SUPREME COURT OF QUEENSLAND

CITATION:	R v HCU [2025] QCA 59	
PARTIES:	R
v
HCU
(appellant/applicant)	
FILE NO/S:	CA No 119 of 2024
DC No 291 of 2022	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction & Sentence	
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction: 30 May 2024 Date of Sentence: 31 May 2024 (Power KC DCJ)	
DELIVERED ON:	2 May 2025	
DELIVERED AT:	Brisbane	
HEARING DATE:	6 February 2025	
JUDGES:	Mullins P, Brown JA and Gotterson AJA	
ORDERS:	1.	Appeal dismissed.
2.	Application for leave to appeal sentence refused.
3.	A warrant issue for the arrest of the appellant which is to lie in the registry for five business days.	
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – JURIES – DISCHARGE AND EXCUSING FROM ATTENDANCE – where the appellant was convicted by majority verdicts after a trial of four counts of indecent treatment of a girl under 14 years and a directed verdict of not guilty was entered on two further counts of indecent treatment of a girl under 14 years – where the appellant contended that he was denied a fair trial because the primary court received prejudicial evidence that warranted the discharge of the jury – where the appellant’s counsel at trial sought the discharge of the jury – whether the trial judge erred in refusing to discharge the jury – where a direction was given – whether there was a miscarriage of justice having regard to the whole of the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted by majority verdicts after a trial of four counts of indecent treatment of a girl under 14 years – where the appellant was sentenced to a three year head sentence suspended after 12 months and 285 days of pre-sentence custody was declared as time served on the sentence – where the appellant argued that the disparity with other “yardstick” cases indicates misapplication of principle by the sentencing judge – where the appellant contended that there were a number of mitigating circumstances which demonstrated that the sentence was excessive – whether the sentence imposed was manifestly excessive
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
R v B [2003] QCA 105, considered
R v Fraser [2001] QCA 187, cited
R v Goulding [1994] QCA 276, considered
R v Koller [2011] QCA 371, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v T [1996] QCA 45, considered
R v W [2000] QCA 321, considered
R v WBB [2015] QCA 152, considered
R v Wruck (2014) 239 A Crim R 111; [2014] QCA 39, considered	
COUNSEL:	S J Bain for the appellant
M A Green for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	MULLINS P:  I agree with Brown JA.
[2]	BROWN JA:  Mr HCU, the appellant, was convicted by majority verdicts on 30 May 2024 of four counts of indecent treatment of a girl under 14 years.  He was sentenced to a head sentence of three years on counts 1 and 3 with lesser concurrent sentences for counts 2 and 6 of 12 months and 18 months respectively.  The sentences for counts 1, 3 and 6 were suspended after 12 months with an operational period of three years.  The period of 285 days of pre-sentence custody was declared as time served on the sentence.
[3]	The appellant was granted appeal bail on 11 July 2024.
Grounds for appeal and for leave
[4]	The appellant appeals his conviction on the basis that the trial judge refused the appellant’s application to discharge a jury after the reception of prejudicial evidence halfway through the trial which he contends resulted in a miscarriage of justice.
[5]	The appellant also applies for leave to appeal his sentence on the basis of manifest excess.
The trial
[6]	The offending, the subject of the convictions, took place between January 1986 and January 1988 when the complainant lived with her parents and brother next door to the appellant and his wife and children.  Her father and the appellant were both in the armed services.  She was a regular visitor to the house of the appellant.
[7]	The complainant was the only witness who gave evidence in support of the charges.  The appellant was charged with six offences of indecent treatment of a girl under 14 years.
[8]	In relation to counts 1 and 2, the complainant estimated she was six or seven.  She was sitting on a beanbag next to the appellant’s daughter watching TV at the time of the offending.  The complainant was wearing a dress.  The appellant sat on her right side and lent in towards her.  He dragged a blanket over the three of them and then started touching the complainant.  Initially he touched her on the outside of her underwear and then underneath her underwear and she described him touching inside the vulva, into the labia and engaging in clitoral stimulation.  He then guided her hand to his erect penis while he was wearing shorts and she felt a wet spot on his shorts and some of his penis on her hand.
[9]	In relation to count 3, the complainant’s evidence was that she was at the appellant’s house being babysat by him and his wife.  She had been in one of the children’s rooms when the appellant came into the room and said that the complainant could stay up a little bit longer as she was older.  She was wearing a nightie.  He then led her into the lounge room and put on a pornographic movie.  He asked her what she thought and whether she liked it.  He then asked if she saw what they were doing and she said she did.  He then touched her on the inside on her vulva and stimulated her clitoris.  She could recall being interrupted by one of the children.  He was moving his fingers around a lot.
