R v CCW

Case [2022] QCA 183

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCW [2022] QCA 183

PARTIES:

R
v
CCW
(appellant/applicant)

FILE NO/S:

CA No 223 of 2021
DC No 369 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction and Sentence: 2 September 2021 (Loury QC DCJ)

DELIVERED ON:

23 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2022

JUDGES:

Morrison and Flanagan JJA and Beech AJA

ORDERS:

1.   Appeal dismissed.

2.   Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – Appeal against conviction for four counts of sexual offending against very young child – Where appellant pleaded guilty to counts 5 to 10 on second day of trial after jury had watched child exploitation material – Where juror discharged after completion of all evidence – Where jury re‑watched complainant’s police interview without re‑watching her cross-examination – Where judge warned jury against giving undue weight to the complainant’s police interview – Whether verdicts were unreasonable because of unreliability of complainant’s evidence – Whether judge erred in failing to discharge jury in its entirety – Whether judge erred in permitting jury to re-watch complainant’s police interview without re-watching her cross-examination

CRIMINAL LAW – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – Appellant convicted of 10 counts of sexual offences against very young child – Appellant sentenced to three years’ imprisonment – Whether sentence was manifestly excessive

Criminal Code (Qld), s 210, s 228B, s 228D, s 668E
Evidence Act 1977 (Qld), s 93A
Jury Act 1995 (Qld), s 56, s 57, s 60
Penalties andSentences Act 1992 (Qld)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
S L Dennis for the respondent

SOLICITORS:

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

Introduction

  1. THE COURT:  The appellant was charged with 10 counts of sexual offending against the complainant who was, at the time of the offending, a three year old child living with her mother in the appellant’s house.

  2. Counts 1 to 8 involved various forms of indecent treatment of a child under the age of 16 and less than 12 years, under the appellant’s care at the time of the offence, contrary to various provisions in s 210 of the Criminal Code (Qld) (the Code). Counts 1 and 2 occurred together. Count 1 involved the appellant touching the complainant’s vagina and count 2 concerned the appellant exposing the complainant to his erect penis. Count 3 alleged that the appellant licked the complainant’s vagina. Count 4 alleged that the appellant exposed the complainant to a pornographic video.

  3. Counts 5 to 8 involved the appellant making indecent videos and photographs of the complainant. Counts 9 and 10 alleged that the appellant possessed and made…

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Details
AGLC
R v CCW [2022] QCA 183
Case
[2022] QCA 183
Decision Date

CaseChat Overview and Summary

The appellant, CCW, appealed against his conviction for four counts of sexual offending against a very young child, as well as the sentence imposed. The court had to determine whether the verdicts were unreasonable due to the unreliability of the complainant’s evidence and whether the trial judge erred in permitting the jury to re-watch the complainant’s police interview without re-watching her cross-examination. The court also had to decide whether the sentence was manifestly excessive.

The court held that the evidence of the complainant was reliable and sufficient to support the verdicts. The complainant's evidence during the police interview was clear and consistent, demonstrating her understanding of the events and her recollection of the appellant’s actions. The court emphasised the weight that could be given to a child’s evidence, particularly when it is consistent and detailed. Additionally, the court found no error in the trial judge’s handling of the jury’s re-watching of the complainant’s police interview, as the judge had appropriately cautioned the jury against giving undue weight to the interview. Therefore, the appeal against the conviction was dismissed.

Regarding the sentence, the court noted that the appellant was convicted of ten counts of sexual offences against a very young child and was sentenced to three years’ imprisonment. The appellant argued that the sentence was excessive and did not adequately reflect his pleas of guilty, apology, and remorse. However, the court found that the sentence was appropriate given the gravity of the offences and the need to protect the community and deter similar conduct. The court also noted the appellant's lack of remorse and the severity of the abuse inflicted on the complainant. Consequently, the appeal against the sentence was dismissed, and the application for leave to appeal against the sentence was also dismissed.

**Orders:**

1. Appeal dismissed.
2. Application for leave to appeal against sentence dismissed.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal against sentence dismissed.

Background

Background to the litigation

As already noted, the trial judge sentenced the appellant to three years’ imprisonment. The appellant challenges that sentence on the ground that the overall sentence of three years is excessive. He also contends that he did not receive adequate benefit for his pleas of guilty, apology and remorse, and that the sentencing judge placed too great a weight on the jury viewing the recordings at the trial.The facts of the offending The trial judge made the following findings as to the facts of the appellant’s offending. None of these findings are challenged on appeal. Over a period of six months, the appellant committed a number of sexual offences against the complainant, who was three years old at the time. The complainant was the daughter of a friend of the appellant, who was living with him at the time of the offending. The appellant touched the complainant on the vagina (count 1). The appellant licked the complainant’s vagina (count 3). The appellant exposed the complainant to himself getting an erection (count 2) and exposed her to an indecent video (count 4). The appellant recorded four videos on his telephone of the complainant’s genitalia (counts 5 to 8). His possession of those videos constituted count 9. The making of those videos constituted count 10.The appellant’s personal circumstances At the time of the offending the appellant was aged 50 or 51, and was 55 years of age when he was sentenced. The appellant had no prior criminal history. The appellant attended school through to year 12 and thereafter undertook courses and an apprenticeship as a draftsman. The appellant has since worked as a draftsman for various government entities. Following referral to a psychologist in 2012, the appellant was diagnosed with Asperger’s Syndrome. He has engaged in support groups with other adults suffering from that syndrome. The judge noted that there was no suggestion that this syndrome was a cause of the offending.The sentencing remarks The judge noted that the appellant pleaded guilty to counts 5 to 10, but did not do so until the second day of the trial, after the videos had already been played and viewed by the jury. The judge acknowledged that the pleas of guilty involved a small saving of time in the trial, but did not accept that the pleas were demonstrative of remorse. The judge observed that the videos were horrific to watch and that it was unsurprising that the jury found it distressing to view the footage recorded by the appellant. The judge considered that the playing of that footage was a further abuse of the complainant and was not consistent with the appellant being remorseful or having insight into the offending. The judge observed that the courts are all too aware of the devastating, long‑lasting consequences of sexual abuse of children which can pervade every aspect of a person’s life through their adulthood. Her Honour further observed that it is not presently knowable what enduring effects the appellant’s offending might have on the complainant. The judge noted that, despite her very young age, it was clear that the complainant remembered what the appellant had done to her.

