R v SCK[2016] QCA 34

SUPREME COURT OF QUEENSLAND

1. HOLMES CJ:  I have had the advantage of reading Fraser JA’s reasons for judgment and agree, for the reasons he has given, that the appeal against conviction should be dismissed and the application for leave to appeal against sentence granted.  Because of the errors which Fraser JA has identified, the sentencing discretion must be exercised afresh.  In doing so, I would not set the sentence at 10 years imprisonment as Fraser JA proposes, although I would not suggest that it is beyond a proper exercise of discretion.
2. Having regard to the comparable authorities to which Fraser JA has adverted; the relatively limited maintaining period in the present case, of four months; the fact that the offences of which the appellant was convicted, while extremely serious, did not exhibit the frequency or violence of offending seen in other cases; that he was not in any formal relationship of trust; that he had no significant criminal history; and that he fell to be sentenced in respect of offences involving a single complainant,  I would consider a sentence of nine years imprisonment to be appropriate and adequate.
3. For that reason I would allow the appeal against sentence, and substitute a sentence of nine years imprisonment, that sentence commencing (lest there be any doubt) on 10 March 2015, the date on which the trial judge imposed sentence.  His Honour’s declaration of 25 days pre-sentence custody should be maintained.
4. FRASER JA:  The appellant was charged on indictment with 20 sexual offences against a child.  Immediately prior to the close of the Crown case at the trial in February 2015 the prosecutor entered a nolle prosequi on three counts.  The jury found the appellant not guilty of six counts of indecent dealing and guilty of the remaining 11 sexual offences.
5. The appellant was sentenced on 10 March 2015.  On count 1 he was sentenced to imprisonment for 10 years, with the automatic declaration that it was a serious violent offence (therefore deferring eligibility for parole until after he had served eight years of that term of imprisonment).  He was sentenced to concurrent terms of 10 years imprisonment on each of the other offences of which he was convicted.  The appellant has appealed against the convictions and has applied for leave to appeal against sentence.

Conviction appeal

6. The grounds of the appellant’s appeal against conviction are as follows:

“A.A miscarriage of justice was caused by the failure of the trial judge to properly direct and warn the jury in relation to the uncharged acts, resulting in an unfair trial.

B.A miscarriage of justice was caused by the trial judge not excluding inadmissible evidence relating to uncharged acts, resulting in an unfair trial.

C.A miscarriage of justice was caused by the trial judge not summing up the jury as to the use of discreditable conduct, resulting in an unfair trial.

D.A miscarriage of justice was caused by the failure of the trial judge to properly direct and warn the jury in relating to propensity reasoning, resulting in an unfair trial.

E.The verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence.”

7. The complainant’s mother gave evidence that she met the appellant many years before the events alleged in the charges.  The complainant’s mother and her five children, including the complainant and his elder brother, X, moved to Dalby in early 2000.  That year over Easter the appellant visited Dalby and cared for the complainant and his siblings whilst the complainant’s mother visited her (then) partner who was working away from home.  There were other occasions during 2000 when the appellant cared for the complainant, either alone or with X, at the appellant’s brother’s residence in Burpengary.  These occurred on weekends, long weekends, and during school holidays.
8. The complainant was 25 years old at the time of the trial.  He gave evidence that he was five years old when he first met the appellant.  Many years later, in 2000 when the complainant was in Grade 6, he lived with his siblings, his mother, and her partner in Dalby.  The complainant remembered the appellant coming to his house in Dalby and, with the complainant’s mother’s consent, taking the complainant and X (who is one year older than the complainant) to stay at the appellant’s brother’s property at Burpengary.  The complainant and X stayed with the appellant in a two-room shed, located on the appellant’s brother’s property.  The complainant slept on a bed with the appellant in one room and X slept on the lounge in the other room.  The complainant and X stayed with the appellant at the shed during 2000 on approximately three additional occasions.  These were on weekends, long weekends, or during school holidays.
9. The complainant’s mother gave evidence that she moved with her children from Dalby to Caboolture and thereafter the complainant and X continued to have contact with the appellant.  They sometimes stayed the night at the appellant’s residence in Caboolture.  The effect of admissions by the Crown and the appellant were that between 26 January 2001 and 4 October 2002 the complainant’s mother rented accommodation at three different addresses in Caboolture and that the appellant lived in Caboolture between 31 October 2000 and 20 July 2001.  The complainant gave evidence that at about the end of 2000 or in January 2001, the complainant’s family moved from Dalby to Caboolture.  The complainant gave evidence that whilst he was living in Caboolture he frequently saw the appellant at the complainant’s house and the complainant and X also stayed overnight at the appellant’s residence in Caboolture.
10. The complainant and X gave evidence to the following effect in relation to the charges against the appellant:
    1. Count 1 (guilty): Maintaining an unlawful sexual relationship with a child under 16 years between 31 January 2000 and 19 March 2002, with the circumstances of aggravation that in the course of the relationship the appellant raped and indecently dealt with the child when the child was under his care.  (The jury found the appellant not guilty of the charged aggravating circumstance that the child was under 12 years.)

The complainant was aged between 10 and 12 years during the period stated in count 1.  He was 12 years old for about the last eight months of that period.

The Crown did not give particulars of this offence.  The Crown case was based upon the complainant’s and X’s evidence relating to the other sexual offences charged against the appellant (each of which was alleged to have occurred during the period charged in count 1) and upon their evidence that during the same period the appellant committed the numerous similar sexual offences against the complainant described in [11] – [12] of these reasons.

