SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  The appellant was charged with nine sexual offences against his partner’s granddaughter.  After a seven day trial in the District Court a jury found him not guilty of four of the offences and guilty of the remaining five offences.  He was sentenced to an effective term of imprisonment of five years.  The appellant has appealed against his convictions and he has applied for leave to appeal against his sentence.

Appeal against conviction

[2] The grounds of the appeal against conviction are that the verdicts are unsafe and unsatisfactory when regard is had to the evidence as a whole; the verdicts are inconsistent with each other and not supported by the evidence; the trial judge erred in failing to direct the jury adequately in accordance with s 21AW of the Evidence Act 1977 regarding the presence of a support person; and the trial judge erred in failing to direct the jury adequately in respect of preliminary complaint.

[3] The Crown case was based upon the evidence of the complainant.  She was between about five years old and 11 years old during the period when the offences were alleged to have occurred.  She and her siblings used to visit the appellant’s farm.  The complainant occasionally was alone with the appellant.  She gave evidence that from when she was about five years of age he engaged in various forms of indecent dealing with her.

[4] The complainant’s evidence was contained in recorded police interviews on 27 and 28 November 2009 (when she was 11 years old) and pre-recorded evidence in March 2011 (when she was 12 years old).  In the complainant’s pre-recorded evidence she affirmed the truth of what she told the police in the interviews and she was cross‑examined at length.

[5] The charges, the verdicts, and the effect of the complainant’s evidence are summarised in the following table.

[6] The complainant maintained her account in cross-examination.  She agreed that she did not tell her friend A that she was screaming when she was in the back of the Ute and said that she was not screaming.  She said that she did not know how old she was when the appellant put her in the back of the Ute.  It was a long time ago, but she did not have any idea of how old she was or know whether she was at school.  When defence counsel asked her whether she had started school at that stage she said that she didn’t think that she had.  She subsequently agreed that when the appellant put her in the back of the Ute that was before she started school.  The complainant was unable to give any further details about what had happened in the Ute.  She could not say whether it was winter or summer or what of year it was or the next thing that happened afterwards.  She agreed that she never spoke to her mother about what the appellant had done.  The complainant agreed that A told her mother what the complainant had said.  (A’s evidence made it clear that the complaint emerged as a result of A telling her mother of the complainant’s allegations even though the complainant had asked A to keep it secret.)

[7] The complainant’s sister S’s evidence was in the form of a recorded police interview on 28 November 2009 when she was nine years old.  She was not aware of any wrongdoing by the appellant.

[8] Preliminary complaint evidence was given by A, B, and C.  A’s evidence was in the form of police interviews in late February 2010 and mid-March 2011 when she was 11 and 12 years old.  In pre-recorded evidence on 23 March 2011 she affirmed the truth of her statements in the police interviews and was cross-examined.  She said that in the previous year (2009) the complainant said that the appellant had done disgusting things to her.  After first telling the police officer that the complainant did not say how old she was when it happened, A said that the complainant said that the first time something happened was when she was around four or five years old or she was in Prep or Grade 1.  The complainant said that the appellant had put her on the back of his truck, licked her vagina, licked her breasts, and masturbated himself; and that the complainant and S had seen the appellant’s penis when he was taking a shower.  In the second police interview, A referred to a conversation a couple of weeks before that interview in which, for the first time, the complainant told her about the appellant rubbing his penis and stuff coming on to the complainant’s shirt.  She gave substantially the same account in cross-examination, save that she agreed that the complainant did not tell her when these things had happened.  In the first police interview, A spoke of the complainant saying some things which were not in the complainant’s police interviews: when the appellant put the complainant in the back of his truck and pulled down her underwear, the complainant screamed and pushed the appellant away before he started licking her vagina; when the complainant spoke of the incident where she and S saw the appellant washing himself the appellant “came out with a bucket and he was naked”.

[9] B participated in a police interview on 17 October 2011.  She was in the same grade as the complainant so at the time of her interview she was presumably about 12 years old.  She spoke of a conversation with the complainant when they were in grade 4 or 5, two or three years earlier.  The complainant told her about her “uncle taking her to the garage and doing stuff”; the complainant wrote some of her disclosures down but Jasmine could not remember what she wrote.  In pre-recorded evidence in late January 2012 she agreed in cross-examination that the complainant did not go into detail about anything.  C participated in a police interview in November 2011 and gave pre-recorded evidence in February 2012, when she was 12 years old.  In her police interview she said that around June or July of 2009 the complainant told her about “her grandfather raping her or something”; this was “out on a truck or something”.  She later said it was not a truck but a “ute thing”.  The complainant said that she was scared to go to her grandmother’s place and wanted to stay with her mother; the things happened at the grandmother’s farm.  She subsequently referred to the person who did the things as the complainant’s step-grandfather.  When the police officer asked whether the complainant used the words “raped by her grandfather”, she said “no … but it sounded like rape to me … she said that he wanted to have sex with her …”; “… he did this a couple of times to her …”.  She did not think that the complainant told her when this had happened.  In pre-recorded evidence she agreed that the complainant didn’t say the words “raped by her grandfather” but “she just said it more, like, more child – like more – I can’t actually explain it, but it’s like something more information than ‘rape’.”  She agreed that this was the day before the complainant went to the police station.

