R v Grace[2022] QCA 10

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Boddice J.

2. [2]
   DAUBNEY J:  I agree with Boddice J.

3. [3]
   BODDICE J:  On 13 March 2020, a jury found the appellant guilty of five counts of rape.  The jury found the appellant not guilty of a further count of rape.
4. [4]
   On 28 July 2020, the applicant was sentenced to 17 years’ imprisonment for one count of rape and lesser concurrent terms of imprisonment for the remaining counts of rape.  A period of 137 days spent in pre-sentence custody was declared time already served under the sentences.
5. [5]
   As a consequence of the imposition of a sentence in excess of 10 years, the applicant was automatically declared to have been convicted of a serious violent offence, necessitating he serve 80 per cent of the sentence of 17 years’ imprisonment.
6. [6]
   The appellant appeals his convictions.  The sole ground of appeal is that the verdicts are unreasonable and cannot be supported by the evidence.  However, the appellant’s outline of submissions also asserts that there was a failure to have regard to his mental health; there was an erroneous ruling in the refusal of an application to sever the counts; and the verdicts of guilty are inconsistent with the verdict of not guilty.
7. [7]
   The ground for any appeal against sentence, should leave be granted, is that the sentence imposed was manifestly excessive.

Background

8. [8]
   The applicant was born on 14 October 1985.  He was diagnosed as having ADHD at the age of seven, and Asperger's syndrome when aged approximately 15 years.
9. [9]
   The counts of rape related to three separate complainants.
10. [10]
    Counts 1 and 2 related to TJP.  Both were alleged to have been committed on or about 30 December 2016.
11. [11]
    It was alleged the appellant digitally penetrated TJP’s vagina without her consent (Count 1) and penetrated the complainant’s vagina with his penis without consent (Count 2).  The appellant was convicted of Count 2 and found not guilty of Count 1.
12. [12]
    Count 3 related to KDLF.  That offence, committed on or about 1 March 2017, was particularised as penile penetration of her vagina without consent.
13. [13]
    Counts 4, 5 and 6 related to RKS.  All were committed on 7 May 2017.  The rapes were particularised as digital penetration of the complainant’s vagina without consent (Count 4), penile penetration of the complainant’s vagina without consent (Count 5) and digital penetration of the complainant’s vagina without consent (Count 6).
14. [14]
    Each of the complainants was aged 15 years at the time of commission of the offences.  The appellant was aged 31 years.
15. [15]
    Each of the complainants communicated with the appellant through Facebook Messenger, via the Facebook profile Sam Antonia.
16. [16]
    There was no dispute at trial that the appellant used the Facebook profile of Sam Antonia.  At issue was whether each penetration was without consent.

Pre-trial ruling

17. [17]
    An application for separate trial, brought pursuant to s 590AA of the Criminal Code, was refused on 18 October 2018.
18. [18]
    It was ruled that the circumstances of each complainant being sexually assaulted by the appellant revealed “a distinctive pattern of behaviour” sufficient to amount to a modus operandi.^[1]  Each rape was of a female child aged 15 years, in circumstances where the appellant made arrangements for that child to come to his residence, offered them homebrew and, in respect of two, successfully encouraged them to be heavily intoxicated.  All of the offending occurred on the appellant’s bed in circumstances where each complainant was lured into the bedroom.  Whilst there were differences in the offending itself, the pattern of behaviour had a strong degree of probative force, in circumstances where the credibility of each complainant was in issue, and the evidence of each would highlight the improbability of other, innocent explanation.
19. [19]
    Those conclusions supported the joinder of the counts.  Further, those particular hallmarks supported a conclusion that the probative value of the evidence outweighed any prejudicial effect, such that there ought not to be a severance of the indictment and an order for separate trials in the exercise of any discretion.  The risk of improper use of the evidence was able to be properly guarded, by appropriate directions.

