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Court of Criminal Appeal 27 January 2017

Jimenez v R

[2017] NSWCCA 1

Sexual offences
LEAVE TO APPEAL AGAINST CONVICTION REFERRAL TO COURT OF CRIMINAL APPEAL POSSESSION OF CHILD PORNOGRAPHY FEDERAL AND STATE JURISDICTION ERROR AS TO RELEVANT LAW CONVICTION QUASHED.

Citation: Jimenez v R [2017] NSWCCA 1
Court: Court of Criminal Appeal
Date: 27 January 2017
Judge(s): Hoeben CJ at CL; Adams J; R A Hulme J

Background

The appellant was stopped at Sydney Airport in June 2010 and found to be carrying a USB memory stick containing 53 images of a female who appeared to officers to be approximately 12 to 14 years of age. He was charged with possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), and later with a separate Commonwealth offence of using a carriage service to access child pornography material. Following negotiations, the Commonwealth charge was withdrawn and the matter was dealt with in the Local Court.

The appellant pleaded guilty in the Local Court and was convicted on 14 January 2010, receiving a fine of $6,600. He subsequently appealed to the District Court seeking leave to withdraw his plea, arguing he had received incorrect legal advice and maintained the images depicted an adult. Leave was refused. He then brought an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction, which led Garling J to refer the matter to the Court of Criminal Appeal.

The central problem that emerged was a consistent legal error running through every stage of the proceedings: all participants, including the Magistrate, the District Court judge, the prosecutor, and the appellant's own solicitor, operated under the mistaken belief that the offence applied where images depicted a person under 18 years of age. The correct age threshold under s 91FA of the Crimes Act 1900 (NSW) for the State offence is under 16 years.

Legal Issues

  • Whether the appellant's plea of guilty was entered under a fundamental misapprehension about an essential element of the offence, namely the relevant age threshold
  • Whether the conviction and sentence imposed by the Local Court were vitiated by the error of law as to that threshold
  • Whether the District Court's refusal of leave to appeal was itself affected by the same error
  • Whether the matter should be remitted to the Local Court for a fresh hearing, or whether the proceedings should be brought to a final end

Decision

Issue 1: Misapprehension as to the age threshold and validity of the plea

The crucial distinction between the Commonwealth and State offences is that the Commonwealth charge applied to material depicting a person appearing to be under 18 years, while the State offence under s 91H(2) only applies where the depicted person is under 16 years (at [6]). The Magistrate, the District Court judge, the prosecutor, and the appellant's solicitor all operated under the erroneous assumption that the 18-year threshold governed the State charge (at [11]). The appellant pleaded guilty under that same misapprehension, and his plea therefore could not be regarded as an admission that the person depicted was under 16 years (at [14]). Applying the principles in R v Boag and R v Thalari, the court found the plea was not attributable to a genuine consciousness of guilt (at [14]).

Issue 2: Effect of the error on the conviction and sentence

The Magistrate sentenced the appellant on the basis that the offence was made out if the images depicted a person under 18 years, meaning the sentence was imposed for the wrong offence (at [12]). The District Court judge, having viewed the images and assessed the depicted female to be "probably around the age of thirteen," refused leave on the mistaken understanding that the 18-year threshold applied (at [9], [12]). The court declined to speculate whether the District Court judge would have reached the same level of certainty about the person being under 16 had the correct question been posed (at [12]).

Issue 3: Whether to remit the matter

The USB memory stick containing the images had been lost, making it impossible for the appellant to contest the age of the depicted person at any further hearing (at [10], [15]). The court found there was no utility in remitting the matter to the Local Court, as the appellant would be denied a fair opportunity to test an essential element of the offence through no fault of his own (at [15]). The court also could not fairly proceed to resentence the appellant because the primary evidence of the victim's age was no longer available (at [16]). Accordingly, the proceedings were brought to a final end by entry of a verdict of acquittal.

Orders Made

  • Appeal against conviction allowed.
  • Conviction quashed and verdict of acquittal to be entered.

Key Takeaways

  • A plea of guilty entered under a fundamental misapprehension about an essential element of the offence cannot be treated as an admission of guilt in respect of that element, and a conviction founded on such a plea will not stand (at [14]).
  • Under s 91FA of the Crimes Act 1900 (NSW), the relevant age threshold for the State offence of possessing child abuse material is under 16 years, not the 18-year threshold that applies under the Commonwealth offence in s 473.1 of the Criminal Code Act 1995 (Cth) (at [6]).
  • Where a misapprehension as to an essential legal element pervades every stage of the proceedings, including advice given by the defence solicitor, the conviction and sentence are both vitiated by that error (at [11], [12]).
  • The Court of Criminal Appeal declined to remit a matter for retrial where the primary evidence needed to establish an essential element of the offence had been lost through no fault of the appellant, making a fair hearing impossible (at [15], [16]).
  • Where remittal is futile, the Court of Criminal Appeal may exercise its power under s 6(2) of the Criminal Appeal Act 1912 (NSW) to enter a verdict of acquittal rather than simply quashing the conviction (at [21]).

Legislation and Cases Referenced

Legislation
- ss 91H(2), 91FA Crimes Act 1900 (NSW)
- Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)
- s 78, s 79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW)
- s 6(2) Criminal Appeal Act 1912 (NSW)
- ss 473.1, 474.19(1)(a)(i) Criminal Code Act 1995 (Cth)

Cases
- Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635
- R v Boag (1994) 73 A Crim R 35
- R v Thalari [2009] NSWCCA 170