R v MCT

[2018] QCA 189

SUPREME COURT OF QUEENSLAND

CITATION:

R v MCT [2018] QCA 189

PARTIES:

R
v
MCT
(appellant/applicant)

FILE NO/S:

CA No 59 of 2017
CA No 199 of 2016
DC No 2267 of 2016
SC No 560 of 2016
SC No 562 of 2016
SC No 757 of 2015

DIVISION:

Court of Appeal

PROCEEDINGS:

Appeal against Conviction & Sentence
Sentence Application

ORIGINATING COURTS:

District Court at Brisbane – Date of Conviction: 16 March 2017; Date of Sentence 17 March 2017 (Rackemann DCJ)
Supreme Court at Brisbane – Date of Conviction: 23 March 2016; Date of Sentence: 1 July 2016 (Boddice J)

DELIVERED ON:

10 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2018

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The applications for leave to appeal against sentence are refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR – where the appellant/applicant was charged with multiple sexual offences against multiple members of his family – where after trial he was convicted on seven counts and acquitted on two – where during the course of the Prosecutor’s closing address reference was made three times to the appellant/applicant having admitted to being a paedophile – where, in the absence of the jury, the appellant/applicant’s counsel raised with the learned primary judge his concern that the use of the word “paedophile” would “powerfully resonate with the jury” – where a formal application was made to discharge the jury – where that application was refused by the learned primary judge on the basis that any prejudice could be remedied by clarification from the prosecutor following a direction from the learned trial judge – where following such a direction, the prosecutor made a retraction – whether the learned primary judge erred and a miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant/applicant was convicted of counts of indecent treatment against his biological son and daughter while they were between the ages of six and 14 years – where at the time of the trial the complainants were 50 years old and 48 years old respectively – where the appellant/applicant submitted that a significant number of inconsistencies, contradictions, improbabilities and impossibilities were evident in the witnesses testimony and as such the convictions were unreasonable – where the appellant/applicant participated in an interview with police where he made admissions – where the various inconsistencies were the object of addresses on both sides – whether the verdicts were unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant/applicant was acquitted on count 8 and count 10 but found guilty on count 9 – where the appellant/applicant advanced the contention that this was inconsistent – where these counts were alleged to have occurred at the one time, being an occasion when the appellant/applicant showed his children a pornographic movie – whether there were rational ways in which the jury could have concluded that it was satisfied beyond reasonable doubt of the appellant’s guilt on count 9, though not on counts 8 and 10

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant/applicant made submissions regarding the way the trial was run, his representation and the state of the evidence – where complaints were made regarding the constant changing of the appellant/applicant’s legal aid representation, that his legal representation did not pursue discovery, that they did not put forward mitigating circumstances on his behalf during sentencing and that they did not object to the unannounced calling of four Crown witnesses – where it was submitted that the learned trial judge had been biased due to his knowledge of the appellant/applicant’s previous convictions of sexual offences against other members of his family – where complaints were made in relation to the conduct of the prosecution generally and in particular by using the prejudicial term “paedophile” – whether due to these irregularities there has been a substantial miscarriage of justice

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where there are two applications for leave to appeal against sentence, the first relating to sentences imposed in 2016 for offences against the appellant/applicant’s wife, grandson, and adopted daughter, and the second relating to sentences imposed in 2017 for similar offences against his biological son and daughter – where the offences dealt with in 2016 actually occurred after the offences dealt with in 2017 – where the appellant/applicant pleaded guilty to a count of assault against his wife, and counts of indecent treatment against his grandson and his adopted daughter – where the offences against his adopted daughter occurred whilst they lived overseas – where he received concurrent sentences with an effective head sentence of eight years imprisonment with a non-parole period of five years and seven months – where the appellant/applicant had already served two years and seven months and this was taken into account by the learned sentencing judge – where the appellant/applicant submits that his guilty plea and cooperation with police was not credited towards the determination of his sentence – where it was also submitted that his defence counsel presented inadequate supporting argument relating to significant mitigating circumstances – where it was further submitted the appellant/applicant was told by his legal representatives that he would not receive a custodial sentence in excess of five years – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the offences against the appellant/applicant’s biological son and daughter occurred first in time despite being dealt with in 2017, following the imposition of his sentence in 2016 – where the sentences to be imposed in 2017 were to be in respect of convictions after a trial, not on a plea of guilty – where the appellant/applicant submitted on appeal that this sentence did not take into account his co-operation and history of his own extensive childhood sexual abuse – where it was further submitted that his age and the fact that he had been the subject of harassment and assault whilst imprisoned was given no consideration – where the appellant/applicant contended that his family relied upon his support – where the appellant proffered an undertaking to assist various authorities in their efforts to curb ‘burgeoning criminal activity’ in return for immediate release – where the learned sentencing judge considered what would have been the appropriate sentence had the appellant/applicant been dealt with for all matters as at the time he first went into custody – where the learned sentencing judge noted that the appellant/applicant was a serial abuser of children – where a sentence of 14 years and eight months imprisonment was imposed acknowledging that an appropriate head sentence when first dealt with would have been 18 years – where this approach was one agreed to by both sides – whether the sentence imposed on such a basis was manifestly excessive

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Lee v The Queen (2000) 112 A Crim R 168; [2000] WASCA 73, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
R v BBM[2008] QCA 162, considered
R v Bush (No 1)[2018] QCA 45, cited
R v CAP[2009] QCA 174, considered
R v Day (2000) 115 A Crim R 80; [2000] QCA 313, cited
R v Fanning[2017] QCA 244, cited
R v Freer and Weekes[2004] QCA 97, cited
R v H[2001] QCA 167, considered
R v KN[2005] QCA 74, considered
R v LJ[2004] QCA 114, considered
R v McLucas[2017] QCA 262, cited
R v Turnbull[2013] QCA 374, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, followed
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

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

1. SOFRONOFF P:  I agree with the reasons of Morrison JA and the orders his Honour proposes.

2. MORRISON JA:  In CA No. 59 of 2017 the appellant was charged with multiple sexual offences committed against his natural son MAL and his natural daughter DAU.  At the commencement of the trial he pleaded guilty to three counts of indecent dealing in respect of his daughter, when she was under the age of 14 years.[1]

   [1]These were counts 6, 7 and 11.

3. At the conclusion of the trial he was convicted on seven counts, and acquitted on two others.  The following day he was sentenced for those offences to imprisonment for 14 years and eight months.

4. The sentence imposed in CA No. 59 of 2017 was to be served concurrently with an existing eight-year sentence imposed on 1 July 2016.  The appellant had pleaded guilty to multiple sexual offences committed against his grandson, his wife and his adopted daughter.  That sentence is the subject of CA No. 199 of 2016.

5. The combined effect of both sentences was an effective period of imprisonment of about 18 years with parole eligibility, and a re-set parole eligibility date fixed at 29 November 2022.

6. The appellant appeals against his convictions and seeks leave to appeal against the sentences imposed in CA No. 199 of 2016 and CA No. 59 of 2017.

7. In the proceedings in CA No. 199 of 2016 the appellant was charged with offences under three indictments.  Those indictments concerned offences against his wife SWS,[2] his grandson MGA,[3] and his adopted daughter ADL.[4]

   [2]Indictment 560/16, assault occasioning bodily harm (a domestic violence offence).

   [3]Indictment 562/16, indecent treatment of a child under 12 years old and under care, and also being a lineal descendent.

   [4]Indictment 757/15, three counts of committing an indecent act on a person under 16 and outside Australia; one count of engaging in sexual intercourse with a child outside Australia, and under care, and three counts of incest.

8. On the three charges of incest on indictment 757 of 2015 the appellant was sentenced to eight years’ imprisonment.  On the Commonwealth offences (those acts committed on someone outside Australia), the appellant was sentenced to six years’ imprisonment.  For those charges the parole eligibility date was set at 30 June 2019.

9. For the offence on indictment 562 of 2016 the appellant was sentenced to two years’ imprisonment.  For the offence on indictment 560 of 2016 he was sentenced to 12 years’ imprisonment.

10. These reasons explain why the appeal against conviction fails and the applications for leave to appeal against the sentences are refused.[5]

    [5]For ease of reference I intend to refer to the appellant by that name even in the applications for leave to appeal against sentence.

11. In these reasons I intend to deal with the appeal against convictions in CA No. 59 of 2017 first.  Then I will deal with the two applications for leave to appeal against sentence in sequence, first that in CA No. 199 of 2016 as they were first in time, then those on CA No. 59 of 2017.  The applications for leave to appeal against sentence need to be considered together because, as will become clearer, the sentences in CA No. 59 of 2017 were fashioned to take into account the other sentences.

    Some background

12. The appellant married his first wife when he was young.  Together they had a son and a daughter.  They separated in about 1990.  The two children lived with the first wife after the separation, though they visited the appellant from time to time.

13. Later the appellant married his second wife and they lived in Thailand.  There they adopted a three year old girl.  They moved back to Australia in about 2012.

14. The appellant’s daughter had meanwhile married and had a son.  From time to time the appellant and his second wife looked after the appellant’s grandson.

15. The offences committed by the appellant against his own son and daughter commenced when they were quite young, about five or six years old.  Those offences were earlier in time than those committed by the appellant against his adopted daughter, grandson and second wife.

16. The appellant’s offending involved a number of his family members.  To assist in following the reasons below they are:[6]

    (a)his first wife, FWJ;

    (b)his daughter, DAU;

    (c)his son, MAL;

    (d)his second wife, SWS;

    (e)his grandson, MGA; and

    (f)his adopted daughter, ADL.

    [6]Other witnesses to be referred to are DAU’s husband, a preliminary complaint witness, LMR, and an in-law, BGW.

    Appeal against convictions in CA No. 59 of 2017

17. As will become apparent there were voluminous submissions from the appellant.  Much of them were not properly focussed and raised matters that revealed a fundamental misunderstanding about criminal trial processes.  Much of them overlapped the two proceedings.  Dealing with them has therefore been made more difficult than it needed to be.  In the end not all points raised by the appellant need be considered; if they are not it is because they do not rise above those dealt with in these reasons.

