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R v BDN[2021] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDN [2021] QCA 130

PARTIES:

R

v

BDN

(appellant/applicant)

FILE NO:

CA No 102 of 2019

CA No 175 of 2019

DC No 458 of 2018

DC No 460 of 2018

DC No 461 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 22 March 2019; Date of Sentence: 30 May 2019 (Morzone QC DCJ)

DELIVERED ON:

11 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2021

JUDGES:

Morrison and Mullins JJA and Lyons SJA

ORDERS:

  1. Appeal dismissed.
  2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted after trial before a jury of maintaining a sexual relationship with his stepdaughter – where the appellant was only convicted of two sexual offences relevant pursuant to s 229B(10) of the Criminal Code (Qld) for the purpose of proving the maintaining offence – where the complainant gave evidence of many uncharged acts that occurred during the period particularised for the maintaining offence – where the appellant asserted that the jury were not instructed on the standard of proof for the uncharged acts and were not adequately instructed on what constituted an unlawful sexual act – where the trial judge’s oral directions and question trail expressly stated that the jury could convict the appellant on the basis of the evidence of the other alleged acts only if they were satisfied beyond reasonable doubt that the appellant did those acts during the period alleged – where the trial judge’s directions to the jury that continuity of sexual conduct is an element of the maintaining offence were done in conjunction with the directions on the complainant’s evidence in support of the two sexual offences and the uncharged acts for the purpose of whether the jury were satisfied beyond reasonable doubt that the appellant had an unlawful relationship with the stepdaughter that involved more than one unlawful sexual act over the period particularised for the maintaining offence – whether the verdict for the maintaining offence arose as a result of a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted on one indictment after trial before a jury of one count of maintaining a sexual relationship with a child, two counts of indecent treatment of a child under 16, under 12, under care (domestic violence offence), one count of rape (domestic violence offence), and after early pleas of guilty of 24 counts of recording in breach of privacy (domestic violence offence) – where the complainant on that indictment was the appellant’s stepdaughter – where the appellant was also convicted after trial before a jury of two counts of indecent treatment of a child under 16, under care where the complainant was the stepdaughter’s friend and after early pleas of guilty of two other counts of recording in breach of privacy in respect of that friend and another friend of the stepdaughter – where the appellant received an effective head sentence of imprisonment for seven years and nine months – whether the accumulation of some of the sentences resulted in the effective head sentence being manifestly excessive

Criminal Code (Qld), s 229B

R v CAZ [2012] 1 Qd R 440; [2011] QCA 231, cited

R v FAK (2016) 263 A Crim R 322; [2016] QCA 306, cited

R v HAN (2008) 184 A Crim R 153; [2008] QCA 106, considered

R v Kemp (No 2) [1998] 2 Qd R 510; [1996] QCA 514, cited

R v TY [2011] QCA 261, cited

COUNSEL:

M L Longhurst for the appellant/applicant

C W Wallis for the respondent

SOLICITORS:

Mellick Smith & Associates for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Mullins JA and agree with those reasons and the orders her Honour proposes.
  2. [2]
    MULLINS JA:  On 22 March 2019 the appellant was convicted after trial in the District Court before a jury of counts 2 to 4, 6 and 31 to 33 on indictment number 461 of 2018.  He was acquitted of count 5 on that indictment.  He had pleaded guilty on 1 November 2018 to counts 7 to 30 which were 24 counts of recording in breach of privacy (domestic violence offence).  The complainant for all offences on indictment number 461 of 2018 was the appellant’s stepdaughter.
  3. [3]
    The appeal against conviction is only in respect of count 6 which was the offence of maintaining a sexual relationship with a child (domestic violence offence).  The period of the maintaining was particularised as between 1 August 2016 and 31 October 2017.  The ground of appeal is that the verdict for count 6 arose as a result of a miscarriage of justice, resulting from two matters, taken alone or in combination:
    1. (i)
      the jury were not clearly instructed on the standard to which they had to be satisfied concerning the uncharged acts and there was a real risk that the jury did not apply the correct standard;
    2. (ii)
      the jury were not instructed on what constituted an “unlawful sexual act” at law and were not instructed as to how the evidence of the other counts could and could not be considered, so there was a real risk that the jury placed too much weight on irrelevant or impermissible considerations in reaching their verdict.
  4. [4]
    The jury were provided with the prosecution’s particulars of count 6 on a written handout (exhibit 2) which stated:

“When the complainant's mother moved back in with the defendant he resumed his sexual relationship with the complainant. Some of the alleged sexual acts include:

  • Touched the complainant's ‘private parts’ a number of times;
  • ‘Fingered’ the complainant a number of times;
  • Touched the complainant's breasts both under and on top of her clothes;
  • Touched the complainant's vagina both under and on top of her clothes;
  • Touched the complainant's buttocks over the top of her clothes.
  • On many occasions if the complainant tried to stop him touching her he would say ‘Why are you being so nasty? You're such a nasty bitch’;
  • On many occasions he would confiscate the complainant's mobile phone and say that she had to be nice to him to get it back. ‘Nice’ meant allow him to sexually touch her;
  • On many occasions he would offer the complainant money or gifts to be ‘nice’ to him expecting her to allow him to sexually touch her”.

