R v Nona[2022] QCA 26

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I have had the advantage of reading in draft the judgments of Henry J and Boddice J.
2. [2]
   I adopt Henry J’s identification of the factual circumstances relevant to the appeal against conviction and the application for leave to appeal the sentence.
3. [3]
   I agree with the order Henry J proposes in relation to the appeal against conviction and with his Honour’s reasons therefor.  I also agree with the additional remarks made by Boddice J at [6].
4. [4]
   As to the application for leave to appeal against sentence:

   1. (a)
      The impact of the Reporting Act was relevant to the consideration of what sentence was just in all the circumstances: see R v Bunton [2019] QCA 214 per Morrison JA at [27], with whom Sofronoff P and Fraser JA agreed.  It had to be taken into account as part of an integrated process involving the consideration of all the circumstances of the case, including the sentencing principles stated in s 9 of the Penalties and Sentences Act, cf the remarks made by Fryberg J in R v Eveleigh [2003] 1 Qd R 398 at [111].
   2. (b)
      Of course, the need to consider the consequences of a particular exercise of the sentencing discretion cannot be permitted to subvert the intention of the statute which imposed the consequence in the first place, cf R v McDougall & Collas [2007] 2 Qd R 87 at [18], per Jerrard, Keane and Holmes JJA.  The observations by McMurdo JA in R v Rodgers [2021] QCA 97 at [10]-[12] should not be regarded as authority to the contrary.  I would prefer to defer further consideration of the matters raised by Henry J in his discussion of R v Rodgers to a case in which the circumstances of the case or the argument before the Court rendered it necessary to consider whether consideration of statutory consequences might subvert statutory intention.
   3. (c)
      For the reasons expressed by Henry J at [92] and [93], I am not persuaded to conclude that in this particular case the sentencing judge erred by failing to take into account the consideration that the sentence imposed would attract the consequences stated by the Reporting Act.  And, for the reasons expressed by Henry J at [63]-[69] and by Boddice J at [7] and [8], I am not persuaded to conclude that the sentence in this particular case was manifestly excessive.
   4. (d)
      I agree with both their Honours that the application for leave to appeal against sentence should be refused.

5. [5]
   BODDICE J:  Henry J’s comprehensive analysis of the relevant factual circumstances and legal principles, which I gratefully adopt, allows me to briefly state my reasons for dismissing the appeal against conviction and refusing leave to appeal sentence.
6. [6]
   First, the requirement that the jury be satisfied beyond reasonable doubt of penetration of the complainant’s vagina by the appellant’s fingers provides a logical basis for the jury’s conclusion that they were satisfied beyond reasonable doubt of the appellant’s guilt of count 2, but not so satisfied in respect of count 1.  Those differing verdicts are consistent with the jury having undertaken its task, in accordance with the careful directions given in the summing up.
7. [7]
   Second, the criminal conduct the subject of count 2 was committed by the applicant in circumstances where he was aged 47 and the complainant was a 13 year old female in his care.  The conduct only ceased due to the actions of the complainant.  The applicant exhibited no remorse.
8. [8]
   Those circumstances, when considered in the context of the comparable yardsticks, support a conclusion that a sentence of imprisonment, wholly suspended, fell well within a sound exercise of the sentencing discretion.  The consequence that the applicant thereby became subject to the reporting requirements of the Reporting Act requirements could not form, in the particular circumstances of the case, any basis to conclude that a sentence of imprisonment was manifestly excessive.
9. [9]
   I agree with the orders proposed by Henry J.
10. [10]
    HENRY J:  The appellant stood trial in the Cairns District Court on a two-count indictment alleging the commission of sex offences on the same date against a 13 year old girl, namely:

Count 1 Rape;

Count 2  Attempted indecent treatment of a child under 16 under care.

11. [11]
    The prosecution case was, on count 1, that the appellant penetrated the complainant’s vagina with his fingers and, on count 2, that he tried to kiss her.  The jury acquitted the appellant of the rape charge but convicted him of the attempted indecent treatment charge.  He was sentenced to three months imprisonment wholly suspended for an operational period of three months.
12. [12]
    The appellant appeals his conviction, alleging inconsistent verdicts.  The appeal must fail because the mix of verdicts is readily explained by the prospect the jury was satisfied generally that the incident attracting the rape charge occurred but harboured a reasonable doubt on that charge’s element of penetration.
13. [13]
    He also applies for leave to appeal his sentence, alleging manifest excess occasioned by the effects of the reporting regime of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2005 (Qld) and a failure to have regard to the effects of that regime.  The application must fail.  The sentence was well within the sound exercise of the sentencing discretion and there is no prospect of successfully contending an absence of reference to the effects of the reporting regime constitutes error here.

The appeal against conviction

14. [14]
    The sole ground of appeal is:

“That his conviction should be set aside because the conviction was unreasonable, unsafe, and unsupportable having regard to the whole of the evidence and was inconsistent with the acquittal on count 1.”