    Schedule of offences in CA No. 59 of 2017

18. The offences against the appellant’s son MAL and daughter DAU, the verdict in each, and the sentence imposed on each are set out below in the following table:

Count	Offence	Outcome
Count 1	Rape of DAU; between 5 July 1972 and 4 July 1973	Convicted by the jury – 14 years and 8 months’ imprisonment
Count 2	Indecent treatment of MAL, under 14 years; between 29 July 1973 and 1 January 1977	Convicted by the jury – 3 years’ imprisonment
Count 3	Indecent treatment of DAU, then under 12 years; between 29 July 1973 and 1 January 1977	Convicted by the jury – 2 years’ imprisonment
Count 4	Attempted carnal knowledge of MAL; between 29 July 1973 and 1 January 1977	Convicted by the jury – 5 years’ imprisonment
Count 5	Rape of DAU; between 5 July 1976 and 4 July 1978	Convicted by the jury – 14 years and 8 months’ imprisonment
Count 6	Indecent treatment of DAU, then under 14 years; between 5 July 1976 and 4 July 1978	Plea of guilty – 18 months’ imprisonment
Count 7	Indecent treatment of DAU, then under 14 years; between 5 July 1976 and 4 July 1978	Plea of guilty – 18 months’ imprisonment
Count 8	Indecent treatment of MAL, then under 14 years; between 5 July 1977 and 4 July 1979	Acquitted
Count 9	Indecent treatment of DAU, then under 14 years; between 5 July 1977 and 4 July 1979	Convicted by the jury – 2 years’ imprisonment
Count 10	Indecent treatment of DAU, then under 14 years; between 5 July 1977 and 4 July 1979	Acquitted
Count 11	Indecent treatment of DAU, then under 14 years; between 5 July 1980 and 4 July 1981	Plea of guilty – 12 months’ imprisonment
Count 12	Indecent treatment of DAU, then under 14 years; between 5 July 1981 and 4 July 1982	Convicted by the jury – 12 months’ imprisonment

Ground 1 – failure to discharge the jury following closing address

1. This ground concerned comments made during the course of the Prosecutor’s closing address in relation to the appellant.  At three points in his address the Prosecutor referred to the appellant as having admitted to being a paedophile.  The three comments were as follows:

   (a)“Now, here we have a man who admits to being a paedophile.  He tells you about his uncontrollable urges that he has.”[7]

   (b)“Now, what else do you have to support [DAU]?  Well, of course there’s [the appellant’s] statement that he’s a paedophile to the police, that he maintained a sexual relationship with his daughter for almost a decade …”;[8] and

   (c)“We also know that he has confessed to being a paedophile, not interested in 30 year old women, only children, he has got these uncontrollable urges that he has got no power over, no choice against he says.”[9]

   [7]Address p 3, line 4.

   [8]Address p 10, line 27-29.

   [9]Address p 14, line 13-16.

2. At the conclusion of his address the appellant’s trial Counsel, in the absence of the jury, raised his concern about the repeated assertion that the appellant was a paedophile.  Discussion following during which the learned trial judge indicated some matters that the Prosecutor should clarify to the jury.  In the course of that, a formal application to discharge the jury was made on the basis of the Prosecutor’s suggestion that the appellant “is a person with a particular character, namely he’s a paedophile.”  It was submitted that the term “paedophile” would continue to “powerfully resonate with the jury” in a way that could not be remedied by direction or clarification by the Prosecutor.[10]  The learned trial judge refused to discharge the jury on the basis that the use of the term was unfortunate but any prejudice could be remedied by clarification from the Prosecutor, followed by a direction from the learned trial judge.[11]

   [10]Appeal Book 59 of 2017 (AB) 117-118.

   [11]AB 118 line 44.

3. One difficulty for the appellant in respect of this point is that his description of himself to the police during the interview was that he had uncontrollable urges of a sexual kind in relation to young girls.  The jury had heard that interview.

4. During the interview the appellant described DAU as being “the initiator” on most occasions when she would jump into bed with him in the mornings.  Initially he described that conduct as “it went as far as fondling”, with each of them fondling the other.[12]  That conduct was said to have commenced when DAU was “probably six or something like that, seven.”[13]  The appellant agreed that there was sexual activity between the two of them, though he denied that there was ever any penetrative sex.[14]

   [12]AB 280 lines 44-60.

   [13]AB 281 line 12.

   [14]AB 281 lines 30-46.

5. The appellant told the police that he was not trying to reduce his penalty “because I really don’t want to ever be released, you know … or not, not in the short term anyway.”[15]

   [15]AB 282 lines 8-15.

6. As the interview progressed, the appellant conceded that the sexual activity went beyond fondling.  He agreed that it included DAU giving him oral sex while he was in the car[16] and on one occasion just after he had had a shower.[17]  He put that occasion as being when DAU was about six years old.

   [16]AB 282-283.

   [17]AB 283.

7. He also agreed it was possible that he had made DAU masturbate him while in the bath.[18]

   [18]AB 284.

8. Shortly thereafter the appellant explained to the police that it was not the case that he wanted to get out of responsibility for what he had done because:

   “Appellant:Okay.  But I, what I do want to do, and this, [INDISTINCT] there’s something that is desperate for me to do … For myself, okay, is to find out why this is happening.  Because it’s happened all my life since I was a little boy.”[19]

   [19]AB 287 lines 47-55.

9. He then explained what he was referring to.  It was that he feared some hereditary influence:

   “Appellant: Who taught?  Nobody taught anybody to do at this age.  And this has always been the case.  And, … I want to know why.  I want to find out why.  And I want to talk to the lawyer first.  … I’ll cooperate with you as much as you want.  And I will never, you put me on the stand if you like.  …  And if you tell me to say something that it was the truth, I’m not going to dispute any part of it.  … But I want to find out why.  … Okay?  And I want to talk to the lawyer first to find out how I can find out why.  … Okay.  This is very important to me.  And that’s why, look, you mind (sic) think this is a little bit silly, but I’m pleased that this situation, but pleased for me that this situation has developed to this point … Where, where it’s finally over.”[20]

   [20]AB 288.

1. He then went on to explain the urges he felt:

   “Appellant:And, and that’s what I needed also.  But as I told you before, the power that … is within this whatever you want to call it, condition or … or whatever it is, its power is greater than me.

   Police:Okay.

   Appellant:And it has been greater than, always been.

   Police:Sorry, you lost me there.  You talking about the, this compulsion to … sexual abuse?

   Appellant:Yeah that, -

   Police:That’s the power you’re talking about?

   Appellant:That’s, that’s exactly right.”[21]

   [21]AB 290.

2. The appellant went on to say he, himself, identified that he posed a risk to the community:

   “Appellant:… it has always been this way.  It’s, it has a power.  I don’t, I have no control  … Over it.  And, um, this is why I told you I’m relieved.  That I’m here and the rest of the communities out there.  … I mean it doesn’t concern me at all with adults.  I have no, I have no really … total attraction to beautiful women who are already thirty years of age.  I mean the (sic) could walk past a dozen at a time and it, and it wouldn’t you understand what I mean?

   …

   Police:But children is different?

   Appellant:That’s correct.  Young, no, not children specifically, but girls.”[22]

   [22]AB 290-291.

3. The appellant went on to tell the police that he needed to discuss matters with a specialist first, that his grandfather had had sexual relations with the daughters of his family and that is why he (the appellant) needed to discuss with a specialist “to find out before we go … right through a whole big process”.[23]  He explained that he wanted to know “where do they get this from?” and whether it was hereditary, “kind of passing through … the generation”.[24]  He then addressed the power over him in this way:

   “Appellant:I’m saying that I don’t choose it at all.  … I’m saying that I don’t have power over this.  … [o]nce I start.  And … it’s just that … it doesn’t matter if there is … a risk that I’m [going to] get my head cut off.”[25]

   [23]AB 292 line 20.

   [24]AB 293.

   [25]AB 293 lines 30-40.

4. He then described that being at risk did not have an influence on him and that the power was “totally uncontrollable as far as I’m concerned”, and “it dominates my life”.[26]

   [26]AB 294 lines 3-15.

5. The Crown Prosecutor then continued his address saying this:

   “Now, finally, I used the word paedophile a couple of times when I was talking about [the appellant].  I’m not trying to say that there’s any clinical diagnosis of [the appellant].  Of course, that would be required to reach that definition.  What I’m talking about is his admission to offending against his daughter between when she was at least six to 13, perhaps even younger, on his own admission and I take you to what he said to the police.  He said this:

   [here follows the passage at paragraph [29] above]

   So that was my reference to him to calling him a paedophile and specifically in this case I’m alleging or relying upon what he says about the offending against his daughter between when she was at least six to 13.”[27]

   [27]Transcript of addresses, pp 14-15.

6. After the Prosecutor’s address had finished the learned trial judge addressed the jury on the question of delay and whether it had affected the fairness of the trial on two issues, and then on the use of the term “paedophile”:

   “And thirdly, it was wrong of the prosecutor to use the term paedophile which has a clinical meaning.  There’s no expert evidence here about him being clinically diagnosed.  It was the prosecutor’s erroneous short-hand reference to the evidence you’re speaking of, what [indistinct] I’ll give you some more directions about this later on, is the interest he had in his daughter.  … it would be completely wrong of you to say, ‘Well, we’re going to brand this person a paedophile – which is obviously a term that has quite a fair [indistinct] emotiveness attached to it – and therefore, he must’ve done all these things’.  It will be relevant for you to have regard to evidence of his sexual interest in his own daughter, the complainant here and indeed, of the son.  But the use of that term was wrong and shouldn’t have been used [indistinct] can you please put it out of your minds.”[28]

   [28]AB 119-120.

7. In the course of the summing-up the learned trial judge returned to the evidence of admissions by the appellant.[29]  In addition a warning was given to the jury about using such evidence as propensity evidence.  Specifically the learned trial judge directed the jury about the use they could make of uncharged acts:

   “If you are satisfied … that any other alleged incidents did occur it would be quite wrong to reason that the defendant is generally a person of bad character and for that reason must have committed the other offences charged.  The evidence has been led for the purpose of showing that the defendant had a sexual interest in the complainant and was willing to give the effect to that interest and therefore it is more likely that the defendant committed the offences charged against him with respect to that complainant.

   And that is what I was saying before, that when we corrected the Prosecutor after his address … and he clarified to you that he is really relying upon the conduct against the complainants and the sexual interest in the complainants.  It would be quite wrong for you to conclude that the defendant is someone with a tendency to commit this type of offence and therefore more likely to have committed the charged offence or offences.  The evidence, as I said, has come before you for a limited purpose only.[30]

   Further, you should not reason that the defendant has done things equivalent to or similar to the offences charged on other occasions, and on that basis should be convicted of what has been charged even though the particular offences are not proved beyond a reasonable doubt.  You must be satisfied about the particular offences that are charged.”[31]

   [29]AB 127 to AB 128 line 14.

   [30]AB 131 lines 33-47.

   [31]AB 131 line 33 to AB 132 line 4.

8. The definition of paedophilia is: “an abnormal, especially sexual, love of young children”, and the “sexual love directed to children”;[32] or “sexual attraction in an adult towards children”.[33]  A “paedophile” is defined as: “A person who is sexually attracted to children”;[34] “a person who displays sexual desire directed towards children, usually or pre-pubertal or early pubertal age”;[35] and “an adult who engages in sexual activities with children”.[36]

   [32]Australian Concise Oxford Dictionary (1987).

   [33]Macquarie Dictionary (2^nd Revision, 1991).

   [34]The Oxford English Dictionary (2015).

