R v SDX [No 2] Applicant

[2024] QCA 78

[2024] QCA 78

COURT OF APPEAL

MULLINS P
CROW J
CROWLEY J

CA No 174 of 2023
DC No 364 of 2019

R

v

SDX [No 2]  Applicant

BRISBANE

THURSDAY, 9 MAY 2024

JUDGMENT

1. MULLINS P:  On 25 February 2021, the applicant was convicted after trial in the District Court before a jury of two counts of indecent treatment of a child under 16, under 12, under care.  He was acquitted of another three counts of the same offence against the same complainant on the indictment.  His appeal against that conviction was dismissed: R v SDX [2022] QCA 269. The applicant’s sentence was deferred until after the conviction appeal. On 1 September 2023 he was sentenced for each count to imprisonment for 18 months suspended after serving imprisonment of 9 months for an operational period of 18 months.

2. The applicant applies for leave to appeal against his sentence on the ground the sentence is manifestly excessive.  He appears for himself on this application.

3. The complainant who was 8 years old was a friend of the applicant’s son who was 7 years old and had a sleepover at the appellant’s house on 18 April 2018.  The two children went to sleep in the same bed and the applicant lay in the bed with them.  The complainant was in between the applicant and his son.  During the night the complainant woke to the applicant touching her.  The applicant put the complainant’s hand on his erect penis over his clothes and moved her hand in a masturbating motion for about 10 seconds.  That constituted count 1.  Count 2 was constituted by the act of the applicant putting his hand under the complainant’s underpants and touching her vagina on her bare skin.  The applicant stopped and fell asleep at the end of the bed.  The complainant complained the next day.  When the police spoke to the applicant, he denied any inappropriate touching.  The offending had a profound impact on the complainant and her family.

4. The applicant was 33 years old at the time of the offending and was married with one son.  He and his wife subsequently had a second child.  The applicant had one prior irrelevant conviction.  He is a citizen of another country and had a permanent resident’s visa at the time of the offending.  His wife and children are Australian citizens.  His last employment was in 2017 and he ceased working after suffering a workplace injury to his shoulder.  He had been struggling with depression from about 2016/2017.  The applicant relied on reports from his treating psychiatrist that were tendered at the sentencing that showed that the applicant had been diagnosed with persistent depressive disorder for which he was being treated.

5. At the sentencing hearing, the applicant’s counsel had urged the sentencing judge to find exceptional circumstances existed to preclude actual custody.  The factors relied on were that the applicant did not have any relevant criminal history and was otherwise of good character, he was successful in part at the trial in being acquitted of three counts, he had not committed any offences since arrested on 19 April 2018, the significant period of time between conviction and sentence produced a state of uncertainty, the opportunistic nature of the circumstances of the offending, possible deportation, the support available to him from his wife and family and the level of his current mental health treatment.

6. The sentencing judge rejected that submission, concluding that the combination of features relied on by the applicant did not amount to exceptional circumstances.  The sentencing judge explained that many of the factors relied on were common in such cases.  The fact that the applicant faced the prospect of deportation was a matter of relevance on sentence but was not determinative and had to be balanced against all the other relevant considerations.

7. The sentencing judge noted that the complainant was very young and vulnerable and the applicant abused a position of trust.  The sentencing judge also noted that count 1 involved more than a fleeting touch and that count 2 involved skin-on-skin contact with the complainant’s vagina.

8. The sentencing judge identified that the predominant considerations on sentence were general deterrence and denunciation of the applicant’s abhorrent behaviour and a sentence of actual imprisonment was the only sentence which would appropriately reflect all matters.  A sentence in the order of two years’ imprisonment would have been the appropriate sentence, but the sentencing judge reduced that to 18 months’ imprisonment because of the delay since conviction which initially was not in any way associated with the applicant in the context of the deterioration of the applicant’s mental health over that period of time.

9. The matters that the applicant refers to in support of his application were all considerations that were taken into account by the sentencing judge.  It was a matter for the sentencing judge as to the weight to which he attached to each of the relevant factors.  The applicant was entitled to exercise his right to a trial and he did obtain the benefit of the acquittals for the three counts where the manner of questioning of the complainant for her s 93A statement introduced some confusion concerning the sequence of events that arguably gave rise to uncertainty as to whether there were multiple occasions of each type of indecent dealing or the one occasion that was the subject of counts 1 and 2: SDX at [52]–[55]. Even though the applicant was not given any mitigation of the requirement to serve 50 per cent of the concurrent sentences that would have applied in the absence of a parole eligibility date, he was given the benefit of certainty as to when the actual custodial component of the sentences would end by the imposition of partially suspended sentences.

10. The comparable authorities relied on by the prosecution and the applicant’s counsel before the sentencing judge which are relevant authorities do not support a submission that the sentence that was imposed was “unreasonable or plainly unjust”.  See in particular R v Reynolds [2015] QCA 111 at [106]-[107] and R v MDG [2020] QCA 113 at [33]. The applicant has failed to show that the sentence for each count was manifestly excessive. The application for leave to appeal is refused.

11. CROW J:  I agree.

12. CROWLEY J:  Yes.  I also agree.

13. MULLINS P:  The order of the Court is the application for leave to appeal is refused.  We will adjourn the Court.  Thank you.