Circumstances of the offending

  1. [5]
    The complainant was born in December 2003.  Her mother was in a relationship with the appellant from 2010 and there were two children born of that relationship.  The complainant was aged between 10 and 11 years old when the offences the subject of counts 2 and 3 of indecent treatment of a child under 16, under 12, under care (domestic violence offence) and the offence the subject of rape count 4 (domestic violence offence) were committed.  These offences were committed before the period particularised for the maintaining offence.  The complainant’s mother and the appellant separated on 9 February 2015, but the complainant’s mother then returned with the complainant and her siblings on 15 February 2017 to live in the household with the appellant for the benefit of the children.  The complainant’s mother slept in a bedroom separate from the appellant.  The complainant’s mother and the appellant separated finally on 2 November 2017.
  2. [6]
    The timing of each of counts 7 to 30 was specified as a date unknown between 1 August 2016 and 11 March 2017.  Although counts 7 to 30 were committed during the period particularised for the maintaining, the offence of recording in breach of privacy under s 227A(1) of the Criminal Code (Qld) is not caught by the definition of “unlawful sexual act” in s  229B(10) of the Code which means an act that constitutes an “offence of a sexual nature” which is defined in s 229B(10) as offences defined in the sections of the Code that are listed in the definition.  For the purpose of the trial, the appellant made admissions (exhibit 4) in respect of the content of each of the videos that was respectively the subject of each of counts 7 to 30.  The admissions were to the effect that the appellant had recorded footage of the complainant in the bathroom and described in brief terms what the footage showed and that the video file was located by police on the storage device located in the locked box that was seized by the police when executing a search warrant at the appellant’s house.  Count 32 (making child exploitation material (domestic violence offence)) is also not an offence of a sexual nature for the purpose of s 229B.  The subject of count 32 was the videoing of the touching of the complainant’s breasts by the appellant that was the subject of count 31.
  3. [7]
    The only two offences of which the appellant was convicted that could be relied on for the purpose of proving the maintaining offence of count 6 were counts 31 and 33.  Each offence was indecent treatment of a child under 16, under care (domestic violence offence).  Count 31 was committed on or about 19 November 2016 when the appellant touched the complainant on her breasts in the bathroom.  Count 33 was committed in mid to late October 2017 when the appellant touched the complainant on the outside of her clothes on her vagina and breasts while she lay on the couch in the lounge room.
  4. [8]
    The complainant gave evidence in very general terms of many uncharged acts that occurred during the period particularised for the maintaining offence, but more particularly after the complainant and her mother and siblings moved back into the appellant’s home (which was otherwise proved to be in February 2017).  Her evidence contained in her s 93A statement given on 6 November 2017 included the following.  In 2016 the complainant and her mother and siblings moved back to the town where the appellant resided.  They were living in a different house, but the complainant’s siblings would go to the appellant’s house for visits (without their mother) and sometimes the complainant would accompany them.  Towards the end of 2016, they moved back into the appellant’s house and that is when “it started all over again”.  Sometimes the appellant would confiscate her mobile phone, when she did something the appellant did not like, and he would keep it for a month or two and say that, if she wanted her phone back, she had to be nice to him which she understood meant she had to allow him to touch her, but the complainant would say “no, it’s just a phone”.  There were times when she would say “no”, but the appellant would touch her private parts and there were times where he “fingered” her.  The last time that the appellant touched her was a few days before they moved out of the appellant’s house, where the appellant placed his hand on the complainant’s vagina, while she had clothes on, as she was lying on the couch watching television in the lounge room (and this was the subject of count 33).  As soon as he did that, the complainant moved his hand away and “shoved him away” and said to him to “go away and… stop”.  On that occasion he also pinched her left breast as he walked away.  There were other times in 2017 and the preceding year when he had placed his hand on her vagina or when he tried to touch her breasts or squeeze her bottom.  He would do this by touching her on her clothes.  She would tell him to stop and use her hand to “flick” his hand away.  This would happen when the complainant was in the bedroom or in the lounge room, when her mother and siblings were not present.  When the complainant told the appellant that she was going to tell her mother, he told her “go ahead”, but he would deny it.
  5. [9]
    During cross-examination of the complainant in accordance with s 21AK of the Evidence Act 1977 (Qld), it was put to her that the incident of the touching on her vagina (that was the subject of count 33) did not happen.  The complainant disagreed.  The complainant agreed that the occasion on 19 November 2016, where the appellant touched her breast, was in the context of a conversation they were having about the complainant’s concern about an inverted nipple.  When it was put to the complainant that apart from that incident in November 2016, the appellant had never touched the complainant in any sexual way, the complainant responded that was incorrect.  The same question was put in different ways and the complainant gave a consistent response that the appellant did the things that she complained about.
  6. [10]
    The appellant gave evidence that included the following.  The appellant had never touched the complainant inappropriately.  The appellant conceded that he put the camera in the bathroom to video the complainant showering.  When asked then whether he had a sexual interest in the complainant, he responded:

“Not really.  … [The complainant] started coming over, you know, weekends and, of course, she is a young teenager girl and she’s walking around in her underwear and towel wrapped around her and, I guess, I just felt I’d like to see a little bit more.”

  1. [11]
    The appellant agreed that he had taken her phone three times and her laptop on one occasion, but denied that it had anything to do with influencing her to let him touch her sexually.  He explained that the bathroom incident of November 2016 arose when the complainant came to him and said that “she had sore bosoms” and the complainant showed him and they researched on the internet, because the appellant knew about inverted nipples and he instructed her what to do in massaging her nipples to get them to expose.
  2. [12]
    In cross-examination, it was put to the appellant that when the family reunited in the same house, the appellant would touch the complainant on her private parts, whenever he could, and “fingered” her a number of times, touched her breasts a number of times and grabbed her on the buttocks on one occasion.  The applicant denied this conduct.  He denied having a conversation with the complainant in terms in which the complainant said she was going to tell her mother what he was doing to her and he responded by saying “tell her … because… I’ll deny it”.
  3. [13]
    It was common ground between the prosecution and the defence by the conclusion of the trial that the date when the complainant and her mother and siblings resumed living in the appellant’s house was 15 February 2017.  The period applying to count 6 in the indictment may have reflected what the complainant had stated in her s 93A statement that they had returned to live with the appellant towards the end of 2016 and the complainant also referred in that statement to the “touching” and “fingering” as having resumed in 2016.  The complainant was incorrect in nominating the end of 2016 as when she, her mother and her siblings returned to live with the appellant.  Imprecision with dates of events from a child witness is not unusual, but there was otherwise contact between the appellant and the complainant from 2016, when the complainant accompanied her siblings to the appellant’s house for weekend visits, before they all returned to live with the appellant.

The directions given in respect of count 6

  1. [14]
    Section 229B(1) of the Code creates the offence of maintaining and the gist of the offence is that the offender maintains an unlawful sexual relationship with a child under the relevant age: R v CAZ [2012] 1 Qd R 440 at [46].
  2. [15]
    Section 229B(2)-(4) of the Code then provides for the proof of the maintenance of that sexual relationship:
  1. “(2)
    An unlawful sexual relationship is a relationship that involves more than 1 unlawful sexual act over any period.
  1. (3)
    For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.
  1. (4)
    However, in relation to the unlawful sexual acts involved in an unlawful sexual relationship—
  1. (a)
    the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
  1. (b)
    the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and
  1. (c)
    all the members of the jury are not required to be satisfied about the same unlawful sexual acts.”
  1. [16]
    The directions given by the trial judge in respect of count 6 must be considered in the context of  how the prosecution framed its case for maintaining against the appellant and the appellant’s defence at the trial.  The prosecution relied on counts 31 and 33 and other non-specific sexual acts specified in the first five dot points of the particulars.  The prosecutor addressed the jury in terms that to prove the charge the jury needed to be satisfied that there was more than one unlawful sexual act and that there was “some continuing nature of it that happened”, suggested that the jury consider the appellant’s conduct from February to October 2017 and submitted that if it happened more than once and there was a continuing aspect to it, that the jury could find him guilty of maintaining.  The appellant’s trial counsel in his address to the jury relied on the evidence given by the appellant that his actions shown in the recording that was the subject of count 32 and was evidence of the conduct charged as count 31 were not sexual acts, but were misunderstood, and described the complainant’s account in respect of the touching and fingering of which there were no details and no particulars as “non-specific unparticularised blur”.  Apart from count 31, the appellant’s contention in respect of count 33 and the non-specific acts at trial was therefore that the jury would not be satisfied beyond reasonable doubt that those acts were committed by the appellant against the complainant.  The jury’s attention was therefore focused on counts 31 and 33 and the non-specific sexual acts specified in the first five dot points of the particulars for the purpose of considering whether the prosecution had proved count 6.
  2. [17]
    The oral directions in the summing up were supplemented by a written handout that was a question trail for each of the counts being considered by the jury.  The question trail for count 6 reflected the four elements of the offence of maintaining a sexual relationship with a child that were set out in the Supreme and District Courts Criminal Directions Benchbook (the Benchbook) at 157.1 that was current at the dates of the trial that accurately identified what had to be proved by the prosecution to establish the offence of maintaining.  Elements 1 and 2 dealt respectively with whether the appellant was an adult and the complainant was a child under the age of 16 years during the period particularised for count 6 and were undisputed.  Element 3 focused on whether there was an unlawful sexual relationship that involved more than one unlawful sexual act over the relevant period.  Element 4 focused on the aspect of “maintained” and that it must be proved there was an ongoing relationship of a sexual nature between the appellant and the complainant.  There is some overlapping between elements 3 and 4 in that both concern proof of a sexual relationship, but element 3 required that the sexual relationship involved more than one unlawful sexual act (within the meaning given to that term in s 229B(10) of the Code) and element 4 required the proof of the continuity of the unlawful sexual acts that constituted the sexual relationship.  As explained in R v Kemp (No 2) [1998] 2 Qd R 510 at 511 by Macrossan CJ, use of the term “relationship” implies a “continuity of contact in which both parties are involved”.  In the same case, Mackenzie J at 518 stated:

“The ‘relationship’ with which the section is concerned is some kind of connection with the child, having sufficient habituality and having a sexual content … .”

  1. [18]
    When summarising the prosecution case, the trial judge referred to the question trail for count 6 which set out the summary of the allegations incorporating in full and verbatim the particulars relied on by the prosecution for count 6.  The trial judge dealt with the aspect of the prosecution case that relied on conduct of the appellant which the prosecution submitted showed the appellant had a sexual interest in the complainant.  The trial judge explained that the prosecution relied on the admissions as to the nature of the video recordings that were set out in exhibit 4 “to prove that the defendant had a sexual interest in the complainant and was willing to give effect to that interest through the specific offending that you’re asked to look at”.  The jury were directed that they could only use that evidence, if they were satisfied beyond reasonable doubt that it demonstrated that the appellant had a sexual interest in the complainant and that he was willing to give effect to that interest.  A strong warning was given to the jury that the evidence of the admitted recordings and other evidence given by the complainant relevant to sexual interest must not be used in any other way, as it had been led for the purpose of showing that the appellant had a sexual interest in the complainant and was willing to give effect to that interest and that it was therefore more likely that the appellant committed the offences charged in the indictment.
  2. [19]
    The trial judge made specific reference to counts 31 and 33 and the non-specific acts relied on by the prosecution to prove count 6 and referred the jury to the dot points set out in the question trail.  The trial judge divided the dot points into the first five and the last three.  The first five dot points were described as listing the specific acts of a sexual nature that were relied on for the purpose of count 6 and the last three dot points were referred to as giving the jury the context in which those acts may have occurred.  The trial judge then suggested to the jury that it was logical for them to consider counts 31 and 33 first and then return to count 6.
  3. [20]
    After giving directions in relation to each of counts 31 and 33, the trial judge returned to the directions in relation to count 6, referring the jury to the questions in the question trail.  The trial judge focused on the third question which reflected the third element of the offence “Are you satisfied beyond reasonable doubt that the defendant had an unlawful sexual relationship with the child that involved more than one unlawful sexual act between the 1st of August 2016 and the 31st of October 2017?”.  The trial judge set out the meaning of “unlawful sexual act” taken from the Benchbook at 157.2 that was current at the dates of the trial.  The trial judge gave the usual directions that accord with s 229B of the Code that all members of the jury must be satisfied beyond reasonable doubt that the evidence established that an unlawful sexual relationship with the child involving unlawful sexual acts existed and that it was not necessary for them all to be satisfied about the same unlawful sexual acts.  The trial judge then relevantly directed:

“If you are satisfied beyond reasonable doubt of the guilt of the defendant in relation to any of the counts, 31 or 33, the relevant sexual act or acts will then be used in your consideration of this count of maintaining. The other sexual acts about which the child was not specific are those which I have described above, and I said they are the first five dot points, and the last three are to give you context about circumstances.

If you have doubt about the specific offences in counts 31 and/or 33, then you should only convict the defendant on the basis of the evidence of the other alleged acts if, after carefully scrutinising the evidence of the child, …, you are satisfied beyond reasonable doubt that the defendant did these acts during the period alleged.”