15. [15]
    So stated the ground appears to advance two complaints.  However, the appellant’s counsel explained in oral submissions that the ground was not advanced as a complaint the conviction could not be supported having regard to the evidence or was “overall unreasonable”.  Rather, it was explained, the ground was advanced only as the “very narrow ground” that the conviction was unreasonable by reason of its inconsistency with the acquittal on the charge of rape.^[1]  The ground was argued only on that basis.
16. [16]
    The relevant test for consideration of the ground, as so explained and argued, was identified in MacKenzie v The Queen^[2] as one of logic and reasonableness.  The appellant is obliged to satisfy the court that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the relevant mix of verdicts in issue.^[3]  If there is a proper way by which the verdicts can be reconciled, so as to allow the conclusion the jury performed their functions as required, that conclusion will generally be accepted.^[4]
17. [17]
    The appellant argues the verdicts in the present case cannot be reconciled given the two charged offences occurred in one episode.  It is argued the jury’s acquittal on count 1 meant the jury had not found the complainant’s account credible, from which it follows the jury should have entertained a reasonable doubt on count 2.  The argument assumes disbelief of the complainant’s account is the only explanation for the acquittal on count 1.  However, as the below analysis of the evidence demonstrates, the jury’s acquittal on count 1 is rationally explained by them believing the complainant but harbouring a reasonable doubt on the element of penetration because of the unclear state of such little evidence as was adduced from her about that element.
18. [18]
    The relevant events occurred one Saturday at the home of the complainant and her family on a weekend when the appellant, his wife and children were staying there.  The complainant described the appellant as being an uncle to her, explaining that her mother and the appellant were cousins.  On the evidence of the appellant’s de facto wife, the complainant’s mother is the sister of the appellant’s de facto wife.
19. [19]
    The appellant, the complainant and some other witnesses are Torres Strait Islanders and a special direction was given to the jury regarding cultural and linguistic aspects of their manner of expression and use of English.
20. [20]
    Police recorded an interview with the complainant 11 days after the alleged offences.  Its content, particularly some of the questioning is of importance in the appeal.  During the interview the complainant’s initial account of events was to this effect:

• On the Saturday morning after she had finished her breakfast and gone to the lounge room, the appellant called her over to him.  He said, “Do you know boys?”  She said, “No, I don’t even know boys.”  He then said he wanted to see her and wanted to meet her “down the creek” and was going to give her money “for like chatting, like chatting me”.

• The complainant went to the kitchen and told the appellant’s daughter what the appellant had said and she responded, “Keep away from him”.  However, the complainant was then beckoned by the appellant.
• “Then after he yelled me again then I said yeah, then he tell me to sit on the, sat on the corner so I sat down on the corner, he came down and he was like putting his hand into my shorts then I was pulling him away … and then he made me very uncomfortable. … Then he said oh, let’s go outside but I said no.  Then he just, and he was trying to kiss me but I putting my face away and said I’m not a grown adult … and then he, and then he told me not – not to tell anyone else.” (emphasis added)
• “And then he said that I need to watch bad things on the phone and I said, I don’t, I don’t watch them things ‘cause I don’t even know boys” (She later clarified this was said by the appellant on the Saturday night).
• “Then after that time he told me to lay outside… in the loungeroom on the beanbag.”
• The complainant volunteered that at some stage of the events that morning the appellant “also told me to touch myself” and to go to the shower and “open the shower window so he could stand there and look me”.
• The complainant described later going to the bedroom and locking the door, sleeping in till the next morning.  She said when she was eating her breakfast the next morning, “He started to whisper saying oh, where are you?  I was looking for you.”

21. [21]
    The above emphasised conduct, during which the appellant put his hand in the complainant’s shorts and attempted to kiss her, was the conduct attracting counts 1 and 2 in the indictment.  When the police sought to clarify where at the house that conduct occurred, the complainant’s responses, while initially ambiguous, indicated she had earlier been sitting in the lounge but that the physical conduct had occurred when she was sitting out on the verandah.
22. [22]
    Further detail was sought about the physical conduct and she explained she was outside on the verandah and she started to stand up as she noticed the appellant approaching her.  She said:

“I stand up then he pushed me to the wall and then he put his hand into my shorts and I said, What are you doing?  Then he was like, oh nothing, and then I pushed him away and then um then he tried to kiss me, then I said no and …like one hour later I went to shower but I closed the shower window. … When I went into the shower I was, I was starting to bleeding.” (emphasis added)

23. [23]
    Of the attempted kiss, the complainant explained the appellant tried to put his lips to her lips, but she turned her head away and pushed him away, telling him, “Your lip is too big and like you’re older person.”  She explained that in response he said, “I won’t do it again” and she went inside.
24. [24]
    As to the appellant’s preceding act of putting his hand down her shorts, the complainant explained when he did this he touched her vagina.  She said his nails were long and she later noticed, because he had a sharp nail, she “got a little bit bleeded”.  She said he used his four fingers to touch her vagina “in the middle”.
25. [25]
    The questioning police officer told the complainant that when she talked to people about their vagina she described it with three different parts, “there’s the front of our vagina”, “the underneath” and “the hole up inside the vagina”.  These questions and answers immediately followed:

“So can you tell me which part of your vagina he touched? --- The hole

The hole? --- Yes

Okay and what could you feel on the hole of your vagina? --- Oh, I can feel like there was something going wrong, then I started pushing him away.”

