R v CAE[2008] QCA 177

SUPREME COURT OF QUEENSLAND

1. MUIR JA: I agree with the reasons of Fryberg J and with the orders he proposes.

2. FRYBERG J:  On this trial the charges in the indictment against the appellant and their particulars as they were left to the jury were:

1. That on a date unknown between the thirty-first day of August 2001 and the Twenty-third day of November 2002 at Gold Coast in the State of Queensland, [the appellant] raped [AB].

Particulars:Count 1 involves an allegation of the defendant's penis being inserted into the vagina of the complainant.

2. That on a date unknown between the First day of November 2002 and the Twenty-sixth day of May 2003 at Browns Plains in the State of Queensland, [the appellant] raped [AB].

Particulars:Count 2 involves an allegation of the defendant's penis being placed into the mouth of the complainant.

3. That on a date unknown between the First day of November 2002 and the Twenty-sixth day of May 2003 at Browns Plains in the State of Queensland, [the appellant] raped [AB].

Particulars:Count 3 involves an allegation of the defendant's tongue being placed into the vagina of the complainant.

4. That between the Thirty-first day of August 2001 and the Twenty-sixth day of May 2003 at Gold Coast and Browns Plains in the State of Queensland, [the appellant] being an adult, maintained an unlawful relationship of a sexual nature with [AB], a child under 16 years.

And in the course of the relationship [the appellant] raped [AB].

The jury convicted the appellant on counts 2, 3 and 4.  It acquitted him on count 1 but returned the alternative verdict of guilty of indecent treatment of a child under 16 on that count.  He now appeals against his conviction on all counts and seeks leave in the alternative to appeal against sentence.

The course of the trial

3. The child who was the object of the alleged offending was aged from seven to nine at the time of the offending and 13 when she gave evidence. At the time of the offending the appellant was her step-father. She had moved to Queensland from Victoria, where the illicit relationship was alleged to have begun, with her mother, the appellant and her two siblings.  After the move the complainant, her mother and siblings lived in turn at a number of addresses in southeast Queensland, in some cases without the appellant: Ashmore (a few weeks); a caravan park at Ormeau (about six months); a house at Kay Court, Ormeau (about 18 months); another address (the appellant's mother's home, for about a fortnight); Conifer Street, Browns Plains (also called Hillcrest and Boronia Heights, for about six months); with a friend (for about six weeks); and at Hillview Drive, Hillcrest.  The complainant’s mother separated from the appellant at the time she and her children went to live with the appellant's mother.  Some time after she rented the property at Conifer Street, she allowed the appellant to live there for about three months.  It was common ground that Ormeau was in the Gold Coast and Browns Plains/Hillcrest/Boronia Heights were not.

4. The complainant had two video-recorded interviews with the police and these were in evidence pursuant to s 93A of the Evidence Act 1977.  In the first interview, recorded in June 2004 when the complainant was aged 11, she said where the offending constituting the first three counts occurred.  She placed the offence specified in count 1 as having occurred at both Ormeau and Hillcrest (which must have meant Kay Court and Conifer Street respectively) and then specified counts 2 and 3 as having occurred at Hillcrest (Conifer Street).  These matters were not revisited in the second interview.

5. The complainant's evidence was recorded in July 2007 pursuant to Division 4A of Part 2 of the Evidence Act 1977.^[1]  In the indictment the offences were alleged to have taken place at the Gold Coast.  Before the recording commenced the prosecutor was asked for particulars of the charges.  She provided the particulars set out above.  She was not asked to further particularise the charges and in particular was not asked for any further details of where the offences took place.  The evidence in chief was purely formal.  In cross-examination the complainant gave the same location as in her interview regarding count 1; she said that conduct of the type particularised in count 2 occurred at both Ormeau and Hillcrest; and she was not asked about count 3.  In re-examination she continued to adhere to her evidence regarding count 1.  However on count 2 she specified the location as Kay Court, Ormeau; though she was unsure whether this was the only time that such conduct occurred.

6. Proceedings before the jury began on 5 November 2007. The prosecutor opened on the basis that count 1 occurred at Ormeau and counts 2 and 3 occurred at Browns Plains (Hillcrest). It seems that neither she nor the judge noticed that Browns Plains was not referred to in the indictment.

