R v MEC[2024] QCA 203

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant was convicted on 13 March 2023 after trial in the District Court before a jury of three counts of indecent treatment with circumstances of aggravation (counts 1, 10 and 11) and seven counts of rape (counts 2-5 and 7-9).  Each of counts 10 and 11 had the additional aggravating circumstance of being a domestic violence offence.  The appellant was sentenced to 18 months’ imprisonment for count 1, 10 years’ imprisonment for count 2, five years’ imprisonment for each of counts 3-5, 7 and 8, 11 years’ imprisonment for count 9, three years’ imprisonment for count 10 and two years’ imprisonment for count 11.  The sentences for the other counts were to be served concurrently with the sentence imposed in relation to count 9.  It was declared that counts 2 and 9 were serious violent offences.
2. [2]
   The complainant for each count was the appellant’s daughter who was born in 2002.  Count 1 was particularised as being committed on a date unknown when the complainant was six years old.  Each of counts 2-5 was particularised as being committed on dates unknown between 29 October 2008 and 10 April 2012.  Each of counts 7-9 was particularised as being committed on a date unknown between 3 May 2012 and 6 May 2013.  Count 10 was particularised as being committed on a date unknown between 23 April 2013 and 28 August 2013.  Count 11 was particularised as being committed on a date unknown between 27 August 2013 and 31 December 2015.
3. [3]
   The grounds of appeal are:

1. There was a miscarriage of justice by the learned trial judge:
   1. a.
      failing to direct the jury that they needed to be satisfied of the truthfulness, reliability and honesty of the complainant’s evidence beyond reasonable doubt, before they would convict on any count; and/or
   1. b.
      misdirecting the jury that the issue as to whether the complainant’s credibility or reliability constitutes reasonable doubt was not really an issue for them.
2. The verdicts are unreasonable and cannot be supported having regard to the whole of the evidence.
3. The sentence imposed is manifestly excessive in all the circumstances.

The trial

4. [4]
   Admissions were made to facilitate the trial.  They included admissions as to where the family lived between various dates and the dates of enrolment of the complainant at various schools.  Admissions were made as to the dates on which the complainant was recorded absent from school between 31 July 2012 and 21 August 2013.  The complainant had relocated with her mother to a northern regional centre.  It was an admitted fact that the complainant attended a specified school in that regional centre between 28 August 2014 and 15 July 2015.  The dates on which the appellant stayed at a resort in the northern regional centre were admitted as between 2 and 5 May 2014 and 2 and 9 February 2015.
5. [5]
   Apart from the complainant, the prosecution called evidence from her mother, her mother’s partner since 2013, the complainant’s boyfriend and his mother, and one of the complainant’s school friends that was mainly directed at preliminary complaint evidence.  The investigating police officer Senior Constable Allison gave evidence of some of the steps she had undertaken in the investigation, including taking photographs of the various addresses at which the complainant and her family had resided, ascertaining the period of their tenancies from the rental agencies and the dates at which the complainant attended various schools.
6. [6]
   The appellant and one of his sons gave evidence.  The appellant denied he committed any of the alleged sexual acts.
7. [7]
   The issue at the trial was therefore whether the jury would be satisfied beyond reasonable doubt that the incidents the subject of each of the counts occurred as alleged by the complainant.

