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 resentenced on the remaining counts in the same way as he was sentenced below so that the resulting total effective sentence was four years and six months’ imprisonment instead of five years’ imprisonment. A non-parole period of two years and nine months should be set. [5], [32].

Application for leave to appeal against conviction and sentence

This was an application for leave to appeal against conviction on three counts of committing an indecent act with or in the presence of a child under the age of 16 and against sentence on these counts as well as eight counts of procuring a

29 VR 230

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, and one count of possessing child pornography. The facts are stated in the judgment of Mandie JA.

L C Carter and R F Edney for the applicant.B L Sonnet for the Crown.Cur adv vult.Redlich JA.1Although the applicant 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 phone to each of the complainants, could not constitute the offence charged. For the reasons given by Mandie JA, I agree that we are bound to quash the convictions as they were unsupportable in law. The decisions of this court in R v Alexander and McKenzie1 and R v Coffey,2 which we must follow as they have not been demonstrated to be plainly wrong, preclude a construction of the words “with or in the presence of” in s 47 of the Crimes Act 1958 that would encompass the act of sending images via telephone.2Whether such conduct should be made a criminal offence under the Crimes Act3 must be a matter for others to determine. As there was no argument before us as to whether the offence under s 474.27A of the Criminal Code Act 1995 (Cth), which deals with the same conduct, is intended to cover the field,4 I express no view as to that issue.3As to the appeal against sentence, having regard to the transcript of the lengthy conversation between the applicant and the complainant the day after the offence was committed, I doubt that it was open to the sentencing judge to be satisfied, to the criminal standard, that the conduct the subject of count 6 was non-consensual. Be that as it may, I agree with Mandie JA that the sentence imposed was within range even if the conduct was consensual and that no different sentence should be imposed.4As to the complaint made as to the sentencing judge’s findings on count 7, another transcribed conversation between the applicant and the complainant which preceded the conduct the subject of count 6 entitled the sentencing judge to find that the applicant’s purpose underlying the conduct the subject of count 7 was an aggravating circumstance. The risk of such an adverse finding necessarily inhered in the issues to be decided.5 The facts and inferences which might be drawn from those facts were obvious during the course of the plea.5For the reasons given by Mandie JA, I would resentence the applicant as he proposes. 1

(2002) 6 VR 53.

2

(2003) 6 VR 543.

3

This was the second case this month where such conduct has been disclosed.

4

The conduct would constitute the offence of using a carriage service to transmit indecent communication to a person under 16 years of age under s 474.27A of the Criminal Code Act 1995 (Cth).

5

Ucar v Nylex Industrial Products Pty Ltd(2007) 17 VR 492, at 509, [43].

29 VR 231 Mandie JA.6On 11 May 2009, the applicant6 pleaded guilty in the County Court to eight counts of procuring a minor for the production of child pornography (counts 1, 2, 4, 5, 11, 12, 14 and 16),7 two counts of producing child pornography (counts 3 and 8),8 one count of sexual penetration of a child under 16 years (count 6),9 one count of supplying a drug of dependence to a child under 18 years (count 7),10 three counts of committing an indecent act with or in the presence of a child under 16 years (counts 9, 10 and 15)11 and one count of possessing child pornography (count 13).127On 22 May 2009, the applicant was sentenced as follows:

Count 1 — six months (three months cumulative);

Count 2 — six months;

Count 3 — three months;

Count 4 — six months;

Count 5 — six months;

Count 6 — three years (base sentence);

Count 7 — two years (one year cumulative);

Count 8 — three months;

Count 9 — one year (six months cumulative);

Count 10 — one year;

Count 11 — nine months (three months cumulative but concurrent with count 12);

Count 12 — nine months (three months cumulative but concurrent with count 11);

Count 13 — one month;

Count 14 — six months;

Count 15 — one year;

Count 16 — six months.

8The court directed for the purposes of s 6E of the Sentencing Act 1991 that there be no further cumulation of the sentences. This resulted in a total effective sentence of five years’ imprisonment and the court fixed a non-parole period of three years.9The applicant seeks leave to appeal against conviction on the following ground:

• 1.