7. On the third day of the trial, the prosecutor addressed the jury on the same basis as to the place of the offending as in her opening. Defence counsel began his address at 10:44 am on the same day. The court adjourned for a morning break at 11:14 am. On resumption at 11:35 am in the absence of the jury, the prosecutor applied to make the amendments shaded above^[2] pursuant to s 572(1) of the Criminal Code.  This application was no doubt triggered by a submission to the jury by defence counsel that, as he put it to the judge in argument, “the place at which an offence is alleged to have occurred is an essential element of each offence.”

8. The judge heard submissions from both sides. Those submissions recognised that it was, as defence counsel put it (adopting a sentence in the commentary to the Butterworths edition of the Criminal Code), “essential to consider with great care whether the defendant will be prejudiced” by the amendments. He submitted that the place where the offences occurred was of critical importance in the context of a case where there was substantial evidence of uncharged acts at different places, many outside the jurisdiction (a submission repeated on appeal). His Honour ruled in favour of the prosecutor. He was satisfied that no prejudice or injustice would accrue to the defence in the circumstances. The jury returned and defence counsel continued his address. The judge began his summing up shortly before lunch.

9. The summing up was not concluded when the court adjourned for the day. When it resumed on the following day, defence counsel in the absence of the jury said to the judge, “I seek to revisit your ruling allowing the Crown to amend counts 2, 3 and 4.” Asked by the judge why that should be allowed, he responded, “Well, I'd like to put some matters on the record now so it doesn't look like I didn't, out of my duty to the court, raise the relevant matter.” His Honour refused to allow counsel to raise the matters at that point, saying that he could put them on record after the jury retired to consider their verdict. After dealing with some other matters his Honour completed his summing up. The jury then retired.

10. Counsel for the defence was then allowed to address the court. He asserted a number of matters of fact which were unsubstantiated by evidence on the ground that “I have a duty to inform the court the complete history of the matter in light of the exercise of your discretion to allow the Crown to amend counts 2, 3 and 4 to Browns Plains.” He asserted that the complainant was cross-examined, both at the committal and the trial, on the basis of the charges of offences alleged to have occurred at the Gold Coast. For the first time he stated instructions from his client that had the charges alleged Browns Plains he would have elected to give evidence that he had never lived at Browns Plains. He suggested that the defence was confused about where Conifer Street was, apparently because the only evidence on the point was oral evidence (but he did not suggest the evidence was untrue).  He submitted that there had been no opportunity to cross-examine the complainant about a specific charge particularising Browns Plains and asked the judge to reconsider his exercise of discretion.  Without hearing from the prosecutor, the judge agreed to that request.

11. His Honour then called upon the prosecutor. She pointed out that the charge sheets at committal which were said then to have formed the basis of the cross-examination, specified Conifer Street, albeit at Ormeau, a non-existent address.  She submitted that the Crown case had throughout been clear that counts 2 and 3 occurred at Conifer Street.  She submitted that if the judge were of the view that the defence was prejudiced, the correct course would be to discharge the jury, not to revisit the ruling.  Wall DCJ held that he could not assume that the defence would have been conducted in the same way had the charges been correctly particularised.

12. The prosecutor then submitted on the basis of that finding that the correct course was to discharge the jury and relist the matter. Defence counsel sought an adjournment to take instructions and after that adjournment told the judge that the defendant’s attitude was that he wished to proceed and take a verdict, but to reserve his rights in the event of a conviction and appeal. The judge said he would discharge the jury on all counts unless the defence indicated a contrary position. After another short adjournment defence counsel said to his Honour:

“Your Honour, whilst my client remains unhappy about the amendments to counts 2, 3 and 4, balancing the considerable time and expense he's gone through, and having got this far, he - he takes his chances to have the jury deliver a verdict on all four counts.”

His Honour confirmed that position a short time later:

HIS HONOUR: …  I just want to clarify things. You're not proceeding with your opposition to the amendments?

MR COUSINS: Well, I opposed them at the time, and the reasons for my opposition-----

HIS HONOUR: Yes.

MR COUSINS: -----was placed on the record yesterday-----

HIS HONOUR: Yes.

MR COUSINS: -----and today.

HIS HONOUR: Yes. But - well, because I've indicated to you that I would, but for your attitude now, discharge the jury, but you are happy for me not to discharge the jury?

MR COUSINS: It's been a difficult decision, but, having got this far, he wants to keep going.”

