R v C [2003] QCA 441

SUPREME COURT OF QUEENSLAND

CITATION: R v C [2003] QCA 441

PARTIES: R v C (appellant)

FILE NO/S: CA No 70 of 2003 / DC No 54 of 2003

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 17 October 2003

DELIVERED AT: Brisbane

HEARING DATE: 19 June 2003

JUDGES: McPherson and Jerrard JJA and Atkinson J / Separate reasons for judgement of each member of the Court, each concurring as to the orders made

ORDERS: 1. Appeal against conviction dismissed / 2. Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where inconsistencies arose in portions of the complainant’s evidence over time – where complainant provided consistent accounts of the offences in cross-examination – where complainant’s otherwise unexplained knowledge of distinguishing features of the appellant gave her evidence overwhelmingly persuasive force – whether verdicts unsafe or unsatisfactory / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES – POWER TO IMPOSE – GENERALLY – where appellant committed offences whilst on parole – where legislation requires sentences for such offences to be served cumulatively upon any existing terms – where learned sentencing judge was not reminded of this or the relevant details of the appellant’s criminal history – where absence of cumulative order means appellant only needs to serve these sentences concurrently with existing terms – where provisions of relevant legislation impose mandatory sentencing – whether this Court should now order that these sentences be served cumulatively / Corrective Services Act 2000 (Qld), s 151, s 152 / Criminal Code (Qld), s 668E(1) / Penalties and Sentences Act 1992 (Qld), s 156A, s 157 / M v R (1994) 181 CLR 487, applied / R v Burton [1995] QCA 445; CA No 492 of 1994, 6 October 1995, referred to / R v Doyle [1996] 1 Qd R 407, referred to / R v Parker [2002] QCA 403; CA No 160 of 2002, 4 October 2002, referred to

COUNSEL: A J Rafter for the appellant / C W Heaton for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: I have read the reasons of Jerrard JA, with which I agree. The appeal against conviction and the application for leave to appeal against sentence should be dismissed.

2. JERRARD JA: On 5 March 2003 C was convicted by a jury on one count of indecent dealing with a child under the age of 16 years, and two counts of having wilfully and unlawfully exposed a child under the age of 16 years to an indecent act. The conviction for having indecently dealt with a child under the age of 16 years was returned as an alternative verdict open to the jury, pursuant to s 578(1) of the Criminal Code (Qld), on the charge of rape of that child on which C had been indicted. The two convictions for exposing a child to an indecent act were on counts (2 and 3) appearing on that indictment. C was sentenced on 5 March 2003 to two years imprisonment on the count of indecently dealing, to be suspended for a period of three years after he had served 12 months of that sentence, and two concurrent sentences of six months imprisonment on each of the two counts of exposing the child to an indecent act. He has appealed against all three convictions and applied for leave to appeal against his sentence.

Circumstances surrounding the offences

3. The complainant child was born on 10 May 1990 and was still 12 years old when she gave her evidence on 4 March 2003. Her aunt is married to C, that marriage taking place on 5 December 1999. The first offence against C, charged as rape, was alleged to have occurred on a date unknown between 1 March 1999 and 30 March 2000. Counts 2 and 3 were each alleged to have occurred on a date unknown between 1 January 2000 and 13 April 2001. The complainant child described the incident resulting in the first conviction as occurring in “the house after the unit”, which was a reference to a house in which C lived from 15 April 1999 until on or about 21 January 2000. He lived there with his partner both before and after their marriage. The complainant said the offence occurred downstairs in that residence, in a room with a computer.

4. The complainant described counts 2 and 3 as occurring in the next set of premises in which C and his partner lived. C lived there from on or about 17 January 2000 until 30 April 2001. The period of his residence at different addresses was established without objection by a statutory declaration, exhibit 5, from the revenue collection manager of Energex Retail Pty Ltd, a wholly owned subsidiary of Energex Limited, listing the periods in which the appellant (using the name D) was a registered customer at those addresses. The complainant said the incident the subject of count 2 occurred in the latter residence in the room which had the computer in it, and on a weekend (AR 248) when the complainant was in that room playing with the appellant’s daughter R. In an interview with police on 7 May 2001 the complainant child described R as turning one on 24 May 2001.

