R v Fenton
[2015] QCA 125
•26 June 2015
SUPREME COURT OF QUEENSLAND
CITATION:
R v Fenton [2015] QCA 125
PARTIES:
R
v
FENTON, Barry James
(appellant/applicant)FILE NO/S:
CA No 202 of 2014
CA No 232 of 2014
DC No 337 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Cairns – Unreported, 17 July 2014 (Conviction); 12 August 2014 (Sentence)
DELIVERED ON:
Orders delivered ex tempore on 26 June 2015
Reasons delivered 10 July 2015DELIVERED AT:
Brisbane
HEARING DATE:
13 April 2015
JUDGES:
Margaret McMurdo P and Holmes JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
Delivered ex tempore on 26 June 2015:
1. Dismiss the appeal against conviction.
2. Grant the application for leave to appeal against sentence on count 1 and allow the appeal.
3. Refuse the application for leave to appeal against sentence on counts 2 – 12.
4. Set aside the sentence on count 1 and substitute a sentence of nine years imprisonment with the parole eligibility date fixed at 26 June 2015.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, one count of common assault and five counts of rape – where the appellant was acquitted of one count of common assault and one count of assault occasioning bodily harm – where the appellant argued that the verdicts of guilty were unreasonable because they were inconsistent with the acquittals – where there was a different quality to the complainant’s evidence in respect of the counts of which the appellant was acquitted – where the complainant’s evidence in respect of the counts of which the appellant was convicted was supported by other evidence – whether there was a rational basis for distinguishing between the verdicts
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to ten years imprisonment for maintaining a sexual relationship with a child – where the sentencing judge proceeded on the basis that there was an ongoing sexual relationship which lasted for longer than the period charged – where the complainant gave evidence that she had been raped countless times, but expressed uncertainty as to what constituted rape – whether the sentencing discretion ought to be re-exercised – whether the sentence was manifestly excessive
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v C; ex parte A-G (Qld)[2003] QCA 134, considered
R v D [1996] 1 Qd R 363; [1995] QCA 329, applied
R v DBC; ex parte A-G (Qld)[2012] QCA 203, citedR v SAG (2004) 147 A Crim R 301; [2004] QCA 286, considered
COUNSEL:
The appellant/applicant appeared on his own behalf
B J Power for the respondentSOLICITORS:
The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: I agree with Holmes JA’s reasons for dismissing the appeal against conviction, granting the application for leave to appeal against sentence on count 1 and allowing the appeal against sentence on count 1. I agree with the orders proposed by Holmes JA.
HOLMES JA: The appellant was convicted of one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, one count of common assault and five counts of rape. He was acquitted of a count of common assault and another of assault occasioning bodily harm. His notice of appeal gave as the ground for the appeal against the convictions that the verdicts of guilty were unreasonable because they were inconsistent with the acquittals on the two assault counts. He also sought leave to appeal against the sentences imposed (ten years imprisonment in respect of the maintaining charge, seven years in respect of each of the five counts of rape, and two years in respect of each of the common assault and indecent treatment counts) on the grounds that they were manifestly excessive.
The complainant’s evidence
The complainant, B, was the foster daughter of the appellant’s girlfriend. In December 2004, when she was 15, she was interviewed by police, having run away from her foster home and sought the help of her grandparents. She said that there had been a number of instances of sexual assault by the appellant. They had occurred when her foster mother was resting, or was away from the rural property on which they lived. The first that B identified occurred when she was about 13. The appellant had come into her bedroom at night and made her hold his penis. That incident was the subject of Count 2 on the indictment, a charge of indecent treatment. On another occasion, he had tried to force her to fellate him and pushed his penis up against her mouth (Count 3, indecent treatment). When she did not cooperate, he punched her in the head (Count 4, common assault).
On a different occasion, when the two were in a shed on the property, the appellant had succeeded in forcing his penis into her mouth. He had made her go on her knees and, despite her resistance, tricked her into opening her mouth to speak and then held her mouth open while he inserted his penis (Count 5, rape). B said that on another occasion in the shed her small brother (who was autistic) was present and saw “his [the appellant’s] dick going through [her] legs” (Count 6, rape). At that point the police officer contributed
“And you said youse were standing up, so –”,
to which the complainant agreed. In fact, however, she had said nothing to that point about standing, so this seems at best, to have been an unfortunate piece of leading based on some misapprehension of what she had previously said. However, as counsel for the respondent pointed out, B was not cross-examined about what might otherwise have been thought to be an opportunistic adoption of the police officer’s suggestion.
