R v HCX[2025] QCA 100

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  On 5 February 2019 in the District Court at Bundaberg the applicant was convicted on his own pleas of guilty of one offence of rape and three offences of indecent treatment of a child under 16, under 12.  Each count was alleged to have the aggravating feature that it was a domestic violence offence.  He was sentenced on the same day.
2. [2]
   The sentencing judge described the offending in these terms:

“The child … was your eight year old niece.  The offending was all in one episode but you had been sexually interested in this child for some months.  You had been banned from the house at night because you had been caught peeping through her windows.  You devised a plan, you prepared for it and you successfully carried it out with stealth and cunning.  Under the cover of darkness, you crept through the neighbouring properties to the back of a house to get to [the complainant child’s] bedroom.

You had brought with you a computer with pornographic film to corrupt her – lollies and money to entice her – baby wipes to clean yourself afterwards – and a screwdriver to break through the security screen to her bedroom.  With some effort, you thereby got inside without disturbing the household.  You woke [the complainant child] and you used the lollies to get her outside.  In the shed, in the backyard, you made her watch the video.  You licked her body, you made her participate in mutual acts of oral sex until you ejaculated.  The rape was [the penetration of the complainant child’s mouth].^[1]  Afterwards, you just put her back into her bed.”

3. [3]
   Before the sentencing judge, the Crown had submitted that the criminality warranted a sentence of no less than 11 years’ imprisonment.  Defence counsel had submitted that a 10-year sentence would certainly be within range but did not otherwise make specific submission as to the appropriate penalty.
4. [4]
   The applicant was sentenced to a global head sentence of 11 years’ imprisonment attaching to the rape count with lesser concurrent terms for the indecent treatment counts.  The sentencing judge also dealt with some other offences concerning drug possession which are irrelevant for present purposes.  The length of the head sentence attracted an automatic declaration that the applicant was a serious violent offender with the consequence that the applicant would not become eligible for parole until he had served 80 per cent of the sentence.  Convictions were recorded and pre-sentence custody of 332 days was declared.
5. [5]
   On 22 December 2023 – which was over four years after the deadline to appeal his sentence had expired – the applicant filed an application for extension of time within which to appeal his sentence.  The proposed ground of appeal is that the sentence imposed was manifestly excessive.  If the applicant obtains the extension of time and persuades this Court of the ground of appeal, he proposes that the appropriate sentence was one of nine years’ imprisonment with no order made as to early eligibility for parole.
6. [6]
   The applicant concedes that the delay is lengthy and that there is no good reason shown for the delay but contends that his application to extend time should be allowed because refusal of the extension would result in a miscarriage of justice in that he would have to serve a sentence which is manifestly excessive, particularly as regards the length of the non-parole period to which he would be subject.
7. [7]
   The relevant principle by which the application is to be assessed is that articulated in the following oft-cited passage from R v Tait [1999] 2 Qd R 667 at [5]:

“… the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension.  That may involve some assessment of whether the appeal seems to be a viable one.  It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension.  Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue.  Another factor is the length of the delay, it being much easier to excuse a short than a long delay.”

8. [8]
   For reasons which follow, I would refuse the application for extension of time.

The sentencing remarks

9. [9]
   In reaching the conclusion that a global sentence of 11 years should attach to the most serious count the sentencing judge specifically noted the following features:

   1. The applicant had a prior conviction in which he was sentenced to three years’ imprisonment for the abuse of two other children, a four-year-old girl and his then-wife’s 11-year-old sister.  He gave the four-year-old a lolly and tried to put his penis in her mouth and he touched the 11-year-old’s vagina after persuading his then-wife to take naked photos of her.
   2. Although the applicant now displayed remorse, the applicant had been remorseful at the time he was sentenced for his previous offending and had participated in some rehabilitation courses but obviously to little benefit.  First, because even though he was a reportable sex offender he had been caught having unauthorised contact with children at a water park or a waterhole.  And second, because of the offending against his niece.
   3. The applicant had abused his position as the uncle of the complainant child in the worst possible way.  There had been an escalation of his previous offending.
   4. His own family had put in place some rules designed to protect the child from him, namely that he had been required by his mother to leave the house by 6.00 pm because of reports from the complainant that he had been looking through her window at night while she was getting dressed.
   5. The calculation, determination and deviousness used to get at the complainant child and to commit the offences revealed the conduct of a true predator who continued to represent a danger to children.
   6. The impact on the complainant child had been profound.  She had been caused immeasurable harm.  She could not sleep properly or concentrate and had trouble controlling her bowels.  She no longer felt safe enough to visit her grandmother.
   7. The applicant had maintained an approach of minimisation of his offending in his discussions with the reporting psychologist in that he had not been prepared to discuss the details of his offending with the psychologist.  The sentencing judge thought that this behaviour did not instil confidence for future treatment programs.
10. [10]
    The sentencing judge expressly took into account such mitigating features as existed.  The applicant had handed himself into police after the complainant child’s mother confronted him, the child having revealed the offending to her.  He had indicated to police that he would plead guilty and had done so.  There had been obvious and early cooperation, the principal benefit of which was to spare the child from cross-examination thereby avoiding an exacerbation of the damage already done.  The judge noted further that the applicant had been in custody since the offending.
11. [11]
    The sentencing judge concluded:

“The protection of children is of fundamental importance here.  The needs of deterrence are specific as well as general.  The sentence can be no higher than what is proportionate to what you did on this occasion.  You cannot be punished further for the past.  But, the obvious risk of serious re-offending calls for a sentence at the high end of the range.  The complexity here is to make sufficient allowance for the cooperation and plea because there will be a sentence that marks the rape as a serious violent offence.  And you will have to serve a minimum of 80 per cent of the sentence.  Whether you are released at any time after that, before the conclusion of the sentence, will depend upon your cooperation and efforts at rehabilitation.”