Evidence

Counts 1 and 2

20. [20]
    TJP was interviewed by police on 12 February 2018.  In that recording, tendered pursuant to s 93A of the Evidence Act and played to the jury, TJP said she met the appellant a year or two before.  He was a friend of her friend’s boyfriend.  The appellant told her he was 20 turning 21 and that he was from Los Angeles and had moved to Australia because his brother had been shot and he had to take care of his brother’s children.  TJP described the children as two little girls.  They did not live with the appellant at the time, but did so later, when she heard them call him dad.  She did not realise the appellant was lying to her about his age or the children.
21. [21]
    TJP had messaged the appellant a few times and, after discovering they did not live far from each other, met him near a bridge before walking back to his house.  It was about seven or eight o’clock at night.  On the night in question, she was having an argument with her parents.  She communicated with the appellant through Facebook.^[2]
22. [22]
    When they arrived at the appellant’s house, the appellant made her drinks.  The appellant sold homebrew, which she understood was made up of vodka, bourbon, whiskey and different flavoured alcohol.  TJP could not recall how much she drank, but it was “enough to get me wasted”.^[3]  She described herself as “Pretty close to being blind drunk”.^[4]  At one point, the appellant went into his room and put on some music on his laptop.  TJP was bored by herself, so followed him into the bedroom.  She laid on the end of the bed and looked at the laptop.  She asked if she could put a few songs on, but the appellant said no.
23. [23]
    TJP said the appellant after a while “just rolled on top of me, like so he was facing down towards me”.^[5]  He tried to kiss her and started touching her inappropriately with his hands.  TJP said no “I didn’t want to do that”.  TJP could not move her head back because it was hitting the bed.  The appellant touched TJP on her private genitals, initially on the outside of her vagina and then inside.  TJP said she definitely made it clear to the appellant she did not want to but he took his pants off, moved her pants to the side and “just put his dick in me”.^[6]  The appellant was on top of her, “like holding me down” with his weight.^[7]  She was unable to push him off.  She was trying to stop it the whole time.
24. [24]
    TJP estimated the whole event took five to 10 minutes.  It ended when the appellant took his penis out and ejaculated on TJP.  It stained her clothes.  After, the appellant got up and she went and had a shower.  She continued drinking and fell asleep.  She woke up in the morning and left his house.  It was light.  She walked home.  It took about 15 minutes.
25. [25]
    TJP said a few days or maybe a week later, she started to talk to the appellant again.  He kept asking her to come around.  She did not want to go straight away.  The next time she saw him was for his “21^st birthday”.  On a few other occasions she walked almost to his house but when she reached the street, she turned round and walked back home.  TJP wanted to go there to drink, but did not want to go there because “I knew that he’d wanna have sex with me”.^[8]
26. [26]
    TJP told RKS, her best friend at the time, the day after or later, that the appellant did something to her but did not say what.  TJP could not recall telling anyone else.  When asked why she did not tell anybody or report it, TJP said “it doesn’t affect me as much as it does other people.  It’s, it’s not affecting me now.  It didn’t affect me then, and it probably won’t.”^[9]
27. [27]
    TJP said she did not speak to the appellant about it until recently “after things happened with RKS”.  TJP told the appellant he “probably did the thing same thing to her that you did to me”.^[10]  Her last conversation with the appellant was on 9 October 2017.  She had stayed at his house a few times when she did not have anywhere to go.  Those times were after the appellant’s 21^st birthday.
28. [28]
    A statement prepared by TJP dated 1 February 2018 was read to the jury.  In that statement, TJP said she knew “a guy named Sam” whose Facebook profile is Sam Antonia.  He told her he was 20 when they met in early 2016.  He also had his 21^st birthday whilst they were friends.  In 2016, on a night when she was not happy at her parents, TJP messaged Sam on Facebook.  He asked if she wanted to come over for some drinks.  They met halfway and walked back to his house together.  That was the first time she had gone to his house.  Sam knew she was 14 or 15 at the time.  They drank and listened to music before going into his bedroom.  TJP was extremely drunk and had been drinking his homebrew.  When she was in the bedroom, she passed out and “he took advantage of me”.  She never reported it to police but told her friend, RKS, about it the next day.  She did not go back to Sam’s house until his 21^st birthday.  On that occasion, she drank homebrew again.  She went to his house a few other times.  Some nights she had nowhere else to go.  Every time she went there she “got wasted” on his alcohol.
29. [29]
    TJP also said RKS, who was the same age, had gone with TJP and another friend, Dylan, to Sam’s house on another occasion.  They arranged to go over Facebook.  TJP remembered “drinking, having people try to force me to eat food, running out of the house and [RKS] chasing me.  I have no idea why I was running and screaming.  I was extremely drunk that night.  I rarely get that drunk but that night, I was smashed.”^[11]  TJP recalled coming out of the laundry and noticing that Sam and RKS were not in the lounge.  She tried to open the bedroom door, but it was locked.  She knocked and got no response.  She could hear music playing in the bedroom.  It was loud.  Later, when Sam was asleep, RKS told TJP that Sam had held her down and had had sex with her.  RKS said she told Sam no several times, but he did not listen.  TJP described RKS as not crying but seemingly upset.  TJP grabbed a knife from the kitchen.  She was angry and wanted to kill Sam.  She went into the bedroom and told him “to get the fuck up”.  He just rolled over.  RKS dragged her from the room.  TJP did not remember anything after that, apart from standing with the knife and threatening to stab RKS and Dylan.  The next morning, when Sam awoke, he was asking where RKS was.
30. [30]
    TJP said, when she saw RKS soon afterward, RKS had a hickey on her neck “the size of a golf ball”.  RKS told her Sam did it to her.  After that night, Sam would message TJP on Facebook asking, “where is your friend [RKS]?”  RKS also showed her messages from Sam on Snapchat, asking why she had left that night and did she want to come back for more drinks.  RKS ignored the messages.  TJP did not remember having a conversation with RKS about reporting it to the police.  She did recall seeing Sam after that night, when she had nowhere to stay.  She also approached him on Facebook about what had happened to RKS.  He played dumb, asking who is RKS.  She had not seen Sam since July 2017.  He had blocked her on Facebook.  TJP said on 15 December 2017, police had attended her parents’ address, requesting she provide a statement.  She was not prepared to do so.  On 1 February 2018, she attended the police station and provided this statement.
31. [31]
    In cross-examination, TJP denied knowing KDLF.  She confirmed the 108 pages of Facebook messages in Ex 13 were messages exchanged with Sam over Facebook.  Her main form of communication with the appellant was Facebook Messenger.  She accepted that at around the time she was communicating with the appellant, she had an incorrect date of birth on her Facebook page, namely 12 May 1999.  That date of birth was accessible to someone looking at that profile.  She accepted she talked to the appellant often about getting drunk and wanting to get drunk.  She also accepted she had told the appellant she used to live on her own.  That was not true.
32. [32]
    TJP accepted she had, on 30 December 2016, offered to bring alcohol over to the appellant’s house.  She believed she had told the appellant, prior to December 2016, her true age was but could not be certain.  She accepted she was using drugs in 2016, including methylamphetamine and cannabis.  She did not think she used either of those drugs on the night of 30 December 2016.  TJP accepted that, on the night of 6 May 2016, when she was at the appellant’s residence with RKS, they were smoking cannabis.  Neither methylamphetamine nor cannabis personally affected her memory.  She started using methylamphetamine when aged 14 and still occasionally used it.  She was using it about twice a month initially.  She was addicted to methylamphetamine in 2016.  When using methylamphetamine, if she had not slept for a couple of days, that would impact her memory but she generally would not stay up for more than a day or two.
33. [33]
    TJP accepted she had told police she had further conversations with the appellant a few days or weeks later, but she had in fact Facebook messaged him the next morning.  She was just “guessing and going off what I thought happened.”^[12]  The first message she sent the appellant on the morning after 30 December 2016 was “Mad night”.  The appellant had not asked her how her night was.  She sent the first message to him.  She accepted the message meant she had a good night the night before, even though it was the morning after she said she had been raped by the appellant.
34. [34]
    TJP also agreed that, on 31 December 2016, the appellant sent her a Facebook message “I – well, I told you I’d take your mind of shit and give you a good night.  And I did.” to which she replied “Oath”, meaning it was a good night.  She also agreed the appellant had asked her “Keen to do it again?” and she had replied “Yep”.^[13]  TJP said “At the time, I believe I would have meant, like, ‘Yeah, I got really drunk and took my mind off of shit.  I suppose that’s what I was referring to by that.  But it was – like, I – he did ta– it was, like – I did get drunk, and I did sort of not have to think about shit for a while, and it was good.  But that does not change the fact that he raped me”.^[14]
35. [35]
    TJP accepted that, on 13 April 2017, the appellant sent her a Facebook message “Oh, awesome.  I love drinking with you” to which she replied “So do I, dude.  Aha”.  She just meant she loved drinking.^[15]  She accepted she had had time to reflect on things but said “I didn’t really do much reflecting, though”.^[16]  TJP also accepted that, in her Facebook messages with the appellant, she had falsely told him her mother had died but denied she made a habit of being untruthful.
36. [36]
    TJP agreed that, in her statement to police on 1 February 2018, she said she passed out and the appellant took advantage of her but that that was not what she said in her interview with police on 12 February 2018.  She knew the importance of telling the truth.  What she said in the interview with police on 12 February 2018 was true.  At the time of making the statement, she was not thinking about it, she just wanted to go home.  She remembered things more clearly when interviewed by police on 12 February 2018.
37. [37]
    TJP accepted she told police the appellant had ejaculated onto her clothes.  She had not given those clothes to police as she did not remember what she was wearing until recently.  She accepted she did not call police on 30 December 2016, although she had her phone with her at that time.  She accepted she did not call RKS.  She agreed she had continued drinking with the appellant.  She agreed she went back to the appellant’s house on other occasions.  She denied she had consensual sex with the appellant on the night of 30 December 2016.
38. [38]
    TJP accepted she told RKS she had been raped but did not say it was by the appellant.  She accepted she took RKS to the appellant’s house on 6 May 2017 and told her the appellant was nice.  She accepted she was maybe going to “hook” the appellant up with RKS.  The appellant had asked that night whether they were double dating and she had replied “Yes”.  She agreed she told the appellant RKS was 16.  She accepted RKS was her best friend at the time and that she brought her to the appellant’s house after he had raped TJP.
39. [39]
    TJP accepted that, in Facebook messages in October 2017, she said to the appellant that RKS was too drunk that night in May 2017.  She did not know how much alcohol RKS consume.  She accepted that, in her statement to police, she had said she did not really see RKS drinking that night.  TJP accepted she got extremely drunk on that night in May 2017.  She had threatened to stab Dylan and RKS, just after RKS told her the appellant had raped her.  She did not know why she threatened to stab them.  She agreed that when police spoke to her on 15 December 2017, she told them she had been raped by the appellant but said she did not want to provide a statement.
40. [40]
    TJP said, when it was put to her that she had never told the appellant she was under 16 at any time in December 2016, she could not remember.  She also said, when it was put to her that the appellant had never penetrated her with his finger, she could not remember but later said she thinks he may have “before he put his dick in me”.^[17]
41. [41]
    In re-examination, TJP said she continued to message the appellant after 30 December 2017 because “I’ve been raped before, and it didn’t affect me in the way that it probably should have …  I didn’t think it was a big deal.”^[18]  TJP said no to the appellant on multiple times, but “ended up just giving up and just laying there so I didn’t have to prolong any of it, and just let it happen after a while, because it was just making it harder.”^[19]