His Honour accepted that decision and adjourned to await the verdict.

The first ground of appeal argued: ground 2

13. The appellant abandoned the grounds of appeal that the verdict on count 1 was unsafe and unsatisfactory and that the judge erred in failing to direct an acquittal on counts 2 and 3. It had never been suggested that the verdict on those counts was unsafe or unsatisfactory.

14. The first ground argued was that the judge erred in granting the Crown leave to amend the place at which counts 2, 3 and 4 were alleged to have occurred.

15. Section 572 of the Criminal Code provides:

“572 Amendment of indictments

(1)If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or any count that ought to have been included in the indictment has been omitted,  or that any words that ought to have been omitted have been inserted, the court may, if it considers that the variance, omission, or insertion, is not material to the merits of the case, and that the accused person will not be prejudiced thereby in the person’s defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial, and directing it to be had before the same jury or another jury, as the court may think reasonable.

(2)The indictment is thereupon to be amended in accordance with the order of the court.

(3)If the court is satisfied no injustice will be done by amending the indictment, the court may make the order at any time before, or at any stage of, the trial on the indictment, or after verdict.

(4)When an indictment has been amended, the trial is to proceed, at the appointed time, upon the amended indictment, and the same consequences ensue, in all respects and as to all persons, as if the indictment had been originally in its amended form.

(5)If it becomes necessary to draw up a formal record in any case in which an amendment has been made, the record is to be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made.”

16. The power of amendment is conferred by s 572(1); s 572(3) requires compliance with that provision.^[3]  In the present case there was no doubt as to the existence of a variance between the indictment and the evidence.  Indeed defence counsel was relying upon that variance to found his argument for an acquittal.  The discretion to order amendment was therefore enlivened if the court considered that the variance was not material to the merits of the case and that the accused would not be prejudiced by the amendments.

17. In my judgment that form of words places the onus on the prosecution to demonstrate the materiality of the amendment and the absence of prejudice to the accused. In this respect the form of the section is similar to that of s 312 of the Criminal Code (NT), where it has been held that the onus is upon the prosecution.^[4]  The section is differently worded from what was the corresponding section of the Western Australian Criminal Code.^[5]  There, s 591 obliged the court to order the amendment of the indictment unless it considered the variance material and that the accused person would be prejudiced.  The onus was placed on the accused to demonstrate both materiality and prejudice.^[6]

18. It is quite clear that the particulars of the place where the offences were alleged to have been committed were not material to the charges. The conduct alleged was an offence wherever it took place in Queensland, and the places alleged, the Gold Coast and Browns Plains, were in Queensland.  The places were not an element of the offences, nor were they an aggravating factor.  It made absolutely no difference precisely where the conduct took place.  I did not understand counsel for the appellant to submit otherwise.

19. The appellant's submissions focused on the question of prejudice. In assessing this question it is important to have regard to what was before the judge at the time of his decision. The prosecutor submitted that where the complainant alleged that each incident occurred was clear from the time of the first police interview, and that these places had always been the Crown case. Consequently the defence suffered no prejudice. Counsel for the appellant submitted that the place at which the offence was alleged to have occurred was an essential element of each offence; that the places of the offences had a very real relevance because there were allegations of uncharged acts in Victoria; that any amendment should have been made before arraignment; that it was essential to consider with great care whether the defendant would be prejudiced by the amendment; that the defendant could not now give evidence or call evidence from his son (who was living at the Browns Plains house at the relevant time); and that the amendments should not be allowed and that the jury should be directed to acquit on counts 2 and 3. He conceded that the defence had known where the complainant said the various incidents occurred, but submitted that it was not the role of the defendant to frame the indictment. He did not allege any actual prejudice, in the sense that he did not allege that the defendant would have given or called evidence had the amendment been made before or at the start of the trial.

20. In my judgment the judge's ruling was perfectly correct. It was plain on the face of the evidence that the Crown was alleging that counts 2 and 3 referred to events at Conifer Street.  That was how the Crown case had been opened.  At all stages the defence knew the case it had to meet.  No actual prejudice was asserted by the defence, only speculative possibilities.  If the defendant had wished to give evidence or call witnesses, he could have applied to reopen the evidence for that purpose.^[7]  No such application was made – a clear indicator of lack of prejudice.  In theory it would have been open to the defence to seek a directed verdict on the disputed counts at the close of the Crown case.  It did not do so.  As counsel for the appellant put it, rather than making an application for directed verdicts, it was left to be argued to the jury.  Trial counsel doubtless knew that such an application would have provoked a cross-application for amendment; and it was not suggested on appeal that an amendment could not have been allowed at the close of the Crown case.  The Crown satisfied the onus upon it.

