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R v Bartkowski

[2021] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bartkowski [2021] QCA 1

PARTIES:

R

v

BARTKOWSKI, Scott Douglas

(appellant)

FILE NO/S:

CA No 345 of 2019

DC No 715 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 21 November 2019 (Muir DCJ)

DELIVERED ON:

19 January 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2020

JUDGES:

Morrison JA and Boddice and Henry JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of using electronic communication with intent to procure a person he believed to be under 16 to engage in a sexual act, under s 218A of the Criminal Code (Qld) – where the appellant challenges his conviction on the basis that his conduct, which was admitted at trial, was not sufficient to amount to an “intent to procure” as defined in the section – where the appellant submitted that “procure”, in the context of s 218A, requires something more positive than passive action, and it is not sufficient to merely agree or acquiesce in – where the appellant urged the adoption of the test of “procure” as referred to by Cullinane J in R v F; Ex parte Attorney-General (Qld) [2004] 1 Qd R 162 that is, inducing or persuading someone to do an act that they would not have embarked on spontaneously of their own volition – where the appellant pointed to several factors which, it was contended, showed the 14 year old girl was engaging voluntarily – where the respondent submitted that the appellant’s conduct extended beyond indicating a preparedness to engage in sexual acts with a child and he exhibited conduct that showed intent – whether the appellant intended to procure under s 218A of the Criminal Code

Criminal Code (Qld), s 218A

R v Broadfoot (1976) 64 Cr App R 71, distinguished

R v F; Ex parte Attorney-General (Qld) [2004] 1 Qd R 162; [2003] QCA 70, distinguished

COUNSEL:

C F C Wilson for the appellant

C N Marco for the respondent

SOLICITORS:

Jacobson Mahony Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  This appeal concerns the conviction of the appellant for an offence under s 218A of the Criminal Code 1899 (Qld), that he used electronic communication with intent to procure a person he believed to be under 16 to engage in a sexual act.  The challenge to his conviction is on the basis that his conduct, which was admitted at trial, was not sufficient to amount to an “intent to procure” as defined in s 218A.
  2. [2]
    There was no contest as to what occurred on the part of the appellant or the person with whom he was interacting by phone and email.  The only issue was whether that conduct was such that the jury could find he had the relevant intent to procure a child to engage in a sexual act.
  3. [3]
    The appellant advanced two grounds of appeal:
    1. (a)
      Ground 1:  the verdict was unreasonable in the circumstances; and
    2. (b)
      Ground 2:  the learned trial judge erred in finding that the conduct of the appellant was sufficient to amount to an “intent to procure a person under the age of 16 years to engage in a sexual act” as defined in s 218A of the Criminal Code.
  4. [4]
    Ground 2 challenged the learned trial judge’s ruling on a “no case” application made at the end of the Crown case.  Mr Wilson of Counsel, appearing for the appellant, accepted that both grounds involved precisely the same question.

The relevant conduct

  1. [5]
    All of the events occurred on 17 November 2017.  They commenced when a police officer posed as a 37 year old mother of a 14 year old daughter.  The daughter was fictitious.[1]
  2. [6]
    The contact commenced when the police officer posted an advertisement in the personal section of Craigslist, entitled “Mummy and Dau looking for fun and experimentation – ww4m”.  The text of the ad read:

“Single good looking 37 year old single mummy … down the coast for the weekend … looking for some fun times …

I have a close relationship with my young teen daughter and looking for the right man to experiment with together …

Must be clean and trust-worthy ...

No time-wasters. …”

  1. [7]
    The appellant responded to the advertisement:

“I have been looking for something like this for ever and I would luv to meet up with yous for some fun times.

I am 5ft11”, 39yo, normal build, tradie, very clean and discree (sic), easy going, real and genuine and not a time waster.

I have attached some pic’s and if you are interested then you can contact me on [a telephone number] or if you have kik then my kik name is trab77 (trabx) or throught (sic) CL is fine to (sic).  Please send some pic’s back to (sic) please.”

  1. [8]
    The two pictures which were sent with that email were, one of a man in a window with his face obscured, and the second one was of an exposed erect penis in a man’s hand.  The appellant also provided his phone number in the text of the email.
  2. [9]
    Mel replied, thanking the appellant for the reply and stating:

“I’m in a professional job so require absolute discretion …

My daughter is young if you get what I mean … if you are not ok with that please don’t bother replying.

We have been experimenting but really want to involve a man too

My no is [a telephone number] if u wanna chat more discretely”

  1. [10]
    Thereafter Mel and the appellant engaged in a series of text communications covering the period from 6.03 pm to 9.20 pm on 17 November 2017.  In the schedule that follows I intend to record the relevant communications, omitting many in respect of which no submission was made that they had any relevance to intention:

Item

SMS from/to

Time

Message

1

Appellant to Mel

6.03 pm

Thanks for getting back to me about your CL ad.  I am totally ok with it and am of course super decreet (sic).

2

Mel to Appellant

6.09 pm

Well my 14 yo daughter wants to learn but is scared 2 do with boys from school.  Been teaching her some stuff but she is into men.  We are down here for wkd so thought might be good opp to experiment

3

Appellant to Mel

6.12 pm

Yeah great.  I am a very none (sic) pushy person and i always respect others and there (sic) limits.

4

Mel to Appellant

6.13 pm

Ok what would u be interested in?

5

Appellant to Mel

6.15 pm

Open to pretty much anything

6

Mel to Appellant

6.18 pm

Just want to let my daughter kno wat 2 expect

7

Mel to Appellant

6.18 pm

U at GC?

