R v WCG[2025] QCA 69

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  The applicant seeks leave to appeal against the sentence imposed in the District Court at Townsville on 9 September 2024.  Prior to sentencing, the applicant had previously pleaded guilty to three counts on Indictment 48 of 2024 (State indictment) and three counts on Indictment 85 of 2024 (Commonwealth indictment).
2. [2]
   The sentences imposed in relation to the State indictment were as follows:

Count 1 – Rape: 9.5 years imprisonment

Count 2 – Rape: 9.5 years imprisonment

Count 3 – Stalking: 2 years imprisonment

These terms of imprisonment were ordered to be served concurrently.  Serious violent offence declarations were made in relation to both Counts 1 and 2.  Eight hundred and eighty-nine days in pre-sentence custody was declared as time served.

3. [3]
   The sentences imposed in relation to the Commonwealth indictment were as follows:

Count 1 – in sexual activity with a child using a carriage service: 7 years Engaging imprisonment

Count 2 – Using a carriage service for child abuse material: 3 years imprisonment

Count 3 – Possessing or controlling child abuse material obtained or accessed using a carriage service: 3 years imprisonment

The Commonwealth sentences were ordered to be served concurrently with each other, but to commence on 11 November 2029, at the conclusion of the non-parole period for the State offences.  A non-parole period of two years was imposed.

4. [4]
   The overall effect of the sentence is that the applicant was sentenced to 14 years, 7 months, 6 days imprisonment, with a parole eligibility date after serving 9 years, 7 months and 6 days in custody.
5. [5]
   The application for leave to appeal identifies two grounds:

   1. the learned sentencing judge erred by imposing a sentence that offends the totality principle; and
   2. the sentence imposed was manifestly excessive.
6. [6]
   For the reasons which follow, the sentence imposed by the learned sentencing judge did not offend the totality principle nor was it manifestly excessive.

The agreed facts in relation to the State indictment

7. [7]
   At the time of the rape offending, which occurred on a date unknown between 30 September 2021 and 1 December 2021, the applicant was 33 years of age and the complainant was 16.
8. [8]
   They had met in 2019 while playing online video games on Xbox consoles.  At the time the applicant was living in New South Wales and the complainant was living with her family in South Australia.  They formed a friendship and began communicating via text and telephone and video calls.
9. [9]
   In July 2020 the complainant and her family moved to Townsville.  After this move the applicant and the complainant remained in regular contact.
10. [10]
    At the end of May 2021 the applicant visited Townsville and in around August 2021 he posted the complainant an Xbox and a television monitor for her 16^th birthday.
11. [11]
    In September 2021 the applicant also moved to Townsville.  He would see the complainant in person and gifted her a Samsung Galaxy A71 mobile phone also for her 16^th birthday.  An arrangement was made whereby the applicant would collect the complainant from school two to three times a week in order to drop her home.
12. [12]
    Sometime between October 2021 and November 2021 arrangements were made for the applicant to collect the complainant from school.  On this occasion, the applicant had notified the complainant’s mother that he had an air-conditioner person attending his house and sought permission from the mother to take the complainant back to his address prior to dropping her home.  This was a ruse.  When the applicant and the complainant arrived back at his house he requested her to obtain something from his bedroom.  The complainant was approached from behind by the applicant.  He grabbed her shoulder and pushed her towards the bed and used a “little bit” of force to push her down onto the bed.  The complainant resisted and tried to close her legs.  He spread her legs apart.  She told him to stop and to get off her.  The complainant was a virgin at the time.  She attempted to push him off and pleaded with him to stop.  He told her to “shut up” and not make a noise.  He then had unprotected intercourse with the complainant.  This conduct constituted Count 1.  When he penetrated the complainant he put his hand over her mouth to stop her from screaming.  His hand remained in this position while he had sexual intercourse with the complainant.  He told the complainant that she was not allowed to make any noise and to “accept her fate” because it was what women were made for.
13. [13]
    After he removed his penis he took his hand off the complainant’s mouth and took a photograph of her vagina with his phone.  He then grabbed the back of her head and yanked her forward off the bed and onto the ground.  She was positioned on her knees.  He then forced his penis into her mouth and continued to thrust until he ejaculated.  He instructed the complainant to swallow his semen which she did.  This conduct constituted Count 2.
14. [14]
    In the course of the rapes, the applicant made degrading comments to the complainant.  When driving her home he threatened to kill the complainant’s family if she told anyone about what had happened.
15. [15]
    When she arrived home, the complainant showered and self-harmed by cutting her upper thigh with a razor.  Her vagina bled for approximately two hours following the incident.
16. [16]
    As well as threatening to kill her family, the applicant also threatened to publish sexually explicit images he had taken of the complainant if she told anyone about the incident.
17. [17]
    As to the stalking offence, within the course of four months between 1 October 2021 and 4 February 2022, the applicant telephoned the complainant 1,134 times from his mobile phone and an additional nine times from a pay phone.  He would also leave voicemails as well as messaging the complainant on five different platforms.  These messages, calls and voicemails were threatening and abusive in nature.  The applicant also attended the complainant’s house.  On one occasion he sought to impersonate a police officer.

