R v Coffey [2003] VSCA 155

Court of Appeal (Vic)|2003-10-02|Before: CALLAWAY, BUCHANAN and EAMES, JJ.A.

Criminal Law - Indecent act with child under 16 - Possessing child pornography - Application for leave to appeal against conviction following plea of guilty - Principles to be applied - Meaning of "with" in Crimes Act 1958, s.47 - Whether s.47 creates one offence or two separate offences - Indecent act not "with", but "in the presence of", the complainant - Leave to appeal against conviction refused - Sentence of two-and-a-half years' imprisonment for indecent act manifestly excessive - Sentence of six months' imprisonment for possessing child pornography not manifestly excessive - Applicant re-sentenced to 18 months' imprisonment, partly suspended for operational period of two years - , , , , , 60, , 568.

The applicant, who is now aged 50, pleaded guilty in the County Court at Geelong to one count of committing an indecent act with a child under the age of 16 (count 1), one count of possessing child pornography (count 2) and one count of possession of cannabis (count 3). After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 4th December 2002 to two-and-a-half years' imprisonment on count 1 and six months' imprisonment on count 2. He was fined without conviction on count 3. His Honour directed that three months of the sentence imposed on count 2 were to be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of two years and nine months' imprisonment, of which service of 15 months was suspended for an operational period of three years.

The applicant seeks leave to appeal against the conviction on count 1 and leave to appeal against the sentences imposed on counts 1 and 2.[1] The sole ground of appeal against conviction is that the applicant could not, as a matter of law, and upon the admitted facts, have been found guilty of the offence of committing an indecent act with a child under the age of 16 years.

Before turning to counsel's submissions, I shall say something briefly about the facts. The complainant, who was born on 17th September 1982, was a student at a school at which the applicant taught French. The applicant is homosexual and believed the complainant to be of homosexual orientation. Over time he cultivated the complainant's friendship. He began by driving the boy to school on occasions and then on a more regular basis. He asked the complainant out to a meal to celebrate his thirteenth birthday and provided him with alcohol. When they returned to the applicant's home and further alcohol was provided, the applicant showed the boy a pornographic video. That was the first of several evenings on which the applicant took the complainant out to dinner. There was always alcohol and usually the complainant returned to the applicant's home and stayed overnight.

The complainant stated that, on one such occasion in late 1996 or early 1997, while they were driving home the applicant suggested that he should perform a strip dance in payment for the dinner. After returning home they continued to drink and, more than once, the applicant asked the complainant to perform a strip dance. The complainant refused and the applicant went to his bedroom and changed into a Japanese kimono bathrobe. When he returned to the lounge-room he again asked the boy to dance. This time the complainant agreed. He began to dance and removed all his clothing except his underpants. While the applicant watched the complainant dance the complainant observed the applicant fondling his penis. In interview the applicant denied that he had suggested that the boy perform the strip dance and denied that he had fondled himself, but he was sentenced on that basis and that is the basis on which we must proceed. Counsel on the plea said that he had been instructed that his client did not wish to dispute the facts by having the victim called to give evidence.

After the complainant celebrated his fourteenth birthday he moved in to live with the applicant for a period of about six months. He also lived with the applicant from February to approximately September 2000. It was during that period that he discovered a cache of child pornography on the applicant's computer. A search warrant was executed on 20th February 2001 and the computer was seized. A subsequent investigation located 1,543 encrypted files and 740 unencrypted files. Of the encrypted files 98% were pornographic and 1,340 images depicted child pornography. Of the unencrypted files 32% were pornographic and 140 images depicted child pornography. During their search of the applicant's premises the police also located a small quantity of cannabis. When interviewed, the applicant said that it belonged to the complainant.

The ground of appeal against conviction reflects a line of cases beginning with R. v. Forde[2], in which the judgment of the English Court of Criminal Appeal was delivered by Avory, J. His Lordship said[3]:

"A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged."

Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice.[4] The same view has been expressed in New South Wales.[5] The authorities are discussed in R. v. Tait[6], R. v. Parsons[7] and R. v. El-Kotob[8]. There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty. [9]

Section 47(1) of the Crimes Act 1958 provides:

"(1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married. Penalty: Level 5 imprisonment (10 years maximum)."

