R v Davis[2021] QCA 163

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Fraser JA and with the orders proposed.
2. [2]
   FRASER JA:  On 9 August 2019 the appellant pleaded guilty to 18 offences of a sexual nature committed during a period of about 13 years, comprising six offences committed against each of three separate complainants.  The appellant also pleaded guilty to one offence of making child exploitation material, and one offence of possessing child exploitation material.  On 3 March 2020 the appellant was sentenced to concurrent terms of imprisonment as follows:

   1. (a)
      For each of six counts of sexual assault committed against the appellant’s sister-in-law between 2004 and 2005 when she was 16 or 17 years old the appellant was sentenced to 18 months’ imprisonment.
   2. (b)
      For the offence of maintaining a sexual relationship with a child between April 2006 and June 2014 committed against SLH (the daughter of the appellant’s wife and the half sister of the third complainant ZAP) when she was seven to 16 years old, the appellant was sentenced to 10 years’ imprisonment.  The conviction for that offence was declared to be a conviction for a serious violent offence.  The appellant was sentenced to shorter terms of imprisonment for three offences against SLH of rape and two offences of indecent treatment of a child under 16, under care.
   3. (c)
      For the offence of maintaining a sexual relationship with a child between April 2006 and June 2014 committed against ZAP (the appellant’s wife’s daughter) when she was 10 to 15 years old, the appellant was sentenced to 10 years’ imprisonment.  The conviction for that offence was declared to be a conviction for a serious violent offence.  The appellant was sentenced to shorter terms of imprisonment for four offences against ZAP of rape and one offence of indecent treatment of a child under 16, under care.
   4. (d)
      The appellant was sentenced to 18 months’ imprisonment for the offence of making child exploitation material and he was given the same sentence for the offence of possessing child exploitation material.
3. [3]
   The circumstances of the offending were set out in an agreed schedule of facts.  The appellant is the de facto brother-in-law of TJW and the stepfather of SLH and ZAP.  SLH and ZAP’s mother suffered from muscular dystrophy and was in a wheelchair.
4. [4]
   The appellant sexually assaulted TJW on six separate occasions.  On the first three occasions she was living with the appellant and his family.  On the remaining three occasions the appellant was visiting the residence where TJW then resided with her family.  The appellant variously pulled up TJW’s skirt and underwear, rubbed her vagina on top of the underwear, rubbed her vagina on three occasions, and on two of those three occasions at the same time squeezed her breast, and (in the last count, when she was close to 18) tried to pull her pants down.
5. [5]
   The appellant commenced the maintaining offence against SLH when she was seven or eight years old and in year three at school.  Whilst SLH and ZAP were in the bed they both slept in, the appellant came into the room without any clothes on.  SLH pretended to be asleep.  The appellant masturbated over the top of her face.  She felt his penis touching her face near her mouth and she remembered “feeling wet stuff” on her face.  The appellant engaged in that kind of conduct at least once or twice every month.  Sometimes he did it as frequently as a couple of weeks in a row.  After SLH and ZAP started sleeping in separate bunk beds, the appellant came in at night and touched her chest, between her legs, and on her genital area over her clothes.  This continued for a while and the touching got harder.  SLH pretended to remain asleep.  Sometimes the touching would make her jump, which caused the appellant to stop.  That happened on a weekly basis.
6. [6]
   When SLH was 12 she slept in her own room.  She saw a secreted video camera in a magazine holder on her desk.  She was too scared to tell anyone.  She left it where it was so the appellant would not notice she had touched it.  Sometimes the video camera was there and sometimes it wasn’t.  The appellant continued coming into her room and touching her.  He touched her underneath her pyjamas on her vagina.  This happened at least one or twice every month and sometimes as frequently as a couple of weeks in a row before longer breaks in the offending.  The appellant continued to offend until SLH left home after graduation from high school.
7. [7]
   Footage from the video the appellant produced using the secreted video camera revealed an offence of rape committed on one occasion, and two offences of rape and two offences of indecent treatment of a child under 16, under care committed on a second occasion.  In each of the three counts of rape the appellant digitally penetrated SLH whilst she was asleep.  She was then aged between eight and 16.  The indecent treatment offences involved the appellant touching SLH’s breasts and masturbating himself.
8. [8]
   The appellant commenced the maintaining offence against ZAP when she was 10 or 11 years old and at a time when he was also offending against SLH.  At the beginning of the maintaining period, the appellant regularly woke up ZAP by touching her breasts, leg area, and genital area underneath and on top of her clothing.  During some periods the appellant touched her every second day.  During other periods he touched her once or twice a month, with occasional breaks in that frequency.  The appellant also watched ZAP while she was in the shower.  She didn’t tell anyone because she was scared of what would happen to her mother and little sister, given that the appellant was the carer for ZAP and SLH’s mother.
9. [9]
   Video footage produced by the appellant formed the basis for the other charges against the appellant.  On three separate occasions when ZAP was between six and 15 years old the appellant filmed himself digitally penetrating her while she was asleep.  On the first occasion the appellant also filmed himself licking ZAP’s vagina.
10. [10]
    On about 18 June 2017 ZAP overdosed on medication.  She was treated at Ipswich General Hospital.  She disclosed to a social worker and to her sister that the appellant had sexually abused her.  In consequence police were notified and they found the video footage.  The offence of making child exploitation material was based upon the appellant’s conduct in taking about 16 indecent photographs and 22 indecent videos of SLH and ZAP.  The offence of possessing child exploitation material was based upon the same video footage and a great deal of other child exploitation images and videos.  The totality of the child exploitation material was categorised as follows:

    1. (a)
       Category 1: 357 images and 6 videos
    2. (b)
       Category 2: 12 images and 1 video
    3. (c)
       Category 3: 136 images and 17 videos
    4. (d)
       Category 4: 12 images and 7 videos
    5. (e)
       Category 5: 1 image.
11. [11]
    Victim impact statements by TJW and SLH described in detail what the sentencing judge accurately summarised as “profound” and “on-going” adverse impacts of the appellant’s offending, including the continuing effect upon the ability to engage in meaningful employment or study.
12. [12]
    The sentencing judge treated the appellant’s plea of guilty as a timely plea.  It saved the complainants the further trauma that would be involved in them having to give evidence and it avoided the need for a trial.  The sentencing judge accepted that the plea demonstrated some remorse and cooperation with justice.  A report by a psychologist recorded that the appellant had gained some insight into his offending and expressed remorse, although to some extent he shifted the blame to factors other than his own personal responsibility.  The sentencing judge accepted that the appellant had been assaulted shortly after he entered the prison system.  He suffered facial injuries and aches and pains, but he had no ongoing physical consequences.  Some months afterwards, testing by the psychologist suggested significant evidence of symptoms of post-traumatic stress disorder but he had not been diagnosed with such a disorder.
13. [13]
    The ground of the appellant’s application for leave to appeal against sentence is that the sentence is manifestly excessive.  The appellant emphasises that he had no criminal history.  There is no reason to consider that the sentencing judge imposed a sentence upon any different basis.  The appellant submits that the sentencing judge referred to him as “scum”.  The transcript demonstrates that this submission is incorrect.  Other points made by the appellant do not have any bearing upon the appropriateness of the sentence.
14. [14]
    The sentence is severe, particularly because it will be necessary for the appellant to serve 80 per cent of the term of imprisonment before he will be eligible to apply for parole.  Notwithstanding the mitigating factors, all of which were taken into account, a sentence at least as severe as that which was imposed was required by the nature and circumstances of the appellant’s extensive sexual offending against three different children during a total period of some 13 years.  The seriousness of the offending was concisely characterised by the sentencing judge:

“Your offending was vile and depraved.  It was all committed in gross violation of trust. The trust of your wife and the trust of the girls involved.  It continued for well more than a decade.  It appears only to have ultimately been interrupted, in respect of the third victim, because of measures of extreme self-harm that she took, which ultimately led to the girls’ mutual confessions to each other and, seemingly, your detection.  That is, your conduct continued right throughout.  There was no time at which you voluntarily desisted.”

15. [15]
    The sentencing judge rightly considered that it was necessary for the sentence to punish and denounce the offending, whilst also providing conditions favourable to the appellant’s rehabilitation.  The sentencing judge was also right to regard general deterrence as a very important consideration, particularly having regard to the circumstances that, not only did the appellant have care of children by virtue of the step-parent relationship, but the unfortunate circumstances of his wife meant that he had a larger share of the care of the children than otherwise would have been the case.  As the sentencing judge observed, “People who come to have the care of children in such circumstances must know the abuse of the relationship of care and of the inherent trust that goes with it by way of sexual offending against such children will be met by the courts with condign punishment.”
16. [16]
    The ground of the appellant’s appeal that the sentence is manifestly excessive could succeed only if, “having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”.^[1]  The appellant did not point to any relevant comparable sentence.  Sentences of 10 years’ imprisonment were imposed in each of R v WBG^[2] and in R v BBM^[3] upon pleas of guilty to offences of maintaining a sexual relationship with a child.  Upon a comparison of the overall offending and the offender’s personal circumstances in each case, those offences were no more serious than the appellant’s offending, aggravated as it was by his offending against three children over a great many years.  Using those broadly comparable sentencing decisions as a yardstick, the appellant’s sentence is not seen to be out of kilter with comparable sentencing decisions.  His sentence is not manifestly excessive.
17. [17]
    The appellant also appeals against conviction.  The appellant has not adduced any evidence in support of the appeal against conviction.  He asserts that he was given legal advice that his best chance was to plead guilty “even though one of the persons involved who accused me, I did not do anything to”.  He asserts that he was advised that if pleaded guilty he would be given a sentence of less 10 years’ imprisonment.  He asserts that he was not aware of statements by complainants until shortly before he pleaded guilty and he was given no time to consider them, although he acknowledges that he had those statements two days before he pleaded guilty.
18. [18]
    Nothing submitted by the appellant suggests that he did not enter his pleas of guilty otherwise than in the exercise of a free choice in his own interests.  There is nothing in the material available to the Court to suggest that the appellant has been the victim of any miscarriage of justice.  In these circumstances the appeal against conviction could not succeed.^[4]

Proposed orders

19. [19]
    I propose the following orders:

3. (1)
   The appeal against conviction is dismissed.

3. (2)
   The application for leave to appeal against sentence is dismissed.

20. [20]
    MULLINS JA:  I agree with Fraser JA.