  The applicant should not have been convicted of counts 9, 10 and 15 because as a matter of law on the admitted facts he had not committed an indecent act with or in the presence of a child.

10The applicant seeks leave to appeal against sentence on the following grounds:

• 1.

  The learned sentencing judge erred in his assessment of the seriousness of count 6, in particular by rejecting the submission that the conversation following the event put the conduct in a different context.

• 2.

  The learned sentencing judge denied the applicant procedural fairness and erred in his findings for the purposes of count 7 that the applicant had “… supplied [AA] with the drug to make her more amenable to you having

6

The applicant’s date of birth is 28 May 1980.

7

See s 69 of the Crimes Act.

8

See s 68 of the Crimes Act.

9

See s 45(2)(c) of the Crimes Act.

10

See s 71B of the Drugs, Poisons and Controlled Substances Act 1981.

11

See s 47 of the Crimes Act.

12

See s 70 of the Crimes Act.

29 VR 232

• 2.

  sexual intercourse with her” and that the purpose of the offence was “… to facilitate the commission of another offence involving … sexual gratification”.

• 3.

  The learned sentencing judge erred by doubly punishing the applicant on count 7 by reason of: (a) finding that count 6 was aggravated by count 7; (b) ordering cumulation of 1 year of the sentence imposed on count 7 on the base sentence of 3 years imposed on count 6.

• 4.

  The individual sentences on counts 6 (3 years) and 7 (2 years), the order for cumulation of 1 year of the sentence on count 7, the total effective sentence and the non-parole period are each manifestly excessive.

• 5.

  The learned sentencing judge erred by mistaking the maximum penalty for count 6 (sexual penetration of a child under the age of 16 where the child is aged between 10 years and 16 years, contrary to s 45(2)(c) of the Crimes Act 1958 (Vic)) as 15 years’ imprisonment, when in fact it is 10 years’ imprisonment.

11The offences may be summarised as follows:13

The counts on the presentment relate to the offending of [the applicant] between 28 January 2008 and 24 May 2008. During this time [the applicant] was aged 28 … Out of the 10 complainants listed on the presentment, only two, [AA] and [BB], actually met with [the applicant] in person. All other contact between the minors and [the applicant] was by way of mobile phone or through the internet using a messenger service called MSN Messenger.

Count 1 Procurement of a minor for Child Pornography

[CC], then aged 14 came into contact with [the applicant] after her friend had been texting him via her mobile phone. The complainant began “chatting” with him via MSN Messenger before her friend gave [the applicant] her mobile phone number. [The applicant] began texting the complainant over a 2 week period beginning on 29 January 2008. Initially the messages were generalised before [the applicant] started texting her saying that he wanted to have sex with her. [The applicant] sent the complainant credit for her pre-paid phone. In her VATE of 1 July 2008 the complainant describes telling [the applicant] how old she was and that she told him to “go away” and to leave her alone.

The explicit text messages included “I want you to ride my cock and I want you to suck me off”. [The applicant] repeatedly asked whether the complainant was free to catch up and told her that he wanted to have sex with her.

On three occasions [the applicant] asked for naked pictures of the complainant to be sent to him via the mobile phone. The complainant told him no and to leave her alone.

Count 2 Procurement of a minor for Child Pornography

[DD], then aged 17, came into contact with [the applicant] via MSN Messenger. It is alleged that [the applicant] found her MSN address via the complainant’s Myspace page. When the two first started messaging each other in late 2007 the complainant told him that she was 16 and that she attended school in Heidelberg. [The applicant] offered to buy her credit for her phone in early 2008 so that she could send him text messages. The complainant accepted and started [to] text message [the applicant]. He asked her to send a picture of herself. She declined. He replied “you just use me for credit”. [The applicant] sent the complainant a number of pictures of which two depicted himself holding his erect penis.

The complainant described in her statement that the chat content between them became increasingly sexual in nature. She stated that [the applicant] continued to ask her for pictures of herself, including naked pictures. She never did send him any.

13

This summary is drawn from the “Summary of Prosecution Opening” dated 11 May 2009.

