Za v R

[2018] NSWCCA 116

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

ZA v R [2018] NSWCCA 116

Hearing dates:

28 May 2018

Decision date:

08 June 2018

Before:

Macfarlan JA at [1];
Johnson J at [2];
Adamson J at [3]

Decision:

Extension of time to appeal against conviction and to apply for leave to appeal against sentence refused.

Catchwords:

CRIME – conviction appeal – father arranged for his 12-year old daughter to marry – whether procured a child for unlawful sexual activity

 

WORDS AND PHRASES – meaning of the word “procure” in s 66EB of Crimes Act 1900 (NSW) – importance of context when considering meaning

 

CRIME – application for leave to appeal against sentence – assessment of objective seriousness as “very serious” open to sentencing judge – motive for offence was father’s religious belief – not an ameliorating factor – no error in judge’s sentencing process

  PRACTICE AND PROCEDURE – application for extension of time – advice received that no merit in appeal against conviction or application for leave to appeal against sentence – further advice obtained substantially later – extension of time to appeal against conviction and to apply for leave to appeal against sentence refused

Legislation Cited:

Crimes Act 1900 (NSW) ss 66C(1), 66EB(2)(a), 82, 83, 84, 91A, 91B, 91G, 321, 346, 351A, 351B
Crimes Act 1958 (Vic) s 56
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW)
Criminal Appeal Act 1912 (NSW) s 6
Criminal Procedure Act 1986 (NSW) s 133
Evidence Act 1995 (NSW) s 18
Interpretation Act 1987 (NSW) s 33
Marriage Act 1961 (Cth) s 11

Cases Cited:

Clarkson v R; EJA v R (2011) 32 VR 361; [2011] VSCA 157
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Broadfoot [1976] 3 All ER 753
R v Hillier (2007) 228 CLR 618; [2007] HCA 13
R v Nelson [2016] NSWCCA 130
R v Russell [1933] VLR 59
Regina v Castiglione [1963] SR (NSW) 393
Regina v Pikos [1967] VR 89
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 November 2007
United Nations, Convention on the Rights of the Child, 1989

Category:

Principal judgment

Parties:

ZA (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Trevallion (Applicant)
B Hatfield (Respondent)

  Solicitors:
Rivera Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/97105

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 April 2015 (Conviction)
17 July 2015 (Sentence)

Before:

Sweeney DCJ

File Number(s):

2014/44472

Judgment

1. MACFARLAN JA: I agree with Adamson J.

2. JOHNSON J: I agree with Adamson J.

3. ADAMSON J: On 1 April 2015 Sweeney DCJ, after a trial by judge alone, found ZA (the applicant) guilty of the following offences:

1. Intentionally procuring a child under 14 years of age for unlawful sexual activity with another person between 1 November 2013 and 12 January 2014: s 66EB(2)(a) of the Crimes Act 1900 (NSW) (the procuring offence); and

2. Being an accessory before the fact to the offence of sexual intercourse with a child between the ages of 10 and 14 years: ss 66C(1) and 346 of the Crimes Act (the accessory offence).

4. The procuring offence carries a maximum penalty of 15 years’ imprisonment and the accessory offence carries a maximum penalty of 16 years’ imprisonment.

5. The complainant (MG) was the applicant’s daughter. She was 12 years old at the time of the offences. The charges arose out of MG commencing a sexual relationship with the co-offender AC, who at the relevant time was a 26 year old university student. In November 2013 AC saw MG from a distance at Wallsend Mosque and began to make enquiries about marrying her. Eventually AC made contact with MG’s father, the applicant. The applicant facilitated telephone contact and face-to-face meetings between MG and AC. On 12 January 2014 a nikah ceremony was performed at the applicant’s home in Raymond Terrace. The ceremony was performed by an imam, Muhammad Tasawar, and was regarded by those attending as a religious marriage ceremony under Islamic law. Following the nikah ceremony MG began living with AC and commenced having sexual intercourse with him, including on the day of the wedding and on the weekend of 18-19 January 2014 when MG and AC returned to stay at the applicant's home.

6. In these reasons I make reference to the term “marriage” as this was used in evidence to describe the nature and effect of the ceremony which occurred on 12 January 2014. This was not a lawful marriage. However, it was regarded by the applicant and the participants as sufficient, according to the Islamic religion, to constitute a marriage and to authorise AC and MG to have sexual relations with each other. All references in these reasons to Islam and its tenets are derived solely from the evidence at trial.

7. On 17 July 2015 an aggregate sentence of 8 years’ imprisonment with a non-parole period of 6 years was imposed. The sentence commenced on 29 November 2014 and will expire on 28 November 2022. The applicant will be eligible to be released on parole on 28 November 2020. The sentence indicated for the procuring offence was 7 years’ imprisonment and that for the accessory offence was 5 years’ imprisonment.

8. A Notice of Intention to Appeal (NIA) was filed on 22 July 2015. It expired on 22 January 2016. Extensions were granted to 15 June 2016. On 6 June 2016 a further application to extend the NIA was refused by the Registrar. The present Notice of Application for Leave to Appeal was not filed until 27 March 2018 (that is, almost two years after the expiry of the NIA). The applicant, accordingly, requires an extension of time.

9. If an extension of time is granted the applicant appeals against his convictions and seeks leave to appeal against sentence on the following grounds:

“1. Her Honour erred in her interpretation of the word ‘procured’ in s 66EB(2)(a) Crimes Act [the construction ground].

2.   Her Honour’s verdicts are unreasonable and cannot be supported by the evidence [the unreasonable verdicts ground].

3.   The sentence upon the appellant was manifestly excessive.”

10. I propose to address the three grounds before considering whether time should be extended.

Ground 1: the construction ground

11. The issue raised by the first ground is the meaning of “procure” in s 66EB of the Crimes Act. For the purposes of considering this ground, it is sufficient to summarise the respective cases of the Crown and the applicant on the two counts.

The Crown case

The Crown case on count 1

12. It was the Crown case on count 1 that AC started having sexual intercourse with MG on 12 January 2014 when they left the applicant’s home and booked into a hotel in Nelson Bay. Because of MG’s age at the time, any sexual activity between her and AC was unlawful. It was the Crown case that the applicant had intentionally procured MG, a child, for unlawful sexual activity with AC by the following acts: allowing AC to have contact with MG, knowing that he was interested in marrying her; giving MG’s mobile phone number to AC; giving them permission to marry (in circumstances where he contemplated that it would lead to imminent sexual activity); giving consent to the marriage on 12 January 2014 during the ceremony which he allowed to take place in his own home; defying the wishes of MG’s mother whom he knew to be against the marriage; giving MG instructions as to the use of contraception; and allowing his daughter to leave home in the company of AC so that she could have an intimate relationship with AC.

