R v CDC[2024] QCA 108

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The appellant had three grandchildren of whom he was the guardian.  They lived with the appellant in his house.
2. [2]
   All of the grandchildren, to whom I shall refer as X, Y and Z, made allegations of sexual misconduct by the appellant, as a consequence of which he was charged with 10 counts:

   1. count 1 – maintaining a sexual relationship with a child (a domestic violence offence); this count related to X;
   2. counts 2, 3 and 9 – indecent treatment of a child, under 16, under 12, who is a lineal descendant, as a guardian (a domestic violence offence); counts 2 and 3 related to X, count 9 to Z;
   3. counts 5, 6, 7, 8 and 10 – indecent treatment of a child under 16, who is a lineal descendant, as a guardian (a domestic violence offence); these counts related to X; and
   4. count 4 – indecent treatment of a child, under 16, under 12, who is a lineal descendant, as a guardian (a domestic violence offence); this count related to Y.
3. [3]
   Count 8 was particularised as that the appellant exposed his penis to and/or masturbated in the view of X.  This occurred whilst the appellant was at the desk in the lounge room in 2020.
4. [4]
   The appellant was convicted only on count 8 and was acquitted on all other counts.  He was sentenced to imprisonment for eight months, suspended after serving three months, for an operational period of eight months.
5. [5]
   He appeals against his conviction on the ground that the verdict on count 8 was inconsistent or, alternatively, unreasonable.
6. [6]
   The appellant also seeks leave to appeal against the sentence imposed on the basis that the learned sentencing judge was in error in not finding that there were exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992 (Qld), such that a period of actual imprisonment was required.

Background

7. [7]
   The summary of the factual background set out in the appellant’s outline was broadly accepted by the Crown.  What follows is drawn from that summary.
8. [8]
   X and Y were girls, and Z was a boy.  The appellant had the care of the children lawfully through the intervention of the Department of Child Safety due to the mother being addicted to drugs.  The father of the children, the appellant’s son, is deceased.  The appellant also had the care of a fourth grandchild who was older than the others, however he did not play a part in either the allegations or the trial.
9. [9]
   Whilst there were three children involved, the majority of the offending occurred against X; namely, eight out of the 10 counts on the indictment.  Z was the complainant for count 9 and Y was the complainant for count 4.
10. [10]
    Factually, all that need be said for present purposes is that which the Crown particulars alleged:^[1]

3. (a)
   count 1 (maintaining a sexual relationship with X) the relationship consisted of one or more of the following acts:

3. (i)
   the conduct the subject of Counts 2, 3, 5-–8 and 10;

3. (ii)
   touching her vulva/vagina with his finger;

3. (iii)
   touching her vulva/vagina with his mouth;

3. (iv)
   touching her bottom under her clothes;

3. (v)
   attempting to, or having her, touch his penis with her hand;

3. (vi)
   attempting to have her suck his penis; and

3. (v)
   masturbating in front of her;

3. (b)
   count 2: rubbing his penis against X’s vulva/vagina, through her underwear, whilst she was on top of him; this occurred in the appellant’s bedroom when X was 10 or 11 years old;

3. (c)
   count 3: licking X’s vulva/vagina; this occurred in X’s bedroom when she was 11 or 12 years old;

3. (d)
   count 4: the appellant had Y touch his penis; this occurred in the appellant’s bedroom when Y was around 8 years old;

3. (e)
   count 5: the appellant had X touch his penis; this occurred in the appellant’s bedroom;

3. (f)
   count 6: touching X’s vulva/vagina with his finger; this occurred in the bathroom in 2020 when the appellant asked her if her vagina was clean;

3. (g)
   count 7: touching X’s bottom; this occurred in the appellant’s bedroom in 2020;

3. (h)
   count 8: exposing his penis to and/or masturbating in the view of X; this occurred whilst the appellant was at the desk in the loungeroom in 2020;

3. (i)
   count 9: exposing his penis to and/or masturbating in the view of Z; this occurred whilst the appellant was at the desk in the loungeroom in 2020; and

3. (j)
   count 10: touching X’s vulva/vagina with his finger; this occurred in the bathroom when X was shaving her vagina; the appellant commented that he wanted to kiss it and that she had a beautiful vagina.

11. [11]
    The defence contention was that the eldest child, X, driven by her increasing frustration and anger towards the appellant, fostered the allegations against him (and encouraged her younger siblings) in a plan to allow her and her siblings to be reunited with their mother.  During cross-examination, X accepted amongst other things that the appellant had stopped her from seeing her mother, was always disparaging her mother, damaged a phone she had been given (by her mother) to stop her contacting her mother, was angry to the appellant, that she wanted to live with her mother, that her mother had changed and the like.
12. [12]
    After the disclosure of the final allegations in her s 93A interview, the Department of Child Safety took the children from the appellant and ultimately returned them to the care of their mother.
13. [13]
    X spoke to the police by way of four s 93A interviews on: 7 August 2017,^[2] 23 March 2021,^[3] 11 September 2021,^[4] and 7 October 2021.^[5]
14. [14]
    In the first interview, X made no complaint against the appellant, and it was not until the third interview that she disclosed the complaint concerning count 8.
15. [15]
    Y spoke to the police on 6 October 2021^[6] and 10 September 2022.^[7]  Z  spoke to the police on 6 October 2021.^[8]
16. [16]
    The appellant gave a recorded interview with police on 24 October 2021.^[9]

The appellant’s police interview

17. [17]
    On 24 October 2021, the appellant participated in a police interview.  Relevant aspects of what he said included:

3. (a)
   X had made allegations to Childrens Services and that department got involved;

3. (b)
   X “has or had a problem with urine where she would pee herself frequently … And that was getting treated through the medical system. … And she’s all but, all but better with it. …She was getting better and stronger. Her bladder, bladder was getting stronger and everything else. But she always constantly smelt of urine and it concerned her”;^[10]

3. (c)
   he then explained: “And she wanted her pubics shaved and I agreed with that because at the time of the smelling being, the smell stayed there. … It was, it was in the pubic hairs. … And she asked me could I assist her in shaving, in the shaving of her pubic area. … And then this is where it’s all gone pear-shaped from there on”;^[11]

3. (d)
   he explained his view of what happened:^[12]

“You know [X], … I helped her. I showed her how to shave. Anyway as a single parent I didn't think anything of it. … I didn’t believe that, in hindsight, yeah, look it probably wasn’t smart. It definitely wasn’t smart - -… In hindsight, but at the time I didn’t believe that was wrong to assist a naked girl with hygiene …. As a single parent I was playing the role of mother, father, grandfather, friend  ….Mentor, bloody whatever. Um, anyway [X] was, and then she took the razor … and she said how’s that and … look I could kick myself doing it . I, I did, I physically touched her vaginal area, yes. I’m not going to deny that. … I said yeah, that’s a beautiful job, well done. … You know as in there was no, no hair left, it was smooth. Nothing sexual about the whole bloody thing at all”;

3. (e)
   he then explained the next comment he made:^[13]

“I’m not going to deny it, and I said to [X], I said the last time I saw a naked woman's, ah, fanny I wanted to kiss it. I wasn’t referring to the fact that I wanted to kiss her fanny which somehow or other she thought is what I said. … And that’s what started the whole thing. You know at no stage at… point in time was it sexual for me. … I don’t get sexually aroused by a bloody teenage girl. … I now understand it was probably inappropriate. I definitely understand that what I said was inappropriate, yes. … But you can’t take words back once you’ve said them regardless of the intent. … Once those words leave your mouth [INDISTINCT] you can’t take them back. … But there was certainly no intent. And that’s what led [X] in to have a talk to her teachers at school or whoever she spoke to and got Children Services involved and the police got involved”;

3. (f)
   he repeatedly explained his position as “sole parent” for three children;

3. (g)
   asked to explain what he did to help X, he said that:^[14]

“I got the razor … Put some soap and I think I might have even, I can’t recall whether we used shaving cream or soap to be honest. … Um, and I just got the razor and I said right, now you’ve gotta stroke down and then come back up to make sure you, you get the stubs. So I done the bulk of the heavy, heavy area and then she done the closing part around the, around her what do you call it, the vagina itself I guess, yeah. …  She got the razor and she shaved in all that [INDISTINCT] area around there. And that’s what I said, that’s beautiful, you’ve done a beautiful job. … I wasn’t referring to her fanny, I was referring to the fact that she’d done a nice of job of, of shaving her area, yeah”;

3. (h)
   asked if he touched X, the appellant said he rubbed his finger “up the flesh”, and said “yep, that’s beautiful, nice and smooth”;^[15] he said that he touched X to “the outside of [the middle of the vagina] on the bulge area … just where … the fine hairs would have been”;^[16]

3. (i)
   he said it was X who asked if she could shave her pubic area, and he agreed “because of the hygiene side of it”; he denied he inserted a finger or anything else into X;

3. (j)
   the time he described above was the second time he had helped her to shave her pubic area; the first was because X was concerned about the smell, and it “was just to shave the fanny and there was nothing happened”;^[17]

3. (k)
   he explained that they had a doctor’s reference to the hospital in respect of treating X’s pelvic floor issues, and had been working on her ability to strengthen her pelvic floor muscles for about 12 months;^[18]

3. (l)
   asked how the topic of shaving came up, he said that X was being teased by schoolkids about the smell, and she felt intimidated and ashamed;^[19]

3. (m)
   he had been looking after the children for six years on his own, because their mother had drug problems and the father was deceased;

3. (n)
   he explained that he had spoken several times to Childrens Services about the shaving incidents, and he “agreed with them that yeah, yeah, it probably is inappropriate … Once it’s been shown to me. … I’ve accepted the fact that in the eyes of someone outside looking in yes, my actions probably were inappropriate”;^[20]

3. (o)
   asked if he had discussed (with Childrens Services) the issue of checking X for infection, he said he had observed “a white … creamy substance …building up on her vagina”;^[21] X smelt funny and he told her she was not cleaning herself properly; he got her to sit up on the hand basin and inspected her vaginal area; he “wiped his finger up [between the vaginal flaps] and took some cream off”, explaining to X that the fact there was cream meant it was not clean, and that was where the smell was coming from; he believed he was “doing the role of a parent”;^[22]

3. (p)
   the circumstances of count 3 were put to him; he responded “Never happened” and “Never ever happened”;^[23]

3. (q)
   the circumstances of count 2 were put and he denied them, saying “Never happened”;^[24]

3. (r)
   the circumstances of some of the acts alleged in count 1 were put and he denied them, saying it had “never happened”;^[25]

3. (s)
   the circumstances of count 7 were put, and he responded “That may have happened”;^[26] asked to explain why he said it may have happened he answered “I don’t know. I’m just saying it may have happened. … I don’t recall doing it, but it may have happened”;^[27] he explained further:^[28]

“I don’t know whether I would have had my bloody hand inside her underwear or not, but I may have squeezed her bottom, but I’ve done that with the kids all me bloody life…. It’s a probability, yes. … It … possibly and probably happened, but I don’t recall it, no.”

3. (t)
   the circumstances of count 8 were put;^[29] his response was in this exchange:^[30]

“APPELLANT: That may have happened.

POLICE: Alright. Tell me why that may have happened?

APPELLANT: Well I’m certain wouldn’t, wouldn’t have caught me a second time. She may have caught me having a bloody play with my doodle ---

POLICE: Yep.

APPELANT: When I believed they were asleep, yes.

POLICE: Okay. So tell me why you believed they may have been asleep?

APPELLANT: Well she just said herself in her own statement that she woke up, so~ -

POLICE: Yep.

APPELLANT: My belief they would have been asleep, yes.

POLICE: How often would the kids sleep out in the lounge room then?

APPELLANT: Not often.

POLICE: Alright. So why would you have been sitting at the computer doing those sorts of things while they were asleep in front of you?

APPELLANT: Well if they’re asleep what’s it matter what I do?”

3. (u)
   the appellant explained he watched “trans porn” on his computer because “Girls don’t get my rocks off”;^[31]

3. (v)
   the circumstances of count 6 were put; he denied touching X’s vagina inside, saying “just external”;^[32] the beautiful vagina comment was referred to, and then it was put that the appellant had said he “I wish I could kiss it”; he denied that, saying “No”;^[33] he then explained:^[34]

“No. So there’s been a… she’s misunderstood I believe the comment that I made and … probably because of the way it came out, you know the last time I saw a naked, bloody a woman’s naked vagina I wanted to kiss it. … And that was said after the shaving. But I wasn’t referring that I wanted to kiss [X]’s vagina.”

3. (w)
   by way of general comment he said:^[35]

“Yeah , like I said … I done inappropriate things, yes. I did, like I did walk around the house naked every now and then, and I did help shave her vagina and it’s , and in the light of day it’s inappropriate, but at that time I didn’t believe that, no . Yes, I’ve sat there on me computer and played with me doodle and the kids have walked out of the bedroom. But again I believed that I was in my own privacy at that time. Nothing has ever been started with the intent and that’s the thing . … I don’t get me rocks off with girls or kids. I get me rocks off on trans porn. Don’t … ask me why, but I do.”

The evidence at trial

18. [18]
    The principal witness was X.
19. [19]
    Her evidence came from the third police interview, admitted under s 93A of the Evidence Act 1977 (Qld), and her pre-recorded evidence.
20. [20]
    X’s evidence was that:^[36]

    1. she and a friend were sleeping in the lounge room for the night; they had a mattress on the floor; Z was not there; her brothers and sister were still asleep;
    2. the appellant was watching porn on his computer; she could not see the screen;
    3. out of the corner of her eye she saw him masturbating; he did it “out the side of his pants”; she told him to “put it away please” and he did;
    4. she went back to watching TV and then, again out of the corner of her eye, she saw him do it again; she again told him to put it away;
    5. she told her friend and Y, but no one else; and
    6. Z came into the lounge room after he woke up.
21. [21]
    Z said^[37] he was present with X and the friend.  He was sleeping near the desk where the appellant was sitting.  X and the friend were sleeping closer to the TV.  He saw the appellant masturbating.
22. [22]
    No evidence was called from the friend.  Y did not give evidence that she was told anything about this incident.
23. [23]
    X was 15 years old when she gave her pre-recorded evidence.  She affirmed that the police interviews contained the truth.
24. [24]
    In cross-examination, X adhered to her account as to count 8, denying, when it was put to her, that there were not two acts of masturbation.^[38]  Other potentially relevant aspects of her cross-examination included:

    1. she was angry with the appellant because he stopped X from seeing or living with her mother;^[39]
    2. whilst she resisted the suggestion that on counts 6 and 10, the underlying cause of what happened with her vaginal area was her own personal hygiene and health, she accepted that on occasions the appellant was asking to see if she had cleaned herself properly;^[40] and she accepted that she had some difficulties with urine control and kidney stones, and had received medical assistance in that regard;^[41]
    3. there were other events about which she expressed memory difficulties, in the sense that she could not remember when some things occurred;^[42]
    4. on count 2, X ’s account varied as she was recounting it to police;^[43]
    5. on count 3, X said Y was present on the same bed when it occurred, or Y left to chase a cat just before it happened, or maybe Y was trying to get the cat which was under the bed;^[44] by contrast, Y said no such thing; and
    6. she denied that she had concocted her accounts.^[45]
25. [25]
    Admissions were made and tendered.^[46]  Relevantly they included the evidence of a guidance officer to whom X made the preliminary complaint as to count 8.^[47]  That version was substantially the same as her evidence.
26. [26]
    The other children, Y and Z gave evidence.  Y had no evidence relevant to count 8.  Z gave evidence as to count 9 (the same occasion as count 8):

    1. his interview opened with him saying he was there to “talk about what [X] has told me and what I have heard”;^[48] he recounted what he had been told by X but none concerned counts 8 or 9;^[49]
    2. as to count 9, he said he, X and X’s friend had been asleep, then he woke up and “there he was on his computer wanking while us kids were there laying down”;^[50] and
    3. in cross-examination, Z adhered to his account.^[51]
27. [27]
    The friend who stayed over when count 8 occurred was not interviewed by police and gave no evidence.

Inconsistent verdicts

28. [28]
    The appellant’s contention is that the verdict on count 8 cannot be reconciled with the acquittal on count 9.  Each were concerned with the same events but different complainants: X in the case of count 8, and Z in the case of count 9.
29. [29]
    In R v CX,^[52] this Court reiterated the principles applicable to the contention advanced on this ground:

3. “[33]
   A number of matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury.

3. 1.
   Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.

3. 2.
   Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?

3. 3.
   Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.

3. 4.
   The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.

3. 5.
   Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.”

30. [30]
    More recently, in R v Pollard,^[53] this Court, citing MacKenzie v The Queen,^[54] said:

3. “[20]
   The appellant submits that the jury’s guilty verdict on count 2 was unreasonable having regard to the acquittals on counts 1 and 3. Differing verdicts in trials of multiple counts are to be expected. Juries are warned about the dangers of mere propensity reasoning and they take those warnings seriously so that it is common, in cases of multi-count indictments of sex offences in particular, for there to be some verdicts of guilty and some acquittals. To succeed on this ground the appellant must demonstrate, by reference to the evidence, that the different verdicts are irrational, not that they might be. Sometimes, in a case that depends largely upon the evidence of a single complainant, this can be shown by demonstrating that there is no qualitative difference that the complainant has given about each distinct count yet the jury has acquitted on some but not on others. A successful demonstration would show that, having regard to the evidence given, there can be no rational distinction made on the question of guilt. The logic is, then, that, having entertained a doubt on one of the counts, there being nothing to distinguish the cogency of the evidence on each count, the jury should have entertained the same doubt on all counts.”

31. [31]
    In order to succeed on this ground the appellant must demonstrate that the verdicts are irrational.  In my view that cannot be done.
32. [32]
    First, X’s evidence was that Z was not there at the time but sleeping elsewhere.  If the jury accepted that evidence, and doubted or rejected that of Z, then they would have been in a position to acquit on count 9 but convict on count 8.
33. [33]
    Secondly, there was reason to doubt the evidence of Z.  He said nothing about any comment by X, nor that the masturbating was on two occasions.  If X’s evidence was accepted by the jury and there was doubt about Z’s, there was a basis to find the verdicts as the jury did.
34. [34]
    Thirdly, the appellant’s interview provided the jury with a basis to be satisfied that X’s account was true.  As is set out in paragraph [17](t) above, the appellant conceded that the event may have happened.  It was open to the jury to understand that as an admission that he did masturbate in sight of X on an occasion when he was watching something on his computer.  The contrast between his use of the phrase “that may have happened” and the stark denials in the case of other counts (see, for example paragraphs [17](p), [17](q) and [17](r) above) could have been understood by the jury as such an acceptance.  Particularly is that so when the appellant used a similar phrase about count 7 and then explained that in terms of probability and possibility: see paragraph [17](s) above.
35. [35]
    Fourthly, the jury could have reasoned that the appellant’s answer was consistent with him (wrongly) thinking they were asleep and therefore he was free to act as he wished.  As he put it, X “may have caught me having a bloody play with my doodle when I believed they were asleep”, but “if they’re asleep what’s it matter what I do?”
36. [36]
    Fifthly, the appellant’s subsequent answer, on more general matters, could be understood as an acceptance that an event such as count 8 could well have occurred.  As he said, “Yes, I’ve sat there on me computer and played with me doodle and the kids have walked out of the bedroom.  But again I believed that I was in my own privacy at that time”: see paragraph [17](w) above.
37. [37]
    Sixthly, there was some support from preliminary complaint evidence.  A guidance officer gave evidence that X related to her an occasion when X had a friend over for a sleepover and the appellant was masturbating.  The account to the guidance officer was much in the same terms as X’s own evidence.^[55]  Further, X’s mother said she had been told a somewhat similar story.^[56]  Finally, the admissions contained evidence from a Child Safety Officer, to the effect that X said: on an occasion when she had a friend over sleeping in the lounge room, X saw the appellant masturbating; she told him to put it away.^[57]
38. [38]
    The support from the preliminary complaint evidence has two aspects to it.  One is that it was an account of the appellant’s masturbating in view of X.  The other is that on none of those accounts was Z mentioned as being present, only the friend.
39. [39]
    With that evidence supporting X’s credit, it was, in my view, open to the jury to accept X on that count yet have a reasonable doubt on Z’s evidence as to count 9.  I do not consider that the two approaches to the evidence are irreconcilable, nor is the doubt on count 9 such that it must have led to a doubt on count 8.

Unreasonable verdict

40. [40]
    The appellant also contends that the inconsistency on counts 8 and 9, as well as the rejection of X’s evidence on all counts concerning her, leads to the conclusion that the verdict on count 8 is unreasonable.^[58]
41. [41]
    The legal principles applicable where the ground in that the verdict was unreasonable are well known.  They were recently restated in Dansie v The Queen.^[59]  Dansie reaffirmed the approach set out in M v The Queen.^[60]
42. [42]
    The Court reaffirmed the relevant task as being that laid down in M v The Queen:^[61]

3. “[8]
   That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

3. [9]
   The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

43. [43]
    The High Court also said:^[62]

3. “[12]
   The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the “test set down in M” required a court of criminal appeal to undertake an “independent assessment of the evidence, both as to its sufficiency and its quality” and that consideration of what might be labelled “jury” questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself “to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard” and in so doing to form its own judgment as to whether “the prosecution has failed to exclude an inference consistent with innocence that was reasonably open”.

44. [44]
    In Pell v The Queen^[63] the High Court said:

3. “[39]
   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

45. [45]
    In R v Miller^[64] this Court said:

3. “[18]
   An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted. The mere identification of weaknesses in the prosecution case is not enough to sustain the ground. As Brennan J said in M v The Queen, and as criminal practitioners and trial judges know very well, it is a sad but salutary experience of counsel for the defence that the prosecution’s “weak point” is often brushed aside dismissively by a jury satisfied of the honesty of the prosecution witness.”

46. [46]
    The principal aspect of the evidence that the appellant points to is not concerned with general inconsistencies or discrepancies in X’s evidence.  Rather, the appellant points to the acquittals on all counts concerning X, except count 8, and the acquittal on count 9.  The submission was that the jury evidently doubted or rejected the evidence of X on most matters, and had a doubt about count 9 occurring.  Since count 8 and count 9 were the same incident the jury should have had a doubt on count 8, and that is a doubt that this Court should hold.
47. [47]
    There are a number of reasons why, in my view, that submissions should be rejected.
48. [48]
    First, for the reasons already given in respect of the inconsistent verdict ground, the verdicts on those counts are reconcilable.  There was a reason to doubt that Z was there at the time, hence the acquittal on count 9.  The appellant’s own account gave support to X’s version of events on count 8, and that plus the support from the preliminary complaint witnesses, gives a basis for the conviction on that count.
49. [49]
    Secondly, the appellant’s acceptance of acts that were the basis for counts 6 and 10 took place consistently with several other facts:

    1. he was the sole parent (in effect) for X;
    2. X had a condition that meant she had trouble with urine retention, leading to cleanliness and hygiene issues;
    3. X accepted that she had such issues;^[65] she also accepted that it caused her embarrassment and lead to teasing at school;^[66]
    4. the shaving incidents were part of his effort to assist X with the hygiene side of things, as well as avoiding the social stigma that came from X’s condition;
    5. X’s account involved the appellant asking if her vagina was clean;^[67]
    6. on count 10, X’s account included that the touching was “To apparently see if there was any infection”;^[68] and
    7. the admissions contained an account from the appellant to the guidance officer, to the effect that comments about X’s vagina and touching it were misconstrued, and, consistently with what he told police, his actions were related to dealing with X’s hygiene and health issues.^[69]
50. [50]
    In respect of those counts the jury may well have had a doubt as to the sexual element, or at least doubted X’s account that the actions were not related to hygiene and health concerns.
51. [51]
    Thirdly, the appellant’s account was such that the jury may have been caused to doubt the evidence of X, whilst not concluding that her evidence had to be rejected completely.  I have earlier explained the contrast between the appellant’s acceptance of things that “may have happened” and those that “never happened”.  In the latter category are counts 2 and 3, and some particularised acts in count 1.  The doubts that his evidence may have raised in respect of those counts, and the counts where he said there was a health reason to explain what happened, may have led to doubts generally as to acceptance of X’s evidence, though not leading to a complete rejection.
52. [52]
    Fourthly, there were aspects of X’s police interviews that may have caused the jury some doubt as to acceptance of her evidence unless supported otherwise.  In her first interview she denied that she had been touched at all.^[70]  In her second interview her only complaints were: (i) his comment, when she was shaving, that he wanted to kiss her vagina (count 10);^[71] and (ii) asking if she had cleaned her vagina and touching her to see if it was clean (count 6).^[72]
53. [53]
    The remaining counts were not mentioned until her third police interview.  In those accounts there were matters that may well have caused the jury to pause for thought.  For example:

    1. count 8 was explained with some clarity;^[73] other matters were accompanied by expressions of doubt as to when they occurred or as to the occurrence at all;^[74]
    2. for count 3, X said Y was present on the same bed when it occurred, or Y left to chase a cat just before it happened, or maybe Y was trying to get the cat which was under the bed;^[75] Y said no such thing;
    3. for count 2, X’s account varied as she was recounting it to police;^[76] variously: the appellant was under the blanket and then not; she was lying on his chest or sitting up; she pushed herself off or was trying to fight him off; he was wearing jocks or then took them off; she could not say how he took the jocks off,^[77] the same sort of answer was given as to whether her underpants were taken off.^[78]
54. [54]
    The fourth interview contained greater detail about count 10, which was information she had “accidentally missed out”.^[79]  Some of those details were added with X saying things like, “and now I do remember”.^[80]
55. [55]
    Fifthly, as I have already explained, X’s evidence on count 8 received support from the appellant’s acceptance that it may have happened; at least, it was open to the jury to reason that way.  It was open to the jury to take the view that even if they had doubts about X’s evidence otherwise, there were specific reasons to be satisfied she was truthful about count 8.

The sentence application

56. [56]
    The submission on this application was that the learned sentencing judge was in error in not finding that there were exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992 (Qld), such that a period of actual imprisonment was required.
57. [57]
    Section 9(4) relevantly provides:

3. “(4)
   Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years …

3. …

3. (c)
   the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.”

The sentencing judges approach

58. [58]
    The learned sentencing judge commenced her sentencing remarks by referring to the fact that the offence was serious, the maximum penalty was 20 years’ imprisonment, and the verdict meant that the appellant fell to be sentenced on the basis of X’s account.^[81]
59. [59]
    Her Honour noted the appellant’s age (61 then and 64 at sentence) and the fact that though he had a criminal history there were no like offences.
60. [60]
    Her Honour then recited the circumstances of count 8, substantially in accordance with X’s evidence.  Part of that account was that having told the appellant to “put it away”, he masturbated a second time.^[82]  Her Honour noted some of the evidence as to that:^[83]

“In her pre-recorded evidence, the child was cross-examined to suggest that you did not get your penis out again. She rejected that proposition, saying, emphatically:

No. He did do it again.

In cross-examination, she agreed with the proposition that [Z] was not there at this time. That is her younger brother. She said he was sleeping. In cross-examination, it was later suggested to her that you had never masturbated in front of her, and she said, “He has”. In effect, she maintained the same version of events and did not depart from it. Her account about this incident remained consistent.”

61. [61]
    Her Honour then noted what the appellant said to police on that matter, including a denial that he masturbated a second time.^[84]  That included the appellant’s statements that he had masturbated at times when the children walked out of the bedroom, and that he had turned the porn on when he knew the children “were awake or around”.^[85]  Her Honour also noted that the place where it took place was not private in the sense that it was the living room of a house where the children lived.  Her Honour continued:^[86]

“By the jury’s verdict, the jury accepted that you deliberately or intentionally exposed the complainant child to your penis and the act of your masturbating, or you deliberately exposed your penis and masturbated, aware at the time that exposing the child to that act was a likely consequence of the doing of the indecent act, and yet you recklessly proceeded despite that risk.

By their verdict, the jury accepted the complainant’s account that you exposed your penis through the side of your shorts, not once but twice, and masturbated twice to pornography in a single course of conduct, and that this child saw you doing that on two occasions and that there was another female child awake in the room at the same time. It is not suggested that she saw it or was exposed to it.”

62. [62]
    The learned sentencing judge then referred to s 9(4) and s 9(6) of the Penalties and Sentences Act 1992 (Qld), and continued:^[87]

“I have already referred to the age of the child. She was 13.

In terms of the nature of the offence, there are a number of aggravating features which make aspects of it objectively serious, notwithstanding that there was no physical contact. The child was 13 years of age, and you were a mature man of 61 years of age. There was a very significant age disparity between you.

It was a gross breach of trust. The child was your biological granddaughter. She loved you, she trusted you, and she relied upon you to keep her safe from harm. You were her guardian.

The child was additionally vulnerable. She and her siblings had been placed in your care because their parents could not care for them because of drug use. The child’s father, your son, had been incarcerated, and later died of a drug overdose. The child had no one else to care for her and nowhere else to live but your home. And it was in that home that this offence occurred, a place where she should have been entitled to feel safe.

It was a domestic violence offence, which the Court is required to treat as an aggravating feature.

It was not momentary. You persisted in the conduct despite the child telling you to stop once. The child had to tell you stop a second time before you desisted.

It was brazen, occurring while there were two female children in the room, and it carried a very high risk of exposure to any children who were present. Those children were awake and watching television at the relevant time.”

63. [63]
    As is evident from the passages above, the sentencing judge plainly proceeded on the basis that the jury had accepted that there were two incidents of masturbation, and her Honour did so as well.
64. [64]
    Having noted the various factors in the appellant’s favour (including his personal circumstances, history and employment, and the fact that there was no physical harm or threat of such, nor physical contact or emotional manipulation),^[88] and the submissions made for the appellant, her Honour addressed the question of whether there were exceptional circumstances, as submitted for the appellant below.  In the course of that, consideration was given to R v Pham^[89] and subsequent authority on the question.^[90]  Her Honour then said:^[91]

“In this case, the matters relied upon considered individually, in my view, do not on any analysis amount to an exceptional circumstance. It is not uncommon that there might only be a single offence. It is not uncommon that an offender has no relevant criminal history. It is not uncommon that an offender may be a mature person with an otherwise good employment history and an unremarkable background. It is not uncommon that offending is dated. It is not uncommon that an offender may not have reoffended while on bail.

Collectively, those matters relied upon do not constitute exceptional circumstances, particularly when regard is had to the objective gravity of the offending, the gross breach of trust, the significant age disparity, the biological relationship, the relationship of legal guardian, the domestic violence averment, the fact that the offence was not momentary and that you repeated your conduct, the brazenness of the offending, and the absence of remorse and insight.

In this case, I am not satisfied that exceptional circumstances have been demonstrated.”

65. [65]
    The submission advanced by the appellant at the sentencing hearing was, in essence, that exceptional circumstances were shown by several factors:

    1. the offending was low-level in seriousness;
    2. it was a single episode;
    3. X was not used as an object for sexualised conduct;
    4. the appellant’s lack of relevant offending, both before and after this offence; and
    5. the act could be seen as reckless disregard.
66. [66]
    Before this Court, the appellant contended that the sentencing judge gave insufficient weight to those factors.^[92]
67. [67]
    I do not consider that submission can be accepted.  Her Honour weighed all of those points in the course of a careful analysis of the competing factors: see paragraphs [61]-[62] and [64] above.  The offending was serious as it involved the 61 year old sole carer and guardian of a 13 year old girl brazenly masturbating in a place where the child, and another female child, were present and might see.  It was very serious in that having masturbated publicly once, and having been told to stop, the appellant did it again.
68. [68]
    Before this Court, a question arose as to the finding by the sentencing judge that the sentence should proceed on the basis that masturbation occurred twice, and not the once the appellant referred to in his police interview.  Specifically, the appellant questioned the adequacy of the reasons why her Honour evidently found, as a fact, that it was twice.
69. [69]
    In my view, the answer lies in several factors.
70. [70]
    First, the evidence of X was that it was twice. That is what she told police^[93] and she affirmed that in evidence-in-chief.^[94]  In her pre-recorded evidence it was put to her that the appellant did not get his penis out again, after being told to put it away.  She denied that saying, “No. He did it again”.^[95]  As the sentencing judge noted, her evidence of this aspect was consistent: see paragraph [60] above.  Of course, her Honour would have been conscious of the admissions, in which there was, by way of preliminary complaint to the guidance officer, an account by X of masturbating twice on the one occasion.^[96]
71. [71]
    Secondly, that was evidently the basis of the sentencing judge’s conclusion that the jury’s verdict was based on it having occurred twice.  So much is evident, in my view, from this exchange when counsel for the appellant urged a finding of a single occasion:^[97]

“ … I would be submitting to your Honour that consistent with the jury’s findings, that it’s open for your Honour to find that there was only one act, not two, as alleged by the complainant, [X].

HER HONOUR: How on earth do you support that submission when her evidence was clearly that he did it twice, including after she told him to put it away, and she had to tell him to put it away twice, so I have to proceed on the basis that the jury accepted her evidence.”

72. [72]
    It is therefore not a case where the sentencing judge had to make a finding of fact based on contentious evidence.  It open to proceed on the basis that the verdict reflected an acceptance of two acts.
73. [73]
    Thirdly, the appellant’s responses in the police interview did not amount to a categorial denial that it occurred twice on the one occasion.  The double act was put to him and his first response was “That may have happened”.  Then he said, “Well, I’m certain … wouldn’t have caught me a second time.  She may have caught me having a bloody play with my doodle when I believed they were asleep”.  That does not amount to a denial of two acts, but rather that he would not have been caught out on a second.
74. [74]
    Fourthly, her Honour’s analysis of the relevant evidence leads to the inference that if her Honour had to make a finding of fact on the issue, it would have been that it occurred twice.  Her Honour’s reference to the consistency of X’s evidence on the relevant point, the fact that her Honour had the chance to see and hear X giving evidence, and the acceptance that the verdict was on the basis of two acts, supports that inference.
75. [75]
    Finally, for the reasons which I have explained in respect of the inconsistent verdicts ground, the acceptance of X’s evidence in respect of count 8 does not mean there was a wholesale rejection of X’s evidence such that it could not form the basis for sentencing on count 8.

Conclusion

76. [76]
    For the reasons I have expressed above, the appeal should be dismissed and the application for leave to appeal against sentence should be refused.  I propose the following orders:

1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.

77. [77]
    BODDICE JA:  I have read the judgment of Morrison JA.
78. [78]
    I agree that the appeal against conviction should be dismissed.
79. [79]
    Morrison JA’s comprehensive summary of the evidence, which I gratefully adopt, allows me to briefly state my reasons.
80. [80]
    First, the verdict of guilty of count 8 was not inconsistent with the verdicts of not guilty of the remaining counts.  That verdict was logical and reasonable, having regard to the differing quality of the evidence on that count.
81. [81]
    Unlike the remaining counts, there was significant other evidence materially relevant to this count.
82. [82]
    The preliminary complaint evidence of the guidance officer and as contained in the admitted conversation with the officer of the Department of Child Safety was consistent with X’s account of this occasion.  The appellant’s acceptance, in his interview with police, that an occasion when X caught him masturbating “may have happened” also provided support for X’s account being reliable and credible.
83. [83]
    Although the appellant expressly denied that he would have been caught a second time, it was open to the jury to reject that assertion.  Both the guidance officer’s evidence and the departmental officer’s admitted accounts were consistent with X’s evidence that it had happened twice, on the same night.
84. [84]
    Second, the verdict of guilty of count 8 was not unreasonable.  A consideration of the record as a whole supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt of count 8, beyond reasonable doubt.  Whilst the jury obviously had a reasonable doubt as to X’s reliability in respect of the occasions that are the subjects of the remaining counts, the quality of the evidence on count 8 was materially different.
85. [85]
    Not only was there an internal consistency in X’s evidence as to this count, the preliminary complaint evidence of both the guidance officer and the departmental officer’s admitted account was consistent with X’s evidence.  Further, the appellant’s acceptance, that an occasion of X catching him masturbating “may well have happened”, supported X’s evidence in a material way.
86. [86]
    In respect of the application for leave to appeal against sentence, I would grant leave to appeal against sentence, but would dismiss the appeal.
87. [87]
    The jury’s verdict of guilty of only count 8 was consistent with the jury having had a doubt, overall, as to the reliability of X’s evidence, except where it was supported by other evidence, in material respects.  In the case of count 8, some support came from the appellant’s admission that such an occasion “may have happened”.  However, that admission was limited to one occasion.  There was an express denial as to a second occasion, on the same night.
88. [88]
    The obvious doubt the jury had as to X’s overall reliability and credibility, meant that the sentencing judge was required, on sentence, to make positive findings as to the factual circumstances of count 8; whether the appellant was to be sentenced on the basis that it had happened once, as admitted in his interview with police, or twice, as asserted by X; and to give reasons therefor.
89. [89]
    Contrary to that obligation, the sentencing judge did not specifically address those competing bases.  However, a consideration of the sentencing remarks as a whole, supports two conclusions.  First, that the sentencing judge did find that the factual basis on which the appellant was to be sentenced was that count 8 involved two occasions of exposing his penis, on the same night.  Second, that the sentencing judge did find that that basis was consistent with the jury’s verdict.
90. [90]
    Having regard to the jury’s verdicts as a whole, both the factual basis upon which the sentencing judge sentenced the appellant and the conclusion that that basis was consistent with the jury’s verdict were correct.  In fact, to have sentenced the appellant on the basis that he had exposed his penis to X only once, would be inconsistent with the jury’s verdict.
91. [91]
    Once that conclusion is reached, the failure to specifically address the competing bases for sentence, is not productive of error.
92. [92]
    Further, for the reasons given by Morrison JA, no error is shown in the sentencing judge’s conclusion that exceptional circumstances had not been established.
93. [93]
    As no error has been established in the exercise of the sentencing discretion, any appeal against sentence must fail.

Orders

94. [94]
    I would order:

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be granted.
3. The appeal against sentence be dismissed.

95. [95]
    CROWLEY J:  I agree with Morrison JA.