B went on to explain that there was a small space at the back of a cupboard in the shed where the appellant would have sex with her standing up, pushing his penis into her vagina, and would ejaculate on some feed bags. Intercourse with the appellant had occurred mostly in the shed, about seven times in her bedroom, three times in a caravan on the property and twice in a cane field.
B said that there was a single incident of intercourse in the bathroom of their dwelling; it occurred while her foster mother was away. She and the appellant were in the bathroom, both naked. He touched her on the breasts and buttocks and put his penis in her vagina (Count 7, rape). That was probably in 2003 or 2004. B gave details of an incident in which the appellant made her watch a pornographic movie while, as she put it, “giving [her] anal sex”. What she meant by that, it transpired, was that the appellant stood behind her with his penis between her buttocks (Count 8, indecent treatment). A police officer later retrieved two pornographic videos from the premises.
Counts 11 and 12, both counts of rape, were said to have occurred in B’s bedroom. She placed the first as having occurred on the morning of her birthday, 26 October 2004. She said that the appellant had made her lie on her bed, taken off her underwear and his own pants, and penetrated her. There was ejaculate on the bed. She was afraid that if he had not withdrawn quickly enough, she might be pregnant. The second occasion she placed by a social event called the “Barra Bash” (which it was admitted took place between 29 and 31 October 2004). Her foster mother was away attending it, and the appellant was babysitting her. Again he had sex with her and ejaculated on the bed. Asked why she let the appellant penetrate her, B said she could not stop him.
Early in the interview, B said that the appellant had threatened her, and she knew that he had had gone to jail for killing a man who killed his, the appellant’s, daughter by raping her. Later, she made three allegations of serious violence, two of which resulted in charges, one of assault and one of assault occasioning bodily harm. The appellant was acquitted on both. B said that on one occasion, the appellant had strangled her, lifting her entire body as he did so, and placed pressure on her throat so that she lost consciousness. She woke on the other side of the kitchen. That was the subject of Count 9, common assault. Towards the end of her interview, she said that she had forgotten to tell the police officer that the appellant had threatened to kill her after the first time she disclosed what occurred to her foster mother. Her account emerged as follows:
“SCON CIFFUENTES: What did he say to you?
[B]: He’d cut my throat and plus it’s not like it’s not possible. He, like I said he's knocked me out before and when I'm in the kitchen …he like goes like that, you know, like that, to get me out of his road so --
SCON CIFFUENTES: All right.
[B]: And then there’s this look that he gives me.
SCON CIFFUENTES: So this was last year when you first tried to tell your foster mum, Leonie, and then you took it back because do you remember where you were when he threatened you?
[B]: No. All I remember is the knives.
SCON CIFFUENTES: What knives?
[B]: Knife out of the drawer.
SCON CIFFUENTES: What knives were they, sorry?
[B]: All I remember is the knife out of the drawer.
SCON CIFFUENTES: What was the knife doing out of the drawer?
[B]: He had it in his hand there.
SCON CIFFUENTES: He put it--
[B]: Yeah, it wasn’t like - it didn’t make a scar or anything. It just made like a scratch.
SCON CIFFUENTES: Where was - where was Leonie at this time?
[B]: I can’t remember to be honest.
SCON CIFFUENTES: Where were you?
[B]: Well, he was holding the knife to my neck so--
SCON CIFFUENTES: What I'm asking is are you at home? Are you--
[B]: Ah--
SCON CIFFUENTES: --in your bedroom or--
[B]: Home.
SCON CIFFUENTES: Yeah. Do you know where in the house?
[B]: The kitchen, I think.
SCON CIFFUENTES: What were you doing in the kitchen?
[B]: Washing up, I think.
SCON CIFFUENTES: And how - how did he come to put the knife on your throat?
[B]: I - I can’t remember whether Mum was home. I’m sorry. I cannot remember much.