29 VR 233 Count 3 Production of child pornography

The complainant, [EE], saved her MSN chat logs with the complainant from 21 February 2008. Within the conversations between the two the complainant spoke of having sex with [the applicant]. The conversation was also about the complainant having sex with him and her performing oral sex upon him. [The applicant] also stated “do you like hard?” and “I bet you love it doggy style … I can get rite in deep so you can feel all of me”. On 1 April 2008 he continued to state “well anytime you’d like to try my hard cock you’ll have to let me know”.

Count 4 Procurement of a minor for Child Pornography

[BB], then aged 15 years, came into contact with [the applicant] through a friend [AA] (count 6) and began texting him via mobile phone. She initially met [the applicant] at the Carrum Downs shopping centre where her friend [AA] introduced them. During the text messaging [the applicant] asked her to meet up with the complainant and whether or not she would have sex with him.

Again, the messages became increasingly sexual in content to the point where [the applicant] was asking the complainant to send him naked pictures of herself. The complainant sent him a picture of herself with her sunnies on. He replied “can you send anything more revealing?” He also asked for a full body naked shot of herself to him. She refused and [the applicant] called her a “sook”. [The applicant] asked “have you got anything, like, any photos that are more sexy that are showing more?” Eventually the complainant sent a fully clothed picture of herself and one showing her right breast. The complainant told him in no uncertain terms to stop texting him. He persisted.

Count 5 Procurement of a minor for Child Pornography

[FF], then aged 13, came into contact with [the applicant] via her friend [GG]. [The applicant] learnt her mobile phone number and started text messaging her. The complainant added him as a friend via MSN Messenger. She told him that she was 13 and lived around Carrum Downs. He asked whether she would like to meet up for a good time and that he could buy her some alcohol. [The applicant] asked “can I have a picture of your boobs” to which the complainant repeatedly said “no”. She described him asking that similar question of her over a 2 month period.

Count 6 Sexual Penetration with a Child under 16 years (AA) andCount 7 Supply Cannabis to a Child (AA)

[AA], then aged 14 years, initially had contact with [the applicant] via MSN Messenger after [the applicant] had viewed her details from her Myspace page. He initially indicated to the complainant that he was 17 and added a different photo of himself. The two communicated quite regularly via text messages and MSN Messenger. The conversations were about drugs and sex on many occasions (see count 8). The complainant told him her age and that she was in year 9 at school. He offered to pick her up from school and to “hang out”. Eventually the complainant agreed to meet him. The complainant asked him whether they were going to “just hang out as mates?” to which [the applicant] replied “yeah, that’s it”.

On 2 May 2008 [the applicant] attended the complainant’s school and met her out the front at about 3.00 pm. He drove his white commodore station wagon. She describes that she felt scared getting into his car and that they then drove to his house. They both went to the back shed at the house in Seaford where [the applicant] weighed up a gram of cannabis before wrapping it and giving it to the complainant. He then gave the complainant two cones of a mix of marijuana that he made up. She smoked those cones via a bong device. She immediately felt ill and vomited before passing out on the couch within the house.

The complainant described passing out for 30 seconds or so on the couch and then waking up and finding [the applicant] standing in front her “pulling his penis from her vagina”. “He was pulling his dick out or — like already had it in there while I passed

29 VR 234

out”. “He was inside my vagina”. “I know his pants were half way down his ankles and he ejaculated into the condom, the condom was hanging off. He just walked away and took it off and then I left”.

The MSN chat logs between the pair the day after this offence indicate that [the applicant] was disappointed with his performance and that the complainant stated “there will be other times”. Eventually the complainant made it clear that she did not want contact. Her brother and mother viewed the conversations between them and threatened [the applicant] to involve the police.

Count 8 Produce Child Pornography

This count covers the MSN Messenger text conversations had between [the applicant] and complainant [AA] on 3 May 2008. The conversation with [AA] referred to [the applicant] apologising for not lasting very long the night before whilst he had sex with [AA]. He referred to being able to last at least 10 or 15 minutes.

