R v SCQ[2017] QCA 49

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the orders proposed by Morrison JA and with the reasons given by his Honour.
2. MORRISON JA:  On 18 May 2016, SCQ was convicted, after a trial, of two counts.  Count 1 was that between 13 November 2008 and 18 August 2011, he maintained an unlawful sexual relationship with L.  Count 2 was that on a date unknown between 13 November 2008 and 18 September 2011, he raped L.  Both counts were domestic violence offences.
3. The Crown case as particularised was as follows:
   1. Count 1 – SCQ maintained an unlawful sexual relationship with L.  During that relationship he:

1. raped L by penetrating her vagina with his penis; and/or
2. lay on top of L; and/or
3. had L touch his penis; and/or
4. touched L’s bottom; and/or
5. touched L’s breasts.
   1. (b)Count 2 – SCQ penetrated L’s vagina with his penis.  L was under 12 years of age.  That was the first occasion that it occurred.

4. SCQ appeals against his conviction on two grounds.  The first is that the verdicts were unsafe and unsound and not supported by the evidence.  The second is that the learned trial judge erred in ruling that there was a case to answer with respect to Count 2, or alternatively by refusing to quash Count 2.
5. SCQ also seeks leave to appeal against the sentence imposed in respect of the maintaining and rape charges.  On each of those counts he was sentenced to nine years imprisonment.
6. Consideration of the sentence is made somewhat more complicated by the fact that the sentence in respect of those two counts was heard together with 14 other charges of indecent treatment, under two separate indictments.^[1]  Those additional counts were the subject of separate pleas of guilty.  The counts can be grouped as follows:

1. Indictment 2093/15 – two counts of indecent treatment of a child under 16, under 12, and under care;
2. Indictment 221/16 – two counts of indecent treatment of a child under 16, under 12, and under care, by exposing two girls to an indecent film;^[2] two counts of indecent treatment of a child under 16, under 12 and under care, by exposing two girls to an indecent act;^[3] three counts of indecent treatment of a child under 16, under 12 and under care, by procuring a girl to touch his penis with a vibrator;^[4] two counts of indecent treatment of a child under 16, by touching a girl’s breasts;^[5] three counts of indecent treatment of a child under 16 by touching a girl’s breasts and vagina through her clothes, and rubbing her vagina.^[6]

7. The challenge to the sentence imposed is only against the term of imprisonment of nine years for Counts 1 and 2 on Indictment No. 219/16 (the maintaining and rape counts).

Applicable legal test

8. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[7] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position that the jury as the arbiter of fact.^[8]  In M v The Queen the High Court held:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks a probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”^[9]

9. Recently the High Court has restated the pre-eminence of the jury.^[10]

The complainant’s evidence

10. L gave evidence in the form of a statement during a police interview, admitted under s 93A of the Evidence Act 1977 (Qld).  She also gave oral evidence, pre-recorded under s 21AK of the Evidence Act.  At the time of her police interview she was about 13 years and nine months old.  At the time of giving her oral evidence she was about 15 years old.
11. In her police interview she gave the following account:

1. she and her family were living at SCQ’s house for some time;
2. she used to sleep in the lounge room and could recall occasions when SCQ would touch her in a sexual way;
3. she recalled one occasion when she woke up to find SCQ on top of her, and his penis inside her vagina; he put his hand over her mouth so that she could not cry out and moved his penis in and out of her vagina; she tried to push him off, but he was too heavy; she “freaked out completely” and was scared; SCQ told her to be quiet, that it was okay and “everything’s gonna be alright”;
4. in respect of that occasion, L thought she was in Grade 5 or 6 and therefore aged about nine or 10;
5. L was able to describe some details concerning that occasion; she said his penis was “like a bar”, “hard, like really hard”, and described it as “weird looking, red, a pinky red colour … knobby looking”; she said that when he finished and walked away, his penis was still erect;
6. when SCQ got up to leave he told her to be quiet, “just be quiet about this”; she lay there in shock; she was not game enough to tell anyone because “I didn’t know what would happen because we might not, we might have gotten kicked out … and not have a place to live”;
7. afterwards she was sore, able to walk but in pain, and her vagina hurt when she walked;
8. on that occasion, as with others, it was night time and everyone else in the house was sleep;
9. on other occasions he “started making me touch his penis”;
10. on occasions when they were in the pool, he would touch her bottom and her breasts;
11. his conduct towards her “happened weeks on end”, and each time was “pretty much all the same, just sleeping, waking up, him on top of me, and then he just leaves”;
12. the conduct described as happening in the lounge room occurred six or seven times, eventually stopping when she threatened to tell her mother; when she did so, SCQ offered to give her money;
13. on one occasion when he assaulted her, his underwear was beside the bed, and he put it on before he left; she was able to describe the underwear as being like bike pants, grey in colour with a black stripe across the top;
14. the assaults continued for about a year;
15. the first occasion was, she thought, on a weekend or Friday because she did not have to go to school the next day; and
16. she told her mother some weeks or a month before the interview; that was prompted because two other girls, who had similar experiences with SCQ, told their parents.