The prospects of the appeal

12. [12]
    It has been mentioned that the sole ground of the proposed appeal was that the sentence imposed was manifestly excessive.  The relevant principles applicable to a consideration of such an appeal were summarised recently in R v Muirhead (2019) 279 A Crim R 510 at [63]–[65] (footnotes omitted):

1. “[63]
   It is necessary, in determining whether a sentence is manifestly excessive or manifestly inadequate, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender’s criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender’s personal circumstances and antecedents.

1. [64]
   Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.  See Barbaro v The Queen.  In the present case, the sentencing judge was obliged to sentence the applicant in accordance with the governing principles set out in Pt 2 of the Penalties and Sentences Act 1992 (Qld).  This Court can intervene if the appellant demonstrates either an express or an implied material error.  Express error includes acting on a wrong principle (for example, mistaking the law or the facts or taking into account an irrelevant consideration).  Implied error arises where the sentencing outcome is so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred.  The discretion conferred on sentencing judges is, of course, of fundamental importance and this Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion differently.  See Lowndes v The Queen and Lacey v Attorney-General (Qld).

1. [65]
   A sentencing range for comparable cases is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive or manifestly inadequate.  A range of sentences customarily imposed is a yardstick for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  Consistency in sentencing means that like cases must be treated alike and different cases must be treated differently.  See R v Pham.  However, the scope for material differences in each case in relation to relevant sentencing factors, and the weight to be given to them, must be borne in mind.  The limits of the guidance afforded by comparable cases are therefore flexible rather than rigid.”^[2]

13. [13]
    In this case the only consideration relied upon by the applicant was the alleged disparity between the sentence imposed and the range which it was suggested derived from comparable cases.  The applicant contended that a review of authorities revealed that a sentence exceeding 10 years was not within a sound exercise of the sentencing discretion for offending of this nature where a plea of guilty was entered at a timely stage and where admissions were made prior to charges being laid.  In this regard particular reliance was placed on R v Daphney [2010] QCA 236; R v D [2003] QCA 88; R v Stoian [2012] QCA 41; R v KAC [2010] QCA 39 and R v RAC [2008] QCA 185.
14. [14]
    Before the sentencing judge counsel for the Crown had referred to Daphney; R v D; and Stoian.  The respondent in this Court suggested that the comparable authorities did support the imposition of the sentence imposed by the sentencing judge, especially when one had regard to the fact that many of the authorities were decided prior to –

    1. amendments to the Penalties and Sentences Act 1992 (Qld) that were enacted to strengthen the penalties imposed upon child sexual offenders; and
    2. amendments to the Penalties and Sentences Act s 9(10A) pursuant to the Criminal Law (Domestic Violence) Amendment Act 2016 (Qld),^[3] which provided that in determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor.
15. [15]
    The Crown in particular drew this Court’s attention to the observations made by the Court in R v Free at [67]–[69] (footnotes omitted):^[4]

“In relation to legislative changes: in 2003 what is now s 9(4)(a) [that the principle in s 9(2)(a), of a sentence of imprisonment being a last resort, does not apply when sentencing an offender for an offence of a sexual nature in relation to a child under 16] and s 9(6) [the factors primarily to be taken into account in sentencing such an offender] were enacted as part of the Penalties and Sentences Act 1992.  Of note, the same amending Act also amended the maximum penalty for indecent dealing from 14 years to 20 years’ imprisonment.  The Explanatory Notes to the Bill which became the Act, made it clear that the objective was to ensure that sentences imposed on child sex offenders reflect the significant physical and psychological consequences of these offences.  These amendments commenced on 1 May 2003.  The offences committed by Cogdale occurred in April 2003, he was sentenced about seven months later, and the appeal was heard in April 2004.  As a result of a transitional provision (s 211) the amendments applied even where the offence or conviction happened before the commencement.  However, it is not apparent from the decision whether any reference was made to these provisions.

In 2010, further amendments were made to s 9, by the Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010, by enacting what is now s 9(4)(b) [that in sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 years, the offender must serve an actual term of imprisonment unless there are exceptional circumstances] and s 9(5) Penalties and Sentences Act 1992.  The Explanatory Notes to the Bill which became this Act identify one of the primary objectives as to strengthen the penalties imposed upon, inter alia, child sexual offenders, stating (at 2):

‘Strengthening the penalties imposed upon child sexual offenders complements the existing legislative measures aimed at the protection of our most vulnerable members of the community; recognises the inherent seriousness of any form of indecent treatment upon a child; reflects the lasting and potentially devastating impact this conduct may have upon the young victim; and ensures that the need for general deterrence, punishment and reflection of the community’s condemnation of the conduct are at the forefront when passing sentence.’

Those legislative reforms are reflected also in the increasing understanding of and recognition by courts, in more recent decades, of the profoundly damaging impact of sexual offences on child victims, which has also been reflected in increasing sentences.”

16. [16]
    Having regard to these features, the applicant has very poor prospects of persuading the Court that the 11-year sentence imposed was manifestly excessive.

Conclusion

17. [17]
    The application for leave to appeal against sentence has poor prospects and the length of the delay is long and unexplained.  It is not in the interests of justice to grant the extension.
18. [18]
    The application for extension of the time within which to file an application for leave to appeal against sentence must be refused.
19. [19]
    FLANAGAN JA:  I agree with Bond JA.
20. [20]
    BRADLEY JA:  I agree with Bond JA.