[10] The complainant’s brother L participated in a police interview in November 2009 when he was 13 years old and he gave pre-recorded evidence in March 2011 when he was 14 years old.  In the police interview L spoke of a conversation with the complainant a couple of days earlier when the complainant told him that the police would come; she explained the reason was that the appellant had been “sexing” her almost every time they went to the farm.  In pre-recorded evidence, L agreed in cross-examination that (apart from the occasion just before the police arrived) the complainant had never told him anything about what had happened to her.  He said that there was one time when the complainant went into the shed and came out crying, and the appellant came out and loudly told her not to tell anyone; L said that this happened one or two years before the police interview.  L asked the complainant why she was crying but she would not tell anyone.  When it was put to L in cross-examination that it was a rule that children weren’t allowed to go inside the sheds because there was a lot of dangerous equipment, L answered “[m]ostly”.  Similarly, when it was put to him that it was made quite clear to the children that they won’t go into the shed, he answered “[s]ometimes, yeah.”

[11] The complainant’s paternal grandmother gave evidence that she had been the appellant’s fiancé and de facto wife and had lived on a farm with him.  Her son and his wife, the complainant’s mother, stayed at the farm for two separate periods before her son died in April 2006.  They also visited on holidays.  The visits continued after the death of her son.  There were two occasions when the family, including the complainant, stayed for about four or five days in 2008 and there were similar periods in 2009 when the complainant stayed with members of her family on school holidays in 2009, September 2009 being the last occasion.  She recalled that in the September 2009 school holidays one of her daughters, the complainant’s aunt, had brought her children over to play.  She subsequently drove her daughter and the children home because her daughter had a couple of beers at lunch.  She was away from the farm for at least 25 minutes, leaving the complainant, her siblings L and S, and their uncle J, at the farm.  The same night the complainant refused to say goodbye to the appellant when the complainant’s mother collected her children from the farm.  On another occasion in the September 2009 school holidays, the complainant had a flat tyre on her bike and the complainant’s grandmother told her to take it to the shed to pump it up.  In cross-examination she agreed that there was a rule that the children were not allowed to go into the shed on their own.  She agreed that that the complainant had never made any complaint to her about anything the appellant had done.

[12] The complainant’s mother gave evidence that she and her husband lived on the farm for periods in about August 2003 and August 2004 and visited the farm for periods of days on other occasions.  This happened more commonly after mid 2007.  They might have stayed at the farm towards the end of 2008.  In the December 2008 holidays the complainant stayed there for some time.  She and her siblings stayed there in January 2009 and again in the September 2009 school holidays, on each occasion for a few days.  After the last occasion she collected her children from the farm on 1 October 2009.  The police arrived at her house on 26 November 2009.  In cross-examination the complainant’s mother agreed that if the children visited the farm in 2008 it would have been for daily visits when she would have been with them.  She agreed that her children did not express any reluctance to her about going to the farm.

[13] The appellant gave evidence in his own defence.  He said that in big sheds on the farm he repaired and restored old cars and worked on truck bodies and other vehicles.  He had lived with the complainant’s grandmother since about 2000.  He described his work clothes, which were generally green but he had one set of blue clothes, and said that it was a rule that he could not wear them in the house.  He did not have much to do with the children who came to the farm because he spent most of his time working in the shed.  There was a definite rule that children were not allowed in the shed if they were not with their parents.  He enforced that rule by shouting at the children to get out if they came in.  He referred to the Ute about which the complainant had given evidence and said that it was usually parked just outside the shed door.  He had owned that Ute since 2006 or 2007 and had owned different kinds of Utes before then.  The appellant said of the red truck which the complainant described in evidence that he had owned it for a long time and had sold it about 12 months before the police came to the property in 2009.  He agreed that the complainant and her siblings stayed at the farm with her parents on a couple of occasions before the complainant’s father died.

[14] The appellant specifically denied each of the complainant’s allegations of sexual misconduct.  In relation to counts 2 and 3 (“the truck time”), he agreed that he had put the complainant in a truck and said that this was because she was playing a game of hide and seek and had asked him to hide her.  He said that he opened the truck door and got her out of the truck when the complainant’s grandmother called out to them that it was lunchtime.  In cross-examination the appellant agreed that he had pumped up bicycle tyres for the children.  The appellant could not remember the last time when the children came to the farm but agreed that they came on most school holidays.  He denied that there was an occasion when the complainant left the shed crying and he told her not to say anything to anyone.

Ground 1: the verdicts of the jury are unsafe and unsatisfactory when regard is had to the evidence as a whole

Ground 2: the verdicts of the jury are inconsistent with each other and not supported by the evidence

[15] The question raised by Ground 1 (that the verdicts are unsafe and unsatisfactory) is whether, upon the whole of the record, the Court is satisfied that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[1]  Under both grounds of appeal, the appellant relied upon what was submitted to be inconsistency between the acquittals and the convictions.

[16] In MacKenzie v The Queen,[2] Gaudron, Gummow and Kirby JJ said:

“… the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.

…

Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.”

[17] The acquittal on count 5 is readily explicable.  The trial judge directed the jury that they could convict the appellant on count 5 only if they were satisfied beyond reasonable doubt that the appellant intentionally exposed his naked penis to the complainant in the sandpit as he stood in the bathtub, or that he deliberately did so being aware that she would see what he did and he recklessly proceeded regardless of the risks.  On those elements of the offence the Crown case was not strong.  When asked in the police interview how long the appellant had stood naked next to the window in the bathroom, the complainant responded that she didn’t know because “as soon as we looked at him … we didn’t look at him anymore …”.  In light of that answer and the evidence summarised for this count in the table, it would be surprising if the jury had not harboured a doubt whether the appellant was guilty of this offence.  That doubt did not necessarily reflect acceptance of the appellant’s denial that the incident occurred at all; the trial judge gave the jury conventional directions that they could find the appellant not guilty even if they did not believe the version which he gave in evidence and that they should not automatically jump to the conclusion that he must be guilty if they did not accept his evidence.

