R v Abg

[2021] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABG [2021] QCA 259

PARTIES:

R
v
ABG
(appellant/applicant)

FILE NO/S:

CA No 203 of 2020
DC No 596 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Conviction & Sentence: 11 September 2020 (McGinness DCJ)

DELIVERED ON:

30 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGES:

Holmes CJ and McMurdo and Mullins JJA

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of two counts of sexual assault with a circumstance of aggravation, two counts of rape, one count of sexual assault and four counts of recording in breach of privacy – where all charges arose out of a single 15 minute period where the appellant filmed himself performing sexual acts on the complainant, his former partner, while she was either asleep or unconscious in her bed – where the issues for the jury at trial were whether the complainant had consented to those acts and, if not, whether the appellant had held an honest and reasonable but mistaken belief that she had consented – where the appellant appeals his conviction on the basis that the verdict was unreasonable having regard to the evidence about the nature of his sexual relationship with the complainant and the inconsistent evidence given by the complainant at trial – whether the verdict is unreasonable or cannot be supported

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to four years’ imprisonment on the two counts of rape, with lesser concurrent sentences on the remaining seven counts – where the parole eligibility date was set two months short of the statutory halfway mark – where the appellant appeals the sentence on the ground that it is manifestly excessive, having regard to comparable cases – where the appellant is a man of a mature age with a substantial criminal history primarily comprising domestic violence offences – where there is a limited number of comparable sentencing decisions – whether the sentence imposed is so disproportionately high as to reflect a misapplication of principle by the sentencing judge

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v RUJ[2021] QCA 114, considered
R v SAH[2004] QCA 329, considered
R v Smith[2020] QCA 23, considered
R v WAS[2013] QCA 93, considered

COUNSEL:

The appellant/applicant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES CJ:  The appellant was convicted by a jury of two counts of sexual assault with a circumstance of aggravation (counts 1 and 2), two counts of rape (counts 3 and 5), one count of sexual assault (count 4), and four counts of recording in breach of privacy (counts 6 to 9).  All counts were charged as domestic violence offences.  He was sentenced to four years’ imprisonment on counts 3 and 5, with lesser concurrent sentences imposed on the remaining counts.  A parole eligibility date was set after one year and 10 months, two months short of the statutory halfway mark.

2. The appellant appeals his conviction on the ground that the jury’s verdict was unreasonable or cannot be supported having regard to the evidence.  He also seeks leave to appeal his sentence on the ground that it was manifestly excessive.

   Background

3. All of the offending was said to have taken place on 20 February 2018 against the appellant’s former partner, to whom I will refer as “M”.  It was alleged that over a 15 minute period, the appellant used M’s phone to make four video recordings of her while she was lying naked and supine on her bed, either asleep or unconscious.  The recordings depicted him eating food that he had placed on her pudenda (count 1), licking beer that he had poured over that area (count 2), inserting a small white statuette (count 3) and a string of beads (count 5) into her vagina, and using his fingers to part her labia and rub her genital area (count 4).  Counts 6 to 9 concerned his making of the four recordings.

4. It was formally admitted at the outset of the trial that the four video recordings depicted the appellant performing the charged sexual acts on M and were made in her bedroom at the residence which she shared with him.  The issues for the jury were whether M had consented to those acts and, if not, whether the appellant had held an honest and reasonable but mistaken belief that she had consented.  The Crown called as witnesses at trial M and two police officers, one of whom had taken M’s statement while the other had performed a forensic examination of her mobile phone.  The appellant did not call or give evidence.

   M’s evidence in chief

5. M gave evidence that she and the appellant commenced a relationship in December 2014 and began residing together in June 2017, when he moved into her house.  Soon, though, the relationship began to break down.  M said that she twice in succession gave the appellant two weeks’ notice to leave.  During that four-week period, she ceased sexual relations with him, made him sleep in the guest bedroom and rebuffed him when he entered her bedroom.  He left the house at her insistence at the end of February 2018.  That timing of his departure was not challenged.

6. M said that the appellant was aware of the passcode which unlocked her mobile phone and had complete access to the device whenever he wanted it.   She discovered the four video recordings on her phone in April 2019 and made a complaint to police in June 2019.  The recordings were played to the jury during the course of her evidence.  M said that she had not given consent for the appellant to perform sexual acts on her while she was asleep or to film them, and, in particular, she had not given any such consent in relation to the acts depicted in the recordings.  She said that she was not pretending to be asleep while they took place.  The appellant had once before inserted the string of beads into her vagina, but that was while she was awake and with her consent.