21. The appellant submitted that his counsel had not had the opportunity to take instructions on the application to amend and consequently had not fully argued the point. I reject that submission. Counsel must have realised that his submission to the jury would provoke an application to amend. Even if the prosecutor did not foreshadow the application during the 20 minute break which immediately preceded it, counsel had abundant opportunity to take any instructions needed. When the application was made, he sought no adjournment to take instructions because, I infer, he did not need to do so.

22. It was not suggested that if the discretion was enlivened, its exercise had in any way miscarried and there is abundant authority to support the view that it is desirable for the public record to reflect the true position accurately.^[8]

23. On the day following the ruling the defendant persuaded the judge to reconsider his ruling, and his Honour embarked on that reconsideration. He did so because counsel made the further points that even at committal the charges had alleged the offences to have been committed at the Gold Coast; that the complainant had been cross-examined on that basis; that none of the names of the streets appeared in the UBD as being in Browns Plains; and that he had been instructed during the overnight adjournment that had the charges alleged Browns Plains the accused would have elected to give evidence that he had never lived at Browns Plains. In response the Crown prosecutor submitted that if the judge were of the view that there had been prejudice, the correct course was to discharge the jury, not to leave the jury to deal with a charge inconsistent with the evidence. When his Honour indicated his willingness to accede to the prosecution submission, counsel for the appellant abandoned his application to reopen the question of amendment and informed the court of his client's preference for the jury's verdict to be taken rather than have the jury discharged.

24. In this court the appellant submitted that the judge should have granted the prosecution's application for the discharge of the jury despite the fact that at the trial he effectively, if somewhat hesitantly, opposed that application. He submitted that once the judge had concluded that the jury should be discharged, the responsibility for the decision should not have been placed upon defence counsel. In his written outline his counsel further submitted that in the circumstances it was the judge's responsibility to refuse to exercise the discretion under s 572.  He submitted that at that stage (the jury had retired) the potential prejudice was overwhelming.  The position would not be cured by reopening the evidence because the jury would question why the accused had left it so late to get into the witness box.  Potentially the judge might have been obliged to ask the jury to ignore the directions which he had already given (no such direction was identified).  Although the judge had not found there was prejudice to the defence, he had found on re-examining the question that he was unable to say that there was not prejudice.  As a matter of law he was therefore obliged to discharge the jury and it was not open to the accused to waive performance of that obligation.^[9]

25. In my judgment those submissions should be rejected. The trial had not irremediably miscarried. The jury had retired when the application was dealt with. It was (and is) unhelpful to talk about potential prejudice to the accused. If there was prejudice, it must already have happened:

• Counsel for the appellant identified only one part of the cross-examination which might have been different, and did not suggest any further cross-examination which might have been omitted, as a result of the error in the indictment.  That is unsurprising, since trial counsel was perfectly well aware of the Crown case at all material times.  The exception was the omission to cross-examine on count 3.  However trial counsel did not suggest that this omission was brought about by the form of the indictment and did not apply to reopen his cross-examination of the complainant.
• I very much doubt that had the indictment been amended at an earlier stage, the appellant would have entered the witness box to deny that he had lived at Browns Plains.  That point was purely semantic; there was no suggestion that he had not lived at Conifer Street.  In any event, if the instructions asserted by counsel were genuinely intended to be acted on by the appellant, the evidence could have been reopened and he could have entered the witness box (and called any other witnesses he wished).^[10]  The jury could have been told the obvious, that this was occurring because of the Crown's late amendment.  For obvious reasons it would not have been possible to suggest that the amended version reflected a recent fabrication by the complainant.
• In the unlikely event that the further evidence required some change in the judge's directions to the jury, that change could have been made.

The very fact that the appellant asked the judge not to discharge the jury is evidence that the course of events caused him no real prejudice.  In short, this was not a case requiring the discharge of the jury.

26. In any event, the appellant's decision to proceed with the trial and take the jury's verdict was clearly a tactical one. It was in my judgment plainly within his power to waive any procedural deficiencies of the nature alleged in this case. That is what he chose to do. He cannot now complain.

