R v HCP[2023] QCA 211

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons and orders proposed by North J, and with the additional reasons of Boddice JA.
2. [2]
   BODDICE JA:  North J’s comprehensive summary of the offences, agreed statement of facts and sentencing remarks, which I gratefully adopt, allows me to briefly state my reasons for ordering that the application for leave to appeal be refused.
3. [3]
   The principles referred to in R v De Simoni^[1] expressly allow a sentencing judge to consider all of the conduct of an offender, including aggravated conduct, provided that conduct does not warrant a conviction for a more serious offence.
4. [4]
   A consideration of the sentencing remarks supports a conclusion that the sentencing judge did not act contrary to those principles.
5. [5]
   Whilst there was reference in the agreed statement of facts to the applicant having given the young complainants cannabis, those references formed the particulars expressly relevant to the circumstances in which the offending, the subject of the charges, had been committed by the applicant.
6. [6]
   Those circumstances included the corruption of two young complainants by the applicant, who was in a position of trust, as their step-father.  That corruption was an aggravating feature of the applicant’s criminal conduct, as charged.
7. [7]
   The sentencing judge expressly referred to the supply of drugs as being part of the corruption of the complainants, in breach of trust, over many years.  Nothing in those remarks supports a conclusion that the supply of drugs was used impermissibly to sentence the applicant for uncharged acts of supplying dangerous drugs to a minor.
8. [8]
   Once it is accepted that the references to drugs being supplied were relevant as part of the corruption of the complainants, there is no basis to conclude the sentencing process was infected by error.
9. [9]
   Further, having regard to the seriousness of the applicant’s criminal conduct, over many years, in breach of trust, there is no basis to conclude the sentences imposed involved any other misapplication of fact or principle.  The sentences were neither unreasonable nor plainly unjust.
10. [10]
    I would order that the application for leave to appeal sentence be refused.
11. [11]
    NORTH J:  On 11 April 2019 the applicant was arraigned on an indictment containing 31 counts of offending.  He pleaded guilty and a sentence date was ordered.  After some delay the applicant was, on 14 July 2022, sentenced on 28 of these counts.^[2]
12. [12]
    The applicant seeks leave to appeal from the sentences imposed (or some of them).
13. [13]
    The offences for most part allege sexual offending but there were six counts of supplying dangerous drugs (cannabis) on the indictment.  This is relevant in the context of this application for reasons that will become apparent.
14. [14]
    At the time of the offending the applicant was between 45 and 51 years and was 66 when sentenced.  The complainants were sisters whose mother (now deceased) was, at material times, the de facto partner of the applicant.  One sister (J1) was about seven years and the other (J2) about six years when the relationship commenced.
15. [15]
    Consistent with the practice in this State^[3] the sentence hearing proceeded upon a document^[4] recording a “Statement of Facts” that was agreed between the parties.^[5]
16. [16]
    Drawing upon the outline filed on behalf of the applicant the following is a table recording the relevant count on the indictment and the period of offending, the sentence of imprisonment imposed, the victim / complainant and her age at the time of the offending:

17. [17]
    The application for leave to appeal filed by or on behalf of the applicant identified an “effective head sentence of ten years” on counts 11, 20, 28 and 29 and contained a ground that the sentence imposed was excessive in all the circumstances.  It also contained a second ground complaining that counsel was “ill informed” and he felt “not able to represent me to the fullest”.
18. [18]
    Neither of these grounds were developed in either a written outline or oral submission before the Court.  Rather counsel^[6] for the applicant sought leave to substitute a ground:

1. “In sentencing the applicant on the basis of uncharged acts, being the supply of cannabis to minors (the complainants), a circumstance of aggravation that was not charged on the indictment.”

1. In order to understand this ground it is necessary, before articulating it and considering its merits, to say something of the charges on the indictment and the sentences imposed.