  1. [21]
    The oral directions repeated what was in the question trail for count 6 which emphasised that “The other sexual acts about which the child was not specific are those described above.” which was a reference to the list of non-specific acts that were taken from the prosecution particulars and which the trial judge had previously explained was confined to the first five dot points.
  2. [22]
    To the extent that the ground of appeal asserts that the jury were not clearly instructed on the standard to which they had to be satisfied concerning the uncharged acts, that is not a fair characterisation of the directions given by the trial judge on the third element of the defence in relation to any non-specific sexual acts of which the complainant gave evidence and which the jury may have relied on in reaching a guilty verdict for count 6.  Both the oral directions and the question trail for count 6 expressly stated that the jury could convict the appellant on the basis of the evidence of the other alleged acts only if they were satisfied beyond reasonable doubt that the appellant did those acts during the period alleged.
  3. [23]
    It is also submitted on behalf of the appellant that uncertainty was caused by the manner in which the prosecution particularised the non-specific sexual acts (apart from counts 31 and 33) for the purpose of count 6 and those uncertainties were incorporated into the trial judge’s question trail.  The question trail introduced the list of non-specific acts as follows:

“Some of the alleged sexual acts include counts 31 and 33 and other non-specific acts:”

  1. [24]
    The appellant argues that phraseology had the potential to confuse the jury as to which matters they could take into account in their assessment of the relevant sexual relationship and the maintaining elements, as the use of the introductory words “some of” suggested that there were other alleged sexual acts, apart from counts 31 and 33 and the non-specific acts.  The problem with that submission is that the nature of non-specific acts was then specified in the first five dot points and the trial judge summed up to the jury by reference to the evidence of the complainant in respect of those non-specific acts and counts 31 and 33 which reflected the manner in which the prosecutor and the appellant’s trial counsel confined their addresses to counts 31 and 33 and the non-specific acts specified in the first five dot points of the particulars.  There was no potential for confusion as to what alleged sexual acts could be considered for the purpose of count 6 in the circumstances of this trial.
  2. [25]
    There was an error in the particulars that was repeated in the question trail in that it was alleged that when the complainant’s mother “moved back in with the defendant he resumed his sexual relationship with the complainant”.  As Mr Wallis of counsel on behalf of the respondent concedes, the reference to the resumption of the sexual relationship should have been a reference to a resumption of sexual offending.
  3. [26]
    I consider the slip in using the word “relationship” in the particulars and then in the question trail was of no consequence in the light of the clear directions that were given by the trial judge in respect of each of the counts and the difference in the nature of the offending alleged against the appellant before the complainant’s mother separated from him and moved away with the children in February 2015 and the offending which took place from the latter part of 2016 when the complainant’s mother, the complainant and her siblings returned to the town where the appellant resided until the complainant’s mother departed again from the appellant’s household together with her children on 2 November 2017.
  4. [27]
    Mr Longhurst of counsel who appears on behalf of the appellant submits that the directions given by the trial judge on the standard of proof for the non-specific sexual acts was limited to the circumstances where the jury did not find both counts 31 and 33 proved beyond reasonable doubt.  That submission does not take into account the clarification of the question trail made by the trial judge during the summing-up and the purpose of the second paragraph below in giving a direction which accorded with R v Markuleski (2001) 52 NSWLR 82.  The printed question trail stated:

“The prosecution relies upon the specific acts identified in Counts 31 & 33 and other sexual acts about which the child was not specific as to times or circumstances under which the acts occurred. If you are satisfied beyond reasonable doubt of the guilt of the defendant in relation to any of counts 31 & 33, the relevant sexual act or acts will then be used in your consideration of the count of maintaining. The other sexual acts about which the child was not specific are those described above.

If you have a doubt about the specific offences in counts 31 & 33, then you should only convict the defendant on the basis of the evidence of the other alleged acts if after carefully scrutinising the evidence of the child you are satisfied beyond reasonable doubt that the defendant did these acts during the period alleged. A reasonable doubt with respect to the complainant's evidence on any specific count should be taken into account and considered by you in your assessment of the complainant's credibility generally; however it remains a matter for you as to what evidence you accept and what evidence you reject.”

  1. [28]
    The trial judge clarified that, when the prosecution relied upon the specific acts identified in counts 31 and 33, that “and 33” could be read as “or 33”, as it was one or both, in addition to the other sexual acts about which the complainant was not specific as to times or circumstances under which the acts occurred.  It is apparent from the prosecution case that relied on counts 31 and 33 and the non-specific sexual acts and the written directions supplemented by the oral directions, that the directions on the standard of proof for the non-specific sexual acts, when considering the third question in the question trail was not limited to the circumstances where the jury did not find both counts 31 and 33 proved beyond reasonable doubt.
  2. [29]
    The appellant’s written submissions focused on the two matters relied on to support the ground of appeal in relation to the fourth element of the maintain offence.  During oral submissions, Mr Longhurst appeared to rely to some extent on those two matters to impugn the directions given in respect of the third element of the offence.  As the above analysis of the directions shows, there was no error made in either or both of these matters in respect of the directions given on the third element of the offence.