26. [26]
    Up to this point her responses raised the possibility the touching involved penetration of the vagina but not unambiguously so.  Whether she had clearly understood the officer’s three location anatomical list, particularly the intended difference between “underneath” and “hole”, had not been explored.  The above quoted passage shows when asked about what she could “feel on the hole” of her vagina she did not respond that she had felt the appellant’s fingers inside her.
27. [27]
    Despite these uncertainties about penetration the next exchange on the topic regrettably began with the leading question, “So you could feel fingers inside the hole of your vagina, is that right?”, to which the complainant responded, “Yes”.  She had not said any such thing.
28. [28]
    It is elementary that police gathering evidence should not ask witnesses, particularly child witnesses, leading questions.  Extracting information from a witness by suggesting the information rather than the witness volunteering it inevitably undermines the reliability of the witness’ answer.  A “no” answer may mean the information is incorrect to the knowledge of the witness.  However, the mischief is that “no” may also mean the witness has misunderstood the question, possibly even despite the information in it being correct to the knowledge of the witness.  A “yes” answer may mean the information is correct to the knowledge of the witness.  However, the mischief is that “yes” may also mean the information is unknown to, or contrary to the knowledge of the witness but nonetheless wrongly agreed to in misunderstanding, fear, deference, acquiesce or assumption the information is right because it is what the police say.  Those potential mischiefs may in turn be compounded by subsequent questions and answers infected by the flawed assumption the earlier answer was correct and reliable.
29. [29]
    As it turns out, in the present case there was nothing in the ensuing answers to unambiguously indicate the complainant had in fact felt the appellant’s fingers in her vagina.  After the above question, when the complainant was asked to describe any feeling in her vagina, she did not speak of feeling his fingers inside her.  Rather, she responded, “Like all I can feel that there was like something running down.  On my hole and on my vagina”.  When police later asked her to describe his action when he touched her, she described it as “pushing” and when asked to describe the movement of his fingers she did not describe movement and rather responded, “It was very hurtful and I was feeling very embarrassed”.
30. [30]
    The police later asked the complainant if she could see where the blood was coming from when she showered.  She responded, “From my vagina”.  There were no further follow up questions on that topic, for example, whether the source of the bleeding noticed by the complainant was from inside or outside the vagina.  Nor was there any medical evidence or direct evidence from any other witness about the bleeding.
31. [31]
    If the jury accepted the occurrence of the physical conduct described in the complainant’s account to police, and even if they accepted there was some bleeding from the vicinity of the vagina, it remained well open to regard that account as equivocal on the issue of penetration.  That was because the only unambiguous answer on that issue was in answer to a leading question, the complainant did not herself describe feeling the appellant’s fingers entering or moving inside her vagina and the exact location of the source of bleeding was not explored.  On the complainant’s account to police the conclusion was logically and reasonably open that the appellant had clutched the fingers of his hand down to outside the complainant’s vagina, applying force outside the labia, possibly even scratching that outer area with his fingernail resulting in some bleeding, but may not have penetrated the vagina.  Indeed, the collective reference in that account to the appellant’s four fingers touching the complainant was more plausibly a reference to the four fingers touching outside rather than them all being inserted inside the vagina.
32. [32]
    Such a conclusion would mean the appellant was not guilty of rape but guilty of unlawfully and indecently dealing with a child under 16, an offence contrary to s 210(1) Criminal Code (Qld).  Conviction for such an offence is open as an inherent alternative verdict on a charge of rape pursuant to s 578(1) of the Code, if it is established by the evidence and assuming it is actually left to the jury as an alternative.
33. [33]
    It was not left to the jury here, nor did the parties request that it be left.  The conclusion that the touching of the vagina occurred but that there was a reasonable doubt about penetration was not urged at trial by either party.  The prosecution chose to urge the appellant should be convicted of rape and the defence chose to urge that he should be acquitted outright.
34. [34]
    The above conclusion, that the appellant touched but may not have actually penetrated the complainant’s vagina, remained logically and reasonably open despite the other evidence advanced at trial.
35. [35]
    The appellant’s partner gave evidence in the prosecution case in a way generally supportive of his position.  The appellant did not give or call evidence although his interview with police in which he denied the offences, was exhibited.  Photographs of his hands taken by police showed his fingers held in a somewhat bent position.  The complainant told police when she was interviewed that he suffered from diabetes and swelling of his hands.  Such evidence as there was about the state of the appellant’s hands did not necessarily exclude the conclusion there had been a penetrative touching but it did nothing to support that conclusion either.
36. [36]
    The pre-recorded evidence of the complainant was of similarly neutral impact on the issue of penetration.  She was not asked any questions in chief, cross-examination or re-examination as to the exact location of the bleeding.  The detail of how she asserted she was touched was only dealt with tangentially in the following exchange in cross-examination, after the complainant agreed the appellant had long fingernails and crooked fingers:

“They’re very bent? --- Yeah.  Like – yeah.  Bent.

And he can’t straighten them up, can he?  They’re all, sort of, bent like that all the time, aren’t they? --- Yes.

Yeah.  And you said that he put four of his fingers into your vagina? --- Yes

And that was for about 20 or 30 seconds? --- Yes.”