[10]	As to counts 4 and 5, the complainant’s evidence did not support the specific acts which were the particulars provided in respect of each count and as a result the trial judge directed verdicts of not guilty be entered on each of those counts.
[11]	As to the subject of count 6, the complainant said that when she was, say six to seven the appellant either asked her to come or let her into his room.  The door was shut and he was on the bed naked from the waist down.  He then showed her a pornographic magazine which included some acts of fellatio.  He asked her if she wanted to do that which she said she did not.  She saw his penis was erect.  He then had her put powder on his genitals and holding her hand guided her to masturbate him.  He did not ejaculate.  The appellant told her to leave the room.
[12]	In addition to the evidence led in respect of the charged acts there was some evidence of uncharged acts.
[13]	The other witness, KF, was called.  She gave a statement that the complainant had told her that her uncle had touched her and went on to say that her uncle had shown himself to her and tried to make her touch and kiss him.  KF however also gave evidence that she had another friend who had made similar disclosures to her about sexual conduct and she had difficulty in separating the two.
[14]	There were joint admissions made, part of which was admissible as preliminary complaint evidence, namely disclosure by the complainant of a sexual assault to an organisation, Bravehearts.  In that report the complainant had stated that the appellant had sexually abused her including “exposing himself, showing me pornography on a video and in magazines, kissing me, touching and stimulating my genitals, having me touch his genitals, rub powder into his genitals, touching my bottom and [threatening] me with punishment if I told anyone”.
[15]	Admissions were also made, amongst others, that went to the question of delay in the complaints being made.  It was admitted that the complainant attended the police station and provided information as to the alleged offending in 2014, attended the police station and made a formal statement in 2016, had a telephone conversation with police and attended the station in 2017.  It was also admitted that the complainant phoned the Policelink to make enquiries about the progress of the investigation in 2018 and 2020.
[16]	The trial was relatively short with only one day of evidence and the jury retiring to consider their verdict on the second day.
Ground 1
[17]	During cross-examination of the complainant, the complainant was being asked about dreams about being sexually assaulted by someone when the following exchange took place (first statement):
“MR THOMAS: Are the things that you've told the court today simply recounting dreams that you 've had? --- I think we all know the fact that your client ran a year ago from a trial ---
HIS HONOUR: No, stop -
MS PARFITT: No.
HIS HONOUR: --- stop, stop.
WITNESS: Sorry?
HIS HONOUR: Please, so the - the question - sorry, we'll just ask the question again and please just focus on the question.”
[18]	Later in the complainant’s evidence again when she was being cross-examined, a further exchange took place (second statement):
“It took you almost two years from the time you first spoke to the police about this to make your signed – to provide a signed statement to the police, didn’t it?---No. I asked and asked the police service, who was incompetent. My case has been so badly mishandled. Documents not passed from one station to another. One of my police officers just up and joined the Secret Service and had no way of contact. I have been a victim of an incompetent – and I’m sorry; there are police officers here and I apologise, because there have been some amazing police officers. But the system overall – it has taken me 10 years to get to this point, so – and that’s through my lack of – an extra year for a reason completely out of my control. I was ready to go - - -” (emphasis added)
[19]	No direction was sought by the defence immediately after the evidence had been given that the jury should disregard either of the above statements.  However, subsequently the defence applied for the discharge of the jury on the basis that the evidence above was potentially prejudicial to the defendant, particularly against a background of a delay of some 40 years between the offending conduct and the trial.  In its application to discharge the jury, the defence contended that the jury could reason that there was an occasion a year ago that the defendant fled from the trial and that the reason for his fleeing was his consciousness of guilt.  The Crown, however, had not sought to advance that as evidence in its prosecution.  The application was only made in relation to the first statement referred to above not the second.  The learned trial judge alluded to the second statement as potentially being of a similar nature to the first in an exchange with counsel.  The Crown opposed the application to discharge the jury and contended the matter could be addressed by way of direction.
[20]	The trial judge declined to discharge the jury.  His Honour accepted the statement “your client ran a year ago from a trial” was prejudicial because if a person runs from their trial it is generally open for the jury to reason from the fact, although not that fact alone, the defendant fled out of consciousness of guilt.  He referred to juries being given very detailed directions where it was alleged there was evidence of consciousness of guilt which was not requested by the Crown in the present case.  Further, his Honour observed that the defence stated that there would be no evidence as to the reasons behind the defendant not attending his trial.