12. In her pre-recorded evidence, L affirmed that what she had said in the police interview was correct.  She drew a diagram of the house, showing its rooms and the lounge room, identifying who slept where.  She said that she was the only one to sleep in the lounge room.^[11]
13. L was asked to clarify some of the things she had referred to in the police interview.  Specifically, she was asked to clarify what she had said about SCQ making her touch his penis, touching her on the bottom or on her breasts, and in the pool.  As to those things, her account was:

1. she woke up on one occasion to find that SCQ was holding her hand, putting it on his penis; he was making her hand rub up and down his penis for about five or 10 minutes; that happened on only one occasion, but she could not remember precisely when;^[12]
2. the touching on her bottom or breasts occurred regularly, and often when they went out to dinner; SCQ would drop behind the general group and grab her on her bottom and breasts; that happened on more than one occasion, sometimes every week, but other times weeks apart; she estimated that it occurred about 15 times;^[13] and
3. as to the incidents in the pool, she described the pool and where it was situated, and said that it occurred when those in the pool were playing a game, and SCQ grabbed her and threw her; she identified other children who were in the pool at the same time; when SCQ grabbed her to throw her he would grab “my bottom first and then my boob”; this happened on more than one occasion.^[14]

14. In cross-examination, the defence case was put to her that SCQ had never touched her bottom or breasts, that he had never put his penis inside her and never held her hand on his penis.^[15]  L disagreed with all of those propositions.  It was also put to her that in the pool any touching was inadvertence on SCQ’s part, a proposition with which L disagreed.^[16]
15. Her account of the events under cross-examination included the following:

1. the first contact of a sexual nature occurred during daytime, when he “touched my buttocks and my boobs”; that occurred in the kitchen while the others at home were in the lounge room watching television; touching of that kind continued for about a month and a half before the occasion she described in the lounge room when she woke up with SCQ on top of her;^[17]
2. that sort of touching was not a daily occurrence, but happened “quite a few times a week”;^[18] as to the incident in the lounge room when she woke up with SCQ on top of her, she said that his penis was not already inside her when she woke up; SCQ was telling her that it was going to be okay and that nothing was wrong, and he put his hand over her mouth;^[19]
3. the first occasion when she woke up to find SCQ present was when he had her hand on his penis;^[20] that happened only the once;^[21]
4. as to the incident in the lounge room, she was sure that what woke her up was her pants being taken down; he was not on top of her when she woke up;^[22]
5. she said that it hurt when he put his penis inside her vagina, and he had his hand “on top of my mouth and told me that it’s alright”;^[23] she described being sore and that it hurt to walk the next day, but there was no bleeding on that or any other occasion;^[24]
6. on the other six or seven occasions that she had referred to, it “wasn’t exactly the same, but it was the same events”; the difference was that he did not tell her that it was going to be alright on the other occasions; those events occurred from Grade 5 to half way through Grade 6, and therefore about seven or eight times over a year;^[25]
7. her reaction was that she “didn’t want to live there”, but she “didn’t understand what … had happened at first … I was in shock … I was so confused, but then afterwards I realised, and I was mortified”;^[26]
8. L agreed that on every occasion when she said that she had been raped, other family members were in the house;^[27]
9. she gave further details under cross-examination about the occasions when SCQ would touch her breasts or bottom while the family group were out; on those occasions he did not say anything; she identified 10 to 15 separate episodes, overlapping with the period when he was coming into the lounge room and raping her;^[28]
10. as to the incidents in the pool, L said that he had not tried to get her to touch his penis;^[29]
11. she first told her cousins on an occasion when they were “just talking about virginity and all that stuff because before we were talking about high school, and … my cousin said guess who I lost my virginity to, but didn’t say anything.  And then I mentioned who I lost mine to which was, of course, [SCQ] … someone told my mum, and my mum called me and asked about it, and I also told one of my carers at the time … what happened”;^[30]
12. in that conversation she had simply said his name in order to indicate that he was the person who had taken her virginity; she didn’t go into other details, but “when we went back to the house, and we are in the same room, we were speaking more about it, and they asked … what he did and how far did he go.  And, basically, all I said was he … all the way”.^[31]
13. when asked if she was embarrassed to have told her cousins, she said she felt “disgusting”, and when she told her mother, her mother already knew;^[32]
14. the next person she told, after her mother, was her carer who had found her crying after L had been on the phone to her mother; she said she told her carer everything; after that she told a friend (A) and her ex-boyfriend (Z);^[33] and
15. she could not recall the details of what she told A or Z.^[34]

