R v NAF[2023] QCA 197

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   BODDICE JA:  On 30 September 2021, the applicant pleaded guilty to one count of maintaining a sexual relationship with a child, one count of making child exploitation material, one count of indecent treatment of a child under 16, under 12, who is a lineal descendant, 21 counts of rape, one count of attempted indecent treatment of a child under 16, who is a lineal descendant, one count of procuring a sexual act by coercion and one count of attempted rape.  All were domestic violence offences.
3. [3]
   On the same date, the applicant pleaded guilty to two further counts of possessing child exploitation material, one count of supplying a dangerous drug, four counts of supplying a dangerous drug with the circumstance of aggravation (to a minor), three counts of possessing instructions for producing a dangerous drug and one count of possessing a dangerous drug.  The applicant also pleaded guilty to a summary charge of possessing dangerous drugs.
4. [4]
   On 13 October 2021, the applicant was sentenced to 15 years imprisonment for the count of maintaining a sexual relationship with a child and lesser concurrent periods of imprisonment for the remaining counts, other than the count of possessing a dangerous drug, for which a conviction was recorded, but there was no further punishment.  The sentence on the maintaining count carried a mandatory declaration of a serious violent offence.  In respect of the summary charge, the applicant was also sentenced to a conviction being recorded, but not further punished.
5. [5]
   The applicant seeks an extension of time within which to appeal his conviction on the count of maintaining a sexual relationship with a child.  The applicant also seeks leave to appeal his sentence for the maintaining count.
6. [6]
   Should an extension of time be granted to appeal against that conviction, the applicant relies on grounds to the effect that he did not understand the nature of the offence to which he was pleading guilty and that the plea of guilty was not entered freely.  Should leave be given to appeal his sentence, the sole ground of appeal is that the sentence imposed was manifestly excessive.

Offences

7. [7]
   The complainant, in the domestic violence offences, was the applicant’s daughter who was aged between seven and 13 years at the time of the commission of the offences.
8. [8]
   The offending initially involved touching the complainant’s genitals and progressed to digitally penetrating her anus and vagina, forcing the complainant to perform fellatio on the applicant and performing oral sex on the complainant.  Once the child commenced puberty, the severity of the offending increased to penile-anal rape, frequently multiple times a week.  That offending occurred for a period of approximately two years.
9. [9]
   The applicant engaged in this conduct despite requests by the complainant that he stop and her obvious distress.  He also persisted over resistance and displays of fear and pain during the offending conduct.
10. [10]
    The applicant’s conduct included exploitation and emotional manipulation.  Some of the abuse was recorded with sexual gratification being his motivation.  The applicant catalogued his electronic recordings.  One folder was entitled “Best Of”.
11. [11]
    On one occasion, the applicant gave his daughter wine before filming his sexual acts.  This included digital anal rape and attempted penile-anal rape whilst the complainant was unconscious.  This recording was saved as “Wine”.
12. [12]
    Only one of the possession of child exploitation material counts related to his daughter.  The second related to images of other children, of similar ages to his daughter.
13. [13]
    The supply of dangerous drugs count related to his three children, including his two sons aged nine and 12 years respectively.  The possession of dangerous drugs and instructions to produce dangerous drugs were aggravating features of his drug offending.
14. [14]
    The applicant’s conduct had a profound and lifelong impact upon the complainants, in particular his daughter.