[21]	The trial judge did not consider that the prejudicial matters arising from the statement made were so great that it would be unrealistic to expect a jury to obey a direction, nor would the defence be prevented from making arguments about delay.
[22]	The trial judge said his preliminary view was that he would ask the jury to disregard all non-responsive answers to questions and include as part of that direction, a direction that in some way referred to the particular statement the subject of complaint and direct them to disregard the statement entirely in their consideration of the evidence.  He indicated that he would hear further from counsel as to the proposed direction.
[23]	The trial judge gave very careful directions in his summing up.  He omitted in the summing up, however, to provide any specific direction in relation to the statement which had been the subject of the application as he had foreshadowed.  That omission was not raised with him by either counsel and no re-direction was sought.  It was plainly an oversight by his Honour and by counsel.  His Honour subsequently raised the omission in discussions with counsel as to another issue after the jury had retired, in response to a note from the jury.  The trial judge determined to make the direction when he responded to the jury request for a transcript of the complainant’s evidence.
[24]	In response to the note from the jury, the trial judge determined that the jury would  be provided with the transcript of the evidence of the complainant and the other witness who was relied upon by the defence as having been told an inconsistent version of events by the appellant.
[25]	The trial judge proposed (and counsel agreed) that the question and the response from the complainant, that the appellant had run away from a trial in the first statement be excluded from the transcript and a statement be inserted: “unresponsive and inadmissible answer removed”.  The second statement referred to above was not removed nor was there any contention that it should be.  His Honour then gave a direction which included:
“Now, on occasion witnesses gave answers which did not relate to the questions that were asked. Now, I direct you that non-responsive answers to questions are not evidence, and where that occurs you must disregard them. Now, you may remember that there was one non-responsive answer involved – which involved a reference to there having been a trial – prior trial listing in this matter. I direct that you must entirely disregard what was said about that. It would be wrong for you to consider it or use that evidence in any way in this trial, and I direct you to disregard it entirely. So that particular reference has been excluded from the transcript simply because it is irrelevant and because I direct you to disregard that.”
[26]	No further direction was sought by either counsel.  No complaint is made in this appeal as to the terms of the direction given.
[27]	That direction was given at 3.30 pm.  The jury had retired at 11.30 am on the same day after the summing up.  The jury then deliberated for a further day before returning a majority verdict.
[28]	In the appellant’s submission, the inference that could be drawn from the first statement was that the appellant had fled because the complainant’s allegations were true, which was further supported by the second statement referred to above.  While the appellant does not contend that the direction given by his Honour was deficient, he contends that it could not negate the prejudice that was suffered by the appellant as a result of the evidence having been given and the jury should have been discharged.
[29]	The appellant contends this was a finely balanced trial where the complainant’s evidence was critical and significant delay had occurred.  According to the appellant, the delay meant that the jury was directed to take into account the forensic disadvantage to the appellant in bringing the prosecution.  The appellant submits that the delay in giving the direction to disregard the evidence, either at the time it was given or in the summing up, until some four hours after the jury had retired for deliberations together with the delay in prosecution and the dependence of the prosecution’s case on the complaint’s evidence, contributed to this evidence being so prejudicial that the appellant contends that the jury should have been discharged.  In the appellant’s submission the fact that the jury deliberated for more than eight hours before reaching a majority verdict also supports the fact that the trial was a finely balanced one.
[30]	The respondent however contends that the possibility of prejudice could only be slight in the circumstances of a case which involves total delay of some 38 years.  The respondent contends that the notion of consciousness of guilt is a legal one and not something that is  necessarily within the knowledge or experience of a lay person.  The absence of any detail as to consciousness of guilt would mean that the jury would have had to speculate in order for any prejudicial interpretation to arise thus posing minimal risk.  No reference was made to consciousness of guilt in the closing submissions of either counsel nor by the trial judge in his summing up.  The jury were directed not to speculate about facts not in evidence and were directed at length about how the delay disadvantaged the appellant.
[31]	The respondent further contends that the direction given by his Honour, albeit some time after the summing up had finished, extinguished the possibility of any prejudice, particularly given the trial judge’s careful direction avoided reference to the first statement so as not to emphasise it to the jury when the words were removed from the transcript.  The jury had deliberated then for a further day after the direction was given with the redacted transcript.