16. In re-examination, L clarified why she did not seek help from family members when SCQ was raping her.  She said she was scared and at the time that was the only place they had to live so they could not go anywhere else until they found another house.  She added she was scared that she would not be believed.^[35]
17. She added some detail to the occasion when she said she had told her cousins about what had happened.  She said it was a time when they were fishing at a particular creek in Lota.^[36]

Evidence by L’s cousins

18. Two of L’s cousins, J and N, gave evidence.  In each case they had given a statement under s 93A of the Evidence Act, and then pre-recorded evidence as well.
19. J said that L revealed that she had been raped by SCQ on an occasion when she (J) and N were present.  This occurred in the June-July school holidays when they were all fishing at Lota.  She described the three of them sitting on a chair under a bridge and talking, when L said that SCQ had raped her.  J made her own revelations in response and then the three of them spent some time wondering whether they should tell their parents.  She described what she could recall of L’s comment:

“She said [SCQ] raped her … when she was living with [SCQ]”.

J said that was all she was told by L.  J said that they did not tell their parents because they did not think that they would be believed.

20. In her oral evidence, J confirmed that what she had said to the police about that matter was the truth.  In cross-examination she confirmed that L had said “that [SCQ] raped her”, and that she did not go in to further detail.^[37]
21. N was interviewed by the police about various matters, including when it was that L said anything to them about SCQ’s conduct.  As to that she said that it occurred when they were fishing at night time and they had gone for a walk.  They were sitting down at the stairs at Lota bridge and L said that “[SCQ] touched her when she was little, but … also raped her like not just touched he raped her and stuff …”.  They then discussed whether they should tell their parents, and agreed not to because of concerns about having to move and find a house.  She said that L only told her that had happened a few years ago “… a few years ago probably about 7 or 6 when they were living with him … and he started off touching her … but then when she was left in the house with him alone and her mum went out he would go further and … molest her …”.  When pressed about her statement that SCQ had raped her, N said “that’s all she said about … and he was touching her … a few years ago”.
22. In her oral evidence, N said that what she had told the police was the truth.  N said that she could remember that when she was about six or seven, L revealed that SCQ had touched her, but she could not remember any details.  She said that in 2014, she, J and L were fishing at night time and they sat under a bridge on some chairs and that was when “L told us that [SCQ] had raped her when she was little and she started bursting out in tears”.^[38]  She said that L used the word “raped”, but gave no more details.

Evidence of L’s mother

23. L’s mother was SCQ’s niece.  She said that in 2015 L told her about some things that SCQ had done to her.  In her evidence-in-chief she said that what L said was that “[SCQ] interfered with her”,^[39] but she could not recall precisely when that conversation occurred or what else she was told, as she (the mother) was “very upset”.
24. In cross-examination the mother gave evidence of who stayed at SCQ’s house, and who slept where.  She said that L would sleep in the sunroom with another sister until a rearrangement of the house meant that they both moved to the rear bedroom.^[40]  She said the house was only small, and low-set and the rearrangements of the house were to change an area that had been a dining room and lounge together, so that the dining room was made into the lounge room and an area was curtained off for SCQ’s room.^[41]  The effect of the change was that the lounge room moved into what had been the dining room, the kitchen table went downstairs into a patio, and SCQ’s room went into the old lounge room.^[42]  In its original configuration, there was a lounge in the lounge room, and a TV.  In that configuration one could not see into the lounge from the kitchen.^[43]  Under the new configuration one could step from the dining room into the kitchen, through a doorway.^[44]
25. Her mother also confirmed that there were times when L had been left alone in the house over the period of four years whilst they were living with SCQ.^[45]

Evidence of SCQ

26. SCQ gave evidence in his own defence.  His account included the following aspects:

1. when the house was rearranged, he moved from the front of the house;
2. L would sleep in the sunroom and sometimes in the lounge, depending on the weather;^[46]
3. he denied that he had ever touched L inappropriately, put his penis inside her, touched her inappropriately away from the house, or touched her inappropriately in the swimming pool;^[47] and
4. he could recall occasions when he was in the swimming pool with L and her cousins, and throwing them as part of play.