The complainant’s evidence

8. [8]
   The complainant’s first memory of being sexually abused by her father was when she was six years old and woke up with his hand down her pants (count 1).  It was skin on skin contact.  The complainant did not recall any other incidents at that house.
9. [9]
   It was an admitted fact that the family had moved on 29 October 2008 to another suburb where they remained for about three and one-half years.  The complainant remembered her first bedroom at that house had a wooden toy box.  She was in the bedroom and her father came in and asked her to sit on top of the toy box and take her pants down.  He turned her around and tried to penetrate her vagina with his penis which really hurt (count 2).  She felt a burning sensation.  She could not remember feeling his penis go inside her vagina but remembered that it hurt a lot.  He turned her around and asked her to put her mouth on top of his penis which she did and he ejaculated into her mouth and told her to swallow it (count 3).  (The complainant’s mother’s evidence was to the effect that the complainant had a toy box in her bedroom at this house.) The appellant told the complainant that this was normal conduct as that was what fathers and daughters did, it was their secret and not to tell anyone.  The complainant believed the appellant.
10. [10]
    On another occasion at the same house, the appellant called the complainant into his bedroom where he was lying on the bed and asked her to pull her pants down.  He picked her up and put her on the bed in between his legs and asked her to put her mouth on his penis which she did (count 4).  He also asked her to put her hand on his penis and move her hand at the same time, as he had his hand on her head, forcing her head up and down on his penis.  She remembered gagging and it hurt her throat.
11. [11]
    Again, at the same house but when the complainant had moved to a different bedroom, she was in her bedroom on the bed when her father came in, pulled his pants down and asked her to put her mouth on his penis (count 5).  He put his hand on the back of her head and moved her head up and down on his penis.  (The complainant’s mother confirmed that the complainant did move bedrooms in this house.)
12. [12]
    In the backyard of the same house, there was a caravan.  The complainant was inside the caravan with the appellant.  She was sitting on the bed, when he came over and asked her to perform oral sex on him which she did.  (This was an uncharged act.)  The complainant had remembered that incident only when she spoke to the prosecutor the previous day.  The complainant explained that when she was shown a photo of the backyard and the corner where the caravan used to be, it triggered that memory.  The complainant gave evidence of other uncharged acts that happened when she lived at this house.  Her father used to take her for a drive in his four wheel drive vehicle at nighttime and park in bushland that was like a national park, push his seat back and the complainant would get in between his legs and perform oral sex.  The complainant identified the national park where these incidents occurred from the photograph that was tendered as exhibit 9.
13. [13]
    It was an admitted fact that between 3 May 2012 and 24 April 2013 the appellant, the complainant and the rest of the family lived in a different locality (the next locality) and the complainant’s enrolment was changed to a school at the next locality.  The first time that the complainant can remember that the appellant did something to her at the house in the next locality was an occasion when her mother was not home but some of her brothers were and they were cleaning the house, when her father took her upstairs to his bedroom.  He had a vacuum cleaner with him and turned it on and locked the door of the bedroom.  He was on the bed and asked the complainant to perform oral sex on him which she did and he ejaculated into her mouth (count 7).
14. [14]
    There was another occasion at the house in the next locality, when the complainant had fallen walking to catch the bus to school with her brothers and rolled her ankle.  Her brothers took her back to the house where the appellant bandaged her ankle.  The appellant called the complainant into his room.  He was on the bed and was naked.  He asked her to take her clothes off and she had to perform oral sex on him again but he did not ejaculate (count 8).  He then put her on top of him and tried to put his penis inside her anus (count 9).  It hurt her so much that she hit him and he threw her off him onto the other side of the bed.  The complainant went into the ensuite to the toilet and there was blood when she wiped her bottom.  The complainant was in a lot of pain for hours after that incident.  The complainant did feel the appellant’s penis go inside her anus on this occasion.  The appellant reminded the complainant that this was normal conduct and not to tell anyone.  The complainant did not tell anyone as she believed that it was normal.
15. [15]
    It was around the complainant’s birthday in 2013 that the complainant’s parents separated and the appellant moved to a different house at the next locality.  It was an admitted fact that he resided at that house between 28 May 2013 and 14 March 2014.  On one occasion the complainant stayed over at her father’s new residence.  They were in his room, when he got the complainant to use a sex toy on his penis and he ejaculated on it (count 10).  She described the sex toy as “being like a skin colour and like rubbery” and that it had a hole in it.  (The complainant’s mother gave evidence that she had sex toys that were missing when she relocated to the northern regional centre and one of the toys that was missing was a fake vagina with a mini vibrator.)
16. [16]
    The complainant could recall two occasions when the appellant came to the northern regional centre after the complainant’s mother had relocated there with her new partner and the children including the complainant.  On one occasion when the complainant visited the appellant at the resort at which he was staying in the northern regional centre, the appellant asked her to go on top of him on the bed.  He had his clothes on and she was sitting on top of his pelvis (count 11).  When he tried to do something, the complainant refused because she knew by then that it was wrong.  Nothing happened after that.
17. [17]
    When the complainant’s mother could no longer look after her children in 2019, the complainant and her brothers left the northern regional centre and returned to live with the appellant.  The complainant met her boyfriend in 2019.
18. [18]
    The complainant gave evidence about the complaints she made to others about the appellant’s offending.  She spoke to a school friend in the northern regional centre.  The complainant was upset about something and told the school friend that the appellant would touch her.  The complainant did not say exactly what the appellant did when he would touch her.  While at school, she emailed a boy who she was dating at the time and told him that she was not a virgin, hinted that it was her father and told the boy that her father had done some sexual stuff to her.  The emails were discovered by the complainant’s mother and her partner.  The complainant then told her mother that the appellant had touched her inappropriately and “did really bad things” to her but her mother did not believe her.  Her mother told her that if it was really true, she should call the police.  The complainant did not want to do that because she was scared to do so.
19. [19]
    When giving evidence of the complaints she had made to others, the complainant remembered that she told her boyfriend of a shower incident about which she had not said anything previously.  She did not say anything about it, because she could not remember at which household it happened.  She also did not know how old she was.  She remembered going for a shower with her father, he was washing her with soap and he put his fingers inside her vagina.  When the complainant got upset at her boyfriend’s family home when he was trying to get his parents to agree to the complainant moving in, the complainant told her boyfriend’s mother everything about the appellant’s offending.  The complainant went to the police in July 2021 to report the appellant’s offending.  She was accompanied by her boyfriend’s mother.
20. [20]
    In cross-examination, the complainant agreed that at times between 2019 and 2021, the appellant would not let her boyfriend sleepover in the complainant’s bedroom.
21. [21]
    In cross-examination, the complainant agreed that, at some stage after they moved to the northern regional centre, her mother prevented her from having contact with the appellant by removing her social media accounts.  The complainant created an account in a fake name and, at least from March 2016, she exchanged messages with the appellant.  She never mentioned in these messages the allegations that he had touched her and often signed off the messages expressing her love for her father.  The complainant remembered talking to her father about getting a car but did not remember asking him to pay for it.
22. [22]
    It was put to the complainant in cross-examination that she did not make the allegations before July 2021, as she made the allegations when her father objected to her moving in with her boyfriend.  The complainant disagreed with that proposition and denied that she made false complaints against the appellant.
23. [23]
    In re-examination, the complainant was asked about the fake social media account and why she told the appellant that she loved him and had contact with him when he had done the things to her that were the subject of the trial.  The complainant responded:

“Because, at the time, I was struggling to feel loved in the household that I was at because there was so much stuff happening. I won’t lie, I felt neglected in that household, and, I will be honest, I was desperate for any sort of love and attention. And that may not have been appropriate, but as a little girl all you want is to be loved, and if you can’t be loved by the people that are - you’re living in their household with, then I would do anything to feel that.”

24. [24]
    As the complainant did not give any evidence of the conduct that constituted count 6 on the indictment, the prosecution entered a nolle prosequi in respect of that count at the conclusion of the prosecution case and the appellant was discharged in respect of count 6.  Count 6 had been particularised as occurring at the next locality when the appellant grabbed the complainant’s hand and put it on his penis.