Consideration of ground 1
[32]	In R v Koller White JA (with whom Muir and Chesterman JJA agreed) considered an argument that a jury should have been discharged due to the admission of inadmissible and prejudicial evidence and in that regard stated at [25]:
“In R v Weaver, expressly followed by the Court of Criminal Appeal in R v Waring (No 2), the English Court of Criminal Appeal, considering the discretion to discharge a jury after prejudicial evidence has inadvertently been admitted said:
‘It follows, as has been repeated time and again, that every case depends on its own facts. It also, as has been said time and again, thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged.’” (footnotes omitted)
[33]	The question for this Court is whether the appellant has established that there has been a miscarriage of justice when consideration is given to the whole of the evidence.  It is not an appeal against the exercise of the trial judge’s discretion not to discharge a jury.
[34]	As the trial judge recognised the statements made by the complainant had a potential prejudicial effect.
[35]	It is unlikely, however, that, even absent a specific direction being given to the jury, there would, as the appellant contends, have been an irresistible inference by the jury that the appellant had fled from this trial as a result of consciousness of guilt on the basis of the first statement made by the complainant, or indeed the second statement, for a number of reasons.  The first statement was ambiguous.  The second statement even more so.  Consciousness of guilt is a complicated legal concept.  The first statement did not, on any reasonable view, carry a necessary inference that he fled because of a guilty mind.  It was a possibility at best.  Given the reference to “from a trial” and the absence of reference to the trial for these offences, it was equally open for the jury to infer from the statement that the appellant had run from an entirely unrelated trial, or that he had run from the trial for reasons other than a guilty mind such as personal issues.  In the context of the complainant’s evidence as a whole it was also equally possible that the jury would have paid the statement no or little regard and just treated it as a reactive, irrelevant statement by the complainant, even without the direction, given the disconnect between the statement and the questions being asked.  Given the nature of the statement made, any potential prejudice was overcome by an appropriate direction to ensure the defendant had a fair trial, as was done in this case.
[36]	As to the second statement, the appellant contends that when read together with the first statement, the second statement had much greater significance than it otherwise would have in terms of prejudice.  Unlike the first statement, it was not removed from the transcript.  The removal of the first statement however meant the risk of taking the two statements together was abated.  The second statement was made in the context of the complainant complaining about the conduct of police, particularly in terms of delay.  She made a number of statements in that regard.  Any connection between the statement “a year out of my control” in the second statement and the complainant’s first statement that that the appellant had “ran a year ago from a trial” was tenuous at best.  It could not be reasonably inferred that the second statement related to the appellant fleeing the previous trial out of consciousness of guilt, notwithstanding the trial judge’s reference to it.  In making comment on the second statement the trial judge was clearly adopting a very cautious approach.
[37]	Neither the first or second statements were referred to by either counsel or the trial judge after they had been first made by the complainant.  The removal of the statement together with the direction by the trial judge was effective at neutralising any prejudicial effect.
[38]	The trial judge’s direction did not re-emphasise the words that had been used in the first statement making an oblique reference to “a prior trial listing” and gave a clear direction that it be disregarded, emphasised by its removal from the transcript of evidence given to the jury.  As to the second statement while no specific direction was given, it was not necessary to do so.  The trial judge’s direction was broader than just being directed to the first statement.  The direction generally directed the jury to disregard non-responsive answers given by the complainant on the basis they were not evidence.
[39]	Nor did the delay in giving the direction negate its effectiveness and give rise to any unfairness.  While the direction was given some four hours after the jury had retired, the jury deliberated for a further day before it returned its verdict.
[40]	In the circumstances, there was no risk of the jury being affected by the statements of the complainant in reaching their verdicts, particularly given the direction given.  The prejudicial effect of the statement was not such that the jury should have been discharged and having regard to the whole of the evidence the statements in question did not give rise to a miscarriage of justice.
Ground 2
[41]	The appellant applies for leave to appeal his sentence contending that the sentence was manifestly excessive within the meaning of the final category of House v The King.
[42]	In R v Pham, French CJ, Keane and Nettle JJ stated:
“… Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” (footnotes omitted)
[43]	According to the appellant, the disparity with other “yardstick” cases should lead this Court to conclude that imposing a three year head sentence suspended after 12 months was a misapplication of principle.
[44]	At the sentencing hearing, the Crown had submitted a sentence in the order of 18 months imprisonment would be an appropriate exercise of the sentencing discretion and that the Court “might consider declaring the 285 days served in pre-sentence custody as time served under this sentence and suspending the sentence after 285 days”.  The appellant submitted that a global head sentence of 15 to 18 months imprisonment suspended after the period that the appellant had served in pre-sentence custody was an appropriate sentence.
