The NSW Court of Criminal Appeal struggling with the term “private parts” … Child sex offences … When is a female “breast” not a female breast? … Sexualisation of children by repeat offender
Robert Keith Turner pleaded guilty to 10 charges involving video recordings of children for the purpose of sexual gratification. His victims were aged between eight and 10 years at the time the offences took place.
He had installed a camera in his bathroom and in relation to victim AA he filmed her while she was naked and showering on 20 occasions during visits to his home.
With victim BB he filmed her with a camera fitted to a quad bike. While taking her on a ride he pulled up her skirt, fondled her nipples, pulled down her shorts and exposed her underpants.
The last two counts of the offending related to CC when she was nine years old. She was recorded playing in her backyard, next door to Turner’s property, with her skirt hitched-up, her underpants exposed and the camera zooming in for lengthy views of her crotch.
There were three covert video recordings of this victim.
This resulted in two charges of indecent assault, five of producing or possessing child abuse material and two charges of using a child to produce child abuse material. There was another charge relating to producing child abuse material.
The Crimes Act, section 91FB defines child abuse material as including depictions of the “private parts of a person who is, appears to be, or is implied to be, a child”.
“Private parts” includes the “breasts of a female person” or a person identifying as female.
In a surprising decision Basten reasoned that because the nine-year-old’s breasts in this case had not developed they were not female breasts.
“The ordinary meaning of the definition of ‘private parts’ would not engage the depiction or description of the chest of a prepubescent female child. The term ‘breasts’ connotes a visible degree of sexual development.”
It was also accepted that filming children in their underwear did not fit the meaning of “child abuse material” under the Crimes Act as it then applied.
The appellant had two earlier convictions for child abuse arising from charges in June 1994 of touching 14-year-old girls. For one victim he got a good behaviour bond and for the other 100 hours of community service.
Charteris took off 25 percent of the sentence for early pleas of guilty and sentenced Turner to an aggregate term of eight years imprisonment, with a non-parole period of five years.
After inviting the applicant to withdraw his plea of guilty in relation to a count of producing child abuse material Basten resentenced him to a non-parole term of three years with a balance of 18 months. Turner will be eligible for parole in November this year.
“I have had the benefit of reading the reasons of Basten JA in draft. I have come to a different conclusion as to the conviction appeal and, in particular, as to whether count 6 [photographing AA for production of child abuse material] has been made out. I have a different view about count 9 [recording CC in her backyard] although I agree that the conviction for count 9 ought not be set aside.
I note the crown’s concession that the conviction for count 10 [possessing child abuse material] ought be quashed as the conduct alleged could not amount to the offence charged. I am indebted to Basten JA for his summary of the facts and applicable statutory provisions. I wish to set out briefly my reasons for differing from his Honour’s views about counts 6 and 9.
Count 6
The applicant pleaded guilty to count 6. Whether the plea was appropriately made turns on the interpretation of the words “private parts” in s.91FB(4) of the Crimes Act.
It was argued on behalf of the applicant in support of the application for leave to appeal against conviction that photographing EB’s chest area, including an exposed nipple, did not constitute photographing her ‘private parts’ on the basis that she ought be assumed to be pre-pubescent as she was then only nine years old.
As the relevant photographs were destroyed after the sentence was imposed it is not possible for this court to make a judgment on the question. Moreover I would not assume, and am not persuaded, that the chest of a prepubescent child does not amount to ‘private parts’ for the purposes of the Crimes Act.
The applicant pleaded guilty to count 6. I do not consider that, in the circumstances of count 6, this court ought grant leave to him to withdraw the plea.
The applicant pleaded guilty to count 9. No application has been made by him to withdraw the plea of guilty in respect of this count. In particular it has not been argued that the applicant’s conduct in photographing MJ, on 6 January 2010, with her skirt hitched up and her underpants and crotch exposed does not amount to the offence of produce child pornography within the meaning of s.91H(2) of the Crimes Act.
In order to establish an offence under s.91H(2), it is necessary for the crown to establish that the material amounted to child pornography which, relevantly, required the crown to prove that the material depicted the child ‘in a sexual context’.
I am not persuaded that the requisite ‘sexual context’ cannot be created by the relationship between the photographer and the object of the film and the subject matter of the depiction.
I am not persuaded that it is appropriate for this court to quash the conviction on this count, which was ordered following a plea of guilty in circumstances where it is not suggested that the applicant did not have appropriate and competent legal advice.
The need to re-sentence the applicant
By reason of the circumstance that this court proposes to quash the conviction for count 10, it will be necessary for the applicant to be re-sentenced. There was no suggestion that the sentence ought be remitted to the District Court. Even aside from the quashing of the conviction for count 10, I was persuaded that the aggregate sentence imposed on the applicant was manifestly excessive, although I accept the concession by the parties that this ground did not require determination if error were otherwise established.
I am in the minority concerning count 6, the majority (Basten JA and Bellew J) having concluded that the conviction for count 6 ought be set aside. On the basis that count 6 is, contrary to my view, to be excluded from the counts in respect of which the applicant is to be re-sentenced, I agree with the re-sentence proposed by Basten JA.”
Justice Geoffrey Bellew went along with Basten, so that was that.