   [35]Butterworths Australian Legal Dictionary (1997).

   [36]Macquarie Dictionary (2^nd Revision, 1991).

9. On any of those definitions the appellant was a paedophile, on his own admission as to the overwhelming and uncontrollable urges he felt towards some children.  The jury heard and saw the police interview, in which the appellant gave the graphic descriptions of his inability to control, let alone even overcome, the urges he had for young girls.  In the circumstances, the Prosecutor’s description of him as a paedophile, whilst it might have been unfortunate in other circumstances, was entirely accurate.  In my respectful view the learned trial judge was right to take the view that the Prosecutor’s retraction and explanation, accompanied by an appropriate direction by the judge himself, would be sufficient to counter any possible prejudice.  The jury, having heard and seen the interview, could hardly have been improperly influenced, or distracted from their task, by what the Prosecutor said.  The greatest impact would have been from the appellant’s own admissions.

10. The correct approach to be taken by an appellate court when complaint is made about a trial judge’s refusal to discharge a jury is that set out in Crofts v The Queen:[37]

    “No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial.  The possibility of slips occurring are inescapable.  Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact … [M]uch leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

    Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind.  The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.  In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?”

    [37](1996) 186 CLR 427 at 440-441 (internal citations omitted); [1996] HCA 22.

11. Normally the fact that the Prosecutor referred to the defendant as a paedophile would be quite prejudicial.  However, here the entire case revolved around the appellant’s sexual conduct towards children of a relatively young age.  More importantly the comments were made in closing address, sometime after the jury had heard and seen the appellant’s interview with the police, where he admitted to uncontrollable sexual urges towards children, and to putting them into effect with at least his daughter.  There can be little doubt that the comments were deliberate but they were immediately corrected with the Prosecutor saying that he was wrong to do so.  That was followed in the summing-up by the learned judge, with a direction to disregard the comments and a warning against reasoning by way of propensity evidence.

12. In my respectful view, the learned trial judge in this case was in a better position to assess the significance of the Prosecutor’s comments than this court can, reading simply from the transcript of what was said.

13. Intemperate and improper addresses by a Crown Prosecutor can undoubtedly result in a miscarriage of justice and lead to the setting aside of a conviction.  So much was recognised in R v Freer and Weekes.[38]  The issue is usually whether there has been a real risk that the remarks wrongly influenced the verdict, thus resulting in an unfair trial.  As put in R v Freer and Weekes the issue is whether the trial process was unfair, or the appellant was denied a chance of an acquittal otherwise open, taking into account both the Prosecutor’s remarks and the later directions by the judge.[39]

    [38][2004] QCA 97 at [97].

    [39]R v Freer and Weekes at [93].

14. As was observed in R v Day[40] considerable care is necessary to ensure that jury verdicts are not based upon prejudice, sympathy, fear or irrelevant emotion, and numerous statements may be found in the cases about the undesirability of emotion.

    [40][2000] QCA 313 at [28].

15. One indicator that the jury were not distracted from their proper task (that of assessing each charge according to the evidence that related to that charge, and satisfying themselves beyond reasonable doubt of guilt on that count) is that the jury acquitted the appellant on counts 8 and 10.

16. I am unpersuaded that the reference to the appellant as a paedophile, as unfortunate though that was, produced an unfair trial or denied the appellant a chance of acquittal.  This ground fails.

    Ground 2 – unreasonable and insupportable verdicts

17. An examination of this ground of appeal requires an independent review of the whole of the evidence at the trial.  The appellant’s approach was a broad-scale attack on the veracity of the witnesses (particularly DAU and MAL), and to highlight the significant number of inconsistencies, contradictions, improbabilities and impossibilities which, he said, were evident in the evidence in the witnesses testimony.

    Evidence of DAU

18. Formal admissions were made as to the date of birth of each of MAL and DAU.  MAL was born on 30 July 1966, and therefore between six and ten years old at the time of offending where he was the complainant.  By the time of the trial MAL was 50 years old.  DAU was born on 4 July 1968 and therefore between four and 15 years of age in respect of the offending where she was complainant.  She was 48 years old at the time of the trial.

19. At the start of the trial the appellant entered pleas of guilty to counts 6 and 7, each of which was a count of indecent treatment of DAU who was then under 14 years old.

    DAU’s evidence in respect of count 1 (rape)

20. Her detailed evidence followed a general statement that the appellant would get in the bath with her, make her wash him and wash his penis, and he would touch her vagina.[41]  She then said this as to the circumstance of Count 1:

    “And I also remember at that house where he first penetrated me.  It was just before my aunty’s wedding, because I was flower girl for her wedding, so I remember the time pretty well.  He asked me to come into his bedroom after my mum had gone out for the night; she went to Weight Watchers’ meetings at night.  And he asked me to climb into bed with him and give him a cuddle, and I had a nighty on with pants underneath, and he took the pants off and climbed on top of me, and I remember I didn’t really understand what he was doing, but he stuck his penis inside of me, and I remember screaming a lot, and I remember it really hurt, and it felt like it was burning, and I screamed a lot and was crying and told him to stop, but he did it two more times, and I was still screaming, and he finally stopped, and he told me to go back to the bedroom, and I shared a bedroom with my brother at that time, and he told me to tell my brother … that I was crying because he’d got a splinter out of my finger.  I don’t remember much more at that house.  I know he often touched me there, but I don’t remember anything else more specific.”[42]

    [41]AB 36 lines 18-20.

    [42]AB 36 lines 20-34.

21. She added that the appellant told her not to tell anybody and if she did she would “get put in a home”.[43]  She gave general evidence of the occasions upon which she said they would be in the bath together.  This occurred between the ages of four and six and would involve each of them being naked in the bath.  She recalled that his penis would get hard when she touched him.

    [43]AB 36 line 44.

22. Her evidence was that one of the reasons the events just before the wedding remained in her mind was because she was a flower girl and had her ears pierced for the event.  She recalled her father chasing her around the house whilst playing, and she ran through a lace curtain and tore an earring.  She said she could remember yelling and screaming at him and saying it was his fault.[44]

    [44]AB 37 lines 27-37.

23. She gave evidence that when she was in school in about grades six and seven she told a friend, LMR, about having been raped and molested.  She could not recall the conversation but remembered telling LMR “because of an incident that happened at school”.[45]

    [45]AB 48 lines 30-43.

24. She also recalled telling FWJ when she was sixteen and had fallen pregnant.  She could not recall specifically what she said to FWJ, except that the appellant had abused her and she did not want him to touch any child that she had.[46]  She also told her husband that the appellant had made her masturbate him, perform oral sex, that he had tried to rape her, and he had penetrated her.[47]

    [46]AB 48-49.

    [47]AB 49-50.

25. In cross-examination it was put to her that she was wrong about the timing of FWJ’s attending Weight Watchers’, and that she was wrong about where the family lived from time to time.  Specifically it was put to her that her evidence about Count 1 concerned events which had never happened, and that the appellant had never penetrated her vagina either with his penis or his fingers.[48]  She rejected those assertions and described how she went back into the bedroom, sobbing and crying and told MAL that the appellant was trying to get a splinter out of her finger.  She could not recall if MAL was actually awake or not.

    [48]AB 52 lines 5-13.

26. She said that the incident where she had torn her earring was not immediately before or after the occasion of an assault, but “it all happened very close together at that stage”.[49]  It was put to her, and she rejected, that the appellant had never told her not to tell anyone or she would be put in a home.[50]

    [49]AB 53 line 14.

    [50]AB 53.

    Count 5

27. DAU recounted one occasion when she and the appellant were in the front of the car at night time.  She said:

    “I don’t know where we were headed, but it was night-time, and I do know that … he pulled off the main road and went [on to] … a side road or something, and … I was in the front seat, in the passenger seat, and he climbed over into the front passenger seat from driving and tried to penetrate me again, putting his penis in my vagina, but I was the same as the first time, because it really hurt, and I screamed a lot, and I was crying, and he tried another couple of times to do it, and then he stopped because I was screaming, telling him not to do it.”[51]

    [51]AB 38 lines 33-40.

28. She said that his penis went into her vagina on that occasion.  She thought that she was around six years old and that it was before they moved to Narangba.

29. In cross-examination it was put to her that such an incident never occurred, and she was asked about the type of car involved.  It was suggested that it was not possible for the appellant to do what she had said because of the size of the car and the shape of the seats.  She was also cross-examined about her description of the event, referring to the appellant having tried to penetrate her, but she reiterated that he was able to do so.[52]

    [52]AB 54 lines 17-23.

    Counts 2-4

30. DAU gave evidence that at a time when she and her brother were living at Narangba the appellant would visit them at their grandmother’s house.  After her parents had separated, she and MAL were living with their grandmother.  Every fortnight she and MAL would visit the appellant at his house at Narangba.  DAU did not give any evidence to support counts 2-4, the only evidence in respect of those counts coming from MAL.

    Counts 8-10

31. DAU’s evidence in respect of these counts was relatively short.  She described an occasion after her parents had separated and she and MAL were living with their grandmother.  At that time they would see the appellant at his house at Narangba every fortnight.  On one of those occasions she said she could recall the appellant playing a pornographic movie.  She said that the appellant “got my brother and I to undress and lay on the bed with him and watch the movie”.[53]  She said:

    “I remember bits and pieces of that night - about him having oral sex with me and my brother.  He started, I think, with me and then got me to perform on him while he was performing oral sex with my brother.”[54]

    [53]AB 41 line 5.

    [54]Count 9 was DAU performing oral sex on the appellant, and count 8 was the appellant performing oral sex on MAL.

32. She said she asked to go out and get a drink and stayed out of the room as long as she could get away with it.  Eventually she went back into the bedroom:

    “I’m not 100 per cent sure what happened.  My brother and him were in a different position from when I left.  When I left, my father was giving him oral sex, as well as my brother giving him oral sex.[55]  So when I left, they were in a different position, so I don’t know if that continued or not, but … I think it continued once … I came back in, but I don’t remember very well after that.”[56]

    [55]This was the subject of count 10.

    [56]AB 41 lines 22-28.

1. She went on to say she thought she was performing oral sex with the appellant but she could not remember 100 per cent of what happened after that.

2. In cross-examination it was put to her, and she denied, that the appellant had never shown her a pornographic movie.  Similarly, it was put to her, and she denied, that the appellant did anything to MAL when she was present, and more particularly, there was never any occasion when she and MAL were together.[57]  Furthermore, there was never an occasion when the appellant behaved in an indecent way towards MAL whilst she was present; she denied that assertion.[58]

   [57]AB 54.

   [58]AB 54 lines 29-34; AB 55 lines 39-42.

   Count 12

3. DAU’s evidence in respect of count 12 was quite short.  She said:

   “There was one time where he was taking photographs of me.  There wasn’t anyone else in the house, and he got me to undress and was taking close-up photos of parts of my body and I think it was with a Polaroid camera – one of those ones that … photo comes out …”[59]

   She said she didn’t think she had any clothes on and the photographs were mostly close-ups of her vagina.  She was about 12 to 13 at the time.

