Wales v The Queen
[2013] NZCA 233
•14 June 2013 at 4 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
CA508/2012 [2013] NZCA 233
BETWEEN DAVID ROBIN WALES Appellant AND
THE QUEEN Respondent
Hearing: 29 April 2013 Court:
Arnold, Chisholm and Keane JJ
Counsel:
E R Fairbrother QC for Appellant
B D Tantrum and M R Walker for RespondentJudgment:
14 June 2013 at 4 pm
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Arnold J)
Introduction
The appellant, Mr Wales, was tried before a Judge alone on one count of organising and one count of promoting child sex tours, contrary to s 144C of the Crimes Act 1961. Wylie J convicted him on the organising count and acquitted him on the promoting count.[1] The Judge sentenced Mr Wales to a term of imprisonment of three years.
[1]R v W HC Auckland CRI-2010-092-12897, 11 November 2011.
Mr Wales filed an appeal against both conviction and sentence. Mr Fairbrother QC advised at the outset of his submissions that the appeal against sentence was abandoned. Accordingly, we focus on the conviction appeal. We also note that the appeal was filed out of time. There being no objection from the Crown, we extend time.
The issues
Section 144C(1)(a) of the Crimes Act provides:
(1)Every one is liable to imprisonment for a term not exceeding 7 years who–
(a)Makes or organises any travel arrangements for or on behalf of any other person with the intention of facilitating the commission by that other person of an offence against section 144A of this Act, whether or not such an offence is actually committed by that other person;
…
Under s 144A it is an offence for a New Zealand citizen or resident to commit certain sexual acts with children under 12 or 16 outside New Zealand or to use a person under the age of 18 in prostitution outside New Zealand (for ease of references, we will use the term “underage sex” to cover these alternatives). The organising count alleged that Mr Wales made or organised travel arrangements to Thailand on behalf of a Mr Gray to facilitate the use by Mr Gray in Thailand of prostitutes under the age of 18.
Mr Fairbrother identified intention as the critical issue. To be convicted of an offence against s 144C(1)(a), an accused person must intend to facilitate another person having underage sex. Mr Fairbrother argued that the evidence did not support a conclusion that the requisite intention was present. He raised two arguments in particular. First, he submitted that the specified intention had to be the sole purpose of the proposed travel. Second, he argued that the Judge had failed to distinguish between “evidential foresight and intention”. That is, it was not sufficient that underage sex during the overseas trip was a possibility: there had to be a firm intention.
If this argument was not accepted, Mr Fairbrother raised the further argument that Mr Wales had effectively been entrapped by the police and that the prosecution should have been stayed as a consequence. At the conclusion of the evidence of an undercover police officer, trial counsel (not Mr Fairbrother) submitted that the issue of entrapment arose in relation to the organising charge and sought to have the undercover police officer’s evidence excluded. Wylie J rejected these contentions.[2]
[2]R v W HC Auckland CRI-2010-092-12897, 11 November 2011.
We will return to Mr Fairbrother’s submissions in more detail once we have set out the factual background.
Factual background
The following summary is taken from the chronology recorded by Wylie J in his judgment[3] and from his detailed reasoning on the intention issue.[4]
[3]At [8]–[24].
[4]At [56]–[81].
Mr Wales is gay. He described his sexuality as ephebophilia, a sexual predisposition to teenage boys. He had visited Thailand a number of times in 2005 and the following years, initially in the company of his father who undertook medical and missionary work there. During visits in 2008 and 2009, Mr Wales discovered the gay scene there.
In 2007, Mr Wales established a website known as “Over the Rainbow”, through which he offered personalised tours of Thailand for small groups (five to 10 people) during the winter. The website contained no reference to sexual matters. There was some reference to such matters in the metadata associated with the website, however, including the words “gay sex”, “boy” and “big cock”.[5]
[5]As we understand it, web pages often include metadata in the form of meta tags. Meta tags are used to describe the web page’s content either through keywords or descriptions: search engines use this data to compile lists of relevant web pages in response to particular search requests.
When Mr Wales was returning from a personal trip to Thailand in late 2009, he was stopped by Customs officials and his luggage was searched. Image files were taken from a USB thumb drive found in his luggage. These showed photographs of Mr Wales in the company of young Thai males. In addition, a phrase card translating English words and phrases into phonetic Thai was found. The card related to sexual matters and contained Thai translations for a number of sexually explicit acts.
