R v CCY[2023] QCA 49

SUPREME COURT OF QUEENSLAND

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

2. [2]
   BODDICE J:  On 21 September 2021, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child under 16, ten counts of indecent treatment of a child under 16, under 12, under care and two counts of indecent treatment of a child under 16, under care.
3. [3]
   On the same date, the appellant was sentenced to six years imprisonment for the maintaining count and lesser concurrent periods of imprisonment for the other counts.
4. [4]
   The appellant appeals his convictions.  The appellant relies upon four grounds:

2. 1.Inadmissible evidence was wrongly admitted, including evidence purporting to have been preliminary complaint, resulting in a miscarriage of justice.
3. 2.The learned trial Judge erred in failing properly to direct the jury about the use that could be made of preliminary complaint evidence as it pertained to each count on the indictment.
4. 3.The learned trial Judge erred in failing properly to direct the jury about the use that could be made of the evidence about unlawful sexual interference with each complainant in proof of the charges against the other, resulting in a miscarriage of justice.
5. 4.The learned trial Judge erred in providing checkboxes to the jury for use in their deliberations, which was an unwarranted interference in their deliberations, resulting in a miscarriage of justice.

5. [5]
   The appellant also seeks leave to appeal his sentence.  Should leave be granted, the appellant relies on four grounds.  First, the sentence was manifestly excessive.  Second, the sentencing judge erred in the consideration of comparable authority.  Third, the sentencing judge impermissibly took into account the basis for an absence of complaint and the strength of the Crown case.  Fourth, the sentencing judge erred in finding the aggravating features were the same for each complainant.

Background

6. [6]
   The appellant is 57 years of age.  He was aged between 49 and 53 at the time of the commission of the offences.
7. [7]
   All of the offences were particularised as having occurred on dates between 30 April 2015 and 19 November 2019 at the home or homes shared with the appellant’s then de facto wife who was the mother of the two female complainants, LC and LW.
8. [8]
   The maintaining count and seven of the indecent treatment counts related to LC.  She was aged between 10 and 14 years at the time of the commission of the offences.
9. [9]
   The remaining counts concerned LW.  She was aged between four and eight years at the time of the commission of those offences.

Counts

10. [10]
    Count 1 was the charge of maintaining an unlawful sexual relationship with a child under 16.  Counts 2 to 8 formed particulars of the maintaining count.
11. [11]
    Counts 2 and 7 were particularised as touching LC’s vagina.  Counts 3 and 5 were particularised as having LC manipulate his penis.  Count 4 was particularised as thrusting against LC, after emerging from a shower.  Count 6 was particularised as a demonstration of ejaculation.  Count 8 was particularised as touching LC’s breasts.
12. [12]
    Counts 2, 3, 4, 5 and 6 were alleged to have occurred when LC was under 12 years of age.  Counts 7 and 8 were alleged to have occurred after LC had turned 12 years of age.
13. [13]
    Counts 9, 11 and 13 were particularised as having LW touch his penis.  Counts 10 and 12 were particularised as touching LW’s vagina.  Counts 2 to 13 inclusive were further particularised as the appellant having the complainants under his care for the relevant time being.