2. Count 2 (guilty): Indecent treatment of a child, with the aggravating circumstances that the child was under 12 years and under the appellant’s care.

The complainant was aged between 10 and 11 in the period during which count 2 was alleged to have been committed.

The particulars alleged that the appellant touched the complainant’s penis inside his clothing.  The complainant gave evidence to that effect.  The complainant said that this occurred before his eleventh birthday on his first visit with X to the appellant’s shed.  X was not present, the appellant having dropped him back at Dalby and the complainant’s mother having agreed with the complainant’s request that he stay with the appellant for an extra week.

3. Count 3 (guilty): Rape.

The complainant was aged between 10 and 11 in the period during which count 3 was alleged to have been committed.

The particulars alleged that the appellant inserted his penis into the complainant’s anus.  The complainant gave evidence to that effect and that he did not consent but that “…it just happened”.^[1]  He said that this occurred later on the same night after count 2 and after the appellant indecently dealt with the complainant, including by touching his penis, fellating him and causing him to fellate the appellant.  Whilst being raped, the complainant felt a sharp pain.  The complainant asked the appellant to stop because the complainant had to go to the toilet.

4. Counts 4 and 5 (not guilty).

The particulars alleged that the appellant had the complainant and X each touch the appellant’s penis with their hand or hands whilst the appellant showed them a pornographic film.

The complainant did not give evidence to that effect.  X gave evidence of an occasion when the appellant played a pornographic video to the two children and at the appellant’s request both children kissed and played with the appellant’s penis.

5. Counts 6 and 7 (not guilty).

The particulars alleged that whilst the appellant had a shower with the complainant and X, one or more of them touched the other or others’ penis, and that this was the first time the appellant had a shower with the complainant and X.

The complainant did not give evidence to that effect.  X gave evidence that there were at least 10, and possibly 15 or 20 occasions, when he, the complainant and the appellant showered together at the appellant’s Caboolture home.  X’s evidence was that at the start it was just the three of them showering together but that this led to “other things”.  Consistently with the particulars, he referred to both himself and X touching the appellant’s penis and the appellant touching them; inconsistently with the particulars, on X’s evidence that was not the first time the appellant showered with the complainant and X.  X’s evidence was that the first shower the three of them had together where something sexual happened involved the complainant and X masturbating the appellant.  (The complainant gave evidence that there was only one occasion when he and X were in the shower with the appellant: this evidence supported counts 10 – 12 rather than counts 6 and 7.)

6. Counts 8 and 9 (nolle prosequi):

The particulars repeated the particulars for counts 6 and 7 save that, instead of alleging this was the first time when the appellant had a shower with the complainant and X, the particulars alleged that the appellant had the complainant sit on his lap and put his erect penis between the complainant’s buttocks.  X, but not the complainant, gave evidence which, in some, but not all aspects, accorded with the particulars.

7. Counts 10 and 11 (guilty): Indecent treatment of a child under 16, with the aggravating circumstance that the appellant had the child under his care (count 10) and indecent treatment of a child under 16 (exposing the child to an indecent act by the appellant), with the circumstance of aggravation that the appellant had the child under his care (count 11).

The complainant was aged between 11 and 13 in the period during which counts 10 - 12 were alleged to have been committed on one occasion.

The particulars alleged that whilst the appellant had a shower with the complainant and X, the appellant touched the complainant’s or X’s penis, the appellant had the complainant or X touch the appellant’s penis, and the appellant had the complainant and X kiss the appellant’s penis; that this was the occasion when the appellant asked X to kiss his penis.  The complainant gave evidence to that effect.  He said that the appellant asked X to kiss his penis and said that there was “grabbing each other’s penis”,^[2] that X complied, and that the appellant fellated the complainant.  X gave general evidence which comprehended those particulars.^[3]

8. Count 12 (guilty): Rape.

The particulars alleged that the appellant put his penis into the complainant’s mouth and that this occurred during the same shower referred to in the particulars of counts 10 and 11.  The complainant gave evidence to that effect.  He said that he did not give the appellant permission but “[i]t just, like, happened.”^[4]  X’s generally expressed evidence about the appellant’s sexual offending in numerous showers included evidence that the complainant complied with the appellant’s request to fellate him.

1. Counts 13 and 14 (not guilty).

The particulars alleged that when the appellant had a shower with the complainant and X, the appellant had one or both of them touch the appellant’s penis, the appellant masturbated himself in front of them, and on that occasion the appellant ejaculated.  The complainant did not give evidence to that effect.  X’s evidence about an occasion such as is described in counts 8 and 9 included evidence of an occasion when the appellant ejaculated in the shower.

10. Count 15 (nolle prosequi).

The particulars alleged that the appellant had inserted his finger into the complainant’s anus on an occasion when the appellant tried to put his tongue into the complainant’s mouth and massaged the complainant’s buttocks and anus while in the shower.  Neither the complainant nor X gave evidence that the appellant engaged in that conduct whilst in the shower.

11. Counts 16 – 17: Rape.

The complainant was aged between 11 and 13 in the period during which counts 16 and 17 were alleged to have been committed.  The particulars alleged that the appellant inserted his finger (count 16) and penis (count 17) into the complainant’s anus on an occasion when the appellant offered to purchase the complainant a game if he would agree to anal sex.

