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R v SDS[2022] QCA 106

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDS [2022] QCA 106

PARTIES:

R

v

SDS

(appellant/applicant)

FILE NO/S:

CA No 148 of 2021

DC No 110 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction 4 June 2021 Date of Sentence: 8 June 2021 (Rosengren DCJ)

DELIVERED ON:

14 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2022

JUDGES:

Sofronoff P and Morrison and Mullins JJA

ORDERS:

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

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of seven counts of sexual offending against his step-grandchildren – where the question of cross-admissibility of the evidence between the complainants after the appellant completed his evidence – where defence counsel did not apply to sever the charges on the indictment – whether the course taken by defence counsel is explicable on a basis that has or could have resulted in a forensic advantage – where the learned trial judge proposed giving a similar fact direction – where the learned trial judge ruled that the evidence was not cross-admissible – whether there has been a miscarriage of justice

CRIMNAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to six years’ imprisonment – where no parole eligibility date was set – where the applicant must serve three years in custody before being eligible for parole – whether the learned sentencing judge erred in some misapplication of principle – whether comparable decisions suggest the sentence reflected the overall criminality of offending against two victims – whether the sentence was manifestly excessive

Criminal Code (Qld), s 567

Penalties and Sentences Act 1992 (Qld), s 9

Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46, cited

GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40, followed

James v The Queen (2013) 39 VR 149; [2013] VSCA 55, cited

Nicholls v The Queen [2016] VSCA 250, followed

Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited

Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, cited

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited

R v AAR [2014] QCA 20, cited

R v CBG [2013] QCA 44, cited

R v GY [2007] QCA 103, cited

R v MCM [2017] QCA 187, cited

R v MCT [2018] QCA 189, cited

R v McNeish [2019] QCA 191, cited

R v Nibigira [2018] QCA 115, cited

R v O'Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, cited

R v PAC [2006] QCA 327, cited

R v PAP [2013] QCA 288, cited

R v R [2000] QCA 27, cited

R v RAD [2008] QCA 305, cited

R v Reynolds [2015] QCA 111, cited

R v SAQ [2002] QCA 221, cited

R v Schirmer [1995] QCA 242, cited

R v WAA [2008] QCA 87, cited

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, followed

COUNSEL:

S J Keim SC, with A E Cappellano, for the appellant/applicant

C M Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of Justice Morrison and with the orders proposed by his Honour.
  2. [2]
    MORRISON JA:  The applicant was convicted, after a four-day trial in the District Court, on seven counts of sexual offending against his step-grandchildren.  During the charged period, between 8 June 2007 and 20 December 2009, the appellant was in a de-facto relationship with the children’s maternal grandmother.  The two complainants and their older sister resided with the appellant and their grandmother on a fulltime basis.
  3. [3]
    In respect of the first eight counts on the indictment VIC was the complainant.  She was then aged between four and six years old.  On the remaining four counts on the indictment GDO was the complainant, and aged between seven and nine years old.
  4. [4]
    The counts on the indictment were all domestic violence offences:
    1. (a)
      Counts 1-4, indecent treatment of a child under 12 and under care;
    2. (b)
      Counts 5 and 6, rape; and
    3. (c)
      Counts 7 – 12, indecent treatment of a child under 12 and under care.
  5. [5]
    The conduct that was particularised in respect of the counts, and the verdict on each, can be summarised as follows:

Count No.

The Charge

Alleged Conduct

Outcome

1

Indecent treatment of a child under 12 and under care.

The appellant forced VIC to masturbate him in the bathroom while holding a knife to her throat.

Guilty

2

Indecent treatment of a child under 12, under care.

The appellant forced VIC to masturbate him in the lounge room; he held a knife.

Guilty

3

Indecent treatment of a child under 12, under care.

The appellant procured VIC to masturbate him in the bathroom.  He grabbed her around the throat.

Guilty

4

Indecent treatment of a child under 12, under care.

The appellant forced VIC to masturbate him in his bedroom.  He had a knife.

Guilty

5 & 6

Rape.

For Count 5 - digital penetration of VIC’s vagina.

For Count 6 – penile penetration of VIC’s vagina.

Not Guilty

Not Guilty

7

Indecent treatment of a child under 12, under care.

The appellant forced VIC to masturbate him in the bathroom.  He had a knife.

Guilty

8

Indecent treatment of a child under 12, under care.

The appellant forced VIC to masturbate him in the bathroom.  He held a knife to her throat.  He ejaculated.

Guilty

9

Indecent treatment of a child under 12, under care.

The appellant kissed GDO and put his tongue in GDO’s mouth, in GDO’s bedroom.

Not guilty

10

Indecent treatment of a child under 12, under care.

The appellant lay on top of GDO and rubbed his crotch against GDO’s body.

Not guilty

11

Indecent treatment of a child under 12, under care.

The appellant procured GDO to kiss him.

Not guilty

12

Indecent treatment of a child under 12, under care.

The appellant kissed GDO and put his tongue in GDO’s mouth in the computer room.

Guilty

  1. [6]
    The verdicts were delivered on 4 June 2021.  Sentences were imposed on 8 June 2021 as follows:
    1. (a)
      Counts 1-4, 7 and 8:  six years’ imprisonment;
    2. (b)
      Count 12: 12 months’ imprisonment;
    3. (c)
      no imposition of a serious violent offence declaration; and
    4. (d)
      parole eligibility after serving three years in custody.
  2. [7]
    The appellant challenges his convictions on the sole ground that the failure to seek separate trials of the charges involving VIC and GDO resulted in incurable prejudice which amounted to a miscarriage of justice.
  3. [8]
    The appellant also seeks leave to appeal against the sentences imposed, on the sole ground that it is manifestly excessive.

Pre-trial history

  1. [9]
    VIC was interviewed by police on 21 December 2009.  In that interview she gave an account of the appellant touching her and that she been made to touch him, in these terms:
    1. (a)
      “Pop was … touching me”;
    2. (b)
      the first time it happened was when the others had gone camping and “he touched me” and “he was making me touch him”;
    3. (c)
      the touching was on the appellant’s “privates”;
    4. (d)
      the appellant made VIC use her hands to touch his privates, and made her put his hands around his privates;
    5. (e)
      the last time it had happened was on the Friday before the interview (which occurred on a Monday); the appellant made her touch his privates before going to bed;  he made her “touch it a lot”, and “made me push it up and then down” and “made me pull it up and then down”;  to do so she “put my hands around it”;
    6. (f)
      on another occasion the appellant made her touch him in order to be given a lolly; and
    7. (g)
      she identified three specific occasions when that occurred; the first time was when the grandmother was away at camp and before VIC started prep; the second time was when the appellant was in a wooden chair in the lounge room; and the third time was the occasion when she was offered a lolly.
  2. [10]
    VIC was interviewed for a second time on 1 August 2018.  She was then nearly 15 years old.  In that interview VIC gave an account which matched the particularised counts on the indictment insofar as they concerned her.  That account included:
    1. (a)
      that she was raped by the appellant when she was about five or six;
    2. (b)
      the appellant made her masturbate him;
    3. (c)
      the appellant used a pocketknife against her throat so that she could not speak, call out or make noises;
    4. (d)
      the first time occurred in the bathroom when the appellant put moisturiser on her hands and forced her to masturbate him while holding the pocketknife to her throat;[1]
    5. (e)
      the second time it occurred was while the appellant was standing up in the lounge room and the appellant made VIC masturbate him while he held the pocketknife;[2]  the appellant kept his hand over her hands while masturbating;
    6. (f)
      the third time was in the bathroom, but this time the appellant did not have a pocketknife, but rather grabbed her throat with his hands;[3]  the appellant ejaculated on this occasion;
    7. (g)
      the next occasion occurred in the appellant’s bedroom; the appellant had the pocketknife, undressed her, made her lie on her back on the bed and forced her to masturbate him;[4]  the appellant inserted his fingers and then his penis into her vagina, while still holding the pocketknife to her throat;[5]
    8. (h)
      on a later occasion in the bathroom the appellant made VIC stand beside him while he was on the toilet seat and forced her to masturbate him;[6] and
    9. (i)
      in the same week as Count 7, the appellant again forced VIC to masturbate him while holding a pocketknife; she recalled this occasion because when he ejaculated he did not have tissues and used toilet paper to clean up.[7]
  3. [11]
    The indictment was presented on 4 February 2020.  It included the eight counts relevant to VIC and the four counts relevant to GDO.
  4. [12]
    The pre-recorded evidence of VIC’s testimony took place on 17 March 2020.
  5. [13]
    In VIC’s oral evidence the following matters were put to her:
    1. (a)
      while VIC and GDO lived in the appellant’s house they shared a room; VIC agreed;[8]
    2. (b)
      she was aware of things about her grandmother’s drinking from conversations with GDO, though she could not remember anything specific;[9]
    3. (c)
      when VIC said that she had never been able to speak to her family about the details of what had happened to her, she was asked whether she had spoken to GDO about it;  she said no;  she was then asked if she had spoken to GDO about it when she went back to see the police in 2018;  VIC said no, that she simply told GDO she had been to an interview and that she would like GDO to go and be interviewed as well;[10]
    4. (d)
      she was asked whether the request to GDO to go and speak to the police was because GDO “had already told you that things had happened, or were you just assuming that things had happened with [GDO]”;  VIC answered that she simply assumed things had happened with GDO, and that they had not spoken to each other about those things;[11]
    5. (e)
      VIC was then pressed about whether GDO had told her anything about what had happened, and VIC responded, “I knew things had happened to him,[12] but he wouldn’t tell me anything about it.  I hadn’t asked him about it.  You can’t speak about this with family”;[13]
    6. (f)
      VIC was asked again whether GDO “had … told you that things had happened”, and VIC responded that GDO had not done so;[14]
    7. (g)
      VIC was pressed further about whether GDO had actually told VIC that nothing had happened or whether she had simply assumed that to be the case; VIC responded:

“… He just wouldn’t admit to it.  Like, I knew things had happened and he knew shit had happened as well, and, like, he had done his police interview as well.  But it’s something that’s never been spoken about.  He hasn’t told me what’s happened to him.  I don’t know if he’s been raped.  I don’t know if he was sexually abused.  I don’t know if he was just getting assaulted.  But he was getting harassed by [the appellant] as well.  And I’d like him to go and do that interview.  That’s what it was about”;[15]

  1. (h)
    VIC was pressed again to clarify that GDO had not told her anything about what had happened to GDO;  it was then put to VIC that “you and [GDO] have, in fact, spoken about what you say happened?”; VIC disagreed.[16]
  1. [14]
    There can be no doubt that defence counsel had GDO’s police interview prior to the commencement of the trial.  Given that GDO was being called to give evidence contrary to that interview, it may be inferred that a statement to the effect of GDO’s oral evidence had been provided to the defence prior to the commencement of the trial.
  2. [15]
    It follows from the matters above that prior to the commencement of the trial defence counsel was plainly aware that there was no sufficient basis to contend that the evidence of VIC and the evidence of GDO would be cross-admissible in the way discussed in Pfennig v The Queen[17] and in R v McNeish.[18]
  3. [16]
    No pre-trial application was made to sever the indictment, nor was such an application foreshadowed.  The reasons for that will be explored shortly.

Relevant events at the trial

  1. [17]
    At the commencement of the trial an application was made by defence counsel for leave to cross-examine VIC’s mother[19] concerning her previous conviction for poisoning VIC and GDO.  The basis of the application was that:
    1. (a)
      having been convicted of poisoning her children, the Department of Child Safety removed the children into care;
    2. (b)
      the mother’s goal was to achieve reunification with those children upon her release from custody;
    3. (c)
      as part of that she told VIC that the appellant had done things to VIC, and that was put to VIC in her oral evidence;[20]
    4. (d)
      as a consequence of prompting by her mother VIC told police what her mother had said to tell them;
    5. (e)
      that was relevant to a critical issue in the defence case, namely a false complaint which involved VIC;  it also involved GDO, “But, no, not him initially”;[21]
    6. (f)
      this was said to be significant as going to motive and “collusion”;[22] and
    7. (g)
      the mother needed to raise serious allegations to seek the return of her children in those circumstances;[23]
  2. [18]
    The learned trial judge ruled that questions could be put to the mother to pursue that course.[24]
  3. [19]
    On the first day of the trial the prosecutor informed the learned trial judge that the Crown would not be playing the initial s 93A interview with GDO because it was inadmissible on the Crown case by reason of the fact that in that interview GDO said nothing had happened.[25]  Plainly defence counsel was aware of the fact that GDO’s interview with police contained GDO’s denial that anything happened.
  4. [20]
    GDO gave oral evidence at the trial which included these points:
    1. (a)
      VIC and GDO shared a bedroom, initially sharing a queen size bed but then later bunk beds;
    2. (b)
      the sexual conduct which occurred between the appellant and GDO was limited to kissing GDO on the lips and on one occasion lying on top of GDO and rubbing his crotch against his body;[26]
    3. (c)
      after leaving the care of the appellant and the grandmother, VIC and GDO went back to their mother’s care three years later; GDO lived with his mother for about a year and a-half and then not after that;[27]
    4. (d)
      he had spoken to the police about the matters with the appellant in 2018 but prior to that GDO had not spoken to anyone about those events; GDO was “invited to talk to the police after [VIC] had spoken to them to press her own charges”;[28]
    5. (e)
      GDO was invited to speak to the police by a particular police officer;[29]
    6. (f)
      GDO accepted that in his 2009 police interview he did not suggest that the appellant touched GDO sexually or kissed GDO inappropriately;[30]
    7. (g)
      prior to anyone going to the police in 2009, VIC, GDO and their mother were all together; the mother asked GDO if the appellant had touched him, and told GDO that they were going to the police station;  VIC was talking to the mother though GDO could not hear what they were discussing;[31]
    8. (h)
      GDO was asked whether VIC had discussed the allegations she was going to make with GDO;  GDO answered in a negative way but said that VIC had let him know that she was taking the allegations to court;[32]
    9. (i)
      GDO was asked whether VIC had suggested to GDO “in any language or in any way that you should do the same?”, which GDO answered in the negative;[33]
    10. (j)
      it was put to GDO that “either [VIC] or your mother has encouraged you to bring these allegations – or to make these allegations?”, which GDO denied;[34] and
    11. (k)
      in re-examination GDO said that his mother had merely suggested that GDO speak to the police “because she thought it would be beneficial and she didn’t say what I should speak on or how I should speak or what type of things I should say or what I should try and lean towards at all”.[35]
  5. [21]
    The mother of VIC and GDO gave evidence out of which the following points emerged:
    1. (a)
      in December 2009 she had a conversation with VIC which led to her taking VIC and GDO to the police station; she asked VIC if the appellant ever touched her or if he made her touch him, to which VIC said, “yep, he makes me do it all the time.  And I tell him to stop and he won’t stop”;[36]
    2. (b)
      in 2007, 2008 and 2009 the mother worked with Child Safety in an attempt to be reunited with her children;[37]
    3. (c)
      the mother said that she did not prompt the disclosure from VIC, but merely asked her a question as was her right as a protective parent;[38] and
    4. (d)
      it was put to the mother that in 2017 she kept telling VIC that she (the mother) wanted VIC to go through with her complaint to the police and for that purpose told VIC that fresh assertions were needed to further the police investigation.[39]
  6. [22]
    The investigating police officer was called for the purposes of cross-examination.  He said that he informed the mother of VIC and GDO that without further clarification of original disclosures or fresh assertions of offending not previously made, further police investigations were not warranted.  She was told that if she wished for any further action it would not be possible without new evidence from VIC and GDO.[40]

Discussion about directions

  1. [23]
    The question of cross-admissibility of the evidence of VIC and GDO first arose after the appellant had completed his evidence and during the course of discussions about the directions that should be given.  The learned trial judge proposed giving a similar fact direction which prompted the following exchange:[41]

“MS GALLAGHER:  Yes.  That suits me, but can I indicate I’ve spoken to my learned friend.  I understand that he says they’re not cross-admissible at all such that your Honour wouldn’t even give the direction, so perhaps he might be better to start.