Count 9 Indecent Act with Child under 16

[HH], then aged 14, had contact with [the applicant] via her friend [AA]. [AA] passed on [HH]’s details and [the applicant] added her on the Myspace page and MSN Messenger. She told him that she was 14 years of age and that she did not have credit to pay for text messages. He bought her credit for her pre-paid mobile phone. The two sent numerous text messages. The complainant then describes that “over the computer he tried to send a picture of himself”. “It was the lower half of himself”. “The same one I got on my phone, had on my phone before I deleted it. It was of his penis.” “It was just his penis on an erect”. “They were all of his penis”. The complainant describes that in one photo he was lying down on a bed with his legs spread and holding his penis. The indecent act is the sending of the pictures to the complainant.

Count 10 Indecent Act with Child under 16

[JJ], then aged 15 years, had contact with [the applicant] after he added her as a friend via MSN Messenger. She accepted and they started chatting about general things. At first it was not sexual according to the complainant. The conversations began to include sexual content. These also included text messages being sent to the complainant via mobile phone. [The applicant] then began sending the complainant pictures. The complainant described [the applicant’s] MSN picture as him holding his genitals. She describes receiving close-up picture via MSN of [the applicant’s] penis which was shaved. In all, the complainant described receiving 3 pictures of [the applicant’s] penis. He also text messaged her stating that he wanted to “stick my cock into you”. The indecent act is the sending of the pictures to the complainant.

Count 11 Procurement of minor for Child Pornography

[KK], then aged 16 years, had contact with [the applicant] via MSN Messenger from about 10 May 2008. She told him that she was 16 years of age and he told her that he was 20. The complainant gave him her phone number and [the applicant] started texting her. During the text messages [the applicant] told her that “I want to root you”. He then asked for some pictures of the complainant. Between 15 and 16 May 2008 [the applicant], on at least 4 occasions, asked for pictures of the complainant. The complainant initially sent face shots and pictures of a non-sexual nature. [The applicant] then asked for “tit shots”. The complainant said “no”. [The applicant] repeated his requests during the day the complainant finally sent him a picture via the mobile phone that depicted her vagina and a blue coloured sex toy penetrating her. [The applicant] replied “yum”.

Count 12 Procurement of minor for Child Pornography

[LL] initially had contact with [the applicant] via MSN Messenger after her friend [JJ] told her that he gives free credits to your mobile phone. This complainant told him that she did have a mobile phone but did not have any credit. He then added credit to

29 VR 235

her phone. The two started communicating regularly via text messages. The complainant described that he sent messages saying that he would like to sleep with her and that he would like to “go down” on her. The complainant described how [the applicant] was “really nagging for a picture” so that she sent him one. She describes her friend [MM] then taking a picture of her boobs and vagina and sent them whilst she was in the room. [MM] was 16 at the time. [The applicant] sent a number of pictures to her phone depicting his penis.

Count 13 Knowingly possess Child Pornography

This count relates to count 12 where [the applicant] was asking [LL] for photos and her friend [MM] taking a photo of her breasts and vagina and sending it to him in response via [LL’s] mobile telephone. [MM] was 16 at the time.

Count 14 Procurement of minor for Child Pornography

[NN], then aged 13, initially had contact with [the applicant] via friends that chatted with him via their mobile phones. She describes [the applicant] sending her $50 in credit for her pre-paid mobile phone and then later sending another $50. She told him that she was 14 years of age and the two texted each other for about 2 weeks. [The applicant] sent the complainant at least 5 pictures of his penis and requested naked pictures of the complainant. She did not send any naked pictures. The complainant recalls [the applicant] requesting pictures of her the second time that he sent her credit for her phone.

Count 15 Indecent act with a Child under 16

The complainant [NN] describes receiving at least 5 pictures of his private areas. She also described how [the applicant] would include a caption stating “wouldn’t you like to ride this?” It is the sending of these lurid photos that constitutes the indecent act.

Count 16 Procurement of minor for Child Pornography

The complainant [HH], as well as receiving naked pictures of [the applicant] via her mobile phone was also requested on numerous occasions to send some to [the applicant]. She describes receiving very explicit text messages from [the applicant]. [The applicant] asked for a picture of her and she said she did not have any more credit on her phone. He paid for credit on the phone and asked that she provide him with pictures of her breasts and body. The complainant then sent him a picture of her stomach. [The applicant] then asked what was under her top. She sent him a picture of her breasts. The complainant also described sending [the applicant] a picture of herself laying on her bed with her underwear on and with her hand down her underwear.