In mid-2010, the police began an undercover operation to engage with Mr Wales through the website. An undercover officer, who called himself Michael Gray, made contact with Mr Wales by email about going on one of his tours, the 2010 Special Winter Holiday Package. Mr Wales indicated that the tour was over-subscribed. (This was untrue – Mr Wales had no clients for the tour.) Mr Gray then expressed interest in a private tour. Mr Wales said that such a tour was more expensive and the cost would be prohibitive with only one client. Mr Gray responded that he had recently come into money and cost was not an issue.
Following various email, text and telephone communications, the undercover police officer met with Mr Wales on 30 June 2010 to discuss the proposed trip to Thailand. In the course of their conversation, the undercover officer said he was gay and that he wanted to find “a young friend”. Mr Wales replied “How young? Don’t worry, I don’t mind”. The officer said that he had a “real strong attraction for no hair” (a reference to prepubescent boys). Mr Wales told the officer that what he was proposing was illegal and that there were significant risks involved. However, he went on to indicate that such things were available and that he “could probably point [him] in the right direction”. He also told the officer that there were hotels to which he could take a 13 or 14 year old boy.
The following day, however, after discussing matters with his flatmate, Mr Wales sent an email to Mr Gray advising that he would not assist him to do anything illegal. He went on to say:
While I may understand what you spoke to me about I do not condone it, though there is no doubt that such things are available in Thailand.
There’s plenty available in Thailand that’s beyond your wildest dreams, and legal; there is no need to pursue anything else. I want to show you the Thailand that I know and I think that it will be more than you desire. What you do in your own time and who you talk to is entirely up to you. I will try to keep you safe and I believe that you can have a great time without resorting to anything illegal or improper.
There was then a further exchange of emails. When Mr Wales sent the undercover officer an email about go-go bars in Thailand, the officer replied “I really like the boys without the tattoos they seem so beautiful to me and well the less hair the better!!” There were then two further meetings between the two. First, there was a meeting on 26 July 2010, during which there was some discussion of underage sex. Mr Wales talked about his own experiences and raised the possibility of visiting Nakhon Phanom near the Laos border, where there was a greater prospect of obtaining underage sex. Second, there was a meeting on 5 August 2010 at which the possibility of obtaining sexual services from boys under 18 and the difficulties involved in that were discussed (among other things). During the period of these meetings, the officer paid Mr Wales a total of $12,500 for the trip and Mr Wales made airline bookings for himself and Mr Gray to travel to Thailand.
Later, Mr Wales sent the officer a number of internet articles concerning the arrest in Thailand of tourists who had become involved in underage sex with prostitutes. He also sent him a sex phrase card, which translated various sexual phrases into phonetic Thai. The card did not include a question about age.
Mr Wales contacted a person called Lex who lived in Nakhon Phanom. Mr Wales said it would be great if he and Mr Gray could meet a few boys. When Lex asked about Mr Gray’s preferences, Mr Wales replied: “He likes them without hair. I have told him this is extremely dodgy and that he will undoubtedly be happy with 18 year olds in Thailand”. In his reply Lex said that “we should be looking for + 15 (>18) OK”. Lex then sent some photos of underage boys.
Mr Wales gave the officer an itinerary for the trip, which showed planned trips to areas where male prostitutes were available. He was arrested shortly afterwards. The police then interviewed him and executed search warrants at his business and residential addresses. As it turned out, the tour for the undercover police officer was the only tour that Mr Wales arranged for anyone.
High Court judgment
As already noted, this was a Judge alone trial. Mr Wales gave evidence in his defence and called one other witness whose evidence was read by consent. Mr Wale’s evidence occupied almost two days.
Wylie J identified the ingredients of the organising count as follows:[6]
Between 21 June 2010 and about 20 August 2010, at Auckland,
(a) did [Mr Wales] make or organise any travel arrangements?;
(b)were any travel arrangements made or organised for or on behalf of the undercover officer, who used the assumed name of Mr Gray?, and
(c)were any travel arrangements made or organised with the intention of facilitating the commission by Mr Gray of an offence against s 144A of the Crimes Act, whether or not such an offence was actually committed by Mr Gray?
The Judge then identified the relevant offence against s 144A as being the use by Mr Gray of a prostitute or prostitutes under the age of 18 in Thailand.[7]
[6]R v W, above n 1, at [38].
[7]At [41].