   The cross-examination of M

7. In cross-examination, M accepted that she and the appellant had a ‘playful’ sexual relationship that included rape role-play games, and use of makeshift sex toys such as chopsticks, a beer bottle, and a screwdriver to penetrate her vagina.  She volunteered that a rake handle was also used, being placed against her vulva but not inserted into her vagina.  On two occasions, she agreed, she had exposed her genitalia when she and the appellant were alone in a public place.  With her consent, those activities were sometimes photographed and sometimes video recorded.  M denied that she had ever consented to the use of the statuette as a sex toy; it was, she said, of sentimental value to her.  Nor, she said, were items of food ever placed against her vaginal area.  She rejected the suggestion that she was aware of the recordings the subject of the charges or that they were part of her consensual sexual activities with the appellant.

8. M agreed that on occasion the appellant would commence sexual activity with her when she was asleep; sometimes she refused to participate, but at other times would ‘get into it’.  She conceded that she used ‘party-type’ drugs and was a ‘functioning alcoholic’ throughout the course of her relationship with the appellant.  M said that she used alcohol to help her relax after a hard day’s work, regularly drinking a bottle of wine and some tequila.  She accepted that, as a result of her high daily level of alcohol consumption, she would on occasion have the experience of being reminded of events which she had hitherto forgotten because of alcohol-associated memory loss.

9. Putting photographs and recordings to M, defence counsel explored some failures of recollection.  M agreed that at the committal hearing she had not recalled being touched with chopsticks until she was shown a photograph.  Although she had denied having food placed against her vaginal area on other occasions, photographs showed that it had occurred.  Her recall of the screwdriver incident was that its handle was only partly inserted into her vagina, but on seeing a recording, apparently made at 4.22 pm on a day in March 2017, she agreed that it was fully inserted.  The rake handle had also been used to penetrate her vagina, not merely positioned against her vulva, as was apparent from a September 2017 video recording made it at 4.11 pm.  M had no recall of either of those incidents’ being recorded, but she agreed that she and the appellant commonly engaged in sex at that time of day, when she returned from work.  The recordings the subject of the charges were made at 4.26 pm.

10. M did not accept, however, that it was possible she had participated in a sex game with the appellant in February 2018 and forgotten, when she discovered the recordings in June 2019, that she had done so.

    Defence counsel’s address to the jury

11. Defence counsel made a number of compelling points in his address.  He argued that there were aspects of the evidence inconsistent with the relationship’s having ended at the time the recordings the subject of charges were made.  M was prepared to lie naked in an unlocked room with the appellant in the house, notwithstanding that on her evidence, she had previously had to tell him to leave her room.  She had done nothing to prevent his access to her telephone, when she could easily have changed the passcode.  If the appellant had not honestly believed in M’s consent, he could have used his own phone to record the videos, rather than using M’s phone and leaving it with her, while showing his own face in the footage.  If he thought she was not consenting, he would not have provided her with evidence of what had occurred.  He had no reason to suppose that M would not look at the recordings for 14 months.

12. The appellant’s grin in one of the recordings the subject of a charge (he turns his face to the camera, tongue protruding, and grins) was a similar expression to that seen in one of the admittedly consensual recordings.  That was consistent, counsel suggested, with the activity in both instances being part of a consensual game.  All of what had happened was consistent with prior activity: sex play in the bedroom, videoed; the use of some alcohol; and M’s having no memory of the event.  There was a number of instances of her having forgotten details of sexual activity.  M’s belief that she was unconscious was purely the product of watching the videos; she had no independent recollection.  The jury could not safely rely on the video recordings themselves to conclude that she was unconscious or asleep.  Her recollection was clearly unreliable, although it did not follow that she was deliberately lying.

