R v DCH[2024] QCA 239

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  The applicant was convicted following a trial of serious sexual offences against two young children.  The offences included:

   1. maintaining an unlawful sexual relationship with child A, a child under 16 years, over a period of just over six years from January 2012 to April 2018 (count 1); and
   2. maintaining an unlawful sexual relationship with child B, a child under 16 years, over a period of four years from January 2015 to December 2018 (count 2).
2. [2]
   The applicant was sentenced to six years’ imprisonment for count 2, and a concurrent term of four and a half years’ imprisonment for count 1.  He was convicted and not further punished of offences of indecently dealing with child A (components of count 1) and sentenced to a further concurrent term of 15 months’ imprisonment for another offence of indecent treatment of child B, and a separate count of attempting to observe or record child A in breach of privacy.
3. [3]
   By an amended application filed by leave on the day of the hearing, the applicant seeks leave to appeal against the sentences imposed on counts 1 and 2 on the following grounds:

1. “Ground 1: In respect of Count 2, maintaining a sexual relationship with a child, where the learned Judge found that the Applicant touched the complainant on her vagina on two occasions causing scratches to her vagina (‘the finding’), the learned Judge erred in any one or more of the following ways:

1. The learned Judge’s failure to leave Particular 3 of the maintaining (touching of the vaginal area) where the Judge later made the finding in lieu of penetration of the complainant’s vagina having occurred was a denial of procedural fairness to the Applicant, and was otherwise unfair to the Applicant such that it occasioned an error of law.

2. The learned Judge erred in failing to apply the correct test, and / or failed to take into account the relevant considerations as required by law when making the finding.

3. The learned Judge erred in failing to have regard to relevant factual matters consistent with an inference favourable to the Applicant, such that the finding ought not have been made had the relevant factors been taken into account.”

2. “Ground 2: The sentences imposed on Count 1 and/or Count 2 were manifestly excessive, and otherwise, were manifestly excessive in effect and / or affected by error in that:

1. The learned Judge erred in allowing the finding that was made to overwhelm the proper exercise of her sentencing discretion.

2. The learned Judge erred in allowing the consideration of R v CCY [2023] QCA 49 to overwhelm the proper exercise of her sentencing discretion.

3. The learned Judge erred in failing to take into account the Applicant’s relative youth and/or prospects of rehabilitation.

4. The learned Judge erred in the exercise of the sentence discretion on allowing the loss of the penetration as a particular on Count 2 to overwhelm the consideration of the other factors relevant to the sentence process.”

The evidence at the trial and sentencing remarks

4. [4]
   The jury were provided with written particulars of the charges.  The particulars of count 1 (which involved offending against child A, over a period of just over six years from January 2012 to April 2018, during which she was aged between six and 11) were that the applicant maintained an unlawful relationship with child A during which he did the following:

1. “1.
   Committed the acts constituting counts 3, 4, 5 and/or 6; and/or

1. 2.
   Touched and/or squeezed the complainant’s vaginal area with his hand over her clothing; and/or

1. 3.
   Touched and/or squeezed the complainant’s bottom area with his hand over her clothing; and/or

1. 4.
   Exposed his penis to the complainant.”

5. [5]
   The particulars of count 2 (which involved offending against child B, over a period of four years, from January 2015 to December 2018, during which she was aged between five and eight) were that the applicant maintained an unlawful relationship with child B during which he did the following:

1. “1.
   Touched and/or squeezed the complainant’s vaginal area with his hand over her clothing; and/or

1. 2.
   Touched and/or squeezed the complainant’s bottom area with his hand over her clothing; and/or

1. 3.
   Touched the claimant’s vaginal area with his hand underneath her underwear; and/or

1. 4.
   Penetrated the complainant’s vagina with his finger/s.”