The complainant gave evidence to the effect of the particulars.  He said that the events occurred in the appellant’s Caboolture house.  The complainant said that he was pretty sure that this occurred after he had turned 12.  The complainant did not consent to the act charged in count 16.  In relation to count 17, he initially refused the appellant’s request for anal sex.  The appellant offered to purchase him a Pokémon Yellow game for his Game Boy if he agreed.  When asked if he gave consent the complainant said, “Well I agreed to the game thing.”^[5]

12. Counts 18 – 20 (guilty): Rape.

The complainant was aged between 11 and 13 in the period during which counts 18-20 were alleged to have been committed.  The particulars alleged that the appellant inserted his penis into the complainant’s mouth (count 18), and that the appellant inserted his finger (count 19) and his penis (count 20) into the complainant’s anus, on an occasion when the complainant cried out and X came into the room to ask if he was okay.

The complainant gave evidence to that effect and said that he did not give consent to any of these acts.  He said that this occurred in October or November 2001 and it was the last occasion when he and X stayed at the appellant’s house in Caboolture.  The complainant had not turned 13 by that time.  X gave evidence of an occasion when he ran into the appellant’s bedroom after the complainant had called out in pain; the appellant and the complainant were naked in bed together.

11. The complainant and X gave evidence of what were referred to at the trial as “uncharged acts”.  The complainant gave evidence to the following effect.  The appellant committed sexual offences against the complainant on each of the occasions when the complainant visited the appellant at the shed in Burpengary and at the appellant’s place in Caboolture.  On the first occasion when the complainant and X visited the appellant’s place at Caboolture after the complainant’s family had moved to that town, the appellant played a pornographic video and masturbated himself whilst he watched the two children.  Apart from the “Game Boy incident” (count 16) there were a few other occasions when the appellant inserted his finger into the complainant’s anus.  He did not consent to those acts.  On occasions the complainant alone showered with the appellant, during which they touched each other’s penis, fellated each other, and kissed.  The appellant took the complainant and X to an aquatic centre where the appellant worked, after hours, when only the three of them were on the slides; at the appellant’s suggestion they took their clothes off; the complainant sat on the appellant’s lap with X on the complainant’s lap and the appellant grabbed the complainant’s backside.  Both the complainant and X gave evidence that on one occasion the appellant masturbated into a sock in front of both boys.
12. X gave evidence to the following effect.  On one occasion the appellant “helped” the complainant to masturbate.  There were occasions when the appellant showered with the complainant and X, and the appellant asked the complainant to put his mouth on the appellant’s penis and X sat on the appellant’s lap whilst he had an erect penis; both boys would masturbate the appellant.  On a couple of occasions the complainant, and the appellant were at the aquatic centre naked as they went down the slides together.  The complainant and the appellant usually slept together in the same bed at the appellant’s Caboolture house and X usually slept in another room.
13. There was also evidence of what was referred to at the trial as “discreditable conduct”.  The complainant gave evidence that the appellant took him to a nudist beach.  The complainant said that “we just thought it would be a general beach.”^[6]  The appellant’s three nieces were also present.  They were at the beach for probably half an hour to an hour.  There were older men and women naked.  The children asked why everyone was naked and the appellant said it was a nudist beach.  (In cross-examination the appellant gave evidence that he took the complainant and X to a National Park and unintentionally took a track to a nudist beach.  It was only when they got onto the beach that they realised it was a nudist beach and they then put their heads down and walked straight back to where they were going.)  The complainant gave evidence that on a few occasions the appellant bought him Game Boy games, including Pokémon Yellow.  X gave evidence that the appellant used to buy him and the complainant gifts and toys, including a Game Boy Colour.
14. The complainant gave evidence that a couple of nights after the last occasion (counts 18-20) in October or November 2001 his mother told him he was to stop going to the appellant’s place.  The complainant nevertheless continued to see the appellant, sometimes near school.  In the following year, when the complainant was in high school, he stayed with the appellant overnight on occasions, but nothing of a sexual nature occurred.  When the complainant’s mother discovered that he had been having contact with the appellant, the complainant told her that the appellant used to touch him.  He did not disclose any further details.  The complainant’s mother gave evidence that on the day before she took the complainant to a police station to complain about the appellant (which the Crown and the appellant admitted occurred on 20 March 2000), the complainant told her, in the presence of X and their sister E, that the appellant had anal sex with the complainant, after which the complainant had to go to the toilet, and that the appellant “made them get naked and watch [indistinct]”.^[7]  As a result of that conversation the complainant’s mother took him to a police station, but the complainant could not go through with it.  He started crying, and they walked out without the complainant talking to a police officer.  A police officer, Sergeant Steinhardt gave evidence of a preliminary complaint by the complainant on 12 July 2010 in Bundaberg.  His evidence of what the complainant said was very similar to the evidence given by the complainant at the trial.  Sergeant Steinhardt said that at that time the complainant said that he did not wish to provide a formal statement that day.  Subsequently the complainant missed some appointments to make a statement and the complainant later told Sergeant Steinhardt that he was seeing a counsellor and was not ready to provide a statement.  Subsequently, in early 2012, the complainant provided to police a typed document (called at the trial the “preliminary complaint letter”), which was substantially consistent with the evidence the complainant gave at trial.
15. The complainant’s younger sister gave evidence that the relationship between the appellant and the complainant was very close and the appellant used to be around their family all the time and that there was a lot of trust placed in the appellant at the time.  She gave preliminary complaint evidence that around 2010 the complainant told her that the appellant used to make the boys watch pornography while the appellant masturbated, that the appellant used to make the boys have showers with him, that the first time when the appellant raped the complainant the complainant had to go to the toilet afterwards, and that the appellant used to make the complainant perform oral sex.  The complainant told her that this happened a lot.
16. The complainant’s former girlfriend [DP] and her mother [DA], and X’s wife [JL] gave evidence that in 2011 and 2012 the complainant made general statements to them about having been molested as a child.  X also gave preliminary complaint evidence.
17. Mr M, the appellant’s half-brother, gave evidence that when the appellant lived at his property for about one and a half years from the end of 1999 until 2001 the complainant and X stayed in a garage on Mr M’s property on occasions.  In cross-examination Mr M said that he saw nothing at all untoward.  He said that it seemed the appellant was like an uncle to the boys and that the complainant and X were close to the appellant and respected him.
18. The appellant gave evidence in his defence.  He gave evidence that he first met the complainant and X in 1994 and he kept in contact with the family.  He agreed with the evidence that he had brought both the boys from Dalby to stay in the shed with him on his half-brother’s property.  He said that they all slept in the same bed.  The appellant denied all of the allegations of sexual abuse alleged against him and he maintained those denials in cross-examination.  During cross-examination the appellant agreed that when the complainant visited him from Dalby the complainant was still in primary school.