SCON CIFFUENTES: No, that’s all right.
[B]: But all I remember is him - him doing that.”
That was the subject of Count 10, assault occasioning bodily harm.
B made further allegations about violence which were left as uncharged acts. The most remarkable was an occasion on which the appellant told her to get in his car. She considered that to go in the car meant death, but she chose to go “as a way out of everything”. The appellant drove down the road hitting her with a wooden hammer on her head and arm, saying that he would kill her and bury her in the bush. The car door was locked so that she could not jump out. She did not explain how the situation was resolved. The appellant, B said, used to “belt” her with a belt that had spikes on it, and punch her. He last punched her as recently as a month or two ago.
About a year previously, B said, she had told her foster mother what was happening and then had retracted her allegations, saying (falsely) that they were untrue. The previous week, she had repeated her account to her foster mother. The latter had reacted by locking B in her room when she had a rest, and ensuring that she was not left alone with the appellant. The night before B spoke to police, the appellant and her foster mother had revealed to her that they were married, and shown her their wedding rings.
B’s cross-examination on the trial was limited to counsel’s putting to her that the appellant had not: shown her pornographic videos; threatened her; physically assaulted her; or had any sexual contact with her. She disagreed with all of those propositions.
Previous complaint evidence
Two of B’s former school friends gave s 93A interviews in February 2005, and were called at the trial, but neither was cross-examined. The first, a girl named Tiffany, said that in March or April 2004, B had told her that the appellant had been sexually abusing her “for ages”. She had said that the appellant “raped her and stuff like that” but she did not want to tell anyone in authority because she was afraid that she would be separated from her brother and her foster mother. B had said that the appellant touched her and molested her, and when her mother was having a sleep in the afternoon he took her down the paddock and made her do things she did not want to do. A couple of days previously, he had taken her to a chicken shed and raped her. She went with him because she was afraid and knew he would hit her or do something worse. Tiffany said she did not know whether B actually had been hit by the appellant, but she had described the appellant pretending he was going to hit her. At one stage, B had thought she might be pregnant to the appellant, but found she was not. Occasionally B had bruises on her arms, although Tiffany was not sure what had caused them. B had told her that the appellant made her run around the paddock because she was too fat, and if she did not run fast enough, would hit her with a belt on the legs.
The second girl, Michelle, said that in about October 2004, B had revealed that her foster mother’s boyfriend had threatened her with knives, made her unconscious, and raped her. B had recounted being raped in the house, in the bedrooms and in the lounge room, but not anywhere else. She said that it had happened “not often” but “like a few times”. B had said that the appellant pressed her throat with his hand so that she would become unconscious and would not be able to fight him. She had told a number of other girls similar things. Michelle had noticed bruises on B’s arms and legs. B had also told her that she could not complain because she did not want to be taken away from her brother.
As a foster child, B had caseworkers responsible for overseeing her care. One of them had managed B’s case for about a year and a half commencing in 2002, having face-to-face contact with her once or twice a month. B had never complained to her of sexual or physical abuse, and she could not recall seeing any sign of physical abuse on her person. The caseworker who took over responsibility for B in July 2004 became aware of the things B was saying to her schoolmates, which they had evidently reported to the school counsellor. She asked B about the matter in about November 2004. B said that it was not true, although the caseworker was uncertain whether she meant that the content of the allegations was untrue, or it was untrue that the girls had disclosed it to the school counsellor.
Scientific evidence
In December 2004, B was examined by a medical practitioner in connection with the allegations. The doctor found that B’s hymen had two small healed tears in it. Those tears were at least a week old, but it was not possible otherwise to establish their age. They were consistent with penetration digitally or by a penis. Because of the elasticity of the hymen, it was possible to penetrate the vagina with a penis and leave no tears. Equally, physical activity or use of tampons could cause such tears.
Some feed bags were taken from the shed on the property of B’s foster mother; they were tested and found to contain seminal fluid which to an extremely high level of probability was the appellant’s. There was no sign of DNA from a female source on the sacks, although the scientist who examined them said that if there had been vaginal penetration, such traces would not necessarily be left. In cross-examination, she accepted that her findings were consistent with masturbation.