HER HONOUR:  So why have they been in the trial together?  That would surely be an issue for a pre-trial application, would it not?

MS GALLAGHER:  It wouldn’t be the Crown’s.

MR MORGANS:  The answer to that is only if appropriate directions couldn’t cure the prejudice that results from having both matters heard together.

HER HONOUR: Yes.  So that’s what we do is we give appropriate directions.

MR MORGANS: Yes.

HER HONOUR: So what are the directions that you would like?

MR MORGANS:  In line with paragraph 111 of Nibigira – sorry, I’ve prepared a written outline with respect to the similar fact direction.

HER HONOUR: Sorry, just so I understand, are you saying there should be no direction given?

MR MORGANS:  No, that they are not cross-admissible, and they should not be considered on in support of the other.  Propensity, if we call it that, or similar fact, if we call it that.

HER HONOUR: So why are they together in the trial then?  Why has there not ben an application to sever them?

MR MORGANS:   Because in my submission the jury could be properly told that they ought to consider those allegations separately and that is – you Honour, I can provide a decision of R v Nibigira from the Court of Appeal.

HER HONOUR:  I understand.  There’s plenty of decisions on this, and I’m very familiar with that decision.

MR MORGANS:  Yes.

HER HONOUR:  So what are saying should occur?

MR MORGANS:  That the jury should be advised that they should consider the allegations between the complainants separately.

HER HONOUR:  The allegations between the complainants?

MR MORGANS:  The allegations of each complainant separately, and I really thing it just stays as that, and your Honour would be providing that directions within other directions in any event.”

  1. [24]
    Her Honour then turned to the prosecutor to clarify her Honour’s understanding that the Crown contended a similar fact direction should be given on the basis that there was an underlying pattern in the offending.  The prosecutor responded contending that VIC and GDOs’ was cross-admissible on the basis of similar fact and propensity.[42]
  2. [25]
    Shortly after that the exchange continued:[43]

“MS GALLAGHER:  So I say that it should all go in the mix for their consideration together, that the bench book direction is appropriate because it speaks to directing them specifically about strikingly similar.  They have to consider that before they can use it together to – as I understand my friend’s starting position is that these two complainants are properly joined under section 567 in that it is a series of offences of similar character, and as I understand it …

HER HONOUR:  Well, that’s got to be the case, is it not, Mr Morgans?  That’s got to be your starting position?

MRS MORGANS:  Yes.

HER HONOUR:  Yes.

MS GALLAGHER:  And so it was a forensic decision not to bring an application to sever based on the idea of collusion, but again that’s something that they’re directed about as part of the similar fact bench book direction that they have to be satisfied that there is no collusion.  To focus just on the actual conduct of the charges, so the actual acts, to go too far in determining whether it’s cross-admissible.”

  1. [26]
    I pause to note that at no time did counsel for the defence seek to contradict the prosecutor’s statement that the failure to bring an application to sever the indictment was a forensic decision based on the idea of collusion.  As noted above in paragraphs  [13] and [17] to [22], part of the case theory being advanced by the defence was that there was collusion between VIC, GDO and their mother with a view to the making of allegations in order to re-enliven a stalled police investigation.  Part of that approach involved an attempt to be in a position to submit to the jury that VIC and GDO had discussed events with each other prior to seeing the police in 2018.
  2. [27]
    Defence counsel identified the basis upon which it was contended that the evidence was not cross-admissible, by reference to the absence of an underlying unity in the nature of the allegations, and the absence of any striking similarity.  In that respect counsel again referred to an outline prepared in respect of the issue.[44]
  3. [28]
    After discussing the nature of the evidence of VIC as compared with GDO, defence counsel referred to the contention that a rational view consistent with the appellant’s innocence was derived from the fact that the police officer told the mother that there needed to be fresh allegations in order for the investigation to be progressed, and VIC went back to the police with fresh allegations.[45]
  4. [29]
    Then followed another exchange between the learned trial judge and defence counsel:[46]

“HER HONOUR:  I just don’t understand why the application wouldn’t have been made to separate the complainants.  I mean, what do you – you want me to say nothing to the jury now about this?

MR MORGANS:  Yes.

HER HONOUR:  Why wouldn’t you have made the application to separate the complainants?

MR MORGANS:  Well, the jury can be told that they have to consider the allegations of each complainant separately.  I accept that the defendant could have brought an application.  So, too, the Crown could have presented separate indictments.

HER HONOUR:  Well, the Crown had no obligation to present separate indictment.  They were entitled to do what they did …

MR MORGANTS:  Yes.

HER HONOUR:  … absent an application on behalf of the defendant.  And there’s no application.  Now. All the evidence is before the jury.

MR MORGANS:  Yes.  I would only succeed in an application on the – so 597A if directions would not be sufficient to cure the prejudice to the defendant …”.

  1. [30]
    Defence counsel’s outline of written submissions[47] was primarily directed to opposing the Crown’s application that the jury be directed that they could use the evidence of VIC and GDO as being cross-admissible.  It contended that the jury should be directed that the evidence of the complainants should be considered separately,[48] and that in the circumstances a direction pursuant to paragraph [111] of R v Nibigira[49] would be sufficient.[50]  In Nibigira this Court said:[51]

“[111] However, the jury were never instructed at any stage that certain evidence of any of the complainants, if accepted by them as true, was not admissible in law in proof of particular alleged offending against other complainants. No direction was given to ignore particular evidence because of inadmissibility of proof.”

  1. [31]
    The learned trial judge ruled that the evidence of VIC and GDO was not cross-admissible.[52]  Because of the contentions raised in this Court, it is appropriate to set out some parts of that ruling:[53]

“HER HONOUR:  After the evidence concluded yesterday on day 3 of this trial, the issue of directions was raised with counsel.  The Prosecutor sought a similar fact direction on the basis that the evidence of each complainant is cross-admissible on a similar fact basis going both ways between the two complainants.  In other words, she sought a direction that the jury could use the evidence for the offending against one complainant to support the proof of charges relating to the other complainant and vice versa.  Her intention to do so was placed on the record just before the trial started, and Mr Morgans did not raise with me any concerns about this.

It did not come to my attention until after the evidence was closed yesterday that the defendant would be opposing the Crown using the evidence of both complainants in this way.  Mr Morgans tendered a written outline in relation to this issue to the effect that the evidence of the two complainants, while joinable, is not cross-admissible.  I have marked this outline for identification.  It is very unsatisfactory for this issue to be first raised at this stage of the trial, and that there has been no agreement between counsel prior to the case beginning as to the basis of the joinder.  It would obviously have been far preferable for this to have been the subject of a pre-trial ruling.

The Defence have cross-examined the complainants to the effect that they have discussed with the other the details of their offending and, in that sense, there is collusion.  I infer, therefore, that there has been a tactical reason from the Defence perspective for the offending in relation to the two complainants to be heard in the one trial.”

  1. [32]
    I pause to note that defence counsel did not contradict the learned trial judge when her Honour said:
    1. (a)
      that the Crown signified its intention prior to the commencement of the trial that the evidence of VIC and GDO was cross-admissible;
    2. (b)
      that the cross-examination was designed to provide a platform to contend that there had been collusion between VIC and GDO; and
    3. (c)
      that was a tactical reason on the part of the defence for permitting the evidence of VIC and GDO to be heard in the one trial.
  2. [33]
    The discussion between counsel and the learned trial judge prior to the actual commencement of the trial revealed the position being taken by defence counsel.  The elements were identified by defence counsel as:
    1. (a)
      a case based on collusion involving VIC, GDO and their mother;[54]
    2. (b)
      that cross-examination of the mother in respect of her previous conviction for poisoning VIC and GDO was relevant to whether there had been a false complaint;[55]
    3. (c)
      the motive to lie or the issue of false complaint was tied up with the mother being told that the investigation could not go forward unless VIC and GDO made further complaints;[56]
    4. (d)
      further, the mother needed to raise serious allegations in order to seek the return of VIC and GDO to her;[57]
    5. (e)
      that the Crown intended, and defence counsel agreed, that the first day of the trial would be largely taken up with playing the pre-recorded evidence;
    6. (f)
      from defence counsel’s perspective there was no reason why the case could not be opened and the pre-recorded evidence played to the jury prior to the various applications being resolved;[58] and
    7. (g)
      the Prosecutor confirmed that the case involved similar fact evidence in respect of which it would be seeking a propensity direction,[59] in response to which defence counsel confirmed that there was no need to resolve that issue at that stage, as it would not affect his cross-examination of any witness.[60]
  3. [34]
    In accordance with the Crown’s foreshadowed approach, and defence counsel’s agreement, the case was opened with respect to the evidence from both VIC and GDO.  From the defence point of view, the opening was confined to asking the jury to keep an open mind.