Appeal Ground E:  The verdict of the jury should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence.

19. The evidence of the complainant of the sexual offending of which the appellant was convicted appears to be persuasive.  His evidence suggested that he regarded the appellant as a role model, rather like a father or uncle; that he was persuaded by the appellant to think that the appellant’s sexual offending was normal behaviour, and that it was only towards the end of the period charged in count 1 that, as the complainant matured, he began to appreciate that the appellant had abused his position of authority over the complainant.  The jury could reasonably accept the complainant’s explanation of his initial reluctance to tell the police of what had occurred; in summary, he was in turmoil and receiving counselling, and did not feel able to complain to police.  There was substantial support for the complainant’s evidence of the offences in the evidence given by X.  The consistent evidence of those people to whom the complainant made preliminary complaints supported the credibility of the complainant’s evidence.  The jury could also find support for the complainant’s account in the appellant’s evidence that on occasions they slept in the same bed when the complainant was a child.  Upon the whole of the record, it plainly was reasonably open for the jury to conclude that the appellant was guilty of each of the offences of which he was convicted notwithstanding the appellant’s sworn denials.
20. The appellant confirmed in oral submissions in the appeal that Appeal Ground E was confined to the contention advanced in the appellant’s outline of submissions that the guilty verdicts on counts 10-12 are inconsistent with the not guilty verdicts on counts 4-7 and 13-14.  The appellant’s argument (as it was put in the outline of submissions, but not pressed in oral submissions) was that the verdicts were inconsistent because all of the alleged offences were corroborated by X.
21. As is apparent from the summary in [10] of these reasons, however, the differing verdicts are readily reconcilable on the footing that the jury found the appellant guilty of each count which was supported by the complainant’s evidence, whether or not it was also supported by X’s evidence, and the jury found the appellant not guilty of all counts which were supported only by X’s evidence.  It does not follow that the jury did not find X’s evidence to be truthful and reliable.  Rather, the jury simply might not have been prepared to convict the appellant of an offence against the complainant of which the complainant did not give evidence.  It would be unsurprising if the jury adopted that approach in light of the emphasis in the summing up upon the evidence of the complainant.  The trial judge directed the jury that, in order to convict the appellant of an offence the jury must be satisfied beyond reasonable doubt of every element that goes to make up the alleged offence, the burden of proof was upon the prosecution, and the jury were obliged to consider each charge separately, evaluating the evidence relating to that particular charge to decide whether they were satisfied beyond reasonable doubt that the prosecution had proved its essential element.  The trial judge directed the jury that, if they had a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, that must be taken into account when assessing the truthfulness or reliability of the prosecution’s evidence generally.  The trial judge referred also to the delay between the end of the alleged offending period (around March 2002) and his complaint to police (which was completed on 14 February 2012) and directed the jury that they might think that the complainant’s evidence could not be adequately tested or met because of such delay, that the appellant had been denied a chance to assemble evidence soon after the alleged offences had occurred, and that the fairness of the trial might have been impaired by that delay.  In that context, the trial judge cautioned the jury against convicting upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to the trial judge’s warning about the delay, the jury was satisfied beyond reasonable doubt as to its truth and accuracy.
22. In this context, the circumstance that the jury did not find the appellant guilty of any offence of which the complainant had not given evidence falls a long way short of justifying a conclusion that there is any inconsistency between the verdicts.

Appeal Ground A: A miscarriage of justice was caused by the failure of the trial judge to properly direct and warn the jury in relation to the uncharged acts, resulting in an unfair trial.