Count 1 charged that the applicant "wilfully committed an indecent act with [the complainant] a child under the age of 16 to whom he was not married". Mr Tehan's primary submission was that it could not be said, as a matter of law, that, on the admitted facts, the applicant committed an indecent act "with" the complainant, because there was no actual physical contact with the victim. It was no answer, so the submission proceeded, to say that the applicant could have been convicted of wilfully committing an indecent act "in the presence of" the complainant, for that was a separate offence with which he had not been charged and to which he had not pleaded guilty.[10]

A subsidiary submission was that, even if there were but one offence, it was unfair for the facts to be characterized differently on appeal from the way in which they had been characterized by the Crown on the plea.

The Director's primary submission was that it was not necessary for there to be actually physical contact, in the sense in which Mr Tehan used those words, in order to satisfy the first alternative in s.47(1).[11] The admitted facts established that the applicant had committed an indecent act with the complainant, because all that was required was physical proximity together with involvement of, or participation by, the victim. Alternatively, he submitted, s.47 created but one offence and, even if the indecent act had been only "in the presence of" the complainant, the applicant was still guilty of the offence to which he had pleaded. The Director referred also to Rule 5(1) in the Sixth Schedule to the Crimes Act.[12] He emphasized the caution with which a court of criminal appeal should accede to an application of this kind.[13]

The antecedents of s.47 and the authorities relating to similar, but by no means identical, legislation in other jurisdictions were examined by Chernov, J.A. in R. v. TSR.[14] The legislation in other jurisdictions was also considered by the New South Wales Court of Criminal Appeal in R. v. Orsos[15] and by the High Court in Crampton v. R.[16] There is no authority binding on this Court as to whether s.47 creates one or two offences. The right approach is to consider the question as a matter of principle and in the light of the authorities on s.47 itself. Only then can the usefulness or otherwise of the learning on different provisions in other jurisdictions be decided.

Over the years the Victorian Parliament has, in a series of reforms, modernized the criminal law. Prominent examples include the Crimes (Theft) Act 1973, which introduced provisions similar to those of the English Theft Act 1968; the Crimes (Criminal Damage) Act 1978, which consolidated and amended the law relating to malicious injuries to property; the Crimes (Conspiracy and Incitement) Act 1984, which amended and codified the law relating to conspiracy and incitement; and the Crimes (Amendment) Act 1985, which amended and codified the law relating to attempt and reformed the law relating to certain offences against the person. The last-mentioned Act affords a particularly good illustration. Even the sections that were to reform the law, rather than to amend and codify it, replaced provisions that spoke of malicious wounding and inflicting grievous bodily harm and the like with new, simply worded offences such as intentionally causing serious injury, recklessly causing serious injury and intentionally or recklessly causing injury.

Section 47 is the product of similar reforms relating to sexual offences. They began with the Crimes (Sexual Offences) Act 1980, the preamble to which recited, among other things, that it was desirable for the law to protect all persons from sexual assaults and other acts of sexual coercion and to protect persons from sexual exploitation, especially exploitation by persons in positions of care, supervision and authority; that it was desirable for the law to protect and otherwise treat men and women so far as possible in the same manner; and that it was desirable to abolish or modify certain obsolete rules of law.

Section 69 of the Crimes Act was an example of the kind of provision that Parliament intended to modernize and make equally applicable to men and women. It provided:

"69.(1) Any male person who in public or in private - (a) commits any act of gross indecency with or in the presence of any girl under the age of sixteen years; or (b) incites or procures or attempts to procure the commission by any such girl of any act of gross indecency with the accused or in the presence of the accused or with any other person in the presence of the accused; or (c) is otherwise a party to the commission of any act of gross indecency by or with or in the presence of any such girl or by or with any other person in the presence of such girl or by any such girl with any other person in the presence of the accused - shall be guilty of a misdemeanour and shall be liable for a first offence to imprisonment for a term of not more than two years and for a second or any subsequent offence to imprisonment for a term of not more than three years.

...

(4) Any male person who in public or in private commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a misdemeanour and shall be liable to imprisonment for a term of not more than three years." (Emphasis added.)

The 1980 Act substituted the following provision:

"50. (1) A person who in public or in private - (a) commits, or is in any way a party to the commission of, an act of gross indecency by, with or in the presence of a person under the age of sixteen years; or (b) procures, incites or attempts to procure the commission of an act of gross indecency by, with or in the presence of a person under the age of sixteen years - is guilty of an indictable offence and, subject to sub-section (2), liable to imprisonment for a term of not more than two years.

..." (Emphasis added.)

The provisions defining sexual offences that had been introduced by the 1980 Act were replaced by the Crimes (Sexual Offences) Act 1991. Section 50(1) was replaced by s.47(1), which has not been amended since except as regards the way in which the penalty is expressed.[17] Section 49 creates a similar offence where the child is 16 but under the care, supervision or authority of the offender.