Closing address

  1. [35]
    The defence closing address included submissions to this effect:
    1. (a)
      in the context of who had prompted VIC to make disclosure, it was not up to the defence to prove that there was collusion between the mother and VIC, or that VIC made the disclosures at the behest of her mother;[61]
    2. (b)
      there was a startling coincidence between the fresh assertions made by VIC in 2018 and what the police had told VIC’s mother about the need for new evidence;[62] and
    3. (c)
      the new evidence given by VIC in 2018 was compared with the changed evidence of GDO, who denied any offending when interviewed in 2009 but made positive allegations in 2018.[63]
  2. [36]
    The significance of the defence effort to pursue the collusion line, that is that VIC and GDO said what they said because of the influence of their mother and particularly the need for new evidence in order to get the police investigation moving, can be seen in the amount of time spent by the Prosecutor in dealing with that issue.  It was identified as being the “general sort of idea from the defence point of view about how this offending all came to be”.[64]  The essential contention was then identified as that the mother forced VIC to make a false complaint in order to get the children back.  Discussion of that issue, including how GDO fitted into it, continued over three pages of the Prosecutor’s address.[65]  The address also was directed at the issue of VIC and GDO talking to each other, putting their heads together and concocting false complaints.[66]
  3. [37]
    That was then reflected in that part of the summing up where the Crown’s address was summarised.  The learned trial judge couched the defence line that was being referred to as being as VIC and GDO had colluded together.[67]

Consideration of submissions

  1. [38]
    Mr Keim SC, appearing with Ms Cappellano of Counsel for the appellant, placed central reliance upon what was said by Gaudron J in TKWJ v The Queen.[68]  That was a case where trial counsel made a decision not to call character evidence because it involved the risk that adverse character evidence could then be led by the Crown.  Gaudron J[69] referred to cases where the contention is that an accused person was not competently or adequately represented.  Her Honour observed that there were two reasons why the question of whether an accused was competently represented posed difficulties for an appellate court.[70]  The first was that the conduct of a criminal trial frequently involved defence counsel in making tactical decision designed to obtain a forensic advantage or possibly to avoid a forensic disadvantage.  Those decisions might contribute to a defect or irregularity in the trial.  The second reason was that, ordinarily, it was not possible to know what was in the defence counsel’s brief.
  2. [39]
    Gaudron J then set out a number of propositions:
    1. (a)
      where a decision taken by counsel contributes to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquiry whether there has been a miscarriage of justice;[71]
    2. (b)
      in that exercise, the question whether the course taken by counsel is explicable on a basis that it has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration;[72]
    3. (c)
      the question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”;[73]
    4. (d)
      the word “fairly” should not be overlooked;  a decision to take or refrain from taking a particular course which is explicable on the basis that that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open;[74] and
    5. (e)
      the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is determined on an objective basis; an appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.[75]
  3. [40]
    Gaudron J then clarified the proposition that if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice:[76]

“It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question.  If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.”

  1. [41]
    For the latter proposition Gaudron J referred to Gipp v The Queen[77] and Doggett v The Queen.[78]  Then, having rejected the proposition that the court should focus on whether counsel conduct was “flagrant incompetence”, or “egregious error” or the like, Gaudron J continued”[79]

[32] An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.  As was said by Barwick CJ in relation not fresh evidence in Ratten v The Queen:

‘[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware of and which he could have been able to produce at the trial’

[33] Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision.  This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question …”.

  1. [42]
    The reference to the decision being taken as an informed and deliberate one focusses on the accused, not the counsel representing him or her.  Where that is shown, it is a different situation from where incompetence of counsel is relied upon as the basis for attack on the trial conduct.  There the focus is on what happened, not why it did.  The reasons for that were explained by Gleeson CJ in Nudd v The Queen[80] (a case of incompetence on the part of counsel):[81]

[8] Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Cody and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical.  It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process.  If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns.  That would be irrelevant.  It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions.  Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.

[9] Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened.  A criminal trial is conducted as adversarial litigation.  A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.  The law does not pursue that principle at all costs.  It recognises the possibility that justice may demand exceptions.  Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.  Considerations of fairness often turn upon the choices made by counsel at a trial.  In TKWJ v The Queen, the appellant complained that evidence of his good character was not led.  This, it was said, was unfair.  In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision.  That, in the circumstances of the case, was conclusive.  It is the fairness of the process that is in question; not the wisdom of counsel.  As a general rule, counsel's decisions bind the client.  If it were otherwise, the adversarial system could not function.  The fairness of the process is to be judged in that light.  The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.”

