R v MAYNARD - [2014] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAYNARD
[2014] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Parker)
21 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appellant pleaded guilty to two counts of aggravated communicating with the intention of making a child amenable to sexual activity and one count of aggravated possessing child pornography – each offence was aggravated by reason of the appellant’s knowledge that the child was under the age of 14 years – the communicating offence was further aggravated by appellant’s abuse of a position of trust – appellant was an Aboriginal Education officer at a Department for Education and Child Development School – the child was a student of that school – appellant conceded before the sentencing Judge that s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA) applied – appellant contends the concession was made in error and that the Judge was in error in determining that s 10(3)(ba) of the CLSA applied – whether appellant’s good character or lack of previous convictions was of assistance to him in the commission of the offence – whether sentencing Judge properly concluded that s 10(3)(ba) of the CLSA applied and he could not have regard to the appellant’s previous good character and lack of prior convictions in determining the sentence.
Held per Vanstone J: the concession primarily involved a question of fact, which was in the appellant’s sphere of knowledge – it is not for this Court to go behind the concession on the basis of the mere suggestion of different counsel.
Held per Bampton J, Vanstone and Parker JJ agreeing: section 10(3)(ba) applied to the appellant – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 63B(3), s 63A(1), s 5AA(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(3), s 18A; Child Sex Offenders Registration Act 2006 (SA) Sch 1; Children's Protection Act 1993 (SA) s 8B, referred to.
R v Liddy (No 2) (2002) 84 SASR 231; MAK v Police [2008] SASC 342; R v Bonython-Wright (2013) 117 SASR 410; R v D (1997) 69 SASR 413, considered.

R v MAYNARD
[2014] SASCFC 128
Court of Criminal Appeal: Vanstone, Bampton and Parker JJ

VANSTONE J: I agree that the appeal should be dismissed and with the reasons of Bampton J.
I would only underline that, before the sentencing judge, the appellant clearly conceded that s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) applied, and that, accordingly, the court was not to have regard to the appellant’s prior good character or lack of convictions.
The concession primarily involved a question of fact, which was within the appellant’s sphere of knowledge. It is not for this Court to go behind the concession…

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.

Continue reading R v MAYNARD

Details

AGLC: R v Maynard [2014] SASCFC 128
Case: [2014] SASCFC 128
Decision Date: 21 November 2014

CaseChat Overview and Summary

In the case of R v Maynard, the appellant, an Aboriginal Education Officer at a Department for Education and Child Development School, pleaded guilty to two counts of aggravated communicating with the intention of making a child amenable to sexual activity and one count of aggravated possessing child pornography. Each offence was aggravated by reason of the appellant’s knowledge that the child was under the age of 14 years. The communicating offence was further aggravated by the appellant's abuse of a position of trust. The appellant conceded before the sentencing Judge that s 10(3)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) applied, but he now contends that the concession was made in error and that the Judge was in error in determining that s 10(3)(ba) of the CLSA applied. The legal issues the court was required to decide were whether the appellant’s good character or lack of previous convictions was of assistance to him in the commission of the offence, and whether the sentencing Judge properly concluded that s 10(3)(ba) of the CLSA applied and he could not have regard to the appellant’s previous good character and lack of prior convictions in determining the sentence.

The court held that the concession primarily involved a question of fact, which was in the appellant’s sphere of knowledge. It was not for this Court to go behind the concession on the basis of the mere suggestion of different counsel. The court also held that section 10(3)(ba) applied to the appellant and that the appeal was dismissed. The court found that the appellant’s employment and good character assisted him in the commission of the offences, as he was able to maintain contact with the girl and thereby commit the offences. The appellant’s role as a mentor within the community also assisted him in the commission of his offending. The court concluded that the Judge was not in error declining to take into account the appellant’s prior good character and lack of previous convictions in determining the sentence. The appellant’s offending was a gross breach of the trust he held in his position as an Aboriginal Education Officer.