Count 3

42. [42]
    KDLF was first interviewed by police on 11 April 2017.  She told police she was speaking to them about “A sexual assault … involving Samuel Antonia”^[20]  She met him through an ex boyfriend, Brayden Jenner.  They met at the train station a few times.  They also spoke on the internet a few times.  They became close friends.  KDLF said they stopped talking for a while.  Sam then messaged her, asking to catch up.  She agreed to do so.  Sam spoke about drinking with him.  She had been drinking before so did not have any problems with it.  Sam picked her up from the Caboolture station, before they travelled by bus to Burpengary.  At one point they received a lift from a woman seeking directions to a local church.  They purchased some soft drink and food before walking to his house.
43. [43]
    They sat in his home talking before Sam asked if she wanted a drink.  They started drinking homebrew.  Sam told her she was “gonna be his new drinking buddy”.^[21]  They kept drinking but after the fifth or sixth cup, KDLF started feeling it.  She did not remember what happened much after that but remembered not being able to sit up properly.  After blacking out, she woke out in Sam’s bed and “he was inside of me”.^[22]  KDLF blacked out again and woke in the shower.  She could not stand.  Sam was saying he was going to wash her clothes.  KDLF woke up the next morning.  Sam was asleep beside her.  She was wearing nothing but her tee shirt.  He was wearing his underwear.  She found her clothes under his bed.  She left before he woke up, walking to the train station.  She caught the first train to Caboolture.  She got rid of her clothes, changed and had a shower.  She did not tell anyone what had happened and carried on with the day.
44. [44]
    KDLF had further contact with Sam after that day.  She recalled a message from him, telling her to stop telling people he had raped her and saying she was flirting with him while drunk, and kept kissing him and that she had consented to having sex with him.  KDLF said it was all dropped for a while.  She was being threatened by people if she kept saying that Sam raped her.  She recalled that the week prior, she saw Brayden, who told her to stop when she went to give him a hug, saying she might claim that he raped her.  Brayden said it was “his brother’s word over mine” and that he would believe family over me.
45. [45]
    KDLF told a close friend in Melbourne, PW, she had been raped by Sam.  She did not go into details.  She tried to tell other people, including Brayden Jenner, who did not believe her, saying Sam would never do anything like that because he is not that type of person.  She told another friend, HCC, who was close to Sam, the “full story”.^[23]  HCC was saying he would kill Big Sam and that it should not have happened, especially when “he’s twenty-two and I was fifteen”.^[24]  KDLF also told her then boyfriend, Trent, that she had been sexually assaulted.  He kept telling her to go to police, but she said she was not ready at that time.  She told him she had gone to Big Sam’s house for drinks and got too drunk and woke up and he was “inside me”.  BM messaged her on Facebook, asking her about “the whole big Sam thing”.  In fear, she had denied it.  BM said she had found out that KDLF was telling people that Sam raped her and that she would have her head stomped on by other people and that she was making a lot of enemies by telling people.
46. [46]
    KDLF said she told her mother and grandmother, because she was not sure what to do.  She told her mother about a month after it happened.  Her mother contacted police the next day.  They had conversations with police but they could not find out Sam’s real identity.  She did not provide a statement when she first spoke to police.  That was her decision.  Police had taken photographs of messages between Sam and KDLF on her telephone.  KDLF searched Google maps on her phone to identify Sam’s house.  She went that day with her mother past the house.
47. [47]
    KDLF said Sam had alcohol bottles on the floor.  They looked like wine bottles that had caps on them.  On the top was written what it was, like chocolate rum, vodka and tequila.  Sam was telling her it was all homebrew he was selling to other people.  KDLF described Sam as well known by other people for always looking out for girls and friends.  He was easy to get along with, but could lose his temper and be verbally aggressive.  He had a tribal tattoo on his arms.  She saw that when he was on top of her and he was completely naked.  She had not previously seen him with his top off.  She had always known him on Facebook.  He called himself Samuel Antonia.  Others referred to him as Big Sam.  The incident involving him occurred on 1 March 2017.  She had checked her Facebook messages.  It recorded he was going to collect her from Caboolture train station.  It was around five thirty to six o’clock at night.
48. [48]
    KDLF said she had not previously spent time alone with Sam.  She described their relationship as just friends.  She did not want anything more with him.  There was never any talk implying a relationship.  Sam knew how old she was as he asked her age and she told him she was 15 on the day she went to his house.  It happened on the bus, when Sam was telling her that they were going to have a fun night.  They discussed drinking when they were setting up meeting together.  The first cup of alcohol given to her was homebrew rum and coke.  Each cup thereafter had more alcohol.  By the fourth or so drink, Sam was filling up the cup all the way to the top with no mixers.  Sam was drinking rum as well, but he was putting mixers with his drink.  At no time had she discussed having sex with Sam.  She has had conversations with him on Facebook since that night but has not met with him.  Police photographed all of those conversations.
49. [49]
    KDLF said she told PW she had been raped by Big Sam.  She did not want to go into any other detail.  She told her friend, CM, she had been sexually assaulted by Big Sam.  KDLF said, when her friend AM came around to the house two weeks ago, she told KDLF she had been to Big Sam’s house during the weekend and they had been drinking together.  KDLF asked if Sam had done anything to her.  She replied that his mother and nieces were there.  KDLF then told her Sam had sexually assaulted her when she was drunk.
50. [50]
    KDLF said, when she woke up the morning after Sam having sex with her, all of her genitalia hurt a lot.  She could not walk properly.  Her inner thighs were really hurting.  She did not know if Sam had ejaculated.  She did not notice any blood.
51. [51]
    KDLF’s evidence, recorded on 7 February 2019, was played to the jury.  KDLF said she knew a man called Sam, who used the username Samuel Antonia on Facebook.  She was introduced to him through her ex partner, Brayden Jenner.  Their interactions had been talking for one or two minutes, usually at a train station.  They also communicated on Facebook.  She contacted Sam on Facebook using the username Madison Sketchy Lee.
52. [52]
    They had discussions about her age before the incident in March 2017.  She thinks she told Sam she was 16.  They did not have discussions about her age on the night of the incident.  That night Sam took her on a tour of the house.  There was a room set up for two little girls.  He said they were his nieces, and they would come to stay sometimes.  She had not been to Sam’s house before that night.
53. [53]
    KDLF agreed she had drawn diagrams for police, pointing out the location of Sam’s house.  She had also identified Sam from 12 pictures.  The messages photographed by police were messages between her and Sam, sent on 1 March 2017 through Facebook Messenger.  There were further messages exchanged on 14 April 2017.^[25]