5. The complainant described the incident, which was the basis of count 3 as occurring in that same house, but this time in the lounge room, and on an occasion when the complainant was sitting on a couch watching a program “Rug Rats”. The complainant said this was also on a weekend. The behaviour described on the occasions of counts 2 and 3 was that C deliberately exposed his penis to the child.

6. As those dates would suggest, there was no fresh complaint about these matters. Plain Clothes Senior Constable “W” of a Juvenile Aid Bureau in Brisbane described receiving a complaint on 7 May 2001, and on that day conducted two sequential video and audio taped interviews with the complainant. She conducted a third on 8 May 2001, in which the interviewer appeared to go over all the allegations made the day before. The complainant child gave consistent accounts on both days of the specific parts of the particular residences at which those offences occurred, and of both the conduct constituting the offences and other circumstantial and surrounding details. She also gave consistent accounts of her own residences at the times of those offences. She had lived in New South Wales (NSW) in 1999, and moved in the year 2000 to a residence in Brisbane for a six month period, and then to a different residence in that city. She consistently described the offence alleged in count 1 as occurring when she was attending school in NSW (AR 243 and AR 26), and the offences described by counts 2 and 3 as occurring “last year” (AR 247 and 251), that being the year 2000, and when she was still living at the first residence in Brisbane (AR 35). Her evidence in March 2003 as to when and where the events occurred was consistent with her description in those interviews of where both she and the appellant were living at the relevant times.

The complainant was shown computer stored pornography

7. She was equally consistent with her description of the circumstances in which other relevant events had occurred. The most critical of those were descriptions in the interviews she gave, and in evidence when cross-examined, of her being shown “rude pictures of women and men on the computer” by C (AR 218). As she described it:

“Ladies sucking men’s doodles and then there were men painted and their doodles were elephant’s trunks and they have pictures of ladies’ titties and all that on there.”

8. The first tape recorded interview said that that deliberate exposure to pornography had first occurred in “the house they lived in after the unit”, which was a reference to the first residence of the appellant which is of relevance to these facts, which house the complainant child described in some detail. Her description included that the computer had at first been positioned in the sun room of that house, which sun room was connected to two bedrooms, and then the computer was moved to under that house, after some six months. Those descriptions were unchallenged in cross-examination.

9. Her first interview described being shown pornography on some 10 to 20 occasions in all (AR 219). In her third interview (on 8 May 2001) she said that had occurred three or four times at the first house, and twice at the second house (AR 246).

10. The force of that evidence derived from the fact that on 16 August 2001 police officer W and other police attended C’s then residential address and seized a computer hard drive and a number of floppy and compact discs. C advised those police that there would be adult pornography on the hard drive and on “the storage media” (AR 45). Evidence from a forensic computer examiner within the Queensland Police Service established that the creation dates for files on the re-writable CD’s which were seized were from 10 December 1999 to 4 July 2001. That expert described (AR 137) the pornographic images recorded as including naked men “some of them having sex, some of them not”, but the examiner did not find an image of a penis painted like an elephant.

11. The relevance of the date in November 1999 is that the complainant child described the first occasion on which she was shown such “rude” images by C as being about three weeks after he got married. That particular sequence was challenged in cross-examination, (at AR 80-82), because the complainant described in evidence in cross-examination that a school swimming carnival was to occur at the date of that incident; yet the witness was confident it had not happened during school holidays. Three weeks after the date of the marriage on 5 December 1999 would have been in school holidays.

12. That discrepancy as to the surrounding circumstances the complainant described detracts very little from her evidence that she was shown such pornography on the appellant’s computer on a number of occasions, when regard is had to the fact that the existence of such pornography available for viewing throughout the entire period the child described was independently established by the prosecution evidence. The only explanation for the complainant knowing of it was the one she gave, and she explicitly denied the suggestion put to her (at AR 109) that there may have been an occasion “when you were able to see the rude stuff on the computer when he wasn’t actually showing it to you”.