Preliminary complaint evidence

25. [25]
    The complainant’s mother gave preliminary complaint evidence as follows.  She had a conversation with the complainant when the complainant was 14 years old about some emails she saw on the complainant’s school laptop that the complainant was exchanging with a male school friend.  The complainant’s mother’s partner was also present for the conversation.  In that conversation the complainant disclosed that she had been raped by the appellant and that he had touched her body.  The complainant’s mother told her to call the police about it if she was telling the truth and the complainant did not do so.  The complainant’s mother’s partner gave evidence to similar effect about the conversation.  He also said that when the complainant was asked about the emails, she got upset and started crying and it was then she made the allegations about her father.
26. [26]
    The complainant’s boyfriend’s preliminary complaint evidence was as follows.  It was early 2021, when the complainant told him that the appellant had sexually abused her.  When he asked her about the ways in which the appellant touched her, she said that her father raped her.  The boyfriend wanted the complainant to move into his family’s house and started discussions with his parents.  There was a meeting involving the complainant and him with his parents.  The complainant became upset and walked away from the meeting.  His mother followed her and talked to her.  The complainant ended up moving into their house.  Before the complainant went to the police, the complainant had told her boyfriend that there were multiple occasions at the house (where the family had resided for three and one-half years) and about the appellant taking the complainant away from the house in his car and she had to give the appellant oral sex.
27. [27]
    The complainant’s boyfriend’s mother’s preliminary complaint evidence included the following.  There was a family meeting in February 2021 involving her husband and her with their son and the complainant about whether the complainant could move in with them.  When her husband and her said “No”, the complainant got up, was crying and left the room.  Her son said to his mother that, if she knew the truth, it would change her mind.  The mother followed the complainant and spoke to her and the complainant told her that she had been sexually abused from around the age of five or six years until her parents broke up when she was 11 years.  She said there had been “full blown intercourse”.  The boyfriend’s parents then agreed to the complainant moving into their house.
28. [28]
    The complainant had further conversations with her boyfriend’s mother before she went to the police in July 2021.  The boyfriend’s mother remembered the complainant saying something about a toy box and that the appellant tried to penetrate her vaginally but could not get his penis in all the way, it was hurting her and then he turned it into making her perform oral sex and made her swallow after he had ejaculated into her mouth.  After the appellant had penetrated the complainant vaginally, he would force her into the shower and shower with her and clean her vagina out with soap which would burn and sting her.  The complainant also described a sex apparatus toy that was like a fake vagina that the appellant would make the complainant perform on him.  The complainant had bled from her bottom.  In response to the boyfriend’s mother’s inquiry whether it was always intercourse, the complainant said that it was either intercourse or oral sex and it happened in her home.  The appellant would also take her into the bushland and he would make the complainant sit on his lap or it would be oral sex.  In cross-examination, the boyfriend’s mother clarified that the complainant did not say they had sexual intercourse in the vehicle but she said he would make her sit on top of his penis in the vehicle or oral sex.  The boyfriend’s mother conceded that she had said in her police statement that the complainant told her that the appellant would have sexual intercourse with her in the vehicle or oral sex and agreed with what was in her statement.
29. [29]
    The complainant’s school friend’s preliminary complaint evidence was as follows.  When she was in year 11 in 2018 with the complainant, one of their friends was touching and massaging the complainant’s leg and she could see that the complainant was “a bit uncomfortable” and “cringing”.  When they were alone, the complainant told the school friend about how when she was little her father “would be touchy on her leg and stuff and wanted to go into the room” but the complainant ended up leaving before anything could happen.  The complainant said she told her mother and her mother did not believe her and did not do anything about it.

The evidence of the appellant and his son

30. [30]
    The appellant denied the complainant’s allegations and said that none of those incidents happened.  The complainant was unhappy with him in early 2021 when he refused to help her buy a car.  The appellant’s eldest son had a wooden toy box that was in his bedroom until it was moved downstairs into the lounge room at the house at which the family resided between 29 October 2008 and 1 May 2012.  The complainant did not have a toy box in her room until the house at the next locality when her grandfather or his father built a pink toy box similar to the eldest son’s toy box that was put into her bedroom.  Two photographs that had been uploaded on Facebook in June and December 2010 that showed the toy box in the lounge room at the family home were tendered as exhibit 14.
31. [31]
    The appellant’s eldest son gave evidence that when they went to the school when they resided at the house in the next locality, he could not recall the complainant doing damage to her ankle.  He was 98 per cent sure that she did not do anything to her ankle.  He identified the toy box in exhibit 14 as his toy box that was downstairs in the lounge room at the house in the next locality (which was inconsistent with the appellant’s evidence as to the lounge room of which house his son’s toy box was moved that was shown in those photographs).  The complainant had a toy box that was similar to his toy box but was light pink in colour.  He was not sure when she received that toy box.  His toy box was not in the complainant’s bedroom.

Ground 2 – Unreasonable verdicts

32. [32]
    The Court is required to undertake its own independent assessment of the evidence as a whole, taking into account that the evidence of the complainant was assessed by the jury to be credible and reliable, to determine, as a question of fact, whether the jury’s verdicts were unreasonable.  See M v The Queen (1994) 181 CLR 487 at 494‑495.  As was stated in Pell v The Queen (2020) 268 CLR 123 at [39]:

“The court examines the record to see whether, notwithstanding that assessment [by the jury that the evidence of the complainant was credible and reliable] – 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.”