54. [54]
    In cross-examination, KDLF agreed she first initiated contact with Sam on 28 January 2017 through Facebook Messenger.  She agreed her profile page had as a date of birth 26 January 2000; said her gender was female; and in response to the words interested in she had entered “men”.^[26]  It also said she worked at the Met Nightclub as a photographer.  That was a lie, as was the birthdate.  She accepted, in her initial messages with Sam, she told him she was 16.  That also was a lie.
55. [55]
    KDLF accepted she kept in contact through Facebook Messenger with Sam.  On 20 February 2017, Sam asked whether she wanted to come over to his place.  She said she would come the following night.  She agreed on 28 February 2017 she sent a message referring to smoking cannabis.  After being warned, she declined to answer questions about similar messages sent on 27 February 2017 and 14 April 2017.
56. [56]
    KDLF accepted that, she went to Sam’s house on 1 March 2017.  She accepted she was drinking quite heavily.  She denied trying to kiss Sam.  She would never have touched him because he was her ex boyfriend’s best friend.  It was the first time she had ever “hung out” with him.  She denied she took off her clothes.
57. [57]
    KDLF accepted she did not go straight to police.  She also did not tell anybody she had been raped by Sam.  KDLF was fearful.  Sam had portrayed himself to be quite a violent person.  When asked whether she was sure she was not dreaming, KDLF replied “I’m sure I wouldn’t have a dream about my rapist putting me in the shower.  I’m sure I wouldn’t have a dream about someone on top of me having sex with me.  I’m sure I wouldn’t dream it and then have to press charges and come to court today when I am not mentally well at all and tried taking my life because of it”.^[27]
58. [58]
    KDLF accepted that, on the afternoon of 2 March 2017, Sam messaged asking where she had left his tobacco.  Later that night, Sam sent her a message “Apparently you’ve been going around saying that I raped you, like, WTF.  I would never do that”.  She asked who was saying that and, in response to Sam’s message “So you aint been saying that” she had replied “No”.  At no point during that exchange, did she mention Sam had raped her that night.  KDLF said she was fearful and had nowhere else to go.  She was having family problems and did not want to be on the streets.
59. [59]
    KDLF accepted she next had contact with Sam on 14 April 2017.  She messaged him about a party that night.  She wanted to ensure he was going to be there.  On that day, she also sent Sam a message “But there was sex, was there not?”  She denied she sent that message because she was not certain as to whether they had sex.  She was trying to see if Sam would admit to having sexual intercourse with her on that night.  She was trying to do that with her mother.
60. [60]
    KDLF accepted that later that night she also sent a message to Sam “Remind me again how I consented to you being on top of me when I was barely awake.  Gosh, I like nursery rhymes too.  If I’m somewhat a liar then was there consent?”  She did not report it to police because she was fearful and homeless.  She was also threatened on multiple occasions about it.  She was not going to risk putting herself in danger.  She was waiting until she was mentally well enough and until she felt safe.
61. [61]
    KDLF accepted when she first went to the police station.  She reported the allegation but left saying she did not want to report it.  She was receiving messages from people she had not even known before, threatening her life.  Those messages were given to police.  She denied she did not want to make a complaint because she knew it was a false complaint.
62. [62]
    KDLF only went to the police station on 29 May 2017 to provide a statement, after being assaulted by three females in a park on 28 May 2017.  Those three girls asked her whether she had been saying to police that Sam had raped her.  It was then that she reported the rape to police.  She denied she had to justify what she had been saying about Sam.  Before that assault she had been having difficulties with her mental health.  She had been to hospital and had tried to commit suicide before this incident.  She denied knowing either TJP or RKS.
63. [63]
    KDLF’s mother, SF, gave evidence that, on 10 April 2017 at about 6 pm, she was talking to her daughter about some issues at school when KDLF exploded and told her she would not understand “that it’s done that he raped her”.  She later sat down with KDLF and told her if someone had sex without consent it was not her fault and it was okay to be upset and angry.  KDLF then told her that Sam and her were messaging, with Sam wanting her to go back to his house; that Sam met her at the train station; that they went by bus, before getting a lift with another woman who needed directions to the church; and that Sam told KDLF he lived at the house with his aunty and his nieces.
64. [64]
    KDLF said they were drinking alcohol and smoking cigarettes.  At one point, KDLF woke up in Sam’s bed.  Sam was on top of her, raping her.  She passed out again.  When she came to the second time, she was in the bathroom, in the shower.  Sam told her he was going to clean her clothes.  When she came to the third time she was on his bed.  She found her clothes, got dressed and left.
65. [65]
    SF called Policelink and went with KDLF to the police station the next day.  Whilst they were talking to police about it, KDLF became very angry and upset.  She stormed out of the building.  A statement was not given that day.  On 14 April 2017, SF received a text message on her mobile through Facebook Messenger from KDLF: “I just got the admission to him having sex with me”.  At that stage, they were both in the same house but in different rooms.
66. [66]
    In cross-examination, SF accepted she was not sitting with KDLF when she received that text message.  She did not see the Facebook post at the time.  She was sent a screenshot of it.  SF also accepted that, in her police statement, she said “she thought her daughter thought she was talking about taking drugs”.  She was concerned about cannabis use and alcohol use.  She had been in contact several times with the guidance counsellor at school.  KDLF was not going to school at that time.
67. [67]
    SF accepted that, when they had the conversation in April 2017, KDLF did not show her the clothes she was wearing on the night.  It was when they were having a fight at a later point that KDLF showed her the shorts.  KDLF put them in the bin.  SF took them out of the bin.  This was after they had been to police.  SF accepted that, around that time in 2017, she had caught out KDLF lying.
68. [68]
    In re-examination, SF said police told her to put the shorts in a plastic bag and police would collect them as evidence.  SF put them in a room they had under the stairs.  The hot water system burst and the shorts got damaged and her partner at the time threw them out.
69. [69]
    PW gave evidence that she had lived in Queensland for a few months at the end of 2015.  During that time she knew a man called Sam, who used the Facebook Messenger name of Samuel Antonia.  She recalled providing a statement to police about something she was told by KDLF.
70. [70]
    In cross-examination, PW accepted she first received a message through Facebook from KDLF asking if she was busy.  KDLF then telephoned, during which KDLF told her Sam had raped her.  She could not recall the exact date of that message.  It was a few months ago.  In her statement to police, given on 29 September 2017, PW said she told KDLF to go to the police station.