[18] The other counts upon which the appellant was found not guilty, counts 1, 2 and 3, concerned incidents which were alleged to have occurred between the middle of 2003 and the end of 2006.  The complainant said in her 28 November 2009 police interview that she had not told anyone about the events at the truck before “Cause I’ve just remembered it”; and count 1 was alleged to have occurred during a period which comprehended times even earlier than the alleged events of counts 2 and 3.  In summing up, the trial judge reminded the jury that the complainant was first interviewed by the police in November 2009, which was at least five and possibly more than six years after count 1 was alleged to have happened and almost six years after counts 2 and 3 were alleged to have happened.  In relation to the counts upon which the appellant was found guilty, the trial judge pointed out that the complainant first spoke to police between about two and four years after count 4 allegedly happened and she spoke to the police promptly after counts 6 - 9 were alleged to have happened.  The trial judge explained to the jury the effect which the passage of years from 2003 to 2009 had had upon the investigation of the complainant’s allegations in relation to counts 1 to 4, referring to the absence of any precise date being given for the alleged offences, the effect of the delay in denying the appellant a chance to assemble exculpatory evidence soon after the alleged events, and the loss of the possibility of having the complainant immediately checked and DNA samples taken.  The trial judge directed the jury that the fairness of the trial had necessarily been impaired by the delay in relation to counts 1 to 4.  The trial judge gave a Longman[3] direction “that it would be dangerous to convict upon [the complainant’s] evidence alone unless scrutinizing it with great care, considering the circumstances relevant to its evaluation and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy.”

[19] Another feature of the case which might have persuaded the jury to adopt a cautious approach was that, according to A’s evidence, the complaint to her in 2009 did not refer to count 1 or it combined the events charged in count 1 with the events charged in events 2 and 3, and perhaps also count 5.  In cross-examination A agreed that the complainant did not tell her when these things had allegedly happened.  The evidence given by S, B and C also concerned complaints made years after these alleged events and did not clearly describe the details of any of them.

[20] All of this might have been attributable merely to the very young age of the complainant at the time of the events alleged in counts 1 to 3 and the passage of time, but the not guilty verdicts on those counts are explicable on the footing that the jury adopted a cautious approach to offences which occurred many years before the complainant made any complaint to her friends, family, or police.  Counts 6 - 9, upon which the jury found the appellant guilty, all concerned events which were much closer in time to her police interviews.  Count 4, upon which the appellant was also found guilty, was not so recent, but the complainant’s account of it, like her account of counts 6 - 9, included persuasive details of sexual conduct by the appellant and of surrounding circumstances.  The accumulation of these circumstances and the circumstances described in the next paragraph provides a logical and sensible reconciliation of the differing verdicts.

[21] The evidence, particularly the evidence of the complainant, L and the complainant’s grandmother, allowed the jury safely to conclude that, despite the appellant’s evidence that he did not allow children in the shed, there could have been an opportunity for the appellant to commit the offence charged in count 4.  Similarly, the complainant’s evidence tallied with her grandmother’s evidence that the complainant’s grandmother was absent from the house at the time when the complainant alleged that the appellant committed the offences charged in counts 6 ‑ 9, so that the appellant might have had an opportunity to commit those offences.

[22] However, and as the trial judge directed the jury, the prosecution case that the appellant committed the offences depended upon the complainant’s evidence.  With the possible exception of A’s reference to masturbation (which might have related to count 4), there was no preliminary complaint evidence in relation to any of the offences of which the appellant was convicted, but the complainant’s evidence on each of those counts was detailed and persuasive.  The jury, which had the advantage of seeing and hearing the appellant give evidence, were evidently satisfied beyond reasonable doubt that, notwithstanding the appellant’s sworn denials, he did commit those offences.  Taking into account the jury’s advantage in seeing and hearing the appellant give evidence, I am persuaded that, notwithstanding the appellant’s evidence, it was reasonably open to the jury to find on the whole of the evidence that the appellant was guilty of counts 4 and 6 - 9.

Ground 4: the trial judge erred in failing to direct the jury adequately in accordance with s 21AW of the Evidence Act 1977 regarding the presence of a support person

[23] Subdivision 3 of division 4 of the Evidence Act 1977 provides for the pre-recording of an affected child’s evidence in the way in which the children’s evidence was adduced in this case.  Subsection 21AV(1) of that Act provides that an “affected child” (defined in s 21AC as meaning “a child who is a witness in a relevant proceeding and who is not a defendant in the proceeding”) is entitled to have near to him or her, whilst he or she is giving evidence in the relevant proceeding, a person who may provide the child with support (“a support person”).  Under subsection 21AV(3), the support person must be permitted to be in close proximity to the child whilst the child is giving evidence.  Subsection 21AW(1) provides that s 21AW applies to a proceeding on indictment if any one of various measures is taken, including that “an affected child’s evidence is taken in a way provided for under subdivision 3 or 4” and that “an affected child has a support person under section 21AV while the child gives evidence.”  Subsection 21AW(2) requires judges presiding at the proceeding in which an affected child gives evidence to instruct the jury that:

“(a)the measure is a routine practice of the court and that they should not draw any inference as to the defendant’s guilt from it; and

(b) the probative value of the evidence is not increased or decreased because of the measure; and

(c) the evidence is not to be given any greater or lesser weight because of the measure.”