The actual offences

13. The evidence of the child being shown that pornography was admitted without objection, and was admissible. It was particularly relevant to the narrative in which the complainant described the events alleged in count 1, which she said occurred on the same day and apparently (soon) after C had shown her on the computer a “lady sucking a man’s doodle”, on an occasion when the complainant had bought a cup of tea to C when he was sitting at his computer. Her description of what then occurred was essentially that she had gone and sat on a lounge in that room, and C had subsequently “pulled his doodle out of his pants” and then pulled her “swimmers” across and had started “rubbing his doodle in my fanny” (AR 231, the third tape). When interviewed on the first tape she had originally said that the appellant had “done the thing to me three times”, (AR 218) which she described as his having shown her “his doodle and rubbed it against my fanny”, (AR 218); but by the time the second recording was made that same day, she had confined her complaint to an account of his having so rubbed himself against herself on one occasion only, and on the other two he had “just pulled his doodle out of his pants and showed me” (AR 33). That was the same account she gave in evidence, and was how the case went to the jury, with those other two occasions being counts 2 and 3.

14. The complainant described the incident which was count 1 as occurring when C placed himself in front of the lounge on which she was seated, then crouched somewhat like a frog, and then succeeded in both rubbing his penis against her groin and penetrating her vagina for a number of minutes. She said he removed his penis and ejaculated onto a faded green cloth. She also described the absence of her mother, father, aunt (C’s wife), and the other children, and how the incident left her feeling. The jury’s verdict establishes that it was not persuaded beyond reasonable doubt that penetration or attempted penetration actually occurred, (there was no medical evidence supporting penetration) but was satisfied the appellant’s penis was rubbed against the child’s groin.

15. Her description of count 2 was that she had been asked to bring the appellant a cup of tea, had done so, and “I brang it in and he had his penis hanging out his pants”. She described the appellant saying, “look” to her, and how she “got sick of it” and “took R out. We went and played in the front lawn”. Regarding count 3, the occasion on which she was watching “Rug Rats”, she said the appellant sat in front of her pulled his penis out and said “J, look”.

A particular identifying feature

16. What was particularly persuasive about her description of the events constituting those three offences was her description of the appellant’s penis as having “three rings in the top layer of his doodle”, which the child said was “really yuck” (AR 30). She described those rings being “like the belly rings with the ball in them” (AR 34), and being silver, which description she repeated in evidence in chief (AR 38). In that evidence she said the three rings were situated “up the top, not closest to his body, near the end”, and that they were “round, they’ve got like a little silver ball on them”.

17. Once again the evidence independent of the complainant established that C had told police officer W, when that officer was taking C’s identifying particulars, that he had a number of piercings in his genitals, being seven altogether; two in the scrotum, four in his foreskin, and one at the end of the his penis (AR 46). The documentary evidence included exhibit 7, that being two photographs of a penis with a number of rings in it, downloaded from C’s computer. The penis depicted in those photographs has rings with little balls which fit the complainant’s description of those “belly rings with the ball in them” given in her second tape recorded interview, and repeated nearly two years later at the trial. Once again there was no credible explanation before the jury of any circumstances other than those the complainant child described in which she could possibly have learnt so clearly those significant and identifying details of the appearance of the appellant’s penis. It was suggested in cross-examination that the complainant may have heard adult family members discussing the fact that C had rings or earrings in his penis, but she denied having heard any such conversation. Her mother agreed in cross-examination that her sister-in-law had told her (the complainant’s mother) that C had piercings, but the complainant’s mother swore that she (the mother) had no idea of “what, where, and I didn’t really want to know it all” (AR 127); and the witness swore that was not something that was common knowledge, nor (as best her mother knew) known by the complainant.