33. [33]
    The appellant relies on 11 separate aspects of the evidence for the submission that the combination of them should have resulted in the jury entertaining a reasonable doubt regarding the complainant’s evidence and therefore been left with a reasonable doubt about the appellant’s guilt.
34. [34]
    The first aspect is that the complainant gave no evidence in relation to count 6 of indecent treatment alleged to have been committed at the house at the next locality.  After the appellant had been discharged in respect of that count, the trial judge informed the jury that the charge had been withdrawn, as the complainant had given no evidence in respect of that count and the jury were told to ignore count 6 for their purposes.  It was understandable that the appellant’s trial counsel did not cross-examine the complainant on her failure in evidence in chief to give evidence in relation to the incident that had resulted in count 6 on the indictment.  The consequence of that sound forensic decision is that there was no opportunity for the complainant to give an explanation as to why she did not give any evidence relevant to count 6.  It is therefore not appropriate to treat this as a discrepancy, as the reason for the failure to give that evidence is a matter of speculation.
35. [35]
    There are two aspects of count 2 that the appellant relies on.  The first aspect is that there was an issue of fact on which there was disputed evidence about whether a wooden toy box was located in the complainant’s bedroom at the house in which the family resided during the period relevant to count 2 of between 29 October 2008 and 10 April 2012.  Both counsel addressed the jury on the discrepancies in the evidence in relation to the toy box and its location.  The toy box shown in the photographs that were exhibit 14 was never identified by the complainant as the relevant toy box, as she was not cross-examined on the photographs, as they were only adduced into evidence during the appellant’s evidence.  The appellant’s evidence and his son’s evidence differed as to which house’s lounge room the toy box was located in.  The complainant’s evidence that the toy box was in her bedroom at the house at which she said the incidents the subject of counts 2 and 3 occurred was supported by some aspects of her mother’s evidence.  The quality of the evidence about the location of the toy box that was contrary to the complainant’s evidence does not suggest there should be any concern about the jury’s acceptance of the complainant’s evidence in this regard.
36. [36]
    The other aspect of count 2 which the appellant seeks to characterise as a discrepancy is that the complainant could not remember if the appellant’s penis penetrated her vagina to any extent.  It was to the complainant’s credit that she did not positively assert that the appellant had penetrated her when she did not remember that he did but instead gave compelling evidence about feeling a “burning sensation” and that “it hurt a lot” when the appellant tried to penetrate her vagina with his penis.  It is therefore not appropriate to treat this aspect as a discrepancy for the purpose of considering whether the verdicts were unreasonable.
37. [37]
    The fourth aspect relied on by the appellant is that her evidence about falling and hurting her ankle that preceded counts 8 and 9 was inconsistent with her brother’s evidence that he was 98 per cent sure that she did not fall over and hurt her ankle at any time.  The complainant’s evidence was supported by her mother’s evidence to some extent.  This was a matter on which both counsel addressed arguments to the jury.
38. [38]
    The fifth aspect was that on the day before the commencement of the trial, the complainant disclosed for the first time she had performed oral sex on the appellant in the caravan in the backyard of the residence where the family resided for three and one-half years.  She provided an explanation for why her memory about this incident was triggered when shown a photograph of the residence that reminded her of the caravan that had been parked in the backyard.  The late disclosure of this uncharged act and the complainant’s explanation for the late disclosure was addressed by both counsel to the jury and was a matter for the jury to assess.
39. [39]
    The sixth aspect relates to the complainant’s disclosure for the first time in her evidence of being in the shower with the appellant, he was washing her with soap and he put his fingers inside her vagina.  She also gave an explanation for why she had not previously disclosed that conduct (apart from making a preliminary complaint) which was that she could not remember at which house it happened or how old she was.  When giving evidence of the preliminary complaints she made, the complainant thought she had told her boyfriend about the shower incident.  It was the boyfriend’s mother who gave evidence of the complainant making a complaint to her about shower incidents involving the appellant.  Again, the evidence about the shower incidents was the subject of addresses by both counsel to the jury and it was for the jury to assess the complainant’s explanation for why the shower incidents were not included in her police statements.
40. [40]
    The seventh, eighth and ninth aspects relate to inconsistencies between the complainant’s evidence and the evidence of the same matters that were the subject of preliminary complaint by the complainant to other persons.  The assumption made by the appellant’s counsel in making the submissions on these aspects is that the evidence of each preliminary complaint witness accurately records the information given by the complainant to that witness by way of preliminary complaint.  In fact, the prosecutor at the trial addressed the jury on the basis that the complainant’s boyfriend’s mother must have been mistaken about some aspects of what she recalled the complainant had told her about the appellant’s conduct.  For example, the complainant never claimed in her evidence that the appellant had sexual intercourse with her in the vehicle or made her sit on top of his penis when he took her to the bushland, but the complainant’s boyfriend’s mother’s evidence was that the complainant did tell her that.  The complainant’s evidence at the trial was unwavering that she would perform oral sex on the appellant on these occasions.
41. [41]
    It appeared from the complainant’s evidence that the person with whom she shared the most details about the appellant’s offending was her boyfriend’s mother.  According to her boyfriend’s mother, the complainant told her about the toy box incident, another occasion when the appellant ejaculated in the complainant’s mouth, being showered by the appellant who would clean out her vagina, using the sex toy that was like a fake vagina on the appellant, the complainant had bled from her bottom and being taken to the bushland.  The discrepancies in the details between the complainant’s evidence at the trial and the complainant’s boyfriend’s mother’s evidence of the preliminary complaints to her by the complainant were of little significance when so much of the respective evidence given by them was consistent.  In any case, both counsel made submissions to the jury about the discrepancies in the preliminary complaint evidence now relied on to pursue this ground of appeal and they were matters for the jury to assess.
42. [42]
    In relation to the tenth aspect, it was for the jury to assess the complainant’s failure to take the opportunity offered by her mother in 2015 of then telephoning the police about the appellant’s conduct and her explanation for that failure.  This was a matter of which the jury had the benefit of arguments from both counsel.
43. [43]
    The eleventh aspect was the significance of the complainant using a fake social media account from 26 March onwards to contact the appellant because she was otherwise prevented from doing so by her mother.  The complainant accepted that in these conversations she never mentioned any offending and signed off the messages saying, in effect, that she loved her father.  The complainant’s evidence in re-examination as to the explanation for doing so was a matter for the jury to consider in the assessment of the complainant’s evidence.  This was another matter on which the jury had the benefit of the addresses by both the prosecutor and the appellant’s trial counsel.
44. [44]
    The complainant’s account of the offending that was the subject of counts 1-5 and 7‑11 was compelling for its detail and the consistency of her evidence in chief and cross-examination about that offending.  It was well open to the jury to be satisfied beyond reasonable doubt of the uncharged acts, particularly the oral sex performed by the complainant on the appellant in his vehicle when he drove her to the bushland, that demonstrated the sexual interest of the appellant in the complainant.  There is nothing raised in the identification of the matters relied on as discrepancies in the evidence for the purpose of arguing the unreasonable verdict ground that was not traversed before the jury.  An assessment of the sufficiency and the quality of the whole of the evidence does not raise any concern about the jury’s guilty verdicts.  On the whole of the evidence it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was convicted.  The guilty verdicts were not unreasonable and were supported by the evidence.
45. [45]
    The appellant does not succeed on ground 2.

The summing up

46. [46]
    The trial judge gave the usual directions about the burden and standard of proof, including the usual explanation of what is required for the prosecution to prove the guilt of a defendant beyond reasonable doubt of a particular offence:

“This means that in order to convict, you must be satisfied beyond reasonable doubt of every element that goes to make up that particular offence and I will explain the elements of these charges to you in a little while. It is for you to decide whether you are satisfied beyond reasonable doubt that the Prosecution has proved the elements of the offence under the consideration. If you are left with a reasonable doubt about guilt, then, of course, your duty is to acquit, in respect of that charge. That is, to find the defendant not guilty.

But if you are not left with any such doubt, then your duty is to convict, that is, to find him guilty of the charge in question.”

47. [47]
    In giving the usual direction appropriate where a defendant gives evidence or calls evidence at the trial, the trial judge repeated that the prosecution had the burden of proof:

“As I have said, the Prosecution has the burden of proving each of the elements of each of the offences beyond a reasonable doubt, and it is upon the whole of the evidence that you must be satisfied to that standard that the Prosecution has proved the case before the defendant may be convicted of whatever charge you are then considering.”