6. [6]
   Child B’s evidence in chief comprised the answers she gave when interviewed by the police on 7 December 2020 and then again on 17 November 2022, as well as her pre-recorded evidence given in court on 26 April 2023. 
7. [7]
   At the time of the first interview on 7 December 2020, child B was 10 years old.  She told police she was there to talk about the applicant, who was married to her aunty, “doing very inappropriate things”, from when she was five years old (p 3).  She said at first he started getting her to sit on his lap, and then “he used to put his hand on, on his lap and try to squeeze my butt and my private part” (p 3).  She also said that when she asked the applicant to help her with homework, he said “first I want you to do something for me”, and said to her if she showed him her private part, he would show her his.  She said no, but he unzipped his pants and “let that private part thing out” (pp 3-4).  Child B described the applicant getting “us” to sit on his lap in the pool and “he would squish every part … my hip, my butt, my private part, my everything”, and he did that for years (p 4).  Child B described this happening when she went over to the house the applicant lived in (which was his mother’s house) (p 12).  In particular, she said it happened in the lounge room, on the couch, and in the pool (p 13).  She was asked what she could feel when the applicant squeezed her butt and her private part.  Child B said “I felt very uncomfortable, it hurt, and it also makes, it made scratch marks on my private part.  And every time I went to go to bed, that part would really hurt…  [like] a stinging feeling… a constant sting.  And then it, when I went for a shower, it did the same thing because there was cuts on there and I would… There was like, little scratches because he was, he had sharp nails and he used to like, dig his nails in as well” (p 15).  In relation to it hurting in the shower, she said “yeah, because it, the water that had soap in it would go in that, the cuts” (p 15).  As to where the scratches were, child B said “they were on my private part”, and then gave a further explanation which could reasonably be understood to refer to her labia (pp 15-16).
8. [8]
   When asked if the applicant’s hand was “on the outside of your clothing?”, child B said “yeah” (p 17).  She said she thought this touching happened “probably about twenty times” during the one year when the applicant was staying at his mother’s house (p 20).  The rest of the touching happened at the applicant’s other houses (where he lived, apart from when he lived at his mother’s house) or child B’s house.  At one of the houses the applicant lived in, child B says “[h]e squashed my private part and my butt”, every time she visited him, which was about ten times (p 26), and about five times at another house (p 26).  When the applicant visited child B’s house, she said on one occasion he locked her in a laundry room, and that is the occasion on which the “homework” circumstance described above arose (pp 26-29).
9. [9]
   At the time of the second interview, on 17 November 2022, child B was 12 years old.  She was asked some questions about the house “where it started”, which was the applicant’s mother’s house.  The police officer asked her if she remembered “some stuff that happened in the dining room”.  Child B said she remembered running past “that arch door thing” (from an earlier description, this was an arched doorway between the dining room and the lounge room).  She said the applicant would grab her waist or her arm and say “come and sit on my lap”.  She said she “didn’t have a choice”, he would just pick her up and “chuck me on his lap”, and “he would then find a way in through my pants, and through my undies.  And put his hand inside of my vagina” (p 7).  When asked further questions, child B said that the applicant’s “hand would basically go under my legs… [a]nd go through the little part through the pants… [a]nd he would stretch the undies… [a]nd go through… [l]ike, go inside of my vagina with his fingers”.  She described feeling “a thin pain” and “could feel my inside like, tighten up… in a weird way”.  She thought she was six or seven when this happened (pp 10-11) and this only happened in the dining room (p 13).
10. [10]
    Child B was asked again about what happened in the lounge room.  She described the applicant’s hands going “through… like, under”; that he “would grab one leg… [a]nd pick it up, while his other [hand] would be able to go through”.  She was asked whether that was under the clothes or over the clothes, and she said “over”.  She said if she was wearing a dress “it would be over my undies”.  She said it hurt “every time”, describing the applicant to “like push”, and that “it would give me a sting or a like, sharp pain”.  In the dining room, she said she felt “the sharp pain and that weird feeling that that comes up through your spine”.  In the lounge room, she said it would “just be sharp pain constant down there… [in] my vagina” (pp 14-16).
11. [11]
    Child B was nearly 13 when she gave evidence, and was cross-examined, in court.  She was asked again about what happened in the lounge room.  She said “he would put his hand on his lap facing up like that, and when he grabbed me by my waist and put me on his lap he used to hold my butt and sometimes would go in between my thighs” (p 1-34).  In cross-examination, she said “he did not touch my vagina in the lounge room”.  She was asked questions about what she told police at the second interview, about the applicant putting his hand in her pants and causing her pain.  She was asked “did that leave any marks on your private parts?”, and she responded “[i]t did. It leaved scratch marks on my private part, not in my private part” (p 1-54).
12. [12]
    At the trial, defence counsel submitted that the jury should be asked to deliver a special verdict^[1] in relation to count 2 – in the event of a guilty verdict on that count, that the jury be asked whether they were satisfied the fourth particular (penetration of the complainant’s vagina) had been established.  Although the Crown opposed that, the judge allowed it.
13. [13]
    The jury found the applicant guilty of all counts.  In relation to count 2, the jury said that they could not reach a unanimous finding about the fourth particular.
14. [14]
    In the course of the sentencing hearing, the judge addressed the question of the factual basis for the sentence in respect of count 2.  Her Honour said:

“There is an issue that remains live after the verdict as between the parties, and that is in relation to the allegation of the child that relates to two occasions where the touching went further than over the pants.  … in respect of [child B], a special verdict was taken for count 2, the relationship charge in respect of penetration, as it was one of the particulars left open for the relationship for count 2. The jury were unable to agree in respect of penetration.

It seems to me that the inability of the jury to agree on that issue is not – was unlikely to be caused by any doubt about the honesty of [child B] but much more likely to be the accuracy of her memory about – by the time of the second interview in that respect. She had in her initial interview described or referred to two occasions where the defendant’s treatment of her vagina resulted in scratch marks from his long nails, and she provided credible detail of the sensation of that months later, I note, …  when the defendant was later interviewed by police, he did, at that stage, apparently have long nails.

I also note that whilst – if there had been any – there’d been no issue of [child B] being at all infected by her sister’s – or anything her sister said in this regard because there is no similar allegation by [child A].  For my own part, I am – have no doubt that the defendant did use such – that the defendant did cause scratches to that child’s vagina, on the youngest child’s vagina, on two occasions and that finding is, for the reasons I’ve given, not inconsistent of the verdicts of the jury.”

15. [15]
    The judge’s reasons for the sentences imposed included the following:

“The jury have found you guilty of carrying on a sexual relationship with two children. The abuse was persistent and repetitive upon two very young children, for years. Both children were younger than 12 and under your care. They were the nieces of your wife. You groped the elder girl [child A] for six years, starting when she was just five or six years old. Although the opportunity, and therefore frequency, waned with time, you continued until she was 11. You would put her on your lap and repeatedly squeeze her vagina and backside while putting on a front of playfulness. You were brazen enough to do it when your wife and your mother were nearby.

There was an occasion when you exposed yourself to that child. There was another incident, after the relationship had finished. She was 14. You tried to secretly film her in the shower.

For the last three years of the first relationship, you were also abusing the younger sister [child B] in a similar way. You would do it to the girls whenever you had the opportunity. You touched them both over their clothing but in the case of the younger girl, you actually were so rough that you scratched her skin.

Your counsel has questioned whether I could be satisfied that you went inside the pants. Given the extent to which there was injury and pain together with the recall of long nails and the child’s description subsequently of stretching the pants. I am convinced that you put your hand inside her pants.

You knew these girls were especially vulnerable and not just because of their age. I have no doubt that you chose them because you saw them as easy targets, accessible and unlikely to speak up. They had a lot going on in their young lives. There were the stresses of repeated relocations, full houses, serious illnesses and busy or absentee parents. And when the children’s mother needed regular babysitting, you were there to help.

Despite the evidence of your wife and mother, there can be no doubt that you engaged with the children on many occasions. As much is proved by your admissions to police. You were in a position of trust. You were supposed to be looking after these children. You sought to portray your home as a place of sanctuary for these girls but instead you caused years of nightmares and a longlasting trauma. The impact of this poison has infected all aspects of their young lives. They are weighed down even now by chronic fears, notwithstanding the counselling they have had.