   [59]AB 44 line 45 to AB 45 line 2.

4. In cross-examination it was put to her, and she denied, that the appellant had never taken any indecent photographs of her.

   Evidence of MAL

5. MAL’s evidence only supported counts 2 and 4.  He said that he had suffered abuse at the hands of the appellant, which he described in this way:

   “There was one occasion where he instructed myself to have sex with my sister, and, as part of that, he put me on my hands and knees and proceeded to penetrate my – that’s when I responded with, ‘Ow.  That hurts’.  That was the only occasion where he proceeded to do that. …  [He was using] his penis. …  He was instructing – or, in his words, teaching – me how to treat a woman, and he’s showed that I should have sex with my sister.  And when I was crying, he called me a sook because that’s what all boys do, is have sex, and I don’t agree with that.  …  My sister was lying on her back, and he instructed that I should put my penis inside her, but I don’t recall that actually happening.  I just recall … the shame.”[60]

   [60]AB 57 lines 29-46.

6. His evidence was that he was lying on top of DAU and the appellant was on the bed with an erect penis.  None of them were wearing any clothes.  He said he could not recall what the appellant was doing in particular, “but I do recall asking what the white stuff was coming out of his penis, and he responded with ‘semen’ and it was after that that he had sex with me”.[61]

   [61]AB 58 lines 1-9.

7. He said that the appellant told him that if he told anybody he would be put in a boys’ home.[62]

   [62]AB 58 line 25.

8. In cross-examination he was asked various questions about the sequence of houses in which they lived and when.  It was put to him, and he disagreed, that the appellant had never directed him to have sex with DAU, nor had the appellant tried to put his penis in MAL’s anus.  He said that the occasion which he had referred to in his evidence was the only time that the appellant ever did anything sexual involving him.[63]

   [63]AB 63 lines 1-2.

   Evidence of SWS

9. SWS’s evidence was confined to things the appellant had told her about DAU.  With the agreement of Defence Counsel the questions were asked in a leading way in this passage:

   “All right.  He said, ‘[DAU] came into my bed and tried to use her mouth on my teddy’?---Yes.

   And what does ‘teddy’ mean?---The penis.

   Teddy was a nickname for a penis?---Yes.

   All right.  He also told you, ‘I kissed [DAU] on her Suzie’?---Suzie is the vagina.”[64]

   [64]AB 64 lines 8-15.

10. SWS also said that after they returned to Australia the appellant wrote her an email explaining why he did things to DAU.  He told SWS, “I told [DAU] I went and saw a monk to fix myself”.[65]

    [65]AB 64 line 33.

11. There was no cross-examination of SWS.

    Preliminary complaint evidence

12. Preliminary complain evidence was given by three witnesses, DAU’s husband, FWJ and LMR.

13. DAU’s husband said that in about 1990 DAU told him that the appellant had done things to her “through her younger years, from when she was young, probably about five or six”.[66]  The things she mentioned were that the appellant had touched her and made her touch him in places, and also tried to have sex with her.  The touching was in the form of masturbation and the touching by him was in the genital area, and oral sex.  He said he could recall that she mentioned an occasion which involved MAL and “a lot of … oral sex and touching”.[67]

    [66]AB 69 lines 31-33.

    [67]AB 69 line 44 to AB 70 line 24.

14. In cross-examination he confirmed that he had been told by DAU that the appellant would make MAL perform oral sex on him.  Further, that the appellant would try to penetrate DAU’s vagina with his penis.[68]

    [68]AB 70 lines 37-41.

15. FWJ was married to the appellant and was the mother of DAU and MAL.  She said DAU had talked to her about being sexually abused by the appellant.  She said the occasion was when DAU was about 14 or 15 and was triggered when MAL told her that DAU was upset.  She sat down on the bed with DAU and “she said that her father had been interfering with her … sex and raping her and things like that”.[69]  She could not remember exactly what had been said but could remember comforting her and calming her down.  DAU told her that the abuse had started when she was about four or five.

    [69]AB 75 lines 10-11.

16. In cross-examination she was confronted with what she had said in a previous police statement, which was to the effect that the appellant had been touching DAU and interfering with her since she had been young.  She said that DAU did not include information about where the touching or interfering had happened, nor how often, nor whether she had mentioned anything about MAL.[70]

    [70]AB 77.

17. LMR said that she was a friend of DAU at primary school and when she was about ten DAU told her that the appellant had been sexually abusing her.  Her account was:

    “I asked her what happened, and she said her father came into her room, and he raped her, and I said, ‘what happened?’  And she said that he came into her room, it was at night time, he got on top of her, and he raped her.  And I asked her what happened afterwards.  She said she went in to the bathroom and locked the door, and she cried, and cried, and cried, and she was washing the blood from her, and she said she just cried, and cried, and cried, and cried.”[71]

    [71]AB 82 lines 21-27.

18. In cross-examination she said that was the only time she and DAU had spoken about what the appellant had done.  She was not told anything that would have helped to work out the timeframe.  She confirmed that the conversation included that DAU had washed blood off her lower parts whilst in the shower.[72]

    [72]AB 83.

    The appellant’s record of interview

19. The appellant’s record of interview was tendered in evidence.[73]  The recording of it was played to the jury.  Relevant features of it have been mentioned elsewhere in these reasons: see paragraphs [22] to [31] above.

    [73]Exhibit 3.

20. In his police interview the appellant said, in relation to DAU:

    (a)there was never any pressure and DAU was, in fact, the initiator on most occasions; she would get into bed and cuddle with him;

    (b)the cuddling went as far as fondling with each other, and DAU would take delight in doing that;[74]

    (c)that conduct commenced when she was about six or seven;

    (d)on numerous occasions DAU was the initiator but if she said stop then they would do so;[75]

    (e)there was sexual activity between he and DAU but not to the extent that there was intercourse; he denied any penetrative sex;[76]

    (f)he could recall DAU giving him oral sex on one occasion in the car;[77]

    (g)DAU was the initiator on a lot of occasions, and he could recall one occasion when he had had a shower and DAU took his towel off and performed oral sex on him;[78] she was about six at the time;[79]

    (h)he could not recall an incident when he and DAU were in the bath and he used her hand to masturbate himself, though he said it was possible;[80]

    (i)the sexual conduct between he and DAU continued up until he and FWJ separated, and it was rare after that.[81]

    [74]AB 280-281.

    [75]AB 281.

    [76]AB 281.

    [77]AB 283 line 10.

    [78]AB 283.

    [79]AB 283-284.

    [80]AB 284.

    [81]AB 284-285.

21. In addition, as mentioned earlier, the appellant entered a plea of guilty to counts 6, 7 and 11.  Count 6 was particularised as an occasion when she was in bed and he put his fingers in her vagina.  DAU gave evidence of such an occasion.[82]  Count 7 was particularised as an occasion when she was in bed and the appellant licked her vagina.  DAU gave evidence of that occasion.[83]  Count 11 was particularised as an occasion when he touched her vaginal area.  DAU gave evidence of that occasion.[84]

    [82]AB 40 lines 12-15.

    [83]AB 40 lines 15-19.

    [84]AB 45 lines 11-19.

    Discussion

22. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen[85] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.

    [85](2011) 243 CLR 400 at [20]-[22]; [2011] HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494; [1994] HCA 63.

23. In M v The Queen the High Court said:[86]

    “Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

    [86]M v The Queen (1994) 181 CLR 487 at 493; internal citations omitted. Reaffirmed in SKA v The Queen (2011) 243 CLR 400.

24. M v The Queen also held that:[87]

    “In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

    [87]M v The Queen (1994) 181 CLR 487 at 494.

25. Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay.[88]

    [88](2016) 258 CLR 308 at [65]-[66]; [2016] HCA 35; internal citations omitted.

26. One feature of the appellant’s interview with the police was his explanation for why DAU was upset and why it was that she had made the complaints to the police.  His explanation lay in this passage:

    “APPELLANT:  Ah, everything that, that has come up here, regardless whether it’s justifiable or not, has stemmed in my opinion, not from [DAU] being so terribly upset about what happened … [b]ut because she was so terribly upset about the fact that we had [the adopted daughter].”[89]

    [89]AB 279 lines 49-57; emphasis added.

27. In the context of what he said about specific incidents (see paragraph [79] above), that was an admission, in my view, as to sexual abuse against DAU.

28. On his own admission that abuse continued from when she was six until after he had separated from FWJ, which was when DAU was about nine.[90]  However, after separation, it became rare, occurring “not very often at all”.[91]  As is evident from that response, it did not cease.

    [90]AB 35 line 31.

    [91]AB 285 line 1.

29. It can be seen that DAU received general support from several sources, in terms of credibility and reliability as a witness.  One source was the fact that she had complained to others about the conduct.  Another was the fact that several of her alleged incidents were the subject of express admission, namely as to counts 6, 7 and 11.  Counts 6 and 7 occurred when she was between eight and nine years old, and count 11 occurred when she was 12 to 13 years old.  Yet another was the appellant’s admission of not only his sexual interest in, but sexual conduct towards, DAU between the ages of six and nine, and then to a lesser extent when she was older after he and FWJ separated.  The admissions extended to conduct which included fondling, oral sex on a lot of occasions, and possibly masturbation in the bath.  Yet another was the evidence of SWS, as to the admissions by the appellant.  And yet another again was the support from MAL’s evidence, limited though it might be.

30. Notwithstanding the case that the appellant wished to urge on appeal, and (as he contended) at trial, namely that DAU had fabricated a dishonest account, that was not a case put to DAU in evidence.  One can see good reason for that, given the appellant’s own admissions of sexual misconduct in relation to her.  It is difficult to imagine that competent Counsel would have gone out on such a limb, in the face of that record of interview and the admissions given by SWS.

31. The appellant spent considerable time, particularly in witness submissions, exploring what was said to be inconsistencies, contradictions and inherently unlikely events, all to make the ultimate submission that the evidence against him rendered the verdict unsafe and unsatisfactory.  The appellant pitched his submissions at a higher level, contending that the evidence from MAL and DAU was fabricated and the product of dishonesty on their part.

32. The instances identified by the appellant are too many to be dealt with individually.  I intend to deal with them in general categories.