The Crown case on count 2

13. Count 2 related to the first weekend after the marriage of AC and MG on which they returned to the applicant’s home to stay for the weekend. The Crown relied on the following: the applicant’s arranging for a marital bed for them (by directing the removal of single beds and the pushing together of single mattresses) to share in a bedroom dedicated for their use; the sexual intercourse between AC and MG that weekend; his enquiry whether MG needed to shower, which was said to indicate that he appreciated that she had had sexual intercourse with AC during the course of the night.

The defence case at trial

14. Trial counsel conducted the applicant’s case on the basis that the defence disputed that the applicant had given consent or permission for MG to marry AC. He also contended that oversight, omission or negligent act was insufficient for the offence in count 1. He submitted that it was insufficient to show that what the applicant had done was to “open a door for this sexual activity to occur much more easily” and that the Crown had to prove that whatever the applicant did was done with the intention of bringing about the resultant unlawful sexual activity. As to count 2, defence counsel at trial submitted that nothing the applicant did with respect to his daughter was relevant to this count as the Crown was required to show that the applicant did certain things with respect to AC to procure him to commit the offence.

The trial judge’s interpretation

15. In her Honour’s reasons for decision on conviction, the trial judge determined the meaning of “procure” in s 66EB as follows:

“. . . I will proceed on the basis of the dictionary definition of procure, being to cause or bring about.

Therefore, to prove the offence in count 1 the Crown must prove beyond reasonable doubt that the accused intentionally caused AC to have sexual intercourse with MG, or intentionally brought about that act or conduct, and that that sexual intercourse was unlawful sexual activity as that term is defined.”

16. Before addressing the competing interpretations advanced on the application in this Court, I propose to consider the legislative history of s 66EB, its statutory purpose, and the use of the word “procure” in the Crimes Act as a whole.

Statutory provisions

The legislative history of s 66EB of the Crimes Act

17. Section 66EB was inserted into the Crimes Act by the Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW) (the 2007 Amending Act). In the Second Reading Speech for the bill which became the 2007 Amending Act, the then Attorney-General and Minister for Justice referred to Article 34 of the 1989 Convention on the Rights of the Child (to which Australia is a signatory) which creates an obligation (on nation states) to protect children from “all forms of sexual exploitation and sexual abuse”. The Attorney referred to an increase in predatory sexual behaviour towards children through the internet and noted that the 2007 Amending Act was not confined to offences undertaken by the use of electronic communications. He said at p3587 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 November 2007):

“This bill makes it an offence for an adult to procure or groom a child for any unlawful sexual activity. It aims to capture the kinds of grooming activities commonly engaged in by paedophiles, whether online, through electronic communications or through any other means or activities. The offences of procuring and grooming have been drafted as separate offences in this bill, which is appropriate given that grooming is a preparatory offence and procuring involves more substantial acts. The offences are directed against people who are actively engaging with children in ways that make the children more likely to participate in sexual activity. Grooming can include a wide range of behaviour including conduct that encourages a child to believe they have romantic feelings for the adult or desensitising the child to the thought of engaging in sexual activity with the adult. Procuring a person to engage in sexual activity includes encouraging, enticing, recruiting or inducing – whether by threat, promises or otherwise – in relation to that activity. For example, procuring offences would apply when a person offered money to a child to engage in sexual acts or promised them gifts or some other form of benefit. The Government is committed to ensuring that such activities are outlawed and offenders punished in line with community expectations.”

18. Section 66EB of the Crimes Act was further amended by the Crimes Amendment (Sexual Offences) Act 2008 (NSW) to insert a further offence of meeting a child following grooming by adding s 66EB(2A) and (2B).

Section 66EB of the Crimes Act

19. Section 66EB was in its current form at the time of the applicant’s conduct and relevantly provides:

“66EB   Procuring or grooming child under 16 for unlawful sexual activity

(1) Definitions   In this section:

adult person means a person who is of or over the age of 18 years.

child means a person who is under the age of 16 years.

conduct includes:

(a)  communicating in person or by telephone, the internet or other means, or

(b)  providing any computer image, video or publication.

unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State).

(2) Procuring children   An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence.

Maximum penalty:

(a)  in the case of a child who is under the age of 14 years—imprisonment for 15 years, or

(b)  in any other case—imprisonment for 12 years.

(2A) Meeting child following grooming   An adult person:

(a)  who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and

(b)  who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person,

is guilty of an offence.

Maximum penalty:

(a)  in the case of a child who is under the age of 14 years—imprisonment for 15 years, or

(b)  in any other case—imprisonment for 12 years.

(2B)  For the purposes of subsection (2A), a child has been groomed for sexual purposes by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material.

(3) Grooming children   An adult person:

(a)  who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance, and

(b)  who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person,

is guilty of an offence.

Maximum penalty:

(a)  in the case of a child who is under the age of 14 years—imprisonment for 12 years, or

(b)  in any other case—imprisonment for 10 years.

(4) Unlawful sexual activity need not be particularised   In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity.

. . .”

The meaning of the word “procure” in the Crimes Act

20. The words “procure” and “procuring” are used in several sections in the Crimes Act. For example, s 82 criminalises certain conduct by a woman “with intent in any such case to procure her miscarriage”. Section 83 criminalises specified conduct by a third party with such intent. In s 84, the word “procures” is used in two contexts as follows:

“Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.”

[Emphasis added.]

21. The first use of the word in s 84 appears, from its context, to mean “obtain”; whereas the second use appears, from its context, to mean “bring about”. Section 91A relevantly provides that “Whosoever procures, entices or leads away any person (not being a prostitute), whether with that person's consent or not for purposes of prostitution . . . shall . . . be liable to imprisonment for seven years.” It has been held that the word “procure” in this context is synonymous with “recruit”: R v Broadfoot[1976] 3 All ER 753. It is used in the same sense in s 91B (procuring a person for the purposes of prostitution by drugs).

22. Section 91G criminalises the use of a child for the production of child abuse material and provides that any person who “causes or procures a child . . . to be so used” is guilty of an offence: s 91G(1)(b). It also provides that any person who, “having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence”: s 91G(1)(c). In this section it would appear that “procure” means something more than giving consent to, or allowing, such use.

23. Section 321 relevantly criminalises corruption of witnesses and jurors as follows:

“(1) A person who confers or procures or offers to confer or procure or attempt to procure any benefit on or for any person:

(a) intending to influence any person called or to be called as a witness in any judicial proceeding to give false evidence . . . , or

(b) intending to influence any person . . . in the person's conduct as a juror in any judicial proceeding . . .

is liable to imprisonment for 10 years.”

[Emphasis added.]

24. As with s 84, it would appear that the words “procure” and “procures” have different meanings in the different contexts in which they appear in this provision. The first use of “procures” would appear to mean “arrange”; whereas the second would appear to mean “obtain”.

25. Section 351A, which criminalises recruiting persons to engage in criminal activity, relevantly provides that a person who recruits another person to carry out or assist in carrying out a criminal activity is guilty of an offence: s 351A(1). The word “recruit” is defined in s 351A(3) to mean counsel, procure, solicit, incite or induce.