  1. [43]
    In the present case Mr Keim SC disavowed a case based on incompetence of counsel.  Further, it was accepted that the court could infer that the appellant was given advice and, as a result, instructed his lawyers not to apply to have the charges on the indictment severed.[82]
  2. [44]
    Nonetheless the submission was made that defence counsel’s decision not to apply to sever the charges on the indictment “was not a rational forensic choice, or … it was not explicable as likely to obtain forensic advantage”.  In order to demonstrate that proposition, criticism was directed at the way in which the forensic advantage was pursued, and specifically that cross-examination to establish the basis of that forensic advantage was inconsequential.
  3. [45]
    In my view, to focus on the outcome of the course directed at obtaining the hoped forensic advantage is an impermissible approach.  The question is whether the course taken by the counsel is “explicable on a basis that has or could have resulted in a forensic advantage”.[83]  The question is not determined by reference to the success of the tactic, just as an appellate court does not inquire whether the course taken by the counsel was, in fact, taken for that purpose.  The only relevant inquiry is whether counsel’s actions were capable of explanation on the basis that they were taken for the purpose of obtaining a forensic advantage.[84]
  4. [46]
    In the present case there are some salutary features about the course adopted by defence counsel.  First, it was a course adopted as a consequence of an informed and deliberate decision to pursue that course.  As Mr Keim SC effectively conceded, the court can proceed on the basis that the course adopted was one done on instructions from the appellant.  This is not a case where counsel made a decision without reference to the appellant.  Nor is this a case of incompetence of counsel.
  5. [47]
    Secondly, it is right to infer that the course adopted was one formulated as part of the case theory before the trial began.  The early exchanges prior to opening addresses demonstrates that defence counsel anticipated that the Crown case would be opened on the basis that the evidence of VIC and GDO would be called as part of the same case.  The genesis of the case theory can be found in the police interviews of VIC and the oral evidence of VIC.  As discussed above in paragraphs [13], [17] to [22] and [26], VIC was cross-examined on the basis that her mother influenced what was said at the second police interview as part of her attempts to have VIC and GDO returned to her care, and also that VIC and GDO had discussed what they would say.  Further, before the trial commenced it was evident to defence counsel that GDO was to give evidence recanting the denials of offending conduct made in GDO’s only police interview.  Thus, defence counsel had the opportunity to advance a collusion case with new allegations being made by VIC, new allegations being made by GDO, the evidence of the mother’s involvement in the decision to go back to the police in 2018, and what might be made of the suggestion that VIC and GDO had talked to each other about what had happened and what they might say.
  6. [48]
    Thirdly, the forensic advantage that was or could have been sought with that case theory being pursued was potentially significant.  Defence counsel obviously knew that his client denied that anything had happened; that was the case put to VIC and GDO.  The case to be advanced was that VIC and GDO were liars who had invented their accounts.  Armed with the significant changes in VIC’s police interviews, the complete reversal of the position in the case of GDO, and what might be made of their mother’s involvement in going to the police, defence counsel obviously saw a prospect of convincing the jury that VIC and GDO had colluded either between themselves or with their mother in making the allegations against the appellant.  Successful pursuit of that course was a matter that would likely have a severe adverse impact upon acceptance of the evidence of VIC and GDO.
  7. [49]
    Fourthly, it is, in my view, evident that defence counsel had developed an approach which was designed to neutralise the adverse effect of letting the evidence of VIC and GDO be adduced in the same case.  That was to seek a specific direction requiring the jury to use the evidence of VIC only in respect of VIC, and the evidence of GDO only in respect of GDO.
  8. [50]
    Fifthly, the criticism advanced of the way in which VIC and GDO were cross-examined is not to the point.  The fact that a forensic tactic does not come to pass does not lead necessarily to a conclusion that there has been a miscarriage of justice.  In any event, one person’s cross-examination is likely to be different from another person’s cross-examination.  A legitimate tactic by defence counsel could well include establishing that two young children occupied the same bedroom and were likely to have discussed matters between themselves, thus leaving it to the jury to entertain the requisite doubts about their allegations.  Bearing in mind that they were young at the time when the events happened and when they were interviewed, and given their position as victims of an alleged series of sexual assaults, counsel may well have taken the view that a more vigorous cross-examination was not warranted.
  9. [51]
    In those circumstances, the appellant is not able to establish that the course taken was not the result of an informed and deliberate decision.  It plainly was, as was conceded by Mr Keim SC.
  10. [52]
    Further, the course taken is explicable on the basis that it could have resulted in a forensic advantage.  Though TKWJ stands as authority for the proposition that an appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, here the evidence permits that conclusion to be made.  When the learned trial judge questioned why an application to sever the charges on the indictment had not been made before the trial, her Honour was told that “it was a forensic decision not to bring an application to sever based on the idea of collusion”.[85]  Though that was said by the Prosecutor, defence counsel did not contradict what was said.
  11. [53]
    Further, when her Honour gave her ruling on the question of cross-admissibility, her Honour said that defence counsel “have cross-examined the complainants to the effect that they have discussed with the other the details of their offending and, in that sense, there is collusion”.  Her Honour inferred that there had been a tactical reason from the defence in having the two complaints heard in the one trial.[86]  Once again, counsel for the defence did not contradict or otherwise seek to challenge what her Honour said in that respect.
  12. [54]
    I pause to note that in the present case no evidence was sought to be adduced from the trial defence counsel touching on any of the matters raised on the appeal.
  13. [55]
    Mr Keim SC criticised defence counsel at the trial on the basis that he wrongly thought that he could only succeed in an application to sever the charges on the indictment if directions was not sufficient to cure the prejudice of having the evidence of VIC and GDO heard together.  It is true to say that defence counsel responded in that way when questioned about why an application had not been made to separate the complainants: see paragraph [29] above.  However, in my view, that response should not be understood as encapsulating the entire statement on the defence position.  It is plain that the case theory put in place was one based on the collusion between VIC and GDO, and each of them with their mother.  So much was explained immediately before that response was given when the learned trial judge asked defence counsel to explain what was the rational view consistent with the appellant’s innocence.  The response was: (i) VIC had made initial allegations to support her mother; (ii) the police had said that fresh evidence was needed and VIC and GDO went back to the police; and (iii) VIC’s evidence to the police on the second occasion revealed allegations not made on the first interview, and they were made so that the appellant could be prosecuted.[87]
  14. [56]
    Further, it was evident from the Prosecutor’s comments to the learned trial judge at commencement of the submissions concerning cross-admissibility that there had been some form of discussions between the Prosecutor and defence counsel,[88] and it seems those conversations comprehended the question of cross-admissibility and whether the two complainants had been properly joined under s 567 of the Criminal Code (Qld).[89]  Those conversations seem to be the basis for the Prosecutor’s statement that it was a forensic decision on the part of defence counsel not to bring an application to sever based on the idea of collusion.  The fact that defence counsel did not contradict that statement means that this court is able to accept it as correct.
  15. [57]
    In GBF v The Queen[90] the High Court deprecated framing the ultimate question by asking if the appellant had been deprived of a chance of acquittal that was fairly open:[91]

[24] The Court of Appeal’s conclusion that the appellant had not been deprived of a real chance of acquittal was expressed in terms of the test which was formerly used in deciding whether an appeal could be dismissed under the proviso. The antecedent question for determination was whether the impugned statement had occasioned a miscarriage of justice. The distinction between a miscarriage of justice within the third limb of the common form criminal appeal provision, proof of which lies upon the appellant, and the dismissal of an appeal under the proviso, proof of which lies on the prosecution, is as explained in Weiss v The Queen. Any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the provision.”

  1. [58]
    Therefore, the question here is whether the course adopted by defence counsel had occasioned a miscarriage of justice.  In my view, it did not as it was an informed and deliberate decision to pursue a particular course at trial.  For the reasons outlined above this is not a case where the pursued forensic advantage was slight in comparison with the disadvantage from resulting in having the evidence of VIC and GDO heard in the same case.
  2. [59]
    The learned trial judge gave specific directions designed to limit the prejudice that might flow otherwise from having the evidence of the two complainants in the one case.  Apart from giving directions in the normal form, requiring that the jury reach its verdict only on the evidence that is adduced at the trial, and that the jury dismiss all feelings of sympathy or prejudice, the learned trial judge specifically addressed the fact that the evidence of VIC and GDO were heard in the same case:[92]

“This trial is complicated in the sense that what we have here is there are not only multiple charges, but there are also two complainants.  What this means is that there effectively been two trials within one.  There is the evidence of what [VIC] says the defendant did to her, and there is also evidence of what [GDO] says the defendant did to him.  As I said, you will be returning separate verdicts for each charge, so you will need to consider the evidence in relation to each charge separately.  In doing so, I need to stress to you that under no circumstances are you to use [VIC’s] evidence in support of the charges against [GDO], or visa versa.  So you are not to use the evidence [VIC] to confirm, support or strengthen the evidence of [GDO], or visa versa.  So, put in another way, you cannot, for example, use the evidence of [VIC] to reason that the defendant is the sort of person who would commit these sorts of offences or is of bad character, and therefore convict him of all the charges, including those relating to [GDO].  You cannot say to yourselves that because you are satisfied beyond reasonable doubt that the defendant committed some or all of the offences against [VIC], that he must therefore have committed some or all of the offences alleged by [GDO] and then convict of him those, or visa versa.  What I am saying is you cannot use the evidence from one complainant in relation to the other complainant in that way.  At the end of the day, before you can convict the defendant on any count, you must be satisfied that the Prosecution has proved each element of the particular count beyond reasonable doubt, that is, that the particular complainant you are considering is truthful and reliable in his or her allegations upon which that particular charge is based.”

  1. [60]
    That the jury obeyed that direction may be inferred from the fact that in respect of VIC the appellant was convicted of only those counts which had the same feature, namely forced masturbation.  The jury acquitted the appellant on the two more serious charges of rape, namely Counts 5 and 6.  As for GDO, the jury acquitted the appellant on Counts 9-11 whilst convicting the appellant only on Count 12.
  2. [61]
    The significance of decisions made by defence counsel in the course of a criminal trial has been the subject of comment by the High Court subsequently to TKWJ.  In particular, in Patel v The Queen[93] the plurality said:

[114] The respondent submits, nevertheless, that there was no miscarriage of justice, in the sense of a lack of fairness to the appellant, because the appellant did not object to much of the evidence and did not seek to make it the subject of any particular directions. Certainly there must be exceptional circumstances for the Court to grant special leave to appeal where an applicant did not object at trial to the tender of evidence which is subsequently found to have been improperly admitted. Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel’s decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.”

  1. [62]
    Further, in James v The Queen[94] Maxwell P examined authorities cited by the High Court in Patel and concluded:[95]

“… in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance has attached to inform decisions made by defence counsel about the best way to conduct the trial in the interest of the accused.  As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.”