    Contradictions

33. The following summary will serve to indicate the nature of the contentions:

    (a)imperfect memory on the part of DAU; in respect of this category the appellant pointed to DAU’s inability to remember precisely which houses they lived in, and in what sequence, when she was between the ages of four and seven; he also pointed to DAU’s identification of one offence having happened at a particular house, when the appellant contended that they did not move to that house until later;

    (b)inconsistencies in DAU’s evidence; one example here was her account that the first occasion of penetration caused her to scream and cry, and it was painful, whereas she was unable to remember accurately what age she was when the first occasion of penetration occurred;

    (c)improbabilities in DAU’s evidence; in this category was her evidence that on the first occasion of penetration the appellant threatened her that he would “put her in a home” if she told anyone; the point being made was that such a threat to a four year old child would be meaningless;

    (d)contradictions and inconsistencies in DAU’s evidence generally; an example here was her differing accounts of the occasion when she caught one of her earrings on a lace curtain and whether she yelled at the appellant on that occasion because of her anger about having been touched;

    (e)inconsistencies between DAU’s evidence and the evidence of those as to preliminary complaint; an example of that was whether the conversation in the preliminary complaint included the word “rape” as opposed to something else; another example was the level of detail told to the preliminary complaint witnesses;

    (f)inconsistencies on DAU’s evidence as to whether she visited the appellant after she was an adult, and whether she would leave her son, MGA, with the appellant and SWS after they returned from Thailand;

    (g)inconsistencies in the evidence of LMR, whose evidence was asserted to have been “apparently invented for the occasion”;[92] this focused on the degree of detail in the preliminary complaint evidence, when compared to that of DAU, as well as differences between the two accounts;

    (h)inconsistencies in the evidence of FWJ; this was submitted to be “uncertain”, “inaccurate” and “inconsistent” with other evidence; this identified lack of specificity was in remembering where the family lived and when, and at what time various activities occurred; further, her inability to remember precisely what was said on the occasion of DAU complaining to her; her inability to remember precisely what she had told the police on the first occasion of speaking to them, and the absence in her account to them of the word “rape”; her general lack of good memory;

    (i)inconsistencies in the evidence of DAU’s husband; these were submitted to be so severe that they evidenced bias against the appellant;[93] the focus of this attack was on the differences in his account of the complaint made to him by DAU;

    (j)inconsistencies, contradictions and impossibilities in the evidence given by MAL; once again this focused on MAL’s inability to remember precisely where they lived at what time, and how old he was at that time; attention was drawn to various differences in his account of the offending conduct in which he was involved, and in particular differences between his evidence and the evidence of DAU in respect of the occasions concerning offences in which they were both involved; the difference between MAL and DAU was said to support the appellant’s contention that the events never happened;[94] the appellant went so far as to suggest that the “innumerable” inconsistencies and contradictions supported his contention that there was “a certain level of mutual collaboration involved” and that the collaboration “was initiated by [DAU] after she discovered the existence of her – previously unannounced – adopted step-sister [ADL]”;[95] and

    (k)two significant aspects of MAL’s evidence in cross-examination, namely:

    i.his inability to remember when and where a particular move from one house to another was made; and

    ii.that there was no “second threesome” event;[96] and

    (l)inconsistencies and contradictions in the evidence of DAU; a central focus of the appellant’s submission was to highlight differences between her evidence as to offences which occurred in the car, and his account of them in his police interview;[97] in addition, the appellant pointed to the lack of timely mention of count 5 (rape) to any of the preliminary complaint witnesses; the appellant also referred to differences in her evidence about the use of a Polaroid camera to take sexually explicit photographs of her, highlighting that a “glaring example of her propensity to tell outrageous lies” was her reference to the use of a “tripod setup” for the Polaroid camera, when (the appellant asserted) there was no facility on a Polaroid camera to use a tripod.[98]

    [92]Affidavit #3 paragraph 43.

    [93]Affidavit #3 paragraph 60.

    [94]The differences referred to were the accounts of the conduct out of which Counts 8, 9 and 10 were charged.

    [95]Affidavit #3 paragraph 73.  This was a persistent theme in the appellant’s attack on the evidence against him, namely that DAU’s evidence was born out of jealousy at the amount of attention directed ADL.

    [96]Affidavit #3 paragraph 74.

    [97]Affidavit #3 paragraphs 77-79.

    [98]Affidavit #3 paragraph 82.

1. The difficulty with the appellant’s approach is that not only would the various inconsistencies and contradictions in the evidence would have been obvious to the jury, they were also the subject of addresses on both sides as well as in the summing-up of the learned trial judge.  True it is that the appellant probably descended to a greater level of detail in his minute scrutiny of aspects of the evidence, than was ever the case at the trial, but that is not to the point.  The appellant’s approach served to demonstrate the difference between the course taken by experienced criminal advocates at a trial, and that which might be pursued by an inexperienced self-represented litigant.  The appellant’s approach, had it been adopted at trial, would have been to bury the jury in an excessive level of detail which could well have served simply to drive the jury to the very conclusions they did reach in accepting and rejecting on the various counts.  It has to be borne in mind that the jury acquitted on some counts, a fact which, on any reasonable view, indicates that they followed the learned trial judge’s directions to consider each count separately and come to a conclusion on each count separately.

2. Given the historical nature of the offences it is not, in my respectful view, surprising to find that the evidence of the various witnesses would contain inconsistencies and contradictions.  However, having reviewed the evidence of the trial in light of the appellant’s complaints about it, I am unable to reach the view that it was not open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt on those counts where a guilty verdict was returned.  Notwithstanding the inconsistencies and contradictions, there was a level of support for the evidence of DAU and MAL, both between them and as derived from the preliminary complaint evidence, and the appellant’s admissions to the police in his interview.  That support meant it was open to the jury to be satisfied to the requisite standard.  Notwithstanding its abhorrent nature, there was nothing inherently incredible in the account given by MAL and DAU.  It is only if one subscribes to the appellant’s theory of fabricated evidence, in DAU’s case borne out of jealousy of ADL, that such doubt might be raised as to disturb the verdicts.  There is no good reason to think that the jury should have subscribed to that view.

3. Instead the case run at trial involved highlighting the inconsistencies and contradictions in the evidence.  As well, the prejudicial effects of the delay between when the events occurred and the complaint to the police was made were highlighted, and would have been painfully obvious to the jury given the lapse of time.  A deal of emphasis was given to the improbability of count 5, which concerned the allegation of rape in the car.  Not only was the improbability highlighted, in terms of the appellant climbing over to the passenger seat and then achieving penetration, but also DAU’s use of the word “trying” when describing the appellant’s alleged act of penetration.

4. However, careful directions were given to the jury as to the use of the preliminary complaint evidence, the significance of inconsistencies, the dangers and prejudice caused by delay[99] and the necessity for the jury to assess each count separately, according to the evidence on each count.  No challenge to the directions was made on appeal.

   [99]A Longman direction was given at AB 132.

5. Furthermore, not only did the jury have the benefit of the addresses which focused on all the inconsistencies and contradictions, they had the benefit of a detailed summation of the evidence relevant to each count given to them by the learned trial judge.

6. In the face of those matters it was, in my view, open to the jury to accept the evidence of DAU, notwithstanding that the events occurred when she was quite young, and notwithstanding the obvious inconsistencies and contradictions within her own evidence and between herself and MAL.  On the appellant’s admissions about his own conduct it would have been, in my respectful view, impossible to maintain a case that DAU had fabricated the account, and equally as impossible to maintain a case that her evidence was affected by her jealousy in respect of ADL, that being put forward by the appellant in his interview as being a motive for her to lie.

7. Performing the task mandated by SKA v The Queen and M v The Queen, it is my view that it was open to the jury to be satisfied of the guilt of the appellant on the counts upon which they found him guilty beyond reasonable doubt.  The jury had the unquestionable benefit of seeing the witnesses in person and being able to form a view as to the quality of their evidence.  With the exception of being able to view the appellant’s police interview, this court lacks that benefit and therefore it should give proper regard for the preeminent position of the jury as the arbiter of fact.  The discrepancies and inadequacies highlighted by the appellant were ones of which the jury was well aware and plainly took into account in reaching their conclusions.  I am unable to reach the conclusion that there is a significant possibility that an innocent person has been convicted.

8. This ground fails.

   Ground 3 – inconsistent verdicts

9. The contention advanced on this ground was that the acquittals on counts 8 and 10 were inconsistent with the guilty verdict on count 9.  Counts 8, 9 and 10 were alleged to have occurred at the one time, being an occasion when MAL and DAU were visiting him and he showed them a pornographic movie.  Count 8 was unlawful and indecent dealing with MAL and counts 9 and 10 were unlawful and indecent dealing with DAU.

10. The only evidence for these three counts came from DAU.  There was no support from MAL.  DAU’s evidence was as follows:

    “Okay.  Well, tell us about that?---I remember he had some movie – a pornographic movie, and he was playing it on – a screen or – I think it was a TV – like, a film projector screen.

    Yes?---In his bedroom.  And he got my brother and I to undress and lay on the bed with him and watch the movie, and then he---

    What was happening in the movie?  Do you recall?---There was a lot of, like, penetration and, like, close up stuff of people having sex and---

    Sure?---I remember bits and pieces of that night – about him having oral sex with me and my brother.  He started, I think, with me and then got me to perform on him while he was performing oral sex with my brother.

    Okay?---I remember it made me feel quite sick in the stomach and I asked to go out and get a drink.

    Yes?---Because I just – I wanted to get away from it.  So I went out and – to the kitchen and, sort of, stayed there as long as I could get away with staying there without getting in trouble.  And then I went back into the bedroom.

    What happened then?---I’m not 100 per cent sure what happened.  My brother and him were in a different position from when I left.  When I left, my father was giving him oral sex, as well as my brother giving him oral sex.  So when I left, they were in a different position, so I don’t know if that continued or not, but---

    Sure?---I think it continued once we – once I came back in, but I don’t remember very well after that.

    What happened with you, specifically, when you went back in the room?---I – I think I was performing oral sex with him.  Yeah. … I don’t remember 100 per cent of what happened after that because … I remember feeling quite ill about it – that I had to do stuff with my brother, as well, and he was touching me and … my father was telling … us to do stuff together.

    Alright?---So I – I felt a bit ill.

    Do you know if he ejaculated on that occasion?---Yes, I think so.”[100]

    [100]AB 41.

11. In that account count 8 was the appellant sucking MAL’s penis, count 9 was the appellant making DAU suck his penis, and count 10, the appellant making DAU suck his penis again.

12. In cross-examination there was no specific attack on those counts.  However, it was put to DAU that none of the things she had described had happened.  It was put to DAU that at no time did the appellant behave in an indecent way towards MAL while she was present, and that at no time did he show her a pornographic movie.[101]  Shortly thereafter it was put to her that the appellant “never did anything to [MAL] when you were present”, and “there was never any occasion when you and [MAL] were together?”.  DAU disagreed with all of those propositions.  It was also put to her that there was no occasion where the appellant behaved in any inappropriate way to her or MAL.  DAU disagreed with all of those suggestions.

    [101]AB 54 lines 29-34.

13. MAL did not give any evidence supporting DAU’s account in respect of these three offences.

14. The jury also had the evidence given by the appellant in his police interview.  That included an admission of sexual activity between himself and DAU,[102] at least one occasion when he had DAU perform oral sex on him in the car[103] and another occasion where she performed oral sex on him after a shower.[104]

    [102]AB 281.