    The appellant’s submissions on the appeal against conviction

13. The appellant was unrepresented on the appeal and, understandably, had some difficulty confining his submissions to the issue of whether the verdict was unreasonable.  A good deal of what he said to the court was his version of the events, not given in evidence.  He complained of his representation, saying that his counsel had not brought enough attention to various points and had not raised the alleged criminal background of M’s husband and the fact that she had regularly visited a work psychologist.  As to why the verdict should be considered unreasonable, the appellant asserted that M had been exposed as lying, giving the example of what she had said about the degree of penetration by the screwdriver.  The smile on his face in the video recording showed that there was no malice involved in what he was doing.  And he argued, the pictures and videos of earlier activities put into evidence were more explicit and lewd than those the subject of the Crown case.  In addition, he contended that on one of the video recordings there could be heard a “pleasurable moan” from M.

    Discussion

14. In fact, defence counsel cross-examined deftly, obtaining some denials from M of various forms of activity or its extent, then, by showing her photographs or recordings, procuring her concession that they had occurred, and that she had forgotten them.  Counsel walked with considerable skill a fine line between attacking the credit of a clearly vulnerable complainant and demonstrating a basis on which the jury might conclude that she was unreliable in her recollection as to consent to the charged acts.  However, it follows from the verdicts that the jury nonetheless regarded M as credible and reliable.  The question for this court, proceeding on that basis, is whether it is satisfied that, acting rationally, the jury ought to have entertained a reasonable doubt,

    “…by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence”.[1]

    [1]Pell v The Queen (2020) 268 CLR 123 at 145.

15. There is nothing in the recordings themselves to demonstrate that the jury’s verdict was unreasonable.  I have listened to and watched them; they are quite short.  M’s appearance is consistent with a state of deep sleep which might well be produced by intoxication; she is lying in an ungainly way, with her head thrown back and her mouth open.  No pleasurable moan is discernible.  M does not appear to stir during the appellant’s activities.  That can be contrasted with her apparently enthusiastic participation in the earlier recordings tendered on behalf of the defence.  The jury could reasonably have perceived a sharp difference between the activities involved.

16. The jury might have been given some pause by M’s inability to recollect some detail of what she and the appellant had done in the past by way of consensual activity.  But she was quite frank about their active sex life and readily acknowledged what the photographs and recordings put to her showed.  She was resolute, however, in saying that she was not awake for the events the subject of the charges and had not given consent to them or their being filmed.  Notwithstanding her failures to recall particular acts or their details, her evidence about the nature of her sexual activities with the appellant was generally consistent with the content of the photographs and recordings.  The jury could reasonably have concluded that while M’s recall of some sexual acts was poor, she was honest and her evidence in general could be relied on.

17. The supposed improbability of M’s having failed to lock her door or her mobile phone and the appellant’s leaving the recordings on the phone where they would be found by her were good, arguable points, but not such as to compel a rejection of M’s evidence.  An alternative and reasonable view is that M had put too much faith in her own ability to control what the appellant did in relation to her and that his leaving the recordings on the telephone was malicious and deliberate, in the expectation that M would be too humiliated to do anything about it.

18. Nothing in the evidence presented any obstacle to the jury’s accepting M’s account that before the recordings were made on 20 February 2018, she had ended her relationship with the appellant and communicated to him that there was to be no more sexual contact, that remaining the situation until his departure at the end of February.  Accepting that evidence, a finding of guilt was inevitable: the appellant could not have had any reasonable belief in consent to sexual activity.  That being the case, even if the jury accepted that the appellant had an honest belief in consent, they would properly have concluded that it was not reasonable.  The verdicts are not unreasonable.

    The application for leave to appeal against sentence

19. The appellant sought leave to appeal against the sentence imposed, arguing that it was too high by reference to a case he had seen reported in the media and another case to which his counsel had referred at sentence involving an eight month’s sentence for penetration of a minor.[2]

    [2]R v SAH [2004] QCA 329.

    The appellant’s antecedents

20. The appellant was 49 at the time of offending and 52 when he came to be sentenced.  According to his counsel’s submissions, he had worked for many years as a television cameraman, but a combination of an injury and his inability to travel because of his probation and parole status meant he had not worked in the industry since 2016.  He had had an earlier relationship which produced two children, but it ended in 2012 and a domestic violence order had been made against him.  Unable to see his children since the relationship ended, he had started to use amphetamine and cannabis.  He suffered from depression and had at the time of trial been seeing a psychologist.

