HOEBEN CJ at CL: I agree with Adams J and the additional reasons of R A Hulme J and the orders which they propose.
ADAMS J:
Introduction
On 14 January 2010 the appellant, having pleaded guilty to an offence contrary to s 91H(2) of the Crimes Act 1900 (NSW) of possessing pornography on 2 June 2010, was convicted of the offence and fined $6,600. He lodged an appeal to the District Court of NSW seeking leave to appeal against his conviction on the ground that he should be permitted to withdraw his plea of guilty, and have the matter returned to the Local Court for trial. On 5 September 2011 his application for leave to appeal his conviction was refused.
The appellant then brought an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an enquiry into his conviction, essentially on the same ground (although differently expressed) as his application for leave in the District Court, to have his conviction quashed, with the consequence that his conviction would be set aside. On 17 May 2016 Garling J concluded that there was a doubt or question as to the applicant's guilt because of the erroneous approach of both the Local and District Courts that dealt with the prosecution, and "the erroneous approach of the applicant's solicitor in providing advice to the applicant as to whether or not it was in his interest to plead guilty to the offence" (Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635 at [43]). His Honour therefore referred the matter to this Court under s 78 of the Act.
Background
This is not controversial. The following account is taken largely from the helpful narrative contained in Garling J's determination. On 2 June 2010 the appellant entered Australia at Sydney Airport. He was found to have in his possession a USB memory stick which contained 53 images, depicting a female in various sexual poses. The officer who examined the images formed the opinion that the female was about 12-14 years of age. By reference to the Copine scale developed by the UK Sentencing Panel in 2002 they were categorised as follows -
1. 31 images depicting erotic posing with no sexual activity (level 1);
2. 13 images depicting the female masturbating (level 2);
3. 9 images showing the female in various poses restrained by ropes (level 5).
Jimenez v R [2017] NSWCCA 1 | Case summary | Zoe
Following Mr Jimenez's interview, he was charged with the single offence of possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). It was to this offence that he ultimately pleaded guilty.
A complication, however, was introduced when, following two further interviews on 4 and 10 June 2010, the appellant was charged additionally with using a carriage service to access child pornography material, contrary to s474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). Following representations by the appellant's solicitors, on 16 November the Commonwealth Director of Public Prosecutions agreed that the Commonwealth offence would be withdrawn and the State offence would be dealt with in the Local Court's summary jurisdiction. The crucial difference between the Commonwealth and State offences is that, for the purposes of the former, "child pornography material" is defined in s 473.1 as "material that depicts a person who is, or appears to be, under 18 years of age…" whilst, for the State offence, of being in possession of child abuse material, "child" is defined in s 91FA as "a person who is under the age of 16 years".
During the sentencing hearing in the Local Court on 10 January 2011, the issue arose as to the age of the female depicted in the images. During this exchange it became clear that the learned Magistrate was under the mistaken impression that the relevant age was that of a person under the age of 18 years. Both the appellant's solicitor and the solicitor appearing for the DPP, Ms Catsanos, agreed with her Honour's mistaken statement. Following his conviction and sentence, the appellant appealed to the District Court, seeking leave to change his plea upon the ground, essentially, that it was, at all times, his belief that the images were those of a young woman over the age of 18 years. He said that therefore he was innocent and pleaded guilty on wrong legal advice and furthermore, there was no "conclusive evidence…that the images in question are of a minor". In the District Court, the DPP was represented by Ms Catsanos and the appellant obtained leave to have his sister, Ms Abraham (a retired solicitor) appeared for him. It is clear that both representatives were acting under the same misapprehension that had affected the proceedings in the Local Court, namely that the crucial question was whether the images were those of a child under the age of 18 years. Ms Abraham agreed with a question of the learned trial judge that the only dispute, were the matter to return to the Local Court, would be as to the age of the person depicted in the photographs. It was then agreed that his Honour should view the images himself and that the crucial question was, as posed by his Honour -
"…Well, Ms Abraham, there's many legal principles that govern the matter… [concerning leave to withdraw a plea of guilty] but it would all be futile if I was [sic] satisfied that there was no possibility in the wide world that that, young girl was older than 18, wouldn't it?"
Ms Abraham also stated, however, that the appellant should be given the opportunity in the lower Court to test the age of the female and should be entitled to the benefit of the doubt. In his Honour's judgment on the application for leave to appeal against conviction, the trial judge said -
"Mr Jimenez has sworn an affidavit. It indicates that the only issue that Mr Jimenez would have tested were the matter returned to the Local Court, was the age of the person depicted in the photographs. It is his view that she is over the age of 18. Clearly, if the person was over the age of 18, then no offence has been committed."
"As I said to Ms Abrahams, the appellant's sister, who appears by way of leave, and the Crown, whilst there are many and sometimes complicated legal principles which govern applications of this kind, no consideration would need to be given to them in the event that I formed the view that returning the matter to the Local Court would be futile because the appearance of the person depicted in the photographs indicated that she was under the age of 18."
His Honour, having viewed a number of the images on a laptop computer, described them briefly, noting that young girls matured at different rates, but stating that "every aspect of the images suggests a girl well below the age of eighteen and probably around the age of thirteen" and referred to other features suggesting that age. His Honour concluded -
"I am satisfied beyond reasonable doubt that the images were clearly of a girl well below the age of 18. As was agreed, that is enough to determine this application. I refuse the application to allow Mr Jimenez to appeal against his conviction."