37. [37]
    The reference to the complainant having said the appellant put four of his fingers into her vagina was only a purported summary, and not an entirely accurate one, of what she had said to the police in her interview with them.  Her answer was merely an agreement with the cross-examiner’s summary of what had been said in her account to the police.  It did not resolve the above discussed ambiguity on the issue of penetration inherent in that account.  Further, the above quoted exchange in cross-examination highlighted the state of the appellant’s fingers – evidence which did not tend to eliminate the doubt about penetration arising from the complainant’s account to police.
38. [38]
    Evidence of preliminary complaint was led at trial.  The appellant’s daughter testified that on the Saturday of the offending behaviour the complainant told her she felt uncomfortable around the appellant and that he had touched her but did not say where.  The mother of the appellant’s daughter (who is not the appellant’s present partner) testified that at some time in the month of the offending behaviour, the complainant told her the appellant had touched her and in telling her this the complainant had gestured towards her vagina.  The complainant’s cousin testified that the complainant told her, about a week after the offence date, that the appellant had asked her to masturbate.  The day after telling her that the complainant also told her the appellant pushed her to the wall and gave her a kiss and she pushed him away and she later went to the toilet and saw she was bleeding from a scratch at “her front part”.  While that body of preliminary complaint evidence was generally supportive of consistency of complaint it did not include any specific complaint of penetration.
39. [39]
    The upshot is that by the close of evidence the conclusion was still logically and reasonably open that the appellant had clutched the fingers of his hand down to outside the complainant’s vagina, applying force outside the labia, possibly even scratching that area with his fingernail resulting in some bleeding, but may not have penetrated the vagina.
40. [40]
    The learned trial judge instructed the jury as to the need for all elements of the charged offence to be proved beyond a reasonable doubt and explained penetration was such an element on a charge of rape.  Because the above identified conclusion was open, the jury’s acquittal on the charge of rape is consistent with those directions.  It does not stand as inconsistent with the guilty verdict on count 2, relating to the attempted kiss.  The mix of verdicts is readily explained as reflecting the jury’s acceptance of the complainant’s account of both the touching of her vagina and the attempted kiss but remaining in doubt as to whether the touching of the vagina involved actual penetration – a critical element to proof of the count on which the jury acquitted.  The presence of doubt on that issue likely arose not because of a credibility or reliability issue but because of a lack of clarity in such evidence as was adduced on the issue.
41. [41]
    It follows on a test of logic and reasonableness that there is a proper way by which the verdicts can be reconciled, allowing the conclusion the jury performed their functions as required.  The appeal against conviction should therefore be dismissed.

Application for leave to appeal sentence

42. [42]
    The offence of which the applicant was convicted was a reportable offence within the meaning of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“the Reporting Act”).^[5]  The effect of s 5 of the Reporting Act is that the applicant became a reportable offender unless a term of imprisonment was not included in the sentence and no conviction was recorded.
43. [43]
    While the term of imprisonment was suspended, it remains that the applicant was sentenced to a term of imprisonment and that the recording of a conviction was statutorily required.^[6]  The applicant therefore became a reportable offender, bound by s 36(1)(a) of the Reporting Act to comply with reporting obligations for five years.
44. [44]
    The evident object of the application for leave to appeal sentence was to avoid the applicant being subjected to the reporting regime of the Reporting Act.  This was sought to be done by securing leave and gaining such success on appeal that this Court would not only interfere and re-sentence the applicant to a sentence which does not involve imprisonment but also refrain from recording a conviction, notwithstanding the multiple recording of convictions against the applicant in the past.

Grounds

45. [45]
    The applicant’s proposed grounds were that:

1. the sentence imposed was manifestly excessive; and

2. the learned sentencing judge failed to have regard to the effect of the reporting offender regime pursuant to the Reporting Act.

46. [46]
    The first proposed ground was abandoned prior to the hearing.  However, it was resurrected with the Court’s leave at the hearing when it was apprehended the merit of the second ground may turn upon whether the sentence, with all the consequences it entailed, was beyond the range of the sound exercise of the sentencing discretion.

The applicant’s arguments

47. [47]
    There were two core arguments advanced in support of the application for leave.
48. [48]
    The first argument was that the impact of the Reporting Act’s reporting regime was such a relevant consideration in determining the sentence that the learned primary judge erred in not having regard to it.
49. [49]
    The second argument was that, whether by reason of the Reporting Act’s reporting regime or generally, the wholly suspended sentence of three months imprisonment was manifestly excessive.
50. [50]
    To deal with those arguments it is convenient, after first reviewing the proceeding and outcome, to consider:

• whether, setting aside the alleged relevance of the Reporting Act, the sentence imposed was manifestly excessive;
• the Reporting Act’s reporting regime and its purpose;
• whether the Reporting Act makes any difference to the complaint of manifest excess;
• whether the absence of express regard to the Reporting Act’s reporting regime constituted error.