Extension of time to appeal against conviction

15. [15]
    The applicant submits that an extension of time ought to be granted as he did not have a clear knowledge about the duration of the maintaining offence when he entered his plea of guilty.  That count covered a period of six years, whereas the remaining counts, with the exception of the indecent treatment count committed in 2012, to which he entered pleas of guilty, were all committed much later, albeit in the period of the maintaining count.  The applicant swears that had he had a clear knowledge of the duration of that count as charged, he would not have entered a plea of guilty in respect of it.
16. [16]
    Having regard to the nature of the applicant’s contention, evidence was called at the appeal hearing.  That evidence was in the form of affidavits from the applicant, his instructing solicitor (annexing voluminous conference notes) and counsel.  Only the applicant and counsel were required for cross-examination.
17. [17]
    Whilst the applicant’s evidence was consistent with his contentions that he did not understand the nature of the maintaining count, including its duration, the evidence of counsel was that many detailed conferences had taken place at which there had been numerous discussions about the maintaining count.  That included explaining the terms of the count, including its duration.
18. [18]
    Counsel gave evidence that the applicant gave specific instructions to enter a plea of guilty to the maintaining count as contained in the indictment.
19. [19]
    Counsel’s evidence was supported by the instructing solicitor’s notes of those various conferences.  Those notes contained many references to discussions, consistent with the evidence of counsel.
20. [20]
    In particular, there were discussions about the fact that whilst the applicant did not consider that isolated instances of sexual contact between him and the complainant, in the early years of the maintaining count, constituted maintaining a relationship, that conduct would amount to maintaining a sexual relationship with that child.
21. [21]
    I accept counsel’s evidence as accurate.  I find the applicant did have the maintaining count explained to him, including its duration.  I do not accept the applicant’s assertions to the contrary.
22. [22]
    Once that conclusion is reached, there is no basis to conclude that the applicant entered his plea of guilty to the count of maintaining a sexual relationship with a child under the age of 16 years, other than voluntarily and with full knowledge of the nature and extent of that count.
23. [23]
    The applicant has no prospect of successfully setting aside his plea of guilty on that count.  An extension of time within which to appeal the conviction would have no purpose.
24. [24]
    I would refuse leave to extend the time to appeal against that conviction.

Leave to appeal against sentence

Sentencing remarks

25. [25]
    The sentencing judge recorded that the applicant had pleaded guilty to a number of counts, as well as one summary charge.  All of the offences were serious.  The sentencing judge acknowledged that the pleas were early pleas of guilty.
26. [26]
    The sentencing judge noted that the circumstances of the offending were set out in a statement of facts, which was accepted by the applicant.  Relevantly, the sexual offending had been committed against his biological daughter between the ages of seven and 13 years.
27. [27]
    The first offending, in 2012, involved rubbing the child’s vagina.  Further sexual offending occurred approximately two weeks later and then habitually thereafter, increasing to once or twice a week.  The offending escalated from touching to digital penetration and oral sex.  When the child commenced puberty, the severity increased to regular penile-anal rape, frequently multiple times a week.  On many occasions, the child told him to stop, to which he responded that she did not have a choice.
28. [28]
    The sentencing judge observed that the applicant had exploited the father-daughter relationship for his own sexual gratification, making it clear he could do what he wanted to his child and that he frequently did so.  After the offending, the applicant would tell the complainant he loved her and would give her money.
29. [29]
    The sentencing judge further recorded that whilst there was no physical violence per se, or threats of physical violence, the applicant had persisted in his sexual misconduct despite obvious pain.  This conduct was evident in the multiple recordings made by the applicant of his sexual defilement of his daughter.  This filming, beginning in 2013, amounted to some 5,944 files containing photographs and videos of the child.  Some of the images were contained in a folder titled “Best Of”, which included depictions of the applicant raping his daughter.
30. [30]
    The sentencing judge observed that whilst the applicant did not always record his offending, he increasingly did so towards the end of 2018, with over 1,500 images and nearly 99 videos being recorded in 2018, although not all of those were singular incidents with a number of recordings and photographs making up a singular incident.  On average, the applicant took 30 photographs or videos of the complainant of a sexual nature per week.  He revisited this material subsequently.
31. [31]
    The sentencing judge recorded that the applicant’s treatment of his daughter was degrading and inhumane and, on occasions, was undertaken while she was completely vulnerable and defenceless.  On one filmed occasion, the applicant provided the complainant child with wine until she became intoxicated and unconscious.  Thereafter, the applicant sexually assaulted and raped the child, filming that offending.
32. [32]
    The sentencing judge recorded that the remaining counts involving his daughter contained occasions of particularised acts of sexual offending, which were relied upon in the maintaining count, as a representative sample of the offending.  That included 21 particularised counts of rape, involving a course of conduct on eight separate occasions.
33. [33]
    The sentencing judge also recorded that the applicant had possession of other child exploitation material.  It too involved pre-pubescent girls engaging in penetrative sexual acts.  The material was downloaded between 2007 and 2019 and accessed on later occasions.
34. [34]
    The sentencing judge recorded that the drug offending involved the use of a hallucinogenic substance which could give rise to a habitual dependence if used on a regular basis.  The applicant supplied it to each of his three children when they were aged between nine and 12 years, recording his observations of their reactions to it.
35. [35]
    The sentencing judge recorded that whilst the applicant denied a general interest in children sexually, it was difficult to accept that contention having regard to his continual sexual abuse of his daughter for a protracted period, including filming that sexual exploitation.  The sentencing judge noted the applicant’s counsel stated he had expressed confusion as to why he had engaged in offending against his daughter, and accepted he had an extended opportunity to reflect on his behaviour and desist.
36. [36]
    The sentencing judge recorded that personal and general deterrence was important.  Whilst the applicant had expressed great regret and remorse and a letter tendered at sentence from him showed some insight and remorse, that expression came on the day of sentence.  Further, in that letter, the applicant said he was oblivious to the complainant’s fear and pain.  The letter also lacked any explanation for the offending and contained no recognition of the nature of the offending.  Against that background, the sentencing judge did not place a lot of weight on its contents.
37. [37]
    The sentencing judge recorded that the applicant had himself been sexually assaulted as a teenager.  The sentencing judge also recorded the applicant’s personal circumstances, including his use of drugs, previous episodes of depression and his efforts at undertaking education whilst in custody.
38. [38]
    After referring to comparable authorities, including R v DBF (No 3) [2013] QCA 382; R v HBT [2018] QCA 227; R v Crothers (a pseudonym) [2020] QCA 268; R v CBO [2016] QCA 24; and R v CCK [2019] QCA 237, and the victim impact statements, the sentencing judge imposed a sentence for the maintaining count that reflected the global criminality of the applicant’s conduct.  The sentencing judge sentenced the applicant to 15 years imprisonment on that count.
39. [39]
    The sentencing judge imposed lesser concurrent terms of imprisonment in respect of the remaining counts.  The sentencing judge convicted but did not further punish the applicant in relation to the summary charge and the count of possessing a dangerous drug.  It was ordered that all periods of imprisonment be served concurrently.
40. [40]
    It was declared, pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), that 948 days spent in custody between 10 March 2019 and 12 October 2021, be deemed time already served under the sentence.