26. Section 351B has the effect that aiders and abettors can be charged and convicted as principal offenders. It relevantly provides that “Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender.” [Emphasis added.]

27. What these several examples demonstrate is that the word “procure” has different meanings, both in different sections of the Crimes Act as well as within the same section. Accordingly, the meaning of the word in the present context requires a textual analysis of the section, as well as a consideration of the purpose of the provision in order that the interpretation that promotes its purpose is preferred: s 33 of the Interpretation Act 1987 (NSW).

The parties’ submissions

28. Both parties, at trial and in this Court, called in aid the Macquarie Dictionary definitions of “procure” which were:

“1. to obtain or get by care, effort, or the use of special means: to procure evidence.

2. to effect; cause; bring about, especially by unscrupulous or indirect means: to procure a person's death.

3. to obtain for the gratification of lust or purposes of prostitution.

4. to act as a procurer or pimp.”

29. In summary, the applicant contended for the first definition, whereas the Crown contended for the second definition (which accorded with the trial judge’s interpretation).

30. The applicant submitted, on this basis, that the word “procure” required “some action involving care and effort to bring about the desired end” and relied on the following passage from Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 (Gleeson CJ, McHugh and Heydon JJ):

“[30] While the concept of aiding, abetting, counselling or procuring may extend beyond cases in which there is an agreement between the principal offender and the secondary participant, the term procure has a narrower meaning. In Attorney-General's Reference (No 1 of 1975), Lord Widgery CJ said:

‘To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening.’

[31] Not all procuring necessarily involves a conspiracy. However, in the present case, the nature of the procuring alleged against the appellant was straightforward. It did not vary between the Tragardh affidavit, and the prosecution case at trial. It was summarised in Vincent J's remarks on sentence:

‘Central to the prosecution case against you was the contention that you were … ‘the controlling mind’, ‘the shadow force’ and ‘the shadow master’ who directed all that took place in relation to the kidnapping. It was never argued that you may have been implicated in some less important way or that you may have performed some other role. The jury was instructed and must, accordingly, be taken to have found you guilty on that very clearly identified basis.

With respect to the count of murder, when and where Le Anh Tuan was executed by a bullet being fired into the back of his head is unknown and it is highly unlikely that we will ever learn who fired this single fatal shot. What we do know is that he was kidnapped with the threat being made explicitly and implicitly that if the ransom was not paid as demanded his life would be forfeited … The jury has found beyond reasonable doubt that you directed that kidnapping and that you well appreciated that a reasonable possible consequence of your actions was the death of the deceased.’”

[Emphasis in original; citations omitted.]

31. The applicant also relied on Regina v Castiglione [1963] SR (NSW) 393 in which this Court considered an appeal against a conviction for the offence of procuring a female under the age of 21 that some person other than the accused might have carnal knowledge of her. By majority (Clancy and Walsh JJ, Sugerman J dissenting) the appeal was dismissed. Of the word “procure”, Sugerman J said, at 399, that the authorities suggested that “some element of persuasion or inducement or influencing is essential.” His Honour continued, at 399:

“This accords with the meaning in general of the word ‘procure’, which imports effort, care, management or contrivance towards the obtaining of the desired end; and this, too, is involved in the performance of the functions of a ‘procurer’ or ‘pander’.”

32. Later, at 399, Sugerman J considered and rejected the second meaning referred to above in the context of that case in the following terms:

“To ‘cause’ or ‘bring about’ or ‘invite’ are not necessarily to procure in the relevant sense; and to sum up the meaning of ‘procure’ as ‘in other words to provide the means for a person to act immorally’ is to give altogether too wide an account of what may constitute procurement.”

33. Walsh J said, at 404:

“The accused must in some sense take an active part. It does not matter, of course, that the girl is a consenting party, but if it is she and not the accused who instigates and plans the affair, there is no offence. Secondly, it is not enough if the accused merely assists in some physical way in bringing about that which the girl herself has decided to do without any influence from the accused, e.g., by allowing her to use his room by lending her a car. If, in this sense, the phrase ‘to provide the means’ is used as a statement of what is sufficient, I think this is incorrect.”

34. The applicant also relied on Regina v Pikos [1967] VR 89 in which the trial judge, Smith J, directed a verdict of acquittal on a charge of procuring a woman under the age of 21 to have a carnal connection with another man under s 56 of the Crimes Act 1958 (Vic). Smith J said, at 90:

“I turn, then, to the construction of that section. It appears to me that for present purposes it is sufficient to say that, in order to constitute the offence of procuring under s56(1)(a), the following matters must be established: first, that the woman was under 21; secondly, that she had carnal connexion with a person or persons; thirdly, that the accused took some action, whether in the form of pressure, persuasion, inducement, proposal or otherwise, which influenced the mind of the woman and caused her to have the carnal connexion in question; and, lastly, that the accused did what he did with the intention of producing that result. I do not suggest that this set of propositions will necessarily cover all cases that may arise, but it appears to me to be sufficient for the purposes of the present case, it being understood that there must be a real influencing and that the requirement of a causal element will ordinarily involve, first, that the activity of the accused must have been a necessary cause, a causa sine qua non, and, secondly, that the chain of causation must not have been broken in the way in which a causal connexion can, in law, be broken.”

35. The applicant submitted, on the basis of Truong v The Queen, Regina v Castiglione and Regina v Pikos that the trial judge ought to have concluded that it was necessary for the Crown to establish that the appellant took some action which involved care and effort to bring about the desired end. He submitted that mere acquiescence or permission was insufficient “particularly in a situation where the underage female [MG] had instigated what was proposed.”

Consideration

36. As referred to above, this Court must prefer a construction of s 66EB which will advance its purpose. As is evident from the Second Reading Speech, the purpose of s 66EB was to protect children from sexual abuse. Unlawful sexual activity is a form of sexual abuse. The construction for which the applicant contended would have the effect that action intentionally causing or bringing about a child engaging in unlawful sexual activity would only amount to an offence against s 66EB if there was some degree of “care and effort” required or associated with it. Such a requirement would not advance the purpose of the section and would introduce a relatively fine distinction into s 66EB. In my view, express words would be required to produce such a result.

37. Further, the construction advanced by the applicant is at odds with the use of the word “procure” in s 66EB(3)(b) which relevantly provides that an adult engaging in grooming conduct "with the intention of making it easier to procure the child for unlawful sexual activity" commits an offence. Although the word “procure” can have a different meaning within the same section, as the examples set out above demonstrate, there is no textual or contextual basis to attribute different meanings to the word in s 66EB. The use of the word “easier” in s 66EB(3)(b) provides a further indication that the broader meaning adopted by the trial judge is to be preferred.

38. I do not consider Regina v Castiglione or Regina v Pikos to be of any particular assistance in the present case. They turn on the third and fourth meanings of the word “procure” in the list from the Macquarie Dictionary set out above, which specifically relate to particular offences.

