SUPREME COURT OF QUEENSLAND
CITATION:
R v CDC [2024] QCA 108
PARTIES:
R
v
CDC
(appellant/applicant)FILE NO/S:
CA No 36 of 2024
DC No 736 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Cairns – Date of Conviction: 9 February 2024; Date of Sentence: 13 February 2024 (Fantin DCJ)
DELIVERED ON:
7 June 2024
DELIVERED AT:
Brisbane
HEARING DATE:
2 May 2024
JUDGES:
Morrison and Boddice JJA and Crowley J
ORDERS:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was tried before a jury on an indictment, containing 10 counts, for various allegations of sexual misconduct against the appellant’s grandchildren – where the appellant was convicted of one count of indecent treatment of a child under 16, who is a lineal descendant, as a guardian (count 8) – where the appellant was found not guilty of the remaining 9 counts – where count 8 and count 9 concerned the same event but different complainants (X and Z) – where X’s evidence was that Z was not present at the event – where there was reason to doubt Z’s evidence – where X’s account was supported by preliminary complaint evidence – where the appellant conceded the event may have happened – whether the verdict of guilty of count 8 is inconsistent with the verdict of not guilty of count 9
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of indecent treatment of a child under 16, who is a lineal descendant, as a guardian – where the appellant submits that because Z’s evidence for count 9 was rejected, the jury should also have doubted X’s evidence for count 8 – where the appellant’s own account gave support to X’s evidence – where X’s account was consistent and supported by preliminary complaint witnesses – whether the guilty verdict for count 8 was unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to eight months imprisonment, suspended after three months, for an operational period of eight months – where there were a number of aggravating features that made aspects of the offence objectively serious – where the appellant persisted in the conduct despite being told to stop, there was a gross breach of trust, a biological relationship, and an absence of remorse and insight – where the sentencing judge found no exceptional circumstances when regard was had to the aggravating factors – whether the sentencing judge erred in not finding that there were exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992 (Qld), such that a period of actual imprisonment was required
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Details
- AGLC
- R v CDC [2024] QCA 108
- Case
- [2024] QCA 108
- Decision Date
CaseChat Overview and Summary
The appellant, who was the grandfather of three children, was convicted of one count of indecent treatment of a child under 16, who is a lineal descendant, as a guardian, following a jury trial. The appellant was acquitted of the remaining nine counts of sexual misconduct against his grandchildren. The appellant appealed against his conviction on the basis that the verdict of guilty on count 8 was inconsistent with the verdict of not guilty on count 9, which related to the same event but involved a different complainant. The appellant also sought leave to appeal against his sentence, arguing that the sentencing judge erred in not finding exceptional circumstances that would warrant a period of actual imprisonment.
The legal issues before the court were whether the conviction on count 8 was inconsistent with the acquittal on count 9 and whether the guilty verdict on count 8 was unreasonable or insupportable having regard to the evidence. Additionally, the court considered whether the sentencing judge erred in not finding exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992 (Qld).
The court found that the verdict of guilty on count 8 was not inconsistent with the acquittal on count 9 as the quality of the evidence on count 8 differed materially from the remaining counts. The court noted that X's evidence on count 8 was supported by preliminary complaint evidence from the guidance officer and the departmental officer's admitted account. The appellant's admission that an occasion of X catching him masturbating "may have happened" also provided support for X's account being reliable and credible. The court further held that the verdict of guilty on count 8 was not unreasonable as it was open to the jury to be satisfied of the appellant's guilt of count 8, beyond reasonable doubt. Regarding the sentence, the court found that the jury's verdict of guilty of only count 8 was consistent with the jury having had a doubt, overall, as to the reliability of X's evidence, except where it was supported by other evidence, in material respects.
The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The orders made were as follows:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
The legal issues before the court were whether the conviction on count 8 was inconsistent with the acquittal on count 9 and whether the guilty verdict on count 8 was unreasonable or insupportable having regard to the evidence. Additionally, the court considered whether the sentencing judge erred in not finding exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992 (Qld).
The court found that the verdict of guilty on count 8 was not inconsistent with the acquittal on count 9 as the quality of the evidence on count 8 differed materially from the remaining counts. The court noted that X's evidence on count 8 was supported by preliminary complaint evidence from the guidance officer and the departmental officer's admitted account. The appellant's admission that an occasion of X catching him masturbating "may have happened" also provided support for X's account being reliable and credible. The court further held that the verdict of guilty on count 8 was not unreasonable as it was open to the jury to be satisfied of the appellant's guilt of count 8, beyond reasonable doubt. Regarding the sentence, the court found that the jury's verdict of guilty of only count 8 was consistent with the jury having had a doubt, overall, as to the reliability of X's evidence, except where it was supported by other evidence, in material respects.
