R v Rasih
[2021] VCC 1322
•25 August 2021
,
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00912
| THE QUEEN |
| v |
| TARKAN RASIH |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2021 | |
DATE OF RULING: | 25 August 2021 | |
CASE MAY BE CITED AS: | R v Rasih | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1322 | |
RULING
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Subject:Criminal law – stay application
Catchwords: Charge of use carriage service to access child pornography and a charge of use carriage service to access child abuse material – whether charges duplicitous with a charge of possessing child abuse material obtained or accessed using a carriage service – stay application in relation to charges 1 and 2
Legislation Cited: Crimes Act 1914 (Cth) s4C, Criminal Code (Cth) ss 474.19(1), 474.22(1) and ss474.22A(1)
Cases Cited:Pearce v The Queen (1989) 194 CLR 610; R v Fulop [2009] VSCA 296; R v Gordon [2009] QCA 209; R v Porte [2015] NSWCCA 174; R v De Leeuw [2015] NSWCCA 183
Ruling: Application for stay refused
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
| For the Accused | Dr M FitzGerald | Doogue + George Defence Lawyers |
HER HONOUR:
1The accused, Mr Tarkan Rasih is charged on indictment with the following offences contrary to the Criminal Code (Cth) (‘the Code’)[1]:
(a) Accessing child pornography using a carriage service between 30 July 2017 and 20 September 2019 contrary to sub-section 474.19(1) of the Code (charge 1);
(b) Accessing child abuse material using a carriage service between 21 September 2019 and 23 February 2020 contrary to sub-section 474.22(1) of the Code (charge 2); and
(c) Possessing material, being child abuse material, on 26 February 2020, in the form of data held in a computer or contained in a data storage device, obtained or accessed using a carriage service contrary to sub-section 474.22A(1) of the Code (charge 3).
[1]Indictment dated 26 October 2020
2On 26 February 2020, the police executed a search warrant at the accused’s home and seized his Toshiba laptop computer. The accused provided police with usernames and passwords to the applications on his computer. The computer was examined and found to contain a large number of images and videos depicting child abuse material.
3An examination of the accused’s internet search history revealed that he had accessed peer-to-peer networks (“P2P”), which allows the sharing of files with other P2P users. The analysis also revealed “torrent file fragments” or fragments of computer files containing metadata holding various information that had titles corresponding with categorised child abuse material, such as the term “PTHC”. Many of the files were saved with references to the age of the children involved. This material had been stored on the computer hard-drive on numerous occasions between 30 July 2017 and 23 February 2020.
4In his record of interview, the accused admitted downloading thousands of child abuse videos and images over several years, including in the weeks prior to his arrest[2].
[2]Record of Interview, T page 42-45, 71.
Application for stay
5There is no dispute regarding the facts that found the charges. On behalf of the accused, application is made to permanently stay charges 1 and 2 on the indictment. The application is made on the basis that a continuation of the two charges would be an abuse of process. The defence argues these charges are duplicitous and would render the accused liable to double punishment because the conduct of accessing child pornography/ child abuse material using a carriage service (charges 1 and 2) is an element of, and therefore subsumed by, charge 3 on the indictment.
6There is no dispute that charges 1 and 2 cover a single course of accessing the relevant material, but that separate charges are needed to reflect the legislative amendments which took effect from 21 September 2019 under the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) (‘the amending Act’). Under the amending Act, the offence of using a carriage service to access child pornography under subsection 474.19 was repealed and replaced with sub-section 474.22 which created the offence of using a carriage service to access child abuse material. For the purposes of the stay application, nothing turns on this amendment.
7Relevantly, the amending Act also introduced a new ‘possession’ offence by enacting sub-section 474.22A of the Code, in the following terms:
474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b)the material is in the form of data held in a computer or contained in a data storage device; and
(c)the person used a carriage service to obtain or to access the material; and
(d)the material is child abuse material.
(2) Absolute liability applies to paragraph (1)(c).
(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a),(b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used the carriage service to obtain or access the material.
Note: A defendant bears the legal burden in relation to the matters in this subsection.
8In brief, the applicant argues that as sub-section 474.22A of the Code contains physical elements of both possessing and accessing the material using a carriage service, the access charges now overlap or are subsumed by the possession charge. As a consequence, the accused is exposed to a risk of double punishment for the possession charge (charge 3), an element of which includes ‘using a carriage service to obtain or access the material’ and the charges of accessing child pornography/child abuse material using a carriage service (charges 1 and 2).
Prosecution submissions
9The prosecution opposes the stay application. The Crown advanced three arguments in its submission that the access charges represent ‘discrete and distinct offending’ from the charge of possession and that, accordingly there is no duplicity or any prospect of double punishment that arises.