    [103]AB 282-283.

    [104]AB 283.

15. Recently the principles applicable to the issue of inconsistent verdicts was summarised in R v McLucas,[105] where Flanagan J said:[106]

    [105][2017] QCA 262.

    [106]McLucas at [65]-[67], Sofronoff P and Boddice J concurring; internal citations omitted.

    “[65]    In R v GAW Philippides JA (with whom Margaret McMurdo P and Holmes JA (as the Chief Justice then was) agreed) by reference to M v The Queen, Jones v The Queen and MacKenzie v The Queen summarised the principles concerning inconsistent verdicts as follows:

    “[19]The principles concerning inconsistent verdicts are well- established.  Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of ‘logic and reasonableness’; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.

    [20]However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:

    ‘... if 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.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’

    [21]In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’.  Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.

    [22]It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside.  While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.”

    [66]In R v Conn; R v Conn; Ex parte Attorney-General (Qld) Sofronoff P (with whom Fraser JA and North J agreed) observed that it is not irrational for a jury to accept a witness’s evidence in relation to some events while holding a reasonable doubt in respect of other events sought to be proved by the same witness, particularly when that witness is the only witness to prove all issues.  Juries are invariably directed to consider each count separately by reference to the evidence applicable to that count.  Sofronoff P further stated:

    “Frequently, the argument that a miscarriage of justice has occurred and can be demonstrated by what is said to be an irreconcilable inconsistency of verdicts is raised in cases in which the sole evidence implicating an accused is the uncorroborated evidence of a complainant.  There will often have been a delay in the making of any complaint.  Commonly it can then be said that there is no apparent difference in the character or quality of the evidence given by a complainant to prove each of the counts.  However, it cannot be maintained that these factors alone would justify a conclusion that there has been a miscarriage of justice in any case in which a jury has convicted on some counts and acquitted on others.  That is so because the significance of features like these will also depend upon the facts of a particular case, the way the trial has been conducted by the prosecution and the defence and the content of the Judge’s directions to the jury.”

    [67]Importantly for present purposes Sofronoff P observed:

    “It must constantly be borne in mind, when considering such a ground of appeal, that it is not for the Crown to justify or to rationalise verdicts of conviction and acquittal.  Differing verdicts are inherent in trials of multiple counts, particularly when a jury is warned against propensity reasoning.  It is for an appellant to demonstrate a miscarriage of justice by showing, by reference to the facts, the evidence, the witnesses and the conduct of the trial, that the differing verdicts are actually irrational or repugnant to each other and not merely that they might be.””

16. Further, some examples of the way in which verdicts might differ but not in a way such as to warrant setting them aside, was given in R v Fanning:[107]

    [107][2017] QCA 244 at [21]; referring to R v CX [2006] QCA 409 at [33]; R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341 at [28]; and R v SBL [2009] QCA 130 at [28]-[34].

    “[21]Various matters of principle have been settled about the assessment by an appellate court of the issue of inconsistent verdicts. They include:

    (a)the appellate court must be persuaded that the performance of the jury’s duty has been compromised by verdicts which are an unacceptable affront to logic and common sense, or which suggest confusion in the minds of the jury, or  legal differences between the offences, or a lack of clarity in the instruction on the applicable law;

    (b)as the test is one of logic and reasonableness, the question is whether the court is satisfied that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts;

    (c)if there is a proper way by which an appellate court can reconcile the verdicts, appellate courts should accept the jury as having performed its function and be reluctant to accept a submission that verdicts are inconsistent;

    (d)different verdicts may be a consequence of a jury correctly following instructions to consider each count separately, and to apply the requirement that all elements must be proved beyond reasonable doubt;

    (e)different verdicts will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which needed to be accepted to lead to the other verdict of guilty;

    …

    (g)a jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful; some aspect of the evidence might point to faulty recollection on some points, or exaggeration on others, or an inherent unlikelihood about some aspect of the evidence, all of which casts doubt on the accuracy in those respects, but not of the witness’s general honesty;

    (h)in some cases it is possible that in respect of some counts there might be contradictory evidence which does not apply to other counts, and thus explains the variation in the verdicts; and

    (h)it may be in some cases that the different verdicts are explicable on the basis that there was corroboration in respect of some counts, but not others.”

17. In my view, there are rational ways in which the jury could have concluded that it was satisfied beyond reasonable doubt of the appellant’s guilt on count 9, though not on counts 8 and 10.  First, there is the fact that MAL’s evidence did not support any of the three counts.  Secondly, DAU’s evidence was quite brief on all three counts and accompanied by qualifications in terms of her memory.  Specifically, DAU said that she did not remember the events after she returned to the room with any accuracy.  That lack of memory could well have affected count 10, which depended upon being satisfied that there was a second time on that general occasion when the appellant caused her to give him oral sex.  Logically the jury could have understood that to mean that the second time was when she came back into the room, and that is the period about which her memory was not good.

18. Thirdly, the evidence of MAL was that the only occasion when there was any sexual contact between him and his father (the appellant) was the occasion the subject of counts 2 and 4.[108]  That was the way it was summarised to the jury in the course of the summing-up.[109]  That may have caused the jury to doubt DAU’s evidence, at least to the point of not being satisfied beyond reasonable doubt of count 8.

    [108]AB 144.

    [109]AB 144.

19. Fourthly, notwithstanding that the jury may have had doubts about counts 8 and 10, they may well have accepted DAU’s evidence on count 9, which was the appellant’s making her suck his penis.  In the jury’s consideration, the inherent likelihood of that having happened might have been bolstered by the admissions by the appellant during his police interview that there had been occasions of such oral sex.  Further, the jury may have concluded that whilst they were not prepared to accept DAU’s evidence that this was an occasion involving MAL, nonetheless they were prepared to accept that it was an occasion involving her performing the sexual act on her father.

20. The jury were directed, in a way to which exception cannot be taken, that they were to consider each count separately, review the evidence on each count separately, and not convict on any charge unless they were satisfied beyond reasonable doubt in respect of that particular charge.  The verdicts are consistent with the jury performing that duty.

21. I am unpersuaded that there is any affront to logic in respect of the differing verdicts on counts 8 to 10.  This ground lacks merit.

    Complaints about the trial process

22. The appellant’s submissions were in the form of an introductory statement followed by 14 “exhibits” to that introduction, dealing with a variety of complaints about the way the trial was run, his representation, and the state of the evidence.  I will attempt to deal with those complaints, summarizing the point and then giving it consideration.  In doing so it will be inevitable that some are combined essentially because of the way in which the submissions were made.

    Legal representation changing

23. One complaint by the appellant was that during the preparation for his trial, his legal aid representation was changed some six times.  There is no independent evidence of this, but even if it were so, it would not, by itself, be a ground for appealing against the jury’s verdict.

    Legal representatives did not pursue discovery

24. The appellant complains that he repeatedly instructed his legal representatives to ensure that the Crown provided full discovery.  He contended that those instructions were ignored.

1. The appellant contended, by reference to a number of cases, that the sentences imposed were manifestly excessive.[203]  Where manifest excess is the issue, the question is not whether the particular sentence was severe, or whether a more lenient sentence may have been imposed.[204]  It is well established that comparable cases do not mark the outer bounds of a permissible sentencing discretion with numerical precision.[205]

   [203]The authorities he referred to were R v T [1998] QCA 206; R v Tichowitsch [2006] QCA 569; R v M [2003] QCA 556; R v BG [2000] QCA 42; R v ELS; ex parte Attorney-General [2004] QCA 111; R v Barker, unreported, Judge Rafter SC, 19 March 2012; R v Martens [2007] QCA 137; R v Wilson, unreported, Judge Dick SC, 24 November 2016;  R v MBZ [2014] QCA 18; R v MCD [2014] QCA 326.

   [204]R v Jackson [2011] QCA 103 at [25].

   [205]Barbaro v The Queen (2014) 253 CLR 58 at [41]; [2014] HCA 2; Hili v The Queen (2010) 242 CLR 520 at [54]; [2010] HCA 45; R v Heckendorf [2017] QCA 59 at [21].

2. To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.[206]  Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[207]

   [206]Hili v The Queen at p 538-539 citing Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64.

   [207]Markarian v The Queen (2005) 228 CLR 357 at 371; [2005] HCA 25.

3. For the Crown, Ms Wooldridge referred to a number of comparable cases, submitting they might be of assistance.  They fell into four convenient categories.  In relation to the Commonwealth offences reference was made to Lee v The Queen,[208] R v Martens,[209] R v ONA[210] and Merrill (a Pseudonym) v The Queen.[211]  For cases where incest occurred in the course of a period of offending, reference was made to R v LJ,[212] R v LP,[213] R v KN,[214] and R v BBM.[215]  Reference was made to R v B[216] which was a case of more isolated offending involving incest.  Finally, as to indecent treatment offences, reference was made to R v Wruck[217] and R v WBB.[218]

   [208](2000) 112 A Crim R 168; [2000] WASCA 73.

   [209][2007] QCA 137.

   [210](2009) 24 VR 197; [2009] VSCA 146.

   [211][2017] VSCA 189.

   [212][2004] QCA 114.

   [213][2005] QCA 266.

   [214][2005] QCA 74.

   [215][2008] QCA 162.

   [216](2000) 111 A Crim R 302; [2000] QCA 42.

   [217](2014) 239 A Crim R 111; [2014] QCA 39.

   [218][2015] QCA 152.

4. In relation to the Commonwealth offences one must note that there was an increase in the maximum penalty in 2010.[219]

   [219]See R v CDI [2013] QCA 186 at [19].

5. I do not need to refer to all the cases.  The following will suffice.

6. Lee was a sentence imposed after a trial where the effective total sentence was 14 years’ imprisonment with a non-parole term of six years.  The offender there was convicted of:  one count of sexual intercourse with a child under 16, outside Australia; eight counts of indecency on a person under 16 outside Australia; and 14 counts of being in possession of pornography plus 15 counts concerning child pornography.  A sentence of eight years’ imprisonment was imposed in respect of the count involving sexual intercourse, four years’ imprisonment in respect of the eight counts of indecency and two years in respect of each of the remaining counts.  On appeal the court held that six years was more appropriate in respect of the single act of sexual penetration.  In respect of the eight offences of indecency, the four year terms were reduced to two years, but cumulative upon the six years for sexual penetration.  The effective sentence, after appeal, was therefore eight years.

7. Lee was a less serious case than that of the appellant.  The single act of sexual intercourse was consensual and did not involve any breach of trust.  The indecency charges consisted of taking photographs of naked girls, one instance of which involved chopsticks inserted into the genitals of one of the girls.  None of those offences involved the direct physical contact which was the hallmark of the appellant’s offending.  In the circumstances, Lee supports the sentence imposed on the appellant, even allowing for the fact that the appellant’s sentence was on a plea whereas Lee was as a result of a trial.