8

Appellant to Mel

6.19 pm

And interested in doing what ever you’s want to do.  I would like to see a pic of you both if possible please.  Doesnt have to be naked

9

Appellant to Mel

6.19 pm

Yeah i on GC

10

Appellant to Mel

6.25 pm

Hey you there still

11

Mel to Appellant

6.27 pm

Sorry getting smashed with replies

[Mel sent two photos, one of herself and one of her daughter]

12

Appellant to Mel

6.28 pm

Great yous are both very attractive.  Did you get mine in first email

13

Mel to Appellant

6.29 pm

What was your name on email?

14

Mel to Appellant

6.29 pm

Thx

15

Appellant to Mel

[MMS message]

6.32 pm

SB was my name on email.  Here they are again.  [The Appellant attached the two photographs he had sent earlier, one of a man in a window with his face obscured, and the other of an exposed erect penis in a man’s hand]

16

Appellant to Mel

6.33 pm

I hope i havnt offended you with first pic

17

Mel to Appellant

6.35 pm

All good.  Thx for pic

18

Mel to Appellant

6.38 pm

U have any questions?  My daughter is a virgin… 14 but hasnt done much for her age

19

Appellant to Mel

6.38 pm

Ok cool.  I am very keen and excited to meet yous both if yous invite me.  Dont have any questions at the moment

20

Mel to Appellant

6.40 pm

Well just want to kno what u are keen to try so I can tell Ash so she is prepared

21

Mel to Appellant

6.40 pm

And me too

22

Appellant to Mel

6.42 pm

Ok well thats hard to answer lol

what would yous like to do

23

Appellant to Mel

6.44 pm

Im quiet (sic) happy to follow your directions

24

Mel to Appellant

6.44 pm

How far

25

Appellant to Mel

6.48 pm

As far as you want.

Are you joining in to (sic)?

26

Mel to Appellant

6.49 pm

Yea.  She wants me to

27

Appellant to Mel

6.52 pm

Cool

28

Appellant to Mel

6.56 pm

I will be free in about an hour and a half time and then free for the rest of the night is that ok

29

Appellant to Mel

7.06 pm

Im also happy to meet and see where things go.  No pressure at all

30

Appellant to Mel

7.08 pm

Can talk on phone if you want to discuss more.  If you perfer (sic)

31

Appellant to Mel

7.15 pm

Please just let me know if you are still interested or not.

thanks

32

Mel to Appellant

7.16 pm

Sorry was just having dinner

33

Appellant to Mel

7.17 pm

U right 2 talk

34

Mel to Appellant

7.18 pm

Yeah sure am right to talk

35

Appellant to Mel

7.20 pm

Sorry to interrupt yous during dinner

36

Mel to Appellant

7.20 pm

All good im back in room now, Ash just went to shops

37

Appellant to Mel

7.21 pm

Should i call

  1. [11]
    At this point, Mel telephoned the appellant.  The audio recording became exhibit 8.  Whilst the text of that telephone call does not appear in the record book a transcript was prepared for the purposes of the hearing before this Court, and each party accepted it was accurate.  The exchange was as follows:[2]

Appellant:

Hello.

Mel:

Hey, Scott?

Appellant:

Yeah.

Mel:

Hey, it’s Mel.  How are you?

Appellant:

Yeah, I’m good thanks.

Mel:

That’s good.  Um, so you’re free in a couple of hours are you?

Appellant:

Um, I’m actually, I was just – I just finished dinner with me brother actually, so I’m – I’ve just got to drive home, which - I’ll be home in about 45 minutes.

Mel:

Oh, okay, so how far … we’re at um … at um Broadbeach.

Appellant:

Oh, okay.

Mel:

Staying at the Sofitel.

Appellant:

I’m in Southport so … oh yeah, okay.

Mel:

Um, yeah, so what were you keen to do?

Appellant:

Well, it really is to get - like what the ad said – it said experiment or um, kinda, either - I’m happy to run off what you say, really.

Mel:

Yeah, it’s um, like I’m new to all this too, like it’s kind of been a new thing, she’s, you know, been experimenting a bit at school and, you know, but then had a bad experience where, you know, heaps of people in her class found out and so, you know, she’s, she’s wanting to learn more but doesn’t kinda want the whole school to find out so … we thought, you know, it’d be a good way to do it down here ‘cause, you know, she’s not going to know anyone, so.

Appellant:

And it’s away from everybody, yeah.

Mel:

Yeah, but you know she’s quite inexperienced for a 14 year old I guess, so …

Appellant:

Yeah, well that’s kinda why I’m – well, I’m happy to, you know - what you say is, you know, what we do pretty much, you know.

Mel:

Yep.  But what sorta stuff are you into?

Appellant:

Um, everything really.

Mel:

Aha.

Appellant:

Um, there’s not too much I haven’t tried, kinda thing.

Mel:

Yep.

Appellant:

So, um, but, ah, yeah.  I’m pretty easy going, I’m not, you know, I’m not an idiot or anything like that.

Mel:

Mmm hmm. ‘Cause, you know, ‘cause, obviously ‘cause she’s, she’s quite nervous ‘cause she hasn’t done anything before, so, you know if – you know, if I can, you know, kind of run her through what to expect I suppose it might ease her nerves a little bit beforehand.

Appellant:

Yeah, so yeah, so like with you  - like kinda show her what to do and then have it with her, kind of thing - I go with her then, kind of thing.

Mel:

Sorry, I didn’t hear you.

Appellant:

I said so it’s kind of like, um, you’ll, you’ll - you do the demo kind of thing and then she can try, is that right or…?

Mel:

Um, well I don’t know – I guess that’s something we have to work out – what we’re happy with I suppose beforehand ‘cause, you know, I don’t want her to come along and - and then we’re not – don’t know what we’re doing I suppose.