The sentence proceeding and outcome below

51. [51]
    The sentence proceeding below, was brief, as is not uncommon after a trial.  The only additional information advanced on sentence was information about the applicant’s antecedents, as well as a victim impact statement and the applicant’s criminal history.
52. [52]
    The four-page criminal history included offences of dishonesty, drug possession and supply and assault but not sex offences.  The applicant, who was 47 at the time of the offence, had not previously been imprisoned but had been sentenced to a bond, fines and probation.  Convictions had been recorded against him on many occasions.  His antecedents were unexceptional and none of it was said to warrant mitigation.
53. [53]
    The victim impact statement indicated there had been some adverse impact upon the complainant, though its weight was qualified by the fact it had been written on the premise the applicant had committed both counts 1 and 2 whereas he had been acquitted on count 1.
54. [54]
    The Crown submitted a sentence of four to six months actual imprisonment was within range.  This was said to be on the basis that while the offence was an attempt, it only ceased because of the complainant’s action, it occurred in the context of grooming behaviour, it was an aggravating circumstance that the complainant was in the applicant’s care and there was no remorse.  Defence counsel submitted for a wholly suspended sentence of imprisonment but argued four to six months “seems to be on the high side given it is just an attempt”.  Neither side advanced any comparable sentences.
55. [55]
    The learned primary judge’s brief sentencing remarks summarised the facts, the applicant’s antecedents and his criminal history.  His Honour noted the criminal history did not have any significant impact on the sentence to be imposed.  He concluded:

“Bearing in mind the nature of the offence, your personal circumstances, your absence of remorse and the importance of general and specific deterrence, I have concluded that a wholly suspended sentence of three months is appropriate.”

His Honour proceeded to formally record a conviction and sentence the applicant to three months imprisonment, wholly suspended for an operational period of three months.

56. [56]
    The sentence thus imposed was the very sentence sought by defence counsel below.
57. [57]
    A feature of the case which did not receive express attention below is the operation of s 9(4) Penalties and Sentences Act 1992 (Qld).  That section applies when a court is sentencing an offender for “any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation material offence”.  The term “any offence of a sexual nature” is not defined but its ordinary meaning clearly includes an offence of indecent treatment of a child under care.  That offence was only charged as an attempt here.  That had the consequence that the offence’s maximum penalty of 20 years imprisonment per s 210(4) of the Code was halved to 10 years imprisonment per s 535 of the Code.  However, that it was an attempt did not make it any less an “offence of a sexual nature”.  It therefore triggered the application of s 9(4)(c) which provides:

“the offender must serve an actual term of imprisonment, unless there are exceptional circumstances”.

Section 9(12) defines an “actual term of imprisonment” as meaning “a term of imprisonment served wholly or partly in a corrective services facility”.  A wholly suspended term of imprisonment is not caught by that definition.^[7]  The sentence imposed was therefore premised on the presence of exceptional circumstances.

58. [58]
    While the need for exceptional circumstances to permit such a sentence was not expressly referred to below, the absence of such express reference is not said to constitute error.  It is fair to consider what occurred on the basis most favourable to the applicant, which is to accept the sentence imposed implicitly reflects a conclusion that there were exceptional circumstances.
59. [59]
    As to what the exceptional circumstances were, in the absence of mitigating circumstances the only circumstance which stands out is that the nature of the offence of which the applicant was convicted was particularly confined.  The applicant was entitled to the full force of the acquittal on count 1.  True it is that acquittal did not necessarily mean there had not been a non-penetrative touching of the vagina.  However, the rule in R v D^[8] precludes a sentencing court from considering conduct of which the offender has not been convicted, which constitutes a separate offence from and is not part of the conduct constituting the offence being sentenced.  This meant the learned sentencing judge could not sentence the applicant on the basis the attempted kiss had been preceded by a non-penetrative touching of the complainant’s vagina.  The objective seriousness of the only offending conduct to be sentenced, an attempted kiss to the face, was towards the lower end of the degree of attempted physical dealing which may constitute an attempted indecent dealing and it was a single offence.
60. [60]
    The matter has some similarity to R v GAW,^[9] where the offender was charged with two counts of indecently dealing with his 13 year old daughter, a child under his care.  The alleged offences occurred close in time.  The jury acquitted on one count and convicted on the other.  The offence to be sentenced was constituted by the father momentarily grabbing one his daughter’s buttocks outside her panties when her skirt had been lifted to display panties purchased earlier in the day.  This attracted a sentence of ten months imprisonment suspended after five months.  In allowing the sentence appeal McMurdo P and Holmes JA concluded a “sentence in the range of six months imprisonment suspended forthwith” would have been appropriate.  They considered it was open to conclude exceptional circumstances from the low level of the offence, that it was a single episode and the absence of like previous offending.
61. [61]
    The same considerations likely caused the learned primary judge to sentence on the basis there were exceptional circumstances in the present case.

Manifestly excessive?