The final orders of the court were that the appeal was dismissed, and the appellant’s conviction and sentence were upheld. The court found that the appellant’s employment and good character assisted him in the commission of the offences and that the Judge was not in error declining to take into account the appellant’s prior good character and lack of previous convictions in determining the sentence. The court concluded that the appellant’s offending was a gross breach of the trust he held in his position as an Aboriginal Education Officer, and a strongly deterrent sentence was warranted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the alternative, the appellant submitted that the factors favouring suspension were so compelling that, even if the Court could not have regard to his alleged good character or lack of previous convictions, the Judge was in error in not suspending the sentence.Background At the time of his offending, the appellant was employed at a Department for Education and Child Development (the Department) R-12 School as an Aboriginal Education Officer and Flexible Learning Outcomes Case Manager. His responsibilities at the school included liaising with Aboriginal students from reception to year 7 and their families to facilitate engagement with the education system. He was also particularly involved in coaching, umpiring, organising and fundraising for netball and basketball. His offending involved a female Aboriginal year 8 student at the school who was aged 13 years and 11 months at the time of the offending. In April 2013, the girl became infatuated with the appellant and sent him a friend request on Facebook. The appellant did not know the girl before she messaged him. The girl says that she met the appellant when she was in primary school when he played and umpired netball. She describes his role at the school as “a mentor with the Aboriginal kids at the [“A”] centre”. The “A” Centre is located on the school’s premises and is dedicated to Indigenous students, their families and visiting community members. Following the receipt of the Facebook friend request, the appellant and the girl communicated by way of Facebook Messenger and mobile phone text messages. The communications became sexually explicit and included discussions about both the appellant and the girl masturbating and the appellant expressing a desire to have sexual intercourse with the girl. The girl sent to the appellant’s mobile phone images of her vagina, the appellant sent images of his penis following ejaculation. Count 1 related to the appellant sending sexually explicit text messages to the girl between 1 May and 4 May 2013. Count 2 related to him sending text messages to the girl between 11 May and 14 May 2013. Count 3 related to the appellant receiving and storing on his mobile phone two images of the girl’s vagina. The offending came to light when one of the girl’s school friends noticed a message attaching a photograph of the appellant’s penis on the girl’s phone. The matter was reported to a teacher and the police were contacted. The girl’s mobile phone was seized by police. The appellant was then arrested and his mobile phone was also seized. The appellant admitted exchanging sexually explicit material with the girl but initially denied knowing she was under 14. He suggested that all communications were from her to him and that he succumbed to exchanging messages because she gave him the impression that if he did not respond she might feel rejected and harm herself. The appellant further suggested to police that he ignored her constant messages. These statements were untrue.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Press contended that the appellant’s employment and/or good character assisted him in the commission of the offences in ways other than creating the opportunity. In his role as the school support officer, he had constant contact with the girl for several weeks. He admitted that, in the course of communicating with the girl, he arranged to meet her at the school during school hours on various occasions. She came to his office at the “A” Centre and assisted him with work on some occasions, he saw her at recess and lunchtime, and he had met her for coffee at the school. He was able to make her amenable to sexual activity by reason of his employment at the school as he was able to maintain a relationship with her.Conclusion I am of the view that s 10(3)(ba) of the CLSA does apply to the appellant. The appellant’s lack of convictions assisted him to win his position with the Department. That employment in turn facilitated the appellant maintaining contact with the girl after her initial contact and thereby assisted him to commit the offences. The appellant said during his evidence that the girl contacted him in his capacity as someone in the community who was well respected and who “people having issues came to”. He said she needed someone to talk to and did not have anywhere else to go. My assessment of his evidence is that his good character as a mentor within the community also assisted him in the commission of his offending. The Judge was not in error declining to take into account the appellant’s prior good character and lack of previous convictions. The sexually explicit messages between the appellant and the girl reveal the sexual precociousness of the girl as well as her naiveté and immaturity. Whilst the girl initiated the communications, the appellant did not put a stop to them. Rather, he escalated the sexual nature of the communications by sending a photograph of his penis, by actively encouraging the girl to send photographs and video of herself to him, and by encouraging her to masturbate, photograph that act and send the photographs to him. The appellant was 24 and the girl was 13. It is evident from her statement that she admired him as a netball coach and player and looked up to him. He was a mentor to Aboriginal students and a liaison person between them, their families and the school. He held a position of trust and responsibility. He was entrusted with the care of students to facilitate their engagement in school. His offending was a gross breach of that trust. The appellant, by his pleas to count 1 and 2, admitted that he abused his position of trust.[8][8] An aggravated offence against s 63B(3)(b) is committed if the offender abused a position of authority, or a position of trust in committing the offence. Employees such as the appellant who occupy education support roles and who are not registered teachers do not fall within the definition of a person in a position of authority in s 63B(6). The fact that the offending was committed from a position of community trust demands a strongly deterrent sentence as “it is of great public importance that children are protected from the insidious advances of the very persons the community charges with the responsibility of protecting them”.[9] [9] R v Bonython-Wright (2013) 117 SASR 410 at [100].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.