Appellant:

Yeah, no, well look like I’m, I’m, I’m happy to just come along and have a chat as well and then see what happens, you know … and whatever you want really.

Mel:

Mmm hmm.

Appellant:

Um – but yeah.

Mel:

So, so how do you think it would work first?

Appellant:

Um, well I’ll tell you what, I – I actually do massage as well and that’s an easy way to do – if you wanted to start something like that, if you want to.

Mel:

Mmm hmm – like in the bedroom or something?  Or…

Appellant:

Yeah, well, I’m, in the bedroom – I do have a – a massage table – ah no, I’ve just put it into bloody storage.

Mel:

Okay.

Appellant:

Ah no, I can get one.

Mel:

Yeah.

Appellant:

Um, so I could bring that along and, um, yeah.  ‘Cause, ah, yeah, I actually do do proper massage as well, so… but we – we could start off like that if you wanted to – and however we go from there.

Mel:

Yeah.  With her … or with me?

Appellant:

Well, I could give yous both a massage if you like.

Mel:

Mmm hmmm.

Appellant:

So, um, yeah.  And just - have whatever you want to do from there on in – very, well I suppose it’s an easier way to do - um venture into it slowly, I suppose.

Mel:

Yeah.  Okay.

Appellant:

Um, so I can bring it along anyway.

Mel:

Yeah, okay.

Appellant:

Um. Yeah, so …. Yeah.  I’m quite happy with whatever you reckon.  So, look it’s all pretty exciting to me.

Mel:

Yep.  So you haven’t done anything like this before?

Appellant:

No, no, but I’ve - kinda, Iike I’ve said, I’ve always, like, wanted to, you know.

Mel:

Yeah, yep.

Appellant:

So.

Mel:

Yeah, well she was, like, you know, wanting to experiment and stuff a bit but, you know, she’s not really into girls – she’s more into boys so, you know.

Appellant:

Yeah, yeah, so what experimenting have yous done or …

Mel:

Um just a bit of touching and stuff, like not heaps of stuff.

Appellant:

Yeah, yeah, yeah.  No that’s cool.  That’s awesome.  But yeah, so, what do you - how do you want to do – you are, you are keen to meet up then?

Mel:

Yeah, like maybe if we meet, um you know somewhere down the road – like I’m not from here so - um I think it’s pretty close to the surf club.

Appellant:

Oh, yeah.

Mel:

Yeah, do you know where I mean, like it’s – I’m at the Sofitel and there’s a surf club just down the end of the street?

Appellant:

Ah, yeah, yep, yep.  To the Broadie there?

  1. [12]

38

Mel to Appellant

7.32 pm

So tell me more about the massage?

39

Appellant to Mel

7.36 pm

Ok i do a full body massage that leads into a lot of teasing its not to professional lol and I dont miss any part of your body

40

Mel to Appellant

7.41 pm

Like a naked massage?

41

Appellant to Mel

7.46 pm

Yeah normally have a towel over you until later during the massage.

42

Mel to Appellant

7.46 pm

Would you do that with both of us?

43

Appellant to Mel

7.46 pm

Most people i massage professional are naked under towel anyway

44

Appellant to Mel

7.51 pm

Yeah sure would

45

Mel to Appellant

7.53 pm

Then what would u like

46

Appellant to Mel

7.55 pm

I would do oral on you both

47

Appellant to Mel

7.56 pm

And yous together doing oral on me maybe

48

Mel to Appellant

7.56 pm

Sounds like fun

49

Appellant to Mel

7.57 pm

Yes im getting a little excited thinking about it lol

50

Mel to Appellant

8.01 pm

I will head down 2 meet u and Ash is gonna wait at Sofitel for us

51

Mel to Appellant

8.19 pm

My hotel is only a few minutes away so maybe let me know when u get to surf club and Ill (sic) walk down

52

Mel to Appellant

8.23 pm

Could meet u in carpark or park next to then go get drink

53

Mel to Appellant

8.23 pm

Then meet up with Ash for some fun

54

Appellant to Mel

8.24 pm

Ok sounds great

  1. [13]
    What followed was that the appellant met Mel at the designated location, where he was arrested.