62. [62]
    Setting the operation of the Reporting Act to one side, was the sentence manifestly excessive?
63. [63]
    While the confined nature of the offence moved the learned sentencing judge to wholly suspend the sentence, rather than require some component of it to be served, it is a considerable stretch to infer the learned sentencing judge was obliged to opt for an even more lenient sentence, such as a community-based order.
64. [64]
    No comparable authority has been cited to suggest the sentence was excessive.  Moreover, R v GAW, already discussed above, powerfully supports the conclusion the sentence imposed here was well within an appropriate range.  If six months imprisonment wholly suspended was considered apt by a majority of this Court in that case, then a like sentence choice of half the duration for the attempt here presents as an unremarkable outcome.
65. [65]
    R v Theohares^[10] is also of some assistance.  In that case a store owner’s groping of a 12 year old girl’s buttocks and breast outside her clothing attracted two counts, because the conduct was briefly interrupted by the attendance of a delivery driver.  As with GAW that was not an attempt only, but, unlike the present applicant, Theohares had no previous convictions, pleaded guilty and there was no circumstance of aggravation.  He was sentenced at first instance to nine months imprisonment suspended after two months.  This Court accepted special circumstances were present and substituted a wholly suspended sentence of imprisonment of six months.
66. [66]
    While the offence here was a single attempt and the applicant has not offended similarly before, the circumstances of the case nonetheless told against a more generous outcome than the short wholly suspended sentence which was imposed.  The applicant was a mature man, being 47 at the time of offending.  While he had not previously received a sentence of imprisonment, many convictions had previously been recorded against him and he did not enjoy the advantage of being sentenced as a first offender.  There was nothing about the applicant’s personal circumstances warranting any material mitigation of sentence.  Nor, because he went to trial, did the applicant have the mitigatory advantage of having pleaded guilty to the count on which he was convicted.  Nor did he have the advantage of having expressed remorse in some other way.  To the contrary, on the day of his offending, rather than apologising to the complainant for what he had he done, he disturbingly continued to say things to the complainant indicating sexual interest in her.
67. [67]
    Furthermore, the complainant was only 13 and the applicant was much older.  It was a circumstance of aggravation that the complainant was in the applicant’s care.  The attempt only ceased because of the complainant’s actions, rather than of the applicant’s own volition.  While the allegation that the applicant also touched the complainant’s vagina must be ignored, the fact that his single offence occurred in the broader context of him repeatedly making sexualised comments to the complainant is relevant.  It shows the single offence was not an isolated and spontaneous moment of poor judgment and rather that it occurred in the context of sustained sexual interest in the complainant child.
68. [68]
    Having regard to all of these considerations, it was well open to the learned sentencing judge to conclude a short sentence of imprisonment, albeit suspended, should be imposed.
69. [69]
    Setting aside the alleged relevance of the Reporting Act’s reporting regime, there is no prospect of the applicant successfully arguing the sentence was manifestly excessive.

The Reporting Act’s reporting regime and its purpose

70. [70]
    As explained above, the imposition of a term of imprisonment, even a suspended one, triggered the automatic consequence, pursuant to the Reporting Act, that the applicant was deemed a reportable offender and thus bound to comply with the Act’s reporting regime.  Thus, the applicant is subject to the Act’s reporting regime not as a component of the sentence imposed against him but as a mandatory statutory consequence of the imposition of that sentence.
71. [71]
    The reporting obligations, detailed in Part 4 of the Reporting Act, include initial and at least monthly periodic reporting to police of personal details and any changes thereto.^[11]  Those personal details, stipulated in Schedule 2 of the Act, are comprehensive and include personal identifying information (including DNA per s 40A), address, employment, children with whom the reportable offender has contact, membership of clubs, organising activities in which children participate, motor vehicles, travel outside Queensland, telephones, internet services including providers, email addresses, internet user names and identities and social networking passwords.  Breach of the reporting obligations or provision of false or misleading information are offences per ss 50 and 51.
72. [72]
    The reporting obligations have been described by this Court as onerous.^[12]  It is to be appreciated that description is confined to the nature of the reporting obligations.  Subject to having to meet those reporting obligations, a reportable offender living in the community remains at liberty to live a law-abiding life.  It is also to be appreciated that the automatic imposition of the obligations under the Act is usually, as here, a consequence of the offender’s conviction of a sex offence relating to a child.
73. [73]
    Such a consequence is consistent with the legislature’s recognition in the Reporting Act at s 3(1) that any risk to the lives or sexual safety of children is unacceptable.  The Act’s purposes, in imposing the reporting obligations, are identified in s 3(1A) as being:

“(i) to reduce the likelihood that the offender will re-offend; and

2. (ii)
   to facilitate the investigation and prosecution of any future offences that the offender may commit.”

Inferentially, it is the police possession of information about the reportable offender which serves the latter purpose, while the former purpose is served by the deterring effect that the reportable offender knows police have such information.  The obligation to report may of itself also have the deterring effect of maintaining a raised awareness in the reportable offender of the importance of not re-offending.

Does the Reporting Act make a difference to the complaint of manifest excess?