  1. [63]
    In making the assessment about whether counsel made a forensic choice that qualifies for the purposes of the test in TKWJ, the success of the strategy is not determinative.  So much is, in my view, evident from the formulation that the decision is explicable on the basis that it could have led to a forensic advantage.[96]  A similar conclusion was reached by the Victorian Court of Appeal in Nicholls v The Queen.[97]  There the forensic decision by defence counsel was to elect not to have charges tried separately.  The two charges arose from two separate incidents, more than five months apart.  Although each incident involved a shooting, the victims were different.  Osborne and Santamaria JJA examined the competing views about the wisdom of making that decision in the particular circumstances of the case.  Counsel for the defence had expressly accepted that the two charges should be tried together and thus deliberately refrained from seeking severance from indictment.  Having referred to TKWJ, including the passage at paragraph [33] relied upon in this case, and Nudd v The Queen,[98] their Honours examined the basis of the forensic decision which was to mount the strongest possible attack on the credibility of the relevant witness, which depended upon him having been charged originally with the second shooting, and having been spared facing that charge because of his willingness to give evidence against the appellant.  Their Honours observed that the tactical decision could not be said to be irrational, even though it involved “a considerable risk”.[99]  However, their Honours took the view that there were other risks applicable to a separate trial of one charge equally those who are risks in a case intended to discredit the relevant witness.  Their Honours concluded:[100]

[116] Given the strength of the cases in respect of charges 1 and 2, the strategic options available to defence counsel were limited.  The strategy adopted was to place Schiller at the centre of both cases against the appellant, and to seek to discredit him entirely.  That strategy plainly lay behind the decision not to seek severance of the two charges.  As Maxwell P has pointed out, that strategy was full of risks.  However, any alternative strategy was also risky.  And, what was suggested by the appellant’s counsel on the appeal with respect to a confined cross-examination on charge 1 in particular was also risky.  First, for the reasons we have explained, it had an obvious potential to miscarry; secondly, had it been adopted, it would have been a strategy calculated to have kept from the jury what was a principal benefit that Schiller received from his cooperation with the police: the dropping of the very serious charge that the appellant then had to face; thirdly, it would not have made clear the full extent and basis of the sentencing benefit obtained by Schiller as a result of the combined effect of his cooperation with police in respect of both charges 1 and 2; fourthly, it would have materially inhibited any exploration of the reason no statement was made about the appellant’s confession until June 2013.

[117] In our view, it cannot be said that it was not reasonably open to make the forensic choice to have the two charges heard together and attach Schiller’s credibility as a whole as the cornerstone of the defence to both charges.”

  1. [64]
    The formulation of a test by asking whether it was reasonably open to make the forensic choice in question is an apt one, in my view.  It must follow from the fact that success in the strategy is not required.  It also recognises that decisions made for tactical reasons in a trial, particularly a criminal trial, are not necessarily made with the luxuries of time and reflection afforded to an appellate court.
  2. [65]
    As with the case in Nicholls, the present case involved an informed and deliberate decision to adopt a tactical course which had attendant risks.  The risks were twofold, that the collusion case might not succeed, and that it meant that the evidence of VIC and GDO would be heard in the same case.  The second risk was, at least in the perception of defence counsel, mitigated by the prospect of having directions which would compel the jury to confine consideration of the evidence of VIC to the offences against VIC alone, and similarly with respect to GDO.  The alternative, namely having a trial with the counts severed, also had attendant risk because it would mean that in each case the complainant’s sibling would not give evidence, thus hampering any attempt to get the collusion case across the line.
  3. [66]
    In the end, in my view it cannot be said that it was not reasonably open for defence counsel to make the forensic choice that was made and manage the risk in the way defence counsel evidently thought it might be managed.
  4. [67]
    I do not consider that, in the circumstances of this case, there has been a miscarriage of justice.

The application for leave to appeal against sentence

  1. [68]
    The appellant was sentenced on Counts 1-4 and 7-8 in respect of VIC and Count 12 in respect of GDO.  On each Count except Court 12 the appellant was sentenced to six years’ imprisonment.  On Count 12 the sentence was one years’ imprisonment.  No parole eligibility date was set, with the consequence that the appellant must serve three years in custody before being eligible for parole.
  2. [69]
    The total of three days pre-sentence custody was declared as time served under the sentence.
  3. [70]
    The nature of the offending has been adequately described earlier.  The appellant was born on 31 August 1965, and thus between 41 and 44 years old at the time of offending.  He was 55 years old at the time of sentence.  By contrast VIC was between the ages of four and six years at the time of the offending, and GDO was between seven and nine years of age.
  4. [71]
    The appellant had no criminal history, either before or subsequent to the offending.
  5. [72]
    The appellant applies for leave to appeal against the sentences imposed on the sole ground that they are manifestly excessive.  The central contention was that the imposition of a sentence of six years’ imprisonment “is markedly more severe than other sentences that have been imposed by this court for broadly comparable offences of indecent treatment”.[101]

Approach of the sentencing judge

  1. [73]
    The learned sentencing judge commenced the sentencing remarks by identifying that all of the seven counts of indecent treatment were of children under the age of 12 who were under care at the time, and all were domestic violence offences for which the maximum penalty was 20 years imprisonment.
  2. [74]
    The sentencing judge referred to the period when the offences occurred, the ages of VIC and GDO, and the circumstances that they were living with the appellant because their mother was unavailable to care for them as she was in jail.  Her Honour then recounted the essential details of all of the counts.  There is no present necessity to repeat any of the detail.
  3. [75]
    Matters taken into account by the sentencing judge included:
    1. (a)
      because the conviction was after a trial there was no legitimate claim to mitigation, because there was no demonstrated remorse;
    2. (b)
      the maximum penalty of 20 years imprisonment for each count showed how seriously the community, through Parliament, regards such offending;
    3. (c)
      the offending was serious, requiring an appropriately deterrent sentence;
    4. (d)
      aggravating features included the fact that both complainants were under the under of 12 years whilst at the same time the appellant was aged between 41 and 44; there was therefore a marked disparity in ages;
    5. (e)
      an additional aggravating feature was that all offences were domestic violence offences involving a gross abuse of trust and an exploitation of the immaturity and vulnerability of the complainants;
    6. (f)
      the betrayal of trust was made worse by the fact that the appellant knew that the complainants’ mother was in jail and therefore unable to care for them;
    7. (g)
      a further aggravating feature was the fact that the offending occurred on multiple occasions, made use of a knife when offending, and involved the application of hands around VIC’s throat;
    8. (h)
      the physical force and threats made in relation to the knife were “particularly concerning” and a “serious aspect of your conduct”;
    9. (i)
      there was a significant degree of physical and emotional overbearing on VIC;
    10. (j)
      the sexual acts had been carried out in an arrogant and brazen way for the appellant’s own sexual gratification;
    11. (k)
      the appellant did not have a criminal history, was now in his mid-50s, had adult children and a long-term relationship, and a long employment history as a truck driver; and
    12. (l)
      a period of 11 years had passed since the end of the charged period of offending, during which time there had been no reoffending.
  4. [76]
    The learned sentencing judge was referred to and took into account several so called comparable cases: R v AAR,[102] R v Reynolds,[103] and R v MCM[104].  The sentencing judge considered that the decisions were not determinative, and they did not set a range of permissible sentences.
  5. [77]
    The Crown had submitted that a serious violence offence declaration should be made.  Her Honour considered that but declined to impose one referring to the fact that there was no criminal history and no offending since the period of offending against the complainants.  Her Honour took the view that the need for general deterrence and prominent denunciation could be met without the imposition of such a declaration.

Consideration

  1. [78]
    The principles to apply on this issue are not in doubt.  It has been said many times by this Court that in order to establish that the sentence is manifestly excessive, this Court must be satisfied that there “must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.[105]  The mere fact that the sentence imposed is different from other sentences, and even markedly different from other sentences, does not establish that it is manifestly excessive.[106]
  2. [79]
    As was said by this Court in R v MCT:[107]

“To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”. Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.”

