oppressive or abusive use of the judicial process.

The court's reasoning and outcome focused on the interpretation of the statutory provisions and the application of the principles of criminal law. The court held that the substantive offences were not alternatives to the relationship offence but were rather particulars of the relationship itself. Consequently, the court found that the judge was not entitled to impose separate penalties for the substantive offences and cumulate them with the punishment for the relationship count. The court deemed the presentment as oppressive and an abuse of process, leading to the quashing of the convictions and sentences on the substantive offence counts. The appellant's conviction for maintaining a sexual relationship with a child under 16 remained, but the sentences for the substantive offences were set aside.

The final orders of the court were that the convictions and sentences for the substantive offence counts were quashed, while the conviction for maintaining a sexual relationship with a child under 16 was upheld. The court's decision provides clarity on the interpretation of section 47A of the Crimes Act 1958 and the proper way to charge and sentence an appellant in such cases.

Orders