You started doing these things when you were still a young man. The first unlawful relationship began before you had turned 20. By the time of the last offence, you were 26. Most of the offending was between the ages of 19 and 24. The range of conduct captured by the relationship offences can be wide. In your case, there was no penetration, no ejaculation and the contact under the clothing with the skin of the child may have been limited to two occasions. Those instances, however, did cause injury in the nature of a scratch or scratches.

…

Deterrence and denunciation for such serious offending is important. The head sentence will attach to count 2. That is, the sentence for count 2 is intended to reflect the total criminality. That sentence is six years imprisonment. I note that although count 2 was a shorter period of the shorter relationship, it commenced when you were older and was conducted concurrently with the first unlawful relationship that you commenced. It also involves the most serious particulars. In relation to count 1, you are sentenced to four and a-half years imprisonment…”.

Ground 1 – challenge to the fact finding on sentence in relation to count 2

16. [16]
    The applicant challenges the sentencing judge’s finding that the applicant did cause scratches to child B’s vagina, on two occasions.  First, he contends the judge was wrong not to require the jury also to return a special verdict – that is, to make a specific finding – in relation to the third particular of count 2 (touching the complainant’s vaginal area with his hand underneath her underwear).  He submits this was “tantamount to a denial of procedural fairness”.  The applicant was represented by experienced counsel at the trial.  He requested a special verdict in relation to the fourth particular, on the basis that incident – digital rape – could affect the appropriate sentence upon conviction.  There was no request for a special verdict in relation to the third particular.  I can see no basis on which to criticise the judge for not unilaterally requiring this.
17. [17]
    Next, the applicant submits the judge “failed to apply the correct test” and/or failed to take into account relevant considerations.  As to the correct test, that is found in s 132C of the Evidence Act 1977 (Qld).  A sentencing judge may act on an allegation if satisfied on the balance of probabilities that it is true (s 132C(3)).  The Briginshaw approach applies (s 132C(4)).  Here, the judge expressed her finding in terms that she had “no doubt” and was “convinced”.  Her Honour plainly applied the correct test.
18. [18]
    The relevant considerations the judge is said to have failed to take into account include the evidence of preliminary complaint witnesses (that no complaint was made as to scratches or pain), the absence of observable injuries, and the applicant’s own evidence that his nails were shorter most of the time.  The applicant’s submission is that these matters should have been expressly considered, as matters capable of supporting an inference “equally probable” that no touching under the pants occurred.  This submission misunderstands the finding that was made.  It was not an inference drawn from other facts, but a finding of fact made, on the basis of the complainant’s evidence.  The judge, quite properly, proceeded on the basis that the jury found child B to be a credible witness.  As her Honour said, the jury’s inability to reach a unanimous decision in relation to the fourth particular was unlikely to be caused by any doubt about her honesty, as opposed to a doubt about the reliability or accuracy of her memory about that particular.
19. [19]
    The applicant’s written submissions contend the finding “undermined” the special verdict.  This seems to be on the basis of an assumption that the occasions on which the scratches were caused to child B’s vaginal area were the same occasions on which she had described the applicant putting his fingers inside her vagina.  On that assumption, the applicant’s argument is that since the jury could not agree about the allegation of penetration, the judge could not find the scratching occurred.  Having regard to the whole of child B’s evidence, the assumption is not correct.  The scratching was said to have happened in the lounge room, not in the dining room (which is where the penetration was alleged to have occurred).  The scratching, as described by the child in her first interview with police and when she was cross-examined, was on her vaginal area (or labia), not inside her vagina.  There is no inconsistency between the finding and the special verdict.  As the respondent submitted, if any mistake was made by the judge, it was one to the benefit of the applicant.  The judge limited the number of occasions on which scratches were caused to, possibly, two.  Child B’s evidence of touching causing scratching was not so limited (see paragraphs [7] to [8] above).