Section 47 is concerned with the commission of an indecent act with or in the presence of a child under the age of 16. The sex of the offender and the sex of the child are irrelevant to conviction. (I say nothing about sentencing.) It is also irrelevant to conviction whether the indecency is of a heterosexual or homosexual nature. As Chernov, J.A. said in R. v. TSR[18], it is obvious that the section was intended "to deal fully with indecent acts involving children under the age of 16". For the reasons his Honour gave in that case, and again in contrast with other legislation, the child need not be a willing participant. The only difference between s.50(1), substituted by the 1980 Act, and s.47(1) that need be noticed for present purposes is the omission of any reference to an act of gross indecency or an indecent act by a child. There may be more than one reason for the omission of that word. In the first place, the drafting of s.50(1) was defective in apparently dealing with a case where a person "commits ... an act of gross indecency by ... a person under the age of sixteen years". Secondly, in most cases where a person is complicit in an indecent act committed by a child, it will also be the case that he or she commits, or is a party to the commission of, an indecent act with or in the presence of the child. Even more fundamentally, it cannot have been the intention of Parliament, by omitting the word "by", to narrow the scope of the expression "with or in the presence of" which had been used in both s.69 and s.50.

The natural meaning of s.47, reinforced by its evident purpose and the preamble to the 1980 Act, which began these reforms, is that it creates a single, modern offence dealing with indecent acts involving children under the age of 16. It no more creates two offences than a statute which prohibits a disturbance "at or in the vicinity of" a railway station. That is borne out by Chernov, J.A.'s analysis in R. v. TSR.[19] It is confirmed by the decision of this Court in R. v. Alexander and McKenzie.[20]

Count 9 on the presentment in that case concerned a telephone conversation between the complainant and Alexander in the course of which he instructed her to masturbate while he was talking to her. She led him to believe that she was complying with his instructions but in fact she was not. It was held that Alexander had not thereby committed an indecent act with the complainant and his conviction, following a trial, not a plea of guilty, was quashed. Winneke, P., in whose reasons Charles and Vincent, JJ.A. agreed, said:

"51 It is true, as the respondent argued, that the words 'with or in the presence of' comprehend a broader range of offending than would be contemplated if the relevant offence was simply described as 'an indecent act with ...'. But that is because of the addition of the words 'in the presence of'. In this State, s.69(1) Crimes Act 1958 had, as long ago as 1958, made it an offence for 'any male person ... in public or private' to commit 'any act of gross indecency with or in the presence of any girl under the age of 16 years'. However, it had never been suggested that the word 'with' was to be interpreted as extending to indecent acts beyond the presence of the person offended against or, in particular, that it could extend to the use of indecent language over the telephone. Rather, the word 'with' was confined to participating conduct. The same view was taken by the Court of Criminal Appeal (NSW) in R. v. Page in respect of the offence then described by s.81A of the Crimes Act (NSW), namely 'Whosoever, being a male person commits ... an act of indecency with another male person'. Again, in R. v. Orsos, the Court of Criminal Appeal (NSW) considered the meaning of the words 'with or towards' in the offence described by s.61N of the Crimes Act (NSW). Grove, J. with whom Priestley, J.A. concurred, said: 'To commit an act of indecency "with" a person involves two participants whereas logically and grammatically one person may commit an act of indecency "towards" another.' 52. In Crampton v. R., the High Court agreed with the view taken by the Court of Criminal Appeal (NSW) of s.81A of the Crimes Act (NSW) that an act of indecency 'with' another person required for its proof 'consensual participating acts, or, acts done in concert'. Although it is true that s.47 of the Crimes Act (Vic.) contemplates an offence without consent or concert, it seems to me that the word 'with', used in juxtaposition with the words 'in the presence of', must imply actual physical contact with the victim. Kirby, J. expressed the view that any ambiguity which attended the word 'with' had been removed in other jurisdictions by combining it with the words 'in the presence of'. He referred, in this regard, to s.47 of the Crimes Act (Vic.)." (Footnotes omitted, emphasis added.)"

Mr Tehan relied on the passage I have italicised in [52] of the learned President's judgment. In the present case, he submitted, there was no "actual physical contact with the victim". The Director submitted that the italicised passage was obiter and that all that the President intended was to make a distinction between a person in physical proximity with a complainant as opposed to a person speaking over the telephone to a complainant. In the present case, he said, there was evidence which could be characterized as the applicant's committing an indecent act with the complainant.