The additional ground of appeal

27. The additional ground of appeal was, “The jury's verdict on Count 3 is unreasonable or cannot be supported having regard to the evidence.”

28. The only evidence on Count 3 was the recording of the complainant's interview with police in June 2004. We were invited to act upon what we were informed by counsel for the appellant was a transcription of that recording:

“Can you remember - is there another time that anything happened?

Um, yeah. Is - it was different like he um, like I didn’t take any clothes off and neither did he.

Yep?-- Um, oh, yeah, I did.

Okay.  Tell me .....?-- But he told me to take off my pants.

Yep?-- And um, then once I took them off, ’cause like I had no choice.

Yep?--  And um, I took them off and then um, he um, started licking my private part.

Oh, okay.  So whereabouts were you when this had happened?-- In the bedroom.

Whereabouts?  Which house were you, sorry, still at?-- Yeah, Conifer Street.

Yep. In his bedroom?-- Yeah. And then he licked my private part and um, that was like burning.

What was burning?-- My private part.

Oh, okay?-- And um, then after that he said, "Does that feel good?" or something.

Yeah?-- And I said, "No" Um, and he’s like, "Don’t give me that attitude"

…

Um, with - so he told ...you to take your pants off, so you took your pants off? -- Yeah. ----

What about your underwear, knickers?-- Yeah.

Yeah. And you’re in his bedroom. Whereabouts in your bedroom were you?-- Oh, I think on the bed or on the floor.

Okay. Do you remember or-- Uh-uh.

And ah, did he have clothes on?-- Yeah.

Okay. Now, you said he licked your private part?-- Yeah.

What do you mean - which - what you talking private part?—My vagina.

Okay. And can you try and describe to me how he licked it?-- Like [indistinct] like he opened my legs and like held them open and then um, got his tongue there and …

What did he do with his tongue?-- Licked it.

Okay. What part of your vagina?-- Um, in like - in between the two flaps.

Okay. So did his tongue go in between your two flaps you said?-- Yeah. .....

And what was his tongue doing; could you feel or see what his tongue was doing?-- Like licking around I guess.

Oh, okay. Did you feel the tongue actually go inside [indistinct]?-- Yeah, it didn’t go inside there.

Okay. What do you mean by it’s going in between your two flaps?-- Like um, it didn’t go inside but like he was licking around - ...

Okay? .......that.

You said before it went in between the two flaps?-- Yeah.

What do you mean by that?-- Like two flaps ----

Did it go inside the ..... -- Yeah.

Okay?-- But he licked around it.

Oh, okay?-- Sounds really disgusting.

Yeah. And um, did he say anything about that at the time, did he say what he was doing or ..... ?-- Oh, he just said um. Like there was another word he said that um, he was going to lick my pussy or something.

Yep?-- Which I don’t get what that was either.

You don’t know what it is?-- No.

Okay. Um, did he do anything to himself, like was - what was he  doing other than licking you; was he doing anything?—Uh-uh.

Okay then. And at the time, where was your Mum; do you know, at that time?-- Um, no, all I know she was out.

Okay. And was anyone else home?-- Oh, I know where my Mum was. She was um, getting the grocery shopping, and she took my brother, ’cause she hurt her back.

Oh, okay, all right?-- And my sister, she was at her friend’s across the road.”

The complainant was not cross-examined about that evidence.

29. The appellant submitted that on that evidence it was not open to the jury to be satisfied of penetration. The description “In between the two flaps” was equivocal. It was qualified by “It didn't go inside there”. Having regard to the age of the complainant and of the complaints, there was insufficient evidence for the jury to convict.

30. I reject that submission. The jury saw and heard the videotape. They saw and heard the words spoken in a way which we were not invited to experience ourselves. On the face of the transcript, what the complainant said amounts to a complaint of labial penetration, which suffices to support a conviction.^[11]  It is unlikely that the complainant used the word vagina in its strict anatomical sense.  Given the appellant's approach to this ground, I presume that our watching the videotape would not advance his case.

Application for leave to appeal against sentence

31. The sole ground for the proposed appeal was that the sentence was manifestly excessive. The appellant was sentenced to imprisonment for six years on count 4 and for five years on each of the other counts. The notice of appeal does not specify which of the four sentences is the one to which it refers; but since the appellant submitted that the sentence should have been 4½ years imprisonment, I assume it was intended to appeal against all sentences.