27. In cross-examination he said that he was in his early 40s when L moved in, and she was around 10 years old.^[48]  He agreed that L lived with him in 2010 and for a number of years.^[49]  He agreed that he generally knew the routine in the household, such as when people would go to bed at night, and generally fall asleep.^[50]  He also agreed that he had some authority over L.^[51]
28. In his cross-examination he said the following:

1. there were more than 10 occasions when the family went out for dinner for birthdays and the like;^[52]
2. there were times when he was alone with L, but he denied that this was on occasions when the family was out at dinner;^[53]
3. he denied touching L in a sexual way or trying to acclimatise her to sexual acts; he also denied that he had any sexual interest in L, saying “I am not and never will”;^[54]
4. he was taken through the sequence of the allegations against him and denied each one;^[55] and
5. he accepted that he would be in the pool with L and the other children, playing and throwing L around, but denied that he touched her sexually.^[56]

Discussion – Ground 2 – particularity of Count 2

29. This ground of appeal was listed in the Notice of Appeal, but was not addressed in the document filed as the outline on the appeal.  Not only is it not specifically addressed, I cannot detect that it was implicitly addressed.  Notwithstanding that, given that SCQ has represented himself, it may be prudent to make some brief observations in respect of this ground.
30. The essence of the ground, as argued at the trial, was that there was either no case to answer on Count 2, or it should be quashed or stayed, in each case for lack of particularity.  In that regard, counsel for SCQ referred to R v S^[57] and R v BM, ex parte Attorney-General.^[58]  Emphasis was given to the two aspects of the need for particularity, the first being to eliminate the risk of duplicity, and the second being to give an accused person sufficient indication of what is alleged against the accused, on the occasion when the accused is said to have committed the offence.^[59]  Reference was also made to the decision in R v Rogers^[60] where Dowsett J referred to the minimum requirement that there be sufficient particularity to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incident suggested by the evidence.  Dowsett J posed the ultimate question as being whether the particulars were reasonably sufficient for the purposes of the administration of justice and for the accused to make a proper defence.^[61]
31. In my respectful view, the learned trial judge was correct to conclude that there was sufficient particularity on either of the challenges to Count 2.  Her Honour referred to a number of factors warranting that conclusion.  They are: first, the timeframe for the offence, which was within the period in the indictment; secondly Count 2 was the first incident of rape, at the commencement of a 12 month period; thirdly, the incident occurred while the family was living with SCQ at a specific house in Wynnum; fourthly, it occurred in the lounge where L sometimes slept; fifthly, it occurred at night; sixthly, it was the first time that SCQ had raped her; seventhly, L identified this as the first occasion, as to which she had a specific memory; eighthly, L placed the incident in time as being after other incidents of touching (her breasts and bottom, and after when she woke up to find SCQ had her hand on his penis).  Finally, the learned trial judge referred to the fact that the defence case as put was a complete denial of any inappropriate conduct, in which case there was “no more than a theoretical possibility that the defendant would give different evidence from a complete denial of all improper conduct”.
32. Thus, the learned trial judge held, Count 2 was, on the Crown’s case, only capable of referring to the first occasion of rape, occurring in the lounge room of a specific house where she was sleeping during a specific period.  That was sufficient to identify the occasion as distinct from the others, and there was therefore no lack of particularity.  As mentioned, I respectfully agree with that conclusion.

Discussion – unreasonable verdict

33. In his outline on appeal, which was largely replicated in his oral submissions, SCQ advanced a number of contentions in support of this ground, including:

1. a Longman direction was not given;
2. section 13A of the Penalties and Sentences Act was not taken into account, based on an early guilty plea and mitigating circumstances;
3. there were errors by defence counsel, such as the failure to request a voir dire in relation to L’s police statement, counsel failed to challenge prosecution witnesses through cross-examination and also failed to pursue the defence case;
4. he was disadvantaged in respect of an alternative verdict and a fair hearing;
5. he had been denied procedural fairness;
6. he wanted to challenge the medical evidence; there was no forensic evidence linking him to the offences;
7. because of the discrepancies and conflicting evidence, the presiding judge did not give him a fair hearing;
8. there was no forensic medical evidence to link him to the offences, only “hearsay evidence and contradicting testimony” by L;
9. the evidence of L was inconsistent and misleading, and created reasonable doubt;
10. he had hepatitis C, and had suffered from it for over 10 years, so that if he had done what was alleged, L would now have that disease; and
11. over a period of time there were many children at his house and if anything had been happening it would have been discovered or someone would have noticed.

34. It will be evident from the list above that there was a degree of confusion in some of the contentions advanced by SCQ, and at times his submissions crossed from conviction to sentence.  However, grouping his contentions under logical categories permits a more focussed consideration.