I do not accept the Director's submission. To my mind the italicised passage in [52] of the President's reasons is part of the ratio decidendi. The conviction on count 9 was quashed because there was no actual physical contact with the victim and accordingly Alexander had not committed an indecent act with her, as charged in the presentment.[21] His Honour's statement that the word "with" implies actual physical contact cannot be read to mean physical proximity, partly because of the words "actual" and "contact" and partly because the reason he gave was the use of "with" in juxtaposition with the words "in the presence of". It was the width of the expression "in the presence of" that made it appropriate to adopt a narrow reading of "with". Participating conduct of the kind referred to in [51] was no longer enough.[22]

I do not stay to consider whether, in the absence of that authority, I should have construed "with" as requiring actual physical contact or as excluding a telephonic communication. Like any other Victorian judge, I am bound by R. v. Alexander and McKenzie. Its importance for present purposes is that it affords two more reasons for understanding s.47 as creating a single offence. The first is that "actual physical contact" itself is not free of ambiguity and there may be borderline cases. Secondly, and more importantly, the distinction between an indecent act involving actual physical contact and an indecent act otherwise within the purview of s.47 is arbitrary. It cannot be said that the former refers to one kind of offence and the latter to a different kind of offence.[23] It is not like the expression "with or towards" in the legislation considered by the New South Wales Court of Criminal Appeal in R. v. Orsos.

Like Chernov, J.A. in R. v. TSR, and for similar reasons, I do not find the cases on different provisions in other jurisdictions of assistance. Certainly, they would not deflect me from a straightforward reading of s.47 that is borne out by two recent decisions of this Court. None of the authorities on which counsel relied concerned legislation that said "with or in the presence of". The policy and linguistic considerations that informed some of them simply do not apply to s.47. We must not undermine the intention of Parliament to modernize the law relating to sexual offences. Fine distinctions are inappropriate, particularly as indecent acts are as various as human imagination can make them.

Accordingly, whilst I reject the Director's submission concerning the status and meaning of the italicised passage in [52], I conclude that s.47 creates only one offence.[24] The applicant did not commit an indecent act with the complainant but he did commit an indecent act in the presence of the complainant. He fondled his penis whilst he watched a child perform, at his request, a strip dance down to the child's underpants. That does not unfairly recharacterize the offending conduct, having regard to the course of the plea.[25] It follows that the applicant was, as a matter of law, and upon the admitted facts, guilty as a principal of the offence to which he pleaded.[26] That offence, for the purpose of the cases that begin with R. v. Forde, is the offence created by s.47. Moreover, for the reasons I have given, a count that said "with or in the presence of" would not have been bad for duplicity and a verdict of guilty on such a count would not be uncertain.

For these reasons, I would dismiss the application for leave to appeal against conviction and I turn to the application for leave to appeal against sentence.

Ground 3 was not pressed. The other grounds read:

"1. That the learned sentencing judge erred in not indicating to counsel that he did not accept that the offending in question fell to the lower end of any scale applicable to such conduct and in not giving counsel an opportunity to address him regarding the same. 2. That the learned sentencing judge erred in finding that the offending in question did not fall to the lower end of any scale applicable to such conduct.

...

4. In all the circumstances the sentences imposed on the applicant were manifestly excessive."

Grounds 1 and 2, as argued, related only to the offending the subject of count 1. As I consider that the sentence imposed on that count was manifestly excessive, there is no need to say any more about those two grounds.

No doubt mindful of the concession made by the Crown that a wholly suspended sentence was within the range, the learned judge said this in the course of his sentencing remarks:

"Simplistically, it might be argued that an offender of whatever sexual proclivity or gender, who has a 14 year old boy dance semi-naked for erotic pleasure or sexual gratification and who is otherwise of good character and is unlikely to reoffend, should at worst receive a wholly suspended sentence. This case is quite different from the situation I have posed. In this case the victim was affected by liquor supplied by the prisoner. In this case the victim was aged 14 years, a student who was currently being taught by the prisoner. It was an act of betrayal of trust by the prisoner. Parents and the public in general are entitled to expect that the teacher of their child will behave towards that child in a way which is consistent with community standards of morality and in accordance with the law. The legislature has made it crystal clear that children under the age of 16 years must be protected."

The seriousness of the offence, general deterrence and curial denunciation, his Honour continued, made a custodial sentence to be served immediately the only appropriate disposition.