Appellant’s contentions

  1. [14]
    It was submitted that there should have been a reasonable doubt that the appellant used electronic communication with the relevant intent to procure because the uncontested conduct could not amount to intent to “procure”, as distinct from participate in, a sexual act.  It was accepted that there was no doubt that the appellant was prepared to engage in sexual activity with a child under 16, but that was not what he was charged with.
  2. [15]
    It was submitted that “procure” in s 218A connotes some action to induce or persuade and in the context of s 218A it requires something more positive than passive action.  It is not sufficient to merely agree or acquiesce in.
  3. [16]
    Mr Wilson urged the adoption of the test of “procure” as referred to by Cullinane J in R v F; Ex parte Attorney-General (Qld)[3] that is, inducing or persuading someone to do an act that they would not have embarked on spontaneously of their own volition.  Based on that he submitted that if the child were wanting to engage in the activity voluntarily or spontaneously then the appellant could not be said to have procured within s 218A.  In that respect he pointed to several factors which, he contended, showed the 14 year old girl was engaging voluntarily, including:
    1. (a)
      the daughter’s participation was presented as a deal breaker, “if you are not ok with that please don’t bother replying”;
    2. (b)
      Mel said her daughter was young and had experimented to an extent with boys, and they wanted to experiment with a man; and
    3. (c)
      when asked if Mel was joining in too, she replied “Yea.  She wants me to”.
  4. [17]
    It was also submitted that other obstacles to a conclusion of procuring for the purpose of s 218A were:
    1. (a)
      there is little, if anything, to suggest that what the appellant was saying was being passed on to the daughter;
    2. (b)
      the appellant only called Mel once he knew that the daughter had gone out of the hotel room to the shops; this was characterised as Mel deliberately keeping the daughter out of communications;
    3. (c)
      it was a case of the appellant merely agreeing to participate in what Mel suggested; and
    4. (d)
      whilst the appellant said he was prepared to participate and provided specifics of what he was prepared to participate in, he did not say to Mel that he wanted the child to do those things when she otherwise would not have.
  5. [18]
    It was submitted that the term “procure” has the same definition in ss 217(2), 218(4) and 218B(10) of the Code.  In those sections the term could not mean “agree to”, “accept” or “acquiesce in” and therefore should not have that meaning in s 218A(10).  The submission was that on the evidence the appellant could not be described as inducing or persuading, nor bringing about or causing the result.  In fact, it was said that it was the appellant who was “enticed or recruited” by the repeated and persistent questioning of Mel.
  6. [19]
    Mr Wilson accepted that the intent must be an actual subjective intent to procure the act, as distinct from awareness of the probable consequences of actions.  He then pointed to the following feature which, it was contended, suggested the absence of the relevant intent:
    1. (a)
      the appellant was using an over 18 site for initial contact, and not targeting someone under age;
    2. (b)
      the initial advertisement to which he responded did not specify an age;
    3. (c)
      the appellant never spoke directly with the fictitious child;
    4. (d)
      there was no indication that anything he said was being communicated to the fictitious child; there was no request by him that that happen;
    5. (e)
      the appellant only nominated a particular sexual act when asked repeatedly and directly to do so;
    6. (f)
      the appellant never asked to meet with the child, and the arranged meeting was with the mother only;
    7. (g)
      the consequence was that the appellant intended to meet the person representing themselves to be an adult, with the hope of some future sexual encounter;
    8. (h)
      the availability of the fictitious child was offered to him with no prior encouragement by him whatever;
    9. (i)
      after being told the child’s age of 14, it was Mel who raised the topic of a sexual act to which he did not respond with a proposition of a sexual act; attempts to have him nominate sexual acts were met with non-specific responses;
    10. (j)
      after repeated questioning he was pressed to be specific and provided some possibilities and suggestions, but with the qualification that he would do what the mother suggested; and
    11. (k)
      it was not even a case where the appellant intended to procure the mother to, in turn, procure the child.

Respondent’s submissions

  1. [20]
    For the Crown, Ms Marco of Counsel contended that this was a circumstantial case in terms of the proof of intent.  It was not contested that Mel commenced the communication and sought to entrap the appellant into divulging what he would like to do with the child.  However, the appellant was not a mere passive participant who confined his communications to acquiescence.  His conduct extended beyond indicating a preparedness to engage in sexual acts with a child and he exhibited conduct that showed intent:
    1. (a)
      he responded to the initial advertisement with a picture of a penis;
    2. (b)
      at no point did he question Mel or end the conversation after the child’s age of 14 was conveyed, nor did he change the tone of the conversation after learning the child’s age;
    3. (c)
      the appellant continued to seek out engagement with Mel when the conversation went quiet;
    4. (d)
      his conduct suggested he was not concerned about what type of sexual act occurred between them;
    5. (e)
      he suggested that Mel could demonstrate to the child what to do and then the child could engage in that demonstrated activity with him;
    6. (f)
      he suggested how to entice or persuade the child to engage in a sexual act with a massage; the description of the massage itself showed it was within the definition of a sexual act;
    7. (g)
      the appellant told Mel what sexual acts he would like to occur;
    8. (h)
      the appellant’s words betrayed his expectation that he would be engaging in sexual activity with a child, and his interest in doing so; and
    9. (i)
      the appellant turned up at the surf club where it was arranged that they would meet.
  2. [21]
    Ms Marco also referred to the contents of the telephone conversation, exhibit 8.  That conversation included: (i) his interest in the fact that the ad had referred to experimentation; (ii) that he was told the child had been experimenting with sexual activity but was inexperienced; (iii) he proposed that Mel “do the demo kind of thing and then [the child] can try”; and (iv) when asked how he thought it would work he responded with the proposition of doing a massage on them both which, he proposed, was “an easier way to … venture into it slowly”.  It was submitted that the appellant’s proposal to perform a massage on the child as well as Mel was a proposed sexual activity in itself, designed to persuade the child to further sexual activity.

