SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ: The appellant was convicted by a jury of two offences of indecent treatment of a child under 12 years of age.  He was sentenced to nine months imprisonment with eligibility for parole recommended after four months.  He appeals against the convictions and applies for leave to appeal against sentence.

[2] The ground of appeal against conviction is that the verdicts are unreasonable and cannot be supported by the evidence.

[3] The offences were committed at about 4.30 am on 21 December 2007.  The appellant and a friend, Mr C, had been drinking heavily and using cannabis.  They repaired to Mr C’s house at about 2 or 3 am.  Mr C’s partner, RB, who is the complainants’ stepmother, was asleep in her room, and by the time of the offences, Mr C had fallen asleep on a couch in the lounge room.  The complainants J and C, who are the daughters of Mr C, were aged nine years and eight years respectively.  They were asleep in their own room on separate beds positioned in an L-shape. 

[4] At about 4 am, Mr C told the appellant to go and have a sleep in the spare room, which was next to the complainants’ bedroom.  The prosecution case was that the appellant attempted to remove J’s pyjama pants as she lay on her bed, and then pulled C’s pyjama pants down to the level of her thigh.

[5] The challenge to the convictions is essentially based on inconsistencies in what the complainants said happened, when they subsequently spoke with various persons, being their stepmother RB, their father Mr C, their grandfather and the investigating police.  It is convenient to summarize, now, the various accounts.

[6] The complainants’ stepmother RB gave evidence that she awoke at about 4.30 am when J came to her bed.  J said that she could not go back to sleep, and did not like the appellant.  RB asked J if something had happened, whether the appellant had hurt her.  J said that the appellant pulled the blanket off her and didn’t hurt her.  RB then went alone to the complainants’ room, where she found the appellant and C.  The appellant told RB that he had heard C awake, and went in to ask her if she wanted to watch a DVD with him.  C walked past RB into the lounge room.  RB told C to go to RB’s room.  RB followed her, and asked C why she was awake.  C was crying, and she said that the appellant had woken her up because he kept trying to pull her pants off.  C said that she kept pulling them back up, saying “don’t”, and the appellant said “sh”.  J told her stepmother, again, that the appellant had pulled her blanket off. 

[7] The stepmother with difficulty awakened the disoriented, very intoxicated Mr C.  Mr C went to the bedroom.  His evidence was that the complainant said that the appellant went into their room and took the blankets off them, and that he thought it was C who said that the appellant tried to take her knickers off, that he was “touching her pyjama bottoms and trying to take them off”, and she awoke and he told her “sh”.

[8] The complainants, the father and the stepmother went to the grandfather’s house at about 6 am.  The grandfather’s evidence was that he spoke to the complainants in the absence of the others.  He said that J told him that she awoke to find a man standing beside her bed;  he took the cover off and was touching her.  She went and woke her stepmother.  C told the grandfather that when she awoke, the man was standing beside J, with the cover off J.

[9] J’s account was recorded by the police, pursuant to s 93A of the Evidence Act 1977 (Qld), from 8.50 am on 21 December 2007, and C’s from 9.30 am.  Their evidence was pre-recorded on 30 October 2008, and the trial took place in December 2008.

[10] In her s 93A recording, J said that the appellant took the blanket off her and tried to touch her.  She said “get your hands off me”, and ran to her stepmother.  She said that the appellant had tried to pull her pants down.  In the pre-recorded evidence, J said that she awoke because the appellant removed the blanket and tried to pull her pants down.

[11] In C’s s 93A recording, C said that the appellant pulled her pants down “all the way to (her) knees”.  She awoke and said:  “What are you doing”, and he said “sh”.  She pulled the pants back up.  Her account in the pre-recorded evidence was similar, that he pulled her pants down to her thigh.

[12]  Counsel for the appellant advanced this criticism of the evidence in relation to J:

“The central difficulty with the evidence of J is that she volunteers an initial complaint to RB about the appellant which does not contain an allegation of a sexual nature.  That position is maintained in the face of specific questioning by RB and a private discussion with C.  She is questioned by her father and again a complaint of a sexual nature is not forthcoming.  When questioned further by her grandfather, J makes a bare allegation of being touched.  When questioned by the police, J makes the first specific allegation of the appellant pulling her blanket down and trying to pull her pants down.  In her pre-recorded evidence, her evidence changes to an acceptance that she did not see the appellant pull the blanket down.”

[13]  Counsel advanced this criticism in relation to the evidence of C:

“She made no complaint about the appellant when she came across RB when moving from her bedroom to the lounge room with the appellant.  It was only after RB questioned C and J together in her room a short time later that C made an allegation about the appellant trying to pull he pants down.  When questioned by her grandfather later, C said that the appellant had done nothing to her and that he was just standing near J’s bed.  C’s version of events changes when she speaks with the police to include her pants being pulled down to her knees on one occasion and then the appellant moving to try and pull her pants down on a second occasion.”