21. The appellant had a criminal history in New South Wales, dating from the years 1986 to 1993, involving non-custodial sentences imposed in local courts for a variety of minor offences not relevant here.  He has a substantial criminal history in Queensland for the period 2015-2019, principally convictions for contraventions of domestic violence orders made in respect of both his previous partner and M.  From February 2016 the offending related to M, who had obtained domestic violence orders against him in 2015, 2016 and 2017.  The prosecutor indicated that all the contravention offences related to contact in breach of the orders; they did not involve violence.

22. The appellant was placed on a suspended sentence of three months’ imprisonment for some of those offences in February 2016, but breached that order with further convictions of the same kind in August 2016, together with two offences of using a carriage service to menace, harass or cause offence, a breach of bail and unlawful possession of weapons.  The suspended sentence was invoked and he was given six months imprisonment concurrent for the further offending, with immediate parole release.  Another contravention of the domestic violence order, committed almost immediately after, resulted in 14 days imprisonment, suspended for six months, while two further such offences and another for using a carriage service to menace, harass or cause offence resulted in a probation order in September 2017.  In June 2018, the appellant was sentenced to 12 months imprisonment for attempting to pervert justice but again given immediate parole release.  He was subsequently dealt with for two contraventions of a domestic violence order, one committed before and one after the date of that sentence.  He was fined for the first and placed on probation in February 2019 for the second, while a breach of bail later in 2019 saw a conviction recorded without further punishment.

23. A report of the appellant’s performance on the probation order made in February 2019 was placed before the court.  It had been recommended that the appellant complete a domestic violence education and intervention program and seek the assistance of a psychologist because, respectively, of his propensity to domestic violence offences and his illicit drug use and mental health issues.  He duly attended a domestic violence program, but was removed because he was disruptive.  (His counsel submitted, and the sentencing judge accepted, that he had previously completed the same program.)  According to the report, while he undertook a number of sessions with two psychologists, he then ceased to attend, despite direction.  The writer noted that the appellant had an ingrained attitude to domestic violence, engaging in victim-blaming, and was often derogatory in the language he used when speaking about M.  Not surprisingly, the report concluded that he was considered unsuitable for community-based orders.

    The effect of the offending on M

1. M had been subjected to cross-examination at both the committal proceedings and the trial.  She made a victim impact statement, in which she said that she found the taking of videos unknown to her extremely disturbing.  It had caused her sleeplessness, agonizing over what had happened, and a loss of trust in men which had led to her not embarking on any further relationships.

   The judge’s sentencing remarks

2. Defence counsel submitted at sentence that the appellant should be dealt with on the basis that he had made an honest mistake as to consent, but it was not a reasonable one.  The sentencing judge evidently did not accept that submission; she found that the appellant had taken advantage of the complainant in a vulnerable position and that his behaviour was a gross breach of trust, for which he had shown no remorse.  Noting his criminal history, her Honour accepted that the appellant had suffered some physical and mental health problems and had a history of drug misuse.  Her Honour said that she had regard to the effect of the offending on M.

3. The judge had been referred to some sentencing decisions, including SAH, [3] but found them unhelpful, with the exception of R v Smith,[4] a decision on which the prosecution relied at sentence and again here.  However, her Honour regarded the extensive mitigating features which existed in that case as putting it in a different category from the appellant’s case.  Though ordinarily no parole eligibility date is set where a defendant has gone to trial, in this case her Honour reduced the period before parole eligibility by two months from the statutory halfway point, to reflect allowance for the difficulties of serving a sentence during the COVID pandemic.

   [3][2004] QCA 329.

   [4][2020] QCA 23.

   Discussion

4. The sentencing judge was dealing with an unusual set of facts, which meant that other sentencing decisions were necessarily of limited assistance.  Still, one can obtain from some of the decisions put before her Honour and this court a broad sense of whether the sentence imposed departed so substantially from what one might expect as to indicate that her Honour misapplied a sentencing principle.[5]

   [5]R v Pham (2015) 256 CLR 550 at [28].

