Chiro v The Queen [2017] HCA 37

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ

MARCO CHIRO APPELLANT

AND

THE QUEEN RESPONDENT

Chiro v The Queen [2017] HCA 37 13 September 2017 A9/2017

ORDER

1. Appeal allowed in part.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 30 September 2015 in SCCRM-15-232, and in its place order that the appeal against sentence be allowed and the sentence be set aside.

3. Remit the proceeding to the Court of Criminal Appeal of the Supreme Court of South Australia for the appellant to be resentenced in accordance with the reasons of this Court.

4. Appeal otherwise dismissed.

On appeal from the Supreme Court of South Australia

Representation

M E Shaw QC with B J Doyle for the appellant (instructed by Wallmans Lawyers)

C D Bleby SC, Solicitor-General for the State of South Australia with B Lodge for the respondent (instructed by Director of Public Prosecutions (SA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Chiro v The Queen

Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence comprised of two or more acts of sexual exploitation separated by not less than three days Where jury required to be unanimous (or agreed by statutory majority) as to same two or more acts of sexual exploitation Where alleged acts of sexual exploitation ranged from kissing in circumstances of indecency to inserting penis into complainant's mouth Where jury returned general verdict of guilty by statutory majority Where not known which alleged acts of sexual exploitation jury agreed had been proved by prosecution Whether conviction uncertain Whether judge should have requested special verdict Whether, after general verdict returned, judge should have asked questions of jury to identify acts of sexual exploitation found to be proved Whether appellant should have been sentenced on view of facts most favourable to appellant in circumstances where factual basis of jury's verdict unknown.