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Court of Criminal Appeal 8 December 2017

Turner v R

[2017] NSWCCA 304

Sexual offences
CRIME APPEAL LEAVE TO APPEAL AGAINST SENTENCE OFFENCES PUBESCENT GIRL WHETHER MISCARRIAGE OF JUSTICE

Citation: Turner v R [2017] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 8 December 2017
Judges: Basten JA; Adamson J; Bellew J

Background

The applicant had pleaded guilty in the District Court to 10 charges arising from covert video and photographic recordings of three young girls aged between eight and ten years, made for the purpose of sexual gratification. The charges included producing and possessing child abuse material and child pornography under s 91H(2) of the Crimes Act 1900 (NSW), using a child to produce child abuse material under s 91G, and two counts of indecent assault under s 61M(2). Acting Judge Charteris imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years, commencing 26 November 2015.

The applicant sought leave to appeal against the aggregate sentence on grounds including error in assessing the objective seriousness of the offending and manifest excess. After the hearing, the Court raised, of its own motion, questions about whether the conduct underlying certain counts could, as a matter of law, constitute the offences charged. This prompted supplementary submissions and an amended notice of appeal challenging the convictions on two counts.

  • Whether the definition of "private parts" in s 91FB of the Crimes Act 1900 (NSW) extends to clothed areas of the body (specifically, exposed underpants)
  • Whether the phrase "breasts of a female person" in s 91FB(4) extends to the bare chest or nipples of a pre-pubescent girl
  • Whether the guilty pleas on counts 6 and 10 should have been accepted, and whether those convictions were attended by a miscarriage of justice
  • Whether the aggregate sentence was manifestly excessive or otherwise infected by error
  • Whether the applicant should be resentenced

Decision

On the definition of "private parts," the Court held that the term in s 91FB(4) does not extend to clothed areas of the body. A recording capturing exposed underpants, without more, does not depict the "private parts" of a child within the statutory definition. Accordingly, count 10, which was based on images of a child's underpants, could not support the charge of possessing child abuse material. The Crown Director conceded this point in respect of count 10.

On the question of whether "breasts of a female person" applies to the bare chest or nipples of a pre-pubescent girl, the Court concluded that the statutory phrase does not extend to a pre-pubescent child's chest. This finding meant that the photographs underlying count 6, which showed the nipples of a young girl whose shirt had been lifted, did not constitute child abuse material as defined by s 91FB. Count 6 therefore could not stand.

Because the factual bases for counts 6 and 10 did not satisfy the legal elements of the respective offences, the Court found the guilty pleas should not have been accepted, and that a miscarriage of justice had occurred. The convictions on both counts were quashed and the pleas of guilty were permitted to be withdrawn.

The Court also found error in the original sentencing, including an erroneous order purporting to direct the Parole Authority to release the applicant at the end of the non-parole period (a power the sentencing court did not possess for sentences exceeding 3 years). The Court proceeded to resentence the applicant, reducing the non-parole period to 3 years and setting an overall term expiring in May 2020.

Orders Made

  • Leave granted to file the amended notice of appeal dated 14 November 2017
  • Leave granted to withdraw guilty pleas on counts 6 and 10; convictions on those counts quashed
  • Leave to appeal against the aggregate sentence granted
  • Aggregate sentence imposed on 4 November 2016 set aside
  • Applicant resentenced to a non-parole period of 3 years from 26 November 2015 (expiring 25 November 2018), with a balance of term of 1 year and 6 months expiring 25 May 2020
  • First eligible parole date: 25 November 2018

Key Takeaways

  • Under s 91FB(4) of the Crimes Act 1900 (NSW), "private parts" does not include clothed areas of the body; images depicting only a child's exposed underpants do not, without more, constitute child abuse material within that definition.
  • The statutory reference to "breasts of a female person" in s 91FB(4) does not extend to the bare chest or nipples of a pre-pubescent girl, meaning photographs of such features do not fall within the definition of child abuse material on that basis.
  • A guilty plea should not be accepted where the conduct admitted does not, as a matter of law, constitute the offence charged; acceptance of such a plea gives rise to a miscarriage of justice warranting the conviction being quashed.
  • Sentencing courts do not have the power to order an offender's release on parole at the expiry of the non-parole period where the aggregate sentence exceeds 3 years; that determination is reserved to the Parole Authority under the Crimes (Administration of Sentences) Act 1999 (NSW).
  • Errors in associating Form 1 offences with incorrect counts carry a real risk of double-counting or failing to properly address relevant conduct; the Court reaffirmed that Form 1 offences should be taken into account in sentencing for similar offending and, where possible, in relation to the same victim.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 91FB, 91G, 91H, 91I, 91K, 91L, 91N, 91P, 91T
- Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 50, 53A
- Crimes (Administration of Sentences) Act 1999 (NSW), Pt 6, Div 1
- Criminal Code (NT), s 125A

Cases:
- Aubrey v The Queen [2017] HCA 18
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309
- Meissner v The Queen (1995) 184 CLR 132
- Guerin v HB [2017] NTSC 14
- Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86
- NW v R [2014] NSWCCA 217
- PG v R [2017] NSWCCA 179
- Kearsley v R [2017] NSWCCA 28
- SGJ v R; KU v R [2008] NSWCCA 258
- R v Thalari (2009) 75 NSWLR 307
- Belghar v R [2013] NSWCCA 245
- Ayshow v R [2011] NSWCCA 240
- Delaney v R; R v Delaney [2013] NSWCCA 150
- McIntosh v R [2015] NSWCCA 184
- R v Geddes (1936) 36 SR (NSW) 554