The agreed facts in relation to the Commonwealth indictment

18. [18]
    The Commonwealth offending involved the applicant, by use of threats and other coercive means, causing the complainant to engage in explicit sexual acts.  One hundred and eighty seven images of the complainant and six explicit videos of the complainant were located by police in a secret folder on the applicant’s mobile phone.  The videos depicted the complainant performing penetrative sexual acts on herself, with objects, while the applicant watched and masturbated.
19. [19]
    The acts which the complainant was forced to commit caused her pain but the applicant told her that she had to “look happy”.  The complainant did not know that the applicant was recording her.  This conduct constituted Count 1 on the Commonwealth indictment, using a carriage service for sexual activity with a person under 16 years of age.
20. [20]
    As to Count 2 on the Commonwealth indictment, use of a carriage service to cause child abuse material to be transmitted to self, the complainant, at the insistence of the applicant, would engage in sexually explicit activity in the course of video calls and unbeknown to the complainant, the applicant would take a screenshot of the relevant video call.  The transmissions also included video recordings.
21. [21]
    Count 3 of the Commonwealth indictment, possessing child abuse material obtained via a carriage service, concerned the 187 images and six videos located within the secret folder on the applicant’s mobile phone which met the definition of child abuse material.

The sentencing remarks

22. [22]
    His Honour noted that at the time of the offending the applicant was of mature age, being in his early thirties.  His Honour noted that all offences concerned the one complainant.  His Honour took into account that the applicant had no prior convictions.
23. [23]
    His Honour considered that the applicant’s pleas of guilty constituted late pleas.  While they had saved the complainant any further trauma of having to relive the events by giving evidence and being subject to cross-examination, his Honour noted that the complainant had otherwise been in the position where she believed she had to give evidence effectively up until “the last minute”.^[1]
24. [24]
    His Honour did not consider that the pleas of guilty were indicative of remorse but rather an acknowledgement of an inevitable outcome of the applicant being found guilty.
25. [25]
    His Honour considered the offending very serious.  While no victim impact statement had been supplied, his Honour readily inferred that the applicant’s behaviour had a significant adverse impact on the complainant.  In this context, his Honour made specific reference to the complainant self-harming immediately after being raped.
26. [26]
    His Honour considered that the stalking charge, which extended over a four month period, would have “terrorised” the complainant.  His Honour considered that this conduct was “extraordinarily serious offending conduct deserving of condign punishment”.^[2]
27. [27]
    As to the Commonwealth offending, his Honour was satisfied that imprisonment was the only appropriate sentence and that general deterrence was the primary consideration for offences of this nature.  As the offending was protracted and prolonged, his Honour considered that considerations of specific deterrence, denunciation and protection of the community, and in particular, the paramount public interest in the protection of children were relevant.
28. [28]
    His Honour noted that Commonwealth legislation specifically provides for a presumption of cumulative sentences unless the court is of the view that another option is appropriate.  In respect of Count 1 on the Commonwealth indictment, his Honour noted that there is now a mandatory minimum sentence of five years imprisonment and that the maximum is 20 years.  His Honour considered that the applicant’s offending did not fall at the lower end of that scale.
29. [29]
    His Honour considered that the applicant was, to some degree, in a position of trust in relation to the complainant’s family.  His Honour described the offending as involving “repeated deliberate and callous exploitation of a child… for [the applicant’s] own perverted sexual gratification”.^[3]
30. [30]
    As to the State offending, his Honour identified that it was apparent that the offending involved premeditation.  It also involved force and threatened physical harm as well as elements of degrading conduct.
31. [31]
    His Honour made reference to a psychiatric report which dealt with the applicant’s difficult upbringing.  His Honour noted that the applicant had learning difficulties and was placed in special education.  The psychiatrist described the applicant as falling with the borderline range of intellectual functioning with significant issues with literacy.  His Honour further observed that the applicant suffered from some form of Post-Traumatic Stress Disorder, but this disorder played no role in his offending.  His Honour noted that the psychiatrist assessed the applicant as having a medium risk of reoffending but further noted that the psychiatrist qualified that opinion because it was based on a single assessment during which the applicant had not been forthcoming.
32. [32]
    His Honour also referred to a psychological report in which it was stated that the applicant did not appear to suffer from any psychiatric or psychological illness prior to the offending.  The applicant was however, a person of low intellectual functioning.
33. [33]
    His Honour in rejecting a defence submission for an overall sentence of 10 years, observed that such a sentence would “be woefully inadequate to properly recognise all of the relevant considerations”.^[4]
34. [34]
    In imposing the head sentence of nine years and six months imprisonment on each of the rape counts, his Honour specifically took into account the separate stalking offending.  While his Honour recognised that this offending was of a different nature, it was still closely tied to the rape offending.  His Honour therefore did not consider it appropriate to make any sentence for Count 3 cumulative.
35. [35]
    Because of the serious features of the offending constituting the rapes, his Honour imposed a serious violent offence declaration in respect of each of those counts.  His Honour specifically noted that this would result in the applicant being required to serve 80 per cent of the head sentence of nine years and six months.
36. [36]
    Having noted that there was a presumption of cumulative sentencing for the Commonwealth offences, his Honour considered that even without this presumption at law, it was apparent that it would be inappropriate to order anything other than a cumulative sentence.  Having made this observation, his Honour stated that in such circumstances, some amelioration ought to occur.  His Honour therefore reduced the head sentence in respect of Count 1 on the Commonwealth indictment to one of seven years imprisonment, having considered that the appropriate range extended to 10 years imprisonment.  The sentences of three years for Counts 2 and 3 on the Commonwealth indictment were made concurrent with that head sentence of seven years.  In setting the non-parole period, his Honour again ameliorated the effect of the overall sentence by reducing the non-parole period from what his Honour would otherwise have considered to be appropriate because of the cumulative nature of the sentence.  This resulted in his Honour setting the non-parole period at two years.