[24] The directions required by s 21AW(2) are mandatory.  Where a necessary direction under that provision is not given, the trial is irregular and the conviction can be upheld only if the court concludes for itself upon a review of the record that there has been no substantial miscarriage of justice.[4]

[25] Before the complainant’s pre-recorded evidence was played at the trial, the trial judge gave the jury the instructions required by s 21AW(2) in relation to the measure of taking such evidence in the way provided for under subdivision 3.  The appellant accepted that this instruction was given in the terms required by s 21AW.  The trial judge directed the jury as follows:

“Now … in cases like this ... the complainant does not actually come into the Courtroom and give evidence in front of you. It is standard procedure in these cases that the child gives evidence before the trial, and what occurs is that the child - in this case [the complainant], would’ve been in another room in this building linked by video … [i]t doesn’t have to be the same Judge … it doesn’t have to be the same prosecutor … [i]t doesn’t have to be same defence counsel … [the complainant] would be on that screen so the people in the Courtroom could see her on the screen,  and the barristers from the Courtroom asked her questions in the room that she was in, and she could see from her room what was happening in the Courtroom.

So that’s how children’s evidence is given. It didn’t used to be. Years ago it used to be that the child would actually physically come into the Courtroom, but Parliament changed that law some years ago. [It] can be confronting for a child to give evidence in front of people he or she have never – has never seen before. So that's why it’s done.

Now, under our law I have to give you the following direction. This measure which I’ve explained is a routine practice of the Court. You should not draw any inference as to the defendant's guilt from it. So you don’t infer that because the child’s evidence is being given in this way that the defendant is guilty. You don’t draw any inference at all.

The probative value of this evidence is not increased or decreased [because] of the measure, and the evidence – the girl’s evidence is not to be given any greater or lesser weight because of this measure. Probative means affording proof or evidence. To say that the probative value of this evidence is not increased or decreased because it is pre-recorded and played to you means it is not better evidence or worse evidence than evidence given by the witness in the presence of the jury. So the long and the short of it is – this is standard procedure, you don't draw any inference against the defendant. It’s not better or worse evidence than if the girl came into the Courtroom.”

[26] After some brief discussion about the equipment, the transcript states “RECORDING PLAYED”.  Immediately before another heading “RECORDING CONTINUED TO BE PLAYED”, the transcript records the trial judge’s statement:

“The lady sitting to [the complainant’s] left is a support person.  I don’t know the [lady’s] name, but that’s standard procedure as well. The support person varies from case to case, so there must be a number of people who act as support people when children give their evidence.”

Counsel for the appellant acknowledged that this observation by the trial judge was made as the recording began to be played.

[27] In relation to each of the other child witnesses, the trial judge gave an abbreviated form of the directions required by s 21AW.  Thus, for example, in relation to L, the trial judge referred to the directions which he had given in respect of the complainant and said:

“The procedure is that he was not in this Court room. He was in another room in this building with the Judge and the Prosecutor and the Defence counsel in this room. Both rooms linked by video. This measure is a routine practice of the Court. Whenever children give evidence, that’s the way it’s done. You should not draw any inference as to the defendant’s guilt from it. The probative value of the evidence is not increased or decreased because of the measure. The evidence is not to be given any greater or lesser weight because of the measure. ‘Probative’ means affording proof or evidence. To say that the probative value of evidence is not increased or decreased because it is prerecorded and played to you, means it is not better evidence or worse evidence than evidence given by a witness in the presence of the jury.”

[28] In relation to A, the trial judge directed the jury that:

“The same direction applies, ladies and gentlemen. This is standard procedure in cases like this. It’s not better evidence or worse evidence than evidence the girl would give in front of you if she came into the Court room. You don’t draw any inference against the defendant because it’s done this way and the probative value of the evidence is not increased or decreased because it’s given this way.”

The trial judge gave directions in that form in relation to B and C.

[29] The appellant argued that the directions given by the trial judge in relation to the child witnesses’ support persons did not comply with s 21AW(2).

[30] The trial judge’s direction in relation to the complainant that the presence of the support person sitting to the complainant’s left was “standard procedure as well” conveyed, in compliance with s 21AW(2)(a), that this measure was a “routine practice of the court”.  The trial judge did not then repeat the directions required by s 21AW(2)(b) and (c) but those directions, given only very shortly beforehand, must still have been ringing in the jurors’ ears.  There is no reason to doubt that the directions about the complainant’s evidence amounted to instructions to the jury in conformity with each of the subparagraphs of s 21AW(2).

[31] Those directions were given late in the afternoon of the third day of the trial.  The court adjourned after the complainant’s pre-recorded evidence was played and the pre-recorded evidence of the other child witnesses was played on the following day, commencing with the pre-recorded evidence of L which was played at about 10.25 am.  Although the directions which the trial judge gave in relation to that evidence did not expressly refer to the presence of the support person, they were sufficient to remind the jury of the directions about the support person given the afternoon before.  Furthermore, the evidence given by the child witnesses other than the complainant was of limited significance, at most, in relation to count 4 and of no significance in relation to counts 6 – 9.  (The trial judge directed the jury that the preliminary complaint evidence related only to counts 1 – 5.)  If the directions about those child witnesses did not comply in this respect with s 21AW(2), this is nevertheless a case in which it should be concluded that such an error “had no significance in determining the verdict that was returned by the trial jury”.[5]

Ground 5: the trial judge erred in failing to direct the jury adequately in respect of preliminary complaints

[32] The appellant argued that the directions given by the trial judge about the preliminary complaint evidence were inadequate because they did not include the following direction to the jury:

“However, you cannot regard the things said in those out-of-court statements as proof of what actually happened.”