48. [48]
    The trial judge than gave the Liberato direction which included the following:

“The proper approach is to understand that the Prosecution case depends upon you, the jury, accepting that the evidence of the Prosecution’s principal witness, that is the complainant, was true and accurate beyond a reasonable doubt, despite the sworn evidence by the defendant and the witness that was called on his behalf. So it follows that you do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.”

49. [49]
    After explaining that the jury must consider each charge separately in evaluating the evidence relating to that charge to decide whether the jury was satisfied beyond reasonable doubt that the prosecution had proved its essential elements, the trial judge gave the Markuleski direction:

“But if you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence, in relation to one or more of the counts, whether by reference to her demeanour or for any other reason, you must take that into account in assessing the truthfulness and reliability of her evidence, generally. Your general assessment of the complainant as a witness will be relevant to all of the counts, but you will have to consider her evidence in respect of each count when considering that count.”

50. [50]
    In giving the usual direction about a potential motive or motives for the complainant to lie about the allegations, the trial judge stated:

“Now, if you reject these potential motives to lie, put forward on behalf of the Defence, just remember that does not mean that the complainant is therefore telling the truth. Remember, it is for the Prosecution to satisfy you that the complainant is telling the truth, because the Prosecution has the burden to satisfy you beyond reasonable doubt of the [guilt] of the defendant.”

51. [51]
    When giving the appropriate direction for the evidence adduced of uncharged acts, the trial judge explained:

“You can only use this other evidence, though, if you are satisfied beyond reasonable doubt that the defendant did act in the way alleged on those occasions, and that the conduct demonstrates that he had a sexual interest in the complainant, which he was willing to pursue.

If you are not satisfied of those things beyond reasonable doubt, then that may affect your assessment of the complainant’s evidence about the acts which are the subject of the offences with which he is charged.”

52. [52]
    The trial judge continued with the direction for the circumstance where the jury was satisfied that one or more of the uncharged acts did occur and that the uncharged act or acts demonstrated the appellant’s sexual interest in the complainant:

“And if you are satisfied that one or more of these other acts did occur, and that the conduct does demonstrate a sexual interest of the defendant in the complainant, it does not follow that the defendant is guilty of the offences with which he is charged. You cannot infer only from the fact that this other conduct occurred that the defendant must have done the things with which he is charged. You must still decide whether, having regard to the whole of the evidence, the offences charged have been proved to your satisfaction beyond reasonable doubt.”

53. [53]
    In relation to count 2, because the complainant did not know whether penetration of her vagina occurred but only described what she felt, the jury was directed that the prosecution relied on a circumstantial case for the element of penetration for count 2.  The trial judge confirmed that “before any person can be convicted of any offence, every element has to be proved beyond reasonable doubt” and therefore the element of penetration had to be proved beyond reasonable doubt.  The trial judge gave the usual circumstantial evidence direction in respect of count 2 and stated:

“If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. And this simply follows from the requirement that guilt must be established beyond reasonable doubt. So if the inference of guilt is the only rational inference open, then, of course, you could convict; but if there was a rational inference inconsistent with guilt, then your duty would be to acquit of count 2, the charge of rape.”

54. [54]
    The trial judge then turned to the elements of the offences.  He explained to the jury that all criminal offences are made up of elements and stated:

“And before any person can be convicted of any criminal offence, the fact-finding tribunals - so in this case, that’s you - must be satisfied beyond reasonable doubt of every element that goes to make up the offence in question. So these are the things that the Prosecution have to prove beyond reasonable doubt before you could convict.”

55. [55]
    The trial judge then proceeded to explain the elements for each of the different offences on the indictment.  In relation to count 2, the trial judge noted that, as the complainant’s age was under 12, she was incapable at law of giving consent so that element of the offence of the rape was not in issue in the trial.  The trial judge then noted that for count 2:

“The issue, of course, is whether you accept beyond reasonable doubt that the event, as alleged, occurred.”

56. [56]
    The trial judge then went on to deal with the issue of penetration for count 2 and the alternative offence of attempted rape.
57. [57]
    When the trial judge turned to counts 3-5 and 7 each of which alleged a rape committed by the insertion of the appellant’s penis into the complainant’s mouth, he summarised the elements for that offence, opening with the observation:

“So these are the elements, that is the things that the Crown must prove beyond reasonable doubt for counts 3, 4, 5 and 7.”

58. [58]
    Count 8 also was a rape alleged to have been committed by the appellant inserting his penis into the complainant’s mouth.  Even though the trial judge did not expressly refer to count 8 in this part of the summing up, the elements of that offence were clear enough from the direction given in relation to the other counts alleging oral rapes and the particulars for count 8.
59. [59]
    In dealing with count 9 which was the allegation of penile anal penetration, the trial judge listed the elements which “the prosecution must prove beyond reasonable doubt”.
60. [60]
    The trial judge then turned to the elements of counts 1 and 11.  The trial judge explained the circumstances of aggravation which had “to be proved beyond reasonable doubt”.  When the trial judge listed the elements of each of counts 1 and 11, he again noted that these were the elements the prosecution must prove beyond reasonable doubt.  The trial judge then outlined the elements of count 10.
61. [61]
    After dealing with the elements of the offences and at the commencement of summarising the submissions of counsel in their closing addresses, the trial judge stated:

“As I have already said, and I will say this now at the start of this part of my summing-up, it is quite apparent that the issue in contest in this trial is whether you are satisfied beyond reasonable doubt that the event, the subject of each of these charges, occurred as alleged beyond reasonable doubt. That is really the contest before you. There is not really a contest as to whether if you are so satisfied it was not indecent or that there was some lawful excuse or that she was over the age of whatever is alleged, it is really are you satisfied beyond reasonable doubt that it happened - that is the real contest.”

62. [62]
    The appellant’s trial counsel had submitted to the jury that the jury could not be satisfied that the complainant “is a witness who can be relied upon to that exacting standard, that is, she is not credible, accurate or reliable”.  In summarising the appellant’s trial counsel’s address, the trial judge used the language of the appellant’s trial counsel and reminded the jury:

“He submitted that you cannot rely on the evidence of the complainant beyond reasonable doubt, that she was not a credible, reliable or accurate witness.”

63. [63]
    After setting out the appellant’s trial counsel’s arguments in relation to counts 2 and 3 and referring to the photographs of the toy box (exhibit 14) which the trial judge noted had not been put to the complainant in cross-examination, the trial judge observed:

“Defence counsel really placed that evidence before you and then made the submission to you that, at the very least, the evidence would cause you to have a reasonable doubt about the complainant’s reliability in that regard.”