The Judge had no difficulty in finding that the first two elements were met. As there was no challenge to his findings in relation to those elements, we say no more about them. The contested issue was whether the arrangements were made with the intention of facilitating the commission by Mr Gray of underage sex with a prostitute in Thailand.
The Judge noted that Mr Wales accepted that he intended to help Mr Gray to obtain sexual services from male prostitutes in Thailand. The disputed point was whether he intended to facilitate Mr Gray obtaining sex from male prostitutes under the age of 18 years. The Judge concluded that he was satisfied beyond reasonable doubt that Mr Wales did intend to facilitate the commission of the specified underage sex offence by Mr Gray.
The Judge set out the reasons for his conclusion in detail under seven headings, namely, the first meeting on 30 June 2010, the 1 July email and subsequent emails, the second meeting on 26 July 2010, the third meeting on 5 August 2010, the emails to Lex, the itinerary and the sex phrase card. The Judge concluded:
[82] Standing back and looking at all of this evidence in the round, I am satisfied beyond reasonable doubt that [Mr Wales] made or organised travel arrangements for Mr Gray to go to Thailand, and that they were made with the intention of facilitating the commission by Mr Gray of an offence against s 144A of the Crimes Act. I accept that [Mr Wales] sent Mr Gray the email dated 1 July 2010. He also expressed concern to Mr Gray orally on a number of occasions and warned him of the risks and dangers associated with his proposed actions. He sent Mr Gray by email details of persons who had got into serious trouble with the authorities in Thailand as a result of engaging in sex with underage prostitutes in Thailand. Nevertheless, the reality is that [Mr Wales] continued on with the arrangements. At no stage did he pull out or refuse to have any involvement. I am satisfied beyond reasonable doubt that [Mr Wales] was intending to facilitate the use by Mr Gray of a prostitute under the age of 18 years.
Intention to facilitate underage sex offence
As we have said, Mr Fairbrother raised two points. The first was that the presence of the definite article in the phrase “with the intention of facilitating” meant that s 144C(1)(a) required that there be only one intention when the travel arrangements were made, namely to facilitate an offence against s 144A. Accordingly, where a proposed trip was arranged for multiple purposes (including the proscribed purpose), there would be no offence against s 144C(1)(a).
In our view, this argument is untenable. Section 144C(1)(a) requires that a specific intention be established. If it is established, it does not matter that there might have been some other purpose to the travel, for example, sight-seeing. To interpret the provision in the manner advocated by Mr Fairbrother would be contrary to basic principle and would severely undermine the utility of the provision by severely curtailing its scope. Often overseas travel will be organised for multiple purposes, so that a requirement that the proscribed purpose be the only purpose would readily enable the circumvention of the provision.
Mr Fairbrother’s second point was that the Judge confused Mr Wales’ foresight of a possible consequence of the trip to Thailand (that Mr Gray would engage in underage sex) with an intention to facilitate that. Mr Fairbrother said that in light of Mr Wales’ advice to Mr Gray that he did not want to be involved in anything illegal, the Judge was required to explain carefully why he nevertheless concluded that Mr Wales had the requisite intention. In this context, Mr Fairbrother referred to R v Slavich where this Court discussed the approach to appeals against Judge alone decisions on the “unreasonable verdict” ground, although the discussion is also relevant to the mistake of law ground.[8]
[8]R v Slavich [2009] NZCA 188 at [28]–[35].
It seems clear from the judgment that the Judge was well aware of the requirement for intention. He also understood that Mr Wales had on several occasions expressed an unwillingness to become involved in anything illegal. Against that, however, there were, as the Judge noted, instances where Mr Wales had indicated to the undercover officer that it would be possible to facilitate underage sex. Furthermore, he took steps to implement that (for example, by making contact with Lex). Ultimately the Judge had to be satisfied beyond a reasonable doubt that Mr Wales had the necessary intention. He was so satisfied. The Judge reached this conclusion having had the opportunity to assess Mr Wales as he gave evidence for almost two days, to consider the recorded content of the discussions between Mr Wales and the undercover officer and to consider the email and other documentary evidence. We consider that there was a proper basis for his verdict.
Entrapment
This Court discussed the issue of entrapment recently in Stevenson v R.[9] The Court said that the focus should be on the fairness and propriety of police conduct in obtaining the relevant evidence rather than on whether or not the offender had a predisposition to offend.[10]
[9]Stevenson v R [2012] NZCA 189, (2012) 25 CRNZ 755.