74. [74]
    Turning to whether the Reporting Act should make any difference to the complaint of manifest excess, the applicant argues that it does.
75. [75]
    The argument stems in part from a line of authority constituted by cases including R v SBP,^[13] R v SBR,^[14] R v Rogers,^[15] R v LAL^[16] and R v Bunton.^[17]  In so far as they are presently relevant, those cases in various ways stand for a principle which I will refer to for convenience as “the Bunton principle”, after the last of the above line of cases.  That principle is that where the court has a discretion about whether or not to record a conviction, the consequence that the Reporting Act’s reporting regime will automatically apply if a conviction is recorded is potentially relevant in deciding whether to record a conviction.  It has potential relevance to that decision because the impact of recording a conviction is a relevant consideration in exercising the discretion whether to record a conviction.
76. [76]
    For example, pursuant to s 12(2)(c)(i) Penalties and Sentences Act, the impact which recording a conviction will have upon an offender’s social wellbeing is a relevant circumstance in considering whether or not to record a conviction.  Recording a conviction triggers the obligation to comply with the reporting regime and meeting that obligation may adversely impact social wellbeing.^[18]  As was explained in the 2013 case of Rogers,^[19] the fact such impact would arise from operation of statute does not render it irrelevant, as s 12’s terms “do not discern between impacts of recording a conviction caused by operation of statute and impacts caused otherwise”.
77. [77]
    The applicant’s present challenge is that the Bunton principle only relates to circumstances where the exercise of a discretion whether or not to record a conviction arises.  It did not arise below because the recording of a conviction is a mandatory consequence of the imposition of a sentence of imprisonment, even a suspended one.  Further, pursuant to the Reporting Act, an offender automatically becomes subject to the Act’s reporting obligations in consequence of the imposition of a sentence of imprisonment, even a suspended one.
78. [78]
    To attempt to overcome this challenge the applicant relies upon the 2021 case of R v Rodgers.^[20]  The offender there pleaded guilty to a single offence of possession of child exploitation material.  It was described as low level offending of that kind, involving only four images on his mobile phone.  Rodgers must have had some criminal history because he was on a suspended sentence for public nuisance and obstruct police, but there were multiple considerations in his favour on sentence, including that the conviction put him at some risk of his employment being terminated.  The primary judge apparently took account of those considerations and the reporting obligations which would arise under the Reporting Act.  However, even though the prosecution conceded probation was within range at first instance, Rodgers was sentenced to 12 months imprisonment wholly suspended.
79. [79]
    The Court of Appeal set aside the sentence and ordered no conviction be recorded.^[21]  In reasoning to that outcome McMurdo JA, with whom Morrison JA and North J agreed, observed:

“[10] In R v Bunton, Morrison JA comprehensively reviewed the requirements of the Reporting Act and noted previous decisions of this Court which had described them as onerous. As his Honour there noted, one of the burdens of the Reporting Act is that any breach of the offender’s obligations renders that person potentially liable to five years’ imprisonment

[11] Of course, the onerous nature of the Reporting Act’s requirements does not call for courts to craft sentencing orders which are calculated to avoid its operation, if, in the individual case, that would serve some proper purpose. In the present case, however, there was no evident purpose to be served by subjecting the applicant to this regime.

[12] At one point, her Honour remarked that she had no information to assist her in assessing his risk of re-offending, and whether he posed a risk to children. However she did accept that he was genuinely remorseful, and that with appropriate counselling, he would have good prospects of rehabilitation. In my respectful opinion, her Honour overlooked, in that observation, the combination of facts and circumstances which pointed to the absence of a risk of re-offending: the isolated nature of this offence, the support enjoyed by the applicant from his wife, his good character as a parent providing for his family, his excellent work record and the lack of any indication from his past of any propensity to commit offences against children. In my conclusion, her Honour ought not to have made the orders which she did, when they carried a potential for such serious consequences for him, without being satisfied that there was some particular purpose for the operation of the Reporting Act in his case.” (emphasis added)