Evidence

14. [14]
    LC first spoke to police on 18 November 2019.  She had attended the police station with her mother and LW.  At that stage, LC was in grade nine.  LC said she had come to talk to the police about the appellant and how “he’s been sexually harassing me”.^[1]  It started in grade five.
15. [15]
    LC said that until recently she had been living at a house in Mount Sheridan.  She had lived there since 2015 with her mother, LW and the appellant.  The appellant had been her mother’s boyfriend since 2015.
16. [16]
    LC said the appellant was a truck driver when she first met him.  He had been driving locally until he started undertaking interstate work again last year in 2018.  She said her mother worked as a cleaner.
17. [17]
    LC remembered an occasion when the appellant put his hand down her pants and touched her “down there”.^[2]  On another occasion the appellant grabbed her hands and made her “touch his dick”.^[3]  She could not recall how many times but said it had happened quite a few times when her mother was not at home.
18. [18]
    LC said the appellant would go into the shower and when he came out he would go to LC and do either one of those things.  He also did it in the living room whilst her mother was busy.  LC said that continued for a couple of years.
19. [19]
    LC said, in grade seven, she stayed away from the appellant.  When he came home she would spend most of her time in her room.  LC said she told her really close friends in grade seven.  They told her to go to someone but LC said she did not want to because she was too scared.
20. [20]
    LC said her friends told her to go to the guidance counsellor the day she attended the police station.  The counsellor spoke to her mother.
21. [21]
    LC said she could not remember the first time the appellant touched her in her private area.  The first occasion she clearly remembered was at night, when her mother was making dinner.  This was in the house at Mount Sheridan, in 2015, when she was in year five.  It happened less than a year after she first met the appellant.
22. [22]
    LC said she was standing, having just walked into the lounge room.  The appellant was lying on the couch.  He stopped her as she went to walk to the other side.  He put his hand down her shorts.
23. [23]
    LC said the appellant put his hand down her pants from the top at the front.  He rubbed his fingers around her vagina “right outside of the hole”.^[4]  His fingers went everywhere except for in the vagina.  He left his hand in her pants for a minute or two.  LC said the appellant told her just before he did it not to tell anyone or he would get into a lot of trouble.
24. [24]
    LC said she could not remember most of the other occasions clearly because there were multiple times exactly like that; it happened quite often.
25. [25]
    LC said there was an occasion which took place in his bedroom.  The appellant was in the shower.  When he was wrapped in a towel, the appellant asked LC to get something for him.  As she gave it to him the appellant took her hand and made her “touch his dick”.^[5]  This also happened at the house in Mount Sheridan.
26. [26]
    LC said it was around midday, on the weekend, at the end of 2016.  LC was 11 or 12 at the time.  LC remembered that timing because, at the start of 2017, she told a friend, FS, “everything”.^[6]  LC said she told him about the incident with the towel and the incident on the couch.  She also told him about other incidents.
27. [27]
    LC said the appellant made her put her hand around “his dick and like massage it”.^[7]  The appellant moved the towel a bit out of the way.  Both he and LC were standing up.  This was the first occasion LC had touched “a dick”.  She described it as a non-erect penis with a little bit of pubic hair between blond and brown.  There was foreskin.  LC rubbed it for approximately 30 seconds.
28. [28]
    LC said the appellant said “the normal thing he normally says”; that she was not to tell anyone.^[8]  There was no one else in the house.  Her mother was at a swimming lesson with LW.  LC said the appellant did not touch her at all during that incident.  Her mother came home while it was happening so he stopped and LC walked off.
29. [29]
    LC said the appellant touched her a lot more times in the same places and around the same kind of thing.  There was one time when he came out of the shower and pinned LC onto the bed.  The appellant only had on a towel.  LC said the appellant started “like thrusting”.^[9]  This occasion was in 2016, on a weekend, around midday, when her sister and mother were at swimming again.
30. [30]
    LC said she was lying on her back on the bed with her feet out on the floor.  His hip area was touching her hip area.  It only happened for a couple of seconds.  LC said there was not much of his weight on her but he was holding her hands above her head throughout.  The appellant did not say anything.  He stopped when LW came running.
31. [31]
    LC said the appellant made her touch his penis quite a few times and there was more touching of her vagina.  It always happened when the appellant was on the couch, in the lounge room.  Sometimes it happened once a week, other times it would happen once every two weeks or once every month.  It would always change.
32. [32]
    LC said the appellant had not touched her since they moved into a new house less than two months ago.  Once they moved, every time he was at home either her mother would be at home or LC had friends over or she would come up with excuses, like say she had her period.
33. [33]
    LC said the last time the appellant touched her he pulled up her skirt really high to see her underwear.  It was at the end of the last school term or the start of this term, after her fourteenth birthday in May.  That occurred at the new house.  LC said her mother walked in.  She asked what the appellant was doing and he said “oh nothing”.^[10]
34. [34]
    LC said there was a time when the appellant also had her touch his penis when she was in the living room.  The appellant was wearing shorts, like boxers.  It was easy for him to put her hand in his shorts over the waistband.  The appellant held her hand to do what he wanted.  LC said it was not “to give him hand job but like just to like massage it I guess”.^[11]
35. [35]
    LC said this incident occurred not long after the incident in the bedroom when the appellant was wearing a towel.  It happened over the school holidays.  It lasted for about “Twentyish seconds”.^[12]  The appellant’s penis was not erect at the time.  LC was sure her mother was shopping for food.  Her sister was at day care.  The appellant said the normal things like “not to tell anyone”.^[13]
36. [36]
    LC said there was one occasion when the appellant’s penis was erect.  The appellant was sitting on a recliner in the living room, wearing a towel.  It was in the afternoon, around five, after she had finished her tutoring that day.  It was a school day.  Her sister was in after school care.  Her mother was at work.
37. [37]
    LC said it occurred halfway through grade six.  Someone in her class had been talking about “cum or something”.^[14]  LC said she asked the appellant what it was and the appellant replied “do you want me to show you”.  LC said “no it’s okay” but the appellant “started wanking”.  He showed LC “his cum” and said “do you want to taste it”.  LC replied no.  She said the appellant said “okay well your mum said it’s very good”.  LC then walked off.^[15]
38. [38]
    On that occasion, LC described the appellant continuously doing a motion to “his dick”.  The difference this time was that it was erect.  There were veins and it was a bit bigger.  The appellant was moving backward and forward for “like forty seconds”.^[16]  Semen then came out.  She described it as “see-throughish” with a kind of tinted colour.  The appellant used a towel to wipe it off.  That was the first time LC had seen the appellant’s penis erect.
39. [39]
    LC said there was an occasion when the appellant “touched my tits”.^[17]  It was either 2015 or 2016.  LC was wearing an oversized shirt.  LC said she was watching television.  The appellant touched her “down there” on the vagina, going over the waistband of her shorts.  His fingers were between the labia.  There was a “continuous like rub” of maybe 30 seconds.
40. [40]
    LC said the appellant then put his hand up her shirt from the bottom.  He touched one of her breasts before massaging it.  The appellant was touching the whole of her breast for maybe 10 seconds.  There was no conversation.  LC said her mother was making dinner.  She could not recall where her sister was at that time.
41. [41]
    LC said the first person she ever told was FS.  They – LC and FS – also told P last year in grade eight, “over messages”.  The next day P asked if it was true.  LC said yes but did not go into detail.  LC said another person, KK, overheard her talking about it.  He asked her what happened and she told him all that had occurred to her.  That conversation also occurred in 2018.
42. [42]
    LC said FS and P told her she should tell the guidance counsellor everything.  She told the counsellor what had occurred but not in so much detail.  Her mother found out because the guidance counsellor told her mother.  LC said she did not have time to properly explain everything on the way to the police station because her mother “was yelling at [her] the whole time”.^[18]
43. [43]
    LC said she asked LW if anything had happened.  LW told her everything; “it was technically the exact same as what I said, and what happened to me”.^[19]  LW told her the appellant made her “touch his dick and he’s touched me even though I said I was uncomfortable with it, he’d stop and then come back another day”.^[20]
44. [44]