[33] So much was clearly conveyed by the directions which the trial judge did give.  The trial judge reminded the jury of the evidence that the complainant had told some of her friends some of the things that she said had happened to her and that some of this evidence differed from what the complainant told the police and spoke of in her evidence.  The trial judge directed the jury that “… the fact that [the complainant] told her friends various things that she said [the appellant] did to her, does not mean that [the appellant] did those things.  It just means that [the complainant] told her friends that he did.”  The trial judge went on to explain that consistencies between the complaints and her evidence might be regarded as supporting her credibility and inconsistencies might cause a jury to doubt the complainant’s evidence.  Those directions were given shortly before the adjournment for lunch on the sixth day of the trial.  On the morning of the seventh day of the trial, the trial judge gave the redirections to the jury which identified the particular counts to which the preliminary complaint evidence related (counts 1 – 5 only) and reminded the jury of the directions given the previous day “that the fact that the girl told others of what [the appellant] had allegedly done to her did not mean that those things had happened …”.  The trial judge reminded the jury about the way in which the preliminary complaint evidence could be used in relation to the complainant’s credibility depending upon whether it was or was not consistent with what the complainant told the police and said in evidence.

[34] The trial judge’s directions on this topic were not inadequate.

Sentence

[35] On 7 December 2012, the appellant was sentenced to concurrent terms of imprisonment of five years on each of counts 4, 6, 7 and 9 and three years on count 8.  The appellant has applied for leave to appeal against sentence on the ground that it is manifestly excessive.

[36] The respondent acknowledged that there had been “insufficient explanation of the configuration of the sentence”.  That was a reference to the anomaly that a five year term was imposed for count 4, in which there was no physical contact between the appellant and the complainant.  The more substantial question is whether, taking into account the criminality in all of the offences, the term of five years imprisonment is manifestly excessive.  In considering that question it is useful to summarise that criminality.

[37] First, when the complainant was seven or eight years old, the appellant masturbated himself to ejaculation in front of her after she had asked him to pump up a flat tyre on her bicycle (count 4).  Secondly, when the complainant was 11 years old, during a visit to the farm and whilst the complainant’s grandmother was absent from the house, the appellant took the complainant to a downstairs room, licked and sucked her breasts and licked her genital area (counts 6 and 7), invited the complainant to suck his penis, which she refused to do (count 8), and the appellant then masturbated to the point of ejaculation in front of the complainant.

[38] The appellant was aged between 53 and 60 during the offending and he was 63 years old when sentenced.  He had a New South Wales criminal history of a conviction in 1991 for a minor drug offence and some minor offences of dishonesty committed many decades earlier, and a Queensland criminal history of one offence of common assault for which he was given a wholly suspended sentence of two years and three months imprisonment.  The Queensland offence was committed in July 2010 and the sentence was imposed in November 2011.  The prosecutor acknowledged that the New South Wales criminal history was not really relevant.

[39] There was medical evidence tendered on behalf of the appellant which referred to significant medical problems with the potential to affect the appellant’s health quite seriously without any warning, including heart disease, diabetes, sleep apnoea, asthma, lower back pain, gastro-oesophageal reflux and impotence after a trans-urethral resection of the prostate.  The appellant suffered depression related to his medical problems which tended to make those problems worse.  His diabetes, kidney disease, heart disease, asthma-chronic obstructive airways disease and sleep apnoea were very serious and potentially life threatening.  The sentencing judge found that prison life would be harder for the appellant than for an able-bodied younger person and that his ill-health might be adversely affected by his imprisonment.

[40] The prosecutor first submitted that the sentencing range started at no less than three years and extended well beyond that, but he ultimately submitted, with reference to R v PAC,[6] and particularly with reference to a sentence of four years imprisonment in RAD,[7] that the middle of the range for the appellant was somewhere around five years imprisonment.  (In fact, the sentence of four years imprisonment imposed upon RAD was set aside on appeal and reduced to two years imprisonment.)  Defence counsel submitted that a nominal sentence of four years imprisonment should be reduced to three years imprisonment to take into account the poor health of the appellant.  (These submissions about the range of sentences were common practice at the time but the submission by the prosecutor, and perhaps also that by defence counsel, now appear to have been impermissible in light of the majority decision in Barbaro v The Queen; Zirilli v The Queen.[8])

[41] The sentencing judge referred to the circumstances of the offences of which the appellant had been convicted and made the following observations.  The appellant performed those sexual acts to satisfy his own deviant sexual gratification.  The complainant was a vulnerable and innocent young girl who was the appellant’s partner’s granddaughter.  This was a serious and shocking breach of trust.  It had a traumatic affect on the little girl.  As her mother said in a victim impact statement, hatred and anger had consumed their lives since the police knocked on their door in November 2009.  The appellant’s behaviour was brazen and arrogant.  He had not shown remorse.  He did not co-operate with the investigating police officers.  He required the complainant, her mother, and others to give evidence.  After referring to the appellant’s medical condition and its likely affect upon him in prison, the sentencing judge referred to the maximum penalty of 20 years imprisonment (for counts 4, 6, 7 and 9) and ten years imprisonment (for count 8) as illustrating the seriousness with which the parliament regarded offences of this nature.  The appellant deserved the community’s condemnation and an appropriately severe sentence to punish him for what he had done, to deter him from acting that way again, and to deter those in the community who would act in the same way.  There was no challenge to any of those remarks.