Were there errors in the directions on the fourth element of the offence?

  1. [30]
    Because the jury did convict on counts 31 and 33, the appellant submits that those incidents should be characterised as isolated incidents and that unless the jury had been satisfied beyond reasonable doubt that there were further unlawful sexual acts in addition to counts 31 and 33, they could not be satisfied beyond reasonable doubt that the appellant maintained a sexual relationship with the child.  This submission assumes that when the jury were directed on the third element of the offence that they had to be satisfied beyond reasonable doubt the appellant had an unlawful sexual relationship with the complainant that involved more than one unlawful sexual act during the particularised period, the jury did not consider the uncharged acts in determining whether there was more than one unlawful sexual act constituting the unlawful sexual relationship with the complainant.  The mere fact the jury found the appellant guilty of counts 31 and 33 does not result in the inference that they did not consider the non-specific acts particularised in the first five dot points.  In fact, they were invited to do so for the purpose of deciding whether element 3 was proved beyond reasonable doubt by the directions of the trial judge on the third element of the offence.
  2. [31]
    In relation to the fourth element of count 6 the trial judge had directed the jury in the question trail, and repeated orally, according to the Benchbook at 157.2 that was current at the dates of the trial:

“Maintained carries its ordinary meaning.  That is carried on, kept up or continued.  It must be proved that there was an ongoing relationship of a sexual nature between the defendant and the child.  There must be some continuity or [habituality] of sexual conduct, not just isolated incidents.”

  1. [32]
    As 11 months separated the commission of counts 31 and 33, the appellant submits that, in order to be satisfied of this element of continuity for the offence of maintaining, the jury would have to be satisfied beyond reasonable doubt that there were further unlawful sexual acts in addition to counts 31 and 33, as otherwise they could not be satisfied that there was the requisite continuity to the sexual conduct, rather than the two isolated incidents that “bookended” the period of 11 months.  For the purpose of this element, the appellant submits the jury they were not instructed as to what constituted an unlawful sexual act and how the evidence of the other counts could (and could not) be considered and were not directed that the prosecution had to prove any such unlawful sexual act beyond reasonable doubt.
  2. [33]
    The submission on behalf of the appellant that the jury were not directed either as to what constituted an offence of a sexual nature or the sexual conduct which could (and could not) be considered for the purpose of count 6 does not take into account that the directions given by the trial judge on the uncharged acts were circumscribed by the description of those uncharged acts in the first five dot points of the particulars that were then set out in the question trail and the specific directions given by the trial judge on the limited purpose for which the admitted video recordings and other relevant evidence of the appellant’s sexual interest in the complainant could be used.  In the circumstances of the conduct of the trial by the prosecutor and the defence counsel, it was sufficient for the trial judge to identify what constituted an unlawful sexual act by reference to the acts described in the first five dot points of the particulars which constituted offences of a sexual nature for the purpose of s 229B(10) of the Code.
  3. [34]
    The question trail that introduced the fourth element of continuity of the sexual conduct opened with the fourth question “Are you satisfied beyond reasonable doubt that the defendant maintained such a relationship with the child?”.  That emphasised this element of the offence of the continuity of the relationship had to be proved beyond reasonable doubt and that obviously brought into contention the non-specific acts, in addition to counts 31 and 33.
  4. [35]
    Even though the trial judge did not expressly mention the non-specific acts when addressing expressly the fourth question in the question trail that accorded with the fourth element of the offence, the fourth element is cumulative on the third element of the offence and, as was apparent from the summing up, the directions on the fourth element cannot be looked at in isolation from the directions given on the third element.  The issue of the existence of an unlawful sexual relationship was raised in the context of addressing the third element where the jury were reminded about the complainant’s evidence in respect of the non-specific acts.  In order to be satisfied of the continuity of the relationship beyond reasonable doubt, the jury had to accept in the circumstances of this case that the complainant’s evidence enabled them to be satisfied beyond reasonable doubt of the non-specific acts alleged against the complainant or some of them.  A fair reading of the summing up in conjunction with the question trail and the directions given on both the third and fourth questions made that clear.
  5. [36]
    The appellant fails in showing any errors that could be relied on to constitute a miscarriage of justice.  The conviction appeal must be dismissed.