Consideration

41. [41]
    The applicant submits the sentence was manifestly excessive because the sentencing judge overlooked, undervalued, misunderstood or over-estimated “some salient feature of the evidence”.  It is also submitted the sentencing judge took into account irrelevant matters and adopted a wrong principle.
42. [42]
    Central to those submissions is a contention by the applicant that the complainant “was neither forced nor coerced into consuming the wine”; that there was no physical violence or threats or verbal abuse during the episodes; that the video recordings did not show any penile-anal or penile-vaginal penetration; and that the offending after the use of wine was not premeditated, but was opportunistic in nature after the complainant became intoxicated.
43. [43]
    There is no merit in any of these contentions.
44. [44]
    The applicant engaged in escalating, despicable sexual offending against his own daughter.  Nothing in the sentencing remarks supports any assertion the sentencing judge misunderstood, overlooked, or over-estimated the nature and extent of that criminal conduct.
45. [45]
    Further, to have given his daughter wine and then taken advantage of her to pursue his sexual gratification, whilst recording it for his “catalogue”, was an aggravating feature, whether or not it was premeditated or properly to be described as opportunistic in nature.
46. [46]
    The applicant’s conduct involved a depravity which went beyond sexual defilement of his own daughter.  It included humiliation by persisting in that conduct despite obvious pain, distress and attempts at resistance and filming of that conduct, thereby maintaining a permanent record of his depravity.
47. [47]
    Against that background, there is no basis to conclude that the sentence imposed for the count of maintaining a sexual relationship evidenced a misapplication of principle.  The sentence imposed fell within a sound exercise of the sentencing discretion.
48. [48]
    The sentence of 15 years imprisonment for the maintaining count was neither unreasonable, nor plainly unjust.  It was not manifestly excessive.

Orders

49. [49]
    I would order:

1. The application for an extension of time within which to appeal against conviction be refused.
2. Leave to appeal against sentence be refused.

50. [50]
    COOPER J:  I agree with Boddice JA.