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Court of Criminal Appeal 8 June 2018

ZA v R

[2018] NSWCCA 116

Sexual offences
CRIME CONVICTION APPEAL FATHER ARRANGED FOR HIS 12 YEAR OLD DAUGHTER TO MARRY NOT AN AMELIORATING FACTOR APPLICATION FOR EXTENSION OF TIME

Citation: ZA v R [2018] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 8 June 2018
Judges: Macfarlan JA, Johnson J, Adamson J (judgment delivered by Adamson J)

Background

The applicant was the father of a 12-year-old girl (MG). Between November 2013 and January 2014, he facilitated a relationship between MG and a 26-year-old man (AC), who had first noticed MG at a mosque. The applicant allowed contact between AC and MG, provided MG's mobile number to AC, gave his consent to their union, and permitted a religious ceremony (a nikah) to take place at the family home in January 2014. The ceremony was not a lawful marriage under Australian law. Following the ceremony, MG left with AC and began having sexual intercourse with him.

The applicant was convicted after a judge-alone trial in the District Court on two counts: intentionally procuring a child under 14 for unlawful sexual activity with another person (under s 66EB(2)(a) of the Crimes Act 1900 (NSW)), and being an accessory before the fact to sexual intercourse with a child aged between 10 and 14. An aggregate sentence of 8 years' imprisonment with a non-parole period of 6 years was imposed.

The applicant filed a Notice of Application for Leave to Appeal nearly two years after the expiry of his Notice of Intention to Appeal. He required an extension of time and appealed against both convictions and sentence.

  • What is the correct meaning of "procure" in s 66EB(2)(a) of the Crimes Act 1900 (NSW), and did the trial judge apply it correctly?
  • Were the verdicts unreasonable or unsupported by the evidence?
  • Was the aggregate sentence of 8 years manifestly excessive?
  • Should an extension of time to appeal be granted, given the reasons for delay?

Decision

Construction of "procure": The Court of Criminal Appeal examined the legislative history of s 66EB, the Second Reading Speech for the amending legislation, and the use of "procure" elsewhere in the Crimes Act. The Court concluded that "procure" in this provision means more than merely facilitating or making it easier for unlawful sexual activity to occur. It requires that the accused intentionally bring about, or cause, the unlawful sexual activity. The trial judge's approach, adopting the dictionary meaning of "to cause or bring about," was consistent with this construction and was not in error.

Unreasonable verdicts: The Court found that the verdicts were reasonably open on the evidence. The applicant had actively facilitated each step leading to AC and MG's sexual relationship, including consenting to the ceremony, defying MG's mother's objections, instructing MG about contraception, and arranging sleeping arrangements on the couple's return visit. These actions went well beyond passive acquiescence.

Sentence: The Court found no error in the sentencing judge's assessment of the offences as "very serious." The applicant's motive, being his religious belief that the nikah ceremony authorised the relationship, was not treated as a mitigating factor. The Court noted that MG's vulnerability and the applicant's position of authority over her were significant aggravating features. The aggregate sentence, viewed against maximum penalties of 15 and 16 years respectively, was neither plainly unjust nor unreasonable.

Extension of time: The Court refused to extend time. The explanation offered was that the applicant had received advice at public expense that no appeal had merit, then subsequently obtained different advice from other counsel. The Court found this an inadequate justification for the near-two-year delay.

Orders Made

  • Application for extension of time to file the notice of appeal against conviction refused.
  • Application for extension of time to apply for leave to appeal against sentence refused.

Key Takeaways

  • "Procure" in s 66EB(2)(a) of the Crimes Act 1900 (NSW) means intentionally causing or bringing about unlawful sexual activity with a child, not merely facilitating or making such activity easier to occur.
  • Under s 66EB(2)(a), an accused need not personally engage in sexual activity with the child; arranging circumstances that cause another person to engage in that activity is sufficient, provided the requisite intention is established.
  • A parent's religious belief that a ceremony authorised sexual relations between an adult and a child did not constitute a mitigating factor in sentencing; the Court of Criminal Appeal confirmed it was properly disregarded in that role.
  • Receiving legal advice that an appeal has no merit, then later obtaining contrary advice from different counsel, does not constitute adequate justification for a significant delay in filing an appeal out of time.
  • In dismissing all three grounds, the Court observed that while each ground was arguable, none was strong, reinforcing that arguability alone does not guarantee an extension of time will be granted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 66C(1), 66EB(2)(a), 82, 83, 84, 91A, 91B, 91G, 321, 346, 351A, 351B
- Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Crimes Act 1958 (Vic) s 56
- Criminal Appeal Act 1912 (NSW) s 6
- Criminal Procedure Act 1986 (NSW) s 133
- Evidence Act 1995 (NSW) s 18
- Interpretation Act 1987 (NSW) s 33
- Marriage Act 1961 (Cth) s 11

Cases:
- Clarkson v R; EJA v R (2011) 32 VR 361; [2011] VSCA 157
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- R v Gavel [2014] NSWCCA 56
- Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Broadfoot [1976] 3 All ER 753
- R v Nelson [2016] NSWCCA 130
- Regina v Castiglione [1963] SR (NSW) 393
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10