[45]	The appellant contends that there are a number mitigating circumstances which demonstrate that the sentence imposed was excessive.  The appellant was 28-29 years during the offending and 66 at the date of sentence.  He had a dated criminal history with no prior or subsequent sex offences.  He had been treated for a serious medical condition while in custody, which it was accepted made his time in custody harder than it would be for others.  His time on remand was also more onerous as a result of the medical condition he suffered.
[46]	The respondent contends that the sentence imposed was open to his Honour.  The sentencing judge had identified distinguishing features between the comparable cases that had been presented to him and the offending by the appellant and his circumstances.  In distinguishing the cases presented, the trial judge observed, correctly, that the cases simply reflected that the sentences imposed were a proper exercise of sentencing discretion rather than presenting the outer limits of a sentence,  and it was open to impose a higher sentence, given the level of seriousness of the offending.
[47]	The respondent also contends that the mitigating features were reflected by the sentencing judge suspending the sentence after 12 months which provided certainty of release and did not impose the obligations of parole upon the appellant once released.
The sentence 
[48]	The trial judge considered carefully each of the cases that had been presented to him.  His Honour took into account a number of features of the offending and the appellant’s circumstances, including: 
(a)	that the nature of each of the offences was serious, particularly those involving penetration and on one occasion while one of his children was present;
(b)	that the complainant was six or seven years of age at the time of the offending;
(c)	that the offending involved a breach of trust, the appellant being a colleague of the complainant’s father and her parents in trusting her safety to the appellant when in his presence;
(d)	that the maximum penalty for the offences at the relevant time was five years;
(e)	the considerable impact upon the victim reflected by the victim impact statement;
(f)	that the matter had gone to trial;
(g)	the appellant’s personal circumstances, including that he was 66 years of age, had served in the armed forces, had separated and no longer had contact with his children.  He had  a good employment history  and worked throughout his life.  He had a dated limited criminal history which appeared to relate to a drinking problem, but he was otherwise of good character;
(h)	that the appellant had spent time in custody as a result of his failure to appear and his time in custody was more onerous than other prisoners and, included his being assaulted.  He was diagnosed with the serious illness which required invasive treatment and was debilitating while in custody; and
(i)	that the appellant would  continue  to find custody much harder because of his physical state and the fact that he required ongoing treatment.
[49]	His Honour carefully considered all of the authorities to which he had been referred and considered that the circumstances of this case warranted a heavier sentence than either of the parties contended should be imposed.  It is of course within a judge’s discretion to do so.
[50]	The trial judge imposed sentences of three years on counts 1 and 3, both of which involved digital penetration with lesser sentences on the other counts.  The sentences for counts 1 and 3 reflected his Honour’s assessment of the total criminality of the appellant’s offending as permitted by R v Nagy.  His Honour considered that nine months and nine days in actual custody did not reflect the seriousness of the appellant’s offending.  Taking into account the matters in mitigation and particularly the appellant’s physical condition, his Honour determined however that he would grant him the benefit of suspending the sentence after 12 months for a period of three years, notwithstanding the conviction followed a trial.
Consideration
[51]	While his Honour acted on the basis that the maximum penalty was five years, defence counsel properly accepted at the hearing that the maximum was in fact seven years.
[52]	A review of the cases said to be comparable to the present case does not reveal that there must have been a misapplication of principle and that the sentence was manifestly excessive.
[53]	In the case of R v WBB the appellant was convicted of four counts of indecent treatment of a boy under 14 years who was his son.  He was sentenced to 18 months imprisonment.  In that case there were four offences, two of the offences involved placing the complainant’s hand on the accused’s penis, one count involved pushing the complainant’s head down to his penis such that his lips and/or mouth touched the penis, and one count involved placing his mouth on the complainant’s penis which involved sucking his penis.
[54]	Justice Martin (with whom Gotterson and Philippides JJA agreed) noted that the trial judge had set the sentence according to the sentencing levels which applied at the time of the offending namely, 1977 and 1978, and on that basis considered that the appropriate level of imprisonment would be no less than two years and likely somewhere between two and three years.  A sentence of 18 months with no parole release date was imposed.