80. [80]
    The passages emphasised above are vulnerable to an interpretation that it is permissible for sentences to be calculated to avoid the operation of the Reporting Act’s requirements where the sentencing judge is of the opinion the imposition of those requirements on the offender being sentenced would serve no purpose (“the statutory avoidance interpretation”).  There are three reasons to doubt whether the court intended such an interpretation.
81. [81]
    Firstly, a sentencing judge’s opinion of whether the operation of the Reporting Act serves some purpose is irrelevant.  The legislature has made that judgment in mandating the Act’s reporting regime must apply in the event of certain categories of sentences being imposed and it identified its purpose in doing so in s 3(1A) of the Act.
82. [82]
    Secondly, it is trite law that the constituent parts of a sentence should only be imposed if there is a purpose served by their imposition.^[22]  For instance, it is not uncommon for courts considering whether or not to exercise the discretion to record a conviction to refer to a purpose served by recording a conviction, namely the legitimate public interest in knowing that a person has been convicted of the offence.^[23]  But the purpose under consideration in that context is the purpose of a constituent part of the sentence, the recording of a conviction.  The application of the reporting regime of the Reporting Act is not a constituent part of the sentence imposed by the sentencing court.
83. [83]
    Thirdly, a wholly suspended term of imprisonment should only be imposed for one or more of the purposes of sentencing set out in s 9(1) Penalties and Sentences Act.  The most material of those purposes in connection with a wholly suspended sentence are likely to be denunciation, deterrence and rehabilitation.  A wholly suspended sentence serves the proper purposes of denunciation and general deterrence through the imposition of the term of imprisonment, rehabilitation through the opportunity for reform provided by its suspension and personal deterrence through the suspension being conditional upon the offender not committing another offence punishable with imprisonment.^[24]  Imposing a wholly suspended sentence for the purpose of attracting the operation of the Reporting Act’s reporting regime would involve error because that is not a legitimate purpose of sentencing.  It is difficult to see how the imposition of a wholly suspended sentence would constitute error on the basis the imposition of the reporting regime will serve no purpose when the reverse prospect, that the reporting regime will serve a purpose, could not justify the imposition of such a sentence in the first place.
84. [84]
    Even if, contrary to the above expressed reservations, the above remarks in R v Rodgers should be read as conveying the statutory avoidance interpretation, the remarks appear to be obiter only.  That is because the prospective ground of appeal under consideration in Rodgers was that the sentence was manifestly excessive and there were a mix of circumstances, not just the alleged lack of purpose of the reporting regime, which supported that ground’s success.
85. [85]
    Furthermore, the circumstances of the present case are distinguishable from Rodgers.  The offence in Rodgers was possessing child exploitation material.  The commission of an offence of that type, at the lower end of the scale of seriousness, and in the absence of evidence otherwise of a propensity to commit such offences, was not thought by this Court to suggest the offender was a future risk to children.  In contrast, while an offence of the kind committed by the applicant here was at the lower level of comparable seriousness for such offences, and there was no evidence of like past offending, it involved an attempt at direct physical sexual interference with a child.  That an offender has gone so far as to take the step of physically acting upon paedophilic desire by attempting to indecently deal with a child, of itself suggests a risk the offender may act upon such a desire in the future.  Here that prospect was made more concerning because the offence occurred in the context of the applicant’s repeated sexualised comments also demonstrating his sexual interest in the child.
86. [86]
    For those reasons, even if this Court were obliged to apply the statutory avoidance interpretation, this would be a case in which the circumstances of the offence bespeak a proper purpose in the applicant having to comply with the reporting regime of the Reporting Act.
87. [87]
    A fallback argument of the applicant sought to extend the Bunton principle beyond the decision to record a conviction to the general decision as to what sentence should be imposed.  The reasoning relied upon is that the consequences of a sentence may inform the assessment of whether it is appropriate to impose it, and the application of the reporting regime is such a consequence if a term of imprisonment (even a suspended one) is imposed.  Similar reasoning has been debated in other cases, with mixed results, for instance cases where a prisoner will be deported in consequence of the sentence to be imposed^[25] or where the prisoner will be required to serve at least 80 per cent of a term of imprisonment in consequence of being declared convicted of a serious violent offence.^[26]
88. [88]
    It is unnecessary to here express a concluded view as to whether and if so in what circumstances the reasoning could apply in cases where a sentence triggering the operation of the Reporting Act may be imposed.  That is because, in the circumstances of this case, the fact the sentence under contemplation would trigger the application of the Reporting Act’s reporting regime to the applicant could not have carried any material weight.  The option of suspending a term of imprisonment only arises under s 144 Penalties and Sentences Act “if” the court sentences the offender to imprisonment (for five years or less).  If the circumstances of the case are sufficiently serious to warrant a term of imprisonment it is inherently unlikely such serious circumstances would be outweighed merely by the consequence that such a sentence will trigger the application of the Reporting Act’s reporting regime.  As found above, the circumstances here were sufficiently serious for the learned sentencing judge to legitimately conclude a sentence of imprisonment was appropriate, albeit that it was suspended.  That the applicant would consequently have to suffer the impact of the reporting regime could not of itself have made a material difference to such a conclusion.  However, no additional information, unique to the applicant’s circumstances, was advanced to demonstrate that the demands of the reporting regime would cause some out of the ordinary consequence of potential relevance to the determination of sentence.
89. [89]
    For all of these reasons, consideration of the Reporting Act’s application makes no difference to the conclusion that the sentence imposed was not manifestly excessive.
90. [90]
    Finally, the sentence imposed was the sentence sought by the applicant’s counsel below.  In such a situation, as Keane JA (as his Honour then was) observed in R v Flew,^[27] the applicant is ordinarily bound by the conduct of his or her case below and a complaint the sentence below was manifestly excessive should only be upheld “in circumstances which are sufficiently exceptional to warrant relieving the applicant from responsibility for the conduct of his case at first instance”.  The above reasons demonstrate this application falls well short of such circumstances.

Did the absence of regard to the Reporting Act’s reporting regime constitute error?

91. [91]
    The above conclusion, that the impact of the reporting regime could not have made a material difference to the determination of the sentence, means the ground of alleged error in not having regard to the Reporting Act must also fail.
92. [92]
    There are two other related reasons why it should fail.  Firstly, the argument in support of the ground assumed the learned primary judge had no regard to the Reporting Act because it was not mentioned.  The mere absence of express reference to a topic in sentencing remarks does not mean the judge has not had regard to it.  For example, the topic may be so well known as to go without saying or the judge may have had regard to it in the context of disregarding it as being of no potentially determinative relevance.
93. [93]
    Secondly, the absence of reference to the Reporting Act is readily explained by the applicant’s conduct of his case below.  It was an inherent consequence of successfully submitting for a short wholly suspended sentence that the application of the Reporting Act would be triggered.  The applicant has not demonstrated why the learned primary judge’s sentencing remarks should have made any express reference to a known consequence of imposing the very sentence sought by the applicant.

Conclusion

94. [94]
    There being no prospect of the proposed sentence appeal succeeding I would refuse leave to appeal the sentence.

Orders

95. [95]
    I would order:

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