The fact that the victim was a student who was currently being taught by the prisoner is, of course, the salient aggravating feature of the case. Moreover, whilst the applicant faced only one count, the offending took place in the context of an inappropriate relationship facilitated by liquor. There is, however, no evidence that the fondling of the applicant's penis was other than through or under his underpants. The complainant said only that he could clearly see that the applicant "had become aroused as he had an erection and, whilst he was watching me dance, he was fondling his penis". In his record of interview the applicant denied exposure and said that he always wore his underpants with his kimono. There was no victim impact statement.

Mitigatory factors included his plea of guilty, including his instructions not to take steps that would require the complainant to give evidence; his having reached the age of 49, at the time of sentencing, with no previous convictions; and his being otherwise of good character and, as his Honour accepted, unlikely to reoffend. I bear in mind our obligation not simply to substitute our own disposition for that adopted

by the sentencing judge but, in my respectful opinion, two-and-a-half years' imprisonment was outside the range. It matters not that the sentence was partly suspended.[27]

By contrast, the sentence imposed on count 2 was within the range. As his Honour said, child pornography of this kind involves the corruption and violation of children and the possession of such pornography creates a market which encourages the further exploitation of children. The offence created by s.70 of the Crimes Act, which carries a maximum custodial penalty of five years' imprisonment, is intended, among other things, to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it.[28]

At the conclusion of the hearing of these applications on 2nd September 2003 the Court released the applicant on bail pending their determination. He had then served nine months of the sentence imposed below. I propose that the sentence on count 1 be quashed and a sentence of 15 months' imprisonment substituted. I would affirm the sentence imposed on count 2 and the direction for cumulation, making a total effective sentence of 18 months' imprisonment. I would suspend so much of that sentence as has not already been served for an operational period of two years beginning on the date on which the applicant was sentenced in the County Court.

For the reasons stated by Callaway, J.A. I would dismiss the application for leave to appeal against conviction, allow the application for leave to appeal against sentence and substitute the sentence proposed by his Honour.

[1] Originally the applicant sought leave to appeal only against sentence and the matter was listed before a single judge of appeal pursuant to s.582 of the Crimes Act 1958, but on 19th June 2003 the Registrar granted the applicant an extension of time within which to seek leave to appeal against the conviction on count 1.

[4] Crimes Act 1958, s.568(1).

[9] R. v. Liberti (1991) 55 A.Crim.R. 120 at 122.

[10] It was not conceded that the applicant had committed an indecent act in the presence of the complainant but, in my opinion, he had: see [[] below.

11] There are also alternatives between wilfully committing, and wilfully being in any way a party to the commission of, an indecent act. They may be put to one side for present purposes.

[12] See R. v. Ginies [1972] VicRp 43; [1972] V.R. 394 at 400.

[13] The Director pointed out, by way of example, that, had there been a jury trial and if there are two separate offences, this Court could have substituted an appropriate verdict pursuant to s.569(2) of the Crimes Act.

[17] The maximum custodial penalty has always been ten years' imprisonment.

[19] Nothing turns on his Honour's words "also an offence under s.47(1)" in [94], particularly as he went on to say that "[t]he offence" may be committed by an indecent act committed in front of a child as well as by an indecent act committed on the person of a child. The latter words were quoted with approval by Winneke, P. in the case to which I am about to turn, R. v. Alexander and McKenzie, at [50].

[21] R. v. Alexander and McKenzie at [53].

[22] The footnote to the italicised sentence in [51] referred to R. v. Hunt [1950] 2 All E.R. 291 and R. v. Preece [1977] Q.B. 370 at 376. In both cases the accused were convicted, although there was no actual physical contact, but the statute said "with", not "with or in the presence of". Compare ss.51(2), 52(2) and 60(1) of the Crimes Act.

[23] This Court had a case a few years ago in which the indecent act was sniffing the victims' genitals. It cannot possibly make any difference whether there was, or was not, actual physical contact. In the interests of decency, I give no other examples.

[24] There is no need to consider whether there are two offences by reason of the opening words of s.47. See fn. 11 above. We are concerned only with the effect of the words "with or in the presence of".

[25] That is important. There may be cases where a particular characterization of the facts is unfair or alternatively impinges on sentence.

[26] It is unnecessary to consider whether there is a distinction for present purposes, notwithstanding s.323 of the Crimes Act, between liability as a principal and liability as an accessory: cf. R. v. Liberti at 125-126.

[27] Sentencing Act 1991, s.27(3). One of the reasons the sentence, if unsuspended, must be appropriate is that, since the 1997 amendments, if the sentence is breached, the offender will usually have to serve it.

[28] Compare R. v. Liddington (1997) 18 W.A.R. 394 at 403.

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