Appeal against conviction on counts 9, 10 and 1512The applicant submitted that the convictions on counts 9, 10 and 15 should be quashed because, on the admitted facts, there was no offence — the alleged indecent acts had not been committed “in the presence of” the complainants and, as there was no physical contact, they were not committed “with” the complainants. The applicant relied on two prior decisions of this court.14 Given that the Court of Appeal was bound by its prior decisions unless they were plainly incorrect, it was submitted that these decisions were correct, alternatively not plainly incorrect.13At the outset, the Crown complained that the proposed appeal sought to interfere with a settled plea agreed between experienced counsel. On the other hand, the Crown rightly did not seek to contend that the court had otherwise than 14

R v Alexander and McKenzie(2002) 6 VR 53 and R v Coffey(2003) 6 VR 543.

29 VR 236 a duty to quash the convictions on the relevant counts if they were insupportable as a matter of law. The position generally and also as regards plea negotiations was made clear by Callaway JA in R v Tait.15 In that case, his Honour dealt with the question of appeals against conviction where a plea of guilty had been recorded. His Honour referred to R v Forde16 in which Avory J (delivering the judgment of the English Court of Criminal Appeal) said that, where a plea of guilty had been recorded, the court could only entertain an appeal against conviction if it appeared either that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it or that upon the admitted facts he could not in law have been convicted of the offence charged. Callaway JA said that Avory J’s words should be understood and applied against the background that the power to intervene where conviction was consequent on a plea of guilty arose from the general requirement to set aside a conviction if there had been a miscarriage of justice. His Honour said that if a person could not lawfully be prosecuted, he could not lawfully be convicted. His Honour added that the Crown’s submission that there was no miscarriage of justice because the applicant had been represented and had pleaded guilty in the context of a plea negotiation did not weigh against the illegal quality of the convictions and was not a basis for distinguishing the case from the general principle laid down in R v Forde and subsequent cases in Victoria to a like effect.14The Crown next submitted that the decisions of this court regarding the construction of the word “with” were incorrect and, more importantly, were inconsistent with decisions of the High Court. It is at this point convenient to consider the line of cases dealing with the construction of the word “with” or like expressions in this area.15In R v Hornby,17 the English Court of Criminal Appeal held that on a charge of gross indecency by one man “with” another it must be established that the two men were acting in concert. The same view was taken by that court in R v Hunt18 and in R v Pearce.19 However in R v Hall,20 Lord Parker CJ said that “with” did not mean “with the consent of” but must be read in the sense of “towards”.16In R v Preece,21 the English Court of Appeal construed the word “with” in s 13 of the Sexual Offences Act 1956 (UK), dealing with the offence of a man committing an act of gross indecency “with” another man in public, as requiring the participation or at least tacit consent of the two men concerned. The court22 applied Hornby and Hunt and did not follow Hall saying:23

We think the complete offence requires the participation, the cooperation of two men … To construe the section so that the complete offence could be committed even though the other man did not consent could lead to the embarrassment of, and injustice to, innocent men …

The embarrassment and distress that this could cause perfectly respectable men is such that we could not so construe the section unless it was incapable of any other

15

[1996] 1 VR 662, at 665; see too R v Coffey(2003) 6 VR 543.

16

[1923] 2 KB 400.

17

[1946] 2 All ER 487.

18

[1950] 2 All ER 291.

19

[1951] 1 All ER 493.

20

[1964] 1 QB 273, at 276.

21

[1977] QB 370.

22

Scarman LJ, Geoffrey Lane and Willis JJ.

23

At 375–6.