39. The passage relied on by the applicant from Truong v The Queen does not determine the present question. First, the statutory provision in Truong v The Queen was significantly different, both in terms of its wording and the legislative purpose. The word “procure” in that case was used in the compendium “aids, abets, counsel or procures” which is regarded as part of the description of a general concept. In R v Russell [1933] VLR 59, Cussen ACJ said of these words at 66-67:

“All the words ... are ... instances of one general idea, that the person charged as a principal is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.”

40. To similar effect, Mason J said in Giorgianni v The Queen (1985) 156 CLR 473 at 493; [1985] HCA 29:

“While it may be that in the circumstances of a particular case one term will be more closely descriptive of the conduct of a secondary party than another, it is important that this not be allowed to obscure the substantial overlap of the terms at common law and the general concept which they embody.”

41. Secondly, the meaning of the term ‘procure’ in Truong v The Queen had been delimited by the way the Crown case had been put to the jury, with the consequence that a wider definition was not open in any event.

42. For the reasons set out above, I accept the respondent’s submission that the trial judge was correct to find that the word “procure” in s 66EB meant “to cause or bring about”. Accordingly, the first ground has not been made out.

Ground 2: unreasonable verdicts ground

43. For the purpose of considering the second ground (that the trial judge’s finding of guilt was unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)), it is necessary to outline the evidence at trial beyond the relatively brief summary of the respective cases set out above.

44. The evidence in the Crown case included the recorded interviews with MG on 6 and 10 February 2014. These were tendered following a ruling by the trial judge that MG not be required to give evidence against her father pursuant to s 18 of the Evidence Act 1995 (NSW). The Crown also relied on a recorded interview with IG (MG’s sister) on 23 September 2014 and the applicant’s recorded interview on 7 February 2014. The Crown called as witnesses: AC (the applicant’s co-offender); John Picton, the principal of Raymond Terrace Public School; Rod Fisher, the Deputy Principal of Auburn Girls High School; Muhammad Tasawar, the imam who conducted the marriage ceremony; Vladica Popovic and Katy Rae, child protection case workers at Raymond Terrace Community Services Centre; JA, MG’s mother and the applicant’s former wife; and investigating police officers.

45. The applicant gave evidence in his own case.

The applicant’s family

46. The applicant and his then wife (JA) investigated various belief systems before converting to Islam in about 1996 when their first child was 3 years old. When the applicant was about 40 years old, he met a group of Muslim men who invited him to attend a prayer meeting with them. When he learned from them about what was in the Koran, he “felt like that was the truth.”

47. The applicant and JA subsequently had five more children, making a total of six, including MG, who was born in February 2001. After the applicant’s conversion to Islam, he brought up their children in the Islamic faith. He and his wife home-schooled their children for a period. The applicant would take his children to the Wallsend mosque on Mondays, Wednesdays and Fridays to learn the Koran.

48. When the couple separated in 2010, the children lived with their mother. Eventually, all but the eldest son lived with the applicant in Raymond Terrace. Orders of the Family Court provided that MG was to live with the applicant. The applicant was MG’s guardian.

AC

49. AC, who is from Lebanon, arrived in Australia in 2013 on a student visa and began studying at Newcastle University. He attended the Wallsend Mosque, where he saw MG. He initially spoke with elders (imams and sheikhs) at the mosque about his interest in marrying MG. They counselled against it because of their concerns about the cultural differences between AC, who was Lebanese, and MG, who was Australian-born. However, one of them agreed to speak with the applicant on AC’s behalf.

The initial contact

50. In about November 2013 the applicant was contacted by a sheikh who told him that AC, who was then 26 years old, wanted to marry MG, who was then 12 years old. Arrangements were made for the applicant to meet AC at a musallah (place of prayer) in a caravan park at Heatherbrae, near Raymond Terrace. At this meeting AC told the applicant that he had met MG at the Wallsend Mosque and wanted to marry her. According to AC, the applicant said “yes if the girl wishes that”. The applicant told MG that AC wanted to marry her by a phone call made in the presence of AC and asked her whether she was agreeable. MG told her father that she wanted to meet AC.

The applicant’s views on the subject of MG getting married at the age of 12

51. It was MG’s impression that her father was happy about AC’s approach to him about MG. She explained in her recorded interview that her father was “happy because in the religion [. . .] when a girl gets to puberty, [. . .], you have to get her married”. The applicant said, in his recorded interview:

“I was reading that, you know, we should get our daughters married, you know, at a certain time in their life if, [. . .] that's possible.”

52. The applicant accepted that he did not tell AC that MG was too young toget married. The applicant’s view, as expressed in his recorded interview, was that because he could not stop MG from getting married he had tosupport her; that, at the age of 12, she was old enough to decide to get married; and that there was nothing wrong with a 12-year old getting married to a 26-year old man. He referred in his recorded interview to the teachings of the prophet Mohammed, that one cannot stop a woman from getting married when she had “met her match”; and that marriage was in the same category as prayers and burial of the dead in that none ought be delayed.

53. The applicant said in his recorded interview that he was concerned that “there was going to be a problem” with MG as she had become interested in boys and “excited” when she was around them. The “problem” was the prospect that she might have sexual contact with a male without being married to him. He was aware that she had reached puberty, was menstruating and could get pregnant but was still a virgin. According to the applicant, MG was initially unwilling to marry AC but subsequently she changed her mind. He said in his recorded interview:

“It happened, like, in a day, one day she didn’t want to, next day she wanted to.”

54. The applicant said in his recorded interview that he felt that he had to allow MG to marry to stop her committing the sin of having sex outside marriage. He considered that, as long as she was married to AC, she would not be sinning if she had sex with him.

Further contact between MG and AC

55. A couple of days after the applicant had met AC for the first time, he and his children went to the musallah at Heatherbrae so that MG could meet AC in the applicant’s presence. During this meeting, AC spoke to MG about “engagement” to get to know each other better and to prepare for marriage. On this occasion AC asked the applicant for MG’s phone number in front of MG. When the applicant consulted MG about a response, she responded, “Of course, we got engaged.”

56. In the ensuing weeks, AC sent text messages to MG, which AC understood to be with the applicant’s approval as he had authorised the provision of MG’s phone number to AC for the purpose of his communicating with her. About a week after their first meeting, AC asked the applicant if he could go to the family home. The applicant agreed. The next time AC saw MG she was in the family home and the applicant was present.

57. According to AC, MG expressed a wish to live in Sydney with him when they were married.

58. AC came to the applicant’s home on further occasions before 12 January 2014. On the second occasion, as on the first, MG and the applicant were both present. AC also spoke on the phone to the applicant about MG on several occasions.