The defence case
The appellant gave evidence in his own defence. He had known B’s foster mother since 2001. He worked as a truck driver and in November 2001, had taken B on a trip to the Gold Coast. At some stage, he began to spend those weekends when he was not away long distance driving, probably every fourth weekend, at B’s foster mother’s house. At one point he had worked for a local company for 12 months, and during that period had spent most weekends at the property. The house was a small and very open one, through which noise travelled, and there were creaking floorboards; it was difficult to move about unheard. He had been in B’s bedroom about three times, on each occasion, to do repairs: of the windows, a door and the bed. There was a caravan outside made into a cubby house for B’s brother. The chicken shed was an open area, except for a part which was behind a different caravan. He had masturbated there and ejaculated on to some feed bags.
The appellant and B’s foster mother had never married or even discussed doing so. He had never made any claim of killing a man who had raped his daughter. There was an event known as the “Barra Bash” which involved fishing over three days. On the Saturday night of the relevant weekend in October 2004, he had stayed home ill (at B’s foster mother’s house), and fallen asleep on the couch. The appellant said that he had never hit B with a belt or noticed her having bruises. He was taken through the details of the various counts in the indictment, and denied all of them. He was unaware of the pornographic movies which were found in B’s mother’s house. He had never threatened B or done anything that involved sexual contact with her.
In cross-examination, the appellant said that he had begun to stay weekends at the property from September 2001. If the opportunity arose, he would stay during the week. He accepted that he had been alone with B on the property a number of times, and had been alone with her in the shed. But, he said, the space between the cupboard and the wall in the shed was only six to 12 inches; there was not sufficient room to stand there. He acknowledged that in 2003, B’s foster mother had told him that B had made allegations of a sexual nature against him. He had confronted B, saying that they should go to the police. B had turned to her stepmother and said that she had lied. In October 2004, he was working locally, and it was possible that he was staying at the house on 26 October.
The closing stages of the trial
It was admitted by both prosecution and defence that for a number of reasons, including medical reasons, B’s foster mother could not be called to give evidence.
The trial judge’s summing up was not the subject of any defence application for redirection. Importantly, he gave the jury a Markuleski direction that any reasonable doubt concerning the truthfulness or reliability of the complainant in relation to a count should be taken into account in assessing her evidence in relation to all counts.
At the jury’s request, three parts of B’s police interview were re-played during their deliberations: those concerning her allegations of being strangled by the appellant (Count 9); of having a knife held to her throat (Count 10); and being forced to perform oral sex on the appellant in the shed (Count 5).
The appellant’s arguments on the appeal against conviction
The appellant was unrepresented on the appeal against conviction and the application for leave to appeal against sentence. His submissions on the conviction appeal were limited to arguments about the sufficiency of the evidence and complaints of aspects of the way the trial proceeded. As to the first, he maintained that there was no physical evidence to support B’s allegations. He placed particular emphasis on the doctor’s evidence that there were only the two tears to the hymen. He maintained that if, as B claimed, there had been a dozen or so occasions of penetration, the hymen would have been far more damaged, and it was possible that the tears were caused when B jumped out of her bedroom window in order to run away from home. There was an absence of any of B’s DNA found anywhere. B’s demeanour when being interviewed was suspiciously relaxed for someone who claimed to have been sexually assaulted. Had she been assaulted as she claimed, she had opportunities to complain, but she had not done so. Neither the knife which he was said to have used to assault B nor the pornographic videos which the police had obtained had been put into evidence.
As to the way the trial had progressed, the appellant made these complaints: that his counsel had failed to cross-examine B adequately; that the prosecutor had referred to penetration causing B pain when there was no evidence of that; and the trial judge should not have let the jury have possession of photographs of the property when they were taken in 2014, long after the events.
I do not think there is anything in any of those arguments. It can be discerned from the summing up that the appellant’s counsel in his address drew to the jury’s attention the limited damage to B’s hymen and the other possible causes of it, her failure to take earlier opportunities to disclose abuse and the fact that the presence of only the appellant’s semen on the feed bags was consistent with masturbation rather than intercourse. It was up to the jury whether or not they found those matters compelling. B’s demeanour in the interview was no doubt apparent to them. The production of the knife and pornographic videos would have had an obvious prejudicial tendency, and it is not difficult to see why the defence would not have pressed for their tender.
