R v Turvey

Case [2017] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TURVEY

[2017] SASCFC 28

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)

11 April 2017

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

Appeals against conviction and sentence.

The appellant was found guilty of unlawful sexual intercourse with a person under the age of 14, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

Sexual intercourse is defined in s 5 CLCA as including any activity consisting of or involving the penetration of a person’s vagina by any object or consisting of or involving the continuation of the penetration of a person’s vagina by any object.

The prosecution case was dependent upon inferences that could be drawn from seven images saved on the appellant’s mobile phone that were all taken within the one minute. The images depicted the hand of the appellant holding a vibrator protruding from the vagina of the complainant and being withdrawn. There was no evidence of who penetrated the complainant with the vibrator. The Judge concluded that the appellant’s holding of the vibrator whilst it protruded from the complainant’s vagina as depicted in the images constituted an activity involving the continuation of the initial act of penetration and therefore constituted sexual intercourse within the meaning of s 5 CLCA.

Whether the evidence was capable of proving beyond reasonable doubt that the appellant had undertaken an activity consisting of or involving the penetration of the complainant’s vagina with an object or the continuation of such activity and thus amounted to sexual intercourse within the meaning of s 5 CLCA.

The appellant was sentenced for the unlawful sexual intercourse conviction, and for two counts to which he pleaded guilty, namely, possessing child pornography, contrary to s 63A(1)(a) CLCA, and producing child pornography, contrary to s 63(a) CLCA. The appellant received a head sentence of four years imprisonment. A non-parole period of two years imprisonment was fixed.

The appellant appealed against his sentence on grounds including that the Judge erred in that the head sentences, the overall effective head sentence and the non-parole period were manifestly excessive having regard to the finding, not…

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R v Turvey [2017] SASCFC 28
Case
[2017] SASCFC 28
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CaseChat Overview and Summary

The case of *R v Turvey* was heard by Nicholson, Lovell, and Hinton JJ. The appeal concerned a conviction for unlawful sexual intercourse with a child under the age of 14, and also an appeal against the sentence imposed. The central dispute revolved around the interpretation of the elements of the offence and whether the evidence presented supported the conviction.

The legal issues before the court included whether the offence could be established if the appellant did not directly perform the act of penetration, but rather engaged in an activity involving penetration by an object. The court also considered whether merely holding an object that had penetrated a child's body constituted an "activity involving penetration" under the relevant legislation. Furthermore, the appeal raised questions regarding the principles applicable to appeals against sentence, specifically the distinction between specific error and manifest excess or inadequacy.

The court reasoned that the purpose of the offence was to protect the bodily integrity of children under 14, and that their consent was irrelevant due to their immaturity. It was held that the physical element of the offence could be satisfied by proof that the accused engaged in an activity involving penetration, or the continuation of such an activity, even if the accused did not personally perform the act of penetration. However, the court clarified that merely holding a penetrated object would not necessarily constitute such an activity if the process of penetration had concluded. Regarding the appeal against sentence, the court affirmed that it would intervene if the sentencing judge acted on a wrong principle, considered irrelevant matters, mistook the facts, or failed to consider material considerations, or if the sentence was unreasonable or plainly unjust.

Ultimately, the court dismissed the appeal against conviction, finding that the conviction was inevitable based on the evidence and that no substantial miscarriage of justice had occurred. The appeal against sentence was also dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J HINTON J (dissent)
I would apply the proviso. I am satisfied beyond reasonable doubt of the guilt of the appellant of the charge of unlawful sexual intercourse. In my view his conviction on the evidence adduced was inevitable. Accordingly, in my view, no substantial miscarriage of justice has occurred.d. Conclusion I would dismiss the appeal.Appeal against sentencea. Applicable principles Permission having been granted to the appellant to appeal against his sentence on all grounds, the powers of this Court engaged are those contained in s 353(4) CLCA. That section provides:…(4)Subject to subsection (5), on an appeal against sentence, the Full Court must— (a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced— (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or (b) in any other case—dismiss the appeal. (5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence. As to whether a sentence is affected by error, in Markarian v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ said:[43]As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".[43] (2005) 228 CLR 357 at [25]. See also Dinsdale v The Queen (2000) 202 CLR 321 at [3] (Gleeson CJ and Hayne J), [21] (Gaudron and Gummow JJ), [58] (Kirby J). In AB v The Queen Hayne J explained the significance of the difference between specific error and manifest excess or inadequacy to the task of this Court.[44] He said:[45][44] (1999) 198 CLR 111.[45] AB v The Queen (1999) 198 CLR 111 at [129]-[130].The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular: "If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in House v The King: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed. (footnotes omitted).

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J,

The purpose of the offence may be seen as protecting the bodily integrity of a person under the age of 14. That protection is paternalistic in that the consent of the child to the act or to participating in the activity matters not.[16] This reflects a determination that the maturity and development of the child is not such that he or she can appreciate the risk to their wellbeing that participation in such acts or activities poses. That risk does not evaporate just because the child may, for example, penetrate themselves in the course of participating with another in an activity that involved them penetrating themselves. The child’s bodily integrity is no less violated. If this is accepted the construction of s 49(1) CLCA advanced above is consistent with the mischief that the Parliament intended to address. [16] Criminal Law Consolidation Act 1935 (SA) s 49(7).c. Consideration I turn to consider the arguments on appeal. In the light of the analysis of the elements of the offence conducted above, the appellant’s argument that the offence could only be established if it was proven beyond reasonable doubt that the appellant penetrated JF or that he continued an act of penetration must be rejected. As indicated, the first of the physical elements may be satisfied by proof beyond reasonable doubt that the accused engaged in an activity involving the penetration of a person’s vagina by an object, or the continuation of an activity involving the penetration of a person’s vagina by an object without the accused performing the act of penetration. The above analysis also reveals that merely holding an object that has penetrated and is protruding from the vagina, labia majora or anus of a person will not necessarily constitute an activity involving the penetration of the vagina, labia majora or anus of a person or the continuation of such activity. As the Judge observed, penetration is a noun. It describes a process. An activity will only involve penetration if that process has not concluded, or, if commenced, is continued. Thus the act of withdrawing an object from the vagina of a child that a third person inserted thereby penetrating the child, will not necessarily involve an activity that includes as a necessary circumstance, condition or consequence of such activity the process of penetrating the child or the continuation of that activity. Penetration occurred antecedent to the activity and is not continued as part of the activity. The Judge concluded that the images did not disclose manipulation of the vibrator by the appellant (other than to withdraw it).[17] However, he accepted the prosecution submission that it could not be said that this was a case of the mere touching of the vibrator whilst it was in the vagina of JF.[18] He added that “so much is apparent from an ordinary viewing of all of the photographs which show the left hand of the accused”.[19] He did not elaborate on exactly what he meant by this nor return to it in his reasons.[17] R v Turvey [2016] SADC 55 at [41].[18] R v Turvey [2016] SADC 55 at [41].[19] R v Turvey [2016] SADC 55 at [41].