R v CCY

Case [2023] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

R v CCY [2023] QCA 49

PARTIES:

R
v
CCY
(appellant/applicant)

FILE NO/S:

CA No 241 of 2021
CA No 307 of 2021
DC No 239 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction and Sentence: 21 September 2021 (Fantin DCJ)

DELIVERED ON:

24 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2022

JUDGES:

Bond JA and Boddice and Freeburn JJ

ORDERS:

1.   The appeal against conviction be dismissed.

2.   Leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION AND REJECTION OF EVIDENCE – where the appellant was convicted by jury of one count of maintaining a sexual relationship with a child under 16, ten counts of indecent treatment of a child under 16, under 12, under care and two counts of indecent treatment of a child under 16, under care – where the appellant submits the evidence purportedly admitted as “preliminary complaint” evidence was not evidence in relation to an alleged offence – where it is submitted that evidence was inadmissible hearsay – whether such evidence admitted as preliminary complaint had the necessary connection to the alleged commission of the offences

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant submits the trial judge erred in not directing the jury that the preliminary complaint evidence about a particular count could only be used in respect of that count – where the jury were specifically directed they could only use such evidence in assessing the complainant’s credibility and could not regard the things said in those out of court statements of proof of what actually happened – whether the trial judge erred in the directions given

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the Crown relied on similarities in the alleged offending against each complainant as circumstantial evidence in the case of the other – where the appellant submits the trial judge erred in failing properly to direct the jury about the use that could be made of the evidence about unlawful sexual interference with each complainant in proof of the charges of the other – whether the trial judge erred in the directions given, resulting in a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – MATTERS AVAILABLE TO JURY IN JURY ROOM – where the jury were provided with check boxes as to the appellant’s guilt or innocence of each count – whether the provision of check boxes impermissibly interfered with the jury’s deliberations

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to an effective head sentence of six years…

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AGLC
R v CCY [2023] QCA 49
Case
[2023] QCA 49
Decision Date

CaseChat Overview and Summary

In the case of R v CCY, the appellant, who had been convicted by jury of one count of maintaining a sexual relationship with a child under 16, ten counts of indecent treatment of a child under 16, under 12, under care, and two counts of indecent treatment of a child under 16, under care, sought to appeal his conviction and sentence. The appeal against conviction centred around several grounds, including the improper admission and rejection of evidence, alleged misdirection and non-direction of the jury, irregularities in relation to the jury, and the excessiveness and inadequacy of the sentence. The appellant's appeal against sentence was based on the sentence being manifestly excessive, the sentencing judge acting on the wrong principle, and taking irrelevant considerations into account as aggravating factors.

The court examined the grounds of appeal against conviction and determined that the appellant had not established any ground for setting aside his convictions. Regarding the appeal against sentence, the court held that an effective head sentence of six years imprisonment properly reflected a consideration of the aggravating and mitigating features, and such a sentence fell well within a sound exercise of the sentencing discretion. The court concluded that there was no basis to conclude that the sentence was plainly unreasonable or unjust.

In light of these findings, the court ordered that the appeal against conviction be dismissed and leave to appeal against sentence be refused. The reasoning and conclusions of the primary judge were upheld, and the orders proposed by the primary judge were adopted.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. Leave to appeal against sentence be refused.

Background

Background to the litigation

The appellant also seeks leave to appeal his sentence. Should leave be granted, the appellant relies on four grounds. First, the sentence was manifestly excessive. Second, the sentencing judge erred in the consideration of comparable authority. Third, the sentencing judge impermissibly took into account the basis for an absence of complaint and the strength of the Crown case. Fourth, the sentencing judge erred in finding the aggravating features were the same for each complainant.Background The appellant is 57 years of age. He was aged between 49 and 53 at the time of the commission of the offences. All of the offences were particularised as having occurred on dates between 30 April 2015 and 19 November 2019 at the home or homes shared with the appellant’s then de facto wife who was the mother of the two female complainants, LC and LW. The maintaining count and seven of the indecent treatment counts related to LC. She was aged between 10 and 14 years at the time of the commission of the offences. The remaining counts concerned LW. She was aged between four and eight years at the time of the commission of those offences.Counts Count 1 was the charge of maintaining an unlawful sexual relationship with a child under 16. Counts 2 to 8 formed particulars of the maintaining count. Counts 2 and 7 were particularised as touching LC’s vagina. Counts 3 and 5 were particularised as having LC manipulate his penis. Count 4 was particularised as thrusting against LC, after emerging from a shower. Count 6 was particularised as a demonstration of ejaculation. Count 8 was particularised as touching LC’s breasts. Counts 2, 3, 4, 5 and 6 were alleged to have occurred when LC was under 12 years of age. Counts 7 and 8 were alleged to have occurred after LC had turned 12 years of age. Counts 9, 11 and 13 were particularised as having LW touch his penis. Counts 10 and 12 were particularised as touching LW’s vagina. Counts 2 to 13 inclusive were further particularised as the appellant having the complainants under his care for the relevant time being.Evidence LC first spoke to police on 18 November 2019. She had attended the police station with her mother and LW. At that stage, LC was in grade nine. LC said she had come to talk to the police about the appellant and how “he’s been sexually harassing me”.[1] It started in grade five.[1]AB420/5. LC said that until recently she had been living at a house in Mount Sheridan. She had lived there since 2015 with her mother, LW and the appellant. The appellant had been her mother’s boyfriend since 2015. LC said the appellant was a truck driver when she first met him. He had been driving locally until he started undertaking interstate work again last year in 2018. She said her mother worked as a cleaner. LC remembered an occasion when the appellant put his hand down her pants and touched her “down there”.[2] On another occasion the appellant grabbed her hands and made her “touch his dick”.[3] She could not recall how many times but said it had happened quite a few times when her mother was not at home.[2]AB420/20.[3]AB420/30.