Counts 4, 5 and 6

71. [71]
    RKS spoke to police on 18 December 2017.  In that interview, tendered pursuant to s 93A of the Evidence Act, she told police that TJP had put up a photo of RKS on Snapchat.  Sam had replied to that story, asking who she was, to which TJP said she was her friend.  Sam suggested they come over and have drinks.  RKS said she did not like drinking.  She had had vodka once and it felt like her liver was burning.  One day when they were with Dylan, TJP and RKS went to Sam’s house.
72. [72]
    Sam made drinks for TJP and Dylan.  Sam said he wanted to use different alcohol and went to the laundry.  He gave RKS a drink.  TJP was trying to encourage her to drink it.  RKS said it was in her hand the whole night.  By one o’clock in the morning, TJP was really drunk.  TJP started doing “really crazy things”.^[28]  At one point, TJP ran away from the house.  When she came back, RKS heard Sam locking the front and back doors.  He said he did not want TJP to escape again.
73. [73]
    RKS said Sam kept asking her to come into his room so he could show her the music.  She kept saying she would stay with TJP.  Sam went behind her and forcibly grabbed her shoulders.  He told her she was going to like the music.  RKS said she did not know what to do and went into his bedroom.  There was a laptop on the bed.  He told her to sit down and he started playing his music.  Sam then started putting his hands down her pants and trying to kiss her.  RKS was saying “No I don’t want this”.  She was really scared.  Sam kept telling her to be quiet.
74. [74]
    RKS was wearing a black jumper and black leggings designed to look like jeans.  Sam sat behind her, reached around and put his hand down the front of her pants.  He would not let her go, even though she kept struggling.  Sam put his finger inside her vagina.  He was also tilting her head back and forcibly kissing her.  When he was tilting her head back, they heard TJP talking outside the bedroom door.  Sam told her to be quiet and locked the bedroom door.  RKS said she was leaving but he pushed her back down, got on top of her and started taking off her clothes.  She was telling him to stop, that she did not want this.  Sam did not respond.  He put his hand around her neck and started choking her, to the point that she could not breathe.  Sam then unzipped his pants and started having sex with her.  He “stuck his dick in me”.^[29]  At that point, RKS was not saying anything.  She was trying to get his hand off her neck.  Sam ejaculated and did not use a condom.
75. [75]
    RKS said afterwards Sam had his arms around her and she kept pushing him away.  He kept telling her to stop and calm down and go to sleep.  He put a leg over her leg.  Sam then put his finger inside her again.  He kept telling her to shut up and enjoy it.  He said he would keep doing that until she went to sleep.  RKS waited for Sam to fall asleep.  She grabbed her clothes.  She tried to clean herself up in the bathroom as she was bleeding a lot.  It was hard to walk.  She told TJP they were leaving, but TJP resisted, saying no.  She told TJP what had happened.  TJP grabbed a knife and was trying to get into Sam’s room.  She wanted to kill Sam.  RKS and Dylan stopped TJP.  They took the knife off her.
76. [76]
    RKS said they could not unlock any of the doors.  They spent a long time trying to find a key.  When they found the key, she grabbed TJP’s arm and begged her to leave.  TJP kept telling her no.  At the same time, RKS was messaging “Mak”, a good friend, telling him she was locked in a house somewhere near the station.  He kept telling her to find anyway possible to get out of the house.  Mak was trying to calm her down.  When Sam went to the toilet, RKS went into the bedroom.  She found the keys on his dresser.  When she opened the door, she grabbed TJP’s hand and begged her to leave.  She kept saying no.  RKS said she could not be in the house any longer and left the house on her own.  She started walking to the first street she had been told by Mak.  Mak called her at about 3 am.  They walked to the train station.  Mak kept asking her what had happened, but she would not tell him.  She told Mak “that I drank, even though I didn’t, and it wasn’t until, I don’t, I know it was a Wednesday that I told him, I told him another day.”^[30]
77. [77]
    RKS said TJP was staying at her house when they went to Sam’s house.  It was 6 May 2017.  TJP knew Sam because she had had drinks with him before.  She could not remember Sam’s last name but was sure it started with A.  TJP told her Sam had been asking about RKS and asking if “we all wanted drinks”.  She described Sam as being overweight and wearing clothes “kind of like teenager clothes”.^[31]  She would never have thought he was 30.  He introduced himself as being 21.  Sam asked her what age she was.  She told him the truth, 15.  He kept asking her about school and then the questions started becoming “like really, like flirty and just inappropriate”.^[32]  He was asking questions like “what’s the furthest I’ve done with a guy and if I’ve like had sex with a guy”.^[33]  RKS laughed them off. Sam knew how old RKS was because TJP told him.
78. [78]
    RKS said Sam had lots of alcohol in the laundry.  Sam said he made his own.  The bottles did not have any labels.  Sam gave her a drink that was light pink in colour.  She kept it in her hand the whole night.  TJP was drinking quite a few drinks.  She was very drunk.  She described Sam as not seeming that drunk.  He was talking and walking fine.
79. [79]
    RKS said she had hickeys on her neck, just like bruises on her collarbones.  A friend, ET, saw the marks on her neck.  RKS also told a friend at school, VT.  She asked if she could speak to VT’s sister, CT, because she went through the exact same thing.  RKS was scared and did not know what to do.  CT told her that she needed to do this.
80. [80]
    RKS gave pre-recorded evidence on 10 January 2019.  In that evidence, she accepted she had given police a video recorded interview in December 2017 and a written police statement in April 2018.  She identified Sam as one of four people in a photograph.  The other people were Dylan, TJP and herself.  That photograph had been taken in Sam’s house on the day in May 2017.
81. [81]
    In cross-examination, RKS said she did not know BJ or KDLF.  She denied using drugs on the night of 6 May 2017.  She denied there was marijuana at Sam’s house.  The video she took of TJP smoking a bong contained tobacco.  She denied using drugs at all in 2017.  She denied she sold drugs with TJP in 2017.  She denied drinking on the night of 6 May 2017.  RKS also denied sending messages to the effect that she got a four month suspension after selling ecstasy.  She was suspended in 2017 but not for selling drugs.  She was caught smoking a cigarette outside a schoolgrounds in her school uniform.  She was smoking a cigarette.
82. [82]
    In cross-examination, RKS denied she consensually kissed Sam that night and that she slept in the bed with Sam but both kept their clothes on the whole time.  She denied the doors to the house did not need a key to open.  RKS accepted she did not go to police until December 2017 and did not immediately tell her parents.  She accepted she met Mak that morning.  She told him TJP spat in her face and went crazy.  She only told Mak something about a rape after Mak heard something from ET, who had noticed a “hickey” on her neck.  RKS told Emily about being raped.  She accepted that, in her interview with police, she said she kept telling Emily “I don’t really remember what happened”.^[34]  RKS accepted she only ended up telling Emily about the night after Emily told her she was “full of bullshit”.  RKS said she was scared.  She accepted that at around the time Emily noticed the hickey, Emily told Mak about them.  That was when she told Mak she had been raped.
83. [83]
    RKS accepted that, after 6 May 2017, Sam sent her a message asking what time she had left last night, to which she responded “I left at about 3 am.  My mate needed me, sorry, a-h-a-h.”  She said she felt uncomfortable and was trying to make up an excuse.^[35]  Sam responded, asking her would she have a drink with him again soon, to which she said “Yeah, dude, aha”.  She denied she had been drinking with Sam.  She denied she had a good night.  She accepted she did speak to Sam about going to TAFE but said she did tell him her age.
84. [84]
    In re-examination, RKS said police came to speak to her in December 2017.  She sent Sam messages the next day because she just wanted to get on with her life normally.  She did not want it to be a reality.
85. [85]
    RKS’s police statement was read to the jury.  In it, she said TJP was her friend from school.  They used to be very close but had a falling out in mid 2017.  In late 2016, TJP told her she had been at a guy’s house, drinking, and that something really bad happened to her.  TJP started to get upset so RKS stopped questioning her about it.  She may have questioned her again later, but TJP completely dodged it.  TJP had a picture on her Snapchat of the man with the comment “drunk as a skunk”.  The man had tattoos on one arm.  TJP told her his name was Sam.
86. [86]
    RKS said she met Sam in May 2017, when TJP took her to his house in Burpengary.  TJP told her Sam was pretty flirty but promised she and her friend, Dylan, would be there to protect RKS.  They would just have a fun time drinking.  RKS described Sam as being slightly overweight.  TJP told her he was 21 years old.  Whilst there, she saw children’s clothes.  TJP told her they were his nieces’.  RKS said Sam offered her alcohol but she did not drink it.  It was a pink colour.  She was pretty sure it was Vodka and raspberry.  In December 2017, she made a complaint to police in relation to Sam.  On 4 April 2018, she attended the police station and provided a statement.
87. [87]
    VT gave evidence that, in around October 2017, RKS told her a man named Sam had raped her.  She said her friend [TJP] was with her boyfriend at the time and invited RKS to go to Sam’s house.  Sam was making RKS’s drinks in a different room.  TJP and her boyfriend got drunk and fell asleep.  RKS went to the bathroom and heard Sam locking the doors.  She got scared and wanted to go home.  Sam locked her in a room and raped her.  She waited until he fell asleep to try and leave but could not find the keys.  When she finally found the keys, she left.  That whole time she was talking to Mak.  He met her at the train station and walked her home.  That was when she told Mak.  VT thinks RKS said Sam “forced her to have sex with him”.^[36]  Sam said he was 21.  The incident happened a few months before October, like in May sometime.
88. [88]
    In cross-examination, VT accepted there was no mention of RKS being choked on the night.  In re-examination, she said the conversation occurred at a park for about two minutes.  RKS did not want to talk about it.  She was crying the whole time.
89. [89]
    CT gave evidence that on 17 December 2017, her sister VT asked if she could give her mobile number to RKS.  Later that day she received a text from RKS.  Their text messages were placed before the jury:

“Hey it’s [RKS] I’m sorry I just really need some help with this because I really want to help this girl as much as I can so basically this year on the 6 of may me and my ex best friend went to one of her mates places to get some drinks I had never heard of this guy before and I just found out he lied about his age and said he was 21 and pretty much he would give tahlia and this other guy drinks but would always make mine in a different room and that’s why I didn’t drink it also I’m not big on alcohol because of my dad being an alcoholic and when it got later tahlia and this other guy let’s say he was her boyfriend at the time got really wasted and they were both asleep and I went to the bathroom and heard him lock all the doors and I got kinda scared so I asked him if I could leave and he dragged into his bedroom and rapped me and locked his bedroom door and I spend hours looking for the keys to get out once he fell asleep that’s what happened I didn’t say or do anything about because I was 15 and scared but yesterday the police came looking for me and I wasn’t home so they called me today and now a lady is coming to talk to me later tonight about the details but he has rapped another young girl and they are trying to get him locked up pretty much and they went through his Facebook and saw messages about him rapping me so now they want me to speak up but if my mum finds out she will most likely kick me out again and I’m really scared I have no idea what to do on this situation if you could give me any advice it would mean the world to me thank you

I don’t want him to do what he did to me to other girls so if there’s a way I can help I want to but I also don’t want to go public with fear that my mother won’t allow me to live here anymore

I’ll give you a call soon x

Alright thank you

Let me know if it’s okay to call you. ☺

Yes it’s okay I just talked to the police

Yesterday 9:38pm

Hey would you feel comfortable about telling me who it was?  Like his name

Yeah his names sam grey but he goes by a fake last name starting with A I’m not sure what it is sorry

No need to be sorry x

Alright

Ashton?

I don’t think so

I don’t think he has Facebook anymore

Not looking at Facebook x

Oh what are you looking at?

Insta, Tinder, Meetme and a couple of other things

Do you know who his friends are?

I know he’s friends with Tahlia but that’s all I really know

I don’t know that much about him

That’s good then I guess

I’m pretty sure his fake last name starts with an Ax I might be wrong but I think there’s an x in it

Oh okay.  Thank you

It’s okay

Could I know what you’re doing please?

I just wanted to know about him.  I spoke to the police today and I’ll be giving a statement soon.  I guess the more I know the better.

Yeah she called me and told me she spoke to you and Tori what did she say?”

90. [90]
    MS (“Mak”) knew RKS through school.  Their friendship developed into a relationship by about the end of May 2017.  At the start of May 2017, during a late night Snapchat conversation, RKS posted a picture of TJP, her boyfriend Dylan and another male and RKS.  Mak asked her if everything was alright.  RKS replied she did not know where she was other than in Burpengary and told him not to worry, everything was okay.  That first post was around 10 pm.  Sometime after midnight, towards 2 am, RKS messaged him again on Snapchat.  She said she was locked up in the house and could not find her way out.  He told her to find a key or smash a window.  He is unsure how she left the house, but once she did he went onto Google maps, took a screen shot and sent it to her so she could find her way to Burpengary train station.  He met her at the station.  When he saw her, she had makeup running down her face, probably because she was crying.  He asked her what had happened, but she would not say.  They sat down and talked for a while.  He asked her if she wanted a hug and she said she would break down if that happened.
91. [91]
    Mak said two weeks later he spoke to another friend, ET.  She told him something which caused him to speak to RKS on Snapchat.  He asked her what had happened that night.  He found out that RKS had been raped by a man named Sam.  A few months later, RKS told him more details.  That was around Christmas 2017.
92. [92]
    In cross-examination, Mak accepted that, in the Snapchat conversations on the night in May 2017, RKS only told him she was locked in a house and could not get out.^[37]  Mak agreed they were at the train station for about two hours before the first train arrived at that station.  They were chatting for that whole time.  Not once did RKS mention she had been raped that night.  It was in their later conversations that he learned what had happened that night.  RKS told him Sam was pulling her hair really hard.  He does not remember her saying she was being choked on that night.  She told him she went into Sam’s bedroom to listen to music.
93. [93]
    CM has known KDLF since before 2016.  Sometime in 2017, KDLF said Sam had raped KDLF.  She was crying, very distressed and distraught.  She did not give any other details.  CM knew Sam.
94. [94]
    In cross-examination, CM said KDLF used the word rape.  She did not recall her mentioning anything about being choked by Sam.
95. [95]
    Kerry Lansley was the investigating officer for all three complaints.  Only RKS made an allegation about being choked by Sam.  Lansley made enquiries to locate other potential witnesses named HCC and AM.  They were unsuccessful.  Other witnesses, Trent Salvador, Brooke McLoughlin and Brayden Jenner did not wish to provide statements.  Carina Walsh was cooperative but was in New South Wales and unavailable at trial.  Dylan Fitcher spoke to police but later declined to provide a statement.
96. [96]
    On 1 November 2017, Lansley attended the appellant’s residence.  During the search, he told police he had daughters.  He also gave police his mobile phone.  It was forensically examined for Facebook messages.  That forensic examination revealed a Facebook message from Tahlia Jane on 9 October 2017, stating “Are you really going to deny raping [RKS]?  You would’ve done the same thing to her as you did to me when I first came there”.^[38]  After seeing that message, Lansley was able to determine that the message was from TJP.  She spoke to TJP on 16 December 2017.  TJP did not wish to provide a police statement.  On 1 February 2018, Lansley again contacted TJP.  She was asked to provide a statement in relation to RKS’s matter.  TJP attended the station and indicated that she was willing to provide a statement in respect of both RKS and her own complaint.  TJP was then interviewed on 12 February 2018.  TJP allowed Lansley to work out that Roshelle from Facebook was RKS.  Lansley then spoke to RKS, who was surprised but willing to speak about her complaint.
97. [97]
    In cross-examination, Lansley agreed that she conducted an examination of RKS’s mobile phone.  The messages sent from that phone included a message on 15 March 2017 referring to RKS and TJP selling ecstasy.  A following message referred to TJP being expelled and that RKS was almost expelled but received a four weeks’ suspension.  There were also seven messages in a sequence sent on 29 April 2017 from that phone stating “Do you want to buy a stick?”.
98. [98]
    Lansley agreed that RKS told her in her interview that she was bleeding after the incident at the appellant’s house.  Lansley had conducted a search of that residence, including going into the defendant’s bedroom.  The bed had sheets on it, but she did not take those sheets for analysis.
99. [99]
    At the close of the Crown case, the appellant declined to give or call evidence.