29 VR 237

construction. Is it necessary so to construe the section? We think not. A man who commits a public act of indecency without the participation of another man can be prosecuted under other provisions of the law if the act be really public …

17In Saraswati v R,24 the High Court was concerned with a charge of committing an act of indecency “with or towards” a person under the age of 16 years contrary to s 61E(2) of the Crimes Act 1900 (NSW). Section 61E(1) of that Act created an offence where any person who assaulted another person and, at the time of, or immediately before or after, the assault, committed an act of indecency upon or in the presence of the other person where that other person was under the age of 16 years, and s 71 of the same Act made it an offence to unlawfully and carnally know any girl above the age of 10 years and below the age of 16 years. The High Court held25 that a charge could not be brought under s 61E(2) when the conduct relied on was an indecent assault for the purpose of s 61E(1) or an act of unlawful carnal knowledge for the purpose of s 71. McHugh J considered that the proper construction of the words “act of indecency” departed from their literal meaning when regard was had to the history and context of all of the relevant provisions. Gaudron J reached a similar conclusion by what her Honour described as a “somewhat different” path, but her Honour concluded that the expression “act of indecency with or towards a person” did not include an act which constituted an indecent assault or carnal knowledge within the meaning of other relevant provisions.18In Crampton v R,26 an accused was charged with an offence, contrary to s 81A of the Crimes Act 1900 (NSW) which provided that it was an offence for a male to commit an act of indecency with another male. The High Court held that committing an act of indecency “with” another required participation of that other. Gaudron, Gummow and Callinan JJ27 referred to the above line of cases decided in England and quoted the passages in Preece (set out above) in relation to the matter of embarrassment and distress. It would appear that their Honours were influenced by the same policy considerations as expressed in Preece. Indeed they expressly stated that the Attorney-General of the day had expressly referred to “the problem of homosexuality”:

implying, we think, consensual participatory acts, or, acts done in concert.

19Kirby J reached a similar conclusion for a number of reasons including that the context of the provision lent weight to the interpretation that the mischief which the section was meant to address was male sexual conduct performed in concert with another male.20In R v TSR,28 the applicant was relevantly charged with committing an indecent act “with” the complainant contrary to s 47(1) of the Crimes Act 1958. The relevant acts relied on occurred without the participation or consent of the complainant. Chernov JA (with whom Phillips CJ and Phillips JA agreed) rejected a submission by the applicant that s 47(1) required the Crown to establish that the indecent act was committed with the participation (meaning the 24

(1991) 172 CLR 1.

25

The majority comprised McHugh J (with whom Toohey J agreed) and Gaudron J; Deane and Dawson JJ dissented.

26

(2000) 206 CLR 161.

27

Gleeson CJ, McHugh and Hayne JJ agreeing.

28

(2002) 5 VR 627.

29 VR 238 willing participation) or co-operation or consent of the complainant. His Honour gave a number of reasons for that conclusion. First, s 47(2) expressly provided that consent was not relevantly a defence suggesting that consent was otherwise irrelevant as a constituent of the offence and as consent could hardly be required to establish the commission of an indecent act “in the presence of” a child there was no reason for distinguishing that situation from one where the indecent act was committed “with” the child. Secondly, his Honour referred to and relied upon a detailed legislative history of the relevant provisions. His Honour saw nothing in the Act itself or in the history of the legislation to suggest that s 47 dealt only with indecent acts against relevant children which did not constitute an assault on them. His Honour then referred to cases that had been relied on by the applicant which dealt with different expressions used in legislation in other jurisdictions. In that context his Honour referred to Crampton which he pointed out was concerned with a provision directed to homosexual acts irrespective of the age of the participants and commented that it was “scarcely surprising that the High Court ruled that [the relevant provision] was concerned with consensual participatory acts”. His Honour also referred to Preece as involving similar considerations and specifically referred to the court’s reliance upon the question of “embarrassment and distress”. His Honour also considered the case of Saraswati and emphasised the significance of particular provisions that were involved in that case.21In R v Alexander and McKenzie,29 Alexander was inter alia charged with wilfully committing an indecent act with the complainant (a child under the age of 16 to whom he was not married). The facts alleged were that Alexander had, over the telephone, encouraged the complainant to engage in an indecent act but she had not in fact done so although pretending to do so. The question was whether, on those facts, Alexander had committed an indecent act “with or in the presence of” a child within the meaning of s 47(1) of the Crimes Act. Counsel for Alexander submitted that the offence had to be committed in the physical presence or proximity of the person offended against and that the word “with” should take its colour from the words “in the presence of” suggesting that the legislature intended that the act contemplated by the section required physical contact “with” the victim. Counsel for Alexander further submitted that, although it was not necessary for the victim to be taking an active role or to be consenting, the offence had to be directed to or against the person who was in the physical proximity of the accused. After referring to R v TSR,30 Winneke P said that in Victoria, as long ago as 1958, s 69(1) of the Crimes Act had made it an offence for any male person in public or private to commit any act with gross indecency with or in the presence of any girl under the age of 16 years and that it had never been suggested that the word “with” was to be interpreted as extending to indecent acts beyond the presence of the person offended against or, in particular, that it could extend to the use of indecent language over the telephone and that, rather, the word “with” was confined to participating conduct.31 The learned President referred with apparent approval to cases in New South Wales that had 29