32. Wall DCJ sentenced the appellant on count 4 on the basis that he took into account the jury's verdicts on the first three counts and also that the conduct alleged in count two occurred on a number of other occasions. He refused to take into account any other occasions of conduct of the type alleged in count 1 and he refused also to take into account the complainant's allegations of sodomy. He refused to take these matters into account because he was not satisfied that the jury must have found that they occurred. They were not matters implicit in the jury verdicts. He said that a special verdict should have been asked for.

33. In my judgment the approach taken by his Honour was wrong. His Honour was under no obligation to take a special verdict and I do not understand his reasoning to have suggested otherwise. He was obliged to sentence on a factual basis not inconsistent with the jury’s verdicts.^[12]  Subject to that limitation, it was his duty to himself make findings of fact relevant to sentencing.^[13]  In this State those findings must be made on the balance of probabilities.^[14]  He was not relieved of that obligation by the fact that nobody had asked for a special verdict to be taken, nor that none had been taken.  He should not have limited the facts to be considered to those implicit in the jury’s verdicts; he should have made the necessary findings himself.

34. This Court is not in a position to make findings itself. It is not appropriate for the matter to be remitted for resentencing and no such order was suggested by either party. We must proceed on the basis of the facts found at first instance.

35. The offences were committed for a substantial period, between August 2001 and May 2003. The appellant was aged between 35 and 37 at the time. He had a criminal history in four States. It included offences of violence and dishonesty. The most serious were reckless conduct endangering life and recklessly causing serious injury, for which he was sentenced to imprisonment for 18 months in April 1997 and making a threat to kill and intentionally causing injury for which he was sentenced to three months imprisonment to be served by way of an intensive corrections order in April 2000. The complainant was young, aged between seven and nine at the time of the offences. At that time the appellant was her stepfather and occupied a position of trust. The judge found that there was no remorse and no cooperation in the administration of justice. The effect of the offending on the complainant was traumatic.

36. A number of cases were cited to us. All but one were simply examples of sentences which were not held to be excessive. The exception was R v S.^[15]  In that case the applicant pleaded guilty to 22 counts of indecent treatment of a child under 16 years with circumstances of aggravation and one count of maintaining an unlawful sexual relationship with a child under 16 years with circumstances of aggravation.  Twenty-one of the counts of indecent treatment and the count of maintaining an unlawful sexual relationship related to his stepdaughter, KLS.  The twenty-second count of indecent treatment related to his natural daughter, BLS.  The conduct in relation to the stepdaughter occurred between 1990 and 1998 when she was aged between seven and 15 years.  The conduct in relation to the natural daughter occurred in 1998 when she was aged 10 years.  The conduct in relation to the stepdaughter involved touching her breast area and genitals, having her rub his penis until he ejaculated and rubbing his penis on her back and buttocks to ejaculation.  There was one incident of digital penetration of her vagina.  There was one incident of taking an indecent picture of her which he later destroyed.  The conduct in relation to the natural daughter consisted of pulling her shirt over her head and touching her on the stomach, neck and chest.  The applicant was a mature man with no criminal history and a good work record.  The members of the Court agreed that the sentence imposed by the sentencing judge of six years imprisonment with a recommendation for parole after two years was the appropriate sentence on the facts of the case, but for certain additional and extraordinary facts not found in the present case.  The sentence was reduced because of those facts.  However the case remains relevant in relation to the approval of the original sentence.  It was less serious than the present case in that there was neither penile penetration nor ejaculation into the complainant's mouth, but there was digital penetration, the conduct occurred over a much longer period and in relation to two children, and there were 22 counts, not four plus a number of uncharged acts.  If the special circumstances are disregarded, the dicta in the case referred to a sentence commensurate with the sentence imposed in the present case.

37. The Crown relied on R v MAH.^[16]  In that case the maintaining offence involved the offender’s 7 to 8 year old stepdaughter and related to a period of about two years.  It included three instances of rape (apparently, penile rape), many instances of digital penetration and instances of oral sex and indecent touching.  The offender was aged 42 to 44 years.  It seems clearly to have been a worse case than the present one.  The court held that there could be no dispute about the appropriateness of a six-year head term.