Appellant’s submissions

100. [100]
     The appellant submits that his diagnosed conditions of ADHD and Asperger's syndrome were relevant as he was a person with an impairment of the mind, such that, no allowance being given for those matters resulted in a miscarriage of justice.
101. [101]
     Further, the refusal to sever the counts was erroneous as the offences were not founded on the same fact nor comprised a series of offences of the same or a similar character and to try all charges in a single indictment at the same trial was prejudicial to his defence.
102. [102]
     The appellant further submits that the verdicts of the jury were unreasonable and not supported by the evidence having regard to the inconsistencies in the respective complainant’s accounts and the contents of the various Facebook messages, together with the lack of corroborating evidence.  Those factors, combined with delay in making the complaint and the improbability of those complaints, rendered the verdicts unreasonable.
103. [103]
     Finally, the appellant submits that the jury’s verdict of not guilty of Count 1 but guilty of Count 2, in circumstances where both counts were alleged to have occurred on the same occasion a short time apart and were entirely dependent upon an acceptance of the reliability and credibility of TJP, rendered the verdicts inconsistent and gave rise to a requirement for a direction in accordance with R v Markuleski.

Respondent’s submissions

104. [104]
     The respondent submits that no evidence was led at trial suggestive of a natural mental infirmity or disease of the mind.  Accordingly, the appellant’s diagnosed medical conditions had no relevance to the issues to be determined by the jury and there was no miscarriage of justice in the failure to have regard to those conditions.
105. [105]
     Further, the counts concerning the three separate complainants were properly joined and there was no miscarriage of justice in their being determined in a joint trial.  The offending was of a similar character, with the similarities being of such a nature that it was objectively improbable that they existed by chance or coincidence.  Further, the joinder did not prejudice a fair trial.  The jury was appropriately directed as to the use of the evidence in each respective case.
106. [106]
     The respondent further submits that the verdicts were not unreasonable and unsupportable having regard to the evidence.  Whilst there were inconsistencies and discrepancies in each complainant’s account, they were matters properly for the jury.  They were not of a nature that rendered the complainants’ account inherently probable and it was open to accept the complainants’ evidence as to the offences as reliable and credible.  An acceptance of that evidence rendered it open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each offences.
107. [107]
     Finally, the respondent submits there was no inconsistency in the conviction on Count 1 and acquittal on Count 2.  Whilst both counts relied on an acceptance of TJP as honest and reliable, TJP had given evidence that she could not remember whether the appellant had penetrated her with his finger.  Given that lack of memory, it was consistent with the jury’s duty to acquit in relation to that count, even though the jury found TJP reliable and credible generally.