There had been two previous mistrials, in one of which the jury’s discharge seems to have resulted from something that occurred when B was giving evidence. Perhaps because of that, defence counsel made a forensic choice to limit her cross-examination, no doubt hoping that the more lurid aspects of her account in her police interview would serve to make the jury question her credit. The prosecutor’s reference to pain on penetration was based on the evidence; B had specifically said when interviewed that it hurt when the appellant put his penis inside her. The 2014 photographs of which the appellant complained were exterior shots of the buildings on the property and the interior of the house. (Photographs of the chicken shed were also tendered, but they were taken in December 2004.) There was no objection to the photographs or to the jury’s possession of them, unsurprisingly, because they contained nothing which could disadvantage the appellant; indeed, he gave his evidence about the noise-transmitting qualities of the house by reference to them.
The jury’s verdict was not unreasonable by virtue of any of those matters.
Inconsistent verdicts
I do not think it is a matter of any surprise that, having asked to hear the evidence in relation to the two assault counts, (Counts 9 and 10), replayed, the jury acquitted on those counts. There was a quality of over-dramatisation in B’s recounting of those events which gave some ground for wariness in accepting them. The question is whether the jury’s rejection of B’s evidence on those counts, probably as entailing an element of exaggeration, meant that they should have had a doubt about her credibility on the remaining counts.
In determining whether the jury’s differentiation between verdicts indicates an inconsistency such that it could not, acting reasonably, have arrived at the verdicts of guilt, it is necessary to consider whether there is a rational basis for distinguishing between the verdicts:
“[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted”;[1]
but the conviction will be set aside if the inconsistency is such
“that the appellate court considers that intervention is necessarily required to prevent a possible injustice”.[2]
[1]MacKenzie v The Queen (1996) 190 CLR 348 at 367.
[2]At 368.
In Jones v The Queen,[3] the High Court held that it was not open for the jury in that case, having found that the complainant’s evidence lacked sufficient cogency to convict on one count, to be satisfied beyond reasonable doubt of the appellant’s guilt on the remaining two counts. In that case, however, there was no reason to suppose that the quality of the complainant’s evidence was any higher in respect of the other counts; and the concern about her credibility combined with the facts that her complaints were uncorroborated and there had been a lengthy and unexplained delay in their making to produce an unsafe verdict.
[3](1997) 191 CLR 439.
In contrast, in the present case, the jury would have been entitled to consider that B’s evidence on the counts involving more serious violence was of a different quality from that on the remaining counts. Her descriptions of the events underlying counts 9 and 10, and for that matter, the uncharged act involving the use of a wooden hammer, sound very much like gross exaggeration of lesser incidents. That characteristic is not evident in her more prosaic accounts of the incidents of sexual assault.
It is significant that the jury was given a Markuleski direction, so that they were aware that any concern about B’s reliability and credibility on counts 9 and 10 should be a factor in their consideration of the remaining counts. Evidently, they did not consider that whatever qualms they had about the former evidence precluded their acceptance of what she said about the remaining matters. They may have considered that there was some anxiety on her part to explain her apparent docility, which the police officer had questioned, as attributable to an extreme fear of the appellant. They may also have been influenced by the fact that there was no supporting evidence in relation to those specific charges of violence. On the other hand, the existence of what was accepted as the appellant’s DNA on the feedbags supported B’s accounts of oral and vaginal rape in the shed (counts 5 and 6), and there was also some support for her complaint of indecent treatment in relation to count 8, in that pornographic films were retrieved from the property. While she had told her school friends of other incidents of sexual assault including the rape on her birthday which led her to believe she might be pregnant, she had said nothing of the dramatic incidents underlying counts 9 and 10.
It is evident that the jury did not consider that its reasons for not accepting B’s evidence in relation to counts 9 and 10 prevented them from doing so in respect of the remaining counts. I do not think that that conclusion is an “affront to logic and commonsense”,[4] or that the acquittals on those counts indicate that the verdicts of guilt on the remaining counts were unreasonable.