10Firstly, the Crown submits that the criminality or gravamen of the offence created by subsection 474.22A of the Code is the possession of child abuse material. The Crown argues the requirement in subsection 474.22A (1)(c) that the material possessed was accessed by using a carriage service has no relevance to the conduct of possessing the material, and accordingly, to an accused’s culpability for the offence.
11The Crown’s submissions contend that the element in subsection 474.22A(1)(c) serves no purpose other than to create a jurisdictional nexus to the Commonwealth for the offence of possessing child abuse material. Support for this submission is found in the Explanatory Memorandum accompanying the Amending Act which introduced subsection 474.22A[3]:
The offences in Schedule 3 rely on the Commonwealth’s telecommunications power under the Australian Constitution at section 51(v). Therefore, the requirement in the offence that the relevant criminal conduct be engaged in using a carriage service is a jurisdictional requirement. A jurisdictional element of the offence is an element that does not relate to the substance of the offence or the defendant’s culpability but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.
[3]Explanatory Memorandum, Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 at [105]
12Secondly, the Crown submits it is significant that no fault element attaches to the element of using a carriage service to access the material that is then possessed contrary to section 474.22A. Specifically, the prosecution is not required to prove, beyond reasonable doubt, that an accused intentionally used a carriage service to obtain or access the material. Rather, absolute liability attaches to that physical element under sub-section 474.22A(2) and is the subject of the presumption found in sub-section 474.22A(3). The Crown submits that the statutory provisions make clear that what is sought to be punished by section 474.22A is the possession of the material, which must be intentional, and not the fact that it was obtained or accessed using a carriage service.
13Additionally, had the legislature intended to merge the offences of possessing and accessing child abuse material by enacting section 474.22A, it could have elected to do so clearly by repealing the access offence altogether. That it did not do so reflects the discrete criminality of the two Commonwealth offences; one of accessing child abuse material and the other of possessing child abuse material.
14Thirdly, the Crown contends that whilst there may be some overlap in the two offences where the material accessed is the same as that possessed, the offences themselves are distinct and discrete forms of criminality warranting separate punishment. The offences, it is submitted, have different elements and are directed at different vices or criminality. Accessing child abuse material is aimed at criminalising the activity of searching for, locating and viewing child abuse material. The vice or gravamen of the offence under section 474.22 (and its predecessor, section 474.19) is directed to the use of the internet to access the market for child abuse material, which in turn increases the demand for that market[4]. Possession of child abuse material, it is submitted, is directed to a separate vice which is the second or additional step of saving the material for ongoing or future use which may include viewing, distribution, sharing or sale.
[4]Outline of Crown submissions dated 28 July 2021, at [14] and the reference to R v Gordon [2009] QCA 209
15That the provisions are directed at discrete criminality is, in the Crown submission, consistent with the decision of the Victorian Court of Appeal in R v Fulop[5], notwithstanding that the Court was there considering the issue of double punishment in the context of a Commonwealth access offence and a State possession offence. In its consideration of the issue of double punishment, the Court of Appeal stated[6]:
Further, it was submitted, the cumulation of six months was excessive as the possession was in substance encompassed by the act of gaining access to the material on the internet.
The elements of the offences overlapped but they were not identical. While the appellant was able to obtain possession of the pornographic material through a carriage service, the service also enabled users to disseminate the material. The Commonwealth offence concentrates on the internet because, as the Parliamentary Secretary to the Minister said in his Second Reading Speech:
Law enforcement agencies estimate that around 85% of child pornography seized in Australia is distributed via the internet. By focusing on the internet, these new Federal offences target the very heart of the abhorrent child pornography industry.
[5]R v Fulop [2009] VSCA 296
[6]ibid, at [10]-[12]; see also R v Porte [2015] NSWCCA 174
On the other hand, the state offence is not concerned with the means by which the offender gains possession of pornographic material. The appellant could gain access to the material without possessing it. In this case, he took a further step by downloading the material and thereby obtaining possession of it. The Commonwealth offence was concerned with the images found on the hard drive of the appellant’s computer. The state offence was constituted by the CD’s and DVD’s made and retained by the appellant. In my opinion, the offences did not overlap to such an extent that it rendered inappropriate the degree of cumulation ordered by the sentencing judge.
16The prosecution submits that this decision and others such as R v Gordon, R v Porte and R v De Leeuw[7] are apposite where the introduction of the Commonwealth offence was aimed at strengthening its framework to criminalise online child abuse by creating the offence of possessing child abuse material through a carriage service to ensure that the act of possession was separately captured under the Commonwealth Code.