The conversation with MG’s mother

59. Some time in January 2014, the applicant phoned JA and told her that MG was going to get married and they wanted to introduce her to the man she was going to marry. JA told the applicant that she did not want MG to get married, that she did not agree to her getting married and did not want anything to do with MG getting married. Later that day, that applicant phoned JA again and told her that MG was going to get married no matter what and that next time she saw MG she would be married. JA communicated her opposition to the proposed marriage to MG.

The events of 12 January 2014

60. According to AC’s evidence, MG invited AC to her house on 12 January 2014, with the approval of the applicant. The applicant told police in his recorded interview that MG wanted to get married to AC and he “couldn’t prevent it”.

61. AC arrived at the applicant’s home at about 10.15am. AC and the applicant spoke to each other for the next two hours. AC could not recall precisely when he asked the applicant for permission to marry MG or how he phrased the request but he believed it to be essential that he obtain the applicant’s permission to marry MG. MG’s recollection of the exchange was:

“They [the applicant and AC] were just like, talking, he said, I'll make your daughter happy, I'll be, like, you will be happy for me, like, I'll be like, your other son, so your actual sons, I'll make your daughter happy, and dad said, O.K., you can marry her. So then he ran out the door to get witnesses.”

62. At about 12.15pm the applicant left the home to gather witnesses for the ceremony known as nikah and returned with them at about 1.30pm. AC approached Muhammad Tasawar, an imam at the Mayfield mosque who worked at the Islamic Centre of Newcastle in Mayfield, and asked him to perform the ceremony. Mr Tasawar’s native tongue was Punjab but he also spoke limited English and was able to understand AC’s request. Mr Tasawar did not speak Arabic but was able to read out the requisite blessings for the ceremony in the Arabic language. He agreed to come to the applicant’s home to perform the ceremony. According to the applicant, it was not unusual for an imam to perform such a ceremony in someone’s house. Although the applicant offered to pay Mr Tasawar, it was AC who ultimately paid him.

63. When Mr Tasawar arrived at the applicant’s home, he was introduced to MG and the applicant. Mr Tasawar explained in his evidence that there is no age requirement for a girl engaging in the ceremony as long as permission can be given by a “carer”, who is a father, brother or uncle. However, he said that if it appeared to him that the woman was not a “grown adult”, he would not have performed the ceremony. Mr Tasawar asked whether the couple are “grown up adults” and the applicant and AC answered “yes”.

64. Immediately before performing the ceremony, Mr Tasawar asked the applicant whether he gave his permission to start. The applicant indicated that he gave his permission. At about 1.45pm, Mr Tasawar conducted the nikah for the purpose of marrying AC and MG. Mr Tasawar’s evidence was that, according to Islam, after such a ceremony the parties can be in an intimate sexual relationship. This accorded with the understanding of AC who said that he would not have had sex with MG if he had not married her. AC agreed that the fact he was married to MG meant that he was allowed to have sex with her.

65. According to MG, after the ceremony her father hugged Mr Tasawar and the witnesses and brought in fruit, water and soft drink. In his recorded interview, the applicant said that he felt “relief in a way” that MG was married. He denied ever being concerned that his 12-year-old daughter would be having sex with AC.

66. The witnesses and Mr Tasawar left at about 2pm. Afterwards, according to MG’s recorded interview, she hugged her father and said, “he [AC] will look after me”. Shortly after the ceremony, the applicant said to MG: “Don't use any [birth control] pills or condom or anything, don't let him use anything”. This advice accorded with the understanding of both AC and the applicant that Islam prohibited any form of contraception.

67. After the wedding, MG packed her things before leaving with AC at about 2.15pm. They travelled to Nelson Bay, arriving at a hotel at 3.30pm where they stayed for the night. The applicant said in his recorded interview that “that’s what people usually do when they get married”. He also said that AC and MG went there to be together, for privacy and “their time together”. The applicant did not speak to MG on the night of the wedding. He did not want to think about what they did in the motel room.

62. According to the timeline MG prepared for police, after they checked into the hotel, they shopped for food, returned to the hotel where they had sex and subsequently showered.

63. AC’s evidence was that he would not have married MG unless her father had given permission and that he would not have had sex with her if he had not married her.

The following events

70. On Friday 29 January 2014, MG and AC returned to the applicant’s house for the weekend. They slept on two single mattresses which had previously been on the single bed frames used by MG and her sister. MG was told that her father had instructed her brother to remove the bed frames and push the two single mattresses together to permit MG and AC to sleep together while MG’s sister slept in the lounge room. According to MG, she and AC had sex twice during the first weekend in the applicant’s house. MG suspected that her father knew that this had occurred because he asked her early in the morning before Fajr (the 5am prayer time) “Do youse need to go have a shower”, to which she responded, “Yeah”. This was confirmed by the applicant who said in evidence that when it was time to pray he asked MG whether she needed to have a shower. According to MG, her father had never asked her before whether she needed to have a shower. The evidence was that it was a tenet of the Islamic faith that anyone who has had sexual intercourse has to wash completely before praying.

71. MG and AC returned to the applicant’s house again on the second and third weekends. The applicant arranged for a queen-bed frame to be brought inside from under the house for them.

72. On 4 February 2014 Rod Fisher, the Deputy Principal of Auburn Girls High School, received a faxed letter signed by the applicant, along with a school report from Raymond Terrace Public School which stated that MG would like to attend the school. The letter concluded:

“We agree that it is much better for [MG] to attend a girl’s school at this time in her life in the Auburn environment.”

73. On 5 February 2014 MG, accompanied by AC, attended a preliminary enrolment interview with Mr Fisher. Mr Fisher enquired as to MG’s relationship with AC, who said he was a “friend”. Mr Fisher informed them that he would need to speak with MG’s guardian. On 6 February 2014 Mr Fisher telephoned the applicant to ask him who was caring for MG while she was in Sydney. The applicant informed Mr Fisher that AC was MG’s husband. At this point Mr Fisher told the applicant that he would speak to the principal about the enrolment. He subsequently spoke with an officer at Parramatta Joint Investigation Response Team (JIRT) and gave her the applicant’s address and telephone details.

74. On 7 February 2014, the applicant telephoned Mr Picton and told him that MG had married and was going to move to Sydney. According to Mr Picton, the applicant said that:

“[MG] had gone to Sydney, she was in love with a nice young fellow that she had met at the mosque, that she had become a young lady and had her periods, and she had to therefore be married if there was going to be sexual activity, which he believed would occur.”

The investigation

75. On 6 February 2014 MG was interviewed by police. The interview was recorded. She reported that she had sexual intercourse with AC almost every day since she was married on 12 January 2014, the most recent occasion being on 4 February 2014. No condom or other birth control was used. After she was interviewed by police MG was referred to the Child Protection Unit for assessment of sexual harm.

76. On the same day, police arrested AC who agreed to take part in a recorded interview. On that day police also executed a search warrant at the home of MG and AC in Guildford, in Sydney.