Regrettably, the images are no longer available, the relevant memory stick having been mislaid by the Court, by the police, or possibly by the Office of the CDPP.
Discussion
It is clear that both the Magistrate and the trial judge were acting upon a misapprehension as to the relevant law.
In respect of the proceedings in the Local Court, even were the conviction to stand, the sentence must be quashed as vitiated by the error of law under which it was imposed, as the Magistrate sentenced the appellant on the basis that the offence was committed if the images were of a child under the age of 18 years. He was not, therefore, sentenced for the offence to which he had pleaded, namely, s 91H(2) of the Crimes Act. So far as the District Court proceedings are concerned, even though the trial judge, plainly enough, considered that the images to be those of a child well under the age of 18 years, he refused leave upon the mistaken understanding that the offence was committed were the images of a child under the age of 18 as distinct from under the age of 16. There is no point in speculating as to whether, had his Honour not been in error on this point, he would have drawn the conclusion that the female was under the age of 16 with the same level of certainty as to her being under 18 years of age. The wrong question was addressed in both proceedings at every crucial procedural stage.
The submissions in this Court for the Crown focused on the statements about the apparent age of the child made, in one way or another, to police and in the Local Court. These included statements capable of being regarded as admissions by the appellant that the female appeared to be under the age of 16 years. However, these admissions were not entirely consistent and various ages including 16 and over were mentioned by the appellant at various times. This Court is not in a position to conclude which of the admissions should be determinative. In the Local Court, the appellant's solicitor submitted that, "we say that [the female depicted] is apparently - she is aged between 14 and 16 years. I think my friend says she might be as young as 12. But, either way, she is certainly not a young child". (I interpolate that, if the female was aged 16 years, there would have been no offence committed. Obviously, this point was not made as it was believed that the relevant age was 18 years.) The Magistrate viewed the images and made the assessment that the young person "would be between the ages of 12 and 16, early to mid-teenage years". This statement appears to contemplate at least the reasonable possibility that the person was aged 16 years and, hence, the offence charged had not been committed. The appellant's solicitor responded that, he did not cavil with the assessment adding, (mistakenly), "whether it be 16 or less is perhaps ultimately of little moment".
It seems certain that the appellant was advised, for the purposes of the proceedings and, in particular, the plea, that the offence was committed if the images were of a child aged less than 18 years. The admission of fact, therefore, actually implicit in his plea was that the child was under the age of 18 years. In my view, the plea could not be regarded as an admission that the child was under the age of 16 years. It must follow "that the plea of guilty was not really attributable to a genuine consciousness of guilt": R v Boag (1994) 73 A Crim R 35 at [2]; R v Thalari [2009] NSWCCA 170. The submissions of the Crown, therefore, to the effect that the appellant had in substance otherwise admitted that the images were those of a girl under the age of 16 years, is not to the point.
Conclusion
It follows that the appeal should be upheld and the appellant's conviction and sentence must be quashed. There is no utility in remitting the matter to the Local Court for trial since the appellant, through no fault of his own, would be denied the opportunity to test the age of the depicted female by reference to the images themselves, which have now been lost.
As I have already said, it is certain on any view as to whether leave should have been given to enable a withdrawal of the plea, that the sentence could not stand as vitiated by an error of law. In any resentencing (were the plea to remain) the age of the victim would be relevant to the question of sentence and the objective evidence of that age, comprising the images themselves, is not available. It follows that the Court in any event could not fairly proceed to sentence the applicant. I do not go so far as to say that, in no case where the images are unavailable, could a prosecution under either s 474.19(1)(a)(i) or s 91H(2) of the Crimes Act proceed but, in the circumstances of this case, I think it is clear that this result must follow.
Accordingly, I would allow the appeal and quash the conviction in the Local Court. I was initially doubtful whether it was appropriate, given that there was no effective plea in the Local Court, to enter an acquittal. However, having had the advantage of reading the judgment of R A Hulme J, I agree with his Honour's proposed orders.
R A HULME J: I agree with Adams J that the conviction of the appellant for the charge of possession of child pornography must be quashed. The plea of guilty was clearly entered by the appellant under a misapprehension as to an essential ingredient of the offence, namely that the material depicted a child under the age of 18 years whereas s 91FA of the Crimes Act 1900 (NSW) defines a "child" for the purposes of offences such as this as a person under the age of 16 years. It is unfortunate that this misapprehension permeated the entire proceedings in the Local Court and the District Court.
I note that some three months after the offence was said to have been committed the various child pornography offences in the Crimes Act were amended by the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW), including changing the reference to "child pornography" to "child abuse material". Nothing in the amendments affects the resolution of this matter.
In the event that this Court quashed the appellant's conviction, learned counsel for the respondent submitted that there should be an order remitting the matter to the Local Court for further hearing, although she acknowledged that the matter would likely be withdrawn. Given the loss of the primary material, that seems to me to be virtually inevitable. This Court should give effect to that inevitability by bringing proceedings to an end now.
As the matter has been referred to this Court pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) to be dealt with as an appeal against conviction under the Criminal Appeal Act 1912 (NSW), it is appropriate to dispose of the matter by way of orders under s 6(2) of the latter.
I propose the following orders:
1. Appeal against conviction allowed.
2. Conviction quashed and verdict of acquittal to be entered.
[2]
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Decision last updated: 27 January 2017
Parties
Applicant/Plaintiff:
Jimenez
Respondent/Defendant:
R
Legislation Cited (5)
Crimes Amendment (Child Pornography and Abuse Material) Act 2010(NSW)s 78, s