(2002) 6 VR 53.

30

(2002) 5 VR 627.

31

(2002) 6 VR 53, at 77–8.

29 VR 239 interpreted “with” as involving a participatory act and also referred to the decision of the High Court in Crampton. Winneke P then said:32

… Although it is true that s 47 of the Crimes Act (Vic) contemplates an offence without consent or concert, it seems to me that the word “with”, used in juxtaposition with the words “in the presence of” must imply actual physical contact with the victim. Kirby J expressed the view that any ambiguity which attended the word “with” had been removed in other jurisdictions by combining it with the words “in the presence of”. He referred, in this regard, to s 47 of the Crimes Act (Vic).

It follows that, in this case, where the offence alleged in count 9 was one of committing an indecent act “with” the complainant, the evidence of speaking indecently to her over the telephone was incapable of supporting the offence alleged in the count, and that the judge was wrong to direct the jury that it could.

22In R v Coffey,33 the applicant was relevantly charged with committing an indecent act with a child under the age of 16 constituted by certain indecent acts committed in the presence of the complainant but not involving any actual physical contact. The main question to be decided was whether, given that the applicant had been charged with committing an indecent act “with” the complainant, the section created a single offence and that it was therefore sufficient to show that he had committed an indecent act “in the presence of” the complainant. That question was answered by the court in the affirmative. In the course of coming to that conclusion, Callaway JA (with whom Buchanan and Eames JJA agreed) referred with approval to the conclusion reached by Chernov JA in TSR that s 47 was intended to deal fully with indecent acts involving children under the age of 16 and that, in contrast with other legislation, the child need not be a willing participant. In relation to the question of the word “with” requiring actual physical contact, Callaway JA said that Winneke P’s reasons to that effect in Alexander formed part of the ratio decidendi of the case and he then said:34

I do not stay to consider whether, in the absence of that authority, I should have construed “with” as requiring actual physical contact or as excluding a telephonic communication. Like any other Victorian judge, I am bound by R v Alexander and McKenzie.

23His Honour added that he did not find the cases on different provisions in other jurisdictions of assistance and that they would certainly not deflect him from a straightforward reading of s 47 that was borne out by two recent decisions of this court (that is TSR and Alexander).24In Tasmania v Baker,35 the applicant was charged with an indecent act with a young person under the age of 17 years contrary to s 125B(1) of the Criminal Code (Tas) which provided that “[a]ny person who does any indecent act with, or directed at, another person who is under the age of 17 years is guilty of a crime”. The alleged offence was said to be constituted by the applicant sending the child two emails containing sexual images and pornographic material. Crawford J held that the alleged actions were capable of amounting to an indecent act and that it was not necessary, for an act to be an indecent act, that 32

At 78 (citation omitted).

33

(2003) 6 VR 543; see too R v ADJ(2005) 153 A Crim R 324.

34

(2003) 6 VR 543, at 550, [21].

35

(2006) 15 Tas R 409.