77. On 7 February 2014 Ms Rae and Mr Popovic, child protection case workers from the Raymond Terrace Community Services Centre, who had been alerted by police to the events of the previous day, visited the applicant at home. They gave evidence that the applicant made various statements to them which included the following:

“[F]irst she had sexual desires, started acting differently during puberty, noticed [she was] getting excited with boys. I said she can't have sex outside of marriage... better she was married and having sex”

“No boyfriend, no sex, needs to be married before. Everyone knows that as part of Islam, no sex before marriage.”

78. At about 5.30pm on 7 February 2014 Detective Senior Constable Damien Johnson went to the applicant’s home and arrested and charged him. The applicant accompanied Detective Johnson to the Raymond Terrace Police Station and participated in the recorded interview referred to above.

79. On 9 February 2014 Detective Johnson returned to the applicant’s house. The applicant showed him the lounge area where the ceremony had taken place and the bed where AC and MG had slept. On that day Detective Johnson also spoke to a sheikh at the Mayfield mosque and made enquiries about Mr Tasawar.

80. MG was interviewed again on 10 February 2014. On 17 March 2014 Detective Johnson took a statement from JA and Mr Picton. On 23 September 2014 Detective Johnson interviewed IG, MG’s sister, who was then 11 years old.

The reasons for judgment on the convictions

81. Her Honour Sweeney DCJ made the following findings in relation to count 1:

“In respect of count 1 what the Crown must prove beyond reasonable doubt is that the accused intentionally caused or brought about sexual activity between AC and MG and that that sexual activity was unlawful sexual activity as defined. Drawn from the evidence, I find the following in relation to count 1.

In November 2013 AC told the accused that he wanted to marry his daughter M[G]. With that knowledge the accused permitted AC and M[G] to meet. He permitted them to exchange phone numbers, exchange text messages and meet under his supervision and thus allowed them to get to know each other with a view to marriage. He consented to the marriage between AC and his daughter M[G].

The marriage ceremony took place in the accused's home on 12 January 2014. On that date MG was 12 years old. After the marriage ceremony the accused told his daughter to not use contraceptive pills or condoms or to let her husband use contraception. After the wedding [p25] ceremony MG packed her belongings, left her father's home and went with AC to a motel.

On the day of the wedding, 12 January 2014, AC and MG had penile vaginal sexual intercourse for the first time after their marriage. Because of her age of 12 years old at the time that sexual intercourse was unlawful sexual activity (contrary to s 66C Division 10 of the Crimes Act). According to the Islamic faith, having gone through the Islamic marriage ceremony permitted AC to have sexual intercourse with MG. AC would not have had sexual intercourse with MG without being married to her. AC would not have married MG, and could not have married her in Islamic law, without her father's consent. Therefore, by permitting AC to marry his daughter M[G], the accused caused or brought about that AC had sexual intercourse with MG on 12 January 2014.

The accused's conduct, from introducing his daughter to AC, to permitting them to marry and allowing her to leave the family home after the wedding with AC caused or brought about that AC had sexual intercourse with MG. That occurred within the period particularised in count 1 on the indictment.

That the accused intentionally caused or brought about the sexual activity between AC and his daughter I infer from the following facts.

The accused was concerned that his daughter M[G] was developing a sexual interest in boys generally and in AC specifically as their relationship grew. He viewed marrying his daughter to AC as a solution to prevent M[G] committing the sin of having sex outside marriage. He advised M[G] on her wedding day to not use contraception and to not let AC use contraception. He permitted his daughter to leave his house with AC after the marriage ceremony. He let them enjoy their wedding night together. From those facts I infer that the accused permitted his daughter and AC to marry, knowing and intending that when they were married they could have a sexual relationship approved by his faith, and would have a sexual relationship. His advice about contraception to his daughter, and the timing of it, reflects that knowledge that AC and his daughter would begin a sexual relationship now that they were married. His permitting them privacy and time together on the night of their wedding is further demonstration of his knowledge that their relationship was now sexual, now that they had been married.

Therefore, I am satisfied beyond reasonable doubt that the accused intentionally procured his daughter MG for unlawful sexual activity with AC, in that by his conduct he intentionally caused or brought about that AC had sexual intercourse with MG, she being 12 years old at the time.

82. Her Honour made the following findings in relation to count 2:

“The following facts are relevant to count 2. The accused introduced AC to his daughter knowing that AC was interested in marrying his daughter. He let them get to know each other and a relationship between them develop. He permitted them to marry. The marriage under Islamic law permitted AC and MG to have a sexual relationship. Sexual intercourse outside marriage is forbidden by the Islamic religion. AC would not have had sexual intercourse with MG without being married to her. He would not have married her if her father had not consented. After the marriage the accused told his daughter to not use contraception or let her husband use contraception. After the wedding MG left her home with her father's consent to live with AC as his wife.

On the weekend of 17 to 19 January AC and MG returned to her father's home to stay for the first time since their wedding. The accused permitted them to stay in his house. He made available to them a bedroom, the bedroom which MG and her younger sister had previously shared. He removed from that bedroom the two single beds the two girls had previously slept in and left two single mattresses in the room. The husband and wife were given their privacy in that room, the younger sister sleeping in the lounge room. The two single mattresses were put together in the bedroom, though not by the accused. MG and AC slept in that bedroom on two nights of that weekend. They had sexual intercourse twice on that weekend.

In the morning following their first night staying together in the accused's home, before the 5am prayer, the accused asked his daughter if she needed a shower before praying. The Islamic religion requires its adherents to shower after sexual intercourse before prayer.

By his conduct in permitting AC to marry his daughter, live with her as husband and wife, to stay in his house with his daughter and sleep in the bedroom with his daughter, the accused did something to make it more likely or bring about that AC had sexual intercourse with MG while staying in her father's house. That offence by AC occurred at that time. By AC marrying MG and the accused permitting AC to marry her and permitting them to live as husband and wife, they were linked in purpose, the purpose being that AC would have sexual intercourse with MG.

That the accused knew that sexual intercourse was occurring or would occur between AC and his daughter that weekend is demonstrated by him permitting his daughter to leave home with AC after the wedding, allowing them privacy to enjoy their wedding night together, advising his daughter about not using contraception, and by his question of his daughter, the morning after she and AC had spent the night together under his roof, whether she wanted or needed to shower before prayer. That clearly demonstrates his knowledge that the couple had engaged in sexual activity or were engaging in sexual activity under his roof.

I am satisfied that all the elements of count 2 have been proved beyond reasonable doubt.”

The relevant principles

83. The question for this Court is whether, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt of the applicant’s guilt: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], citing M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63 and R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [20].

84. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [24] the High Court held that each of the three limbs of s 6 of the Criminal Appeal Act was capable of applying to a trial by judge alone by reason of the statutory predecessor to the current s 133 of the Criminal Procedure Act 1986 (NSW), which relevantly provides that a finding of guilt by a judge following a trial by judge alone has “for all purposes” the same effect as a verdict of a jury.In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the High Court, at [12], referred to Fleming v The Queen and said that:

“[l]n the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice.”