[55]	Justice Martin referred to R v Wruck where Holmes JA (as she then was) examined a number of authorities concerning sentences for offences committed in similar circumstances.  A sentence of 18 months had been imposed in that case taking into account various mitigating circumstances.  The sentence was suspended after four months.  Holmes JA considered that the seriousness of the offences called for denunciation and real punishment in the form of actual imprisonment, albeit for a short period.  Justice Martin also referred to the case of R v Goulding where the applicant had been convicted of one count of indecent treatment of a boy under 14 years and sentenced to two years imprisonment with parole eligibility after six months.  The offending in that case had occurred some ten years before and consisted of touching and kissing the groin and thighs of the complainant before sucking his penis and rubbing his own penis on him.  The complainant was 13 years old.  The sentence was not found to be manifestly excessive.
[56]	In WBB Justice Martin found that the sentence was not manifestly excessive and that the sentencing judge had accounted for matters raised in mitigation by reducing the head sentence.  Given penetration had occurred in the present case, this case involved more serious offending, albeit WBB involved a father/son relationship and was a greater breach of trust.
[57]	The appellant particularly relied on the cases of R v B, R v W and R v T to support the sentence imposed.
[58]	In the case of R v B, the appellant had been found guilty of two counts of indecent dealing with a child under 12.  The conviction followed a trial and he was sentenced to 18 months imprisonment for unlawfully and indecently dealing with a child under 12.  The first count involved the appellant touching the complainant’s vagina who was in grade four at the time.  The other count involved the appellant’s hand being under the complainant’s underwear while he was naked and his offering ten dollars in order to “lick your pussy”.  The appellant was the complainant’s stepfather.  The appellant was of similar age to the present appellant with a dated and irrelevant criminal history.  The complainant experienced ongoing impacts because of the offending.  While regarded as serious, the offending was said to be at the lower end of the scale of offences of that nature which justified the term of imprisonment.  The court found that the sentence was excessive.  Davies JA (with whom McMurdo P and Philippides J agreed) considered that the sentence was excessive when compared to comparable cases and that the worst aspect of the case was the appellant’s breach of trust.  A sentence of 12 months was imposed on each count.  No parole release date was set.  That case involved less serious offending than the present.
[59]	In R v W the Court set aside the sentences imposed below and imposed a sentence of six months imprisonment on each of the counts suspended after two months with an operational period of two years.  The original sentence that had been imposed was a period of 12 months.  The appellant had no prior criminal history.  He was 69 years of age.  The offending of which he was found guilty was found not to be at the higher end of offending.  It involved the appellant rubbing his finger on the complainant’s vagina when she was five or six on top and underneath her clothes on the first occasion and on the second and third occasion rubbing her vagina both inside and outside of her pants.  There was no suggestion of penetration on any of the occasions and his life was otherwise said to be exemplary.  The court did not consider that the sentencing judge was in error in imposing the period of custody, where the conviction followed a trial but considered that the sentence was excessive given his otherwise long life without offending and the low likelihood of reoffending.
[60]	Although the offending in R v W occurred in a similar timeframe to the present case, the offending was more serious in this case.
[61]	The appellant particularly relied on the case of R v T.  In that case the appellant was convicted of four counts of indecently dealing of his niece who was in his care at the time.  In relation to two of the counts she was under 12.  The most significant sentence was 15 months imprisonment.  One of the counts involved the applicant inserting his finger in the complainant’s vagina and making her touch his penis as well as rubbing himself against her.  Other counts involved touching her on the chest and vagina in a swimming pool and touching her chest and vagina and rubbing his groin against her when she slept overnight.  While that case did involve actual penetration on one of the counts, there was penetration on two occasions in the present case and one of the counts in the present case involved the appellant having the complainant masturbate him.  The offender was 24 when he committed the offence and had no prior criminal history.  The counts in the present case were more serious.
[62]	His Honour was correct in considering this offending to be more serious in totality than the cases he reviewed.  The offending was serious and had a significant impact upon the victim.  The sentence of imprisonment was open having regard to the yardsticks and does not show any misapplication of principle.  In this regard the majority in Barbaro v The Queen relevantly observed:
“As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.” (footnotes omitted).
[63]	The mitigating circumstances arising from the appellant’s age, lack of offending other than the present offending, work history and considerable health issues were reflected by the suspended sentence after a third which would normally be imposed following a plea of guilty.
[64]	The appellant has been on bail pending this appeal.  He has not served the time in custody to which he was sentenced.  He will have to return to custody to serve the remaining 38 days of his sentence after which it is suspended.
[65]	I propose the following orders:
1.	Appeal dismissed.
2.	Application for leave to appeal sentence refused.
3.	A warrant issue for the arrest of the appellant which is to lie in the registry for five business days.
[66]	GOTTERSON AJA:  I agree with the orders proposed by Brown JA and with her Honour’s reasons for them.