The court dismissed the appeal against conviction and refused the application for leave to appeal against sentence. The orders made were as follows:
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
Orders
Orders of the court
1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence refused.
Background
Background to the litigation
The appellant also seeks leave to appeal against the sentence imposed on the basis that the learned sentencing judge was in error in not finding that there were exceptional circumstances for the purposes of s 9(4) of the Penalties and Sentences Act 1992 (Qld), such that a period of actual imprisonment was required.Background The summary of the factual background set out in the appellant’s outline was broadly accepted by the Crown. What follows is drawn from that summary. X and Y were girls, and Z was a boy. The appellant had the care of the children lawfully through the intervention of the Department of Child Safety due to the mother being addicted to drugs. The father of the children, the appellant’s son, is deceased. The appellant also had the care of a fourth grandchild who was older than the others, however he did not play a part in either the allegations or the trial. Whilst there were three children involved, the majority of the offending occurred against X; namely, eight out of the 10 counts on the indictment. Z was the complainant for count 9 and Y was the complainant for count 4. Factually, all that need be said for present purposes is that which the Crown particulars alleged:[1][1]AB 422-423.(a)count 1 (maintaining a sexual relationship with X) the relationship consisted of one or more of the following acts:(i)the conduct the subject of Counts 2, 3, 5-–8 and 10;(ii)touching her vulva/vagina with his finger;(iii)touching her vulva/vagina with his mouth;(iv)touching her bottom under her clothes;(v)attempting to, or having her, touch his penis with her hand;(vi)attempting to have her suck his penis; and(vii)masturbating in front of her;(b)count 2: rubbing his penis against X’s vulva/vagina, through her underwear, whilst she was on top of him; this occurred in the appellant’s bedroom when X was 10 or 11 years old;(c)count 3: licking X’s vulva/vagina; this occurred in X’s bedroom when she was 11 or 12 years old;(d)count 4: the appellant had Y touch his penis; this occurred in the appellant’s bedroom when Y was around 8 years old;(e)count 5: the appellant had X touch his penis; this occurred in the appellant’s bedroom;(f)count 6: touching X’s vulva/vagina with his finger; this occurred in the bathroom in 2020 when the appellant asked her if her vagina was clean;(g)count 7: touching X’s bottom; this occurred in the appellant’s bedroom in 2020;(h)count 8: exposing his penis to and/or masturbating in the view of X; this occurred whilst the appellant was at the desk in the loungeroom in 2020;(i)count 9: exposing his penis to and/or masturbating in the view of Z; this occurred whilst the appellant was at the desk in the loungeroom in 2020; and(j)count 10: touching X’s vulva/vagina with his finger; this occurred in the bathroom when X was shaving her vagina; the appellant commented that he wanted to kiss it and that she had a beautiful vagina. The defence contention was that the eldest child, X, driven by her increasing frustration and anger towards the appellant, fostered the allegations against him (and encouraged her younger siblings) in a plan to allow her and her siblings to be reunited with their mother. During cross-examination, X accepted amongst other things that the appellant had stopped her from seeing her mother, was always disparaging her mother, damaged a phone she had been given (by her mother) to stop her contacting her mother, was angry to the appellant, that she wanted to live with her mother, that her mother had changed and the like.
Evidence
Evidence Before The Court
On 24 October 2021, the appellant participated in a police interview. Relevant aspects of what he said included:(a)X had made allegations to Childrens Services and that department got involved;(b)X “has or had a problem with urine where she would pee herself frequently … And that was getting treated through the medical system. … And she’s all but, all but better with it. …She was getting better and stronger. Her bladder, bladder was getting stronger and everything else. But she always constantly smelt of urine and it concerned her”;[10][10]AB 666 lines 22-38.(c)he then explained: “And she wanted her pubics shaved and I agreed with that because at the time of the smelling being, the smell stayed there. … It was, it was in the pubic hairs. … And she asked me could I assist her in shaving, in the shaving of her pubic area. … And then this is where it’s all gone pear-shaped from there on”;[11][11]AB 666 lines 41-58.(d)he explained his view of what happened:[12][12]AB 667 lines 3-37.“You know [X], … I helped her. I showed her how to shave. Anyway as a single parent I didn't think anything of it. … I didn’t believe that, in hindsight, yeah, look it probably wasn’t smart. It definitely wasn’t smart - -… In hindsight, but at the time I didn’t believe that was wrong to assist a naked girl with hygiene …. As a single parent I was playing the role of mother, father, grandfather, friend ….Mentor, bloody whatever. Um, anyway [X] was, and then she took the razor … and she said how’s that and … look I could kick myself doing it . I, I did, I physically touched her vaginal area, yes. I’m not going to deny that. … I said yeah, that’s a beautiful job, well done. … You know as in there was no, no hair left, it was smooth. Nothing sexual about the whole bloody thing at all”;(e)he then explained the next comment he made:[13][13]AB 667 line 46 to AB 668 line 23.