85. The plurality went on to say that it must “be borne steadily in mind that in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced” (at [12]). In The Queen v Baden-Clay the High Court said (at [65]) that the setting aside of a jury's verdict on the ground that it is unreasonable is a serious step which should not be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. The same principles apply to setting aside a finding of guilt by a trial judge by reason of s 133(1) of the Criminal Procedure Act, as explained in Fleming v The Queen.

The applicant’s submissions

86. With respect to the finding of guilt of count 1, the applicant submitted, in substance, that he had not done enough to “procure” MG for “unlawful sexual activity”. He contended that because his daughter, having reached puberty, was showing an interest in the opposite sex, it was, in effect, merely a matter of time before she would engage in sexual activity. The applicant argued that by allowing MG to marry AC, all he was doing was providing an appropriate religious justification for the sexual intercourse which would have happened anyway. He submitted that the following acts relied on by the Crown were insufficient to make out the offence: introducing MG to AC; consenting to MG marrying AC; advising MG that the use of contraception was contrary to Islamic law; and permitting MG to leave the family home.

87. With respect to the finding of guilt of count 2, the applicant submitted that all he did was to consent to the marriage of MG and AC and permit them to share a bedroom in his house when they returned to stay for the weekend. He argued that, even if it were proved that he knew that it was possible, or even likely, that they would engage in sexual intercourse while in the room he had arranged for them, this was not sufficient for proof of count 2. The applicant relied on the passage set out above from the reasons of Walsh J in Regina v Castiglione in support of this submission.

Consideration

88. The applicant’s submissions as to the acts found by the trial judge to constitute the offences charged do not take sufficient account of her Honour’s findings, which are reproduced in my reasons above. I am satisfied that it was open to her Honour to accept the evidence in support of count 1 and find, as her Honour did, the following facts:

1. The applicant was MG’s guardian and she and her siblings lived with him, in accordance with an order of the Family Court.

2. In November 2013 the applicant, who knew that AC wanted to marry MG, introduced MG to AC and allowed AC to have MG’s telephone number for the purposes of contacting her with a view to marriage.

3. Between November 2013 and 12 January 2014 the applicant allowed AC to come to the applicant’s home to meet with her.

4. The applicant spoke with AC on a number of occasions in person and on the phone about the proposed marriage of AC and MG.

5. The applicant supported and reinforced MG’s stated wish to be married to AC.

6. The applicant defied the wishes of MG’s mother, JA, whom he knew to be opposed to the marriage.

7. The applicant wanted MG to be married at puberty to prevent her from committing the sin of sexual activity outside marriage, which he expected would occur if she did not marry imminently.

8. The applicant appreciated that it was highly likely, if not inevitable, that MG would become sexually active once she was married.

9. The applicant gave his permission to AC to marry MG in circumstances where he knew that AC would not marry MG without his permission and support.

10. The applicant gathered witnesses for the ceremony whom he invited to his home; he allowed the marriage ceremony to take place at his home and gave the relevant consent in the course of the ceremony. He also and provided food and drink to the assembled company after the ceremony.

11. He allowed MG to leave his care and reside with AC as soon as the ceremony was over.

89. The acts listed above go well beyond the matters referred to by the applicant in his submission and serve to demonstrate that the applicant’s role was by no means passive. His role was not only influential and facilitative, but also causative.

90. In addition, the applicant has not established that, as a matter of law, conduct constituting “consent” or “permission” is insufficient to establish procurement of a child within the meaning of s 66EB. Further, even if (contrary to the view expressed in relation to ground 1 above), the interpretation for which the applicant contended was correct, the evidence at trial was more than sufficient to satisfy that meaning of “procure”. The giving of consent by the applicant was an active and critical step in the commission of the offence. The applicant, as MG’s guardian and the person with whom MG was obliged to reside pursuant to orders of the Family Court, had obligations of care and protection and responsibility for her wellbeing. The applicant plainly exercised a significant degree of influence and control over MG. I reject the submission that MG had instigated what was proposed. Even if it were MG’s idea, she was not of a sufficient age to be responsible for any such idea or conduct. She was not of an age where any sexual activity involving her was other than unlawful. The applicant had an obligation to protect MG from sexual activity rather than, as he did, facilitate and encourage it.

91. The present situation is to be distinguished from the situation concerning adults which is the subject of the passage relied on by the applicant from Regina v Castiglione.

92. In relation to count 2, the Crown relied on the broader test applicable to accessorial liability which was correctly applied by the trial judge on the basis of Giorgianni v The Queen. As set out above, her Honour found that the applicant had done something to make it more likely or bring about that AC had sexual intercourse with MG and that the applicant and AC were “linked in purpose”. This conclusion, which resulted in the finding of guilt for count 2, was amply open to the trial judge. In particular, the evidence established, and her Honour found, that the applicant had done the following (in addition to the matters listed above):

1. The applicant had arranged for a bedroom to be made available to MG and AC when they came to stay at his home on 17 or 18 January 2014 for the first weekend after they were married.

2. The applicant instructed his son to prepare the room for MG and AC by pushing two single mattresses together.

3. The applicant’s knowledge and expectation that AC and MG would have sexual intercourse on that weekend after their marriage was demonstrated by his asking MG, for the first time, the following morning whether she needed to have a shower before prayers.

93. I have reviewed the whole of the evidence and considered the respects in which there was competing evidence. I am satisfied that, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt of the applicant’s guilt of both counts 1 and 2. Accordingly, ground 2 has not been made out.

Ground 3: alleged manifest excess of sentence

94. The applicant seeks leave to appeal his sentence on the sole ground that the sentence is manifestly excessive.

95. The facts which her Honour found are set out in the trial judgment dated 1 April 2015 and the sentencing judgment dated 17 July 2015. There was no challenge to her Honour’s findings of fact on sentence which are summarised below. The applicant neither gave nor adduced evidence at the sentence hearing.

The trial judge’s sentencing judgment

96. In the sentencing judgment her Honour set out the facts, summarised as follows.

97. The sexual activity between MG and AC was unprotected penile/vaginal intercourse, as the applicant both envisaged and expected. As MG was 12 and had reached puberty, this was a very serious form of sexual activity. As a result of sexual activity with AC, MG became pregnant and had an ectopic pregnancy at the age of 13 which self-resolved. The applicant condoned her marriage to a man over twice her age, overriding her mother’s opposition to the marriage. MG was vulnerable because the applicant allowed her to develop an emotional relationship with AC. The applicant’s role was to protect MG, who was under his care. In committing the offences, the applicant put MG in a situation where she entered into a sexual relationship and risked pregnancy at the age of 12.

98. Her Honour considered that the applicant's breach of trust, the child's age, the circumstances of how she came to be engaged in sexual activity and the nature of the sexual activity combined to make these very serious offences. That the applicant believed his actions were justified by his religious faith neither excused nor mitigated his offending conduct.