Consideration

Definition of “procure” in s 218A of the Criminal Code

  1. [22]
    There are ordinary definitions of terms used in s 218A of the Code.  The ordinary definition of “procure” is: (i) to entice, encourage or persuade another person to commit an act;[4] and (ii) acquire or obtain.[5]
  2. [23]
    However, resort to the ordinary or dictionary meaning of “procure” is unnecessary as s 218A(10) provides a specific meaning for the purposes of that section.  The term “procure” means “knowingly entice or recruit for the purposes of sexual exploitation”.[6]
  3. [24]
    “Entice” also has ordinary meanings: (i) allure or attract, as in by the offer of pleasure or an advantage;[7] (ii) draw on by exciting hope or desire, or to inveigle;[8] and (iii) persuade by the offer of pleasure.[9]
  4. [25]
    “Recruit” bears the ordinary meaning of: (i) enlist someone for a purpose;[10] and (ii) enlist someone as a recruit.[11]  In a different section of the Criminal Code, s 76 defines the word “recruit” as including “procure”.
  5. [26]
    In turn, “enlist” means to secure a person for some cause,[12] or secure someone as a means of help or support.[13]  And “inveigle” means to draw into by inducements,[14] or entice or persuade by guile.[15]
  6. [27]
    It is true that in each of s 217 (procuring a young person for carnal knowledge), s 218 (procuring sexual acts by coercion), s 218A (using internet to procure children under 16) and s 218B (grooming children under 16 years) the word “procure” has the same specified definition.  However, that does not necessarily mean that the operation of the definition is the same.
  7. [28]
    The proper construction of a statutory provision requires consideration of the text in context, and by reference to the language of the statute viewed as a whole.[16]  The definition in each section is for the purposes of that particular section alone, and the context of each offence provision varies.  Thus,
    1. (a)
      s 218A is concerned with an adult intending to procure a child to engage in a sexual act, but only by use of electronic communication;
    2. (b)
      s 218B is concerned with grooming of a child, or the carer or parent of a child; in that case the offence is committed by engaging in conduct with intent to facilitate the procurement of the child to engage in a sexual act;
    3. (c)
      sections 217 and 218 are not concerned with children at all;
    4. (d)
      s 218 is engaged where a person procures another person to engage in a sexual act but by way of threats or intimidation (s 218(1)(a)), or false pretences (s  218(1)(b)); and
    5. (e)
      s 217 deals with procuring someone who is not an adult, or is a person with an impairment of the mind, to engage in carnal knowledge; by definition, carnal knowledge requires penetration, and therefore the relevant sexual act is a specific subset of the sexual activity that would be applicable under ss 218, 218A or 218B.
  8. [29]
    That suffices to show that what might satisfy the test of enticing or recruiting a child will not necessarily be the same as what might satisfy the test of enticing or recruiting someone who is an adult, or not an adult, but not a child.
  9. [30]
    The specified definition of “procure” in s 218A may be contrasted with other sections of the Criminal Code dealing with sexual acts against a child or others, where the word “procures” is used in a way not specifically defined.  Thus, in s 210 (indecent treatment of children under 16) an offence is committed if a person “unlawfully procures a child under the age of 16 years to commit an indecent act”.  And, in s 216 (abuse of persons with an impairment of the mind) an offence is committed if a person “unlawfully procures a person with an impairment of the mind to commit an indecent act”.  The fact that one suite of offences contains a specified definition of the word “procure” and others do not, simply means that where it is not specifically defined the ambit of the word may well be different.
  10. [31]
    Then there are other provisions in the Criminal Code where the word “procure” is defined differently or is found as part of the definition of another word.  Thus, s 229G (procuring engagement in prostitution) creates an offence if a person procures another to engage in prostitution or to go to a particular place for engaging in prostitution, and for that purpose the word “procure” is defined as “includes knowingly entice or recruit for the purposes of sexual exploitation”.  It is immediately apparent that that definition has a potentially wider ambit than that which applies under s 218A.  In one, “procure” means to knowingly entice or recruit, whereas in the other the word “procure” includes knowingly enticing or recruiting.  Another example is s 76 (recruiting a person to become a participant in a criminal organisation), where the word “recruit” is defined as including “procure”, indicating that “procure” is a subset of “recruit” for the purposes of that section.
  11. [32]
    In other parts of the Criminal Code the word “procures” is used in a way which does not attract a specific definition in the relevant section.  That use falls into two central categories:[17]
    1. (a)
      sections where the word is used in a phrase such as “procures any other person to commit the offence” or “procures another to do or omit to do any act”; in other words, procures a person to do something;[18] and
    2. (b)
      sections where the word is used to connect with a thing or event which is the result of the procuring, such as procures any property or benefit of any kind, or procures the conviction of another.[19]
  12. [33]
    Those categories also reflect the difference between those where the procuring is the offence, and those where it is merely an element of the intention with which the act is performed.
  13. [34]
    The different ways in which “procure” is used in the Criminal Code show the danger of too readily assuming the meaning in one section is transposable to another.  A fortiori where the word is governed by a specified definition in the section to be construed, and attention is directed to another section which deals with a different subject matter and where the specified definition does not exist.
  14. [35]
    Mr Wilson urged the adoption of the meaning ascribed to “procure” in s 354(2) of the Criminal Code by Cullinane J in R v F; Ex parte Attorney-General (Qld).  That section deals with kidnapping and provides:

“A person kidnaps another person if the person unlawfully and forcibly takes or detains the other person with intent to gain anything from any person or to procure anything to be done or omitted to be done by any person.”

  1. [36]
    Cullinane J held that s 354(2) should not be read so that “procure” was construed as including “facilitate” or “permit”.[20]  Instead, his Honour considered that it would satisfy the requirements of an intention to procure in s 354(2) if it were established that the person concerned “intended to effect or produce the result alleged”.[21] 
  2. [37]
    Cullinane J drew the distinction between the intention to induce or persuade the person, as opposed to merely facilitate or make possible the assault:[22]

“In my view, in order to satisfy the requirement of an intention to procure in the sense in which that word is used in the section, it is necessary to establish that the person concerned intended to effect or produce the result alleged, namely the assault by A. on the complainant.  This, in my view, requires an intention that the taking of the complainant induce or persuade the person concerned to do the act alleged.  In this case it would be necessary to establish that the respondent, in taking or detaining the complainant, intended that A. be thereby induced or persuaded to sexually assault her.  The taking or detention of the complainant by the respondent with the intention of thereby facilitating or making possible the carrying out by A. of his already determined intention to assault the complainant would not be sufficient.”