23. The appellant argued that the evidence of “uncharged acts” (summarised in [11] – [12] of these reasons) presumably was adduced by the Crown to show that the appellant had a sexual interest in the complainant.  The appellant argued that the trial judge’s summing up was defective because of the absence of any direction about the permissible use of this evidence or any direction which explained how these matters were relevant to the facts in issue; it was submitted that there was a risk that the jury might adopt impermissible “tendency” or “propensity” reasoning in reliance upon this evidence.
24. The trial judge referred to the complainant’s evidence regarding those “uncharged acts” and directed the jury that: the complainant “has not been specific about when that activity occurred, . . .  or in what circumstances”;  the jury could only use that evidence if the jury accepted it beyond a reasonable doubt;  if the jury did not accept it, that finding would bear upon whether or not the jury accepted the complainant’s evidence relating to the charges beyond a reasonable doubt; and if they accepted the complainant’s evidence regarding the “uncharged acts” they could only use that evidence “in relation to the charges before you if you are satisfied that the evidence demonstrates that the defendant had a sexual interest in the complainant and that he had been willing to give effect to that sexual interest by doing those other acts”.
25. The last of those directions unduly confined the use to which the jury could put that evidence, given that the evidence of sexual offending by the appellant against the complainant which was not the subject of charges 2-20 was directly relevant as evidence of the unlawful sexual relationship charged in count 1.  The directions could not have prejudiced the appellant.
26. The appellant argued that the trial judge did not refer, but should have referred, to the evidence which X gave of “uncharged acts” by the appellant against the complainant.  The absence of such directions did not prejudice the appellant, particularly given that the jury did not convict the appellant of any offence of which only X gave evidence and the jury obviously accepted that the complainant’s evidence of the offences of which the appellant was convicted was truthful and reliable.
27. The appellant also argued under Appeal Ground A (although the argument was not comprehended by that ground) that the jury should have been given a direction about the permissible use of the evidence of the charges that were discontinued by the Crown.  The appellant did not identify the direction which it was submitted should have been given.  No such direction was sought at the trial.  The complainant did not give evidence which supported the discontinued charges and, as discussed in [21], the jury evidently were not prepared to act only upon X’s evidence.  Consequently, there seems no basis for thinking that the jury would have misused such evidence as X gave which might have supported those charges.

Appeal Ground B: A miscarriage of justice was caused by the trial judge not excluding inadmissible evidence relating to uncharged acts, resulting in an unfair trial.

28. The appellant argued that the evidence concerning the visit to a nudist beach and that the appellant bought gifts for the complainant and X was inadmissible because there was a reasonable inference open that this was an accidental and unintentional visit and that the gifts were not, as the Crown alleged, for the purpose of “grooming” the complainant or any other discreditable conduct, but were innocent gifts.
29. Defence counsel did not object to the admission of any of the evidence which the appellant now contends was not admissible.  The evidence was admissible.  The evidence that the appellant gave the complainant the Pokémon Yellow was admissible because it was directly relevant to count 16:  see [10](k) of these reasons.  The other evidence of “uncharged acts” and of “discreditable conduct” was admissible because it was relevant as proof of the character of the relationship between the appellant and the complainant which was charged in count 1.

Appeal Ground C: A miscarriage of justice was caused by the trial judge not summing up the jury as to the use of discreditable conduct, resulting in an unfair trial.

30. The trial judge referred to the evidence of “non-sexual discreditable conduct” as “the evidence of the spoiling by the defendant of the complainant by the purchase of take-away foods and gifts, Game Boy games and various outings which, according to the Crown case, were designed to groom the complainant for the purpose of sexual activities …”  The appellant argued that the trial judge should have directed the jury (in accordance with the terms of direction 66.2 of the Bench Book) that the evidence of X “can only be used by you in relation to the charge(s) before you in the specific way in which I now direct” and that the evidence “may be used by you to find (specify the use to which the prosecution say the evidence is relevant)”.  In substance that was the effect of the trial judge’s explanation of what the Crown alleged was the relevance of the evidence.  I am not persuaded that the trial judge’s omission to express that explanation as a direction might have resulted in a miscarriage of justice, particularly where the evidence was in any event admissible on the broader basis that it was relevant to the alleged unlawful sexual relationship the subject of count 1.

Appeal Ground D: A miscarriage of justice was caused by the failure of the trial judge to properly direct and warn the jury in relating to propensity reasoning, resulting in an unfair trial.

31. Under Appeal Ground D the appellant argued that the trial judge should have directed the jury that the incidents of which X complained were not the subject of charges in the indictment against the complainant, and therefore that the trial judge should also have warned the jury against engaging in impermissible propensity reasoning.  The appellant submitted that the absence of such a propensity warning in relation to the “uncharged acts” of which X gave evidence resulted in a miscarriage of justice.
32. As I have indicated, X’s evidence was not evidence merely of a propensity by the appellant to commit sexual offences.  It was evidence that the appellant had in fact committed the charged sexual offences against the complainant.  The jury cannot have been in any doubt that X’s evidence was not adduced to establish that the appellant committed offences against X but as evidence that the appellant committed offences against the complainant; X did not give evidence of sexual offending by the appellant when the complainant was not present.
33. If the trial judge had been asked to give directions about the use of X’s evidence, those directions might have included directions that if the jury accepted X’s evidence as being truthful and accurate they could use it as evidence that the appellant had committed the offences against the complainant of which X gave evidence, including as evidence which corroborated the similar evidence of the alleged offences given by the complainant.  The absence of any such direction was favourable to the appellant; indeed, it might have contributed to the jury’s decision to acquit the appellant of those offences of which only X gave evidence.
34. I am not persuaded that the absence of any direction of the kind to which the appellant referred under appeal Ground D might have resulted in a miscarriage of justice.

Appeal against convictions: Conclusion

35. The appeal against convictions should be dismissed.

Application for leave to appeal against sentence

36. The ground of the proposed appeal against sentence is that the sentence was manifestly excessive in all the circumstances.  The appellant argued that the appropriate sentence was nine years imprisonment.  The respondent argued that the sentence of ten years imprisonment with the automatic serious violent offence declaration, under which the appellant would not be eligible for parole until after he had served eight years of that sentence, was not manifestly excessive.
37. The appellant also argued that the sentencing judge erred by making an error in the determination of the period of the maintaining offence charged in count 1 and by taking into account a victim impact statement by X which was an irrelevant or immaterial consideration in the sentence.  With the leave of the Court, the parties made additional submissions in writing upon those topics.