Errors by counsel and lack of procedural fairness

35. There is simply no merit in this contention.  SCQ was represented by experienced counsel at the trial who cross-examined L, J, N and L’s mother.  In particular, challenges were raised based on inconsistencies in L’s account, inherent improbabilities such as the fact that on all occasions other people were in proximity, her lack of memory in terms of identifying specific events, the lack of any injury notwithstanding the allegation that rape had occurred on multiple occasions, her lack of memory when it came to what she told her cousins and boyfriend and her lack of timely complaint.
36. The defence case was put expressly to L.  Given that the defence case was that SCQ had never touched her except, perhaps, inadvertently during playing in the pool, and never expressed any sexual interest in her, the defence case was one which was easy to put to L, and then supported by calling SCQ himself.
37. A review of the transcript does not reveal any reason to conclude that there was any denial of procedural fairness.  SCQ was represented by experienced counsel who advanced his defence to its apparent full extent.
38. The complaint about not pursuing a voir dire in respect of L’s statement is puzzling.  There was no elucidation of it and no identification of the possible grounds for such a voir dire.  It can be dismissed from further consideration.
39. In my view, the contention that in some way SCQ was disadvantaged in terms of an alternative verdict or a fair hearing simply cannot be made out.

Challenge to the medical evidence

40. This contention, too, is misplaced.  The fact is that there was no medical evidence at all given the lapse of time between the alleged events and complaint to the police.  In that sense there was nothing to challenge.  Indeed, when the topic was pursued in oral submissions, it became apparent that it was simply the absence of medical evidence that SCQ wished to emphasise.  L was cross-examined about the lack of any injury and it is evident from the summing up that the impact of the delay in preventing timely medical examination was highlighted,^[62] as was defence counsel’s emphasis that there was no injury or bleeding.^[63]  Plainly, the jury were addressed as to the significance of the absence of any medical evidence suggesting injury.  In this respect there cannot be any credible suggestion of a lack of a fair trial.

Inconsistent and misleading accounts, and improbabilities

41. SCQ contends that the accounts given by L, J and N were insufficient to support the verdict.  In various ways, SCQ was contending that if this Court carried out the task which M v The Queen and SKA mandates, it would necessarily have a doubt about the evidence, which, in turn, is one the jury ought to have experienced.
42. For the reasons which follow I do not think that contention can succeed.
43. L’s evidence in her police interview had obvious limitations.  She could not remember specific dates and times, nor identify with precision all of the incidents which she said occurred.  However, there was consistency to her account in a number of respects.  First, the sequence of touching that led to the first rape incident was consistently recounted.  There was touching in a general way on her breasts and bottom, followed by the occasion when she woke to find SCQ holding her hand on his penis, and then the first occasion of rape.  She identified the first occasion of rape by reference to a number of things, including that it was on a weekend or a Friday, because she did not have to go to school the next day, and by the time sequence.  Further, she gave details that a jury might consider were indicative of truth, such as the description of his erect penis, the experience of its insertion, and her description of how it felt upon insertion.  Her description of confusion and shock as a consequence, and her concerns about the adverse impact of telling anyone, may well have struck the jury as inherently credible.  Then there was the fact that when it would have been easy to say that on every occasion SCQ remained naked, L identified a time when his underwear was beside the bed, giving a reasonably detailed description of it.
44. That evidence was then consistently recounted in her pre-recorded evidence, which also exhibited some features which, the jury may well have considered, pointed to her inherent credibility and reliability.  First, when it would have been easy to multiply the number of occasions on which she said that SCQ put her hand on his penis, she was clear that it only happened on one occasion.  Further, whilst she said that other occasions blurred one into the other, the first occasion of rape was clear in her memory.  Her evidence included one difference (in terms of the first incident of rape) from all the others that a jury might have weighed in favour of accepting her evidence.  That was that on the first occasion SCQ put his hand on her mouth so that she could not cry out, and at the same time told her that it was going to be alright.  In her oral evidence, L said that one difference from the first time to the other occasions was that “he didn’t tell me that it was going to be alright on the other occasions”.^[64]
45. Finally, L’s evidence received support in at least one respect, namely her evidence about her complaint to her cousins, J and N.  In that respect there was remarkable similarity and consistency in terms of the occasion, the place, the circumstances and the nature of the disclosure itself.  The jury may well have considered that was an important aspect lending weight to a conclusion that L’s evidence was credible and reliable.
46. It is evident from the summing up that great emphasis was placed upon the need to scrutinise L’s evidence very carefully before coming to a conclusion of guilt.  Thus, the jury were reminded that they had to accept the evidence of L as being true and accurate beyond reasonable doubt in order to convict.^[65]  The jury were also directed that if they had a doubt about the truthfulness or reliability of L’s evidence on one count, that had to be taken into account in assessing the truthfulness or reliability of her evidence generally.  Furthermore, the jury were directed that they had to scrutinise L’s evidence with great care before they could arrive at a conclusion of guilt.  That was because of the delay which had occurred between offending and the complaint, and then to trial, as well as L’s age at the time of the alleged incidents.  Contrary to one of SCQ’s submissions, the jury was told of the ways in which that delay could have prejudiced the defence case, according to Longman v The Queen.^[66]  After dealing with those matters the learned trial judge directed the jury:

“So, as I’ve said, you do need to scrutinise the evidence of [L] with great care, and you should only act on that evidence if, after considering it with this warning in mind and all the other evidence, you are convinced of its truth and accuracy.”^[67]

47. In her summing up the learned trial judge summarised the address of counsel for SCQ and the address of the prosecutor.  In doing so inconsistencies in L’s evidence were referred to, as well as what had been urged as the improbabilities of one account or another.  Specifically her Honour dealt with them in a section where she said she was referring to “arguments put to you regarding plausibility”.^[68]  Matters such as the improbability of the events occurring while there were other people in the house and close by, particularly it being a small house, and the suggestion being that SCQ was completely naked while committing rapes on up to eight occasions over a period of a year without anyone knowing about it.  Further, there was the improbability of L’s evidence to the effect that whenever these things happened, someone was at home.  That was to be contrasted with the fact that L’s mother said there were times when L was alone at home, yet it seemed that nothing had happened on those occasions.  Reference was made to the implausibility of the events of rape occurring with no one knowing, and no one noticing when L said she had difficulty walking the next day.  Reference was also made to the implausibility of L’s description of a penis when she had said that it was always dark when the offences happened.  Then there was L’s evidence that when the family went out she would lag behind, notwithstanding that she said that SCQ had been touching her inappropriately.  Defence counsel posed the question, that she would not do that if touching was going on.
48. Reference to the summing up reveals that many more inconsistencies and improbabilities were referred to by defence counsel in his address.  There is no need to rehearse them all.  There were counter-arguments put by the prosecutor as to why, even if there were such inconsistencies and improbabilities, the jury might nonetheless accept L’s evidence as credible and reliable.
49. In my view, L’s evidence does not bear any quality which makes it such that a jury could not accept it as truthful and reliable.  It was open to them to conclude that her evidence in relation to the rape count was reliable, as was her evidence of general touching and more specific touching such as the occasion when SCQ held her hand on his penis.  Having examined the evidence I am not able to conclude that it was not open to the jury to be satisfied beyond reasonable doubt that SCQ was guilty.  I do not consider that there is a significant possibility that an innocent person has been convicted.
50. The contention based on SCQ’s suffering from hepatitis C does not advance the matter.  There was no mention of it at the trial, and the fact that L may not have the condition does not mean the events did not occur.
51. This ground fails.

Application to appeal against sentence

52. The only submission advanced in respect of the application for leave to appeal against the sentence imposed was that the learned sentencing judge did not take into account the early guilty plea and the mitigating circumstances.^[69]
53. In his oral submissions, SCQ did not add anything further.
54. Reference to the Notice of Appeal makes it clear that it is only the sentences of nine years imprisonment on the maintaining and rape counts that are in issue.
55. SCQ was born on 13 October 1957, and was thus between 49 and 54 at the time of the offences against L.  His criminal history was tendered.  It reveals a history of property, dishonesty and drug offending commencing in 1976 when he was about 19 years old.  The first offences occurred in 1976, 1980 and then in 1984 when, for the first time, he was sentenced to a period of imprisonment.  Further offences occurred in 1985 and 1994, 1995, 1996, 1998, 2006 and 2008.  The 1996 offence was one for violence (assault occasioning bodily harm).
56. On 28 August 2009, SCQ was convicted of drug offences and was sentenced to six months imprisonment.  After a declaration of 63 days as time served was made, he was immediately released on parole.  The significance of that fact is that for Count 1 (the maintaining count), part of the offence was committed whilst he was on parole.
57. The nature of the offence in August 2009, was possession of almost three kilograms of cannabis.  One fact advanced on the sentence of that occasion was that SCQ was using the cannabis for personal use and had done so over some years.^[70]
58. Victim impact statements from L and her mother were tendered.  L’s statement reveals distrust of men, dismay that she could have been subjected to such conduct, adverse impact on her ability to interact with others, have friendships and the like.  She has flashbacks and wakes up crying, does not feel safe unless her family or her partner are with her.
59. In submissions, the Crown made note of the fact that SCQ had breached a position of trust, the offences occurred over a protracted period of time and involved rape on a 10 year old.  Further, because of the pleas of guilty to the multiple counts of indecent dealing under the other indictments, SCQ was a person who had committed offences against other children in respect of whom he had a protective relationship.  Those offences covered periods back to 2003, prior to the offences concerning L.
60. The prosecutor placed reliance upon a number of cases including R v SAG,^[71] R v CBO^[72] and R v BPP.^[73]
61. Defence counsel relied on R v CAM^[74] and R v PAM.^[75]  After some discussion of those cases, as well as those put forward by the prosecutor, defence counsel made the submission that “the appropriate head sentence, taking a global view of … all the matters before the Court, is one of nine years”.^[76]  It was conceded that SCQ was in a protective relationship in respect of all three girls against whom he had offended.  It was also accepted that the maintaining period was protracted.
62. Defence counsel contended that a 10 year sentence would be unjust, particularly as it would attract a serious violent offence declaration^[77] and then made this submission:

“… in my submission, the range is probably eight to 10 or nine to 10 but, in my submission, in all of the circumstances, particularly when one looks at some of the circumstances, particularly in CBO and … CAM … this type of offending falls at about the nine year mark.”^[78]

Approach of the sentencing judge

63. The learned sentencing judge referred to the offences as being “incredibly serious” and to the fact that those concerning L carried a maximum of life imprisonment.  Her Honour referred to the guilty plea in respect of the offences against the other children, but characterised them as “late pleas of guilty” given that they were on the morning of the trial in one case, and on the other, on the day before evidence was pre-recorded.  Her Honour then recounted the nature of the offending and the dramatic effect it had upon the complainants.  That effect was mirrored by the impact on the parents of the complainants and the broader families, caused by SCQ “having grossly and abominably abused the trust that they ought to have been able to place in you”.  Her Honour held that SCQ had damaged the children in an enormously significant way.  The offending against L was not a one-off thing, but regular.
64. The learned sentencing judge found it difficult to conclude that SCQ was “anything other than a high risk to members of the community”, and in so finding rejected a submission that he was unlikely to reoffend.  After reviewing the comparable cases, her Honour said:

“… I am satisfied that the appropriate head sentence to impose in respect of counts 1 and 2 concerning [L], is one of nine years imprisonment.  I have formed that view because of the sentences that were imposed in each of [CAM] and [PAM], which was eight years, but I regard it as appropriate having regard to the offences committed against [L], but also having regard to the broader conduct that I am sentencing you for, that a higher sentence is appropriate than in that case.”^[79]

65. The learned sentencing judge declared 145 days pre-sentence custody as time already spent under the sentences.

Discussion

66. Insofar as SCQ said anything about why he should be granted leave to appeal against the sentence,^[80] they should be rejected.  The nine year sentence was amply supported by reference to the matters raised in R v SAG.^[81]  They include:

1. consideration of general deterrence because of a gross breach of trust;
2. the vulnerability of L, particularly given her young age at the time;
3. the need for denunciation and disapproval on behalf of the community;
4. the persistent and escalating sexual abuse in respect of L, occurring, as it did, within an extended family group, and solely for SCQ’s sexual gratification;
5. the risk to which L was exposed of communicable disease;
6. the prolonged conduct over a one year period, in circumstances where it would have been difficult for L to avoid contact;
7. the fact that the conduct was initiated when L was in a vulnerable state, being asleep or in her bed;
8. the disparity in the age of SCQ and L; and
9. the devastating impact upon L.