“I’m not going to deny it, and I said to [X], I said the last time I saw a naked woman's, ah, fanny I wanted to kiss it. I wasn’t referring to the fact that I wanted to kiss her fanny which somehow or other she thought is what I said. … And that’s what started the whole thing. You know at no stage at… point in time was it sexual for me. … I don’t get sexually aroused by a bloody teenage girl. … I now understand it was probably inappropriate. I definitely understand that what I said was inappropriate, yes. … But you can’t take words back once you’ve said them regardless of the intent. … Once those words leave your mouth [INDISTINCT] you can’t take them back. … But there was certainly no intent. And that’s what led [X] in to have a talk to her teachers at school or whoever she spoke to and got Children Services involved and the police got involved”;(f)he repeatedly explained his position as “sole parent” for three children;(g)asked to explain what he did to help X, he said that:[14][14]AB 668 line 36 to AB 669 line 2.“I got the razor … Put some soap and I think I might have even, I can’t recall whether we used shaving cream or soap to be honest. … Um, and I just got the razor and I said right, now you’ve gotta stroke down and then come back up to make sure you, you get the stubs. So I done the bulk of the heavy, heavy area and then she done the closing part around the, around her what do you call it, the vagina itself I guess, yeah. … She got the razor and she shaved in all that [INDISTINCT] area around there. And that’s what I said, that’s beautiful, you’ve done a beautiful job. … I wasn’t referring to her fanny, I was referring to the fact that she’d done a nice of job of, of shaving her area, yeah”;(h)asked if he touched X, the appellant said he rubbed his finger “up the flesh”, and said “yep, that’s beautiful, nice and smooth”;[15] he said that he touched X to “the outside of [the middle of the vagina] on the bulge area … just where … the fine hairs would have been”;[16][15]AB 669 lines 4-11.[16]AB 669 lines 21-29.(i)he said it was X who asked if she could shave her pubic area, and he agreed “because of the hygiene side of it”; he denied he inserted a finger or anything else into X;(j)the time he described above was the second time he had helped her to shave her pubic area; the first was because X was concerned about the smell, and it “was just to shave the fanny and there was nothing happened”;[17][17]AB 670 lines 24-51.(k)he explained that they had a doctor’s reference to the hospital in respect of treating X’s pelvic floor issues, and had been working on her ability to strengthen her pelvic floor muscles for about 12 months;[18][18]AB 671-674; AB 682-683.(l)asked how the topic of shaving came up, he said that X was being teased by schoolkids about the smell, and she felt intimidated and ashamed;[19][19]AB 674 lines 29-51.(m)he had been looking after the children for six years on his own, because their mother had drug problems and the father was deceased;(n)he explained that he had spoken several times to Childrens Services about the shaving incidents, and he “agreed with them that yeah, yeah, it probably is inappropriate … Once it’s been shown to me. … I’ve accepted the fact that in the eyes of someone outside looking in yes, my actions probably were inappropriate”;[20][20]AB 678 line 44 to AB 679 line 16.(o)asked if he had discussed (with Childrens Services) the issue of checking X for infection, he said he had observed “a white … creamy substance …building up on her vagina”;[21] X smelt funny and he told her she was not cleaning herself properly; he got her to sit up on the hand basin and inspected her vaginal area; he “wiped his finger up [between the vaginal flaps] and took some cream off”, explaining to X that the fact there was cream meant it was not clean, and that was where the smell was coming from; he believed he was “doing the role of a parent”;[22][21]This was the subject of count 6.[22]AB 679 line 18 to AB 681 line 58.(p)the circumstances of count 3 were put to him; he responded “Never happened” and “Never ever happened”;[23][23]AB 687 lines 34-40; AB 689 lines 36-50; AB 700 line 33.(q)the circumstances of count 2 were put and he denied them, saying “Never happened”;[24][24]AB 694 line 58 to AB 695 line 9.(r)the circumstances of some of the acts alleged in count 1 were put and he denied them, saying it had “never happened”;[25][25]AB 696 line 11 to AB 69 line 1.(s)the circumstances of count 7 were put, and he responded “That may have happened”;[26] asked to explain why he said it may have happened he answered “I don’t know. I’m just saying it may have happened. … I don’t recall doing it, but it may have happened”;[27] he explained further:[28][26]AB 697 lines 7-12.[27]AB 697 lines 14-22.[28]AB 697 lines 26-43.“I don’t know whether I would have had my bloody hand inside her underwear or not, but I may have squeezed her bottom, but I’ve done that with the kids all me bloody life…. It’s a probability, yes. … It … possibly and probably happened, but I don’t recall it, no.”(t)the circumstances of count 8 were put;[29] his response was in this exchange:[30][29]AB 697 line 47 to AB 698 line 9.[30]AB 698 lines 11-42.