Wales v The Queen - [2013] NZCA 233

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 Respondent

Judgment:

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…

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 Wales v The Queen

Details

AGLC: Wales v The Queen [2013] NZCA 233
Case: [2013] NZCA 233
Decision Date: 14 June 2013 at 4 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by David Robin Wales against his conviction and sentence for organising and promoting child sex tours. The appellant was convicted on one count of organising travel arrangements for another person to facilitate the commission of an offence against section 144A of the Crimes Act 1961, which prohibits certain sexual acts with children under 12 or 16 outside New Zealand or using a person under the age of 18 in prostitution outside New Zealand. The appellant was acquitted on the promoting count. The Judge sentenced the appellant to a term of imprisonment of three years. The appellant appealed against both conviction and sentence, but later abandoned the appeal against sentence. The main issue in the appeal was whether the appellant intended to facilitate the commission by the undercover officer of an offence against section 144A of the Crimes Act. The Court of Appeal held that the appellant's argument that the specified intention had to be the sole purpose of the proposed travel was untenable. The Court also held that the Judge was well aware of the requirement for intention and had a proper basis for his verdict. The Court of Appeal further held that there was no unfairness in the conduct of the police and that the appellant was not entrapped. The application for an extension of time to appeal was granted. The appeal against conviction and sentence was dismissed.

Orders