99. Her Honour referred to the need for general deterrence by saying that the sentence must deter others who might be inclined to expose their children to sexual exploitation in the name of a religious belief. As to specific deterrence, her Honour noted that the applicant had another young daughter and that the sentence imposed must be such as to deter him from offending again in a similar way.

100. The sentencing judge had regard to the applicant's subjective features which were set out in the Pre-Sentence Report by Community Corrections Officer Kathryn Colvin. The applicant was born in Australia and was 63 years old at the time of sentencing. He converted to Islam as an adult. He had been unemployed and in receipt of a disability support pension for the past 20 years. He was divorced from MG’s mother. As a result of the offending, MG and her siblings had been taken into the care of Family and Community Services. The applicant had a criminal history dating back to the 1970’s, mostly for driving under the influence and drug use offences. Her Honour did not regard the applicant’s prior record as significant. He had no offences of a similar nature to the offences for which he was to be sentenced. The applicant’s risk of re-offending was assessed by a Community Corrections psychologist as at low to medium. The applicant lacked insight into his offending. He had some arthritis and digestive health issues.

101. Her Honour had regard to the sentence she imposed on the applicant’s co-offender, AC, for one count of persistent sexual abuse of a child, which carried a maximum penalty of 25 years’ imprisonment. The sentence imposed on AC was 10 years’ imprisonment, commencing on 6 February 2014, with a non-parole period of 6 years and 6 months. Her Honour found that the offending conduct of AC and the applicant were related but the circumstances differed because they each had a different relationship with MG.

102. Her Honour assessed the objective seriousness of the two offences committed by the applicant as “very serious”, having regard to the applicant's breach of trust; MG’s age; the circumstances of how MG came to be in a sexual relationship; and the nature of the sexual activity.

The applicant’s submissions

103. In support of his submission that the aggregate sentence imposed was manifestly excessive, the applicant relied on the following matters:

1. there was no suggestion that MG was coerced by the applicant in any way, including by persuasion, threats of violence or by the use of a weapon or actual physical harm;

2. the applicant was not motivated by his own sexual gratification; and

3. the age of the complainant, the fact that the applicant was not a principal and evidence that the acts were "consensual" indicated that the sentence imposed was outside of the appropriate range.

Consideration

104. A claim of manifest excess requires the applicant to establish that the sentence imposed was unreasonable or plainly unjust, having regard to the principles that there is no single “correct” sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005)228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Whether a sentence is manifestly excessive is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion.

105. In my view, none of the arguments advanced by the applicant has any merit. First, MG’s age of 12 years was the median age for the offence of sexual intercourse with a child between the age of 10 and 14 (s 66C(1) of the Crimes Act) and was not an ameliorating factor on sentence. Second, the notion of “consensual” activity is entirely inapposite for the reasons given by Basten JA in R v Nelson [2016] NSWCCA 130 at [23] where his Honour said:

“The activity was not adequately described as ‘consensual’; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.”

106. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm understood to be caused by premature sexual activity: Clarkson v R; EJA v R (2011) 32 VR 361; [2011] VSCA 157 at [3]-[5]; [26]-[33] and [37], cited with approval in R v Gavel[2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110] (Leeming JA, Johnson and Hall JJ). The substantial age difference between MG and AC is also of significance: Clarkson v R at [42]. The significant maximum penalties for offences involving the sexual exploitation of children, including those for which the applicant was sentenced, indicate the seriousness of these offences.

107. Although the nikah ceremony was not a lawful marriage, it is significant to note that MG was 6 years below the usual marriageable age in Australia of 18 years: s 11 of the Marriage Act 1961 (Cth). In exceptional circumstances, and subject to the requirements of the Marriage Act, including approval by a court and consent of both of the parents, a person can marry at the age of 16: s 12.

108. The examples referred to in the Second Reading Speech set out above were principally concerned with those who assist paedophiles to obtain access to children for the purposes of unlawful sexual activity. However, neither the Convention on the Rights of the Child (which was, at least in part, the reason for the creation of the offences in s 66EB of the Crimes Act), nor the wording of s 66EB, contains any such limitation. Section 66EB applies to all conduct which falls within its express words. The sexual exploitation of children can take various forms. It can be carried out by strangers or, as here, by a trusted family member in a position of responsibility with respect to the victim. The motives of its perpetrators can vary widely and include: sexual gratification either with or without a condition such as paedophilic disorder; material gain (such as by those who traffic in child prostitution); or, as here, religious belief. I do not regard the fact that the applicant was motivated by his religious beliefs and not by any desire for sexual gratification as ameliorating.

109. At the time of the offences MG had just finished primary school. She had begun menstruation approximately 6 months prior to the offences. Following the Islamic marriage ceremony the applicant instructed her not to use contraception and not to let AC use contraception. That afternoon she left the family home to reside with AC. As a result of unprotected sexual intercourse she became pregnant and had an ectopic pregnancy at the age of 13. The applicant, who was the principal person to whom she was entitled to look for her well-being, protection, safety and support, exploited her vulnerability and naivety. There were neither threats nor coercion. None was required. The applicant occupied a position of substantial power and influence with respect to his daughter who was led to believe that what was proposed was normal and sanctioned by the religious teachings which were part of her upbringing. The applicant put his religiously motivated concerns about ensuring that she was a virgin when she was married above MG’s own welfare, her mother’s wishes and the law.

110. Although the applicant was not the principal for count 2, he could have brought the whole series of events to an end if, at the first meeting between himself and AC in November 2013, he had told AC that he would not contemplate any “engagement”, much less “marriage” for MG until she was at least 16 years old. His culpability for both counts was, in my view, very high.

111. The assessment of the offences as “very serious offences of their kind” was one which was well open to the sentencing judge.

112. I am not satisfied that, in all the circumstances, an aggregate sentence of 8 years with a non-parole period of 6 years, particularly when considered against the maximum penalties of imprisonment for 15 years for the s 66EB(2)(a) offence and 16 years for the ss 66C(1) and 346 offence, is either plainly unjust or unreasonable.

Application for extension of time

113. As referred to above, the applicant requires an extension of time. The applicant’s application for extension of time provided some explanation for the delay, that is, that Legal Aid funding was granted and an advice on merit obtained which was to the effect that there was no merit on an appeal against conviction or sentence. Subsequently, other counsel reviewed the matter and advised that an appeal against both conviction and sentence ought be filed.

114. The reason the appeal was filed so far out of time was that the applicant, having obtained appropriate legal advice at public expense, sought further legal advice to a different effect. I do not regard this as an adequate excuse, much less a justification, for the delay. There is no appropriate basis or reason to extend time.

115. For the reasons given above, none of the grounds was made out. Although each was arguable, none was strong.

Proposed orders

116. I propose that an extension of time for filing the notice of appeal against conviction and the application for leave to appeal against sentence be refused.

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Decision last updated: 08 June 2018