Grounds 1 and 2

37. [37]
    The applicant accepts that the considerations in relation to grounds 1 and 2 overlap.
38. [38]
    The applicant submits that the sentence offends the totality principle because his Honour failed to properly take into account the cumulative effect of the sentence.  It is asserted that in the circumstances of this sentence, which involved the imposition of lengthy and cumulative terms of imprisonment and serious violent offence declarations, it was critical that there be an appropriate consideration of totality principles by his Honour.  In support of this assertion, the applicant points to the fact that in the sentencing remarks his Honour made no specific reference to totality principles.  More specifically, the applicant submits that there was no consideration by his Honour as to whether there needed to be any amelioration of the head sentence for the State offences, given the serious violent offence declarations and the cumulative imposition of the Commonwealth terms.  This resulted, according to the applicant, in a sentence which was crushing and manifestly excessive.
39. [39]
    The applicant’s submissions cannot be accepted.
40. [40]
    First, it is of no significance that his Honour did not specifically refer to principles of totality in the sentencing remarks.  At the sentencing proceedings his Honour had read written submissions provided both by the Commonwealth and the State.^[5]  By reference to Pearce v The Queen^[6], the Commonwealth had submitted that where a court sentences an offender for more than one offence, the aggregate or overall sentence must be “just and appropriate” to the totality of the offending behaviour.  Any appropriate sentence should reflect the criminality before the court.^[7]
41. [41]
    To similar effect, the State had submitted that it was open to his Honour to structure the sentence in a variety of ways given the combination of State and Commonwealth offences.  The State acknowledged that the overall period of imprisonment, as well as the non-parole period to be served, must not infringe the principles of totality.^[8]  The State therefore submitted an effective sentence of eight to 10 years imprisonment as being within range to reflect “the totality of the defendant’s offending subject to the State indictment”.^[9]
42. [42]
    It may therefore be accepted that having considered these written submissions, his Honour was well aware of totality considerations.
43. [43]
    Secondly, his Honour ameliorated the sentence in three significant respects.  For both the State and Commonwealth counts, his Honour adopted the global approach to sentencing in accordance with R v Nagy.^[10]  This global approach may be utilised in matters involving both Commonwealth and State offending.  For the head sentence of nine and a half years for Counts 1 and 2 on the State indictment, his Honour took into account, under the Nagy principle, the serious criminal offending constituted by the stalking count.  The circumstances of the stalking, added with the serious offending constituting the rape counts, would ordinarily call for a sentence higher than nine and a half years.  There is no challenge to his Honour’s finding that both rape counts warranted the making of a serious violent offence declaration.  While this had the effect of the applicant having to serve 80 per cent of the head sentence of nine and a half years, it must still be accepted that his Honour did ameliorate the head sentence.
44. [44]
    His Honour also ameliorated the head sentence for Count 1 on the Commonwealth indictment by reducing it from 10 years to seven years and further reducing the non-parole period to two years.  The overall structure of the sentence therefore reveals that his Honour had regard to totality principles.  The sentence, even in having regard to totality principles, was still required to reflect what was very serious criminal offending.
45. [45]
    As observed by Boddice JA in R v Norgate^[11]:

“[31] Whilst the principle of totality arises for consideration in the context of overlapping sentences or the imposition of sentences to be served cumulatively, those circumstances of themselves do not mandate that there must be a moderation of a sentence.

[32] The principle of totality requires that in undertaking a sentencing process, ultimate regard is to be had to the effect of the overall sentence. The totality principle necessitates that a judge “look at the totality of the criminal behaviour constituted by all of the offences”.

[33] As Fraser JA observed in R v Russell:

“The totality principle is designed to ensure that an offender is not unjustly burdened by being required to serve an aggregate term of imprisonment that is more severe than may fairly be considered to be merited by the totality of the offender’s criminality in all of the offences for which the component sentences are imposed.”

[34] Whilst it may be accepted that the protection of the public, as well as principles of specific deterrence, may support a sentence which does not involve ameliorating the consequence of cumulative sentences, the application of the totality principle requires that a sentencing judge, even in that circumstance, consider the overall effect of the sentence to ensure it is a just and appropriate sentence for the offender’s criminality.”

46. [46]
    Thirdly, the overall sentence imposed was informed by the presumption of cumulation contained in s 19 of the Crimes Act 1914 (Cth) which provides:

“Additional requirements for Commonwealth child sex offences

5. An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for:

1. another Commonwealth child sex offence; or

2. a State or Territory registrable child sex offence.

6. Subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances”.

The legislative intention of these provisions was considered by the New South Wales Court of Criminal Appeal in Woods v R:^[12]

“…there is no doubt that it was the intention of the Parliament of the Commonwealth in enacting the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) that the sentences handed down for the Commonwealth child sex offences, especially for repeat offenders, should be increased to reflect the gravity of these offences and ensure the community is protected from these offenders… This legislative purpose should not be overlooked.”

47. [47]
    The overall sentence imposed must also be considered in light of the fact that Count 1 of the Commonwealth indictment carried a maximum penalty of 20 years imprisonment, and a minimum penalty of five years imprisonment.  As observed by Gageler CJ and Jagot J in Hurt v The King:^[13]

“…it cannot be doubted that the Commonwealth Parliament intended the statutory minimum sentence to increase the number and length of sentences of imprisonment for Commonwealth child sex offences overall.  The only way in which the statutory minimum sentence can have that intended effect is for it to function as a yardstick against which the severity of the case before the court may be measured.  If the statutory minimum sentence is considered in this way, and as part of the overall sentencing function, then judicial fidelity to the statutory provisions should result in both more people convicted of Commonwealth child sex offences being sentenced to a term of imprisonment and the length of the terms of imprisonment increasing.”

48. [48]
    As to the submission that the sentence is manifestly excessive, the applicant submits that his Honour failed to give adequate weight to the pleas of guilty and limited consideration to the applicant’s difficult upbringing, post-traumatic stress disorder and borderline intellectual functioning.  These matters were taken into account by his Honour.  It was a matter for his Honour as to what weight should be given to these considerations.  No error has been demonstrated.
49. [49]
    Nor, as discussed above, can the head sentence of nine and a half years for the rape offending be considered manifestly excessive.  His Honour identified a number of aspects of this offending which made it very serious offending.  These included the elements of breach of trust, premeditation, use of force, use of threats to kill, deliberate degrading conduct and subsequent stalking.  These aspects of the offending required a sentence to be imposed in relation to the State offences that reflected the overall criminality and seriousness of the offending.

Disposition

50. [50]
    The application for leave to appeal against sentence should be refused.
51. [51]
    RYAN J:  I agree with Flanagan JA.
52. [52]
    COOPER J:  I agree with Flanagan JA.