19. [19]
    The table demonstrates that the applicant was convicted of three counts of rape of J1^[7] occurring between the dates specified.  In each count it concerned an unprotected penile rape.^[8]  Concerning J2 the applicant was convicted of one count of maintaining a sexual relationship with a child over a period of approximately three years and four months between the dates specified.^[9]  In respect of each of the convictions for counts 11, 20, 28 and 29 the applicant was sentenced to ten years imprisonment and the convictions were declared to be serious violent offences^[10] which has the consequence that the applicant has to serve 80 per cent of the term of imprisonment before becoming eligible for parole.
20. [20]
    In respect of each of the other 24 counts the applicant was sentenced to serve lesser concurrent sentences.^[11]  And, as noted, included among them were six counts of supplying a dangerous drug (cannabis), three concerning J1^[12] and three concerning J2.^[13]  In each count the indictment alleged the supply of cannabis without alleging a circumstance of aggravation.  In each case the draft person of the indictment might have included the circumstance that the supply was to a child under the age of 16 which would, upon conviction, permit a maximum sentence of 25 years imprisonment^[14] whereas as charged the maximum sentence was 15 years.^[15]  The implications of this did not escape the experienced sentencing judge who, in an exchange with the prosecutor^[16] plausibly speculated that it was deliberate because a charge including the circumstance of aggravation with a maximum penalty of 25 years would have to be brought in the Supreme Court.^[17]
21. [21]
    In support of the ground agitated by counsel for the applicant^[18] we were reminded of the well known principle explained by Gibbs CJ in R v De Simoni^[19] where his Honour said:^[20]

1. “At first sight it may seem unlikely that the framers of the Code intended that an offender should be sentenced on the fictitious basis that no circumstance of aggravation existed when it is found by the trial judge that such a circumstance did exist, particularly when such a finding is based upon an unchallenged statement of facts made by the prosecutor after the offender has pleaded guilty. However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”

(emphasis added)

This principle is well established^[21] and its application is not infrequently considered.^[22]

22. [22]
    In his written outline Mr Hoare, on behalf of the applicant, developed his submission:

1. “16.
   It is submitted that the failure of the Crown to indict a charge that reflected the aggravated supply necessarily curtailed the consequential effect of the facts that underpinned those offences on penalty. In particular, it was impermissible for the Court to rely on the supply as a part of the corruption of the complainants.
2. 17.
   It may be appreciated that the learned sentencing judge was placed in an invidious position. The facts that were presented to the Court were inconsistent with the indicted supply charges that did not charge the circumstance of aggravation, namely, that the supply was to a minor.
3. 18.
   The supply to the complainants was expressly relied upon as an aggravating feature of all of the offending. Further, the prosecution sought to rely on the aggravating feature as a circumstance warranting a higher penalty, being described by the prosecution as “a particularly aggravating and egregious feature” that would, in combination with other matters, warrant a SVO declaration even if a sentence of less than 10 years was imposed.”

(emphasis added)

This submission was developed in argument before the Court with emphasis being placed upon the evidence before the Court of the young age of the complainants and the corruption of them by the supply of drugs. Thus, it was submitted, the sentence imposed effectively took into account the circumstance of aggravation that was not charged and which the applicant had not pleaded to. Thus, it was submitted, there was an error in the sentencing below requiring this Court to resentence the applicant in which, allowing for a certain leniency reflecting the absence of the circumstance of aggravation, the result would be substituting the sentences imposed on counts 11, 20, 28 and 29 of ten years with one in each case of nine years.^[23]

23. [23]
    It is informative when considering this submission to consider not only the learned sentencing judge’s reasons but the content of the agreed facts before his Honour.^[24]  Concerning the maintaining count the Statement of Facts contained:

“Count 11 – Maintaining a sexual relationship with a child (s 229B Criminal Code) Maximum penalty: Life imprisonment

Complainant: J2

While living at Timothy Street, Macleay Island, the defendant would offend against J2 every couple of nights. J2 is unable to recall every time as it happened so often and over a long period of time.

After moving to 19 Dalpura Street, J2 began to feel that it was wrong and she would lay hard against the wall with her legs together so that the defendant could not offend against her. The defendant would try to pull her nightie to pull her towards him, but she would resist.