[7]R v Gordon [2009] QCA 209 (Gordon), R v Porte [2005] NSWCCA 174 (Porte), R v De Leeuw [2015]
NSWCCA 183 (Leeuw)
Defence submissions
17In support of the application for a stay, Dr Fitzgerald submits the distinction drawn in cases such as Fulop, Porte and Gordon ceased to apply with the creation of the new Commonwealth possession offence.
18The defence argues that a plea to charge 3 on the indictment no longer results in a situation where it could be said, as it was in Gordon, that the offence “did not involve the use of the internet”[8]. Similarly, in contrast to the position in Fulop, it could not be said the possession offence “is not concerned with the means by which the offender gains possession of the pornographic material”[9]. By enacting s 474.22A of the Code, Parliament has made it an element of the offence that the offender ‘used a carriage service to obtain or access the material’. This was not the case under the State possession offences. Accordingly, the argument that the offences address a different vice or a discrete criminality ceases to apply. Moreover, the decision in Fulop was concerned with the issue of double punishment and not duplicity.
[8]Gordon at [37]
[9]Fulop at [12]
19The defence submits that it is irrelevant that the existence of the element in s474.22A is explained by the need for a constitutional nexus with the telecommunications power in s51(v) of the Constitution. Rather, the critical fact is that it is now a physical element of the offence created by s 474.22A (albeit a jurisdictional element) that an offender used a carriage service to obtain or access the material. As a consequence, the defence submits the principles enunciated in the High Court decision of Pearce v the Queen[10] are enlivened insofar as the elements of the access offences are “the same as, or included in”[11] the elements of charge 3.
[10]Pearce v R [1998] HCA 57, (1998)194 CLR 610 (Pearce)
[11]Pearce, at [18]
20The defence expanded upon this argument by way of illustration. For instance, the possession offence created by s 474.22A could not be proved if a person other than the accused was responsible for accessing the child abuse material via the internet. It is a physical element of the offence that it is the accused who accessed the material.
21By way of contrast, the defence referred to the jurisdictional elements contained in Commonwealth drug possession offences. Under such provisions, it is only necessary to establish that “the substance was unlawfully imported” or “the substance is reasonably suspected of having been lawfully imported” (see ss307.5-10 of the Code) in order to satisfy the relevant nexus to the Commonwealth head of power. Under these provisions, the ‘jurisdictional element’ is purely objective. It is not, it is highlighted, an element of these offences that the accused ‘unlawfully imported the substance’.
22The defence submits that nothing turns on the fact that the physical element found in s474.22A(1)(c) is an absolute liability provision. In response to the prosecution contention that the elements are distinguishable in that no subjective fault element attaches to s474.22A(1)(c), the defence submits as follows:
·the element relates to the offender’s conduct, and not the objective provenance of the material;
·in real and practical terms, if a person accesses material via the internet, it is implicit in the provision that this is done intentionally. The terms ‘used’ and the purposive construction ‘to access’ both imply, in ordinary language, a sense of intentional action. This is particularly so where charge is put on the basis of a course of conduct that results in the accumulation of a large volume of material over a period of years.
23It follows, the defence argue, that a plea to charge 3 conclusively admits that the accused intentionally used the internet to access the material. Such a plea therefore admits the facts and elements of charge 1 and 2. A prosecution under s 474.22A therefore entitles a sentencing court to punish an offender for the conduct of using a carriage service to access the child abuse material that was in their possession. It is argued that as the maximum penalty for the possession offence is the same as the access offence/s, there is sufficient sentencing range to address the criminality encompassed by the access offences.
24Ultimately, the defence submits that to proceed on charges 1 and 2, in addition to charge 3, would give rise to “impermissible duplicity” and would be an abuse of process.
Legal principles
25The legal principles that apply to the question of double jeopardy and double punishment are well established. In Pearce, the majority in the High Court examined the nature of “double jeopardy” and made the following observations that are relevant to the issue in dispute in this application[12]:
·Firstly, that a single series of events can give rise to several different criminal offences to which different penalties attach;
·Secondly, prosecutors should frame charges in a way that will reflect all of the accused’s criminal conduct, and thus enable the imposition of punishment that truly reflects the criminality of that conduct;
·Thirdly, the stages in the criminal justice process should be considered separately. At the stage of prosecution, it is necessary to consider whether the accused is entitled to enter a plea in bar to one or more counts on the indictment or is entitled to a stay of proceedings on one or more counts. At the stage of punishment, it is necessary to consider whether the accused is entitled to be sentenced “in some way differently from the sentences imposed” to avoid double punishment.
