LM v R

JurisdictionNew Zealand
JudgeElias CJ,McGrath,William Young,Glazebrook,Arnold JJ
Judgment Date13 August 2014
Neutral Citation[2014] NZSC 110
Docket NumberSC 143/2013
CourtSupreme Court
Date13 August 2014
Between
Lm
Appellant
and
The Queen
Respondent

[2014] NZSC 110

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 143/2013

IN THE SUPREME COURT OF NEW ZEALAND

Appeal from conviction as a party under s144A Crimes Act 1961 (“CA”) (sexual conduct with children and young people outside New Zealand), s132 CA (sexual conduct with child under 12) and s66 CA (parties to offences) — appellant was a New Zealander — at time of offending he was living in Russia—complainant was his step-daughter—appellant had taken the photographs of the complainant and another man and directed the poses—Crown's case at trial was that the appellant was a party to the offending of the man depicted in the photograph — whether s144A provided for conviction of someone who was a party to the offending and not a principal offender.

Counsel:

C T Patterson for Appellant

M D Downs and K A Courteney for Respondent

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

Para No

Elias CJ, McGrath and William Young JJ

[1]

Glazebrook and Arnold JJ

[31]

ELIAS CJ, McGRATH and WILLIAM YOUNG JJ

(Given by William Young J)

Table of Contents

Para No

A prosecution for offending which occurred in Russia

[1]

The core facts

[4]

Section 132(3) of the Crimes Act

[5]

Extraterritorial jurisdiction in respect of sexual offending against children

[7]

Section 144A and permutations of party liability

[14]

Overview

[14]

Permutation one: the alleged principal and party are both New Zealanders

[16]

Permutation two: the alleged principal is a New Zealander but not the alleged party

[19]

Permutation three: the alleged principal is not a New Zealander and the alleged party is a New Zealander

[21]

Legislative reconsideration is warranted

[25]

Determination of the appeal

[26]

Disposition

[30]

A prosecution for offending which occurred in Russia
1

The appellant stood trial before Judge Field in the Auckland District Court on a charge which alleged that he:

… on or about the 11th day of March 2007 at Moscow, Russia, being a citizen of New Zealand … did an act to a child under the age of 12 years which would, if done in New Zealand, constitute an offence against Section 132(3) of the Crimes Act 1961.

The particulars were as follows:

Taking a photograph of [the complainant], then 7 years old, whilst she is masturbating the penis of an adult male.

The indictment referred to ss 144A(1)(a) and (2)(c) and s 66 of the Crimes Act 1961.

2

Section 144A provides for the prosecution of New Zealanders 1 for conduct which, if it had occurred in New Zealand, would be contrary to specified provisions of the Crimes Act involving sexual offending against children and young people. Amongst the provisions so specified is s 132(3), which deals with indecencies

involving children under the age of 12. Although the way the count was laid was consistent with an allegation that the appellant was guilty as a principal, 2 the Crown case at trial was that the appellant was a party to the offending of the man depicted in the photograph (V). The appeal raises the issue whether s 144A permits prosecution where the defendant was a party to the alleged offending but not the principal offender
3

Both at trial 3 and on appeal to the Court of Appeal, 4 the appellant through his counsel accepted that if he could be shown to have taken the photograph in question, he was guilty as a party. On appeal to this Court, however, the appellant has put in issue the question whether s 144A provides for conviction of someone who was a party to the offending and not a principal offender. For the reasons which follow, we conclude that the basis upon which the Crown case was advanced was misconceived. But, because we are satisfied that the appellant in fact offended as a principal, we are of the view that his conviction can and should be upheld.

The core facts
4

The critical facts lie within a narrow compass. The appellant is a New Zealander. At the time of the offending he was living in Russia. The complainant is his stepdaughter. V is a Russian with no apparent connection to New Zealand but was a friend of the appellant. The photograph was taken in the apartment in which the appellant and his stepdaughter were living along with other members of the family. On the findings of fact, the appellant not only took the photograph but also directed the posing of the scene which he photographed.

Section 132(3) of the Crimes Act
5

The Crown case relied on s 132(3) of the Crimes Act. This provides:

Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years.