64. [64]
    The prosecutor had addressed the jury as follows:

“Now, you saw and heard testimony from [the complainant] yesterday and then when I said to you in my opening that she is the most important witness in this case, no one else saw what happened, so it boils down to her. And as his Honour said to you yesterday morning, you are the deciders of fact in this trial and it is a matter for you as to what you make of [the complainant’s] evidence, but you shouldn’t have any fear in coming to a conclusion that the defendant is guilty of these offences based on [the complainant’s] evidence, if you find her to be honest and reliable.”

65. [65]
    In summarising the prosecutor’s address, the trial judge noted that it was submitted that “you would accept that the complainant was an honest and reliable witness” but the prosecutor also acknowledged that the prosecution case “rests heavily on the complainant’s evidence”.
66. [66]
    The jury retired to consider their verdicts at 10.08 am on 9 March 2023.  There was a jury note at 12.56 pm that asked three questions about aspects of the evidence that resulted in the jury returning at 1.06 pm and passages from the evidence being read to them.  The jury retired again at 1.24 pm.  At 4.39 pm, they had a question “Can you please explain reasonable doubt again and in more depth?” and suggested that the question be clarified when they resumed deliberating on the following day.
67. [67]
    When the Court resumed on Friday, 10 March 2023, there was another question from the jury:

“Is it a matter of law or a matter of opinion whether the complainant’s credibility constitutes reasonable doubt? To further explain, there was mention of ‘if you believe the complainant to be truthful, reliable, honest, you will find the defendant guilty.’ Is this law or a matter of opinion?”

68. [68]
    The trial judge answered that question as follows:

“Well, the submission that was made to you by the Crown, ‘If you believe the complainant to be truthful, reliable, honest, you will find the defendant guilty,’ is the Crown’s submission to you. The Crown is submitting that upon your assessment of the complainant’s credibility, you would come to the conclusion that she was an honest, reliable, credible witness. Upon such a conclusion, you would then consider her evidence and if you are then satisfied based upon the evidence that you have accepted that each of the elements of the offence in question have been proved beyond reasonable doubt, you would convict. But the Crown acknowledges - and the Defence has addressed as well on the point - that the prosecution case rests upon the evidence of the complainant. That is quite obvious. But the issue as to whether the complainant’s credibility or reliability constitutes reasonable doubt is not really an issue for you.

You have to make an assessment of the credibility and reliability of the complainant’s evidence. That is a fact-finding job for yourselves. Upon conducting that exercise, you would then decide what evidence you accept and upon the evidence that you have accepted or reject, but on the evidence that you have accepted, you then consider have the Crown proved whatever charge we are considering to the requisite standard. But it is a question of fact, not of law, whether you find the complainant to be credible and reliable or not. That is a question of fact for you to determine. So does that answer that question? That is as far as I can explain it.”

69. [69]
    The trial judge also answered the question requesting an explanation about reasonable doubt in more depth at the same time and responded:

“Reasonable doubt means exactly what it says and what does or does not constitute a reasonable doubt is a question of fact for you, the jury, to determine. But I will remind you of the direction that I gave you in relation to reasonable doubt, and that is for the prosecution to discharge its burden of proving the guilt of the defendant in respect of whatever charge is under consideration, it is required to prove beyond reasonable doubt that he is guilty of that charge. This means that in order to convict, you must be satisfied beyond reasonable doubt of every element that goes to make up that particular offence.

Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the balance of probabilities. That is, the case must be proved to be more likely than not. In a criminal trial, the standard of satisfaction is much higher. The prosecution must prove the guilt of the defendant beyond reasonable doubt. It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences. If you are left with a reasonable doubt about guilt in respect of any charge, then of course, your duty is to acquit in respect of that charge. If you are not left with any such doubt, then of course, your duty is to convict in respect of the charge in question. So I do not know that I can take it any further. Otherwise, it is a question of fact for your determination.”

70. [70]
    The jury had not reached a verdict by lunchtime on 10 March 2023 and the trial judge adjourned the proceedings until the following Monday.  The jury reached their verdicts of guilty on all counts at lunchtime on 13 March 2023.

Ground 1 – Did the trial judge fail to give an essential direction or misdirect the jury?