“APPELLANT: That may have happened.POLICE: Alright. Tell me why that may have happened?APPELLANT: Well I’m certain wouldn’t, wouldn’t have caught me a second time. She may have caught me having a bloody play with my doodle ---POLICE: Yep.APPELANT: When I believed they were asleep, yes.POLICE: Okay. So tell me why you believed they may have been asleep?APPELLANT: Well she just said herself in her own statement that she woke up, so~ -POLICE: Yep.APPELLANT: My belief they would have been asleep, yes.POLICE: How often would the kids sleep out in the lounge room then?APPELLANT: Not often.POLICE: Alright. So why would you have been sitting at the computer doing those sorts of things while they were asleep in front of you?APPELLANT: Well if they’re asleep what’s it matter what I do?”(u)the appellant explained he watched “trans porn” on his computer because “Girls don’t get my rocks off”;[31](v)the circumstances of count 6 were put; he denied touching X’s vagina inside, saying “just external”;[32] the beautiful vagina comment was referred to, and then it was put that the appellant had said he “I wish I could kiss it”; he denied that, saying “No”;[33] he then explained:[34]“No. So there’s been a… she’s misunderstood I believe the comment that I made and … probably because of the way it came out, you know the last time I saw a naked, bloody a woman’s naked vagina I wanted to kiss it. … And that was said after the shaving. But I wasn’t referring that I wanted to kiss [X]’s vagina.”(w)by way of general comment he said:[35]“Yeah , like I said … I done inappropriate things, yes. I did, like I did walk around the house naked every now and then, and I did help shave her vagina and it’s , and in the light of day it’s inappropriate, but at that time I didn’t believe that, no . Yes, I’ve sat there on me computer and played with me doodle and the kids have walked out of the bedroom. But again I believed that I was in my own privacy at that time. Nothing has ever been started with the intent and that’s the thing . … I don’t get me rocks off with girls or kids. I get me rocks off on trans porn. Don’t … ask me why, but I do.”[31]AB 698 lines 49-58.[32]AB 699 line 10.[33]AB 699 lines 36-43.[34]AB 699 line 52 to AB 700 line 2.[35]AB 701 lines 40-58.The evidence at trial
Decision
Reasons for decision
Finally, for the reasons which I have explained in respect of the inconsistent verdicts ground, the acceptance of X’s evidence in respect of count 8 does not mean there was a wholesale rejection of X’s evidence such that it could not form the basis for sentencing on count 8.Conclusion For the reasons I have expressed above, the appeal should be dismissed and the application for leave to appeal against sentence should be refused. I propose the following orders:1.Appeal against conviction dismissed.2.Application for leave to appeal against sentence refused. BODDICE JA: I have read the judgment of Morrison JA. I agree that the appeal against conviction should be dismissed. Morrison JA’s comprehensive summary of the evidence, which I gratefully adopt, allows me to briefly state my reasons. First, the verdict of guilty of count 8 was not inconsistent with the verdicts of not guilty of the remaining counts. That verdict was logical and reasonable, having regard to the differing quality of the evidence on that count. Unlike the remaining counts, there was significant other evidence materially relevant to this count. The preliminary complaint evidence of the guidance officer and as contained in the admitted conversation with the officer of the Department of Child Safety was consistent with X’s account of this occasion. The appellant’s acceptance, in his interview with police, that an occasion when X caught him masturbating “may have happened” also provided support for X’s account being reliable and credible. Although the appellant expressly denied that he would have been caught a second time, it was open to the jury to reject that assertion. Both the guidance officer’s evidence and the departmental officer’s admitted accounts were consistent with X’s evidence that it had happened twice, on the same night. Second, the verdict of guilty of count 8 was not unreasonable. A consideration of the record as a whole supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt of count 8, beyond reasonable doubt. Whilst the jury obviously had a reasonable doubt as to X’s reliability in respect of the occasions that are the subjects of the remaining counts, the quality of the evidence on count 8 was materially different. Not only was there an internal consistency in X’s evidence as to this count, the preliminary complaint evidence of both the guidance officer and the departmental officer’s admitted account was consistent with X’s evidence. Further, the appellant’s acceptance, that an occasion of X catching him masturbating “may well have happened”, supported X’s evidence in a material way. In respect of the application for leave to appeal against sentence, I would grant leave to appeal against sentence, but would dismiss the appeal. The jury’s verdict of guilty of only count 8 was consistent with the jury having had a doubt, overall, as to the reliability of X’s evidence, except where it was supported by other evidence, in material respects. In the case of count 8, some support came from the appellant’s admission that such an occasion “may have happened”. However, that admission was limited to one occasion. There was an express denial as to a second occasion, on the same night.
Ratio Decidendi
Legal Principle Established
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