[42]In PAC, the offender was convicted after a trial of four counts of indecent treatment of a child under 16 years with a circumstance of aggravation and one count of indecent treatment of a child under 16 years.  He was sentenced to concurrent terms of two years imprisonment.  That offender was aged between 56 and 59 years when he committed the offences against his stepdaughter, who was between 11 and 12 years old.  Whilst that complainant’s mother was away in hospital, the offender invited the child to sit on his lap and rubbed her leg, inside her thigh, and vagina.  On another occasion he persuaded the child to sleep in bed with him and again rubbed the inside of her thigh and her vagina.  Perhaps a year or so later, the offender went into the child’s bedroom and engaged in similar sexual misconduct.  On another occasion, whilst the child’s mother was out, the offender performed an act of cunnilingus on the child.  Finally, after officers of the Children’s Services Department had spoken to the child at her school and following a pause in offending, the offender rubbed the child’s thigh and digitally penetrated her.  The child was seriously affected by the offending and was having ongoing counselling.  The defendant had been awarded for good conduct and long service to the Royal Air Force.  After developing cancer in a leg muscle after an air crash in the course of his employment decades earlier, his leg was amputated.  He suffered from various serious medical conditions.  He had shown no remorse or cooperation with the administration of justice and was found to have committed serious breaches of trust on his vulnerable young stepdaughter which had a disastrous impact on her life.  McMurdo P, with whose reasons Jerrard JA and Atkinson J agreed, referred to comparable sentencing decisions and observed that the appropriate penalty was in the range of two to three years imprisonment.  The sentencing judge had taken into account that offender’s ill-health by imposing a sentence at the lower end of that range.  Accordingly the sentence was found to be not excessive and the application for leave to appeal was refused.

[43] Consistently with Barbaro v The Queen; Zirilli v The Queen,[9] I would disregard the references to the sentencing range in PAC and treat that decision, and those comparable sentencing decisions cited in it, as supplying evidence only of the range of sentences which have been imposed in the past and as a “yardstick” against which to examine the sentence in this case.  PAC was more serious than this case.  The five offences which the appellant committed against the complainant occurred on only two occasions and he touched the complainant only on the second occasion.  His conduct on the second occasion was very serious, but it was no more serious than the indecent conduct of PAC on two separate occasions, one of which was after the intervention of the Children’s Services Department.  On the other hand, it is significant that when PAC was decided the maximum penalty for the first three of his offences was seven years imprisonment, it was five years imprisonment for the fourth offence, and it was ten years imprisonment for the fifth offence.  The maximum penalties for the appellant’s offences are 20 years imprisonment for counts 4, 6, 7 and 9 and 10 years imprisonment for count 8.  With those substantial increases and the differences between that case and this case in mind, the “yardstick” suggested by PAC and the cases cited in it might perhaps be regarded as being of the order of three or four years imprisonment for the appellant’s conduct. (One does not expect to see any uniform, arithmetical progressions in sentences in line with increases in maximum penalties, although a general trend of increased penalties should be anticipated.)[10]

[44] In RAD, the offender was resentenced on appeal to two years imprisonment suspended after eight months for an operational period of three years.  That offender committed a series of sexual offences against his fiancé’s five year old child.  The child referred to the offender as his father.  All of the offences were committed early one morning when the child’s mother was at work.  The offender repeatedly caused the child to masturbate himself and also to masturbate the offender.  The offender also put his mouth over the child’s penis, touched his own penis to the child’s penis, and ejaculated in full view of the child.  That offender confessed his offences immediately upon the child’s mother returning home and attributed them to his conduct in consuming alcohol and watching pornography.  He made full admissions to police when the child’s mother reported the matter.  He had no prior criminal history.  The details of the offending came to light as a result of the offender’s confessions.  He voluntarily undertook psychiatric treatment commencing less than a month after the events, expressed guilt about his behaviour, was remorseful, and had taken steps to limit his alcohol consumption.  The child suffered ongoing emotional damage as a result of the offences.  The court took into account the “special leniency”[11] which was merited by that offender’s conduct in volunteering the information which led to his conviction.

[45] It would be open to regard the appellant’s offending in this case overall as being of similar seriousness to that in RAD, but the appellant did not plead guilty or cooperate with the authorities and did not merit that special leniency which was afforded in RAD.  The “yardstick” suggested by that case might be consistent with a sentence for the appellant’s offending of three or four years’ imprisonment, but it and PAC indicate that the applicant’s sentence of five years’ imprisonment is substantially more severe than past sentences for broadly comparable offending.

[46] On appeal, the appellant submitted that R v PAP,[12] R v WAA[13] and R v GY[14] demonstrated that the sentence of five years imprisonment was manifestly excessive.