The sentence

  1. [37]
    Apart from the counts on indictment number 461 of 2018 of which the appellant was convicted, he pleaded guilty to one count of recording in breach of privacy on indictment number 458 of 2018 in respect of which a friend of his stepdaughter (Ms A) was the complainant.  He also pleaded guilty to count 1 on indictment number 460 of 2018 which was another count of recording in breach of privacy where the complainant Ms J was another friend of the appellant’s stepdaughter.  The appellant was convicted after trial of counts 2 and 3 on indictment number 460 of 2018 (indecent treatment of a child under 16, under care (where the complainant was also Ms J)).  The trial of counts 2 and 3 on indictment number 460 of 2018 took place shortly after the jury returned verdicts in respect of indictment number 461 of 2018.
  2. [38]
    The sentencing for the offences on indictment numbers 458, 460 and 461 of 2018 proceeded on 30 May 2019.  For the one count on indictment number 458 of 2018, the appellant was sentenced to nine months’ imprisonment.  For each count on indictment number 460 of 2018, the appellant was sentenced to 12 months’ imprisonment.  For count 6 on indictment number 461 of 2018, the appellant was sentenced to six years’ imprisonment.  The following concurrent sentences were imposed in respect of indictment number 461 of 2018:  20 months’ imprisonment for count 2, 15 months’ imprisonment for count 3, two years and six months’ imprisonment for count 4, two years’ imprisonment for each of counts 7 to 30 and 32, 18 months’ imprisonment for count 31 and 15 months’ imprisonment for count 33.  It was ordered that the sentences for count 6 on indictment number 461 of 2018, count 2 on indictment number 460 of 2018 and count 1 on indictment number 458 of 2018 be served cumulatively.  That had the result that an effective head sentence of imprisonment for seven years and nine months was imposed.  No parole eligibility date was fixed.  A declaration was made in respect of 69 days spent in pre-sentence custody between 22 March and 29 May 2019.
  3. [39]
    The appellant applies for leave to appeal against the sentence on the basis that the sentence was manifestly excessive, but confines that challenge to the outcome as a result of the accumulation of the sentences.  The appellant does not contend that any of the separate sentences imposed were excessive or unjust, but submits that the method of accumulation resulted in an excessive sentence, particularly in relation to the sentence for nine months for the recording in breach of privacy count on indictment number 458 of 2018, where Ms A never had to give evidence, as it was always a plea of guilty, it was a one-off incident in circumstances where it was incidental to other recordings being made of the appellant’s stepdaugghter, and there was no touching of Ms A.  The appellant therefore submits that the sentence of nine months for the breach of privacy count committed against Ms A should have been concurrent with the sentence of 12 months imposed for count 2 on indictment number 460 of 2018.  The appellant is not impugning the exercise of the discretion to order that sentence of nine months to be cumulative, but challenges the outcome of doing so, as resulting in a manifestly excessive sentence.
  4. [40]
    In other words, the appellant submits that the effective head sentence of imprisonment for seven years and nine months is excessive and seeks an effective head sentence of imprisonment for seven years.  Expressing the submission in terms that the effective head sentence should be seven years rather than seven years and nine months highlights immediately the difficulty of showing that the sentence was manifestly excessive.

The appellant’s antecedents

  1. [41]
    The appellant was aged between 60 and 63 years when he offended.  He had a relevant entry in his criminal history when he was convicted on 6 November 2003 of indecent treatment of children under 16, under 12 years for which he was sentenced to imprisonment for five months and probation of two years upon release from custody.  The victim in respect of that offence was his stepdaughter at that time who was 10 years old when he offended against her by pulling her pants down and touching her on the vagina and rubbing her there for a couple of minutes.