[4]MacKenzie v The Queen at 368.
Application for leave to appeal against sentence
The appellant was in his late thirties at the time of the offences, and 49 at the time of trial. He had no previous criminal history for sexual offences. He had been convicted in New South Wales of offences including dangerous driving, larceny, and assault occasioning bodily harm, committed in the 1980s and 1990s. He had Queensland convictions in 1991 and 2001 for offences of dishonesty, in respect of which he did not serve any actual imprisonment. He was convicted and fined in 2009 and 2010, each time for failing to appear in accordance with a bail undertaking, no doubt in connection with these charges, and on the first of those occasions was also fined for possession of dangerous drugs.
The trial which resulted in the convictions the subject of this appeal took place almost a decade after B’s interview. There seems to have been a number of reasons for that delay. In part, it resulted from the appellant’s failures to appear, but the fact that the investigating police officer was convicted of extortion and imprisoned also contributed. So did the fact that the appellant was convicted at his first trial, in 2011, and successfully appealed, with the result that a re-trial was ordered. There were then two mistrials before the one relevant here.
The appellant made no submissions as to why his sentence was manifestly excessive, beyond saying that he could not see how he could have got ten years. I do not consider that there is any reason to grant the application for leave to appeal in relation to the sentences on any of the counts other than count 1. I take a different view of it, because I have come to the conclusion that there was error in the factual premises on which the learned judge sentenced. Counsel for the respondent very fairly accepted that if the Court came to the conclusion that there were errors in the basis on which the sentencing judge proceeded, this Court should exercise the sentencing discretion afresh, notwithstanding that the appellant had not raised those errors as a ground of appeal.
Count 1 alleged the maintaining of an unlawful sexual relationship between 1 May 2003 and 5 December 2004. Nonetheless, the trial judge sentenced on this basis:
“ … It seems to me that the proper way to look at this is that there was an ongoing sexual relationship between you and her over a period of some three and a half years. More importantly, during the period of the maintaining as alleged in count 1, that is, over a period of seventeen months, but it seems quite clear the jury have accepted that there was ongoing conduct leading up to that. Even within that period it seems to me that they have accepted that there were, to use her words, countless incidents of sexual conduct, which included countless incidents of rape per se, and that’s the basis on which I intend to sentence you. …”
There are a number of difficulties with that passage. The first is that it was not possible to say that the jury had found there was “ongoing conduct” outside the maintaining period. Because of B’s inability to say when the offences had occurred, only the initial indecent treatment (being made to hold the appellant’s penis) was charged as occurring outside the maintaining period. Secondly, the finding of an offence or offences outside that period would not necessarily equate to the finding of a relationship.
Thirdly, the reference to a period “of some three and a half years” stems again from the interviewing officer’s failure to grasp what B had said. B began by referring to what happened for the last “three and a half years” but corrected herself to say “two and a half”. Subsequently, when she was talking about the first incident involving the appellant, she initially said that it was:
“About three and a-half years ago probably. I don't know, three years ago. I don't know. He didn't start it like he didn't start his rape and crap when he first got with – with [her foster mother].”
She explained that three and a half years ago he had taken her on a truck ride; that was before he “started his crap”. (That dating of the trip in the truck accorded roughly with the appellant’s recollection of his taking B to Brisbane in November 2001). She thought she was 13 when the first incident happened which would place it after October 2002; that is, a little over two years before she spoke to the police. Notwithstanding, the police officer took to referring to the sexual assaults as occurring over the last three and a half years, without demur from B.
And fourthly and most importantly, to sentence on the factual basis of an earlier sexual relationship was effectively to sentence the appellant for an offence of which he had not been convicted, contrary to the principle enunciated in R v D,[5] that:
“An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish… a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted”.[6]
[5][1996] 1 Qd R 363.
[6]At 403.
In addition, the sentencing judge’s assumption that the jury had accepted that during the charged period there were “countless incidents of sexual conduct which included countless incidents of rape per se” was not well-founded. The jury plainly did not accept everything B said beyond reasonable doubt. More importantly, I do not consider that it would have been open to his Honour to make a finding of “countless incidents of rape”, given B’s evident confusion as to what constituted rape. The police officer asked her early in the interview how many times the appellant had raped her, and she answered “countless”. When he asked her what the appellant had done the first time he raped her, she answered
“… I just didn't know – he like I don't know – I don't know, it's – what I don't know is – is rape the whole, you know, the whole in you thing or is rape just if someone's touched you or something?”