8. Martens involved a mature offender (56 years old) with no criminal history.  He had sexual intercourse on one occasion with a 14 year old girl.  He did not co-operate with the administration of justice and showed no remorse.  His conduct was exploitive, predatory and despicable.  At trial he was sentenced to five and a half years’ imprisonment.  That summary is enough to demonstrate it was a case very much less serious than that of the appellant.  By reference to it the six years imposed for the Commonwealth offences of the appellant (involving a single act of sexual penetration as well as other indecency offences) could not possibly be said to be manifestly excessive.

9. Each of ONA and Merrill were cases of a single act of sexual intercourse with a child outside Australia.  Each was a plea of guilty and in Merrill the sentence of five years and three months was not altered.  Similarly in ONA the sentence of six years was not altered.  Each of them supports the conclusion that the sentence imposed on the appellant in respect of his Commonwealth offences was not manifestly excessive.

10. The sentence imposed in BBM also supports that imposed for the Commonwealth offences in this case.  The convictions in BBM were imposed after a plea of guilty to one count of maintaining and eight counts of incest.  The victim was the adopted daughter of the offender and aged between eight and 15 for the maintaining charge, and 17 and 21 for the incest charges.  She had various disabilities and had been adopted at three years old.  The offender was between 48 and 59 at the time of the offences and 63 at the time of sentence.  Originally sentences of 10 years had been imposed on the incest charges, but they were reduced on appeal to seven years.  The reduction was because of mitigating factors including the offender’s personal circumstances and medical conditions, his remorse and the fact that personal deterrence was not a significant factor.  That recitation is sufficient to demonstrate the utility of BBM in supporting the sentences imposed.

11. LJ involved offending against a child under 12.  The sentences were imposed after conviction at a trial on six counts of indecent dealing, seven counts of incest, one count of assault occasioning bodily harm and one count of sodomy.  All offences were committed against the daughter of the offender.  The offending started when she was seven and continued until she was 12, when full sexual intercourse occurred.  The offender was 59 at the time of sentence and between 20 and 30 when the offences were committed.  He had no prior convictions and a good work history.  The head sentence imposed was 14 years on the first of the incest counts, with lesser sentences on the other counts.  That sentence was not modified on appeal.  Given that the 14 year sentence was imposed on a trial, LJ lends support to the eight year sentences imposed in this case.

12. KN involved an offender who pleaded guilty to charges of maintaining a sexual relationship with a child, seven counts of incest and two counts of indecent dealing.  On the maintaining charge he was sentenced to eight years’ imprisonment, and four years’ imprisonment on each of the incest counts.  The victim was his step-daughter and the offending occurred between when she was nine and 12, with the first count of incest occurring after she was 12.  This court did not interfere with the sentences, observing that they were at the lower end of the discretionary range.  The eight year sentence was imposed on the maintaining charge, but in order to reflect the overall criminality of the offending.  Therefore KN supports the imposition of the eight year sentence in this case.

13. In respect of the indecent treatment offences it is sufficient to note that Wruck and WBB lend support to the sentences imposed in this case.  There is no need, in my view, to analyse them in any depth given that the sentences on those charges were wholly subsumed by the sentences imposed on the more serious offences.

14. I do not consider that any of the authorities referred to by the appellant compels the view that the sentences imposed upon him were manifestly excessive.  ELS[220] concerned facts quite distinct from the current case, a much older victim and was an Attorney’s appeal.  It therefore gives little comfort.  BG[221] only involved two counts of incest and no other offences.  All it establishes is that a six year sentence was not manifestly excessive.  The single judge decisions referred to are of limited utility given there are authorities from this Court which are more pertinent.

    [220]R v ELS; ex parte Attorney-General of Queensland [2004] QCA 111.

    [221]R v BG [2000] QCA 42.

15. The application for leave to appeal against the sentences imposed in CA 199 of 2016 should be refused.

    Application for leave to appeal against sentence – CA 59 of 2017

16. Although the offending conduct the subject of these convictions occurred first in time, the trial and sentences imposed in CA No. 59 of 2017 occurred after the sentences imposed in CA 119 of 2016.[222]  That therefore presented a different scenario for the learned sentencing judge, at least because by then the appellant had a serious criminal history for similar offending.  Further, the sentences to be imposed in CA 59 of 2017 were in respect of convictions after a trial, not on a plea of guilty.

    [222]Those were the offences against MGA, ADL and SWS.

17. The circumstances of the offences have been dealt with in some detail in the reasons above dealing with the appeal against conviction.  There is no need to repeat them.

    The approach of the learned sentencing judge

18. The learned sentencing judge recorded the overall offences in respect of which the appellant had been found guilty.  His Honour summarised them as being: two counts of rape; one of indecent treatment of a boy under 14; one of indecent treatment of a girl under 17 and under 12, one of attempting to commit an unnatural offence; two of indecent treatment of a girl under 16 and under 14; and three counts subject to the pleas of guilty, of indecent treatment of a girl under 16 and under 14.

19. The learned sentencing judge found that the two rape counts were the most serious.  He characterised the first of them as involving a degree of persistence, describing the reaction of DAU when it occurred and that she was only four years of age.  The second count, when she was eight or nine and in the car, also showed persistence.[223]

    [223]AB 207.

20. The learned sentencing judge described in short detail the nature of the offending on the other counts.  His Honour then set out the matters he took into account:

    (a)the offences were serious and abhorrent;

    (b)the offences were against young children, being his own son and daughter;

    (c)it involved a grave breach of trust;

    (d)the offending was carried on for the appellant’s own sexual gratification;

    (e)counts 1 and 5 (the rape counts) involved an element of persistence and threats;

    (f)the offences had had a marked effect on the victims, reflected in the victim impact statements;

    (g)the police interview recorded limited admissions, but showed little remorse and a degree of blame attributed to the complainants;

    (h)most of the charges were denied and the appellant’s history showed a lack of rehabilitation; no submission about rehabilitation was pressed on the appellant’s behalf;

    (i)he had a good work history;

    (j)the extent of the limited co-operation and also the fact that pleas of guilty were entered to three counts, though those pleas were to lesser offences and would have been difficult to contest given the police interview;

    (k)the appellant had a sexual interest in children, evident from the offences for which he was to be sentenced, and for those in respect of which he was serving a term of imprisonment;

    (l)the appellant’s difficult childhood which included being sexually abused himself; and

    (m)the necessity to impose a sentence that reflected just punishment, deterrence, denunciation and the protection of the community.

21. The learned sentencing judge recognised that the existing terms of imprisonment were for sexual offences which had occurred after those that he was dealing with.  His Honour described that as a “complicating factor”.[224]

    [224]AB 208.

22. His Honour set out the sentences which had been imposed, being an effective sentence of ten years and seven months with parole eligibility set at 30 June 2019.  His Honour recorded the submission that the appellant’s serving custody had been harder than for others because he had been the victim of some violence in custody and had been placed in protective custody.  His Honour also noted that at 69 the appellant’s age also made his custody a little harder than for others, though there was no contention that he was otherwise than in reasonable health.

23. The learned sentencing judge recorded that both sides were agreed as to the proper approach to be taken in the sentencing.  That was that the sentence to be imposed should take into account what would have been an appropriate sentence had the appellant been dealt with for all matters at the time when he first went in to custody on 29 November 2012.  To achieve that both sides agreed that the sentence on the rape counts should be concurrent, as well as lesser concurrent sentences on the other counts.  His Honour indicated he would take that course.[225]

    [225]AB 208 lines 39-43.

24. The learned sentencing judge referred to the fact that the appellant had “proved to be a serial offender, now caught out late in life after decades of abusing various children”.[226]  His Honour adopted, as both sides had recognised, the statement of principle in R v Turnbull:[227]

    “Account must be taken of the number of episodes and the number of victims because a serial rapist without a prior criminal history is, in some respects, similar to a rapist who has previously been sentenced for rape and served that sentence.  One difference is that in the latter case, there is a strong case for a protective sentence because the previous sentence has not been effective to personally deter the offender.”

    [226]AB 208 line 47.

    [227][2013] QCA 374 at [49].

25. The learned sentencing judge then noted the salient features of the previous sentence imposed in 2016, including the description of that offending as appalling behaviour to people who trusted the appellant, and relied on him to protect them.  His Honour then said:

    “When the offending for which I am dealing with you is seen in the context of that offending, it can be seen that you have been an abuser of children in respect of whom you were in a position of trust over a period of four decades.”[228]

    [228]AB 209 lines 32-34.

26. The learned sentencing judge referred to two of the comparable cases to which he had been directed, R v CAP[229] and R v K[230].  Having reviewed the circumstances of those two authorities the learned sentencing judge expressed the view that the appellant’s case was somewhat more serious than R v K and therefore R v K did not provide the basis for a lesser effective sentence of 15 years, as was contended by Counsel for the appellant.  His Honour also concluded that the appellant’s offending was not quite at the same level as in R v CAP, upon which the Crown relied to suggest an effective protective head sentence of 20 years.

    [229][2009] QCA 174.

    [230][1998] QCA 193.

27. The learned sentencing judge concluded:

    “Ultimately, I have decided that it would be appropriate to fashion a sentence on the basis that had you been dealt with for these matters as well as the matters which were dealt with by Justice Boddice at the time that you were first put into custody, that the head sentence would have been 18 years.”[231]

    [231]AB 211 lines 37-40.

28. The learned sentencing judge then had the assistance of both counsel in working out the appropriate calculations to achieve that result.  The consequence was the sentence of 14 years and eight months imprisonment on counts 1 and 5, and the lesser terms referred to in paragraph [18] above.

    Discussion of the appellant’s submissions

29. As with that part of the reasons dealing with the sentence on CA 119 of 2016, the nature of the appellant’s contentions make it convenient to deal with the consideration of them at the same time.

30. The first thing to note about the sentence is that the general approach, that is to say, fashioning a sentence on the basis that it dealt with all matters from the time the appellant first went into custody, was one agreed by both the Crown and Counsel for the appellant.  Secondly, Counsel for the appellant contended that such an approach would arrive at an effective sentence of 15 years.  The opposing submission by the Crown was that the effective head sentence would be 20 years.  The sentence ultimately imposed was an effective period of 18 years, and therefore falling between the opposing contentions.

31. One further matter to note is that because of the date of the offending conduct, the serious violent offence regime under Part 9A of the Penalties and Sentences Act 1992 (Qld) did not apply. In light of that the Crown submitted that the appellant should serve “at least half” of the resulting overall period of imprisonment relating to both sentences.[232]  Counsel for the appellant agreed with the general approach advocated by the Crown.[233]  There was therefore no dispute that the appellant would be required to serve approximately half of the total effective sentence.[234]

    [232]AB 190 line 28.  That is consistent with the agreed approach, namely that the sentence should be structured to commence at the time the appellant went into custody.