Irrelevant or immaterial considerations

38. In my respectful opinion the sentencing judge erred by taking into account statements by X in his victim impact statement about the effect upon him of sexual offending which he alleged the appellant committed against him.  Contrary to a submission made by the respondent, the circumstance that the sentencing judge had earlier referred to the aggravating features of the offending against the complainant is incapable of justifying a conclusion that the sentencing judge did not take into account X’s statements about the effect upon him of the alleged sexual offending against him.
39. That the sentencing judge took those statements into account is made clear in the sentencing remarks.  The sentencing judge summarised the appellant’s offending against the complainant, described the aggravating features of that conduct and the absence of any mitigating circumstances, and referred to “the damage you have done to … these two boys, particularly … the complainant” and to “the victim impact statements…”.  After summarising the effect of the complainant’s victim impact statement, the sentencing judge went on to refer to statements in X’s victim impact statement, that “the aftermath of being sexually assaulted by [the appellant] has had a very negative impact on himself and the family and have cast a huge, dark, demon constantly bringing the family down.  It has affected his life in many ways, having nightmares, to social awkwardness and questioning himself or his integrity as a man.  He found the whole process of having to talk about what happened to him horrific and embarrassing”.
40. As the respondent submitted, s 15 of the Victims of Crime Assistance Act 2009 (Qld) provides for a victim impact statement by a “victim”, the definition of which in s 5 includes a person who is “a family member or dependant of a person who has died or suffered harm because a crime is committed against that person.”  “Harm” is defined as meaning “physical, mental or emotional harm”.  Those provisions authorised the tender of a statement by X which described harm he had suffered as a result of the offences the appellant committed against the complainant.  That is not in issue.  What is in issue is only the part of X’s victim impact statement which describes the effect upon X of offending which he said the appellant committed against him.  That could be taken into account if the appellant was being sentenced for offences against X.  It could not be taken into account in sentencing the appellant for offences against the complainant.  The sentencing judge did take this into account and there is no reason to conclude that it did not have a material influence upon the sentencing judge’s formulation of the sentence.

Determination of period of maintaining

41. The respondent argued that the sentencing judge found that the period of maintaining charged in count 1 spanned the whole period during which the appellant committed the specific offences, including counts 2 and 3.  The respondent referred to the sentencing judge’s remarks that the Crown relied for count 1 upon the evidence of counts 2 and 3 and “uncharged acts” and that the complainant was aged between 10 and 12, which was to be compared with the maturity of the appellant, who was aged between 26 and 28.  (The point of the latter remark was, as the sentencing judge observed, that the age difference made the appellant’s “sexual preying upon this child abominable, given also that the appellant had “deliberately groomed him” and had “embarked upon a deliberate, cynical and cruel campaign to groom [the complainant] to satisfy [the appellant’s] sexual lust”.)  Although there is no clear finding about the duration of the offending in count 1, those remarks do convey the impression that the sentencing judge proceeded on the footing that the maintaining offence in count 1 comprehended the period during which  counts 2 and 3 were committed.
42. The sentencing judge found (consistently with the complainant’s evidence) that at the time of counts 2 and 3 the complainant was 10 years old and at the time of the offences in counts 10 and 11 the complainant was 11 or 12 years old.  The complainant also gave evidence that the last occasion of offending, counts 18-20, occurred in October or November 2001 when he was 12 years old.  It is not possible upon the evidence to be sure of the month in 2000 when the offending commenced, but having regard to the complainant’s date of birth and the latest date of the period during which counts 2 and 3 were alleged to have been committed (19 July 2000), the total period of sexual offending charged in all counts of which the appellant was found guilty must have spanned at least 15 months between July 2000 and October 2001.
43. It does not necessarily follow, however, that the jury was satisfied of the element of count 1 that, as it was formulated in the trial judge’s directions to the jury, when the appellant committed counts 2 and 3 there was already an ongoing relationship of a sexual nature between the appellant and the complainant which involved “continuity or habitually of sexual conduct” rather than “isolated incidents.”  Upon this topic the parties’ submissions referred to other aspects of the trial judge’s summing up to the jury.  The trial judge directed the jury that a necessary element of count 1 is that the appellant did an act which was defined as an offence of a sexual nature in relation to the complainant on three or more occasions in the period charged, namely, between 31 January 2000 and 19 March 2002, and that in that respect the prosecution relied upon all of the offences charged and all of the “uncharged acts”.  In response to a request for further directions by defence counsel, the trial judge directed the jury that, consistently with a submission made by the prosecutor, “if all three of those acts which you all agree upon happened whilst [the complainant] was under 12, then the under 12 aggravating circumstance will apply”, but that “if only two … or one of those occur when he was under 12, then the under 12 aggravating circumstance doesn’t apply”.  The respondent submitted that this was an error because it was necessary for the jury only to be satisfied that, during the course of the unlawful relationship, the appellant committed at least one sexual offence whilst the complainant was under 12.  That point does not bear upon the significance of the jury’s verdict for the determination of the maintaining period.  The guilty verdict on the offences of rape in counts 2 and 3 (when the complainant was 10) establish that the jury was satisfied that the appellant committed at least two sexual offences when the complainant was under 12.  That being so, and having regard to the sequence of offending described in the complainant’s evidence and that count 3 charged one of the most serious offences, it seems very likely that the jury were also satisfied that the appellant committed at least three sexual offences whilst the complainant was under 12.  Nevertheless, the jury’s acquittal of the aggravating circumstance that the complainant was under 12 compels the conclusion that the jury was not satisfied that the appellant maintained the unlawful sexual relationship whilst the complainant was under 12.  It therefore must be accepted that, as the appellant contended, the maintaining period of which the appellant was convicted could not exceed the period of about four months between when the complainant turned 12 and the end of November 2001.

