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Court of Criminal Appeal 21 December 2016

Glover v R

[2016] NSWCCA 316

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CRIMES ACT 1900 (NSW), SS 91D, 91F WHETHER DUPLICITY WHETHER DOUBLE JEOPARDY APPEAL AGAINST SENTENCE

Citation: Glover v R [2016] NSWCCA 316
Court: NSW Court of Criminal Appeal
Date: 21 December 2016
Judges: Gleeson JA, Fagan J, N Adams J

Background

The appellant was convicted after a judge alone trial in the District Court on ten sexual offences involving two juvenile female complainants. The offences spanned a period of several years and included charges of causing a child to participate in an act of child prostitution (s 91D(1)(a), Crimes Act 1900 (NSW)) and exercising lawful control over premises in which a child participated in an act of child prostitution (s 91F). The trial judge sentenced him to an aggregate term of 10 years imprisonment with a non-parole period of 6 years.

The factual findings included that the appellant had organised, directed, and financially benefited from the prostitution of both complainants, who were minors at the relevant times. He maintained records of earnings, purchased heroin for one complainant out of her share of the proceeds, and controlled where and when the children worked.

On appeal, the appellant pressed one conviction ground and one sentence ground. The conviction ground challenged the validity of charging him with both the s 91D and s 91F offences in relation to the same complainant and the same period, arguing this constituted duplicity and double jeopardy. The sentence ground contended that the aggregate sentence was manifestly excessive.

  • Whether charges under s 91D (causing a child to participate in child prostitution) and s 91F (exercising lawful control over premises used for child prostitution) were bad for duplicity where both related to the same complainant and overlapping periods.
  • Whether convicting the appellant on both provisions in respect of the same conduct placed him in double jeopardy, in contravention of established legal principle.
  • Whether the aggregate sentence of 10 years imprisonment with a non-parole period of 6 years was manifestly excessive.

Decision

The Court rejected the duplicity and double jeopardy arguments. Sections 91D and 91F create distinct offences with different elements. Section 91D targets the act of causing or procuring a child's participation in prostitution, while s 91F targets the exercise of lawful control or management over premises where child prostitution occurs. The Court found that each provision required proof of a matter the other did not, and the charges were therefore not duplicitous.

On double jeopardy, the Court was satisfied that the two offences were not the same in law and did not stand or fall together on the evidence. Evidence sufficient to establish the premises offence under s 91F was not necessarily sufficient to establish the causation element required under s 91D. The charges could be tried and convicted separately without offending double jeopardy principles.

Regarding manifest excess in sentencing, the Court noted that the appellant's submissions in support of this ground were brief and relied primarily on statistics drawn from a database of only five cases, which the Court found provided no meaningful guidance. Having regard to the statutory maxima, the exploitative nature of the offending, its protracted duration over many years, and the need for strong denunciation and general deterrence, the Court concluded the aggregate sentence could not be characterised as unreasonable or plainly unjust.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave is granted to appeal against severity of sentence.
  • The appeal against sentence is dismissed.

Key Takeaways

  • Sections 91D and 91F of the Crimes Act 1900 (NSW) create separate and distinct offences: causing a child to participate in prostitution requires proof of a causative act, while exercising lawful control over premises requires proof of control or management of the relevant location. Each requires proof of an element the other does not.
  • A charge is not duplicitous merely because it arises from the same factual circumstances as another charge, provided the offences have different legal elements.
  • Double jeopardy is not engaged where two charges are legally distinct and evidence sufficient to prove one would not necessarily be sufficient to prove the other.
  • In dismissing the sentence appeal, the Court of Criminal Appeal applied the well-established principle from Markarian and Hili that manifest excess requires the sentence to be "unreasonable" or "plainly unjust"; a statistical comparison drawn from only five comparable cases carries no weight in that assessment.
  • Aggravating features inherent in the nature of the charges themselves, including the exploitation of vulnerable minors over many years, are relevant to the sentencing exercise even where no separate statutory aggravating circumstances are identified.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91D, 91F, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Code Act 1995 (Cth)
- Copyright Act 1968 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
- Nahlous v The Queen (2010) 77 NSWLR 463; [2010] NSWCCA 58
- Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
- R v Dodd (1991) 56 A Crim R 451
- The Queen v Elrington (1861) 1 B & S 688; 121 ER 870