The sentencing remarks

  1. [42]
    The sentencing judge specifically recorded that he had taken into account the appellant’s early pleas of guilty for the recording in breach of privacy charges.  Even though the appellant proceeded to trial in respect of some counts where his stepdaughter was the complainant and two counts where Ms J was the complainant, the trial judge observed that the appellant’s cooperation through his counsel in the conduct of those trials was evident, such that the case against the appellant was tested, but in a way which did not exert further unnecessary trauma on the children beyond what was necessary.
  2. [43]
    It is not necessary to set out the details of counts 6 to 33 which are referred to above in connection with the conviction appeal.  The sentencing judge recorded brief details of counts 2 to 4 on indictment number 461 of 2018 in the sentencing remarks as follows.  Counts 2 to 4 were committed when the complainant stepdaughter was 10 or 11 years old.  In respect of count 2, the appellant touched the complainant on the vagina on the inside of her clothes, for count 3 the appellant touched the complainant’s breasts on the inside of her clothes and for count 4, the appellant penetrated the complainant’s vagina with his finger.  The recording in breach of privacy (count 1 on indictment number 460 of 2018) was committed on 28 August 2016 in the bathroom after the appellant called Ms J to the shower who was present for a sleepover with his stepdaughter.  Each of counts 2 and 3 (indecent treatment of child under 16, under care) was committed on 9 September 2016 when Ms J was again on a sleepover and the appellant rubbed her thigh, touching her stomach and breasts over her clothes and tried to put a hand inside her shirt and then, on a second occasion on the same day, when the appellant touched Ms J’s breast in a similar way and tugged at her T-shirt.  The recording in breach of privacy the subject of count 1 on indictment number 458 of 2018 was committed against Ms A on 25 September 2016 when she was staying with the appellant’s stepdaughter on a sleepover.
  3. [44]
    The sentencing judge noted the significant impact the offending against the stepdaughter had on her personal life, both at home and school and that she experienced feelings of shame and disgust, turning to self-harm, and described the events as “horrendous”.
  4. [45]
    The sentencing judge also noted that any rehabilitation the appellant may have achieved as a result of the conviction in 2003 was either unsuccessful or waned, as the appellant had become a danger again to young girls and the community.
  5. [46]
    As count 6 was the most serious offence committed against the appellant’s stepdaughter, the sentencing judge imposed a sentence for that offence that reflected the series of criminal conduct committed against her and the cumulative sentences for count 2 on indictment number 460 of 2018 and count 1 on indictment number 458 of 2018 were each reduced to take into account the cumulative effect.

Was the sentence manifestly excessive?

  1. [47]
    The appellant supports his submission that the sentence was manifestly excessive by reference to comparable authorities including R v HAN (2008) 184 A Crim R 153, R v TY [2011] QCA 261, and R v FAK [2016] QCA 306.  The respective head sentences of imprisonment imposed for the maintaining offence in these authorities were six years, six years and five and one-half year.  Although the conduct committed during the maintaining in each case was objectively more serious than that committed by the appellant either because of the length of the period of maintaining or the nature of the sexual conduct committed during the maintaining period, both HAN and TY were sentences imposed after guilty pleas and the charges against the offender in HAN proceeded by way of ex officio indictment and involved one complainant.  The sentence was reduced on the appeal in HAN from seven years to six years on the basis (at [25]) that the sentencing judge did not appear to have taken into account the factors in mitigation which were then set out (at [26]) as the offender “had made full admissions, had organised counselling for himself and his wife prior to being interviewed by police, had sent messages to his daughter expressing remorse and suggesting she go to counselling, there was no cross examination of the complainant, and the matter proceeded by way of an ex officio indictment”.  TY was an unsuccessful appeal by the Attorney-General where the maintaining and the sexual offences involving touching were committed against the one complainant, but 16 counts of indecent treatment of a child under 16, as a guardian were committed by the offender filming the complainant and her female friends with hidden cameras installed in a bathroom.  The sentence in FAK was imposed after trial where there was one complainant and the offender did not succeed in showing the sentence was manifestly excessive.
  2. [48]
    It is unnecessary to analyse these authorities in any further detail, as the aggravating factors in the appellant’s offending, even allowing for the mitigating factors identified by the sentencing judge, preclude a conclusion that the effective head sentence of seven years nine months was unreasonable or unjust.  The appellant pleaded guilty to those offences for which it was impossible for him to avoid being found guilty, because of the existence of the video recordings that the appellant had made and retained in his possession.  The other guilty verdicts were returned after trial.  The appellant had a relevant prior conviction for indecent treatment of a child under 16, under 12 that was committed against his then stepdaughter.  It was also aggravating that the appellant committed touching offences against Ms J of similar nature to the uncharged acts committed against his stepdaughter and recording in breach of privacy offences against both Ms J and Ms A.
  3. [49]
    Although the appellant endeavours to argue against the accumulation of the sentence imposed for count 1 on indictment number 458 of 2018 as a means to support an effective head sentence of seven years, that does not address the proper question on an application of this type of whether the sentence imposed is manifestly excessive.  In all the circumstances that applied to the appellant’s offending, the appellant cannot succeed on this application.

Orders

  1. [50]
    I propose the following orders:
  1. Appeal dismissed.
  2. Application for leave to appeal against sentence refused.
  1. [51]
    LYONS SJA:  I agree with the reasons and orders proposed by Mullins JA.
Close

Editorial Notes

  • Published Case Name:

    R v BDN

  • Shortened Case Name:

    R v BDN

  • MNC:

    [2021] QCA 130

  • Court:

    QCA

  • Judge(s):

    Morrison, Mullins JJA, Lyons SJA

  • Date:

    11 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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