[12]Pearce, at paragraphs [11]-[15]
26In discussing the principles applicable to a plea in bar (based on either autrefois acquit or autrefois convict), the High Court re-stated that these will apply to offences the elements of which “are the same as”, or “are included in”, the elements of the offence for which an accused has been tried to conviction or acquittal[13]. It was in that context that the High Court discussed the difficulty in determining whether a plea in bar is available where a person is charged with different offences arising out of substantially the same facts[14]. The High Court observed that in such cases, there may be sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charges “are identical or in which all the elements of one offence are wholly included in another”[15].
[13]Pearce, at paragraph [18]
[14]Pearce, at paragraph 19]
[15]Pearce, at paragraph [24]
27In Pearce, the High Court proceeded to consider, as a separate issue, the inherent power of a court to prevent an abuse of process and to grant a stay of proceedings by reason of double jeopardy. In determining there was no abuse of process in the two counts brought against the appellant, the High Court stated as follows:
The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused, and consonant with what was held in R v DeSimoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.
28For that reason, High Court held the primary judge correctly refused the stay application.
Consideration
29The facts in Pearce are informative. There, two charges arose out of a single incident where the appellant broke into the victim’s home and beat him. He was charged with maliciously inflicting grievous bodily harm with intent to do the victim grievous bodily harm (s33 of the NSW Crimes Act) and with breaking and entering the dwelling, and while there, inflicting grievous bodily harm on the victim (s110 of the NSW Crimes Act).
30In Pearce the elements of the offence overlapped but were not identical. The offence under s33 required a specific intent to do grievous bodily harm; the offence under s110 did not. The latter section only required an intention to do the acts that caused the harm. The offence under s110 required a breaking and entering; the offence under s33 did not. It followed therefore, that there was no double jeopardy and no basis to stay any of the charges on the indictment.
31The High Court said a more difficult question arose in deciding whether the appellant could be or was doubly punished. Ultimately in Pearce, the Court determined the individual sentences imposed on the two counts did amount to double punishment for the element that was common to both counts, namely, the infliction of grievous bodily harm.
32Here too, the elements of the offence overlap but are not identical. The offence under s474.22(1) requires a specific intent to access the child abuse material; the offence under s 474.22A does not. The use of a carriage service to access the child abuse material is a physical element of the offence created by s 474.22A only. The offence under s 474.22A requires a specific intent to possess or control the material; the offence under s474.22(1) does not. The latter provision is not directed to conduct involving possession and control of child abuse material at all.
33“Accessing material” is defined in s 473.1 of the Code, to include:
(a) the display of material by a computer or any other output of the material from a computer; or
(b) the copying or moving of the material to any place in a computer or to a data storage device; or
(c) in the case of material that is a program – the execution of the program.
34The term “possession or control of material” is separately defined at s 473.1 of the Code to include a person having possession of a computer or storage device that holds or contains the data. The act of accessing and the act of possessing or controlling child abuse material are distinct acts involving distinct criminality.
35As the prosecution identified, the act of accessing material is aimed at the activity of specifically and intentionally searching for, locating and viewing child abuse material. The possession or control of child abuse material involves further conduct of saving the material accessed, in this case to the computer hard-drive, making it available for ongoing or future use, such as viewing, distribution, sharing or selling the images.
36The element of accessing child abuse material using a carriage service in s 474.22A does not subsume the elements of the offences created by s 474.19 and s474.22 of the Code. This is because the element in s474.22A(1)(c) is a physical element and not a fault element; the prosecution is not required to establish an intention to access the child abuse material. I do not accept the defence construction that an intention to access the material is implicit in the provision. To the contrary, the legislature has clearly specified that absolute liability attaches to sub-section 474.22A(1)(c) of the Code. Culpability for the offence is directed to the act of possession or control of the child abuse material and not the means by which it was accessed. This element simply founds the jurisdictional nexus necessary for the Commonwealth offence.
37It follows therefore, that I do not consider that charges 1 and 2 on the indictment should be stayed as an abuse of process on the basis they are duplicitous. There is however, force in the submission of the defence that the access offences now overlap to a significant degree with the Commonwealth possession offence. The question of double punishment therefore arises. This, however, will be a matter for consideration in the ultimate sentence imposed on the charges and is not a foundation for staying the charges. In that regard, the following observations of the NSWCCA in R v Porte[16] will have relevance:
… there ought be some measure of accumulation with respect to the sentences to be imposes for these two offences. The offences overlap, but they are not identical. The Respondent gained access to the material through a carriage service. However, as the Crown submitted, he undertook systematic saving, utilising peer to peer technology to access and then save material to various hard-drives. The different vices to which the offences are directed remain significant. The respondent’s criminality for the two offences requires some measure of accumulation, subject to the application of the totality principle.
[16]R v Porte [2015] NSWCCA 174. [175]
38The application for a stay of charges 1 and 2 on the indictment is refused.
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