Ground 2 – were the sentences manifestly excessive?

20. [20]
    The applicant contends the sentencing judge erred by allowing the factual finding just discussed, and consideration of R v CCY [2023] QCA 49, to “overwhelm” the exercise of the sentencing discretion.  He also contends that her Honour failed to take into account his relative youth and prospects of rehabilitation.  Otherwise, he submits the sentences imposed were manifestly excessive, in the sense of being plainly unjust even if no specific error was made.
21. [21]
    Particularly serious features of the applicant’s offending include that he offended against two children; the children were very young (aged six and five, respectively) when the offending against them first began; the offending continued over a long period of time (six years for child A and four years for child B); it was persistent, repetitive and regular; it was sometimes brazenly done in front of others and, at other times, when the applicant was babysitting them, and so involved a breach of his position of trust; it caused serious emotional harm to the children, and physical pain to one of them.
22. [22]
    Whilst the sexual acts which the applicant engaged in can be described as less serious than in other like cases, the factors just referred to warranted a substantial sentence of imprisonment being imposed, in order to punish and deter, denounce and protect.  If the applicant had committed worse, more serious sexual acts against the complainants, he would have been sentenced to a much longer period of imprisonment.
23. [23]
    At first instance, the prosecutor relied on R v CCY [2023] QCA 49 and submitted that a sentence of at least six years should be imposed.  The offending in CCY also involved two children.  They were the daughters of the offender’s de facto wife.  The offender was convicted of maintaining an unlawful sexual relationship with one of the children, over the period of about three years, when she was aged 10 to 14.  The particularised acts were touching her vagina, having her manipulate his penis, thrusting against her after she emerged from a shower, a demonstration of ejaculation and touching her breasts.  He was also convicted of four counts of indecent treatment of the second complainant (touching her vagina, and having her touch his penis).  She was aged four to eight at the time.  The offender was older, aged 49 to 53 at the time, had a dated and irrelevant criminal history, and health conditions which would make his time in custody more difficult.  He was sentenced to six years’ imprisonment for the maintaining, and lesser concurrent periods for the other counts.  His application for leave to appeal against that sentence was refused, with the Court of Appeal observing, at [195], that a sentence of six years’ imprisonment fell well within the sound exercise of the sentencing discretion given that:

“The appellant engaged in maintaining an unlawful sexual relationship with a child under his care for over four and a half years, as well as sexual offending against another child in his care. Both children were young and the offending occurred in the context of a serious breach of trust. Whilst the appellant had no prior relevant criminal history, there was a complete absence of remorse.”

24. [24]
    The particular acts involved in CCY were more invasive than those in this case, save for the acts which caused scratch marks and pain for child B.  But as against that, in the present case the offending gave rise to two charges of maintaining (not one), involved younger children, and continued for a longer period of time (six years, in the case of child A, with an overlapping four years, in the case of child B).  The applicant was a young man at the time, and had no criminal history, but also showed no remorse.  While due allowance must be made for the mitigating factor of youth, serious sexual offending against young children by a young adult is, in my view, no less serious than similar offending by an older adult.  In addition, the applicant was convicted and required to be sentenced for a separate offence – of attempting to record child A in breach of her privacy – committed about two years later.  The judge appropriately adopted the Nagy approach, of increasing the penalty imposed for count 2, to reflect the overall criminality involved.  In the circumstances, I consider no specific error was made, and no error can be inferred from the outcome.  On the contrary, the sentence imposed sits rationally and consistently with that imposed in CCY.
25. [25]
    I would refuse the application for leave to appeal against the sentences.

26. [26]
    BOND JA:  I agree with the reasons of Bowskill CJ and the order proposed by her Honour.
27. [27]
    VAUGHAN AJA:  I have the advantage of having read Bowskill CJ's reasons for judgment in draft.  I agree with Bowskill CJ's reasons.  Accordingly, I too would refuse the applicant's application for leave to appeal against the sentences.