“Child” is defined to mean a person under the age of 12 years. 5 The scope of this offence is expanded by s 2(1B) which provides:

For the purposes of this Act, one person does an indecent act on another person whether he or she–

  • (a) does an indecent act with or on the other person; or

  • (b) induces or permits the other person to do an indecent act with or on him or her.

If the incident between the appellant, the complainant and V had occurred in New Zealand, the appellant could have been found guilty as a principal if the Court was satisfied that he had induced or permitted the complainant to do “an indecent act with or on him”.

6

The Crown case was advanced on the basis that the appellant was a party and not a principal because it was thought that, in the absence of physical contact between the appellant and the complainant, the indecent act which the complainant performed was not “with or on” the appellant. It is, however, now established by the judgment of this Court in Y (SC40/2013) v R that physical contact is not fundamental to liability under's 132(3). 6 On the basis of that judgment, 7 it is clear that if the conduct had occurred in New Zealand, the appellant could have been found guilty as a principal offender.

Extraterritorial jurisdiction in respect of sexual offending against children
7

Section 144A falls to be considered in the context provided by the United Nations Convention on the Rights of the Child 8 and the Optional Protocol to that Convention on the Sale of Children, Child Prostitution and Child Pornography. 9

8

Article 34 of the Convention provides:

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

  • (a) The inducement or coercion of a child to engage in any unlawful sexual activity;

  • (b)The exploitative use of children in prostitution or other unlawful sexual practices;

  • (c)The exploitative use of children in pornographic performances and materials.

The conduct of the appellant is within art 34(a). That article, however, did not require New Zealand to enact legislation addressing (and criminalising) unlawful sexual activity in other jurisdictions, albeit that such legislation is consistent with the general obligation to take “all appropriate national, bilateral and multilateral measures”.

9

Section 144A of the Crimes Act was first enacted in 1995 in these terms: 10

144A Sexual conduct with children outside New Zealand
  • (1) Every one commits an offence who, being a New Zealand citizen or a person ordinarily resident in New Zealand, does, outside New Zealand, any act to or in relation to any child under the age of 16 years if that act would, if done in New Zealand, constitute an offence against any of the following provisions of this Act:

    • (a) Section 132(1) (sexual intercourse with girl under 12):

    • (b) Section 132(2) (attempted sexual intercourse with girl under 12):

    • (c) Section 133 (indecency with girl under 12):

    • (d) Section 134(1) (sexual intercourse with girl between 12 and 16):

    • (e) Section 134(2) (indecency with girl between 12 and 16):

    • (f) Section 139 (indecent act between girl and woman):

    • (g) Section 140 (indecency with boy under 12):

    • (h) Section 140A (indecency with boy between 12 and 16):

    • (i) Section 142 (anal intercourse).

  • (2) Every one who commits an offence against this section in respect of any provision specified in subsection (1) of this section is liable to the same penalty to which he or she would have been liable had he or she been convicted of an offence against that provision.

Some of the ground covered by art 34 of the Convention was also covered by s 144A as first enacted. The text of the section, however, was not substantially driven by art 34. Instead, as its legislative history shows, s 144A was primarily a response to concerns about sex tourism to third world countries, particularly in Asia. 11

10

Article 3 of the Optional Protocol to the Convention is in these terms:

Article 3
  • 1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether these offences are committed domestically or transnationally or on an individual or organized basis:

    • (a)In the context of sale of children… :

      • (i)The offering, delivering or accepting, by whatever means, a child for the purpose of:

        • a. Sexual exploitation of the child;

        • b. Transfer of organs of the child for profit;

        • c. Engagement of the child in forced labour;

      • (ii)Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption;

    • (b)Offering, obtaining, procuring or providing a child for child prostitution …;

    • (c)Producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography ….

  • 2. Subject to the provisions of a State Party's...

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1 cases
  • Rowe v R
    • New Zealand
    • Supreme Court
    • 21 June 2018
    ...context of ss 132(3) and 134(3). The current versions of these provisions refer to “child” and “a young person” respectively. 42 LM v R [2014] NZSC 110, [2015] 1 NZLR 43 We accept the acts can involve the directing or staging of photographs. 44 Sexual Offences Act 2003 (UK), s 66. 45 Secti......

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