The defendant would bribe J2 with cannabis.

When the family moved to 36 Kim Crescent, Macleay Island, the defendant continued coming into J2’s room at night and penetrating her with his fingers. It somewhat slowed down and would happen every couple of weeks however would happen more frequently at times. As she got older, the defendant would come into her room less frequently.

On one occasion at 13 Attunga Street, while J1 and their mother were out, the defendant came into J2’s room and said “if you let me do my thing with you, I will give you a bud before mum and Jess come back.” J2 said no, and she would get some off her mother.

On two occasions at that address, the defendant entered J2’s room while she was asleep and penetrated her vagina with his fingers. The complainant woke up feeling wet and with the defendant in the room and her underpants down.

The offending ceased when the complainants left to live with their grandmother in November 2007.”

24. [24]
    Concerning the counts of rape^[25] the agreed Statement of Facts contained the following:

“Count 20 – Rape (s 349(1) & (2)(a) Criminal Code) Maximum penalty: Life imprisonment

Complainant – J1

On a further occasion, when her mother and J2 had left the house, the defendant offered cannabis to J1.

The complainant was laying on her bed and the defendant rubbed her clitoris a few times, then took his penis in his hands and rubbed it against J1’s vagina a few times. J1 grabbed a pillow and put it over her head.

The defendant then attempted to insert his penis into J1’s vagina however it was dry. The defendant then licked his fingers and inserted them into her vagina. The defendant then inserted his penis about halfway into her vagina which was very painful. The defendant asked, “does that hurt?” J1 pushed the defendant away to stop him going in any further, however the defendant’s penis went in and out two or three times.”

(emphasis added)

25. [25]
    Concerning count 28 the agreed Statement of Facts were:

“Count 28 – Rape (s 349(1) & (2)(a) Criminal Code) Maximum penalty: Life imprisonment

Complainant – J1

J1 woke up in her bedroom with the defendant on top of her. Her pants were already off and his penis was inside her. J1 went to say something but the defendant covered her mouth. The defendant pushed his penis in and out for about five minutes.

J1 stopped resisting. It hurt at first but later “kind of went numb.” J1 was not sure if the defendant ejaculated.

The defendant got off her and walked away with his pants halfway down. J1 stayed in bed and cried until she fell asleep.”

And concerning count 29 the agreed Statement of Facts were:

“Count 29 – Rape (s 349(1) & (2)(a) Criminal Code) Maximum penalty: Life imprisonment

Complainant – J1

The complainants’ mother had gone out. J1 woke up to the defendant on top of her and she asked him what he was doing. He said, “shut up and try and enjoy it, you’ll be surprised.” J1 tried to push him off her and he leaned back over her. The defendant pushed his penis in and out of her however J1 got angry and pushed him. The defendant then got off her.

J1 went into the lounge room where the defendant was, and asked, “why do you do this to me?” The defendant replied “do what?”

26. [26]
    Concerning the counts of supply of drugs the agreed Statement of Facts provided:

“Sometime after J1’s 11^th birthday, while living on the house boat, J2 and the complainants’ mother were out, leaving J1 at home with the defendant. J1 got out of the shower and walked to her bedroom with a towel around her. The defendant came to her bedroom and said, “I will give you a bud (cannabis), but you can’t tell your mother.”

J1 said yes and the defendant said, “you have to give me something in return.” He told J1 that he wanted touch her vagina.

J1, still wearing her towel, lay on the bed. The defendant lifted the towel up so that only her breasts were covered, and he rubbed her vagina. J1 felt uncomfortable and asked him to stop, and then pushed his hand away.

Count 3 – Supplying dangerous drugs (s 6(1)(d) Drugs Misuse Act) Maximum penalty: 15 years imprisonment

Complainant – J1

The defendant left the room while J1 got dressed, and he later gave her cannabis to smoke.”^[26]

…

“Count 6 – Supplying dangerous drugs (s 6(1)(d) Drugs Misuse Act) Maximum penalty: 15 years imprisonment

Complainant – J2

On the houseboat when J2 was about ten years old, the defendant taught her how to smoke cannabis. J2 became dizzy and threw up and fell asleep.