The police officer did not enlighten her, and she went on to describe the incident in which the appellant made her hold his penis.
The respondent suggested that because B subsequently described incidents which undoubtedly were rape, it should be assumed that when she was asked again later in the interview how many times she had been raped and once more answered, “countless”, she was then referring to acts of penetration. I do not think that that is a safe assumption. There is also some cause for doubt as to the frequency of penetration in the evidence that B’s hymen showed only two small tears. It may be that the appellant was given to withdrawing before ejaculation, without extensive or vigorous intercourse, but it is difficult to accept that if there were “countless” incidents of penetrative sex, there would not have been more damage to B’s hymen.
In my view, the sentencing judge’s taking into account a three and a half year sexual relationship and proceeding on the basis that the charged maintaining period involved “countless” incidents of rape were errors which require the setting aside of the sentence on count 1 and the re-exercise of the sentencing discretion. The appellant should be sentenced on the basis that he maintained an unlawful sexual relationship with B for the charged period (which was in fact 19 months) during which time there were many incidents of indecent treatment and rape.
That is a very serious set of circumstances, but not, as it seems to me, comparable to those in R v C; ex parte Attorney-General (Qld)[7] or R v DBC; ex parte Attorney-General) (Qld)[8], to both of which the sentencing judge adverted. Both of those cases involved maintaining charges involving the offender’s own daughter. In C, the offending was committed over two and a half years by a respondent who was the sole carer for the child, beginning when she was 13. The sexual acts included sodomising her and forcing her to perform oral sex on him and swallow the ejaculate. There were said to be “literally hundreds of acts of sexual intercourse”. In that respondent’s favour was an early plea of guilty. Nonetheless, this Court increased a sentence of nine years imprisonment with a recommendation for parole after four years to one of ten years imprisonment with the automatic serious violent declaration which followed. In DBC, the respondent had also pleaded guilty to maintaining a relationship with his daughter who was 11 or 12 years of age, in the course of which he had committed six rapes and two offences of indecent dealing on her. A sentence of nine years imprisonment with parole eligibility after a third was held to be within a proper exercise of discretion.
[7][2003] QCA 134.
[8][2012] QCA 203.
Having regard to the factors identified in R v SAG[9] as relevant in sentencing for maintaining a sexual relationship, the following considerations can be identified. The appellant here was not the father, or stepfather, of B. Nor was he her carer, although he was, to some extent, in a relationship of trust as a responsible adult in whose company she was left. He seems to have taken crude steps to ensure she was not impregnated. B was not subjected to grosser acts of the kind committed in C; she was not sodomised or made to swallow ejaculate. There were counts of rape, but it seems reasonable to infer from the fact that her hymen was not ruptured, that the intercourse was not sustained and did not involve great force. B was not as young as many of the complainants seen in such cases; she was fourteen, turning fifteen, during the maintaining period. That period was not lengthy, although there seem to have been numerous sexual acts of varying seriousness committed during it. The jury evidently accepted that, at least once, the appellant had used physical violence against B, convicting on count 4, which involved a complaint that he had punched her in the head when she refused to perform fellatio.
[9][2004] QCA 286 at [19].
Taking all those matters into account, I would set aside the sentence of ten years imprisonment on count 1 and instead impose a sentence of nine years. The appellant has been in custody on these charges since 28 January 2010, a period of five years and five months; there is no reason to defer his parole eligibility date any further.
I would make the following orders:
1.Dismiss the appeal against conviction.
2.Grant the application for leave to appeal against sentence on count 1.
3.Refuse the application for leave to appeal against sentence on counts 2 – 12.
4.Set aside the sentence on count 1 and substitute a sentence of nine years imprisonment with the parole eligibility date fixed at [date of judgment].
ATKINSON J: I have had the advantage of reading the reasons of Holmes JA. I agree with the orders proposed for the reasons given.
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