  1. [38]
    Cullinane J was in the minority.  Davies JA held that the word “procure” in that section meant no more than “enable” or “facilitate”.[23]
  2. [39]
    Williams JA considered that “procuring means bringing about or causing the relevant result”, and therefore it was open to the jury to conclude that an intent to bring about, cause or facilitate an assault was sufficient to constitute the offence in s 354.[24]  However, Williams JA also considered that it was sufficient to show an intent to procure if the conduct facilitated the sexual assault.[25]
  3. [40]
    Williams JA referred to s 217 of the Criminal Code, the offence of procuring a person to engage in carnal knowledge.  His Honour said:[26]

“Section 217 of the Code creates the offence of procuring a person to engage in carnal knowledge.  For purposes of that section the term “procure” is defined as meaning “knowingly entice or recruit for the purposes of sexual exploitation”.  That definition cannot strictly apply to the use of the term in s. 354 but, in my view, it is significant to observe that the words “entice or recruit” fundamentally involve the notion of bringing about or causing the particular result – for s. 217 that result being sexual exploitation.”

  1. [41]
    Authorities that have referred to R v F; Ex parte Attorney-General (Qld) have not taken the matter any further, at least so far as issues in this case are concerned.[27]
  2. [42]
    I do not consider that R v F; Ex parte Attorney-General (Qld) is of any assistance.  The section being considered was one which did not have the specific definition of “procure” which appears in s 218A.  In the passage set out in paragraph [40] above, Williams JA recognised that the definition in one section could not “strictly be applied to the use of the term” in another.  And, as Davies JA noted:[28]

“For reasons which I think are now self-evident, I do not think it useful to see how “procure” has been construed elsewhere in different statutory contexts.”

  1. [43]
    Cullinane J was in the minority, and there was no united view of what “procure” meant in that section.  Insofar as Williams JA referred to s 217, which also contains the specific definition of “procure”, the view was obiter dicta, not made as a result of a considered assessment of the meanings of “entice” or “recruit”, and not joined in by any other member of the Court.
  2. [44]
    Whether or not the word “procure” is a term of art, is in common usage or bears any particular meaning by reason of some dictionary definition, s 218A provides a specific definition for the purposes of that section.  The word “procure” means “knowingly entice or recruit for the purposes of sexual exploitation”.  I see no warrant in going beyond the words of the definition.  Thus, if the relevant conduct were such as to entice or recruit the child for the purposes of sexual exploitation, provided it was done knowingly, that is sufficient.
  3. [45]
    I do not consider that the definition of “procure” in s 218A should be construed as including the requirement that there be some sort of positive action, rather than passive action.  To do so is to put an unwarranted gloss on the definition, which is to “entice” or “recruit”.
  4. [46]
    The definition of “procure” in s 218A uses two verbs as part of the definition.  They are “entice” and “recruit”.  The ordinary meanings of “entice” are: (i) allure or attract, as in by the offer of pleasure or an advantage, (ii) draw on by exciting hope or desire, or inveigle; and (iii) persuade by the offer of pleasure.
  5. [47]
    The context of s 218A is conduct intended to procure a child, not an adult, to engage in a sexual act.  It is sufficient for that purpose that the conduct be such as to allure or attract or persuade by the offer of pleasure, or draw on by exciting hope or desire.  There is, in my view, no warrant for constraining the type of conduct that qualifies as “procuring” in that context to something necessarily beyond passive agreement or acquiescence to proposals of sexual acts.  Nor is there a constraint by reason of whether the child was prepared to engage in the activity voluntarily or spontaneously.  Section 218A is concerned with conduct directed at a child, not an adult.  The protection that the legislature extends to children, reflected particularly in the Criminal Code, and recognised in the United Nations Convention on the Rights of the Child,[29] is because of their unique vulnerabilities as a child.  They are vulnerable by reason of their age, and because they are less mature in mind and body, certainly as compared with an adult.  Particularly is that so as the child passes through puberty, a period of time when not only is the child’s body undergoing rapid change, but so is the brain maturing rapidly.  The legal protection in provisions like s 218A is not to be watered down because the victim is an immature or naïve 13 or 14 year old and susceptible to subtle, indirect or passive persuasion, or who wants to engage in a sexual act.  The very vulnerability that comes from their being a child compels the contrary conclusion.
  6. [48]
    The fact that human beings are variable in their cognitive ability, conscious responses, levels of intellect and maturity, lends support to the conclusion that the word “procure” should not have artificial constraints put on it in s 218A.  What might allure, attract or persuade one child may not allure, attract or persuade another.  One child may find quiet, passive or subtle conduct quite compelling, whereas another might not.  Section 218A was not enacted to artificially apply to one subset and not another.  In each case it will be a question of whether the particular conduct in that case meets the definition of “procure”, that is knowingly enticing the child to engage in a sexual act.
  7. [49]
    The same conclusion applies to the word “recruit” in s 218A.  It bears the ordinary meaning of enlist, that is, or engaging or securing for some purpose.  Here that purpose is what s 218A reflects, that is, the conduct is to enlist or engage the child in a sexual act.  The same considerations as are set out above compel, in my view, the conclusion that it is artificial to qualify the word “procure” in s 218A by applying requirements such that the conduct must be more than passive and the child must be shown not to have been prepared to engage in the activity voluntarily or spontaneously.
  8. [50]
    In R v F; Ex parte Attorney-General (Qld) Williams JA commented that in s 217 (which contains the same definition of “procure” as in s 218A) it may be relevant that the person would not have done the act “spontaneously of her own volition”:[30]

“As used in ss 7, 217 and 417 of the Code, and in cases such as Attorney-General’s Reference and Broadfoot, the term procure is used in the context of procuring a person to do something. In that context it may often be relevant, at least from an evidentiary perspective, that the person would not have done the act “spontaneously of her own volition” to use the language quoted above from Broadfoot. That may particularly be so for s. 217 of the Code given the statutory definition, but that need not be answered authoritatively now.”