29 VR 240 it be a “bodily act” of the accused. His Honour made no reference to any of the authorities mentioned above and in fact said that his research had been limited because of lack of resources readily available in Launceston. On the other hand, there is no reason to suppose having regard to the precise language of the provision that the decision was necessarily incorrect.25Two possible questions of construction of the words “with or in the presence of” need to be distinguished. The first question is whether those words should be construed as extending to indecent acts committed over or by means of a telephone or a computer or other such mode of communication. The answer to that question is, I think, foreclosed by the decisions in Alexander and Coffey. It seems to me that those decisions are correct but, in any event, they are not plainly incorrect. Nor are these decisions, contrary to the Crown’s submission, inconsistent with the decisions of the High Court in Saraswati and Crampton. Those High Court decisions were concerned with a second question of construction, namely, whether the offences under the particular legislation being considered had to be participatory or consensual. The decisions were not concerned with the problem of action by telephonic or like communication. In the present case, it was the latter problem that was debated before this court. There was little if any argument directed to the question whether the communications by computer the subject of counts 9, 10 and 15 involved participation or consent by the complainant recipients. However, assuming that these counts did not involve such participation or consent, I consider that the decision of this court in TSR should be followed. It seems to me, with respect, that Chernov JA validly distinguished the High Court and other decisions as being concerned with different legislation and different language and involving different policy considerations. In any case, the decision in TSR is not plainly incorrect. This conclusion on the second question of construction cannot of course assist the applicant’s argument but it presents no bar to the success of the applicant’s submission on the first question of construction.26For the foregoing reasons I would grant leave to appeal, allow the appeal and quash the convictions36 on counts 9, 10 and 15.Appeal against sentence27It was common ground that, if the convictions on counts 9, 10 and 15 were quashed, the applicant had to be resentenced on all remaining counts. Furthermore, it was common ground that the sentencing judge had erred by mistaking the maximum penalty for count 6 as 15 years’ imprisonment when in fact it was 10 years’ imprisonment (ground 5).28Notwithstanding the foregoing, both sides found it appropriate and convenient to consider the other proposed grounds of appeal against sentence as a means of assessing whether the judge below had misconceived the seriousness of the offences or otherwise erred in a way relevant to the resentencing exercise.

29The applicant submitted that the sentencing judge had erred in his assessment of the seriousness of count 6 by rejecting the submission that the conversation between the applicant and AA following the events put the conduct in a different context because that conversation was consistent with consensual activity. 36

The question of the impact (if any), upon the Victorian provisions, of Pt 10.6 of the Commonwealth Criminal Code which creates a number of telecommunications offences, was not argued on appeal and I do not need to consider the question.

29 VR 241 30With regard to that submission, it is clear that the description of the conduct constituted by count 6 in the Crown summary is not consistent with consensual activity given that AA is said to have passed out before the act of penetration occurred and woke up to find that it had happened. On the other hand, the applicant’s counsel contended, on the plea, that the conversation that occurred the next day showed that “the allegation … is one not of rape”. I would reject the applicant’s submission. In my opinion, what was said by AA to the applicant the next day does not in any way detract from, or undermine, her account of penetration without her consent as alleged in count 6. Furthermore, I do not think that what AA said the next day has the effect of detracting in any significant way from the seriousness of the offence. The applicant’s conduct was on any view despicable. It was conceded on behalf of the applicant that the sentence on count 6 was appropriate if the conduct was non-consensual but in my opinion, in the circumstances, it was within range whether or not the conduct was non-consensual.31The applicant submitted that the sentencing judge had denied him procedural fairness and erred in his findings (in relation to count 7) to the effect that the applicant had supplied AA with marijuana in order to make her more amenable to his having sexual intercourse with her. I would reject that submission. The inference drawn by the sentencing judge was in my opinion obvious and the only inference open on the uncontested facts. Contrary to the further submission made on behalf of the applicant, the circumstances of count 7 were aggravating circumstances and justified the cumulation ordered by the sentencing judge.32The remarks of the learned sentencing judge were lengthy and comprehensive and I would endorse them without repeating them here. In my opinion, the applicant should be resentenced on the counts which remain in the same way as he was sentenced below. Because the conviction on count 9 on which an order for cumulation was made has been quashed, the resulting total effective sentence is four years and six months’ imprisonment instead of five years’ imprisonment. I would fix a non-parole period of two years and nine months.Bongiorno JA.33I agree with Mandie JA and have nothing to add.Appeal against conviction allowed; accused resentenced.Solicitors for the applicant: Doogue & O’Brien.Solicitor for the Crown: Craig Hyland, Solicitor for Public Prosecutions.C R WILLIAMSBARRISTER-AT-LAW