    LW told LC this, in the car, on the way to the police station, when her mother had left to go to the bank.  LW had not told LC anything before that day.  LW said the appellant had not touched her since they had moved into the new house.
45. [45]
    LC said she first became aware LW was saying she had been touched at the end of 2018 or the start of 2019.  They were in the car with their mother.  Their mother asked if the appellant did anything would they tell her.  LC said her mother asked them that question “Just to ask if we were safe I guess”.^[21]  LW replied he had touched her down there, indicating her vagina.  LC said her mother replied “Just stay away” from the appellant.^[22]  LC said she was too scared to say anything.
46. [46]
    In her pre-recorded evidence, LC agreed that the kitchen, dining and living rooms in the Mount Sheridan house were very close together.  She said you could not see into the lounge room from the kitchen because of the television, but accepted the television did not cover the whole cut out area between the lounge and kitchen.  LC agreed that on at least one occasion when the appellant touched her in the lounge room her mother was in the kitchen at the time.  She denied that touch was just a reach out and tickle.
47. [47]
    LC denied that on the occasion she was pinned down by the appellant, he was standing beside her tickling her.  She also denied that on the occasion when the appellant masturbated in front of her, she found him by himself masturbating in the lounge room.  She denied she knew the appellant had diabetes as a result of which he could not get an erect penis.  She denied she only made a complaint after the appellant found her with FS in her bedroom.  She also denied that the appellant lifted her skirt at a time when she was doing lots of cartwheels and he was checking to see that she was wearing appropriate underwear.
48. [48]
    LW also first spoke to police on 19 November 2019.  She described the appellant as “kind of nice”.^[23]  There were two things she did not like when he came to the home.  One, she could not go onto her iPad.  Two, she would sometimes get into trouble.  For example, staying at her next-door neighbour’s house for too long.  The appellant would tell her she had to go to her room.
49. [49]
    LW told police the appellant “practically did the same thing to both of us”.^[24]  LW said the appellant told her to touch him and then did it to LW.  The first time it happened was in his bedroom.  LW’s mother was out.  LC was inside, playing the piano.  This happened when she was in grade one, on a weekend.
50. [50]
    LW said she was sitting on the appellant’s stomach, looking towards his feet.  The appellant grabbed LW’s hand and put it under his pants.  He made her play with it.  She felt squishy skin and hair.  After a minute, the appellant put LW next to him and put his hands in her pants.  The appellant touched her vagina.  He “like rubbed it, and like scratched it” with his hand.^[25]  He stopped after about 30 seconds.  The appellant told her not to tell her mother or sister.  She then left the room.
51. [51]
    LW said it happened on other occasions.  One of those occasions occurred in grade two.  LW said on each occasion the appellant did the same thing.  Sometimes it happened on his bed, other times on the couch.  On one occasion when it happened on the couch her mother was in the kitchen making dinner.
52. [52]
    LW said she was sitting on the appellant’s stomach, facing the appellant’s head.  The appellant told her to put her hand on him.  He turned LW the other way so that she was looking at his feet.  The appellant took LW’s hand and put it under his clothes.  She touched him for just a few seconds.  The appellant then turned her back around and put his hand inside her pants and rubbed her vagina for a few seconds.  The appellant then said “don’t tell anyone”.
53. [53]
    LW said the next day when the appellant was in his truck, LW told her mother that the appellant touched “here” and pointed to her vagina.  Her mother told her to avoid the appellant and to tell her when it happens again.
54. [54]
    LW said there was another occasion, in the bedroom, after she had told her mother, when the appellant did the same thing.  The appellant was wearing dress pants.  He undid a little button and put LW’s hand inside his pants.  After about 40 seconds, LW left.  LW said he did not touch her vagina on this occasion.
55. [55]
    LW said she was too scared to tell LC.  LW said she had not told anyone else.
56. [56]
    LW said she first told LC when they were in the car waiting for her mother to return from the bank.  At the time, LC was telling LW what the appellant was doing to her.  LW said the appellant was doing the exact same thing to her.  LW said the appellant only did it at the old house and it was in either the living room or the bedroom.  LC said that to make him stop she would avoid him and when he went on to do it she would say she had her period.
57. [57]
    In her pre-recorded evidence, LW accepted there may have been a time when the appellant and LC were in her mother’s bedroom and the appellant was tickling LC when LW said “Me too, me too”.^[26]  The appellant often tickled her.  It was not tickling on her private parts.  Any tickling occurred on the top of her clothes.  LW accepted there may have been a time when the appellant told her mother LW needed new underwear because LW was complaining it was too tight.  LW also accepted she had spoken to her mother on one occasion about the appellant hitting her on the bottom because she was misbehaving.
58. [58]
    FS was interviewed by police on 1 December 2019.  At that stage, he was aged 15 years and in grade nine.  FS said the appellant had been “basically sexually harassing” LC for a couple of years.^[27]
59. [59]
    FS said he first met LC in 2017, when they were in grade seven.  They exchanged phone numbers.  Halfway through grade seven, they started texting each other.  LC said she had a really big secret.  She told him she had never told anyone else.
60. [60]
    FS said LC told him the appellant had been making her touch his penis and he had been touching her vagina.  LC communicated this information over text messages.  There was no verbal conversation.  It was not over social media platforms.
61. [61]
    FS said that by 2018 they became better friends.  LC started telling him more vivid details, more frequently.  LC told him they had gone camping and the appellant had woken her up and he grabbed her chest.
62. [62]
    FS said LC had also spoken to P and KK about these things.  If the appellant did something that made LC uncomfortable, LC would text FS or P privately or she would go into a group text, through Instagram.
63. [63]
    FS said LC told him the appellant had a shower and told LC to go into his bedroom where he made her touch his penis.  The appellant told LC not to tell anyone because he would get into a lot of trouble.  FS said he only found out these details in 2019, when LC went to the school counsellor.
64. [64]
    FS said prior to LC going to the counsellor, LC had said when LC’s mother and sister had left the house, the appellant had pinned LC down and made her feel really uncomfortable.  FS told LC she needed to tell somebody as it was “getting way worse”.^[28]
65. [65]
    FS said this conversation happened on a Sunday.  The next day, he told LC they would either go to the counsellor or ring the Kids Helpline.  FS said LC did not want to do it but he said if she was not going to do it he would because he did not want those things happening to her.
66. [66]
    FS said LC agreed.  On that Monday morning, FS, P and LC went to the counsellor’s office.  LC explained everything to the counsellor.
67. [67]
    FS said LC said she was really worried about her family; that the appellant was the only way her mother was getting any kind of money and supporting the family.  She did not want her family to not be able to have a home and not have money.  That was why she had never said anything.
68. [68]
    FS said LC explained to him she would be showering and the appellant would walk in.  FS said he had witnessed it when he was at her house.  FS said it was “really weird like it made me feel uncomfortable and it made her feel uncomfortable”.^[29]
69. [69]
    FS said LC also said some of the things that had happened to her, the appellant had also done to LW.  LC said the appellant threatened LW not to tell anyone.  LC told him those things last year.  LC told him she had tried to ask LW.
70. [70]
    In his pre-recorded evidence, FS agreed he was LC’s boyfriend around 2018/2019.  He accepted that just before he and LC went to see the school counsellor, the appellant had caught them in LC’s bedroom and that both he and LC were very upset they had been caught.  FS said he could not remember a discussion about them having to get rid of the appellant but accepted it was after they had been caught that these allegations were made to the school counsellor.
71. [71]
    FS agreed he told police there had been text messages in which LC had disclosed allegations to him and there had been Instagram messages between FS, LC and two other friends.  He did not provide the text or Instagram messages to police.  Some of those messages were sent just prior to going to see the school counsellor.
72. [72]
    P spoke to police on 1 December 2019.  She was aged 15 years at that time and in grade nine.  P said she was coming to the police to speak about her friend who had been sexually harassed for a very long time.  She had found out around the beginning of the year.
73. [73]
    P said LC told her it had been going on since grade five.  P said she had known LC since grade seven and FS since grade eight.  She described FS, LC and herself as best friends; “super close”.  P said she had known the appellant as LC’s mother’s boyfriend since she met LC in grade seven.  P had met the appellant at LC’s house and “at school stuff”.^[30]
74. [74]
    P said that early in 2019, she received a message that LC was mad at the appellant.  P asked why to which LC said “[FS] should I tell her”.^[31]  FS replied that P was her best friend.  LC then told her the appellant had been touching her for the past four, five or six years.  When P asked what he had done, LC said he always tries to put his hands in my pants.
75. [75]
    P said that in the months thereafter, LC would text or come to school crying and tell them that something happened.  P said the appellant would be away driving trucks for three or four weeks at a time and then come back.  All of a sudden LC would be contacting them crying and texting at night saying it has happened again.  This texting was over Instagram.
76. [76]
    P said later that same week, LC texted saying the appellant had tried but she had told him she was on her period.  P said she received a similar message the next month, when the appellant was home but then the appellant did not touch LC for a while.  There was a huge gap.
77. [77]
    P estimated LC told her something by messaging on Instagram about 10 times over the course of 2019.  On multiple occasions, LC told P the appellant had tried to touch her but she said she was on her period.
78. [78]
    P said that in late August/early September 2019 LC came to school “completely crying”.  She told FS and P that on the weekend the appellant came back from truck driving and forced her “to touch his dick”.^[32]  They told LC it was not good; it was just getting worse and they needed to tell somebody.  LC said she did not want to because it would make life really difficult if he left because her mother does not get paid much and they relied on him a lot.
79. [79]
    P said two weeks ago they were texting in a group chat.  LC texted FS first, saying the appellant had touched her.  LC said the appellant sat on her and pinned her arms back whilst LC was sitting on the couch.  LC said her mother was in the kitchen at the time.  FS and P told LC it was going way too far; that he could do worse things; and that she needed to tell someone.
80. [80]
    P said FS said he had known for three years and he was not going to keep hiding it anymore.  FS said it is “either tomorrow, um all of us go to [the guidance counsellor].  And we talk to him or I’m telling him myself”.^[33]
81. [81]
    P said they talked to LC about even though it would make life hard it was the right thing to do because she was in serious danger.  They also were not sure whether he could be doing it to LW as well.
82. [82]
    P said FS told his mother, so they needed to tell someone the next day.  P also told her mother that night.  LC said “well now we’ve told your parents, there’s no turning back”.^[34]  On the Monday morning, when at school, all three went to the counsellor.
83. [83]
    P said LC could not talk to the counsellor because she was “like almost crying”.  LC asked FS to start the conversation.  P said it was mostly FS and the counsellor talking, although P did get involved later in the actual conversation, as did LC.
84. [84]
    P said LC was basically telling the counsellor “about how [the appellant] had been sexually harassing her for a very long time”.^[35]  She gave details like the appellant touches her down there and puts his hands in her pants and that he had sat on her and forced her to touch him.
85. [85]
    P said that on one occasion LC said to FS and P, when they were trying to convince her to tell someone, that she was scared no one was going to believe her because one time, when she was standing on the other side of a wall listening to her mother and LW talk in the kitchen, she heard LW tell her mother something along the lines “I don’t like [the appellant].  He’s annoying and he’s been touching me.”  When LW explained he had been touching her down there, her mother said “just don’t hang around him or stop being stupid.”  LC said LW told her mother she was telling the truth, but her mother said “stop exaggerating, [LW].  Just go play on your iPad”.^[36]
86. [86]
    In her pre-recorded evidence, P said they commenced group chats in year eight.  Those conversations turned to LC’s issues in 2019.  When she spoke to police, that account was still active; she had not deleted it.
87. [87]
    KK also spoke to police on 1 December 2019.  He was aged 15 years and in grade nine.  KK said he first met LC in 2018, on their first day in grade eight.  He started to date her around September 2018.  It lasted for about six months.
88. [88]
    One day, LC called KK and told him there was something she had to tell him but he had to be quiet about it.  She did not want him telling other people.  LC then told KK the appellant was making her touch his private area.  KK could not remember LC’s exact words but she did say he made her touch “the dick”, or words to that effect.^[37]
89. [89]
    KK said LC told him she did not want to tell someone else because the appellant helped her mother out; that her mother already blames things on LC; and that she did not want to make it worse.
90. [90]
    KK remembered LC also calling him on another occasion, saying she was worried the appellant may have done the same thing to LW.  This conversation was after LC told him the appellant was making her touch him.  KK said they did not really discuss it much in person.  He recalled another telephone call in which LC said the appellant was “doing it again”.^[38]
91. [91]
    In his pre-recorded evidence, KK accepted there had been text messages between him and LC about this matter.  At the time he spoke to police, that telephone was still in his possession.  The police did not ask for that telephone.
92. [92]
    BM was a guidance officer at LC’s school in 2019.  He spoke to LC on 18 November 2019.  She arrived at his office with two friends, FS and P.  LC wanted to talk about something personal.  She went on to state it was about her home environment.  She wanted her friends there for support.
93. [93]
    BM said once LC started to explain the gravity of the situation, he took notes.  LC told him the appellant had been doing things to her, for about five years.  She said he was a truck driver and was not home most of the time.
94. [94]
    BM said LC said that on the previous weekend, while she was lying on the couch, the appellant sat on top of her and pinned her arms down.  During that time, her mother came in and the appellant got off her.  LC said she felt awkward and scared because she knew what he had done before.  LC also mentioned that when she bought new clothes or wore a skirt, the appellant would check to see she was wearing underwear by pulling up her skirt.
95. [95]
    BM said LC said about two years before, when her mother was busy in the kitchen, the appellant had put his hands in her shorts and touched her.  LC was too scared to do anything.  This had happened while she was watching TV in the living room.  LC spoke about another occasion, also around two years ago, when the appellant was getting out of the shower.  He grabbed LC’s hand and made him touch “his dick”.
96. [96]
    BM said LC mentioned that sometimes the appellant would pin her down on the bed and thrust on her.  She clarified there was no penetration but said she was naked.  That had happened multiple times between 2015 and 2017.  LC said the appellant told her “Don’t tell anyone.  I may be arrested for this”.^[39]
97. [97]
    BM said LC also told him that when she was in the shower, the appellant sometimes barged in to ask for something.  It made her feel awkward and scared.  LC said she stayed away from the appellant often or would invite her boyfriend over.  The appellant acted differently when other people were around.
98. [98]
    BM said he completed a student protection report, which was sent to the principal.  As it related to sexual matters, it was immediately reported to police.
99. [99]
    In cross-examination, BM agreed he understood the importance of taking accurate notes.  His notes, in relation to the appellant barging into the shower, initially had recorded “often” which had been replaced with “sometimes”.  His notes provide an accurate reflection of what he had been told by LC.
100. [100]
     LC’s mother, TW, said she first met the appellant in 2015, on a dating site.  The relationship progressed into a more intimate relationship.  When she went to the appellant’s house, LC and LW would come with her.  At that time, the appellant was a local truck driver, and was not away for work very often.
101. [101]
     In 2016, TW moved in permanently to the appellant’s house at Mount Sheridan with her two children.  She shared a bedroom with the appellant.  LC and LW each had their own bedroom.  At that time, TW was studying at TAFE two or three days a week.  She had to do a few hundred hours of work experience.  She graduated from that course in June 2016.
102. [102]
     During that time, TW would be away from the house in the daytime, often starting from 6.00 am and finishing at 2.00 or 3.00 pm.  On those occasions, LC would attend before and after school care.  Sometimes the appellant would collect her.
103. [103]
     TW said LW was taking swimming lessons in 2016, on Saturday morning.  There were other occasions in the daytime when TW would leave the house to spend time with friends or to have a break from the children.
104. [104]
     TW started employment in 2017, cleaning a school, working 3.00 pm to 6.00 pm.  In that year, LC started year seven.  LC would take a bus to and from school.
105. [105]
     TW said she attempted to have a sexual relationship with the appellant.  The appellant was able to ejaculate but his erection was not sufficient to undertake intercourse.  That was the position throughout their entire relationship.
106. [106]
     TW said, in 2017, the appellant took a job as an interstate truck driver.  He would leave the house for two, up to three weeks at a time.  He would be at home for two to three days before leaving again.  He undertook the same work in 2018 and 2019.
107. [107]
     TW said, whilst at home, the appellant would normally wear very short football shorts and a singlet, although he might sit shirtless at home.  There was a time when she saw the appellant touch LC.  It was between 2015 and 2016.  TW had come into the room.  LC was wearing a short skirt.  TW caught the appellant lifting up LC’s skirt.
108. [108]
     TW said “What are you doing?”.  The appellant replied “Why are you wearing a short skirt?  You know that you can see your underwear”.  TW thought the appellant lifted the skirt up from the back.  LC was wearing underwear.  TW said “You can’t do that to my kid”.  The appellant replied it was a joke.  TW said “That’s not joke”.^[40]
109. [109]
     TW said when they moved to a new address in September 2019, she had “caught him really bad”.  She saw the appellant lying on top of LC on the sofa in the living room.  TW said “What are you doing?”.  LC was also saying “Hey.  Stop it”.^[41]
110. [110]
     TW said LC was a very happy girl.  She liked music.  However, TW noticed she would spend more time in her room playing the piano from 2016.
111. [111]
     TW said, in 2019, LW came to TW, when she was in the kitchen, and told her the appellant touched her, and pointed to her vagina.  She told LW not to worry, and if he did it again, run away and stay away from him.
112. [112]
     TW said, on 18 November 2019, she received a telephone call from the school counsellor, BM.  At the end of that day, she took LC and LW to the police station.  On the way, she stopped at a bank.  Whilst doing so, she left both girls in the car.
113. [113]
     In cross-examination, TW agreed that at the Mount Sheridan residence, she did not have to leave the kitchen to look into the lounge room but said you could not see 100 per cent because of a half wall.  TW said when the appellant was working as a local truck driver, he was home most evenings and on weekends.  She accepted there would be occasions when he was with the children without her, doing activities outside the home.  TW described the appellant as being really close with LC.
114. [114]
     TW accepted that from 2016 to 2019, the appellant would play with the children.  Sometimes, that involved tickling them.  She agreed he would annoy the children by his behaviour and by not recognising when they wanted him to stop.  TW accepted the appellant sometimes disciplined the children for misbehaviour by taking away the iPad.  He would also smack LW on the bottom.  TW said it was just a tap.
115. [115]
     TW agreed that in 2019, LC was dating FS.  FS was a very good friend since year seven.  He looked after LC.  TW accepted there was an incident in late 2019 where the appellant found FS and LC in LC’s bedroom.  The appellant “roused on them”.^[42]
116. [116]
     TW agreed that in her statement to police, she did not tell them about seeing the appellant lying on LC on the sofa.  She also agreed she told police she had seen the appellant lift LC’s skirt only a few months before speaking to police.
117. [117]
     TW accepted that LW would often sit on the appellant’s stomach or chest while they were watching TV, either in the bedroom or on the lounge.  There would be occasions when the appellant would ask her to move because he needed to get up.  TW did not agree the appellant had a discussion with LW about being careful not to squash his genitals.  Later, she accepted the appellant had explained to LW that it hurt when she accidentally squashed his genitals.^[43]  TW accepted she had never seen the appellant go into the bathroom when LC was having a shower.
118. [118]
     The appellant gave evidence that he was an interstate truck driver by occupation.  When he first met TW, he was a local truck driver.
119. [119]
     The appellant said he met TW on a dating site in January 2014.  They met in person for the first time about three or four weeks before 14 February 2014.  That was about a week or a week and a half after they had started talking online.  He first met LC and LW about two or three weeks after meeting TW.
120. [120]
     The appellant said after three or four months, TW and the children moved in with him.  They were a happy family.  There were occasions when he would take the children to school and pick them up from school.  At that stage, TW was undertaking a course.  Later she commenced cleaning work at the school, in the afternoon.
121. [121]
     The appellant said when he recommenced driving interstate in 2017, he would be away for one, two, three or four weeks at a time.  He would be back home for approximately two to three days before leaving again.  He described himself as hardly ever at home.  He also worked during school holidays.
122. [122]
     The appellant denied ever placing his hand in LC’s pants and touching her vagina.  He denied ever taking her hand and placing it on his penis or having her massage it.  There had been an occasion when he had pinned LC to the bed.  He had never thrust on her.  He stood beside her and started tickling her to make her laugh.  LW came in and said “My turn.  My turn”.^[44]  The appellant said he then tickled LW.
123. [123]
     The appellant said there was an occasion when LC came into the house after school and asked him about ejaculation.  There was also an occasion when he was watching porn and LC walked in on him while he was masturbating in the lounge room.
124. [124]
     On that occasion, the appellant said he thought no one was home.  The appellant said he was wearing a towel.  LC walked in just as he ejaculated.  The appellant said he closed the towel and apologised to LC.  He said “Was that the first time you’ve seen cum?”.  She replied, “Yes”.  He then said “Whatever you do, don’t tell your mother”.^[45]
125. [125]
     The appellant said he told LC not to tell her mother because it was embarrassing.  The appellant said LC walked away back to her bedroom.  The appellant said he did not ever ask her if she wanted a taste or say that “mum likes it”.^[46]
126. [126]
     The appellant said LW would lay on him whilst watching TV.  The appellant said LW pushed up over his genital area.  He said both he and TW had corrected LW on that on a couple of occasions.  The appellant said “Can’t touch me private parts”.^[47]
127. [127]
     The appellant said there were a couple of occasions when he turned LW around when she was sitting on top of him.  She was sitting in a position that was hurting him.  He would turn her around or put her to his side.  He did not ever put his hand on her vagina and scratch it or place her hand on his penis and genitals.
128. [128]
     The appellant denied frequently touching or rubbing LC’s vaginal area with his hand or having her touch or masturbate his penis or that he touched or rubbed her breasts.  The appellant said that on occasions, LC said to him she had her period.  He asked “Why are you telling me that?”.^[48]
129. [129]
     The appellant accepted he had on an occasion lifted LC’s skirt.  He was in her room at the Mount Sheridan house.  They were about to all go out.  He wanted to make sure she was wearing appropriate underwear as she liked to do cartwheels.  He lifted the skirt up on the side.  He did not see the front or back.  TW asked “What are you doing?”.^[49]
130. [130]
     The appellant said there was an occasion when he caught LC and FS spooning in LC’s bedroom.  FS’s hand was playing with LC’s vaginal area.  The appellant said he had a go at them.  They jumped up and said they were only watching TV.  The appellant said he told them they should not be in the bedroom.
131. [131]
     The appellant said, when TW got home, he explained what he had seen.  TW said he should have “a go at them about it”.^[50]  The appellant told FS if he ever touched LC again he would cut his fingers off.  The appellant said FS asked when he was allowed to touch her.  The appellant said “You’re not allowed to touch her.  She’s 14 year old”.  FS asked “Well, when’s she legal?”.  The appellant replied “Well, she’s not legal until 16”.  FS replied “Then I can have her”.^[51]  The appellant said he saw red and walked away.
132. [132]
     The appellant said that incident occurred about two weeks after they moved into the new house in 2019.  Three days later, LC made the allegations to the counsellor.
133. [133]
     The appellant said that he had, on occasions, pinned LC on the bed, but never when naked.  He had never barged into the shower while LC was showering and had never displayed behaviour which would indicate she was scared of him.
134. [134]
     In cross-examination, the appellant said LC and LW were fantastic.  He spoiled them and they wanted to go everywhere with him.  He was trying to be like their dad.
135. [135]
     The appellant said he only ever caught LC in the bedroom with FS on two occasions.  The first occasion, at the old house, he just told them they could not do that but did not worry too much about it.  On the second occasion, he saw FS’s hand down in LC’s private area, moving around.  He watched for about 10 seconds and yelled at them to get out of the bedroom.  The appellant said he took FS aside and told him he could not touch her down there as she was underage.  That was the conversation in which FS said “I can get her then”.^[52]  The appellant said he had never “roused on” LW.^[53]  She behaved herself.
136. [136]
     The appellant said he would tickle LC and LW anywhere in the house.  It was a common thing with LW.  LC was a hard person to tickle so he did not tickle her that often.  The appellant saw it as a “ordinarily fatherly thing to do”.^[54]

Conviction appeal

Ground 1

137. [137]
     The appellant submits that the evidence purportedly admitted as “preliminary complaint” evidence was not evidence in relation to an alleged offence, within the meaning of s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld).  Accordingly, it was inadmissible hearsay.  It is submitted the admission of such evidence deprived the appellant of a fair chance of acquittal and was a miscarriage of justice.
138. [138]
     There is no merit in this ground.
139. [139]
     Count 1 charged the appellant with maintaining a sexual relationship with LC, over a period slightly in excess of four and a half years.  It was particularised as involving unlawful sexual acts of touching and/or rubbing her vaginal area with his hand; procuring LC to touch and/or masturbate his penis with her hand; touching and/or rubbing LC’s breasts; masturbating and ejaculating in front of LC; and pinning LC down and thrusting himself upon her.
140. [140]
     Counts 2 to 8 were relied upon to support count 1.  Uncharged acts were also relied upon to support count 1.
141. [141]
     Count 2 was a particularised occasion on which it was alleged the appellant placed his hand in LC’s pants and touched her vagina.
142. [142]
     Count 3 was a particularised occasion on which it was alleged the appellant took LC’s hand and placed it on his penis having her touch it.
143. [143]
     Count 4 was a particularised occasion on which the appellant pinned LC on the bed and thrusted against her.
144. [144]
     Count 5 was a particularised occasion on which it was alleged the appellant took the hand of LC and placed it on his penis.
145. [145]
     Count 6 was a particularised occasion on which it was alleged the appellant masturbated and ejaculated in LC’s presence.
146. [146]
     Count 7 was a particularised occasion on which it was alleged the appellant touched LC on her vagina.
147. [147]
     Count 8 was a particularised occasion on which it was alleged the appellant touched LC on her breasts.
148. [148]
     In the summing-up, the trial judge expressly directed the jury that the Crown relied upon all of counts 2 to 8 inclusive to support the count of maintaining a sexual relationship with LC, as well as LC’s evidence that this conduct occurred frequently, on multiple occasions, over a number of years.  The jury was expressly directed that, in that respect, the Crown relied upon other offending described by LC which was not the subject of separate charges.  The jury were reminded of LC’s evidence that it had happened quite a few times in the same places and around the same kind of thing; that the appellant had made her touch his penis quite a few times that sometimes would happen once every two weeks or once every month, and that in addition to touching her vagina, he had “touched my tits”.  The trial judge also specifically reminded the jury of conduct which was not the subject of any charge, namely the occasion when the appellant was observed lying on top of LC in the living room.
149. [149]
     Evidence of how and when any preliminary complaint was made by a complainant about the alleged commission of the offence by a defendant is admissible in evidence.  Such evidence is admissible so that the jury may have the full context of any preliminary complaint, in order to most accurately assess the credibility, or lack of credibility, of a complainant and that complainant’s complaint.^[55]
150. [150]
     The controlling element is “about”.  There must be demonstrated a connection of subject matter.  That connection may be demonstrated by commonality of time, place, event or conduct.^[56]
151. [151]
     The evidence admitted as preliminary complaint had the necessary connection to the alleged commission of the offences, having regard to the particularised count of maintaining a sexual relationship and its reliance upon multiple occasions of conduct similar to that particularised in count 1 and the subject of counts 2 to 8 inclusive.
152. [152]
     Each of the witnesses who gave evidence of preliminary complaint, gave evidence of LC having complained of improper sexual conduct by the appellant over several years since 2015, such conduct specifically including that the appellant had made her touch his penis and that the appellant had been touching her vagina.
153. [153]
     Such evidence satisfied the requirement that the preliminary complaint be “about” the alleged offences.  Evidence of LC’s complaints that the appellant had, for some years, been having her touch his penis and had been touching her vagina, established a commonality in both time and conduct.
154. [154]
     The fact that the preliminary complaint witnesses also referred to occasions which were not the subject of evidence by LC did not detract from the establishment of the necessary connection.  Unlike in R v KAW,^[57] the “complaint” each attributed to the complainant was directly relevant to the description of the offences.
155. [155]
     Further, any complaint about matters not the subject of evidence by LC, involved conduct of a similar nature, albeit in different circumstances.  It did not involve more serious conduct such as penetration, which had not been the subject of complaint.  There is no basis to conclude that the reference to those other occasions, not the subject of evidence by LC, overwhelmed any consideration by the jury of the central issue, namely, whether the preliminary complaint evidence properly supported the complainant’s credibility as to the events the subject of counts 1 to 8 inclusive.
156. [156]
     Similarly, the evidence of preliminary complaint made by LW, to her mother and LC was admissible.  It contained complaints of the appellant touching LW’s vagina and having LW touch his penis.  Counts 10 and 12 were particularised as the appellant touching LW’s vagina.  Counts 9, 11 and 13 were particularised as the appellant having LW touch his penis.

Ground 2

157. [157]
     The appellant submits that the trial judge erred in failing to properly direct the jury about the use that could be made of the preliminary complaint evidence; the jury was not directed that such evidence about a particular count could only be used in respect of that count.
158. [158]
     The trial judge directed the jury that they could only use the evidence of preliminary complaint in assessing the complainant’s credibility.  The jury was specifically directed that they could not regard the things said in those out of court statements as proof of what actually happened.  Further, the jury was specifically directed that inconsistencies may cause the jury to have doubts about the complainant’s credibility.  Specific reference was made to inconsistencies in LC’s friends’ account of LC having told them about events which LC had not mentioned to police or in evidence.
159. [159]
     Similarly, the trial judge specifically directed the jury to the preliminary complaint evidence in respect of LW, namely, her complaints to her mother and LC, before directing the jury as to the proper use of that preliminary complaint; to assess LW’s credibility, not as evidence that those events actually happened.
160. [160]
     Such directions, having regard to the particularisation of the maintaining count, properly apprised the jury as to the use that could be made of the preliminary complaint evidence.  There was no requirement for the jury to be directed, in the present case, as to the use to be made of that preliminary complaint evidence as it pertained to each count on the indictment.

Ground 3

161. [161]
     The appellant submits that, in circumstances where the Crown relied on similarities in the alleged offending against each complainant as circumstantial evidence in the case of the other, there was an obligation on the trial judge to direct the jury about their proper potential use of such evidence and of the need to consider and exclude competing circumstantial inferences.
162. [162]
     It is further submitted that the use of generic terms, such as conduct and offending, meant no distinction was drawn between charged and uncharged acts, leaving the jury without a specific warning about the way in which the jury could and could not use evidence about uncharged conduct, including the need to consider any dissimilarities between the conduct alleged in respect of each child.
163. [163]
     The trial judge specifically directed the jury as to the use that could be made of evidence where there were two separate complainants complaining of individual sexual offending against each of them.
164. [164]
     Those directions included directing the jury that it must consider the evidence in relation to each charge separately and return a separate verdict for each charge; that the evidence of LC and LW did not each stand alone; that there were similarities in the appellant’s alleged conduct towards each, meaning that the evidence of each may support the evidence of the other, but that before using one complainant’s evidence to support the truthfulness and reliability of the other complainant, the jury would need to be satisfied beyond reasonable doubt that each complainant was independent of the other with no real risk that they had concocted similar complaints, and that they were satisfied that both were truthful and reliable witnesses, and that the facts proved by each of their evidence was so similar to the allegations made by each particular complainant, that there was no reasonable view of the evidence other than that the appellant had committed the acts alleged in respect of each particular complainant.
165. [165]
     In addition to those directions, the trial judge specifically identified a number of similarities relied upon by the Crown and, importantly, differences in the offending alleged in respect of each complainant.  The trial judge concluded the directions on this matter in the following terms:

“In summary then, just trying to wrap up this issue about how you deal with the evidence of two complainants, the evidence of any one complainant whom you consider to be truthful and reliable as to the alleged similarities in the defendant’s conduct may be used by you as a circumstance which might confirm, support or strengthen the evidence of the other complainant.  But only if you are satisfied on all the evidence that you have heard: first, that there is no reasonable view of it other than that the defendant did commit those acts alleged by the other complainant; and, second, the possibility that the other complainant is lying can be rejected; and, third, the possibility that it is just by mere coincidence that the other complainant has complained falsely of similar conduct on the defendant’s part can be rejected.  That is, that you don’t accept that it’s just a coincidence of a false complaint.

If you do not accept that sufficient similarities exist in the allegations of each complainant as to be able to rely on the evidence of one in support of the truthfulness and reliability of the evidence of the other, then you would reject the prosecution argument and look at the evidence of each complainant independently without having regard to the evidence of the other.

I caution you that if you do not accept that sufficient similarity in the evidence of the complainants exist, then you cannot use the evidence to reason in this way.  For example, that [the defendant] is the sort of person who could commit these sorts of offences or is of bad character, and therefore just because there are two people complaining against him, you will convict him of all of the charges.”^[58]

166. [166]
     Having regard to the circumstances of those directions, there is no proper basis to conclude that a failure to draw a distinction between charged and uncharged conduct gave rise to a reasonable possibility that the jury had been left without proper warnings as to how the jury could or could not use evidence about the uncharged conduct.  There is no possibility that the appellant was, as a consequence, deprived of the real prospect of an acquittal.

Ground 4

167. [167]
     The appellant submits that the trial judge erred in providing check boxes to the jury, for use in its deliberations.  The appellant submits that such a process impermissibly interfered in the jury’s deliberations.  A completed check box had a tendency to delimit discussion and stifle minority opinion, such that there was a real danger that the appellant had been deprived of a proper chance of acquittal, leading to a miscarriage of justice.
168. [168]
     The document containing check boxes set out each count, its particulars and the elements of that count.  It was at the conclusion of the elements that there appeared the following: “Verdict:  Guilty/Not Guilty” (emphasis in original).
169. [169]
     In circumstances where the jury was specifically directed to consider each count individually, determining whether the prosecution had established beyond reasonable doubt each necessary element of each such count, there is no reasonable prospect that the inclusion of a check box impermissibly interfered with the jury’s deliberations.
170. [170]
     The document was an aid, to allow the jury to record the verdict after deliberating the appellant’s guilt or innocence in respect of each count, in accordance with the law.