  1. [51]
    Several points can be noted about that passage.  Firstly, it expressly offers no concluded view.  Secondly, s 217 is not concerned with conduct towards a child.  Thirdly, in so far as it picked up what was said in R v Broadfoot,[31] that was in the context of that court observing that procuring meant bringing about the result.  Fourthly, the provision in Broadfoot did not concern conduct towards a child, but rather attempting to procure a woman to become a prostitute.  Fifthly, there was an unresolved qualification that the relevance of that question might only be in an evidentiary sense.
  2. [52]
    I do not consider that passage of R v F; Ex parte Attorney-General (Qld) to be persuasive.

Did the appellant intend to procure under s 218A of the Criminal Code?

  1. [53]
    There are a number of features about the text exchanges between Mel and the appellant which, in my view, demonstrate that the appellant was not simply acquiescing in propositions being raised (the case as framed by the appellant), but proactively furthering them.  In this respect the following are significant:
    1. (a)
      the ad stated that Mel and her “young teen daughter” were looking for a man to “experiment with together”;
    2. (b)
      the appellant’s first response to that ad was that he had been “looking for something like this for ever” and expressed a desire to “meet up with yous”; in context that refers to both Mel and the daughter; the expression of his interest included sending a photograph of an exposed, erect penis, held in a man’s hand;
    3. (c)
      20 minutes after that Mel told the appellant that the daughter was 14 and that she and the daughter were on the Gold Coast to take advantage of an opportunity to experiment in sexual matters;
    4. (d)
      after then asking what the appellant might be interested in, Mel explained that she wanted to know so she could let her daughter know what to expect;
    5. (e)
      the appellant expressed his interest in doing whatever Mel and her daughter wanted to do;
    6. (f)
      13 minutes later the appellant sent the photograph of the erect penis again, and then expressed the concern that he hoped he had not offended Mel with that photograph;
    7. (g)
      Mel then asked the appellant if he had any questions, adding that her daughter was 14, a virgin, and had not done much for her age;
    8. (h)
      in response the appellant said he was “very keen and excited” to meet them both;
    9. (i)
      immediately after that Mel asked what he was keen to try, so she could tell the daughter, “so she is prepared”; in context that could mean nothing other than that the daughter needed to know specifics so that she could prepare herself as to joining in the encounter;
    10. (j)
      in response the appellant said he was happy to follow Mel’s directions, and asked whether Mel was joining in as well; self-evidently the appellant was expressing an interest at that point in engaging in sexual activity with a 14 year old child who, he had been told, was a relative novice and needed some information about what was intended, so she could prepare herself;
    11. (k)
      then followed the telephone call which went into more details as to what the appellant was keen to do; his response was that the ad said “experiment” and he was happy to be guided by Mel; Mel then explained that the 14 year old daughter had been experimenting a bit at school, and wanted to learn more but without anyone finding out;
    12. (l)
      the appellant’s response was to say that whatever Mel said was what the appellant and the both of them would do; pressed as to what sort of sexual activity he was interested in, the appellant said that there was not much that he had not tried;
    13. (m)
      when pressed that the daughter was nervous because of her inexperience, and Mel wanted to run the daughter through what to expect, the appellant responded with this proposition: that Mel would show the daughter what to do by doing a “demo kind of thing” with the appellant, and then the appellant would “go with her” and “she can try”; it is at this point that the appellant goes well beyond anything Mel was suggesting, and proposes a particular course of action designed to achieve the ends which Mel had announced; his proposal was to ease the 14 year old daughter into sexual activity with him, by her observing the demonstration between the appellant and Mel first; that proposal was plainly to entice or recruit the 14 year old daughter into sexual activity;
    14. (n)
      the next thing in the phone call was that Mel reiterated that they needed to work out an agreeable course beforehand because she did not want the daughter “to come along and … then [we] … don’t know what we’re doing”; in response the appellant said that he was prepared to do “whatever you want”;
    15. (o)
      Mel pressed the appellant to explain how he thought the sexual encounter would work;
    16. (p)
      it is at that point that the appellant went one step further again; he proposed that they start with a massage in the bedroom on a massage table; that was not something proposed by Mel; the appellant went on to explain that “we could start off like that if you wanted to - and however we go from there”; plainly the appellant was suggesting that the massage was the start of sexual activity and would lead to further sexual activity, namely “however we go from there”;
    17. (q)
      when Mel questioned whether the massage would be with the daughter or with Mel, the appellant took matters a step further again, by suggesting that he give a massage to both of them; then the appellant explained, again, that his proposal for the massage was aimed at being a way to commence sexual activity that would involve the 14 year old daughter and progress with the 14 year old daughter from there; as he explained: “whatever you want to do from there on in … I suppose it’s an easier way to … venture into it slowly”; in my view, that comment was not directed at Mel, but the 14 year old daughter and consisted of an explanation that performing the massage on them both was a way of easing the 14 year old daughter into sexual activity, which would continue; in my view, the appellant was then enticing or recruiting the 14 year old daughter into sexual activity;
    18. (r)
      when the text messaging resumed after the phone call, Mel sought more information about the massage; in response the appellant said that he did a “full body massage that leads into a lot of teasing”, and in the process “I don’t (sic) miss any part of your body”; he then made it clear that the massage would involve being naked under a towel but only “until later during the massage”; in other words, the towel would stay on but come off the naked 14 year old later during the massage; he made it clear that he proposed that he would do that with Mel as well as the 14 year old daughter; in my view, the appellant’s response at this point is not merely some acquiescence on his part, but rather his attempt at persuading Mel and the 14 year old daughter as to the virtues of the naked massage (in which all parts of the body would be touched) as a means of easing the 14 year old daughter into further sexual activity; in my view, it was plainly enticing or recruiting the 14 year old daughter;
    19. (s)
      then matters went a step further in the next text messages; Mel asked the appellant what he would like following the massage and he responded with his next proposal, again not something proposed by Mel; the proposal was:  “I would do oral on you both … and yous together doing oral on me maybe”; that extension of the sexual activity, specifically in the context that it was what the massage would lead into, was the appellant’s proactive attempt to persuade the 14 year old daughter as to the next step which would follow the massage; in my view, that response was plainly to entice or recruit the 14 year old daughter into sexual conduct; and
    20. (t)
      thereafter the text messages did not contain sexual content, but did involve the appellant’s agreement to meet Mel first, on the basis that they would then go to meet the 14 year old daughter who was waiting at the hotel “for some fun”.
  2. [54]
    In the course of oral submissions Mr Wilson accepted that if Mel had proposed sexual acts A and B, but then the appellant had proposed sexual act C, it would be a question of fact for the jury to decide as to whether the proposal of sexual act C was conduct with an intent to “procure” within s 218A.[32]  What occurred in the passages to which I have referred above was an even stronger case than that, because Mel only ever offered general assertions of a willingness to experiment.  It was the appellant who nominated specific sexual acts, and importantly those designed to ease the inexperienced and nervous 14 year old daughter from one level of sexual activity to another.
  3. [55]
    As expressed above, in my view, the appellant was plainly enticing or recruiting the 14 year old daughter for the purposes of sexual activity.  Even on the approach to “procure” urged by the appellant, the conduct was done with intent to procure as it went well beyond mere passive agreement or acquiescence.  His conduct plainly comes within the definition of “procure” in s 218A of the Criminal Code.  It was open to the jury to be satisfied that his conduct was sufficient to find him guilty of the offence under s 218A.
  4. [56]
    It follows that both grounds of appeal must be dismissed.
  5. [57]
    I propose the following order:
  1. Appeal dismissed.
  1. [58]
    BODDICE J:  Morrison JA has summarised the relevant evidence, submissions and legislative provisions.  I gratefully adopt that summary.
  2. [59]
    Like Morrison JA, I see no warrant in going beyond the words of the specific definition of the word procure in s 218A of the Code.
  3. [60]
    A consideration of that definition, and the unchallenged conduct engaged in by the appellant in his communications with Mel, amply support a conclusion that it was open, on a consideration of the evidence as a whole, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence.  The verdict of the jury is not unreasonable.
  4. [61]
    That conclusion also establishes that there was no error in the trial Judge’s ruling that the evidence was sufficient to amount to “an intent to procure a person under the age of 16 years to engage in a sexual act” as defined in s 218A of the Code.
  5. [62]
    I agree with the order proposed by Morrison JA.
  1. [63]
    HENRY J:  I agree with the reasons of Morrison JA and the order proposed.
  2. [64]
    I add, only by way of emphasis, that this offence is complete upon the use of electronic communication with the requisite intent.  While in this instance the appellant did not believe he was using the electronic communication to communicate with a child, he was using it with the intent,  manifested by arrangements communicated with a person he believed was a child’s mother, to procure the child to engage in a sexual act.  It was the use of the electronic communication with that intent which constitutes the offence.  It was not an obstacle to proof of the offence that it was the child’s mother who was the person communicated with or that she was a person who was facilitating and was to be a participant in the liaison by which the appellant hoped to fulfil his intention.