71. [71]
    The fundamental feature of a criminal trial is that the prosecution must prove the defendant’s guilt of an offence beyond reasonable doubt and the prosecution does so by proving each of the elements of the offence (and excluding any defence) beyond reasonable doubt: see RPS v The Queen (2000) 199 CLR 620 at [22], Hargraves v The Queen (2011) 245 CLR 257 at [41]–[42] and De Silva v The Queen (2019) 268 CLR 57 at [9].
72. [72]
    Where the only evidence relevant to proof of guilt is a complainant’s evidence, the jury must be convinced of the reliability and credibility of the complainant’s evidence for the particular charge, before the jury could be satisfied that the prosecution had proved guilt of that charge beyond reasonable doubt.  The usual instructions given to a jury explain the jury’s task of assessing the reliability and credibility of each witness.  Even when the prosecution’s case for a particular charge depends solely on the complainant’s evidence of the offending conduct, the jury must assess the complainant’s evidence for reliability and credibility and determine which evidence (if any) of the complainant it accepts, so that the jury can consider whether the prosecution has discharged its burden of proving each of the elements of that offence beyond reasonable doubt.  In these circumstances, conviction requires the jury to be satisfied beyond reasonable doubt of the truth and accuracy of the complainant’s account of that offending.
73. [73]
    Particularly for sexual offences, where it is often the case that the only evidence that the prosecution is able to adduce about the conduct that constitutes the offence is from the complainant, there is a tendency for lawyers and judges to elide these steps by expressing the issue in terms that the jury must be satisfied of the reliability and credibility of the complainant’s evidence beyond reasonable doubt before the jury could bring in a verdict of guilty.  The standard of proof of beyond reasonable doubt applies to the jury’s consideration of whether the elements of the offence have been proved to that standard by the evidence which is accepted by the jury.  The standard of beyond reasonable doubt is not strictly appropriate to the concepts of the reliability and credibility of a witness’ evidence.  A complainant’s evidence may touch on peripheral matters that are not critical to the proof of a charge.  The assessment of the reliability and credibility of the witness’ evidence may result in acceptance of some of or all the evidence relevant to the particular charge and then it is a question of whether the evidence that is accepted by the jury proves the offence beyond reasonable doubt.  Referring to the reliability and credibility of a complainant’s evidence beyond reasonable doubt is a shorthand way of expressing the process that is required of the jury in relation to each charge.
74. [74]
    It is convenient to deal with both aspects of ground 1 at the same time.  As developed at the appeal hearing, the appellant’s essential complaint is that when the trial judge gave the redirections in response to the jury’s questions in their second and third notes, the trial judge should have emphasised that the jury had to be satisfied of the complainant’s credibility and reliability beyond reasonable doubt, before they could convict.
75. [75]
    The trial judge’s directions to the jury in the summing up about the process of the assessment of the reliability and credibility of each witness’ evidence to determine what evidence they accept and the requirement for the jury to be satisfied by the evidence accepted by the jury in respect of each charge of the proof of the elements of the charge beyond reasonable doubt before being able to return a verdict of guilty on that charge were orthodox and impeccable.  In the redirections in response to the second and third notes, the trial judge explained to the jury again the process that the jury had to assess the credibility and reliability of the complainant’s evidence as the finder of facts and then, on the basis of the evidence the jury accepted, the jury had to consider whether the prosecution proved the particular charge to “the requisite standard”.  No doubt because the third jury note had asked whether the complainant’s credibility constituted reasonable doubt was a matter of law, the trial judge went on to say “But it is a question of fact, not of law, whether you find the complainant to be credible and reliable or not”.  The trial judge then went on to answer the question about reasonable doubt which included reminding the jury of the directions given in the summing up about the burden and standard of proof.  There was no ambiguity in the redirections that “the requisite standard” was a reference to “reasonable doubt”.  The only standard of proof which the trial judge had directed the jury to apply in the summing up was the standard of beyond reasonable doubt.
76. [76]
    The appellant’s submissions focussed on one sentence in the redirection that has been bolded in the quote set out in [68] above.  That sentence was directly responsive to the question in the third jury note that asked whether it was a matter of law or a matter of opinion whether the complainant’s credibility constitutes reasonable doubt.  That is why, in addition to repeating the substance of his earlier directions as to how the jury should approach its task, the trial judge explained that whether the complainant’s credibility or reliability constitutes reasonable doubt (as a matter of law) was not an issue for the jury. The trial judge then explained, correctly, that credibility and reliability of the complainant’s evidence was an issue of fact for the jury.
77. [77]
    The appellant relies on statements taken from various judgments in this Court as supporting a general proposition that in cases where the conviction of a defendant depends solely upon a complainant’s evidence, it is incumbent upon the trial judge to direct and continue to make clear, at all times, to the jury that the prosecution case depends on an acceptance of complainant’s evidence beyond reasonable doubt.  One of the recent authorities relied on by the appellant is R v HCM [2023] QCA 86.  HCM was successful (by a majority) on his appeal against convictions of one count of maintaining a sexual relationship with a child and one count of indecent treatment of a child under 16, under 12, under care.  He succeeded in showing there was a miscarriage of justice when the trial judge failed to direct the jury that, in order to convict the appellant of each count, the jury had to be satisfied of the truth and accuracy of the complainant’s account beyond reasonable doubt.  The maintaining count was particularised as HCM’s touching the complainant’s vaginal area with a vibrator on five to 10 occasions.  The other count was particularised as the first occasion on which the appellant did that conduct.  There was only one specific occasion charged as a separate offence as the complainant was vague in her description of when the individual occasions occurred but could identify what happened on the first occasion.  In the context of other aspects of the summing up that were identified in HCM at [71] and [73], Boddice AJA (with whom Bond JA agreed) concluded at [70] and [72] that the trial judge in that case should have given a specific direction to the jury of the need for satisfaction of the truth and accuracy of the complainant’s account that the appellant had on five to 10 occasions used the vibrator on her vagina beyond reasonable doubt.  The requirement for the direction arose out of the circumstances of the trial and the summing up in that case and does not purport to be the statement of general proposition for which the appellant contends.
78. [78]
    By contrast to HCM, the offender in AHN v The State of Western Australia [2023] WASCA 9 was convicted after trial of one count of indecent dealing with a child under the age of 13 years.  One of the grounds of appeal was that the trial judge erred by failing to give a direction to the jury that they could not convict the appellant unless satisfied beyond reasonable doubt that the complainant was truthful and reliable.  The issue in the trial was whether the appellant touched her vagina inside her underpants.  The trial judge gave the standard directions regarding the presumption of innocence and the onus and standard of proof.  He directed them that they would need to form a view as to the honesty, accuracy and reliability of the complainant’s evidence and that the question for the jury to consider was whether, on all the evidence before the jury, the State had proven the appellant committed the offence beyond a reasonable doubt.  The Court rejected this ground, observing at [58]:

“In the circumstances of this case the directions given by the trial judge regarding the onus and standard of proof were sufficient.  There was no perceptible risk that the jury would fail to understand that proof of the offence required them to be satisfied of the truth of B’s account beyond reasonable doubt.  The direction contended for by the appellant would not have materially added to the directions given by the trial judge.”

79. [79]
    The appellant urged this Court in considering ground 1 to focus on the redirections only on the basis that some little time had passed since the trial judge had summed up.  The jury’s notes arose as a result of their deliberations in the context of the summing up given by the trial judge and the redirections related back to the directions given in the summing up.  The redirections must be considered in that context.  It is also apparent from these jury notes that the focus of the jury’s attention was on the complainant’s evidence and that it was not necessary for the redirection to repeat the Liberato direction.
80. [80]
    In respect of ground 1(a), the trial judge redirected the jury appropriately in the circumstances of the trial on the process of assessing the credibility and reliability of the complainant’s evidence and then considering whether, upon the complainant’s evidence accepted by the jury, the prosecution had proved the relevant charge beyond reasonable doubt.  In respect of ground 1(b), there was no misdirection of the jury, when the sentence in the redirection that was the focus of the submissions on the appeal is considered in the context of the summing up and the redirections as a whole.
81. [81]
    The appellant does not succeed on ground 1.

Is the sentence manifestly excessive?

