R v Savage - [2010] VSCA 220

29 VR 229

SAVAGE v RCourt of AppealRedlich, Mandie and Bongiorno JJA17 August, 02 September 2010[2010] VSCA 220Criminal law — Sexual offences against children — Plea of guilty — Indecent images transmitted by computer and mobile telephone — Does not amount to committing an indecent act with or in the presence of a child — Convictions on these counts quashed — Resentence on remaining convictions — “With or in the presence of a child” — Crimes Act 1958 (No 6231)s 47..

S was convicted following a plea of guilty to eight counts of procuring a minor for the production of child pornography, two counts of producing child pornography, one count of sexual penetration of a child under 16 years, one count of supplying a drug of dependence to a child under 18 years, three counts of committing an indecent act with or in the presence of a child under 16 years and one count of possessing child pornography. The indecent act counts involved the sending of indecent images via his mobile telephone to each of the complainants. S was sentenced to a total effective sentence of five years’ imprisonment with a non-parole period of three years. S sought leave to appeal against conviction on the three indecent act counts, and against sentence.

Held, allowing the appeal against conviction and resentencing the accused: (1) Where a plea of guilty had been recorded, the court would entertain an appeal against conviction only if it appeared either that the accused did not appreciate the nature of the charge or did not intend to admit he or she was guilty of it or that upon the admitted facts the accused could not in law have been convicted of the offence charged. [13].

R v Tait[1996] 1 VR 662 considered.R v Forde[1923] 2 KB 400 referred to.

(2) Although S pleaded guilty to three counts of committing an indecent act with or in the presence of a child under the age of 16, the admitted facts, namely the sending of indecent images via his mobile telephone to each of the complainants, could not constitute an offence under s 47 of the Crimes Act 1958 as the acts were not committed “with or in the presence of” the complainant. The court was bound to quash the convictions as they were unsupportable in law. [1], [25].

R v Hornby[1946] 2 All ER 487; R v Preece[1977] QB 370; Saraswati v R(1991) 172 CLR 1; Crampton v R(2000) 206 CLR 161; R v TSR(2002) 5 VR 627; R v Alexander and McKenzie(2002) 6 VR 53; R v Coffey(2003) 6 VR 543; Tasmania v Baker(2006) 15 Tas R 409 considered.R v Hunt[1950] 2 All ER 291; R v Pearce[1951] 1 All ER 493; R v Hall[1964] 1 QB 273 referred to.

(3) S should be…

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 Savage [2010] VSCA 220
Case: [2010] VSCA 220
Decision Date: 2 September 2010

CaseChat Overview and Summary

In the case of R v Savage, the defendant stood before the court on charges related to the transmission of indecent images via computer and mobile phone. The defendant had pleaded guilty to multiple counts, but the court had to consider the legality of certain counts that involved allegations of indecent acts 'with' the complainants. The court had to determine whether these related counts were supportable in law under section 47 of the Crimes Act 1958. This required careful examination of the language used in the charges and the statutory provisions to ascertain if the counts accurately reflected the legal requirements.

The court found that the language used in some of the charges did not align with the statutory requirements, specifically in relation to the allegations of indecent acts 'with' the complainants. This discrepancy meant that the counts could not be legally sustained, and thus, the convictions on these counts were quashed. The court emphasised the importance of precise wording in criminal charges to ensure they are legally valid and accurately reflect the conduct alleged. This decision underscored the necessity for prosecutors to meticulously draft charges to avoid potential legal challenges and ensure the integrity of the judicial process.

Following the quashing of the invalid counts, the court proceeded to re-sentence the defendant on the remaining valid convictions. This re-sentencing was conducted to reflect the corrected legal framework and to ensure that the defendant was appropriately punished only for the offences that were legally substantiated. The court’s decision highlighted the importance of ensuring that criminal proceedings adhere to legal standards, protecting both the rights of the accused and the integrity of the judicial system.

ORDERS:
Re-sentence on remaining convictions.

Orders

Orders of the court

Re-sentence on remaining convictions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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