Za v R

Case [2018] NSWCCA 116 8 June 2018

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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)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Za v R

Details

AGLC: ZA v The Queen [2018] NSWCCA 116
Case: [2018] NSWCCA 116
Decision Date: 08 June 2018

CaseChat Overview and Summary

In the matter of Za v R, the appellant, Za, challenged his conviction and sentence for arranging his 12-year-old daughter's marriage to a 20-year-old man, which was deemed a contravention of s 66EB of the Crimes Act 1900 (NSW). The court was tasked with determining whether the term "procure" in the statute encompassed the appellant's actions in arranging his daughter's marriage and whether the sentencing judge correctly assessed the objective seriousness of the offence.

The court considered the meaning of the word "procure" in the context of the statutory provision and the appellant's actions. It was noted that the term "procure" should be interpreted in its ordinary and natural meaning, taking into account the context in which it was used. The court held that the appellant's actions in arranging his daughter's marriage constituted procuring a child for unlawful sexual activity, as it involved facilitating the commission of an offence by a child. Additionally, the court found that the sentencing judge had not erred in assessing the objective seriousness of the offence as "very serious," given the significant breach of the appellant's duty of care and the potential harm caused to the victim.

The appellant also sought leave to appeal against his sentence, arguing that the sentencing judge had not properly considered his religious beliefs as a mitigating factor. The court held that the sentencing judge's assessment of the appellant's religious beliefs as a motive for the offence did not constitute an ameliorating factor, as it did not address the gravity of the crime or the harm caused to the victim. The court found that the sentencing judge had appropriately considered the relevant factors and that there was no error in the sentencing process. Consequently, the application for leave to appeal against the sentence was dismissed. The court also refused the appellant's application for an extension of time to appeal against his conviction and to apply for leave to appeal against his sentence, as the appellant had not demonstrated any exceptional circumstances warranting an extension.

Orders