The appropriate sentence

44. It follows that the application for leave to appeal should be granted, the appeal should be allowed, and the Court must resentence the applicant afresh unless it concludes in the separate and independent exercise of its discretion that no different sentence should be passed.^[8]  In the exercise of that discretion I would hold that the sentence imposed by the sentencing judge is the sentence warranted in law for the appellant’s offending when all of the relevant circumstances are appropriately taken into account.
45. The appellant fell to be sentenced on count 1 for maintaining an unlawful relationship of a sexual nature with the complainant for a period which did not exceed about four months, whilst the complainant was 12 years old, with the aggravating circumstances that the appellant had the complainant under his care, in the course of the relationship the appellant indecently dealt with the complainant, and in the course of the relationship the appellant raped the complainant.  The trial judge did not make any finding upon the question whether any of the offences of rape of which the appellant was convicted formed part of the last circumstance of aggravation, but upon the complainant’s evidence and the trial judge’s findings that circumstance of aggravation could not have included the offence of rape charged in count 3, when the complainant was aged between 10 and 11 years.  The rapes charged in counts 12 and 16-17 were committed when the complainant was aged between 11 and 13; the evidence does not permit a finding that those offences were committed during the period of the maintaining offence.  The offences of rape charged in counts 18-20, occurred, upon the complainant’s evidence, when he was 12 years of age, so they are comprehended within the maintaining offence.  In addition, the “uncharged acts” of which the complainant and X gave evidence included digital rape and the complainant being required to fellate the appellant.  (See [10] of these reasons).  In addition to the maintaining offence in count 1 (of which the specific offences in counts 18-20 were particulars), the appellant fell to be sentenced for the specific indecent treatment offences in counts 2, 10 and 11 and the specific offences of rape in counts 3 (sodomy), 12 (fellatio), 16 (digital rape), and 17 (sodomy).
46. The sentencing judge found that the complainant’s step-father worked away from the home where the complainant and his family lived and the appellant became a regular visitor and a friend of the family.  He offered to assist the complainant’s mother by having the complainant and his brother over to sleep at the appellant’s residence.  The appellant embarked upon a “deliberate, cynical and cruel campaign to groom the complainant to satisfy his sexual lust.”  The complainant was of such a young age that he was not sure what was going on.  The appellant’s behaviour made it seem to the complainant that what was happening was normal.  The appellant corrupted the complainant from a very early age.  The appellant showed no remorse and no recognition of the perfidious conduct in which he engaged.  In cross-examination he dishonestly denied having committed the offences, knowing full well that he had done so.  His conduct amounted to a gross and fundamental breach of the complainant’s trust.  In return for the complainant’s attempt to find friendship, a father figure, and affection, the complainant received unrelenting abuse.  The sentencing judge found that there were no mitigating circumstances.
47. The sentencing judge also found that the complainant had suffered substantially from the appellant’s sexual abuse.  The complainant blamed himself every day for what had happened to him.  He has suffered anxiety, social anxiety, and depression since the age of 16.  The complainant could not leave his house for weeks and months on end.  He hid behind doors and worried about people judging him.  The complainant had panic attacks and was scared to confront people.  He hated himself and the world and wondered every day why he was the victim.  The complainant was overcome by fears, demons and self-doubts.  The complainant was admitted to a mental program.  He became an alcoholic as a way of attempting to hide the reality of the abuse and its effect upon him.  The complainant cried himself to sleep many nights.  He could not sleep until the early hours because he was afraid to sleep for fear of having nightmares about having been molested.  The complainant had never held a job because of his depression.  Anxiety had kept him at home, in and out of counselling, and on and off anti-depressants.
48. It is not necessary to refer to all of the many decisions cited by the appellant in which sentences of between seven and nine years imprisonment for broadly similar offending were found to be not manifestly excessive, without any implication that a more severe sentence could not have been imposed.  The appellant emphasised the sentences in R v CX [2005] QCA 222, R v A [2001] QCA 136 and R v Souter [2002] QCA 516.  In R v CX, the court found that a sentence of seven and a half years imprisonment was not outside the range of a sound exercise of sentencing discretion.  That decision did not imply that a more severe sentence might not have been imposed.  The offender, who was 46 years old at the time of offending and 60 years of age at the time of sentence and had no previous criminal history, was convicted of six counts of indecent dealing with a child under the age of 16 years as a guardian, one count of sodomy of a person under 18 years of age, one count of rape, and one count of maintaining a sexual relationship with a child under the age of 16 years as a guardian.  The period during which the offences were committed occupied about two months and two weeks, less than in the appellant’s case, and the complainant was then 15 years of age, older than the present complainant.  There were also many fewer sexual offences than in this case, and it must also be recalled that, although the appellant’s maintaining offence occupied no more than four months, the total period during which he committed offences at different times occupied about 15 months.
49. In R v A, an offender who was 48 years old at the time of the commencement of the offending and 50 years old at the time of the application for leave to appeal against sentence, committed sexual offences against a complainant who was 12 years old at the time of those offences and 14 years old at trial: one count of maintaining a sexual relationship, four counts of indecent dealing, one count of permitting indecent dealing, and nine counts of unlawful carnal knowledge.  The court refused an application for an extension of time in which to appeal.  There is little discussion of the facts of the offending.  Dutney J remarked that the application for leave to appeal against the sentence of eight years imprisonment was “singularly unpromising”.  That decision supplies little guidance for the appropriate sentence in this case.