Evidence

Evidence Before The Court

Counts 9, 11 and 13 were particularised as having LW touch his penis. Counts 10 and 12 were particularised as touching LW’s vagina. Counts 2 to 13 inclusive were further particularised as the appellant having the complainants under his care for the relevant time being.Evidence LC first spoke to police on 18 November 2019. She had attended the police station with her mother and LW. At that stage, LC was in grade nine. LC said she had come to talk to the police about the appellant and how “he’s been sexually harassing me”.[1] It started in grade five.[1]AB420/5. LC said that until recently she had been living at a house in Mount Sheridan. She had lived there since 2015 with her mother, LW and the appellant. The appellant had been her mother’s boyfriend since 2015. LC said the appellant was a truck driver when she first met him. He had been driving locally until he started undertaking interstate work again last year in 2018. She said her mother worked as a cleaner. LC remembered an occasion when the appellant put his hand down her pants and touched her “down there”.[2] On another occasion the appellant grabbed her hands and made her “touch his dick”.[3] She could not recall how many times but said it had happened quite a few times when her mother was not at home.[2]AB420/20.[3]AB420/30. LC said the appellant would go into the shower and when he came out he would go to LC and do either one of those things. He also did it in the living room whilst her mother was busy. LC said that continued for a couple of years. LC said, in grade seven, she stayed away from the appellant. When he came home she would spend most of her time in her room. LC said she told her really close friends in grade seven. They told her to go to someone but LC said she did not want to because she was too scared. LC said her friends told her to go to the guidance counsellor the day she attended the police station. The counsellor spoke to her mother. LC said she could not remember the first time the appellant touched her in her private area. The first occasion she clearly remembered was at night, when her mother was making dinner. This was in the house at Mount Sheridan, in 2015, when she was in year five. It happened less than a year after she first met the appellant. LC said she was standing, having just walked into the lounge room. The appellant was lying on the couch. He stopped her as she went to walk to the other side. He put his hand down her shorts. LC said the appellant put his hand down her pants from the top at the front. He rubbed his fingers around her vagina “right outside of the hole”.[4] His fingers went everywhere except for in the vagina. He left his hand in her pants for a minute or two. LC said the appellant told her just before he did it not to tell anyone or he would get into a lot of trouble.[4]AB426/38. LC said she could not remember most of the other occasions clearly because there were multiple times exactly like that; it happened quite often.

Decision

Reasons for decision

An effective head sentence of six years imprisonment properly reflected a consideration of the aggravating and mitigating features. Such a sentence fell well within a sound exercise of the sentencing discretion. It does not evidence any misapplication of principle and there is no basis to conclude that such a sentence was plainly unreasonable or unjust.Conclusions The appellant has not established any ground for setting aside his convictions. The appellant has not established any ground favouring a grant of leave to appeal against sentence.Orders I would order: The appeal against conviction be dismissed. Leave to appeal against sentence be refused. FREEBURN J: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

After considering comparable authorities but noting that none were “exactly the same”, the sentencing judge imposed a head sentence of six years imprisonment on the maintaining count and lesser concurrent periods of imprisonment on the other counts. The sentencing judge declined to fix an earlier parole eligibility date.Consideration Absent specific error being established, a ground of appeal that a sentence was manifestly excessive will not succeed unless it be established that the sentence is of such a nature that it must give rise to a conclusion that there was a misapplication of principle or otherwise supports a conclusion that the sentence is plainly unreasonable and unjust.[59][59]R v MCT [2018] QCA 189 at [240]. As the appellant asserts specific error, it is appropriate to first consider grounds 2, 3 and 4.Ground 2 The appellant submits that the sentencing judge specifically erred in discerning the basis for the sentence in one of the comparable cases, R v NR,[60] and thereby acted on a wrong principle or took into account an irrelevant consideration. It is submitted that emphasising that the sentence in R v NR was imposed following a plea of guilty was erroneous as the utility of the plea had been recognised by the setting of an earlier parole eligibility date.[60][2014] QCA 159. The observations made by the sentencing judge, in the course of submissions, must be considered in context. At the time, the prosecutor was outlining the factual circumstances of cases said to be comparable, and submitting as to the appropriate sentence for a maintaining charge alone, in the context of comparable cases which were acknowledged to be far less serious than the appellant’s criminality. In that context, the sentencing judge observed that R v NR involved a sentence imposed after a plea of guilty for a significantly shorter maintaining period, albeit involving more serious offending. Those observations were factually correct. There is no basis to conclude that a factually correct reference to differing factors in comparable yardsticks, during submissions, involved a misapplication of a comparable sentence, when imposing the sentence for the appellant’s overall criminality, for maintaining a sexual relationship in respect of a child in his care for a period in excess of four and a half years, and for sexually offending against a separate younger complainant.Ground 3 The appellant submits the sentencing judge erred in taking into account, as an aggravating factor, that LC was scared to tell her mother of the offending because of their financial dependence upon the appellant and a concern that her mother would not believe her, as LC had overheard an earlier conversation between LW and her mother. The appellant submits there was nothing to indicate that the appellant had any insight into these subjective reasons. Further, the sentencing judge erred in having regard to the case being a strong Crown case. There had already been a finding of no remorse or contrition so the strength of the case could not constitute an additional aggravating feature.