    [233]AB 191 line 41.

    [234]AB 203 lines 18-22.

32. Many of the appellant’s contentions on this sentence reflected those made in respect of the other sentence imposed in 2016.  Where that is the case it is therefore only necessary to deal with them in fairly short order.

33. The appellant contended that during his period of detention prior to the sentencing he had been totally co-operative, yet none of that had been given credit.[235]  I do not consider there is much in this point.  The appellant’s Counsel made submissions about co-operation[236] but accepted that it was only limited.  The appellant’s time in prison had been served in protective custody and he had been subject to assaults.[237]  Nothing more was said about the nature of his behaviour whilst in custody, so it could hardly be a criticism of the learned sentencing judge that he said no more than he did.

    [235]Exhibit #2 paragraph 11.

    [236]AB 198 lines 35-38.

    [237]AB 198 lines 17-19.

34. The appellant contended that appropriate credit was not given for his guilty pleas.  That is not sustainable as the learned sentencing judge expressly referred to them and indicated he would take them into account.

35. The appellant contended that he gave his lawyers an historical overview of his own extensive childhood sexual abuse, which was not provided to the court.  I do not consider this to be a justifiable complaint.  The learned sentencing judge had the benefit of the sentencing reasons from Boddice J and was, himself, addressed about the sexual abuse which commenced when he was a very young child.  That abuse was referred to as a particular factor in the sentencing reasons.  It can be safely assumed that the appellant’s Counsel made a choice about how, and to what extent, he referred to that history.  I am not persuaded that greater detail would have made any difference whatsoever.

1. The appellant contended that no consideration was given to the fact that he had been the subject of harassment and assault whilst imprisoned and that his age had an impact upon his wellbeing.  That is unsustainable as the learned sentencing judge expressly referred to those matters in his reasons.

2. The appellant contended that the learned sentencing judge was in error to suggest that he lacked remorse, and that his pleading not guilty for alleged offences of which he was innocent and pleading guilty to counts he did not contest, could not be said to be a lack of remorse.  I do not accept that submission.  The learned sentencing judge referred to the fact that the appellant showed “little remorse” in the context of the police interview.  Ultimately, the appellant pleaded guilty to only three of the offences, contesting the rest and, as is now apparent by the submissions made to this court, he did so by instructing his solicitors that the complainants had fabricated the allegations against him.  All of that demonstrates a lack of remorse.

3. The appellant also contended that he was not a risk to the community and it was wrong to assume that he would be at some point in the future.  The only reference by the learned sentencing judge was in his identification of the purposes for which a sentence should be pronounced, including “protection of the community”.  His Honour made the point that there was a lack of rehabilitation and that no submission about rehabilitation had been pressed on his behalf.  That, together with the offences of which he had previously been sentenced, and those for which he was then being sentenced, amply justified the learned trial judge’s conclusion that the appellant displayed a sexual interest in children and was a serial offender caught out after a long period of abusing children.  The learned trial judge was right to identify the need to protect the community as a relevant consideration in the sentencing process.

4. The appellant next contended that, contrary to the instructions he gave his lawyers, the learned sentencing judge was not made aware of the significant disadvantages to ADL and SWS, they being described as “recently arrived immigrants relying on ‘permanent resident visas’ and (up to his arrest) his support”.  The appellant referred to the significant disadvantages they had faced since the appellant’s detention and the real potential “for further tragedy to arise if all hope of timely return to family stability is lost to them”.[238]  The facts before the learned sentencing judge included the material tendered before Boddice J on his sentencing hearing.  That revealed that the family moved back to Australia in 2012.  They could therefore be hardly described as “recently arrived immigrants”, even if they were relying on permanent resident visas.  There was no material to suggest that their status as visa-holders put them at risk of deportation or, indeed, any other risk.  True it is that they may have relied upon the appellant’s support up to the time he was put into custody, but the quality of that support has to be seen in light of the offences that he committed.  The balance of the appellant’s submission in this respect carries little weight and can be dismissed.

   [238]Exhibit #2 paragraph 19.

5. The appellant contended that well before the trial date he had offered to compromise on some counts on the basis that he was prepared to “conditionally enter a ‘Convenience Plea’ of guilty … in order to protect his children … from the rigours of their being required to testify at court”.[239]  It was said that the prosecutor rejected the offer.  Even if all of that were true it has nothing to do with the question of whether the sentence is manifestly excessive or not.

   [239]Exhibit #2 paragraph 22.

6. The appellant submitted under the heading “Considered Justifiable Convictions and Appropriate Revised Sentence Range” a revised sentence range for counts 2 and 3,[240] that counts 6 and 7 would remain at 18 months each, count 9 would not exceed two years and count 11 would remain at 12 months.  All of these revised sentences were proposed on the basis that his convictions on counts 1, 4, 5, 9 and 12 would be overturned and those on counts 2, 3 and 9 would be “reclassified” as a “convenience plea” of guilty but without an admission of guilt.[241]  Central to that submission was the appellant’s proffering of what he called his “Undertaking”.  I shall now turn to that issue.

   [240]The proposed sentence was “equal periods not exceeding two years each”.

   [241]Exhibit #2 paragraph 29.

7. The undertaking to which the appellant referred was that outlined in his Affidavit #4 in CA 199 of 2016.  I need only set out its salient features:

   (a)the appellant undertook to assist various authorities in their efforts to curb ‘burgeoning criminal activity’ and to facilitate the resettlement of a number of select homeless families;

   (b)the proposal was to provide intelligence in relation to drug offending and benefits fraud and to work with a select group of capable and willing homeless families to get them restarted; and

   (c)this was “all dependent upon the appellant being released from custody and being allowed to re-establish his own family”.

8. In Affidavit #4, the appellant extended that undertaking, saying that the ultimate goal is the establishment of a community orientated ongoing project to combat drug offending by providing a platform for people to “dob-in a drug dealer”.[242]  The appellant proposed a six-stage set of steps all dependent upon this court giving a decision recognising that “there are justifiable grounds for his grievances and pleas for timely intervention, redemption and ‘conditional’ suspension of sentence”.[243]  The stages contemplated a four month period after release during which time the appellant would concentrate re-establishing himself and reconciling with his family, but also “beginning a concerted professional remedial and healing approach in relation to that which was primarily responsible for the devastating crisis that engulfed him and his loved one”.  He would then liaise with drug enforcement agencies with a view to developing his proposed program.

   [242]Affidavit #4 p 2.

   [243]Affidavit #4 p 3.

9. Stage three proposed the development of an online program to facilitate the overall program; stage four was the professional production of advertisements to promote the benefits of dobbing-in a drug dealer; stage five involved publications; and stage six, a proposal whereby indemnities would be granted in return for information.

10. That review of the proposal is enough to demonstrate that it is removed from the reality of the application to appeal against sentence.  It has nothing whatsoever to do with demonstrating that the sentence imposed was manifestly excessive.  It has more to do with an attempt to bargain with the court to have convictions overturned, pleas of guilty converted into verdicts without guilt, and to achieve immediate release.  It is the stuff of fantasy.

11. In terms of comparable cases the appellant relied on the same authorities on this application as he did on the application in respect of CA 199 of 2016.  They do not assist him.

12. The Crown pointed to a number of decisions to which the learned sentencing judge was referred including R v CAP,[244] R v Pont,[245] R v CC,[246] R v K[247] and R v HAP.[248]

    [244][2009] QCA 174.

    [245][2002] QCA 456.

    [246][2004] QCA 187.

    [247][1998] QCA 193.

    [248][2008] QCA 137.

13. CAP and R v K were the two decisions reviewed by the learned sentencing judge in the course of his sentencing remarks.  CAP involved an offender who was 63 when sentenced and between 34 and 44 during the offences.  On his own plea of guilty he was convicted of four counts of rape against his daughter, five counts of rape against his nieces, four counts of carnal knowledge against the order of nature, and one count of assault occasioning bodily harm whilst armed.  He was sentenced to 19 years’ imprisonment in respect of the four counts of rape against his daughter, and 17 years’ imprisonment on the five counts of rape against his nieces.  His daughter was aged between seven and 17 years when the offences were committed against her, the last rape resulting in her becoming pregnant with her first child.  The rape offences against his nieces occurred when they were aged nine, 11 and about 16.  The act of anal penetration against his daughter was when she was aged between seven and 11, and those against his nieces when they were nine and 11.

14. The offender had an extensive criminal history including offences of violence.  The offending was described as being “obviously at a high level” and was characterised by a lack of co-operation and an absence of genuine remorse.  The sentences were not interfered with by this court.

15. In CAP reference was made to the decision in R v H.[249]That offender committed 37 offences against three children over a period of 16 years, and was sentenced to 17 years’ imprisonment on a count of maintaining a sexual relationship with his daughter, the constituent offences occurring when she was aged between five and 15 years.  He came to the attention of police after he had voluntarily participated in counselling sessions and made admissions, and thereafter co-operated with police and pleaded guilty.  He had no prior convictions and his own background was one of child abuse.  His offending was described on appeal as being “at the zenith of violation of trust and abuse of power”.  On appeal the sentence for the maintaining offence (reflecting the overall gravity of the offending) was not reduced.  There was an adjustment to the concurrent sentences on certain rape, sodomy and incest charges, but it was the totality of criminal conduct that warranted the sentence of 17 years.

    [249][2001] QCA 167.

16. On any view, acknowledging the particular difficulties of making a case by case comparison of quality and quantity of criminal behaviour,[250] the offending in R v H is not all that dissimilar to that in the present case, when the offending for which the appellant was sentenced by Boddice J and the current offending is taken together.  That conforms with the approach agreed by both sides in respect of the current sentence.  Therefore R v H lends support to the conclusion that the current sentences are not manifestly excessive.

    [250]As was recognised in R v H at pp 10-11.

17. Further, acknowledging that the offending in CAP was more serious[251] the higher sentence in CAP lends some support to the sentence imposed in the present case.  That is particularly so considering that CAP involved a plea of guilty, whereas here the sentences follow a trial.  At worst, it does not demonstrate that the current sentences were manifestly excessive.

    [251]A view shared by the learned sentencing judge in this case.

18. I do not consider it necessary to refer to other cases cited as relevant.  Given the particular approach which was agreed by both sides, that is to fashion a sentence on the basis that the appellant had been dealt with for all matters, for the current offences as well as those dealt with by Justice Boddice, and from the time he was first put into custody, the sentence imposed cannot be demonstrated to be manifestly excessive.

19. The application for leave to appeal against sentence should be refused.

    Disposition

20. For the reasons I have outlined above the appeal against conviction fails and the applications for leave to appeal against sentence should be refused.

21. PHILIPPIDES JA:  I agree with the orders proposed by Morrison JA for the reasons given by his Honour.