50. The offender in R v Souter was sentenced to an effective term of eight years imprisonment for a series of sexual offences: two counts of maintaining a sexual relationship with a child under 16 years with the circumstance of aggravation that in the course of the relationship he sodomised the complainant, four counts of sodomy, and nine counts of indecent treatment of a child under 16 years with the circumstance of aggravation that the child was in his care.  When that offender committed the offences he was 37-38 years old.  The complainants were 15 and 13 year old brothers.  One of the maintaining offences occupied two or three months.  The other maintaining offence occupied three or four months.  There was one count of sodomy in the first of those offences and an estimated 40 acts of anal intercourse in the second of those offences.  Because of the number of complainants and the frequency of that very serious offending, R v Souter was a more serious case, but that offender indicated at committal that he would plead guilty and neither complainant was required to give evidence.  Furthermore, Davies JA, with whose reasons Williams JA and Helman J agreed, considered that comparable cases showed that a sentence of 12 years imprisonment would not have been outside the appropriate range, thereby revealing that the sentencing judge’s starting point, a sentence of eight to nine years imprisonment before taking the pleas of guilty into account, may have been unduly lenient.  R v Souter is also not useful as a guide to the appropriate sentence in this case.
51. The appellant also relied upon the decision in R v Herford [2001] QCA 177 to set aside an effective sentence of 10 and a half years imprisonment and substitute an effective sentence of nine and a half years imprisonment.  There were three complainants.  The most serious offence was one charge of maintaining a sexual relationship with P, a child under the age of 16, with the circumstances of aggravation that in the course of the relationship the offender sodomised P and that P was under his care.  There were four charges of sodomy and 10 counts of indecent dealing with P.  In addition, there was one count of unlawfully and indecently assaulting H and five counts of indecently dealing with H, a child under 16 and a person under the offender’s care, those charges covering a variety of sexual conduct.  There were also two counts of indecent dealing with F, a child under the age of 16.  Most of the offences involving P occurred within the first six months of a period occupying one year.  P was 14 to 15 at the time of those offences.  Although the period of the maintaining offence was longer than in the case of the appellant, the seriousness of the totality of Herford’s offending was broadly similar to the seriousness of the totality of the appellant’s offending.  Two factors which suggest a lengthier sentence may be appropriate in this case are that the complainant was as young as 10 years old when the appellant first committed serious offences against him, as against 14-15 in the case of P, and that Herford pleaded guilty, although it was a late plea entered a few days before the trial date after three complainants had been cross-examined at committal.  The fact that there were two additional complainants in Herford make that a more serious case overall, even though it is not suggested in R v Herford that that offender engaged in the particularly degrading conduct, in which the appellant engaged, of committing an offence against one of the boys in the presence of another boy.  Williams JA, with whose reasons McMurdo P and Chesterman J agreed, found that the starting point before any discount for the plea of guilty should have been no greater than 11 years imprisonment (rather than the starting point of 12 years imprisonment chosen by the sentencing judge).  The period of 11 years was discounted to nine and a half years to take into account the plea of guilty.  That decision is consistent with a sentence of 10 years imprisonment being imposed in this case, in which the appellant cannot obtain the benefit of mitigation associated with a plea of guilty and where the trial judge’s findings and the evidence shows that, unlike in Herford the appellant went out of his way to solicit the complainant.
52. In R v Fenton [2015] QCA 125 the offender was convicted of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, one count of common assault and five counts of rape.  The court set aside the sentence of 10 years imprisonment imposed on the maintaining offence and substituted a sentence of imprisonment of nine years, leaving intact the lesser concurrent sentences imposed on the other offences.  The sentence imposed by the trial judge was set aside because of factual errors.  The substituted sentence was imposed on the basis that the offender maintained an unlawful sexual relationship for the charged period of 19 months during which the complainant was 14 and 15 years old; and on at least one occasion the appellant used physical violence, punching the complainant in the head when she refused to perform fellatio.  The period during which that offending occurred was very much longer than in this case and the use of violence also makes it a more serious offence in that respect.  On the other hand, as Holmes JA (as the Chief Justice then was) observed although that offender was to some extent in a relationship of trust with the complainant, he was not her carer, the complainant was not sodomised, and, at 14 and 15, the complainant was not as young as many complainants seen in such cases.  More serious aspects of the appellant’s offending include the complainant’s very young age of 10 when the offending commenced, that the appellant committed sexual offences against the complainant in the presence of the complainant’s brother and, as found by the trial judge, that the complainant suffered very serious consequences as a result of the offending, of a kind which are not referred to in R v Fenton.
53. To the extent that those decisions shed light upon the exercise of the sentencing discretion in this case they are consistent with my conclusion that the sentence of ten years imprisonment with the automatic serious violent offence declaration is the appropriate sentence.

Appeal against sentence

54. I would grant the application for leave to appeal against sentence and dismiss the appeal.

Proposed orders

55. I would order that:
    1. The appeal against convictions be dismissed;
    2. The application for leave to appeal against sentence be granted and the sentence appeal dismissed.
56. McMEEKIN J:  I agree with the reasons of Fraser JA and the orders proposed by his Honour.