[10]At [36]–[40], discussing Police v Lavalle [1979] 1 NZLR 45 (CA) at 48 where the “predisposition” approach articulated in R v Climo SC Auckland T85/77, 16 August 1977 was approved.
Wylie J’s ruling pre-dated this Court’s decision in Stevenson. Nevertheless, the Judge noted that there was an emerging view that unfairness rather than predisposition might be the appropriate test, citing R v Karalus.[11] The Judge considered that Mr Wales had a predisposition to offend and that there was nothing unfair in the conduct of the police. In this context, the Judge discussed the evidence in some detail.
[11]R v Karalus (2005) 21 CRNZ 728 (CA), especially at [43].
The Judge considered the reason that Mr Wales had been targeted by the police in the first place. It was because he had come to attention of both New Zealand and international law enforcement agencies involved in preventing the exploitation of children for sexual purposes. This had led in 2009 to his being stopped and searched when he returned to New Zealand from Thailand and the discovery of the image files and the sex phrase card.[12] Moreover, the metadata associated with his website raised a legitimate cause for further inquiry.[13] So the police had a proper basis for being interested in Mr Wales’ activities.
[12]See [10] above.
[13]See [9] above.
Turning to what occurred once the undercover investigation was underway, the Judge accepted that Mr Wales had expressed concern about the undercover officer’s interest in underage male prostitutes at each of their three meetings and had written the email saying that he would not become involved in anything illegal.[14] Despite that, however, Mr Wales continued to deal with the officer and to advance their travel plans. Moreover, he made a number of observations which indicated that he was willing to facilitate what the officer wanted. For example, Mr Wales said he could “point [the officer] in the right direction” and gave the officer a variety of information about how sexual services from underage boys in Thailand could be accessed.
[14]See [13] above.
Wylie J concluded:
[61] After considering all of the conversations between [Mr Wales] and Mr Gray, I do not consider that Mr Gray pressured [Mr Wales]. At each of the meetings, [Mr Wales] openly discussed Mr Gray’s avowed attraction. He freely gave the undercover officer information about how they could purchase sex from underage boys in Thailand. He spoke comparatively candidly about his friends, about the opportunities that were available, about the difficulties that might be encountered, and how any difficulties could be addressed. [Mr Wales’] involvement was not an “impulsive acquiescence to an immediate temptation”. It is also clear that [Mr Wales] knew that Mr Gray was proposing something illegal. Knowingly assisting the commission of such acts mitigates against any suggestion of unfairness.
[62] [Mr Wales] could at any stage have walked away from the proposal, and declined to become involved. He did not do so. In my view, no undue inducements were held out by the police, and there was nothing unfair in Mr Gray’s conduct. There was nothing which affronted the public conscience, or which was contrary to ordinary notions of fairness.
Mr Fairbrother argued that there two aspects of unfairness in this case (in addition to the deception involved in an undercover officer posing as a customer):
(a)The manipulation of Mr Wales by the undercover officer. Mr Fairbrother referred to “skilled operators [coaxing Mr Wales’] vulnerable thoughts into action”.
(b)The subtle deception of Mr Wales in relation to the officer’s purpose. He submitted that the officer never put squarely to Mr Wales that the purpose of his proposed trip to Thailand was to have underage sex. Rather than being forthright, the officer adopted a more indirect and subtle approach.
Given these factors, Mr Fairbrother argued that the undercover officer’s evidence should have been excluded.
We consider that there is some force in Mr Fairbrother’s submissions. This was the only tour that Mr Wales organised. He told the undercover officer several times that he did not want to become involved in anything illegal and that the officer would be happy with the sexual services that he could obtain legally in Thailand. While a genuine potential customer might have accepted that, for obvious reasons the undercover officer did not and continued to raise the topic of underage sex.
Nevertheless, Mr Wales could have maintained his position that he did not wish to become involved in anything illegal and could have withdrawn from the enterprise when the officer persisted. He did not do that but instead took steps to facilitate what the officer was seeking. We do not consider that Mr Wales was unfairly pressured by the undercover officer. Rather, he was prepared to assist the officer in finding what he wanted. In our view, Wylie J’s conclusion, as summarised in the paragraphs quoted at [31] above, was justified on the material before him.
Accordingly, we agree that no unfairness in the form of entrapment was made out.
Decision
The application for an extension of time is granted. The appeal against conviction is dismissed. The appeal against sentence, not having been pursued, is also formally dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent