R v FBG[2024] QCA 131

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Hindman J and with her reasons.
2. [2]
   HINDMAN J:  The applicant pleaded guilty in the District Court to an indictment^[1] charging him with:

   1. one count of maintaining a sexual relationship with a child under 16 years (domestic violence offence) (count 1);
   2. thirty-seven counts of taking an indecent photograph of a child under 12 years under care (domestic violence offence) (counts 2-37, 39);
   3. one count of rape (domestic violence offence) (count 38);
   4. one count of possessing child exploitation material  (count 40);
   5. one count of using a carriage service to access child pornography material (count 41);
   6. one count of using carriage service to access child abuse material (count 42).
3. [3]
   There were two child complainants and the relevant offending occurred in the period between 28 October 2015 and 14 August 2020.
4. [4]
   The applicant was sentenced to concurrent terms of imprisonment on all counts (except counts 2-33 that were convictions, convictions recorded, not further punished^[2]), the longest being a term of 11 years on count 1 (the maintaining count).  That offence was necessarily declared to have been a serious violent offence according to s 161A(a) of the Penalties and Sentences Act 1992 (Qld).  A period of 1,170 days was declared as pre-sentence custody that had been served.
5. [5]
   The application is for leave to appeal against the head sentence of 11 years, to the end that the sentence should be reduced to eight years, with no serious violent offence declaration.  The proposed appeal is on the grounds that (1) the learned sentencing judge failed to make any or a proper allowance for the plea of guilty, the applicant’s rehabilitation and the bio-security measures imposed during the pandemic, and (2) the sentence is manifestly excessive.

Facts

6. [6]
   The facts of the offending were not in dispute.  There were three sets of offending, each serious on its own.  The offending was detected by police by accessing images located on digital devices owned by the applicant.
7. [7]
   First, in respect of counts 1-33, the applicant sexually offended against his biological nephew who was aged between seven and ten years old at the time.  The offending came about in circumstances where the parents of the child had trusted the applicant to babysit him.  Some of the offending occurred when the applicant had taken the child to places overnight without the parents’ knowledge.
8. [8]
   The applicant maintained a relationship with the child over a period of two years and eight months by:

“Putting his tongue in (the child’s) mouth and kissing him, touching (the child’s) penis, exposing his own penis to (the child), having (the child) expose his penis, buttocks, and anus, to himself.”^[3]

9. [9]
   During the maintenance of that relationship, offending further occurred whereby the applicant:

   1. ejaculated on the child;
   2. put his penis in the child’s mouth;
   3. posed the child in sexualised positions (including those mentioned in (a) and (b) above), including displaying the child’s anus and penis, to photograph;^[4]
   4. threatened the child with adverse outcomes if the offending was disclosed.
10. [10]
    Second, in respect of counts 34-39, the applicant sexually offended against the son of his cousin, who was aged two years old.  The offending came about in circumstances where the applicant had been staying with the cousin’s family over a number of days.  This offending occurred the year after contact with the older child had ceased.
11. [11]
    On four occasions the applicant took pictures of the child’s erect penis during a nappy change.  On another occasion he inserted his finger into the child’s anus and photographed same.
12. [12]
    Third, in respect of counts 40-42, the applicant possessed child exploitation material and used a carriage service to access child pornography and child abuse material.  Some 7,100 images and videos were located.  The child victims were predominantly males between infants and eight years of age.  The material showed anal sex, oral sex, and vaginal rapes of female children, by adult offenders.  A small portion of the material was particularly heinous showing bondage, discipline, sadism, masochism, and humiliation of children.  In some accompanying audio, children crying in pain could be heard.  The collection of material had been started by the applicant about two years prior to the first of the contact offending.
13. [13]
    The applicant admitted he had been looking at such material for three years and had gotten worse.  He was a member of 66 online group chats discussing the abuse of children.
14. [14]
    In her sentencing remarks the learned sentencing judge recorded the above facts and others.  She noted:

    1. the gross breach of trust of both the two complainant children and their parents that was fully evident in the photographs taken by the applicant;
    2. the adverse effects on the older child;
    3. the threats made to the older child in order to keep the offending against the older child hidden;
    4. the pleas of guilty, whilst timely, were in the face of overwhelming evidence;
    5. lies told to police by the applicant about not having touched any child; initial lies by the applicant about there being no rape (penetration) of the younger child;
    6. the applicant provided incorrect passwords to his electronic devices to police;
    7. the applicant had no prior criminal history;
    8. the offending took place over five years; it was very bad, deliberate and secretive;
    9. the child exploitation material adversely affected thousands of children, some in particular violent and degrading ways, and the applicant’s downloads and participation in chats concerning such material with like-minded people would tend to encourage more of that activity;
    10. the applicant had himself as a child been the victim of sexual abuse by his older brother;
    11. the pre-sentence custody involved time in both COVID-19 lockdowns and in protective custody;^[5]
    12. positive features of the applicant including productive time in custody, personal changes, remorse, family support, undertaking counselling, and improved insight.
15. [15]
    Importantly, the learned sentencing judge noted that the three sets of offending were each sustained and serious in their own right.  She determined that the most appropriate way to reflect the totality of all offending was through a head sentence attaching to the maintaining offence.  There is no complaint about that not being the appropriate approach for her to have taken.

The first ground of appeal

16. [16]
    The first ground of appeal is that the learned sentencing judge failed to make any or a proper allowance for the pleas of guilty, the applicant’s rehabilitation and the bio-security measures imposed during the pandemic.
17. [17]
    The applicant’s complaint appears to be that the learned sentencing judge did not make it clear (expressly or implicitly) what actual amelioration occurred in the sentence to account for the applicant’s pleas of guilty, his rehabilitation and the bio-security measures imposed during the pandemic.  However, there is no requirement for the judge to have specified what the sentence would have been but for such amelioration.  To do so with any mathematical precision would have been inconsistent with the instinctive synthesis a sentencing judge is required to undertake when arriving at an appropriate sentence.
18. [18]
    The totality of the offending, absent mitigating features, readily could have supported a sentence of imprisonment in excess of 11 years (for the reasons stated in respect of the second ground of appeal).  The judge expressly noted that allowance had been made for the pleas of guilty and the efforts towards rehabilitation.  The judge noted the more onerous conditions under which the applicant had spent time in pre-sentence custody, indicating that had been in a factor considered in arriving at the head sentence.  A proper allowance for the relevant matters is evident.
19. [19]
    The first ground of appeal is not made out.

The second ground of appeal

20. [20]
    The second ground of appeal is that the sentence is manifestly excessive.
21. [21]
    The applicant points to a number of suggested yardsticks which are said to demonstrate that the sentence imposed on the applicant is manifestly excessive including R v MBC [2008] QCA 263; R v PAK [2010] QCA 187; R v SAR [2005] QCA 426; R v GAE ex-parte Attorney-General (Qld) [2008] QCA 128.
22. [22]
    The respondent points to a number of suggested yardsticks which are said to demonstrate that the sentence imposed on the applicant is not manifestly excessive including R v MBJ [2010] QCA 211; R v EP [2020] QCA 109; R v McCoy [2020] QCA 59; R v SDR [2022] QCA 93.  Cases specifically referring to child exploitation material relied upon by the respondent were R v Davis [2012] QCA 324; R v Vantoosten [2009] QCA 54; R v Cardwell [2021] QCA 112.
23. [23]
    As is the case in nearly every appeal that comes before this Court, none of the authorities provide a completely comparable factual setting to the current matter.  Of course comparable factors such as the number of complainants, age of the complainants, relationship between the complainants and the offender, nature of the offending, timeframes over which the offending has occurred, any violence or particular depravity in the offending, prior criminal history of the offender, other mitigating features of the offender, and so on, will ultimately be relevant to gaining a sense about whether an authority contains more serious or less serious circumstances/criminality overall so to guide an appropriate sentence.  But all authorities provide only yardsticks and the sentencing judge is always to reach an appropriate sentence for the particular case being considered.
24. [24]
    It is sufficient in my view in terms of yardsticks to focus on R v MBJ to support the conclusion that the applicant’s sentence was within range in this case.  The overall circumstances/criminality associated with the applicant’s case in my view is more serious than that in R v MBJ.
25. [25]
    In R v MBJ, the Court of Appeal (by majority) did not interfere with sentence of 13 years imprisonment imposed for a penile rape of a male child.  Relevant features of that case included:

    1. the offender was 21 years old at time of offending;
    2. victim was the 3 year old nephew of the offender;
    3. one incident of penile anal rape, physical injuries suffered by child (four tears);
    4. offender in position of trust (residing in same home);
    5. offender initially denied offending, later said under influence of drugs at time;
    6. early guilty plea;
    7. offender had no relevant criminal history;
    8. offender expressed remorse;
    9. likelihood of reoffending dependant on treatment success.
26. [26]
    Whilst Muir JA considered that the sentence was manifestly excessive, the Chief Justice and Fraser JA concluded otherwise.  Fraser JA noted at [41] that whilst the sentence might be considered severe it was within the range of penalties that were within the learned sentencing judge’s discretion.
27. [27]
    The same might be contended for here.  But severe or not, when regard is had to all of the matters relevant to sentencing the applicant, the sentence was within the sentencing judge’s proper exercise of discretion and was not manifestly excessive.  There was no misapplication of principle; the sentence was not unreasonable or plainly unjust; the sentence was broadly consistent with appropriate yardsticks.

Order

28. [28]
    I would order that the application for leave to appeal be refused.
29. [29]
    CROWLEY J:  I agree with Hindman J.