Count 7 – Supplying dangerous drugs (s 6(1)(d) Drugs Misuse Act) Maximum penalty: 15 years imprisonment

Complainant – J2

One day, J1 and the complainants’ mother had left the boat and gone over to the mainland on a ‘tinny’ boat, leaving J2 alone with the complainant.

The defendant took J2 upstairs to her room and gave her cannabis in a pipe which made her dizzy.”

…

“Count 21 – Supplying dangerous drugs (s 6(1)(d) Drugs Misuse Act) Maximum penalty: 15 years imprisonment

Complainant – J1

J1 then pushed him off and he stopped and gave her a ‘bud’ to smoke.”

…

Count 23 – Supplying dangerous drugs (s 6(1)(d) Drugs Misuse Act) Maximum penalty: 15 years imprisonment

Complainant – J1

When they got back home, the defendant gave cannabis to J1 and said, “if you want more, you need to let me go in and out more times.”

…

Count 26 – Supplying dangerous drugs (s 6(1)(d) Drugs Misuse Act) Maximum penalty: 15 years imprisonment

Complainant – J2

Afterwards, the defendant gave J2 some cannabis in a bong which she smoked for about half an hour.”

(emphasis added)

The extracts from the agreed facts emphasised make it clear that the corruption involved an offer of drugs in exchange for cooperation with the applicant’s predatory sexual exploitation of the young complainants.

27. [27]
    Thus it is not surprising that in submissions to this Court the thrust of the argument for the applicant was directed to the corruption that the supply of cannabis threatened.  It is plain from the exchange between the prosecutor and the learned sentencing judge^[27] and from his Honour’s sentencing remarks that the corruption of the complainants threatened by the offer of drugs was considered by his Honour to be an aggravating feature of the offending:^[28]

“Good. So you were the step-father to these two young girls. They were young. There was a significant breach of trust. The behaviour occurred over a six-year period, it escalated. Drugs were supplied as part of the corruption of these girls, there was manipulation and grooming. Count 20, in particular, was persistent. Twenty-eight and 29, rape of a sleeping child, the maintaining is serious in itself …”

But the factor of aggravation agitated by counsel for the applicant tends to draw attention from the fact that the circumstance of aggravation which might have been alleged in the indictment in respect of each of the six counts of supply is not that the applicant intended or attempted to corrupt the complainants, but that the complainants were under 16 years of age.  Corruption will often be an inference that can be drawn from the circumstance of the supply of drugs to a young person, but it is not a circumstance that can expressly be included in an indictment.  The scheme of the Drugs Misuse Act 1996 (Qld) (“DMA”) in this respect is that age is expressly stipulated to be an aggravating circumstance that affects the maximum penalty that can be imposed.

28. [28]
    The sentences imposed by his Honour in each of the supply counts was 12 months imprisonment^[29] and were distinctly moderate.  They do not suggest that his Honour sentenced the applicant on a basis of the circumstance of aggravation that might have been but was not included in the indictment.  Rather they suggest that his Honour imposed significant sentences upon the four most serious offences included in the indictment taking into account the seriousness of the circumstances revealed by all of the counts informed by the agreed facts.
29. [29]
    The sentencing approach by his Honour was orthodox.  He sentenced the applicant on the basis of the evidence properly before him taking into account relevant circumstances which included that the complainants were young, that the offending was serious and that the applicant’s conduct included acts designed to corrupt, manipulate and groom the complainants.  The sentences imposed by his Honour for the supply of cannabis do not suggest that he imposed sentences with an uncharged circumstance of aggravation provided by the DMA in mind.  There was no error of the kind identified in R v De Simoni.  No error of fact or principle is identified hence there is no occasion to resentence the applicant.  In any event the sentences imposed cannot be said to be “unreasonable or plainly unjust”.
30. [30]
    The application for leave to appeal should be refused.