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District Court 8 March 2010

R v Cemitis, Andrew [No 1]

[2010] NSWDC 158

Sexual offences
CRIMINAL LAW INTERLOCUTORY APPLICATION FILMING AND POSSESSION APPELLANT'S PLEAS WERE INFORMED PLEAS NO REAL OPPORTUNITY FOR ACQUITAL LOST.

Citation: R v Cemitis, Andrew [No 1] [2010] NSWDC 158
Court: District Court of New South Wales
Date: 8 March 2010
Judge(s): Nicholson SC DCJ

Background

The accused had been arraigned at Moree District Court in March 2009 on an indictment containing five counts. Represented by counsel, he entered pleas of guilty to two counts of producing child pornography, one count of possessing child pornography, and one count of using an offensive weapon to hinder apprehension. The prosecution accepted those pleas in full satisfaction of the indictment and sentencing proceedings commenced.

The charges arose from the accused filming young girls through bedroom and bathroom windows without their knowledge. The material had been assessed by his counsel as sitting low on the COPINE Scale (an internationally recognised ranking tool used to categorise the severity of child exploitation material).

Before sentencing was completed, the accused sought leave to withdraw his guilty pleas on the basis that a Court of Criminal Appeal decision handed down just three weeks after his pleas were entered had changed the relevant legal landscape. His counsel deposed that, had he been aware of that decision at the time, the advice given about pleading guilty may have been incorrect.

  • Whether the pleas of guilty to the child pornography charges were uninformed because counsel was unaware of the Court of Criminal Appeal's decision in DPP v Annetts (2009) NSWCCA 86 at the time of advising the accused.
  • Whether the accused had lost a real opportunity for acquittal as a result of any deficiency in the advice given.
  • Whether the court should exercise its discretion to grant leave to withdraw the pleas.

Decision

The court examined the decision in DPP v Annetts, which had clarified the meaning of "sexual context" under s 91H of the Crimes Act 1900. Specifically, Annetts confirmed that the motivation of the photographer and the method of filming are not determinative; what matters is whether the content of the images depicts a person in a sexual context. The accused's counsel had deposed that he was unaware of Annetts when advising the plea, and that upon reviewing the footage again in light of that decision he could not be certain the images depicted the victims in a sexual context.

Nicholson SC DCJ rejected that analysis. The court viewed the material on the discs and found it to consist of images of pubescent girls dressing, undressing, and showering, with a focus on their anatomy. That collection was found to involve subjects who qualified as children, to have been depicted in a sexual context (consistent with voyeuristic activity), and to be material capable of causing offence to reasonable persons. Poor image quality did not disguise the context.

The court found that defence counsel's original advice had in fact applied the correct criteria, even without direct knowledge of Annetts. The advice was based on the content and circumstances of the images, which was precisely the approach Annetts required. The court also observed that counsel's affidavit was equivocal, using the phrase "may in fact have been incorrect," and concluded that counsel may not have fully grasped what Annetts had actually held.

Applying the principle from R v Unger [1977] 2 NSWLR 990, the court accepted that a real opportunity for acquittal, if established, would weigh in favour of granting leave. However, the court was satisfied that, properly applying Annetts in jury directions, there was more than sufficient material on each disc to support conviction. No real opportunity for acquittal had been lost, and there was no risk of miscarriage of justice in refusing the application.

Orders Made

  • Application to withdraw the pleas of guilty to producing child pornography and possessing child pornography refused.
  • Pleas of guilty confirmed as entered in respect of all three charges pleaded to on indictment.

Key Takeaways

  • A plea of guilty may be withdrawn where the accused has lost a real opportunity for acquittal due to uninformed legal advice, but the court retains a discretion and will assess whether any such opportunity genuinely existed.
  • Where a relevant appellate decision was delivered after a plea was entered, the court will examine whether the advice actually given was consistent with the principles that the appellate decision later articulated, rather than treating the plea as automatically uninformed.
  • Under s 91H of the Crimes Act 1900, and as confirmed in DPP v Annetts, the key question in a child pornography charge is whether the content of the images depicts a person in a sexual context; the photographer's motivation and filming method are not determinative, though they may remain relevant contextual factors.
  • Low placement on the COPINE Scale does not preclude a finding that material constitutes child pornography where the overall collection establishes a sexual context involving children.
  • Refusing to permit withdrawal of a plea does not constitute a miscarriage of justice where the original advice, properly analysed, was based on the correct legal criteria and the evidence was plainly sufficient to support conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H (production and possession of child pornography)
- Poisons Act 1966 (NSW)

Cases:
- DPP v Annetts (2009) NSWCCA 86
- R v Unger [1977] 2 NSWLR 990
- R v Ramsden [1972] Cr LR 547