R v BDO

[2023] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDO [2023] QCA 114

PARTIES:

R
v
BDO
(appellant)

FILE NO/S:

CA No 35 of 2021
CA No 50 of 2021
DC No 85 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Remittal on Proceeding from High Court of Australia

ORIGINATING COURT:

District Court at Gympie – Date of Sentence: 18 February 2021 (Cash DCJ)

DELIVERED EX TEMPORE ON:

31 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2023

JUDGES:

Bowskill CJ and Mullins P and Boddice JA

ORDERS:

1.   The appellant be sentenced to two years imprisonment on each of counts 6 and 11.

2.   The appellant be sentenced to three years imprisonment on each of counts 9, 12 and 13.

3.   The appellant be sentenced to five years imprisonment on count 14.

4.   Each of those sentences be served concurrently.

5.   The 838 days served in custody, between 12 February 2021 and 30 May 2023, was time the appellant was held in pre-sentence custody, and that time in pre-sentence custody be declared imprisonment already served under those sentences.

6.   Convictions be recorded in respect of each of counts 6, 9, 11, 12, 13 and 14.

7.   The appellant’s parole eligibility date be fixed at 31 May 2023.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – SENTENCING FOLLOWING RETRIAL OR REMITTAL – where the appellant was found guilty by jury of 11 counts of rape (counts 2, 3, 4, 6, 7, 8, 9, 11, 12, 13, 14) and not guilty of four further counts of rape (counts 1, 10, 15 and 18) and one count of indecent treatment of a child under 16 (count 16) – where the offending occurred against the same female complainant, who was the sister of the appellant – where at the time of the offending, the subject of the guilty verdicts, the appellant was aged between 10 years and at least 17 years old – where the appellant was sentenced to an effective head sentence of six years imprisonment – where the appellant appealed his convictions and sought leave to appeal his sentence in this Court – where those appeals were dismissed – where, on appeal to the High Court, that Court found reasonable doubt was established as to the appellant’s capacity to know or understand moral wrongness in respect of five counts, and allowed the appeal to such extent – where the High Court set aside the appellant’s convictions on counts 2, 3, 4, 7 and 8 and entered verdicts of acquittal – where the matter was remitted to this Court for resentencing on the remaining counts, namely counts 6, 9, 11, 12, 13 and 14 – where the counts of rape, the subject of resentencing, were committed when the appellant was aged between 14 years and at least 17 years of age – where regard is to be had to the sentencing principles under the Youth Justice Act 1992 (Qld) – where the appellant has demonstrated good character in the years between the cessation of the offending, and has a number of personal mitigating factors in his favour – whether, in all the circumstances, the sentence imposed ought to be suspended forthwith

COUNSEL:

S C Holt KC for the appellant
C M Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. BODDICE JA:  On 12 February 2021, a jury found the appellant guilty of 11 counts of rape.  The appellant was found not guilty of four further counts of rape and one count of indecent treatment of a child under 16.

2. On 18 February 2021, the appellant was sentenced to an effective head sentence of six years imprisonment.

3. On 17 May 2023, the High Court allowed an appeal against conviction in respect of five counts of rape (counts 2, 3, 4, 7, and 8), and ordered that acquittals be entered on those counts.  An appeal against conviction in respect of the remaining counts was dismissed.  The High Court remitted the matter to this Court for resentencing on the remaining counts (counts 6, 9, 11, 12, 13, and 14).

4. Each of the counts of rape, the subject of resentencing, were committed against the same female complainant, who was the sister of the appellant.

5. They were committed when the appellant was aged between 14 years and at least 17 years and the female complainant was aged between eight years and 12 years.

6. Count 6 involved penetration of the complainant’s vagina by a vibrating pen.  Counts 9, 12, 13, and 14 involved penile penetration of the complainant’s vagina.  Count 11 involved penetration of the complainant’s vagina by the appellant’s tongue.

7. The offences were committed notwithstanding obvious resistance by the complainant and, on occasions, despite complaints of pain.  Towards the end of these sexual incidents, the appellant became more violent to overcome the complainant’s resistance.  On occasions, the appellant used clothing to gag the complainant to stop her from screaming.