18. C did not give or call any evidence, and accordingly the jury had only the complainant’s evidence to explain how she knew of his sexually explicit material available on his computer, and his idiosyncratic genital jewellery. Her accounts on two different days in 2001 when interviewed, and in March 2003 when cross-examined, are generally consistent save as to some details as to the whereabouts of other persons on the occasions constituting count 1, whether on that occasion the appellant had placed a pot-plant holder against the door, (a matter she had not previously mentioned prior to giving evidence), and the day of the week and place in the room the appellant was occupying when she first saw his penis. Those were also the other contradictions already described. C relies on these in toto for the submission that the jury’s verdicts should be set aside on the grounds that they are “unsafe and unsatisfactory”, meaning that this court should consider that the verdicts are unreasonable or cannot be supported having regard to the evidence.

Application for leave to appeal against sentence

20. The sentences imposed are themselves entirely justified by the offences committed, being consistent with the level of penalties approved in like matters by this court. An unusual feature is that the appellant’s criminal history includes convictions in NSW in January 1989 for offences of “assault and robbery with wounding”, and armed robbery with wounding, together with offences of attempted assault and robbery with wounding (or assaulting with intent to rob) (AR 258), for which he appears to have been ultimately sentenced to a minimum term of 10 years imprisonment, with an additional term to commence on 7 January 1999 and expire on 6 May 2002. Those dates appear both in the applicant’s criminal history, and on a copy of a document entitled “Sentence Calculation System” provided in respect of the appellant by the Queensland Department of Corrective Services, and given to this court on the application.

21. That latter document records that C was admitted to parole in this state on 1 April 1999, his sentence having been transferred from NSW to the Queensland prison system on 14 September 1994. It appears that the applicant remained on bail after these charges were brought against him in 2001, and the effect of his convictions and sentence of imprisonment on 5 March 2003, recorded in the document supplied by the department, is that by reason of s 156A(1)(b)(ii) of the Penalties and Sentences Act (Qld) 1992 (as then applying in its form when inserted by Act No 4 of 1997), the sentences of imprisonment imposed for the offences C committed whilst on parole actually should have been ordered to be served cumulatively with “any other term of imprisonment the offender is liable to serve”.

22. This is because section 156A provides as follows:

“156A.(1) This section applies if an offender –

(a) is convicted of an offence –

(i) against a provision mentioned in the schedule; or

(ii) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule; and

(b) committed the offence while –

(i) a prisoner serving a term of imprisonment; or

(ii) released on post-prison community based release under the Corrective Services Act 2000*;* or

(iii) on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 2000; or

(iv) at large after escaping from lawful custody under a sentence of imprisonment.

***(2)***A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve.” [My Italics].

The offences C committed were all offences against provisions mentioned in the schedule.

23. In C's case, the further effect of s 151(1) and (2) of the Corrective Services Act 2000 (Qld) was that C’s parole was automatically cancelled when he was sentenced to those further terms of imprisonment for those three offences committed during his parole period, which period would only end on 6 May 2002.

Section 151 and 152 provide:

“151****Cancellation of a parole order by further imprisonment (1) A prisoner’s parole order is automatically cancelled if the prisoner is sentenced to another term of imprisonment for an offence committed, in Queensland or elsewhere, during the parole period.

(2) The prisoner’s parole order is cancelled even if the parole period has

expired. [My Italics]

(3) However, the prisoner’s parole order is not cancelled if –

(a) the prisoner is required to serve another term of imprisonment in default of –

(i) paying a fine or another amount required to be paid under a court order; or

(ii) making restitution required to be made under a court order; or

(b) the prisoner is sentenced to another term of imprisonment, but the period of imprisonment –

(i) is required to be served under an intensive correction order; or

(ii) is wholly suspended under the Penalties and Sentences Act

1992, part 8.

(4) If the prisoner’s parole order is cancelled –

(a) a corrections board may issue a warrant, singed by a member or the secretary of the board, for the prisoner’s arrest; or

(b) A magistrate, on the application of a corrections board or a member of the board, may issue a warrant for the prisoner’s arrest.

(5) The warrant may be issued to all corrective services officers and may be

executed by any of them.

