R v ES[2023] QCA 224

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.

2. [2]
   BODDICE JA:  On 11 November 2021, a jury found the appellant guilty of one count of rape and one count of indecent treatment of a child under 16, under 12, under care.  Both counts related to the one female complainant.
3. [3]
   The appellant was sentenced to four years imprisonment on the rape count and a concurrent 15 months imprisonment on the other count.  It was declared that 387 days of pre-sentence custody was imprisonment already served under the sentences.
4. [4]
   On the same date, it was found the appellant had been convicted of an offence punishable by imprisonment committed during the operational period of a suspended sentence, imposed on 17 July 2002 for maintaining a sexual relationship with a child.^[1]  It was ordered that the balance of that suspended sentence be activated, to be served cumulatively on the sentences of imprisonment imposed on that date.
5. [5]
   A parole eligibility date was fixed at 19 October 2022.
6. [6]
   The appellant appeals his convictions.  The sole ground of appeal is that the verdicts of the jury were unreasonable and contrary to the evidence.
7. [7]
   The appellant also seeks leave to appeal his sentence.  Should leave be granted, the ground of appeal is that the sentence was manifestly excessive and imposed erroneously as the sentencing judge failed to properly consider the totality principle.

Counts

8. [8]
   Both counts were alleged to have been committed on 2 September 2006, when the complainant was seven years of age.  She was the daughter of the appellant’s then-partner.
9. [9]
   The rape count was particularised as the appellant inserting his tongue into the complainant’s vagina.  The other count was particularised as rubbing his penis on the complainant’s chest.

Evidence

10. [10]
    The complainant’s mother gave evidence that she first met the appellant in early March 2006.  They commenced a relationship shortly thereafter.  It lasted for five or six years.  They married in September 2010.
11. [11]
    For three or four months before October 2006, they lived at Deception Bay.  Whilst living there, she would travel to Gayndah to collect her children to stay with them in the house on the weekend.  The children resided in Gayndah with their biological father.  She would pick them up on a Friday and take them back on Sunday afternoon.  The children were the complainant and her brothers, KB and TB.
12. [12]
    On 2 September 2006, the complainant’s mother was at Deception Bay with the appellant and her three children.  Also present that day were the appellant’s daughters from an earlier relationship, KE and OE.
13. [13]
    That night, the complainant’s mother was arrested by police.  She was drunk and had been “smoking pot”.  Police took her to hospital.  She stayed there overnight.  Her mother came to the house and took her two sons away, after the appellant rang her to take the children home.
14. [14]
    On 2 August 2011, the complainant told her mother that the appellant had once woken her up, rubbed his penis all over her and “licked her out”.  This conversation occurred just before the complainant was due to catch her bus to school.
15. [15]
    The complainant’s mother took the complainant to a sexual assault team.  They took statements from the complainant and the complainant’s mother.
16. [16]
    The complainant’s mother described the complainant as “pretty angry”.  She was starting to get “really nasty” with the appellant.  The complainant’s mother said she was defending the appellant.
17. [17]
    KE gave evidence that in 2006 she was building a relationship with her father.  She met the complainant through her father.  KE said when the appellant was living in Deception Bay, there was one occasion when she stayed at the house and the complainant and her brothers were also at the house with their mother.  She could not remember the date.
18. [18]
    KE recalled that in the night-time, she was in the loungeroom watching TV with OE, the complainant and TB.  KB was in his room playing his guitar.  She described it as a “pretty normal night”, up until when the complainant’s mother was arrested by police.
19. [19]
    KE said the complainant’s mother was having an argument with the appellant.  Police were called and took the complainant’s mother away.  KE put the complainant, OE and TB to bed.  The appellant then went to bed in his room at the back of the house.  KE said she stayed in the loungeroom for a while talking to KB, who was still playing his music.  KB went to bed at some point.
20. [20]
    KE said the children were put to bed in the room next to KB’s room.  OE, the complainant and TB were all in the same bed.  KE would check on them and then go back out to the loungeroom.  Eventually, she went into the bedroom and lay down with them.  They were all asleep at that point.  She did not accept there was a possibility she could have fallen asleep.  The next day, her mother came and picked up KE and OE.
21. [21]
    KE accepted she would have been around 14 years of age at that time.  She was present when police took the complainant’s mother away.  She accepted that when she gave her statement to police on 22 April 2015, she said KB told her to call police.  She said she thought it was a neighbour who called police.
22. [22]
    KE accepted the complainant’s mother was drunk and angry.  At one point, she had a knife in her hand.  KE kept the other children in the bedroom to protect them.  After police took the complainant’s mother away, the appellant came into the bedroom to see how they were and to say goodnight.
23. [23]
    KE said the complainant had trouble getting to sleep that night.  At one stage they were sitting on the floor of the bedroom.  The complainant was upset about her mother.  She was also upset about her biological father’s new girlfriend.  KE lay down on the bed to comfort the complainant.  She remained awake the whole night.
24. [24]
    KE disagreed that KB and TB were taken away earlier in the evening by their grandmother.  KE agreed that was the only occasion she was at the house at Deception Bay was when the complainant’s mother was taken away by police.
25. [25]
    OE first gave a statement to police on 9 February 2016.  At that stage, she was not talking to the appellant at all.  However, she described their relationship in 2006 as close.  She stayed with the appellant and his then-partner, at their house in Deception Bay twice.  At that stage, she was six years of age.
26. [26]
    On one of those occasions, police came after an argument between the appellant and his then-partner.  The partner was arrested.  OE said she went to KB’s room with TB, the complainant and KE, when they were fighting.  She could not remember anything after the police came to the house other than sleeping there and being picked up by her mother the following morning.
27. [27]
    She accepted that in the statement to police she had said that, at one point, the appellant’s partner held a knife.  She could not now remember that moment.
28. [28]
    The complainant’s grandmother gave evidence that, in 2006, her daughter was living with the appellant in Deception Bay.  She recalled an occasion in 2006 when she went to that house in the early hours of the morning, after the appellant called saying there was a problem with her daughter.  He asked if she could come and pick up “the kids”.  She returned back to her house with KB, TB and one of their friends.  The complainant opted to stay with the appellant’s daughters.
29. [29]
    The complainant’s grandmother was at the house at about 2.00 am.  Her daughter was not at the house.  She simply picked the boys up and left.  She did not speak to the complainant.  Someone told her the complainant wanted to stay with the appellant’s daughters.
30. [30]
    This was the only occasion she went over to the house to pick up the children after receiving a phone call from the appellant.
31. [31]
    The complainant gave evidence that she first spoke to police on 3 August 2011.  That interview was recorded and played to the jury.  In that interview, the complainant said when she was seven years of age, she was at Deception Bay with her mother and her new boyfriend, the appellant.  It was the night her mother was taken away by police.  Her grandmother came and picked up her brothers.  The complainant stayed with the appellant’s children, KE and OE.
32. [32]
    The complainant said after her mother had gone, she was sleeping in the bedroom.  She woke up with the appellant “on top of me, rubbing his penis all over me which is like, disgusting and, yeah, floppy.  Then after that, he um, put his lips to my flap …”.
33. [33]
    When questioned more closely as to those events, the complainant said she was at the house with her mother, her two brothers, the appellant and his two daughters.  Her mother “had a spaz”.  She was running around trying to get knives.  Someone called the police.
34. [34]
    The complainant said, later, she was in a room sleeping with the appellant’s daughters.  The bedroom had a queen size bed.  She was wearing pyjamas.  Her last memory of being in that bed was that she fell asleep.
35. [35]
    The complainant said when she later awoke, she was in her mother’s room.  The appellant was on top of her.  She tried to push him off, but he was too heavy.  He was “licking me and all this stuff and it’s like, not cool”.  She thought she had no clothes on.  His hands were on her waist and his head was down at her vagina.
36. [36]
    The complainant described the appellant as licking and kissing her vagina.  He would not let go, even when she wriggled around trying to get away.  It was “like pashing a person”, sticking his tongue in her vagina.  He also rubbed his penis all over her chest.
37. [37]
    The complainant was crying and kept telling him to get off, but he would not reply.  The appellant then put her clothes back on her and went for a shower.  She ran outside and started crying.  She was sitting in “her tree”.
38. [38]
    The complainant said at the time, the appellant’s two daughters were asleep in the house.  Her brothers had gone with her grandmother.
39. [39]
    The complainant said in the morning, the appellant was threatening her that if she told anyone, he would hurt the complainant.
40. [40]
    The complainant said at that time she was living with her biological father in Gayndah.  She would see her mother every second weekend.  It was one of those weekends.  She had met the appellant once before that weekend.  She had not known him very long at all.
41. [41]
    The complainant said she went back to her grandmother’s house later that morning and then to her father’s house.  She remembered it was when she was seven years old, because that was one of her good years; it was the first time she won a sport event.
42. [42]
    The complainant told police when she woke up:

“I just wanted to get away ‘cause like, I was really scared and all I wanted to do is like, really cry and to um, call for Mum but like, I couldn’t really do that ‘cause she was taken away.  Um, I wanted to run away but I just couldn’t and then never come back but, didn’t really happen”.

43. [43]
    The complainant said the first person she told about these events was her mother.  The complainant said the appellant could not hurt her as he was out of her mother’s life now, so she told her mother.
44. [44]
    The complainant said:

“…we were sitting there.  Okay, I was sitting there and then I was just like, this is going to be really hard to say.  And Mum’s just like, what is it darling?  And I’m just like, um, remember when we were in Deception Bay when I was seven?  And she’s like, yes.  I’m just like well, that night you got taken away by the police, [the appellant] did some stuff to me and then I told her what he did.  And then she was, I was crying while I was telling her and then she was crying …”

45. [45]
    This conversation happened at around 7.15 am.  She remembered the time because she had 10 minutes to get ready for school.
46. [46]
    In evidence at trial, the complainant said that at Deception Bay, her mother and the appellant slept in the back room.  She slept in a room with the appellant’s daughters.  They shared a bed.  On the night in question, when she woke up, she was in the room her mother shared with the appellant.  The door to the bathroom was ajar.  There was a light on.  She had no clothes on.  She did not believe the appellant was wearing anything either.  The appellant was sticking his tongue inside her vagina.  He also rubbed the shaft and head of his penis over her chest.
47. [47]
    In cross-examination, the complainant described her mother as running around frantic that night.  She was angry.  She could not recall seeing her mother holding a knife.  She thought her mother was at the police station for the night.
48. [48]
    The complainant accepted that her grandmother came over to the house that night.  She could not be sure whether it was in the early hours of the next morning.  She did remember saying to her she wanted to stay at the house with the appellant’s daughters.
49. [49]
    The complainant did not remember sitting on the bedroom floor with KE, after her mother was taken away by police.  She disagreed she spoke to KE about her biological father and problems with his new girlfriend.  She accepted she lay in the same bed as KE and OE.  She fell asleep on that bed.  She disagreed she stayed in that bed the whole time.
50. [50]
    At the conclusion of the Crown case, formal admissions were made as to the complainant’s date of birth; the appellant and the complainant’s mother living at Deception Bay on 2 September 2006; and the complainant’s mother being taken by police from that residence on 2 September 2006.
51. [51]
    The appellant elected not to give nor call evidence at trial.

Appeal against conviction

52. [52]
    The determination of a ground of appeal that the jury verdict was unreasonable and contrary to the evidence, requires an appellate court to undertake its own independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of the offence.^[2]
53. [53]
    In undertaking that assessment, due regard is to be given to the role of the jury and its advantage in seeing and hearing the witnesses at trial.^[3]  However, if the independent assessment reveals discrepancies, inconsistencies and inadequacies which, even allowing for the jury’s advantageous position, give rise to a conclusion that the jury, acting rationally, ought nevertheless to have entertained a reasonable doubt, the verdict is to be overturned as unreasonable.^[4]
54. [54]
    In the present case, an independent assessment of the record as a whole, supports a conclusion that whilst there were inconsistencies in the complainant’s evidence and that evidence was completely inconsistent with KE’s evidence, those inconsistencies and discrepancies are not of a nature as to give rise to the conclusion the jury ought to have entertained a reasonable doubt as to the appellant’s guilt of the offences.
55. [55]
    First, the inconsistencies in the complainant’s account were no more than would be expected of a complainant giving an account of events which took place when she was seven years of age, when she first spoke to police five years later, and gave evidence many years later.
56. [56]
    Importantly, there was no inconsistency in the central allegations; that the appellant placed his tongue in the complainant’s vagina and rubbed his penis over her chest, whilst she was at Deception Bay, on an occasion when her mother was taken away by police.
57. [57]
    Second, the complainant’s core account was entirely consistent with the preliminary complaint evidence given by her mother.
58. [58]
    Third, whilst the complainant’s account was inconsistent with the evidence of KE, there was good reason for the jury to doubt the accuracy and reliability of KE’s recollection of that night.  That doubt arose from KE’s insistence that the complainant’s brothers remained at the house that evening and did not leave with their grandmother.  There was clear, reliable evidence to the contrary.
59. [59]
    Once the reliability of KE’s evidence was properly called into question, there was nothing in the remaining evidence, or in the complainant’s account, which supports a conclusion that it was not open to the jury to find the complainant’s evidence reliable and credible and to be satisfied, beyond reasonable doubt, of the appellant’s guilt of the offences.
60. [60]
    This conclusion is not affected by a consideration of the new evidence which the appellant seeks leave to adduce on appeal.  That material reveals the appellant was convicted of another sexual offence against the same complainant, committed in 2010.  The jury was unable to agree on a number of other counts.  The appellant was subsequently acquitted of those counts in a further trial.
61. [61]
    The fact that another jury was prepared to find the complainant reliable in respect of an allegation of sexual misconduct by the appellant, but was unable to reach a verdict on other counts of sexual misconduct and that a separate jury ultimately acquitted the appellant of those counts, does not detract from this jury’s ability to be satisfied of the appellant’s guilt of these offences, beyond reasonable doubt.  The later allegations related to events some four years later, when the complainant was older.

Sentence application

62. [62]
    The appellant contends his sentence was manifestly excessive, having regard to the fact that he served a lengthy period of imprisonment in New South Wales, in respect of separate sexual offending against the same complainant in 2010.
63. [63]
    There is no substance in the appellant’s contention.
64. [64]
    The sentencing judge specifically referred in the sentencing remarks to the fact that a New South Wales jury had, six years previously, convicted the appellant of sexual offending against the complainant.  The sentencing judge specifically had regard to the issue of totality, having regard to that sentence and the earlier suspended sentence imposed in 2002, for maintaining a sexual relationship with a different step-child, over a four year period, involving cunnilingus, fellatio and digital penetration.
65. [65]
    In the sentencing remarks, the sentencing judge said:

“There is no need for adjustment in respect of the original time served under the sentence in New South Wales.  While that was for offending against the same victim – it related to a different period of time.  Today’s sentence concerns a time when she was substantially smaller and the violation was greater.  It also involved a direct threat to silence her.  Unquestionably, the inclusion of an oral rape would call for a significant additional punishment, even in a closer series of offences.  Here, there was a substantial separation in time.  Further, you were back in the community for two years before being remanded in custody for the Queensland rape, so this sentence will not form a period of continuous custody with the New South Wales sentence.”

Such a conclusion was well within a sound exercise of the sentencing discretion.

66. [66]
    Further, a consideration of the nature of the appellant’s offending, committed in breach of trust whilst he was the carer of the young female complainant and whilst he was subject to the operational period for a suspended sentence of imprisonment imposed for other sexual offending against an unrelated child complainant, supports a conclusion that there was no error in the imposition of a head sentence of four years imprisonment for this offence of rape, or in ordering that the balance of the suspended sentence be activated, to commence at the conclusion of that four year sentence.

Conclusion

67. [67]
    An independent assessment of the record establishes that it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of each of the counts.  There is no significant possibility an innocent man has been convicted of those offences.
68. [68]
    There was no misapplication of principle in the imposition of the sentences for those counts.  The sentences imposed were neither plainly unreasonable, nor unjust.

Orders

69. [69]
    I would order:

1. Leave to adduce further evidence be refused.
2. The appeal against conviction be dismissed.
3. Leave to appeal against sentence be refused.

70. [70]
    RYAN J:  I agree.