82. [82]
    The offending was committed when the appellant was aged between 30 and 38 years.  He had no prior criminal history.  He was in employment until he was charged with the subject offences.
83. [83]
    The trial judge described the offending in the following terms.  It was “extraordinarily serious”, as the complainant was the appellant’s natural daughter and the offending commenced when she was only six years old.  It also involved a continuing course of conduct and was “a disgraceful breach of trust”.  General deterrence and personal deterrence were significant considerations on sentence.  The sentence must also show appropriate denunciation.  The complainant had suffered emotionally, psychologically and socially as a consequence of the offending.  The appellant had exhibited no remorse for his conduct.  His behaviour involved manipulation of the complainant from a young age causing her to believe that his conduct was normal behaviour for a father to exhibit towards a child.  The appellant’s conduct was predatory.  There was a power imbalance and the appellant exposed the complainant to the risk of disease.
84. [84]
    The trial judge noted the similarity between the appellant’s offending and the offending in R v RAC [2008] QCA 185.  Even though RAC had pleaded guilty, the trial judge noted the observation in RAC (at [39]) by McMurdo P (with whom Muir JA and Cullinane J agreed) that the sentencing judge was right to consider, if the offender had been convicted after trial, a sentence of 12 years’ imprisonment was within range.
85. [85]
    The appellant relies on the comparable authorities on which submissions were made to the trial judge of R v WBM [2020] QCA 107, R v EP [2020] QCA 109 and RAC and two further authorities of R v Myers [2002] QCA 143 and R v P [2001] QCA 25.
86. [86]
    The offender in WBM was convicted after trial of two counts of rape (one of which was penile vaginal and the other was penetrating the complainant’s vagina with his tongue), one count of attempted rape and two counts of aggravated indecent treatment of a child.  The complainant was his daughter who was aged seven years at the time of the offences.  He was sentenced to nine years’ imprisonment for each of the rape counts and lesser concurrent sentences for the other counts.  Parole eligibility was fixed after five years’ imprisonment.  The offending occurred on more than one occasion.  The offender was aged either 32 or 33 at the time of the offending and had no previous criminal history for sexual offences.  Applegarth J (with whom the other members of the Court agreed) emphasised (at [47]-[50]) that the betrayal of trust by a father against a child who should expect to receive protection and nurturing and not sexual offending was a serious aggravating factor.  The sentence was not manifestly excessive.
87. [87]
    The offender in EP pleaded guilty to four counts of rape (an oral rape, a penile anal rape, a digital vaginal rape and a digital anal rape) and one count of indecent treatment of a child under 16, under 12, under care.  For the penile anal rape which was the most serious offence, the offender was sentenced to nine years’ imprisonment with an eligibility for parole date fixed after he had served three years.  The offender had been asked by the parents of the five year old complainant to look after her while they went out.  All offences were committed on the one occasion.  The offender was 30 years old at the time of the offending with an irrelevant criminal history.  The sentence was described (at [39]) as “comparatively moderate in all the circumstances”.
88. [88]
    The offender in RAC pleaded guilty to an ex officio indictment that charged him with eight counts of rape and two counts of indecent dealing with circumstances of aggravation.  Some of the charges were brought because of the detailed and frank admissions made by the offender.  The complainant was his six year old stepson.  The offender’s sentence of 10 years’ imprisonment was reduced to eight years’ imprisonment for each offence of rape with a serious violence declaration to recognise his very early pleas of guilty and extensive cooperation with the authorities.
89. [89]
    The offender in Myers was sentenced for maintaining a relationship with a child in addition to five counts of rape that were particulars of the maintaining count.  It is not necessary to consider sentences for the different offence of maintaining a sexual relationship with a child when there are comparable authorities available on like offending to that committed by the appellant.
90. [90]
    It is also not appropriate to consider R v P where an application to extend time to apply for leave to appeal against sentence in respect of a sentence on one rape count committed against the applicant’s 12 and one-half year old stepdaughter was refused.
91. [91]
    Recent consideration was given by this Court to some of these authorities in R v OAD [2024] QCA 189.  OAD had pleaded guilty to nine counts of penile vaginal rape committed against his partner’s daughter over a period of three years when she was six to eight years old.  There were mitigating circumstances that applied to OAD which affect the comparability of the ultimate sentence imposed on him.  The observation of the Court (at [44]) on the comparable authorities of R v BBP [2009] QCA 114, R v Dendle [2019] QCA 194 and EP that had been put before the sentencing judge in OAD supported the proposition that, if the offender had been found guilty after trial, he would have been exposed to a sentence up to 12 years’ imprisonment is relevant to the appellant’s circumstances.
92. [92]
    The appellant’s counsel acknowledge that the appellant’s offending was gravely serious because of the complainant’s young age of six years when the offending commenced, the lack of use of protection, the oral rapes sometimes involved the appellant ejaculating in the complainant’s mouth and the complainant was cross-examined at trial.  The appellant submits that these features must be balanced against there being no violence or weapons used beyond the inherent violence of sexual offending, there were no threats to harm the complainant if she disclosed the offending and, when she did protest to the offending when she was 13 years old, the appellant desisted.  There were some formal admissions at trial that demonstrated some cooperation with the administration of justice.
93. [93]
    What is missing from the list of aggravating factors identified by the appellant is the lengthy period over which the offending occurred and that he was the natural father of the complainant, so that the offending constituted a gross betrayal of trust.  The appellant’s cooperation in making the admissions deserved only slight weight, as the admissions were made in respect of uncontroversial matters such as the periods during which the complainant’s family resided at particular addresses and the schools which the complainant attended which were ascertained during the investigation by Senior Constable Allison.
94. [94]
    The comparable authorities do not support a conclusion that the sentence imposed on the appellant was unreasonable or plainly unjust.  Although the sentence in WBM was nine years’ imprisonment after trial for two counts of rape and an attempted rape, the offending was not over the length of time of the appellant’s offending.  The sentence imposed on EP for the offences committed on the one night and to which he pleaded guilty supports the sentence imposed on the appellant.  The observations made in RAC and OAD in relation to a sentence of 12 years’ imprisonment for like offending after trial are also relevant.
95. [95]
    When consideration is taken of the age of the complainant when the offending commenced and that the offending was committed over a period of six years during which the appellant attempted to normalise his conduct by telling his daughter that what he was doing to her was normal for fathers to do to their daughters, the appellant cannot show that the effective head sentence imposed on him of 11 years’ imprisonment with a serious violent offence declaration was manifestly excessive.

Orders

96. [96]
    The orders which should be made are:

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