[47] The offences committed against the 13 year old child in PAP were more serious than here.  In addition to offences of a similar nature to those committed by the appellant, that offender digitally penetrated the child’s vagina, rubbed his erect penis against her vagina, and caused her to hold his erect penis, rub it, and touch her mouth upon it.  He was sentenced to concurrent sentences of two years imprisonment for each of six indecent treatment of a child offences and four years imprisonment for the offence of rape (digital penetration).  There was no appeal against sentence.  PAP therefore provides no evidence of a useful “yardstick” for comparison with the present sentence.

[48] In WAA, the offender was the grandfather of the complainant’s two step-sisters.  The three girls came to live with the offender and his wife when the complainant was about 10 years old.  She apparently regarded the offender as her grandfather.  He was convicted after a trial of maintaining a sexual relationship with a  child under 12 years, four counts of indecent treatment of the child and two further offences of indecent treatment as an alternative to charges of unlawful carnal knowledge.  The Court found an error in the sentencing judge’s finding that the sexual relationship had been maintained for as long as a year to 14 months, holding instead that the evidence established a period of about nine months.  The offender regularly touched the complainant’s breasts and vagina.  (The gravity of that offender’s conduct was described as being generally comparable with the conduct of the offender in RvCAQ,[15] in which a 51 year old offender maintained a sexual relationship with a child aged between 10 and 11; he touched the child on her breasts and in the vicinity of her vulva on some 15 occasions, and placing hers hand on his erect penis on two occasions.)  WAA was resentenced on appeal to three years imprisonment on the maintaining offence and 18 months imprisonment for the other offences, the terms of imprisonment to be served concurrently.  Having regard to the frequency of the sexual misconduct in that case, the sentence in this case is seems severe by comparison.

[49] GY was one of the comparable sentencing decisions referred to in WAA.  In that case the offender was sentenced to four years imprisonment for maintaining a sexual relationship with a child under 16 years; the relationship was maintained for about eight years whilst the complainant was between six and 14 years old.  The offender’s conduct included rubbing his penis against the complainant’s vulva, sometimes to ejaculation.  He showed no remorse and was convicted after a trial.  Again, the appellant’s sentence seems severe by comparison, but the decision in GY was merely that the sentence imposed upon him was not manifestly excessive.

[50] The respondent referred to R v CBG,[16] R v Schirmer,[17] R v R[18] and R v SAQ.[19]  The last three decisions were all discussed in CBG.  In CBG the sentence imposed in the District Court of six years imprisonment was set aside and the offender was instead sentenced to three years imprisonment with a parole eligibility date on the date of publication of the orders; the court considered that a parole eligibility date after the offender had served 12 months of the sentence was appropriate as recognition of an early plea of guilty.  That 35 year old offender with a criminal history of sexual offending against children lived next door to the nine year old complainant.  He had informed the complainant’s mother that he was a reportable offender but assured her that he had changed.  One evening when the offender was at the complainant’s family home socialising with the complainant’s mother and a friend of hers, he told the complainant’s mother and friend that he was going inside to go to the toilet and get another drink.  He entered the complainant child’s bedroom on two occasions about two minutes apart on each occasion the offender knelt down beside the child’s bed, put his hand down the child’s pants and rubbed the child’s penis.  The child was awoken and heard the offender expressing pleasure.  The child disclosed the offences to his mother on the following morning.  The offender admitted the offending in a pretext telephone call initiated by the child’s mother, and the offender made admissions to the police.  He entered an early plea of guilty.  A victim impact statement by the child’s mother spoke of the devastating effects of the offences on the child and his family.

[51] Atkinson J, with whose reasons White and Gotterson JJA agreed, referred to Schirmer, R, and SAQ as follows:[20]

“In R v Schirmer a sentence of three years imprisonment on each of two counts of indecently dealing with a girl who was nine years old was set aside and a sentence of two years imprisonment imposed on appeal. The circumstances of the offending were that the applicant employed the complainant’s father to clean carpets at his business. He approached the complainant when she was sitting in her father’s van playing with dolls and put his hand up inside her pants and touched about the vagina. Shortly thereafter he persuaded the complainant to go to his office in the building where her father was cleaning carpets. He sat on the only chair in the room and invited her to sit on his knee. When she did this he again put his hand up inside her panties and again touched her on the outside of the vagina. The matter went to trial and the applicant was found guilty. He had previously been convicted of an indecent dealing with a child who was under the age of 12 years. On appeal Ambrose J who wrote the leading judgment of the court said of these offences:

‘It was contended, in my view correctly, that the acts constituting the offences were to be found at the lower end of the range of seriousness, touching her only on the outside of the vagina. There was no gross behaviour sometimes accompanying such offences relating to perhaps oral sex or ejaculation or rubbing parts of the applicant against body parts of the complainant.

It was pointed out that the events were isolated and unpremeditated and they occurred within a relatively short period of time. There was no evidence of any threats of violence, no evidence of harm to the child, and the applicant was not in any position of trust.’

His Honour referred to other sentences dealt with by the Court of Appeal and concluded that the sentence of three years imprisonment imposed on the applicant even allowing for his previous conviction, was manifestly excessive. A period of two years imprisonment was imposed in its place.

…

R v R was an appeal against conviction and sentence. The appellant was convicted after a trial on two counts of indecent dealing with a child under 16 with a circumstance of aggravation. The circumstances of those offences must be seen against the background that the appellant who was the complainant’s father had previously been convicted in respect of indecent dealing with the complainant when she was about six or seven years old. He had been sentenced to two and a half years imprisonment. After his release from custody he had at first supervised and later unsupervised access to the complainant.