  1. [80]
    Ms Cappellano, dealing with the sentence application, frankly conceded that it had been difficult to find any closely comparable decisions.  The principal one relied on was AAR in which this court reduced the sentence of five years’ imprisonment to a sentence of three and a half years’ imprisonment.  The sentence in AAR followed a conviction after trial on five indecent treatment grounds in respect of a child under 12 and under the care of a step-grandfather.  The offending in that case involved the applicant masturbating himself to ejaculation in front of the complainant when she was about seven or eight years old.  On a separate occasion the offender took the complainant downstairs and licked her breasts and genital area, asked the complainant to suck his penis, and masturbated to the point of ejaculation.  That offender was between 53 and 60 years old during the offending and had an irrelevant criminal history.
  2. [81]
    The contention was that AAR contained a review from Fraser JA demonstrating that sentences for far more serious examples of multiple indecent treatment charges generally attracted a range of three to four years’ imprisonment.
  3. [82]
    It is true to say that AAR is of no assistance in itself in terms of setting a benchmark for the present case.  For whatever similarities it bore in terms of offending, AAR concerned an offender with pronounced health considerations, including heart disease, diabetes, sleep apnoea, asthma, lower back pain, gastro-oesophageal reflux and impotence after a resection of the prostate.  The sentencing judge found that prison life would be harder for that offender than for an able-bodied younger person, and his ill health might be adversely affected by imprisonment.  That was the central consideration in the reduction of the sentence in AAR.[108]  No such consideration applies in the present case.
  4. [83]
    Further, the sentence in AAR, as with all of the other cases relied on in the appellant’s submissions, pre-dated the introduction in 2016 of s 9(10A) of the Penalties and Sentences Act 1992 (Qld).  As I will explain, that limits their utility in a consideration of whether a sentence imposed after 2016 and for a domestic violence offence was manifestly excessive.
  5. [84]
    In R v R v O'Sullivan and Lee; Ex parte Attorney-General (Qld),[109] this Court traced the history of legislative changes leading to the introduction of s 9(10A).  The Court then encapsulated the significance of that change on consideration of sentences for domestic violence offences:[110]

[91] The significance of the nature of an offence as a domestic violence offence is to bring into existence a factor in aggravation of penalty in the common law sense. It is a factor that a sentencing judge may take into account in imposing a more severe sentence than might be imposed in the absence of that factor.

[92] In 2016, this consideration was expanded beyond previous convictions to specifically treat the current domestic violence offence as an aggravating factor. The Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) inserted a new sub-section s 9(10A) of the Penalties and Sentences Act 1992 as follows:

(10A) In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

Examples of exceptional circumstances—

1 the victim of the offence has previously committed an act of serious domestic violence, or several acts of domestic violence, against the offender

2 the offence is manslaughter under the Criminal Code, section 304B.”

[93] This sequence of legislative changes since 1997 puts it beyond question that the legislature has made a judgment about the community’s attitude towards violent offences committed against children in domestic settings. The amendments constitute legislative instructions to judges to give greater weight than previously given to the aggravating effect upon a sentence that an offence was one that involved infliction of violence on a child and that the offender committed the offence within the home environment.

[94] The significance of these legislative events has to be taken into account when sentencing. There must be consistency of sentencing but consistency is constituted by the consistent application of principles and not by adherence to a previously established range of penalties in disregard of the applicable law. The sentences imposed in earlier cases are useful only insofar as they can be used to identify the unifying principles that should be applied. When applicable legislation changes, the laws as changed must be applied faithfully and a previous range of sentencing may no longer be useful.

[97] However, the amendments that have been referred to cannot be regarded as merely declaring the existing law. On the contrary, as the Minister’s Second Reading Speech to the 1997 statute made clear, the intent of the amendments was to have the matters listed in s 9(3) regarded as “primary”. In aid of this legislative purpose, the existing s 9(4), which obliged the court to impose a sentence of imprisonment upon an offender aged under 25 years only when satisfied that no other sentence would be appropriate, was also repealed. Successive governments since 1997 have left these provisions in place. Consequently, these provisions cannot be regarded as being merely declaratory of the pre-existing law and as having no effect upon the legislative status quo. They were expressly intended to result in sentences that were more severe than those which had been imposed in the past and must be regarded as statutory amendments that were the result of Parliament’s judgment about current community values.”

  1. [85]
    Leaving that issue aside, there are other reasons why the cases advanced by the appellant are not helpful.
  2. [86]
    Ms Cappellano relied upon the review of the cases advanced as comparable cases in AAR, which, she submitted, fell into several categories.  The first were decisions which involved serious indecent treatment charges occurring in isolation, by which it was meant that they were not accompanied by a maintaining charge or something such as a rape offence.  Those decisions, such as R v PAC[111] and R v RAD[112] attracted sentences around the two-to-three-year mark.[113]
  3. [87]
    PAC is not compelling as a yardstick.  The offending was not so serious, it was carried out on an older victim and the offender’s ill health affected the length of the sentence.  Further, the maximum penalties at the time were considerably lower than those in the present case.  Finally, PAC was a case where the application for leave to appeal was refused, and as the result is therefore of little utility an argument concerning manifest excess.
  4. [88]
    RAD did involve a re-sentence on appeal, bringing the sentence to two years imprisonment suspended after eight months.  The case is distinctly different from the present case.  The offending occurred on just one occasion, the offender confessed his conduct immediately and made full admissions to the police.  Further, he voluntarily understood psychiatric treatment and was remorseful.  The court took into account special leniency merited by the offender’s volunteering of information which led to his conviction.  Those considerations render RAD of no utility in the present case.
  5. [89]
    The second group of decisions were said to be R v PAP,[114] R v WAA[115] and R v GY.[116]  These were reviewed in paragraphs [46] to [49] of AAR.  It was said that these decisions demonstrated sentences of between three to four years have been imposed or not disturbed in circumstances which might indicate that the present case involved a manifestly excessive sentence.
  6. [90]
    PAP can be put to one side, as it was in AAR, because of the age of the victim and the fact that there was no appeal against sentence.  It does not provide a useful yardstick.
  7. [91]
    WAA involved offending by a grandfather against a single complainant and to that extent is dissimilar to the present case where it was accepted that the criminality concerning GDO was taken into account in setting the head sentence of six years in respect of VIC.  The offending in WAA involved a count of maintaining a sexual relationship and the offending conduct was regular touching of the complainant’s breasts and vagina.  The victim was older and while the offending conduct bears some passing similarity to the present case, the present case is worse.  I do not consider WAA to be of utility in deciding the question of manifest excess in the current case.
  8. [92]
    GY similarly included a count of maintaining, an older victim and a sentence imposed after trial.
  9. [93]
    The third group was said to be the cases reviewed at paragraphs [50] to [53] of AAR.  These included R v CBG[117], R v Schirmer[118], R v R[119] and R v SAQ[120].  These were said to demonstrate that sentences in the vicinity of three to five years have been imposed for serious indecent treatment offences committed by offenders with a previous history of offending.
  10. [94]
    CBG was said to be of a particular use because of its review of authorities.  It was said that the highest sentence imposed in that review was the decision in R v SBM which involved a penalty of six years of imprisonment for offending in respect of three separate victims over a period of 14 years.  Little else was advanced by way of submissions, either written or oral, to draw attention to any decision which might set a relevant yardstick for the current case.
  11. [95]
    The offending in CBG occurred on one occasion (though in two incidents on the one day) and the offender admitted his offending both to the victim’s mother and to police.  The sentence was imposed on a plea of guilty.
  12. [96]
    The review of other decisions in CBG was concerned with offending on limited occasions and often older victims, and where a re-sentence was not involved.  That seriously limits the utility of those decisions.
  13. [97]
    Ultimately Ms Cappellano made the submission that there was no dispute that the offending in the present case was very serious and ultimately warranted a sentence in the vicinity of four to five years.[121]  Having regard to the fact that the learned sentencing judge, as part of the instinctive synthesis that led to the sentence imposed, declined to impose a serious violent offence declaration, and in doing so took into account the lack of a criminal history and the extended period during which there had been no offending, the conceded range does little to demonstrate that the sentence in the present case was manifestly excessive.
  14. [98]
    As a result I am unpersuaded that it has been demonstrated that the present sentence was manifestly excessive.  No comparable authority suggests so and the present sentence reflected the overall criminality of offending against two victims, in one case over a protracted period, in a gross abuse of trust and exploitation of young children, and making use of physical force and threats with the use of a knife held to the throat.  It is very serious offending calling for denunciation and deterrence, particularly as all of the offending constituted domestic violence offences for which the maximum penalty was 20 years imprisonment.  Moreover, in setting the sentence the learned sentencing judge decided not to impose a serious violent offence declaration.
  15. [99]
    The sentence application should be refused.