Consideration

108. [108]
     The determination of a ground of appeal, that the verdicts of the jury are unreasonable and unsupportable by the evidence, requires this Court to undertake its own independent assessment of the sufficiency and quality of the evidence to determine whether, notwithstanding that there is evidence upon which the jury might convict, it would be dangerous in the circumstances to permit verdicts of guilty to stand.^[39]
109. [109]
     In undertaking that assessment, due regard must be given to the special advantage of the jury.  However, notwithstanding that advantage, if a consideration of the record reveals the evidence had discrepancies or inadequacies, was tainted or otherwise lacked probative force such that there is a significant possibility an innocent person has been convicted, the verdict is to be set aside as unreasonable.^[40]
110. [110]
     A consideration of the record as a whole supports a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of Counts 2, 3, 4, 5 and 6.
111. [111]
     TJP gave consistent evidence of the appellant having penetrated her vagina with his penis, without her consent.  The date thereof was supported by earlier communications between TJP and the appellant.  Her account of sexual intercourse having taken place on that night was supported by later communications sent by the appellant, telling her she was “awesome at sex”.  Her account that she was drunk was supported by her reply, “I was drunk”.  Whilst there were aspects of her interaction with the appellant in the days and months thereafter which may be said to have been inconsistent with TJP having been raped by the appellant, TJP gave a coherent explanation for those communications.  That explanation, to the effect that she had nowhere else to go and the rape did not have a great impact on her having regard to previous experiences, was credible.  It also explained the delay in making any complaint.  It was open to the jury to accept that explanation.
112. [112]
     Once the jury did so, it was open to the jury to accept TJP’s evidence as reliable and credible and for the jury to be satisfied beyond reasonable doubt that penetration of her vagina, on the night in question, occurred without her consent and in circumstances where the Crown could exclude, beyond reasonable doubt, a mistaken belief on the part of the appellant that TJP was consenting to such penetrative act.
113. [113]
     The fact that the jury found the appellant not guilty of Count 1 does not give rise to a conclusion that the jury must have had a doubt as to TJP’s reliability and credibility.  Such a verdict was entirely consistent with the jury having accepted TJP as reliable and credible, but giving the appellant the benefit of the doubt in circumstances where she had, later in her evidence, said she could not remember whether the appellant had digitally penetrated her vagina that night.  That evidence provided a logical and rational explanation for the jury having been satisfied beyond reasonable doubt as to the appellant’s guilt of Count 2, but giving the appellant the benefit of doubt in respect of Count 1.  That verdict does not give rise to a reason for this Court to conclude that it was not open to the jury to be satisfied of the appellant’s guilt of Count 2 beyond reasonable doubt, on a consideration of the whole of the evidence.
114. [114]
     KDLF also gave a coherent account of the appellant having penetrated her vagina with his penis, without her consent, on 1 March 2017.  There was a consistency in her evidence and the accounts given to others of the alleged act.  KDLF gave a credible explanation as to her denial of that act to the appellant, namely, fear in the context of threats made by others.  It was open to the jury to accept that explanation.  Once the jury did so, it was open to the jury, on consideration of the whole of the evidence, to find KDLF’s evidence reliable and credible.  An acceptance of that evidence established, beyond reasonable doubt, that the appellant penetrated KDLF’s vagina with his penis without KDLF’s consent, and in circumstances where the jury could be satisfied, beyond reasonable doubt, that the appellant did not have a mistaken belief that KDLF was consenting to that act of penetration.
115. [115]
     RKS also gave a coherent account of acts of penetration by the appellant without her consent on the evening of 6 May 2017.  That evidence was consistent with accounts given subsequently to others and was supported in material respects by the evidence of TJP.  Whilst aspects of RKS’s account, such as being choked, did not feature in her accounts to others, that inconsistency was not of a nature that the jury must, as a consequence, have had a reasonable doubt as to her credibility and reliability.  RKS gave a credible explanation as to why she did not complain initially.  It was open to the jury to accept that explanation.  Once it did so, there was nothing in the evidence as a whole which rendered RKS’s account inherently unreliable.
116. [116]
     An acceptance of that evidence supported a conclusion, beyond reasonable doubt, that the appellant penetrated RKS’s vagina, as alleged in each of Counts 4, 5 and 6, and that each act of penetration occurred without her consent and in circumstances where the evidence excluded beyond reasonable doubt a mistaken belief by the appellant that RKS was consenting to each such act of penetration.
117. [117]
     Whilst the appellant contends that the delay on the part of each complainant to make a complaint of rape materially affected an acceptance of their accounts, there was a coherent explanation given by each of the complainants, which were open to the jury to accept as reliable and credible.  The delay in making a complaint did not render the accounts given by each of the complainants inherently unreliable.
118. [118]
     For the abovementioned reasons, an independent consideration of the record as a whole supports the conclusion that it was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of Counts 2, 3, 4, 5 and 6.  None of those verdicts are unreasonable.
119. [119]
     The appellant also relied on his mental health conditions, and an improper joinder of the counts as supportive of a conclusion that a miscarriage of justice had occurred, warranting a setting aside of those verdicts.  There is no substance in any such contentions.
120. [120]
     First, nothing in the evidence raised for consideration by the jury, a lack of capacity as a consequence of any mental health conditions.  Nothing in the appellant’s material on the appeal also gives rise to such a lack of capacity.  Accordingly, there is no basis to conclude that a miscarriage of justice has occurred as a consequence of a failure on the part of the jury to consider the appellant’s diagnosed mental health conditions.
121. [121]
     Second, the counts were properly joined on the one indictment and properly the subject of a joint trial.  Each of the counts were of a similar character.  Each of TJP, KDLF and RKS gave evidence of acts of penetration of their vaginas, without consent, by the appellant in circumstances where they had met the appellant through Facebook messages, believing the appellant to be a young man; attended the appellant’s house for the purposes of consuming alcohol after Facebook communications with the appellant, using the username Sam Antonia; had been offered alcohol, being homebrew; and the penetrations also occurred on the first occasion they had attended the appellant’s residence.  Those circumstances satisfied the requirements for a proper joinder of the counts on the one indictment.
122. [122]
     Further, the evidence of each was probative of the credibility of the other, insofar as the account of each in isolation may have given rise to circumstances warranting an explanation for 15 year old girls attending the residence of a 31 year old male.  Any risk of prejudice was met with appropriate directions at trial.  There is no suggestion those directions were inadequate, other than to the extent that the appellant raises a failure to direct the jury in accordance with R v Markuleski.  A consideration of the directions given to the jury supports a conclusion that there was no need for such a direction.  The jury was properly directed as to the use the jury was to make of any inconsistencies in the accounts of the complainant in determining the guilt of the appellant of each count.
123. [123]
     None of the additional matters raised by the appellant in submissions give rise to a miscarriage of justice.  Further, a consideration of the record, as a whole, supports a conclusion that there is no appreciable risk that an innocent person has been wrongly convicted of these offences.
124. [124]
     The appeal against conviction should be dismissed.

Sentence

Sentencing remarks

125. [125]
     The sentencing Judge found the appellant’s conduct predatory.  He pretended to be only 20 and targeted troubled and vulnerable teenage girls, three of whom were raped in a six month period.  Each was only 15 years old.  Whilst the sentencing Judge accepted he may have thought they were 16 and even one was 17, it made “little difference”.  He promised each free alcohol to get them into his home.  Two became grossly intoxicated.  Those crimes were planned cunningly and the aftermath included steps “to cover” his tracks by using messages as intimidation.
126. [126]
     The sentencing Judge further found there was no discount for cooperation or remorse, as the appellant had shown neither.  The appellant did not have the benefit of youth and had an antisocial record for violence, as well as entries for dishonesty and vandalism.
127. [127]
     The sentencing Judge recorded that the applicant had a violent home upbringing; diagnoses of Asperger's syndrome and ADHD, and was on a disability pension, but observed the applicant was clearly functional, with no suggestion that his condition affected either his judgment or self-control.  His entrapment was calculated.
128. [128]
     After observing that the maximum penalty for a single rape is life imprisonment, the applicant was sentenced to an effective head sentence of 17 years’ imprisonment on Count 5 with lesser concurrent terms in respect of the remaining counts.

Submissions

129. [129]
     The applicant submits that, in circumstances where the prosecution submitted for a head sentence “of at least ten years’ imprisonment” and a consideration of comparable authorities supported a sentence substantially less than 17 years, the sentence imposed in respect of Count 5 evidenced a misapplication of sentencing principles, such that it ought to be set aside as manifestly excessive.

Consideration

130. [130]
     Absent specific error, appellate intervention is not warranted on the grounds of manifest excess unless having regard to all 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
131. [131]
     Whilst the sentencing discretion is broad and the applicant’s conduct was properly described as predatory and executed in a cunning way, a consideration of the circumstances and of comparable authority supports a conclusion there must have been some misapplication of principle.^[41]
132. [132]
     A consideration of comparable authorities^[42] support a conclusion that sentences in excess of 15 years’ imprisonment fall within a sound exercise of the sentencing discretion where the offender who raped multiple complainants has used stupefying drugs and reoffending whilst on bail,^[43] where the conduct engaged in involved violence in public over an extended period^[44] or when the offender has prior sexual offending and masqueraded as a police officer.^[45]
133. [133]
     In the present case, whilst the appellant provided two of the complainants with alcohol to excess and the offending was predatory and calculated, it did not involve violence in public places, was not carried out over a greatly extended period of time and did not have the aggravating features of re-offending whilst on bail.
134. [134]
     A consideration of the circumstances of the applicant’s offending, and his personal circumstances, supports a conclusion that a re-exercise of the sentencing discretion result in an effective head sentence of 14 years’ imprisonment.

Orders

135. [135]
     I would order:

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

3. (2)
   Leave to appeal against sentence be granted.

3. (3)
   The appeal against sentence be allowed.

3. (4)
   The sentence on Count 5 be set aside.

3. (5)
   The applicant be sentenced to 14 years’ imprisonment for Count 5.

3. (6)
   The sentences on the remaining counts, to be served concurrently, otherwise confirmed.