8. The sexual abuse only stopped when the complainant said she would tell their mother and father if the appellant touched her.  The complainant also said, at around this time, the appellant had his first girlfriend.

9. The last two acts of rape (counts 13 and 14) were committed when the appellant was, at least, aged 17 years.  However, the applicable principles under the Youth Justice Act 1992 (Qld) require regard to be had to the sentencing principles under that Act.

10. In re-exercising the sentencing discretion, regard must be had to not only the seriousness of the appellant’s criminality, involving persistent engagement in penetrative sexual acts against his much younger sister.  Regard must also be had to the devastating consequences of that conduct on his sister.

11. Regard must also be had to the appellant’s own youthfulness at the commencement of that sexual conduct; his lack of relevant criminal history; his good character in the years between the cessation of that offending and his convictions; and a number of mitigating factors personal to the appellant, including that he suffered depression and has visual impairments and learning difficulties.

12. Another relevant factor is that the appellant has now served 838 days in custody.  The appellant’s visual impairment and learning difficulties would undoubtedly have made imprisonment more difficult.  Further, the nature of his offences meant that initially he was placed on a safety order, necessitating his remaining in a cell for essentially 24 hours per day.  Thereafter, he has served his time in protection, although in more recent times he has been transferred to a residential unit.

13. A further relevant factor is that the appellant, whilst in custody, sought to undertake sexual offender courses, but was not able to participate until his conviction appeal had been finalised.  As a consequence, he has not been able to undertake any such course whilst in custody.  The appellant has, however, met a chaplain on a regular basis.  He has also undertaken in workshop and textiles.  He has obviously been a useful worker, as he was made the team leader and has been trusted to make equipment for the correctional centre, such as benches and tables.

14. The appellant submits that having regard to the lengthy time he has served in custody to date, he should receive a head sentence of no more than five years, and that that sentence ought to be suspended forthwith.

15. Whilst the appellant is now to be sentenced on the basis that he committed six acts of rape, not 11, his sexual offending remains serious.  The counts for which he is to be resentenced all occurred when the appellant was older and were perpetrated notwithstanding increasing resistance, as a consequence of which the appellant used increasing violence to overcome that resistance.  However, due regard must be given to the appellant’s mitigating factors, including his good conduct whilst in custody and his express willingness to undertake sexual offending programs.

16. Balancing the objectively serious criminal conduct against those mitigating factors, I would sentence the appellant to an effective head sentence of five years imprisonment, to be imposed on count 14.  I would impose lesser concurrent sentences of imprisonment for the remaining counts.

17. It was submitted that the sentence of imprisonment be suspended forthwith, thereby giving certainty of release.  However, the appellant’s offending is of such a nature that it is not appropriate, in my view, for him to complete the balance of his sentence without supervision.

18. I would declare the 838 days served in pre-sentence custody as time served in respect of those sentences.  I would fix his parole eligibility date at today, 31 May 2023.

    Orders

19. I would order that:

    1.   The appellant be sentenced to two years imprisonment on each of counts 6 and 11.

    2.   The appellant be sentenced to three years imprisonment on each of counts 9, 12 and 13.

    3.   The appellant be sentenced to five years imprisonment on count 14.

    4.   Each of those sentences be served concurrently.

    5.   The 838 days served in custody, between 12 February 2021 and 30 May 2023, was time the appellant was held in pre-sentence custody, and that time in pre-sentence custody be declared imprisonment already served under those sentences.

    6.   Convictions be recorded in respect of each of counts 6, 9, 11, 12, 13 and 14.

    7.   The appellant’s parole eligibility date be fixed at 31 May 2023.

20. BOWSKILL CJ:  I agree with the orders proposed by Justice Boddice for the reasons given by his Honour.

21. MULLINS P:  I agree.

22. BOWSKILL CJ:  So the orders of the Court will be in the terms of those seven orders just articulated by Justice Boddice.

23. MR COOK:  As the Court pleases.

24. BOWSKILL CJ:  Thank you.

25. MR HOLT:  Thank you, your Honours.

26. BOWSKILL CJ:  Adjourn the Court.