Conclusion

  1. [100]
    The appeal against conviction should be dismissed and the application for leave to appeal against the sentences should be refused. I propose the following orders:
  1. Appeal dismissed.
  1. Application for leave to appeal against sentence refused.
  1. [101]
    MULLINS JA:  I agree with Morrison JA.

Footnotes

[1]  Count 1 on the indictment.

[2]  Count 2.

[3]  Count 3.

[4]  Count 4.

[5]  Counts 5 and 6.

[6]  Count 7.

[7]  Count 8.

[8]  AB 413 line 38.

[9]  AB 130 line 45 to AB 131 line 9.

[10]  AB 142 lines 32-45.

[11]  AB 143 lines 4-8.

[12]  For reasons which are irrelevant to the present issues GDO was variously referred to by male as well as female pronouns.

[13]  AB 143 lines 10-13.

[14]  AB 143 line 15.

[15]  AB 143 lines 23-29.

[16]  AB 143 line 34.

[17]  (1995) 182 CLR 461; [1995] HCA 7.

[18]  [2019] QCA 191.

[19]  Who was a scheduled witness for the trial.

[20]  AB 141 lines 16-25.

[21]  AB 157 line 27.

[22]  AB 154 line 32.

[23]  AB 159 line 46.

[24]  AB 200.

[25]  AB 202 lines 19-28.

[26]  AB 220-223.

[27]  AB 224.

[28]  AB 224 lines 36-46.

[29]  AB 225 lines 1-6.

[30]  AB 226 line 28.

[31]  AB 227 line 16 to AB 228 line 7.

[32]  AB 228 lines 24-31.

[33]  AB 228 line 38.

[34]  AB 232 line 46.

[35]  AB 234 lines 5-123.

[36]  AB 260 line 43 to AB 261 line 20.

[37]  AB 264 line 19 and AB 265 line 19.

[38]  AB 267 lines 29-34.

[39]  AB 276 line 33 to AB 277 line 11.

[40]  AB 282 lines 15-26.

[41]  AB 293 line 39 to AB 294 line 41.

[42]  AB 295 lines 10-12.

[43]  AB 295 line 31 to AB 296 line 2.

[44]  AB 296 lines 37-44.

[45]  AB 299 lines 19-34.

[46]  AB 299 line 36 to AB 300 line 13.

[47]  AB 431.

[48]  Paragraph 2.

[49]  [2018] QCA 115.

[50]  Paragraphs 25-29.

[51]Nibigira at [111].

[52]  AB 323.

[53]  AB 323 lines 1-23.

[54]  AB 154 lines 24-33.

[55]  AB 156 line 33.

[56]  AB 156 line 39 to AB 157 line 28.

[57]  AB 159 line 46.

[58]  AB 164 lines 37-39.

[59]  AB 166 lines 11-15.

[60]  AB 166 lines 21-31.

[61]  AB 27 line 43 to AB 28 line 3.

[62]  AB 29 lines 33-39.

[63]  AB 29-30 and 32.

[64]  AB 39 line 36.

[65]  AB 39-41.

[66]  AB 41 line 18.

[67]  AB 68 lines 4-16.

[68]  (2002) 212 CLR 124; [2002] HCA 46.

[69]  With whom Gummow and Hayne JJ concurred.

[70]TKWJ at [24].

[71]TKWJ at [25].

[72]TKWJ at [25].

[73]TKWJ at [26], citing Mraz v The Queen (1955) 93 CLR 493 at 514.

[74]TKWJ at [26].

[75]TKWJ at [27].

[76]TKWJ at [28].

[77]  (1998) 208 CLR 343.  Leaving aside the self-evident error in the citation for Gibb v The Queen (the proper citation is (1998) 194 CLR 106), the citation of Gibb is curious, as nothing in that case supports the proposition for which it is attributed.

[78]  (2001) 208 CLR 343; [2001] HCA 46.

[79]TKWJ at [32]-[33].  Internal citations omitted.

[80]  (2006) 80 ALJR 614; [2006] HCA 9.

[81]Nudd at [8]-[9].  Internal citations omitted.  Emphasis in original.

[82]  Appeal transcript T1-5 lines 30-45.

[83]TKWJ at [25] and [26].  Emphasis added.

[84]TKWJ at [27].

[85]  AB 295 line 45.

[86]  AB 323 lines 19-23.

[87]  AB 299.

[88]  AB 293 line 39.

[89]  AB 295 line 34.

[90]GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037.

[91]GBF at [24].  Emphasis added; footnotes omitted.

[92]  AB 57 lines 11-32.

[93]  (2012) 247 CLR 531 at 562-3 [114]

[94]  (2013) 39 VR 149.

[95]James v The Queen at [4].

[96]TKWJ at [26].

[97]  [2016] VSCA 250.

[98]  (2006) 80 ALJR 614.

[99]Nicholls at [112].

[100]Nicholls at [116]-[117].

[101]  Appellant’s outline, paragraph 1.

[102]  [2014] QCA 20.

[103]  [2015] QCA 111.

[104]  [2017] QCA 187.

[105]Wong v The Queen (2001) 207 CLR 584 at [58].

[106]Wong at [58].

[107]  [2018] QCA 189 at [240]; internal footnotes omitted.

[108]AAR at [54].

[109]  (2019) 3 QR 196; [2019] QCA 300.

[110]O'Sullivan at [91]-[94] and [97].  Internal citations omitted.  Emphasis added.

[111]  [2006] QCA 327.

[112]  [2008] QCA 305.

[113]  See AAR at [40]-[45].

[114]  [2013] QCA 288.

[115]  [2008] QCA 87.

[116]  [2007] QCA 103.

[117]  [2013] QCA 44.

[118]  [1995] QCA 242.

[119]  [2000] QCA 27.

[120]  [2002] QCA 221.

[121]  Appeal Transcript T1-29 lines 1-3, and paragraph 17 of the appellant’s outline.

Close

Editorial Notes

  • Published Case Name:

    R v SDS

  • Shortened Case Name:

    R v SDS

  • MNC:

    [2022] QCA 106

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Mullins JA

  • Date:

    14 Jun 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC110/20 (No citation)04 Jun 2021Date of conviction after trial (Rosengren DCJ and jury) of seven counts of indecent treatment relating to two young siblings who shared a bedroom in accused’s home; consistently with defence position, trial judge ruled that complainants’ evidence not cross-admissible and directed jury accordingly; defence case that charged conduct did not occur and complainants colluded with each other and their mother to bring false allegations against accused.
Primary JudgmentDC110/20 (No citation)08 Jun 2021Date of sentence; head sentence of 6 years’ imprisonment with parole eligibility after 3 years; offender used physical force, threats, and a knife in procuring one step-granddaughter to masturbate him on multiple occasions over protracted period and offender kissed another step-granddaughter; both children under 12 and under care; offences domestic violence offences; 41-44yo offender (55yo at sentence), no criminal history, no reoffending in decade since, no demonstrated remorse (Rosengren DCJ).
Appeal Determined (QCA)[2022] QCA 10614 Jun 2022Appeal against convictions dismissed; defence counsel’s failure to seek separate trials for each complainant did not give rise to a miscarriage of justice in circumstances where it was the result of an informed and deliberate forensic decision which, in the circumstances, was reasonably open, notwithstanding that the strategy pursued did not succeed. Application for leave to appeal against sentence refused; sentence not manifestly excessive: Morrison JA (Sofronoff P and Mullins JA agreeing).

Appeal Status

Appeal Determined (QCA)

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