Footnotes

[1]For the purpose of these reasons I intend to use the pseudonyms that were adopted by the police officer: herself, Mel, and her daughter, Ash.

[2]The emphasis has been added to signify passages to which I shall refer later.

[3][2004] 1 Qd R 162; [2003] QCA 70 at [53], [58].

[4]Butterworths Australian Legal Dictionary 1997.

[5]The Australian Concise Oxford Dictionary, 3rd Ed., 2002.

[6]Emphasis added.

[7]Oxford English Dictionary, 2nd Ed, 1992.

[8]Macquarie Dictionary.

[9]The Australian Concise Oxford Dictionary, 3rd Ed., 2002.

[10]Macquarie Dictionary.

[11]The Australian Concise Oxford Dictionary, 3rd Ed., 2002.

[12]Macquarie Dictionary.

[13]The Australian Concise Oxford Dictionary, 3rd Ed., 2002.

[14]Macquarie Dictionary.

[15]The Australian Concise Oxford Dictionary, 3rd Ed., 2002.

[16]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46, [47]; [2009] HCA 41; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71].

[17]There may be more upon further analysis which is unnecessary for present purposes.

[18]Sections 7, 13, 14, 98G, 99, 311, 352, 443C, 539 and 569.

[19]Sections 44, 45, 60, 87, 118, 120, 121, 124, 127, 264, 282, 354, 354A, 362, 501, 502, 543A, 566 and 583.

[20]R v F at [62].

[21]R v F at [53].

[22]R v F at [53].

[23]R v F at [2]-[11].

[24]R v F at [32], [37].

[25]R v F at [43].

[26]R v F at [29].

[27]See, for example, R v Hawke (2016) 259 A Crim R 114; [2016] QCA 144 at [58]-[59]; Campbell v State of Western Australia (2016) 50 WAR 331; [2016] WASCA 156 at [118]; MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130 at [94].

[28]R v F at [11].

[29]2 September 1990.

[30]R v F at [38].

[31](1976) 64 Cr App 71 at 74.

[32]Appeal transcript T1-5 lines 1-13.

Close

Editorial Notes

  • Published Case Name:

    R v Bartkowski

  • Shortened Case Name:

    R v Bartkowski

  • MNC:

    [2021] QCA 1

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Boddice J, Henry J

  • Date:

    19 Jan 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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