R v HCK[2023] QCA 65

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  For the reasons given by Bond JA, I joined in the making of the Court’s orders on 22 November 2021.
2. [2]
   McMURDO JA:  For the reasons given by Bond JA, I joined in the orders which were made on 22 November 2021.
3. [3]
   BOND JA:  Between 19 and 22 July 2021, the appellant was tried on indictment on the following counts:

   1. (a)
      Count 1 – indecent treatment of a child under 16, under 12, whilst under care;
   2. (b)
      Count 2 – indecent treatment of a child under 16, under 12;
   3. (c)
      Count 3 – indecent treatment of a child under 16, under 12, whilst under care.
4. [4]
   Counts 1 and 3 alleged conduct in relation to MRR who was the daughter of the appellant’s partner.  Count 2 concerned MDR, who was MRR’s friend.  The counts were particularized in this way:

   1. (a)
      Count 1 – “Beanbag”: The defendant rubbed [MRR’s] backside against his penis;
   2. (b)
      Count 2 – “[MDR’s] sleepover”: The defendant touched [MDR] on the buttocks; and
   3. (c)
      Count 3 – “On the Bed”: The defendant rubbed [MRR’s] vagina against his penis.
5. [5]
   On 22 July 2021, the appellant was acquitted on counts 2 and 3.  He was convicted on count 1 and sentenced to six months’ imprisonment.  No parole eligibility date having been set, pursuant to s 184 of the Corrective Services Act 2006 (Qld), the appellant’s parole eligibility date was the day after the day on which he had served half of the period to which he had been sentenced.
6. [6]
   This Court heard his appeal against his conviction on count 1 and his application for leave to appeal against his sentence on 18 November 2021, by which time the appellant had served four months of his six-month sentence.
7. [7]
   On 22 November 2021, the Court ordered that the appeal against conviction should be dismissed, the application for leave to appeal against sentence should be allowed, the sentence imposed below should be set aside, and the appellant should be resentenced to a term of imprisonment expiring on that day.
8. [8]
   These are my reasons for making those orders.

The appeal against conviction

The grounds of appeal

9. [9]
   The grounds of appeal were:

   1. (a)
      first, the verdict is unreasonable, or cannot be supported having regard to the evidence; and
   2. (b)
      second, the verdict of guilty on count 1 was inconsistent with the verdict of not guilty on count 3.
10. [10]
    The appellant’s counsel made clear during oral argument before this Court that the second ground of appeal confined the first.  In other words, the only basis on which the appellant contended that the verdict was unreasonable or could not be supported by the evidence was the alleged inconsistency between acquittal on count 3 and conviction on count 1.  This clarification operated to narrow the requisite focus on the evidence adduced at trial.
11. [11]
    Count 2 involved conduct alleged to be committed against a different complainant (namely MDR) and counsel for the appellant conceded that the acquittal on that count did not support the inconsistency argument.  Rather it was the fact that count 1 and count 3 involved substantially similar conduct alleged to have been committed against MRR on occasions only about one month apart, which provided the foundation for the appellant’s inconsistency argument.
12. [12]
    The appellant’s argument on appeal was encapsulated in written submissions before this Court in this way:

“In summary, the evidence in this case discloses that the complainant described both events in a similar way, there was preliminary complaint to support both counts and there was a motive to lie for both counts.  Thus, it is submitted that there was no rational or logical basis for distinguishing the complainant’s recollection of the events concerning one count from the other.  Therefore, a conviction was not open to the jury on count 1 because if the jury had doubts about one count, they must, as a matter of logic, have had the same doubts about the other.”

13. [13]
    The appellant’s counsel accepted that his argument rose and fell on the proposition that it must be inferred from the acquittal on count 3 that the jury entertained doubts as to the reliability or credibility of MRR.  He contended that the doubts which the verdict in respect of count 3 reveals that the jury must have had in relation to MRR’s reliability or credibility should have caused the jury to have the same doubts in relation to count 1.

Consideration

14. [14]
    The law concerning the consideration of alleged inconsistent verdicts is well established.  The principles are sufficiently set out in MacKenzie v The Queen (1996) 190 CLR 348 at 366 to 368; R v Smillie (2002) 134 A Crim R 100 at 106 to 107; and R v CX [2006] QCA 409 at [33].  Of particular note are the observations of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen at 367 (footnotes omitted) that:

“…if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”

15. [15]
    The conviction for count 1 meant that the jury was persuaded beyond reasonable doubt that on an occasion in Townsville and between 1 October 2019 and 23 March 2020, the appellant pulled the 9 or 10-year-old complainant onto his lap and rubbed her backside against his penis, whilst he was sitting on a beanbag and both were clothed.  MRR had also alleged that he placed his hand over her mouth whilst he did this.
16. [16]
    Count 3 involved an allegation by MRR that about a month later the appellant had pulled her on top of him whilst they were lying on a bed and rubbed her vagina against his penis, again whilst both were clothed.  She again alleged that the appellant placed his hand over her mouth whilst he did this.
17. [17]
    The evidence of MRR was similar in relation to the two counts, as is demonstrated by the table below which identifies and compares the substance of the evidence of the complainant in relation to each count:

18. [18]
    For present purposes, however, the question is not so much a focus on the similarities between the evidence supporting each count, but on whether there were relevant dissimilarities affecting the jury’s assessment of MRR’s evidence, the existence of which might reconcile the guilty verdict for count 1 and the not guilty verdict for count 3, thereby avoiding the inference that the jury must have entertained reasonable doubt as to the reliability or credibility of MRR in respect of count 1.
19. [19]
    In my view there were two bases by which the two verdicts could properly be reconciled.  First, it was entirely possible that the jury acquitted on count 3 not because they entertained doubts as to the reliability or credibility of MRR, but because they were specifically instructed that they could not take a view of the evidence in relation to count 3 which was inconsistent with the acquittal rendered by a jury at a previous trial concerning a closely related count.  Second, there were qualitative differences between the evidence in respect of count 1 and count 3, such that the difference between the verdicts could be explicable on the basis that the jury followed the judge’s instruction to consider each charge separately and apply to each count the requirement that all of the elements must be proved beyond reasonable doubt.
20. [20]
    I will address each basis under a separate heading below.

The first basis: the evidence for count 3 was inextricably linked to a count on which there had been already been an acquittal

21. [21]
    The trial which returned verdicts of guilty on count 1 and not guilty on counts 2 and 3 was a retrial of in respect of counts 1, 2 and 3, the jury in the first trial having been unable to reach a verdict on those counts.  However, at the previous trial the jury reached a not guilty verdict on count 4 of the indictment.  Count 4 had also alleged a count of indecent treatment of the child MRR who was under 16, under 12, whilst under the appellant’s care.  The circumstances alleged in respect of count 4 had been that appellant had kissed MRR on the mouth whilst count 3 was occurring.
22. [22]
    This caused a practical problem for the retrial because the parties were in agreement that evidence addressing count 3 was inextricably linked to the evidence addressing the count on which the appellant had already been acquitted.  Editing out the evidence relating to that count was not practicable and, in any event, provided the context within which count 3 was alleged to have occurred.
23. [23]
    The parties submitted that the evidence be admitted in its entirety without seeking to eliminate evidence solely relating to the acquitted count 4, and the issue could be dealt with by a direction to the jury in accordance with the decision of R v FAR [2018] QCA 317.  The trial judge accepted that submission, ruling as follows:

“I note that the parties wish that evidence in the section 93A statement of one of the complainants and in the pre-recorded evidence of both complainants which are marked exhibits A and B before me respectively which pertains to count 4 on the indictment in respect of which the defendant was previously acquitted by another jury go before this jury as they are part of the context of the offending and difficult to edit from the records I’ve referred to above. The parties agreed to this course and have provided me with a decision of R v FAR [2018] QCA 317 as an example of where this has occurred. I note that in the decision of the Court of Appeal, it was stated that this can occur provided that an appropriate direction is given.

In the circumstances, I’m content that, whereas here, the parties wish the reference to the offending in respect of which the defendant has previously been acquitted still be placed before the jury, it occur. However, I’ll be giving the jury a direction that they not use that evidence in a manner inconsistent with the full benefit of those acquittals, in other words that they were bound to accept the verdict of acquittal in respect of count 4, and it’s not open to them to accept a view of the facts inconsistent with this acquittal. I propose to finesse the wording of the direction with counsel at the conclusion at the evidence.”

24. [24]
    The agreement which led to that ruling reflected a forensic choice on behalf of the appellant’s counsel.  Counsel for the appellant sought to use the evidence of the acquitted count to the appellant’s advantage.  Thus:

    1. (a)
       During the record of interview with police and MRR, MRR was asked to explain how the appellant tried to “kiss [her] on the lips”.  MRR described the kissing as the appellant “swirling his tongue” inside her mouth, before later stating, “[b]ut he didn’t kiss me” and “he was only kissing me on the lips…[w]ithout putting his tongue around, like that.”
    2. (b)
       During the pre-recorded evidence of MRR, the cross-examination sought to test her assertion that the appellant’s hand was over her mouth but that he was also kissing her.  It was put to her, “he couldn’t kiss you if he had his hand over your mouth the whole time, could he?”
    3. (c)
       In his address to the jury at trial, Counsel for the appellant first submitted:

“And you’ve also heard that – one complaint from [MRR] which related to kissing. And that’s in relation to the bed incident, that’s your second incident, and a previous jury has already found [the appellant] not guilty of that. And you can’t come to a version of the facts in terms of what she said about the kissing that’s inconsistent with that verdict, and his Honour will give you some directions about that.”

4. (d)
   Later, Counsel for the appellant submitted in relation to the suggestion that the appellant had held MRR down in the way her evidence had described in relation to count 3:

“You might think that there’s some inherent probability about that type of holding and that – that conduct is not inherently probable, the way she describes them. And then she says, of course, that when she heard the door, that is Mum coming through the door, that’s when the incident stopped and she was released.

She also says that – in her evidence that this was where the tongue kissing occurred.  And for all that tongue kissing, the tongue in her mouth, swirling around like adults do – and you recall the evidence that I – or this was the cross-examination that I put to her. The hand was over the mouth the whole time.

She said yes, it was over the mouth the whole time. But then, of course, where was the kissing. And she said, “Well, he took his hand off to kiss me.” And that, of course – that count, that allegation, Mr HCK was found not guilty of that. So, those factual sides, I think – that factual aspect is – he’s not guilty of doing that thing. But in any event, you might think that that whole description, the way she described it, impacts on her credibility overall.”

25. [25]
    In accordance with his ruling, the trial judge directed the jury as follows:

“You have come to appreciate that there was an earlier trial of these charges.  You should not speculate about what might have happened at the trial or why there is a retrial.  Trials can be stopped because of error or because of something quite unforeseen.  Whatever the reason it has no continuing relevance subject to what I am about to say.  Aside from what I am about to say, you are to consider the case upon the evidence placed before you in this Court room.  However, evidence was placed before you of the defendant allegedly kissing the complainant, [MRR], in a sexual way.  This gave rise to a separate charge or count.  At a previous trial the defendant was acquitted of this count.  You are bound to accept this verdict of acquittal.  You cannot take a view of this evidence which is inconsistent with that acquittal and you must not, in any way, reconsider the guilt of the defendant of the offending giving rise to this particular count which is not in issue before you in the trial I am conducting.”

26. [26]
    A jury which had found the complainant’s evidence in relation to count 3 to be reliable and credible may well have reached the same conclusion in relation to her evidence concerning the kissing which was said to have occurred whilst count 3 was occurring.  But the jury had been instructed that it could not take such a view of the latter evidence.  Faithfully seeking to follow that instruction may have caused the jury to feel constrained against convicting on count 3 given the connections between the evidence, notwithstanding that they found the complainant to be reliable and credible.  That factor by itself is sufficient reason to conclude that it was not a necessary inference to be drawn from the acquittal on count 3 that the jury must have entertained doubts as to the reliability or credibility of the complainant.

The second basis: qualitative differences between the evidence for each count

27. [27]
    The first qualitative difference was that deriving from the previous issue.  The evidence in relation to count 3 was affected by the evidence in relation to count 4.  The evidence in relation to count 1 was not.
28. [28]
    The second qualitative difference concerned preliminary complaint evidence. 
29. [29]
    As to count 1:

    1. (a)
       MDR had said that after she was offended against MRR had told her that she had also been touched by the appellant who rubbed her up and down on him.
    2. (b)
       MRR said in her s 93A statement to police that in addition to telling her mother, she also complained to her uncle and to her grandfather.  She didn’t remember the details of what she told them, but basically it was that the appellant had been touching her inappropriately.  But she said that she didn’t remember the second time (i.e. the bed incident) when she told her uncle.  In her pre-recorded evidence, she said that she told her grandfather about everything that the appellant did, although she did not recall what words she had used.  She said that she had told her uncle about both the beanbag and the bed incidents but did not remember what she had said when she told her uncle about what had happened.
    3. (c)
       MRR’s grandfather gave evidence that he and MRR’s uncle had a conversation with MRR in which she was crying and upset and told him that the appellant told her to sit on his lap; that she told him “no”; and that he had put her on his lap and bounced her up and down.  As will appear, the recollection that MRR’s uncle was also present at the time of this conversation was a minor inconsistency with the uncle’s evidence.
    4. (d)
       MRR’s uncle gave evidence of a conversation he had with MRR.  No one else was present.  She complained that the appellant was a “fricking paedo” and had touched her and also touched MDR.  He said that MRR described the beanbag incident.  His recollection was consistent with MRR’s evidence.  He said that he then had a conversation with MRR’s grandfather and told him that he needed to talk to MRR and see what was going on.  He said that that is what MRR’s grandfather then did.  His recollection was that he stayed outside whilst that occurred.
    5. (e)
       MRR’s mother gave evidence which confirmed that MRR had told her about the beanbag incident and that MRR had told her what had happened by using toys.
30. [30]
    As to count 3:

    1. (a)
       MRR’s mother gave evidence that she had a second conversation with MRR about the appellant’s alleged offending.  The first was that related above in relation to the beanbag incident.  The second was that MRR had told her that the appellant had grabbed her, put her on top of him and tried to pull her pants down when his penis was erect.
    2. (b)
       Neither MRR’s uncle nor her grandfather said that MRR told her anything about this count.
31. [31]
    The jury were given an appropriate direction as to the use to which they could put the preliminary complaint evidence. As a general proposition, there was greater support in the preliminary complaint evidence for MRR’s evidence in relation to count 1 than there was in for her evidence in relation to count 3.
32. [32]
    In my view the difference between the verdicts could be explicable on the basis that the jury followed the judge’s instruction to consider each charge separately and apply to each count the requirement that all of the elements must be proved beyond reasonable doubt, and took a more cautious view in relation to count 3 because there was less firm support for the complainant’s evidence on that count than there was for count 1.

Conclusion

33. [33]
    The appeal against conviction must be dismissed.

The application for leave to appeal against sentence

The proposed grounds of appeal

34. [34]
    The appellant identified two proposed appeal grounds.
35. [35]
    First, a case of specific error, namely that the sentencing judge erred –

    1. (a)
       in finding that the circumstances in this case could not amount to exceptional circumstances within the meaning of s 9(4) of the Penalties and Sentences Act 1992 (Qld); and/or
    2. (b)
       in determining at the outset that a term of imprisonment without any suspension or parole recommendation was warranted unless exceptional circumstances were established without taking account of all the sentencing factors that existed in this case such that the exercise of the sentencing discretion miscarried.
36. [36]
    Second, that the sentence imposed was manifestly excessive in all the circumstances.

Consideration

37. [37]
    Consequent upon conviction on count 1, the offence of indecent treatment under 16, under 12, under care, s 9(4) of the Penalties and Sentences Act applied. The sentencing judge was obliged:

    1. (a)
       to have regard to the sentencing practices, principles and guidelines applicable when the sentence was imposed rather than when the offence was committed;
    2. (b)
       to note that the principles mentioned in s 9(2)(a) did not apply (i.e., that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable); and
    3. (c)
       to require the offender to serve an actual term of imprisonment, unless there were exceptional circumstances.
38. [38]
    In this case, at the end of the oral submissions on sentence by counsel for the Crown, the sentencing judge made these observations:

“HIS HONOUR: All right.  What do you submit for?

MR FRANCIS: Well, …, in my submission, a sentence here is, really, one that is between six and 12 months imprisonment.  If you – probably six months is rather generous in my –  for my submission, based on the violence used – or the threats, I should say – the force.  So no threats, no violence, but the force.

HIS HONOUR: Yes, yes. I understand your submission.

MR FRANCIS: Yes.  So – and there’s not necessarily a compelling reason for him to be supervised upon release so it’s open for your Honour to suspend it, but - - -

HIS HONOUR: I’m not going to do that.

MR FRANCIS: Yes.

HIS HONOUR: He’s just getting a flat sentence, whatever it is.

MR FRANCIS: Yes.

HIS HONOUR: Unless I find exceptional circumstances, as far as I’m concerned, if you go trial and don’t show any remorse - - -

MR FRANCIS: No.

HIS HONOUR: - - - you don’t get any recommendation from me.”

39. [39]
    This exchange revealed that the sentencing judge intended to approach the exercise of the discretion by excluding from his consideration any option other than a “flat sentence” (by which I understood his Honour to mean a sentence of imprisonment without any suspension or consideration of fixing a parole eligibility date other than the 50% default position which would apply pursuant to s 184 of the Corrective Services Act unless he found exceptional circumstances to exist. 
40. [40]
    Such a course was an erroneous approach to the exercise of the sentencing discretion.  As Burns J observed in R v BCX (footnotes omitted):^[1]

“… sentencing by reference to s 9(4) is not a “two-stage process” whereby the sentencing judge must first consider whether exceptional circumstances exist and then determine the sentence to be imposed.  Rather, in the sentencing process, the court “must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in [s 9(5), (6) and (7)], warrant the imposition of a sentence which does not involve actual custody”.  Viewed in this way, a finding whether exceptional circumstances exist is but one part of the overall process of “instinctive synthesis” discussed by McHugh J in Markarian v The Queen whereby each of the factors relevant to the sentence are identified and then weighed before a value judgment is made as to a sentence which is, in all of the circumstances of the case, appropriate.”

41. [41]
    Nothing was said during the remaining oral submissions or in the course of the sentencing remarks which could be said to have justified the conclusion that despite his earlier announcement, the sentencing judge exercised his discretion in a way other than the way he said he would.
42. [42]
    It should not go unnoticed, however, that the remarks by the sentencing judge which I have criticised were made before counsel for the appellant had even been heard on sentence.  Judges can properly express preliminary views on issues before them for the sake of ensuring that they receive submissions which are appropriately focussed.  They may even do so in a robust way.  But, however such views are expressed, judges must take care not to give an impression of prejudgment, or, if one is inadvertently given, judges must take care to ensure that the impression of prejudgment is corrected.
43. [43]
    In this case, there may have been much to be said in support of a conclusion that a fair-minded lay observer might reasonably have apprehended from the timing and manner of the sentencing judge’s remarks that he might not have brought an impartial mind to at least some of the issues which were relevant to the proper exercise of the sentencing discretion.  For example, the remarks might be taken to suggest that the judge had excluded from consideration, before even hearing counsel from the appellant, the possibilities of complete or partial suspension of the head sentence, or of setting a parole eligibility date which was different from the statutory default position under s 184.  Apprehended bias was not the subject of argument before this Court, so I need not express a conclusion on whether the exercise of discretion could have successfully been impugned on that basis.
44. [44]
    Given that specific error in the exercise of the sentencing discretion has been demonstrated, it is not necessary to consider the question of manifest excess.
45. [45]
    The sentencing discretion having miscarried, the sentence imposed below should be set aside, and this Court must consider afresh the appropriate sentence in the independent exercise of its sentencing discretion.^[2]  In doing so, this Court make take into account all relevant matters, including evidence of events that have occurred since the sentencing hearing.^[3]
46. [46]
    I turn now to a consideration of the appropriate sentence in this case.
47. [47]
    The considerations which were relevant were as follows:

    1. (a)
       The offending took place between 1 October 2019 and 23 March 2020 and involved sexual offending against a prepubescent girl aged around 10 years old.
    2. (b)
       The complainant was the offender’s stepdaughter and the offending involved a breach of trust as she was under his care.
    3. (c)
       The offender was 26 years old at the time of the offending.
    4. (d)
       The offender was convicted after a trial and there were no circumstances which demonstrated remorse.
    5. (e)
       The offending could be described as at the lower end of the objective seriousness of offences of this kind, in that there was no skin-to-skin contact.
    6. (f)
       Nevertheless, the offending was still serious and involved the aggravated circumstances of the offender having used force to restrain the complainant, including by holding his hand over her mouth preventing her from screaming.
    7. (g)
       Although no victim impact statement was in evidence, the complainant gave evidence that the offending caused her to be very scared and distressed.
    8. (h)
       By the time of re-sentencing in this Court, the offender had served four months imprisonment.
    9. (i)
       The relevant personal circumstances of the offender were these:

       1. he had no previous similar criminal history;
       2. he was a sufferer of anxiety and depression; and
       3. he had the support of his family.
48. [48]
    On 24 September 2021, the appellant was found guilty of separate offending and sentenced to a term of six months’ imprisonment to be served cumulatively on the existing term of imprisonment (that is the term presently being served).  The sentencing judge fixed a parole eligibility date of 21 January 2022.  The appellant had lodged an appeal against his conviction and an application for leave to appeal against his sentence.
49. [49]
    In all the circumstances I would conclude that extraordinary circumstances justifying a non-custodial sentence did not exist.  But for the last-mentioned consideration, I would have been inclined to sentence on the basis of a head sentence of six months’ imprisonment, and, having regard to the fact that the appellant had already served more than two-thirds of that sentence, would have been inclined to accept the submission initially made by the appellant, namely that a six-month sentence should be suspended forthwith for an operational period of 12 months.
50. [50]
    However, had the Court taken that course the possibility would have arisen that the appellant would have been released from custody but have to return to custody upon the full-time expiry of the present sentence if the appeal in relation to the separate offending failed.  Neither the appellant nor the respondent supported that course.
51. [51]
    In all the circumstances, the appropriate sentence was to sentence the appellant to a term of imprisonment expiring on the day the appeal was heard.

Conclusion

52. [52]
    The application for leave to appeal against sentence should be allowed, the sentence imposed below should be set aside, and the appellant should be resentenced to a term of imprisonment expiring on the day the appeal was heard.