Evidence

Evidence Before The Court

Because the appellant contends that it was not open to the jury to be satisfied beyond reasonable doubt as to the reliability of the complainant’s evidence, we will outline that evidence in detail.The complainant’s evidence The complainant was interviewed by police on 6 August 2018, when she was four years old. The recording of that interview was tendered under s 93A of the Evidence Act 1977 (Qld). The complainant then gave pre‑recorded evidence on oath, which was tendered at the trial.Police interview The police interview of the complainant was lengthy. The following includes the most material parts of the interview and sufficiently demonstrates the overall flavour of the complainant’s responses during the interview. The interviewing officer showed the complainant her police badge and explained to the complainant that the interview was being recorded. The interviewing officer told the complainant the importance of telling her what really happened. The interviewing officer asked the complainant what she had come to talk about. The complainant said that, ‘[The appellant] has to go in jail’ because he ‘was touch my pee pee and licking me’. The interviewing officer asked the complainant to tell her everything about the appellant touching the complainant’s pee pee and asked the complainant to start at the beginning. The complainant said that he licked her, repeating this statement several times. The interviewing officer asked the complainant to tell her more about the appellant touching her on the pee pee. The complainant said, ‘he did’. When asked how, the complainant said, ‘cause he lied me down on his bed’. The interviewing officer asked what happened then and the complainant said that then he stopped doing it. The interviewing officer asked the complainant what part of the body she meant by ‘pee pee’. When asked what she normally does with her pee pee, the complainant said, ‘he always do it’. The interviewing officer asked the complainant where she was when the appellant did that. The complainant said that they were at the appellant’s house. When asked whereabouts in the appellant’s house, the complainant said in the appellant’s room. The interviewing officer asked which room. The complainant responded, ‘he was pretty big’. When asked what part was big, the complainant said, ‘his pee pee’. The interviewing officer asked what happened then and the complainant said, ‘and he grows’. When prompted to clarify, the complainant said, ‘it was growing’. The interviewing officer asked why it was growing. The complainant said, ‘cause when you, when you finally touch someone’s pee pee’. The interviewing officer asked who touched the appellant’s pee pee. The complainant said, ‘no, he touched mine’. The interviewing officer asked why the appellant’s pee pee got bigger. The complainant said, ‘cause he growed a big one’. The interviewing officer asked how the complainant knew that the appellant grew a big one. The complainant said, ‘cause’ and, when prompted, ‘cause he wanted to’.

Decision

Reasons for decision

For these reasons, ground 2 fails.Appeal against conviction: conclusion For the above reasons, the appeal against conviction must be dismissed.Appeal against sentence As already noted, the trial judge sentenced the appellant to three years’ imprisonment. The appellant challenges that sentence on the ground that the overall sentence of three years is excessive. He also contends that he did not receive adequate benefit for his pleas of guilty, apology and remorse, and that the sentencing judge placed too great a weight on the jury viewing the recordings at the trial.The facts of the offending The trial judge made the following findings as to the facts of the appellant’s offending. None of these findings are challenged on appeal. Over a period of six months, the appellant committed a number of sexual offences against the complainant, who was three years old at the time. The complainant was the daughter of a friend of the appellant, who was living with him at the time of the offending. The appellant touched the complainant on the vagina (count 1). The appellant licked the complainant’s vagina (count 3). The appellant exposed the complainant to himself getting an erection (count 2) and exposed her to an indecent video (count 4). The appellant recorded four videos on his telephone of the complainant’s genitalia (counts 5 to 8). His possession of those videos constituted count 9. The making of those videos constituted count 10.The appellant’s personal circumstances At the time of the offending the appellant was aged 50 or 51, and was 55 years of age when he was sentenced. The appellant had no prior criminal history. The appellant attended school through to year 12 and thereafter undertook courses and an apprenticeship as a draftsman. The appellant has since worked as a draftsman for various government entities. Following referral to a psychologist in 2012, the appellant was diagnosed with Asperger’s Syndrome. He has engaged in support groups with other adults suffering from that syndrome. The judge noted that there was no suggestion that this syndrome was a cause of the offending.The sentencing remarks The judge noted that the appellant pleaded guilty to counts 5 to 10, but did not do so until the second day of the trial, after the videos had already been played and viewed by the jury. The judge acknowledged that the pleas of guilty involved a small saving of time in the trial, but did not accept that the pleas were demonstrative of remorse. The judge observed that the videos were horrific to watch and that it was unsurprising that the jury found it distressing to view the footage recorded by the appellant. The judge considered that the playing of that footage was a further abuse of the complainant and was not consistent with the appellant being remorseful or having insight into the offending. The judge observed that the courts are all too aware of the devastating, long‑lasting consequences of sexual abuse of children which can pervade every aspect of a person’s life through their adulthood. Her Honour further observed that it is not presently knowable what enduring effects the appellant’s offending might have on the complainant. The judge noted that, despite her very young age, it was clear that the complainant remembered what the appellant had done to her.

Ratio Decidendi

Legal Principle Established

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