R v Bartkowski

This appeal concerns the meaning of “procure” in the offence of using the internet to procure children under 16 to engage in a sexual act contained in s 218A of the Criminal Code 1899. The Court (Morrison JA and Boddice and Henry JJ) held that there was no reason to go beyond the specific definition of “procure” found in the offence provision. 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. It does not require a positive action or proof that the child would not have been willing to engage in the proposed sexual act of their own volition. Ultimately, the Court held that the appellant’s conduct amounted to an intent to procure and dismissed the appeal.

Morrison JA and Boddice and Henry JJ

19 January 2021

Background

This appeal concerns the conviction of the appellant for an offence under s 218A of the Criminal Code 1899, that he used electronic communication with intent to procure a person he believed to be under 16 to engage in a sexual act. [1].

The appellant’s offending occurred when a police officer (“Mel”) posed as a 37 year old mother of a 14 year old daughter. [5].

The appellant responded to an advertisement posted on Craigslist by Mel which sought a participant to engage in sexual activities with a mother and her daughter. After responding to the advertisement, the appellant exchanged a series of text messages with Mel. Ultimately, he agreed to meet Mel and her daughter at a designated location. The appellant was arrested at that location. [5]–[13].

The ultimate issue on appeal was whether the appellant’s conduct fell within the meaning of “procure”. [3].

Section 218A of the Criminal Code 1899

The offence of using the internet to procure children under 16 to engage in a sexual act is contained in s 218A(1) of the Criminal Code 1899. It relevantly provides as follows:

“Any adult who uses electronic communication with intent to procure a person under the age of 16 years, or a person the adult believes is under the age of 16 years, to engage in a sexual act, either in Queensland or elsewhere, commits a crime.”

Section 218A(10) provides for the definition of procure. It states:

“ procure means knowingly entice or recruit for the purposes of sexual exploitation.”

Decision of the Court of Appeal

The Court (Morrison JA and Boddice and Henry JJ) held that there was no basis to go beyond the specific definition of procure provided in s 218A(10). [44], [58], [63].

Justice Morrison, who delivered the leading judgment, explained that:

“ … 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.” [44].

In this context, entice or recruit bear their ordinary meaning. [47], [49].

The Court dismissed the appellant’s submission that the test of “procure” was that referred to by Cullinane J in R v F; Ex parte Attorney-General [2004] 1 Qd R 162 which required a person to induce or persuade someone to do an act that they would not have embarked on spontaneously of their own volition. [16].

With respect to s 218A, it was significant that “procure” was used in the context of enticing or recruiting a child, rather than an adult. [29]. Justice Morrison noted that:

“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.” [47].

It was held that “procure” does not require there to be a positive action, rather than a passive action. [45]. Defining “procure” to require a positive action would dilute the protection afforded by the Criminal Code 1899 to children, rather “[t]he very vulnerability that comes from their being a child compels the contrary conclusion”. [47].

Ultimately, the Court held that it was open to the jury to be satisfied that the appellant’s conduct amounted to an intent to procure within s 218A of the Criminal Code 1899 “as it went well beyond mere passive agreement of acquiescence”. [55], [60], [63].

A Hughes of Counsel