Sentence application

Sentencing remarks

171. [171]
     The sentencing judge observed that at the time of the offending the appellant was a mature man aged between 49 and 53 years; that the offending occurred over a four and a half year period; that it involved sexually offending against the daughters of his then partner; that in the case of LC, there had been routine touching, at least over a three year period; that the touching involved skin-on-skin contact and was not fleeting; that there was an escalation in the offending; and that when LC became less available to him, the appellant moved onto LW, a younger child, and commenced touching her.
172. [172]
     The sentencing judge concluded that there was no view of the evidence other than that the appellant had deliberately sexually offended against both girls for his own sexual gratification.  Such offending involved a significant breach of trust.  The offending also occurred in the family home, where they were entitled to feel safe.
173. [173]
     The sentencing judge recorded that there was no physical violence used by the appellant, over and above the violence inherent in touching the children in that way and an obvious use of force when pinning LC down.  However, there was significant emotional manipulation, including repeatedly telling both complainants not to tell their mother.  The sentencing judge also took into account that there was no evidence of penetration.  However, an aggravating feature was that the appellant did not stop of his own accord and there was a complete lack of remorse.
174. [174]
     The sentencing judge accepted it was a strong Crown case, involving two complainants with an absence of collusion.  Further, there was no entitlement to any discount for a plea of guilty and no evidence of contrition.  There was also evidence of ongoing adverse impacts on the complainants, as well as the family unit.
175. [175]
     The sentencing judge observed that at the time the appellant committed the offences, he had a criminal history which was largely historical and of no relevance to the sentence itself.  The appellant also had some health conditions which would make his period in custody more difficult.
176. [176]
     The sentencing judge concluded that general deterrence and denunciation were particularly important, particularly where there were two separate children involved and the offending occurred over a long period of time.  There was also a need for protection of the community.
177. [177]
     After considering comparable authorities but noting that none were “exactly the same”, the sentencing judge imposed a head sentence of six years imprisonment on the maintaining count and lesser concurrent periods of imprisonment on the other counts.  The sentencing judge declined to fix an earlier parole eligibility date.

Consideration

178. [178]
     Absent specific error being established, a ground of appeal that a sentence was manifestly excessive will not succeed unless it be established that the sentence is of such a nature that it must give rise to a conclusion that there was a misapplication of principle or otherwise supports a conclusion that the sentence is plainly unreasonable and unjust.^[59]
179. [179]
     As the appellant asserts specific error, it is appropriate to first consider grounds 2, 3 and 4.

Ground 2

180. [180]
     The appellant submits that the sentencing judge specifically erred in discerning the basis for the sentence in one of the comparable cases, R v NR,^[60] and thereby acted on a wrong principle or took into account an irrelevant consideration.  It is submitted that emphasising that the sentence in R v NR was imposed following a plea of guilty was erroneous as the utility of the plea had been recognised by the setting of an earlier parole eligibility date.
181. [181]
     The observations made by the sentencing judge, in the course of submissions, must be considered in context.  At the time, the prosecutor was outlining the factual circumstances of cases said to be comparable, and submitting as to the appropriate sentence for a maintaining charge alone, in the context of comparable cases which were acknowledged to be far less serious than the appellant’s criminality.
182. [182]
     In that context, the sentencing judge observed that R v NR involved a sentence imposed after a plea of guilty for a significantly shorter maintaining period, albeit involving more serious offending.  Those observations were factually correct.
183. [183]
     There is no basis to conclude that a factually correct reference to differing factors in comparable yardsticks, during submissions, involved a misapplication of a comparable sentence, when imposing the sentence for the appellant’s overall criminality, for maintaining a sexual relationship in respect of a child in his care for a period in excess of four and a half years, and for sexually offending against a separate younger complainant.

Ground 3

184. [184]
     The appellant submits the sentencing judge erred in taking into account, as an aggravating factor, that LC was scared to tell her mother of the offending because of their financial dependence upon the appellant and a concern that her mother would not believe her, as LC had overheard an earlier conversation between LW and her mother. The appellant submits there was nothing to indicate that the appellant had any insight into these subjective reasons.  Further, the sentencing judge erred in having regard to the case being a strong Crown case.  There had already been a finding of no remorse or contrition so the strength of the case could not constitute an additional aggravating feature.
185. [185]
     The sentencing judge’s observations that LC was scared to tell her mother because of her financial dependence on the appellant and a concern that her mother would not believe her, having regard to an earlier conversation she had overheard between LW and her mother, were factual observations, consistent with LC’s evidence.
186. [186]
     Nothing in the sentencing judge’s observations support a conclusion that those observations were intended to convey that the appellant was aware of LC’s reasons for a reluctance to complain.  They recorded the circumstances of the child complainant, in the context of offending which involved a significant breach of trust.
187. [187]
     Similarly, the sentencing judge’s observation that it was a strong case was in the context of acknowledging that it was a case involving two complainants with an absence of any evidence of collusion.  There is no basis to conclude those observations involved a misapplication of principle.

Ground 4

188. [188]
     The appellant submits the sentencing judge specifically erred in mistaking the facts; the aggravating features were not the same for both LC and LW.
189. [189]
     The sentencing judge’s observations that the offending against each child, apart from the maintaining count, had the same aggravating features, was factually correct.  The offending did involve skin-on-skin contact on each child’s vagina and placing each child’s hand on the appellant’s penis.  Such offending did involve a significant breach of trust.  Further, there was emotional manipulation in that each child was told not to tell anyone about that offending conduct.
190. [190]
     There is no substance in the appellant’s submission that those aggravating features were not the same because the period of offending against LW was much less and there was no allegation of frequency or escalation to touching other parts of LW’s body or engaging in pinning or thrusting in respect of LW.
191. [191]
     In any event, the sentences in respect of the appellant’s offending against LW involved the imposition of significantly lesser periods of imprisonment.  The sentencing judge plainly had regard to the differing features of that offending when imposing those substantially shorter periods of imprisonment.
192. [192]
     The sentencing judge also expressly acknowledged that the offending against LW did not include an offence of maintaining but observed that she was much younger compared to LC.

Ground 1

193. [193]
     The appellant submits that a review of comparable authorities^[61] supports a conclusion that an effective head sentence of six years imprisonment was manifestly excessive in the circumstances.  It is submitted that whilst the period of maintaining was lengthy, the appellant’s offending, in the context of his lack of relevant criminal history and his personal circumstances, supported a sentence of no more than five years imprisonment.
194. [194]
     A consideration of the comparable authorities amply supports a conclusion that an effective head sentence of six years imprisonment properly reflected the appellant’s overall criminality.
195. [195]
     The appellant engaged in maintaining an unlawful sexual relationship with a child under his care for over four and a half years, as well as sexual offending against another child in his care.  Both children were young and the offending occurred in the context of a serious breach of trust.  Whilst the appellant had no prior relevant criminal history, there was a complete absence of remorse.
196. [196]
     An effective head sentence of six years imprisonment properly reflected a consideration of the aggravating and mitigating features.  Such a sentence fell well within a sound exercise of the sentencing discretion.  It does not evidence any misapplication of principle and there is no basis to conclude that such a sentence was plainly unreasonable or unjust.

Conclusions

197. [197]
     The appellant has not established any ground for setting aside his convictions.
198. [198]
     The appellant has not established any ground favouring a grant of leave to appeal against sentence.

Orders

199. [199]
     I would order:

1. The appeal against conviction be dismissed.
2. Leave to appeal against sentence be refused.

200. [200]
     FREEBURN J:  I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.