67. It is notable that the nine year sentence matched that for which defence counsel contended.  In those circumstances the contention that the sentence was manifestly excessive faces difficulties.^[82]
68. The contention that a sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  In order to demonstrate manifest excess, the difference must be such that there must have been a misapplication of principle or the sentence is “unreasonable or plainly unjust”.^[83]
69. SAG concerned a sentence imposed after trial for the commission of a substantial number of sexual offences against three of the offender’s step-daughters.  The sentence originally imposed was 14 years, to be served cumulatively with a sentence of four years imprisonment which the offender was then serving in respect of other sexual offences to which he had pleaded guilty.  They were in respect of a fourth step-daughter.  The offending in that case was considerably worse than in the present case, including multiple counts of rape, indecent dealing and maintaining a sexual relationship.  The sentence of 14 years imprisonment was in respect of each count of rape.  The case is not of assistance here except for the enumeration of factors which lead to an increased sentence for an offence of maintaining a sexual relationship.^[84]
70. R v BAO^[85] involved a plea of guilty to a count of maintaining a sexual relationship with a child (with a circumstance of aggravation), one count of sodomy and one count of indecent dealing with a circumstance of aggravation.  That offender received nine years imprisonment as the sentence.  The complainant was aged about nine or 10 when the incidents commenced and they continued over a period of some three years.  The incidents of sodomy commenced when the girl was about nine or 10, and digital penetration of her vagina occurred one or two times a week over a period of about three years.  In addition, the offender performed oral sex on the girl, and she performed oral sex on him at about the same frequency.  The acts included providing her with a vibrator when she was about 11, and having her use it on herself on at least three occasions.  There were numerous other incidents of oral, vaginal and anal penetration.  The offender was a mature man of about 48 years when the offences first commenced.  He had no relevant previous convictions and the plea of guilty was early.
71. This Court declined to interfere with the sentence, referring to it as being “towards the upper end of the range”, but not manifestly excessive.  Williams JA,^[86] said that a 10 year sentence would have been a realistic evaluation of the range after trial.  In addition, whilst there was a discretion to impose a serious violent offence declaration, that had not occurred, and was therefore a form of discount.
72. BAO supports the nine year sentence imposed in this case.
73. In R v SBJ^[87] a term of nine years imprisonment was imposed on a count of maintaining a sexual relationship over a five year period.  The complainant was the offender’s daughter who was under 16 at all times.  There were other counts of indecent treatment and attempted incest.  The offender was about 38 when the period of offending started.  The offending included digital penetration of the complainant’s vagina, attempted penile penetration on several occasions, full penetration whilst wearing a condom, and other sexual activity including rubbing around the genital area, and insertion of his fingers in her vagina.
74. Whilst the challenge in BAO was not against the head sentence of nine years, it is evident that the sentence was reached after a careful review of various authorities including R v BAY,^[88] SAG and R v SAU.^[89]  Particular concerns of the sentencing judge were the long period during which the misconduct had occurred, the young age of the complainant when it commenced, and the regularity of sexual intercourse over almost two years of the relationship.
75. SBJ provides some, albeit attenuated, support for the sentence imposed in this case.
76. R v BCA^[90] involved the sentence of 10 years imprisonment imposed after a trial, on counts of maintaining an unlawful relationship with a child under 16 with circumstances of aggravation, various counts of indecent treatment and sodomy, four counts of indecent treatment with a circumstance of aggravation, and four counts of sodomy with a circumstance of aggravation.  The offences occurred over a period of just over 10 years from when the complainant was about six years old.  The offending including digital penetration of her vagina and anus, sodomy and other acts, on multiple occasions.  Plainly the offending was worse than in the current case.
77. This Court reviewed a number of decisions involving maintaining offences, with attendant linked offences, including R v C; ex parte A-G (Qld)^[91] and R v Young; Ex parte A-G (Qld)^[92] and held that the appropriate sentence after a trial should be no less severe than the 10 years imprisonment which was imposed.  Fraser JA^[93] said:

“The respondent referred to R v C; ex parte A-G (Qld) and R v Young; Ex parte Attorney-General (Qld).  In R v C the respondent pleaded guilty to maintaining a sexual relationship with a child aged between 13 and 16 years over a two and a half year period.  The Court allowed an appeal from a sentence of imprisonment for nine years, with a recommendation for post-prison community based release to be considered after four years, and instead ordered the respondent to be imprisoned for 10 years with a declaration that C had been convicted of a serious violent offence.  Like the applicant, C was the child’s father and sole carer.  The duration of C’s offence was less than that of the applicant’s offence, and C’s offending commenced when his daughter was older, but the nature of the acts was more serious, involving instances of rape.  Importantly, when C was interviewed by police he immediately admitted the sexual intercourse (whilst denying an act of sodomy which he had also committed), and he expressed remorse.  C indicated very early that he would plead guilty, he did so, and the matter was processed through the prosecution and court system “in record time”.  The Chief Justice, with whose reasons Jerrard JA and White J agreed, suggested that “for roughly comparable offending and after allowing for a plea of guilty a range generally commencing at about the level of 10 years’ imprisonment would apply”, although his Honour went on to observe that because the circumstances of these offences exhibited infinite variation, one should not be rigidly tied to ranges.”^[94]

78. In my view BCA amply supports the imposition of a nine year sentence in this case.
79. R v PAM^[95] involved a plea of guilty to one count of maintaining a sexual relationship and three counts of rape.  The offender breached his parental responsibilities in committing serious sexual abuses against a step-daughter over a period of about three years, when she was aged between five and eight.  He was a mature man with a poor criminal history.  The sentence imposed was eight years imprisonment for the maintaining count.  McMurdo P referred to various cases, including BAO, in the course of rejecting the submission that the eight year sentence was manifestly excessive.  Relevant to that was the timely guilty plea.  That, of course, is absent here, as were other mitigating factors applicable in PAM.^[96]
80. In my view, PAM supports the proposition that the sentence imposed in this case was not manifestly excessive.
81. For the reasons above, it cannot be demonstrated that the sentence imposed was manifestly excessive.

Disposition of the appeal and application for leave to appeal

82. For the reasons outlined above, I propose the following orders:

1. appeal against conviction dismissed;
2. leave to appeal against the sentence refused.

83. PHILIP McMURDO JA:  I agree with Morrison JA.