On one occasion when she was 10 or 11 years old the complainant and her mother travelled from their home to visit her maternal grandmother. As the complainant had not seen her father for a while he visited her there. The complainant and the appellant went to the appellant’s work shed and on the way he showed her a vibrator. At the shed, he put some cushions from the lounge on the floor and took off the complainant’s pants. Telling her they did not have much time, he got some butter and rubbed it on her vagina and rubbed his fingers around on her vagina. He then handed her the vibrator and said to rub it around and put it inside as far as she wanted to. He made her play with his penis and testicles and suck them. He then rubbed his penis around her vagina and it slipped in. She said that it hurt. He was acquitted of incest on that count but convicted on the alternate count of indecent dealing.

The appellant was sentenced to five years imprisonment. The offences the subject of the appeal were committed whilst he was either on parole or just after completing parole for remarkably similar offences. He showed no remorse and did not have the benefit of an early plea of guilty. He was 47 years old and the complainant was only 10 or 11 at the time. He was her father. The offences constituted a repeated and gross breach of trust. The court held that the sentence imposed was not manifestly excessive.

…

R v SAQ also involved a persistent offender. In that case the applicant pleaded guilty to one count of indecent treatment of a child under 16 with the circumstance of aggravation that the child was under 12. The offence was committed on 29 December 2000. The child was a seven year old girl. A sentence of three years imprisonment with no recommendation for early eligibility for parole was upheld in the Court of Appeal.

The applicant was a 41 year old man at the time of the offending and the child’s uncle by marriage. The child’s mother dropped the complainant child and her brother off at their aunty’s place to spend time with their cousins. The applicant came to the house to visit his children. The complainant’s mother was aware that the applicant had previously been sent to prison for child molestation however she understood that her children and the applicant’s would be supervised at all times that they were in the company of the applicant. The offence occurred when the applicant placed his hands inside the complainant’s shorts and underwear and touched her on the vagina on five separate occasions within a relatively short space of time.

The applicant had a history of similar offences. On 8 April 1989 he committed the offence of aggravated assault of a sexual nature upon a child of 10 by touching her vagina. Then on 27 September 1992, he committed two offences of indecent dealing with a child under 12, namely a girl aged nine whose vagina he touched. His sentence on appeal was two years imprisonment.

The court observed that the conduct involved which led to the sentence for which leave to appeal was sought was conduct within the lower end of the range for this type of offending. The same is true of the instant case. As to the previous offending, Wilson J observed at p 4:

‘That the applicant had a relevant criminal history did not aggravate the criminality, but it was a reason for not extending leniency.’

The sentence of three years imprisonment with no recommendation for eligibility for parole was upheld but was described as ‘at the top of the range’, ‘a little below the top of the range’ and as ‘high [but] not outside the range’.”

[52] The totality of the appellant’s offending is objectively more serious than the offending in CBG.  Furthermore, unlike that offender, the appellant’s offending involved a serious breach of trust owed to the complainant by a person standing in the position of a grandparent.  The appellant did not have previous convictions, which were treated in CBG as an aggravating factor although not a factor which could be used to impose a sentence disproportionate to the gravity of the offences.  Overall, the appellant’s sentence again seems too severe by comparison.

[53] Schirmer is of doubtful use as a comparable sentence because it was decided nearly 20 years ago when the maximum penalty for that offence was 10 years imprisonment, the offending was significantly less serious than the appellant’s offending, and that appellant was not in a position of trust such as that occupied by the appellant.  R was a more serious case, both because the offender was the complainant’s father and had previously been convicted in respect of indecent dealing with her when she was six or seven years old and because of the objective seriousness of that offending, albeit that it occurred on only one occasion.  Reference to R at [52] reveals that that offender committed the offences either whilst he was on parole or just after he had completed parole for his previous, remarkably similar offences.  The maximum penalty at that time was 10 years imprisonment.[21]  The maximum penalty for the appellant’s offence is twice as severe, but the quite remarkable facts of R render it of no real assistance as a comparable sentence.

[54] This survey of sentencing decisions suggests that for the applicant’s offence a sentence of five years imprisonment is markedly more severe than sentences previously imposed for broadly comparable offending, even taking into account the substantial increase in the maximum penalty in recent times.  Even giving full weight to all of the circumstances to which the sentencing judge referred, including the appellant’s very serious breach of trust and the foreseeable and serious effects of the offending upon the complainant, the sentence of five years imprisonment was manifestly excessive.  No significant moderation of the sentence is called for by the circumstance that the appellant was given a wholly suspended sentence of two years and three months imprisonment for offending of an entirely different character on a separate occasion in November 2011.  Bearing in mind the appellant’s limited mitigating circumstances – notably the effect of his poor health – an appropriate sentence is three years and six months imprisonment.

Proposed orders

[55] I would dismiss the appeal against conviction.  I would grant the application for leave to appeal against sentence, allow that appeal, set aside the sentence imposed upon the appellant for counts 4, 6, 7, 8 and 9 in the indictment, and instead sentence the appellant as follows:

1. For each of counts 6, 7, 8 and 9, order that the appellant be imprisoned for a period of three years and six months.

2. For count 4, order that the appellant be imprisoned for a period of one year.

3. The terms of imprisonment are to be served concurrently.

[56] DAUBNEY J:  I concur.

[57] APPLEGARTH J:  I have had the advantage of reading the reasons of Fraser JA with which I agree. I also agree with the orders proposed by his Honour.