[14] In relation to J, the circumstance that she did not tell her stepmother initially that the appellant attempted to remove her pyjama pants may have been explained by the distressed condition of this young girl going to her stepmother for comfort in the early hours of the morning.  She went there, lay on the bed beside her stepmother, was picking at her fingernails and said that she did not like her father’s friend, the man who had woken her up and pulled her blanket off.  The police interview four to five hours later, apparently carefully and comprehensively conducted, was more likely to have produced an accurate account.

[15] The grandfather’s account could have been considered doubtful because of its own internal inconsistencies.  For example, he told the police that J said that the appellant tried to touch her, but his memory at trial was that J said he actually touched her. 

[16] As to C’s failure to complain to her stepmother as she moved past her stepmother on the way to the lounge room, with the appellant, she was with a man who “looked like he wanted to do it again”.  As with J, it is pertinent to remember that C was a young girl confronted with having to deal with an adult male in the early hours of the morning.  The complaint to her stepmother in the bedroom was made very early in the piece. 

[17] As to the grandfather’s evidence, that C said that the appellant had done nothing to her and that he was just standing near J’s bed, it is difficult to assess any significance of that response without knowing the question which drew the response.  But in any event, and even accepting for the moment the reliability of the grandfather’s recollection, about which there is some doubt, as previously mentioned, the jury may well have chosen to prefer the evidence from the stepmother, and of the statement subsequently made to the police in the course of the carefully conducted interview to which I have already referred.

[18] There is a potentially significant supervening circumstance in this case.  There was no contest at the trial that the appellant, who was a visitor to the house, had entered the bedroom shared by the two young complainant girls in the early hours of the morning and had sat on J’s bed and pulled her blankets down.  The jury may reasonably have considered that that powerfully suggested a conclusion that the appellant was not in that room for any innocent purpose.

[19] I accept the submission made by Mr Rutledge, Counsel for the respondent, that “the recorded accounts given by the children have a powerful consistency and fit neatly with the conclusion that the appellant was not in the room of those young girls in the early hours of the morning other than for the purpose of sexually interfering with them.  Indeed, it is difficult to see any innocent reason why a visitor to a house would be in the children’s bedroom in the early hours of the morning.”

[20] Having gone through the analysis required by M v The Queen (1994) 181 CLR 487, 494-5, and see MFA v The Queen (2002) 213 CLR 606, paras 25 and 59 and R v PAH [2008] QCA 265, paras 29-30, I am not satisfied that the verdicts were unreasonable or not supportable by the evidence.  I would dismiss the appeal against conviction.

[21] At the time of committing the offences, the applicant was 25 years of age.  As noted, he was sentenced to nine months imprisonment with eligibility for parole recommended after four months of that term.  He had previously been convicted of drug offences, wilful damage to property and a number of dishonesty offences.  At the time of these offences, he was on probation for drug offences.  His performance while on probation was described as “less than satisfactory”.

[22] The learned sentencing Judge noted that while the offending was at the lower end of the range, it involved two children, a breach of trust and his persistence in the conduct until both children terminated it.  His Honour also noted that after these events, Mr C and the girls’ stepmother assaulted the applicant with weapons (an iron bar and a bottle) which resulted in bruising of the ribs, face and gums.

[23] Mr Woodford, who appeared for the applicant, accepted the well-established position that those who commit sexual offences against children will, in the absence of exceptional circumstances, suffer actual incarceration.  He relied on the aggregation of the following features as constraining the learned Judge not to make an order which would involve actual imprisonment:  the offending conduct was not planned; it was at the lowest end of the scale for such offending; the applicant was intoxicated at the time; his use of cannabis had ended approximately two months prior to the date of sentence; he was then in employment; he was then in a relationship; and he was physically beaten by the complainants’ father and stepmother shortly after the offending.

[24] While those features, especially because they included the last, may in this particular case have justified not actually imprisoning the applicant, allowing for R v Quick; ex parte A-G [2006] QCA 477, their aggregation did not constrain the Judge not to order actual imprisonment.

[25] Mr Woodford relied especially on R v Mirza; ex parte A-G [2008] QCA 23, where probation was upheld.  But that was a plainly exceptional case, immediately distinguishable from this one because this applicant was guilty of actual touching unlike Mirza, albeit through the pyjama pants; there were two complainants here; Mirza pleaded guilty; Mirza had no prior convictions; and Mirza desisted when his victim expressed reluctance – this applicant moved to the second child (C) after the first (J) objected. 

[26] This offending did fall at the lower end of the range of offending of this type.  Nevertheless, it was serious and disturbing, bearing in mind that the applicant was an invited guest at the house, he went into the bedroom of two young sleeping girls in the early hours of the morning, he attempted to pull down the pants of one of them and when she objected he moved to the other girl, and attempted to pull her pants down.  There was a certain pre-meditation evident in the way the matter developed.  Furthermore, he was at the time on probation, and bore the burden of a not insignificant past criminal history.

[27] In my view, this sentence, imposed following conviction at a trial, was not manifestly excessive. 

[28] I would refuse the application for leave to appeal against sentence.

[29] CHESTERMAN JA: I agree with the orders proposed by the Chief Justice and with his Honour’s reasons for them.

[30] ATKINSON J: I agree for the reasons given by the Chief Justice that the application should be refused, and the appeal against conviction be dismissed.