(6) When arrested, the prisoner must be taken to a prison to serve the

unexpired portion of the period of imprisonment to which the prisoner was

sentenced. …

152****Effect of cancellation of parole order

**(1)**This section applies if a prisoner’s parole order is cancelled –

(a) under section 150(1)(a)(i) because the prisoner contravened a condition of the parole order; or

(b) under section 150(1)(a)(ii) because the prisoner posed a serious risk of harm either to themselves or someone else; or

(c) under section 150(1)(b) because the board received information that, had it been received before the order was made, would have resulted in the board not making the order; or

(d) under section 151 because the prisoner was sentenced to another term of imprisonment for an offence committed during the parole period.

(2) The time for which the prisoner was released on parole before –

(a) the prisoner contravened the condition; or

(b) the order was cancelled for the reasons mentioned in section (1)(b) or;

(c) the prisoner committed the offence;

counts as time served for the prisoner’s period of imprisonment.

(3) The Queensland board may, by written order, direct that the prisoner serve only part of the unexpired portion of the period of imprisonment imposed on the prisoner.

(4) A regional board can not make an order mentioned in subsection (3), even if it released the prisoner on parole.” [My Italics].

24. By reason of s 152(1)(d) and 152(2)(c) of the Corrective Services Act, only the time during which C was released on parole and before committing an offence counts as time served after release on parole for that period of imprisonment ordered back in 1989. The effect of all this is that because C’s first conviction was alleged to be for an offence occurring between 1 March 1999 and 30 March 2000, none of the period in which he was at large after being released on 1 April 1999, and before being returned to custody, counts as time served. The document provided by the Department of Corrective Services reflects that, recording as it does that he was “at large” for 1433 days, meaning that after his return to custody on 5 March 2003, C faced imprisonment until 8 April 2006 just from serving the unexpired remainder of that long sentence on which he had been released on parole in April 1999. (The 29 days in April 1999, the rest of the days in 1999, the days in 2000, 2001, 2002, and in 2003 up to and including 4 March 2003 total 1433). The total number of days from 1 April 1999 to 6 May 2002 is 1130, which C has still to serve of that original term.

25. The learned sentencing judge was not reminded at all of these matters, fortunately for C, and did not order that the extra minimum twelve months imprisonment ordered be served cumulatively. As no such order was made, the sentence is to be served concurrently. The circumstances of this case and those in the matter of R v Parker [2002] QCA 403; CA No 160 of 2002, 4 October 2002, show the need for close attention to the legislation both by counsel and judges when offenders are being sentenced who have re-offended when on parole. Those circumstances also demonstrate the undoubtedly unforeseen and in many ways undesirable consequences of mandatory legislative sentencing regimes, as opposed to leaving entirely to the appropriate exercise of discretion of a sentencing judge such matters as whether offences committed whilst on parole (or bail) should result in cumulative sentences, and the significance of extended periods out of custody after committing offences when on parole. The Penalties and Sentences Act and Corrective Services Act sections discussed herein, unless rigorously applied, will lead to sentencing errors. The need for attentive awareness of their provisions simply places an extra burden on busy sentencing courts.

26. It is worth noting that the amendments to s 157 of the Penalties and Sentences Act 1992, made by Act No 63 of 2000 (the Corrective Services Act 2000), in force from 1 July 2001, probably reverse the decision in R v Doyle [1996] 1 Qd R 407 and the majority decision in R v Burton [1995] QCA 445; CA No 492 of 1994, 6 October 1995, which held that a parole order cannot be made in respect of an aggregate or total period of imprisonment resulting from orders made at different times and where the first order did contain recommendations for parole. This change has been effected by removing the word “fresh” in s 157(3)(a), the word “new” from sub sections (4) and (5) in the phrase “new recommendation”, and by replacing the term “non-parole” with “non-release”. The term “period of imprisonment” in s 157(3) is defined in s 4 of the to include cumulative terms.

[27] I would refuse the application for leave to appeal against sentence and dismiss the appeal.

[28] ATKINSON J: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with the proposed orders, for the reasons expressed by His Honour.