5. SAH,[6] to which the appellant referred, concerned a 19 year old, who on a single occasion had inserted a finger into the anus of a three year old boy, the child of his partner.  A sentence of five years’ imprisonment with a recommendation for parole after 18 months, was set aside on appeal, replaced by a sentence of three years’ imprisonment suspended after 12 months, with an operational period of three years.  That applicant, although he had some criminal history (not of a sexual nature) had in his favour mitigating features in the form of his youth, the fact that he had himself had been sexually abused as a child, had pleaded guilty and had provided evidence showing that he had reasonable prospects of rehabilitation.  Neither the nature of the offending, which seems to have been spontaneous and limited, nor his antecedents are comparable with those of the present case.  To the extent that it is of use as a yardstick, it suggests that the sentence of four years’ imprisonment here, as compared with the head sentence of three years there, was proportionate.

   [6][2004] QCA 329.

6. The prosecution relied on two cases which concerned sexual assault on semiconscious women.  In R v WAS,[7] the applicant had drugged his former wife and, while she was in a semi-conscious state, anally and vaginally raped her while making obscene comments to her.  He pleaded guilty to the two counts of rape and one count of administering a stupefying drug with intent to commit a criminal offence.  His guilty plea came after previous changes of plea from not guilty to guilty and back again.  The court regarded the fact that he had used stupefying drugs in order to abuse the complainant sexually as a particularly aggravating feature of the applicant’s offending.  In his favour was the fact that there had been some delay between the offending and the reporting of the matter, so that sentence took place six years after the offence, with an intervening period in which the applicant and the complainant had reconciled and lived together again for 18 months.  In addition, the applicant had undergone extensive psychiatric treatment to address his behaviour, formed a new relationship, remarried and had a new family.  The court set aside the sentence imposed at first instance and substituted a sentence of six years’ imprisonment with eligibility for parole after a third.  Obviously, the aggravating feature of that case, the drugging of the complainant, is not present here; there is no suggestion that the appellant did anything to produce M’s state of unconsciousness.

   [7][2013] QCA 93.

7. In R v Smith, the applicant had pleaded guilty to five counts of sexual assault and two counts of rape on a friend.  He was aware that she had some problems with her mental health.  At a time when she had smoked some cannabis and taken a Valium tablet which left her heavily asleep, he used his finger to twice penetrate her vagina and rubbed his hand in a circular motion on her vulva, squeezed her breasts and put her hand on his penis, ejaculating.  On appeal, the sentence imposed at first instance, of three years’ imprisonment with parole eligibility after nine months, was set aside and a sentence of two and a half years’ imprisonment, suspended after six months, was substituted.

8. The applicant in Smith was 23 years old and had no relevant criminal history.  He had apologised on the day following the offending, made full admissions to the police and pleaded guilty.  His admissions enabled him to be charged with one of the rape counts and two sexual assault counts which could not otherwise have been proved.  As the sentencing judge in the present case observed, those were very substantial mitigating features which distinguished it from the present case.  Also highly significant are the facts that the offending there was spontaneous, and the applicant had made no attempt to record it.

9. A relevant decision postdating the sentence is R v RUJ.[8]  That case concerned an appellant convicted by a jury of rape and attempted rape, receiving a head sentence of four years’ imprisonment suspended after twenty months.  He and the complainant had attended the same party, although they were not known to each other.  He went into a bedroom where she was sleeping, intoxicated, and placed her hand on his erect and naked penis.  Then, despite her resistance, he anally penetrated her, digitally penetrated her vagina, and attempted to insert his penis into her vagina.  He desisted when she threatened to scream.  That appellant had no relevant criminal history and was otherwise of good character.  This court, however, noting that he was a mature man who took advantage of a vulnerable sleeping and heavily intoxicated woman, who persisted in his attempts to have penile intercourse with her and had shown no remorse, found nothing in the sentence of four years’ imprisonment to indicate that the judge had made any error.

   [8][2021] QCA 114.

10. The present case involved a vulnerable complainant who was subjected to humiliating treatment while she was in a state of unconsciousness which left her defenceless.  An aggravating feature of the offending was that the assaults on her were recorded and left on her phone for her to find.  The appellant had almost no mitigating factors in his favour: he did not have the advantage of youth; he had shown no remorse or prospects of rehabilitation; and he was not of previous good character.  A sentence for his offending of four years’ imprisonment, with parole eligibility at just under halfway, does not, on those facts, seem excessive; and none of the sentencing decisions referred to suggests that it is in anyway disproportionate or that any error has been made in imposing it.

    Orders

11. I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

12. McMURDO JA:  I agree with the Chief Justice.

13. MULLINS JA:  I agree with the Chief Justice.