38. In R v GY^[17], the court upheld a sentence of four years imprisonment for maintaining a relationship.  The complainant was aged six to 14 years.  The offender was convicted of four of the six counts of indecent dealing with which he was charged.  The conduct consisted of rubbing his penis against her vagina, sometimes to the stage of the ejaculation, on numerous occasions.  The offender showed no remorse.  There were more specific offences than in the present case, but there was no penetration.  The court referred to several other cases:

“In the course of argument reference was made to R v C [2000] QCA 145, R v S [2001] QCA 54 and R v R [2001] QCA 488.  The offender in R v C maintained a sexual relationship over a four year period when the complainant was aged six to 11 years.  The offending involved touching and digital penetration of the girl's genitalia and fellatio.  A sentence of five years was not disturbed on appeal.  S pleaded guilty to maintaining a sexual relationship with his stepdaughter who was aged between seven and 15 years.  The offending involved touching the complainant's breasts and genitals, having her rub his penis until ejaculation, and rubbing his penis against her body.  The offender voluntarily disclosed his offending to the police.  Because of that latter consideration the sentence of six years with a recommendation for parole after two years was reduced to four and a half years with a recommendation after 18 months.  R v R involved an offender who was convicted after a trial of maintaining a sexual relationship with his stepdaughter over a three year period.  The offending involved having the complainant masturbate the offender and rubbing his penis against her genitals without penetration.  The sentence of four years imprisonment was not disturbed but a recommendation for parole after 15 months was added.”

The appellant relied on all of these cases.

39. He also referred the court to R v R^[18] and R v Y.^[19]  In the former case the applicant was a 53 year old man with no previous convictions.  He systematically corrupted a girl over a period covered by the ages eight to 13 years.  He was a boyfriend of the complainant's mother and a father figure to the complainant.  The conduct included his digital penetration of the vagina, oral sex with ejaculation into the complainant's mouth, vaginal intercourse, urination by the complainant into the applicant's mouth at his insistence and showing the complainant a pornographic movie featuring bestiality.  He made a threat in order to influence her not to reveal his conduct.  He showed no remorse.  The complainant was a vulnerable child in a vulnerable family situation and her examination during the evidence at the trial was traumatic.  At a time when the maximum sentence was imprisonment for seven years, the Court of Appeal imposed a sentence of 5½ years, observing that had the maximum been 14 years (as it was by the date of trial), the sentence of 6½ years imposed at first instance would have been unobjectionable.

40. In the latter case the offender was sentenced to imprisonment for five years for maintaining a sexual relationship with his stepdaughter aged from eight to 14 at the relevant time. There were 32 specific offences, many involving penetration of the vagina by finger or tongue, with the girl's acquiescence obtained only by the use of his authority. He was a man of previous good character with no previous convictions. The court held that this was a particularly bad instance of this offence, but also that five years was within the range. In my judgment this was a more serious case than the one presently under consideration.

41. Had the judge found that the uncharged acts of intercourse and the acts of sodomy alleged by the complainant did occur, the sentence which he imposed on the maintaining charge could not in my judgment have been challenged. However the question for us is whether it was manifestly excessive in the circumstances as found by the judge. Having regard to the decisions to which I have referred above, I have come to the conclusion that it was. In my judgment the sentence on count 4 should be set aside and in lieu the appellant should be sentenced to imprisonment for five years. To maintain proportionality the sentences on counts 1 to 3 should be set aside and in lieu the appellant should be sentenced to imprisonment on each for 4½ years.

Orders

42. The orders of the Court should be:

1. The appeal against convictions is dismissed.

2. The application for leave to appeal against sentence is granted.

3. The appeal against sentence is allowed.

4. The sentences imposed in the District Court on 10 December 2007 are set aside and in lieu the appellant is sentenced as follows:

(a)on count 1 - imprisonment for 4½ years;

(b)on count 2 - imprisonment for 4½ years;

(c)on count 3 - imprisonment for 4½ years;

(d)on count 4 - imprisonment for 5 years,all such imprisonment to be concurrent.

5. The appellant was held in presentence custody from 5 November 2007 until 10 December 2007, a period of 35 days.  It is declared that this time is imprisonment already served under these sentences.

43. LYONS J:   I have had the advantage of reading the reasons for judgment of Fryberg J.  I agree with the reasons and the orders proposed by his Honour.