DPP v NOP [2011] TASCCA 15

Criminal Law - Appeal and new trial - Appeal against sentence - Appeals by Crown - Other matters - Rape of child aged 6 by a youth aged 15 years and 6 months with a reduced mental age - Youth released and proceedings adjourned without conviction - Sentencing principles - General deterrence and denunciation - Whether sentence manifestly inadequate.

Youth Justice Act 1997 (Tas), ss48, 49.

Attorney-General v Smith [2002] TASSC 10, applied.

Bowden v R [1968] Tas SR (NC) 15; Austin v R [1971] Tas SR 227; Thompson v R, Serial No A21/1971; R v Laredo Serial No A82/1977; George v R [1986] TASSC 19; [1986] Tas R 49; Stonehouse v R A90/1993; R v Everett, R v Phillips [1994] TASSC 39, considered.

Judgment Number: [2011] TASCCA 15

2 That the sentence imposed on the respondent on 18 July 2011 is quashed insofar as it was ordered that the proceedings be adjourned for 12 months on condition that the respondent be of good behaviour for that period and it was ordered that no convictions be imposed.

3 That in lieu of the quashed portion of the sentence:

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convictions are recorded; and

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it is ordered that the respondent serve a period of nine months' detention wholly suspended on condition that for a period of two years from 18 July 2011 he not commit an offence that if committed by an adult could be punishable by imprisonment.

4 That the orders made by the learned sentencing judge on 18 July 2011 as to probation and under the Community Protection (Offender Reporting) Act be confirmed.

1 The appellant appeals against the sentence imposed on the respondent following his plea of guilty to charges of rape and indecent assault.

2 At the time of the crimes the respondent was aged 15 years and six months, and his female victim was six years of age. The sentencing hearing proceeded on the unchallenged basis that when he committed the crimes the respondent's mental age was about ten years eight months.

3 The learned sentencing judge, Blow J, sentenced the respondent under the provisions of the Youth Justice Act 1997. The sentence was:

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A probation order for two years, with a special condition that the respondent undergo medical, psychiatric, psychological and other counselling and treatment as directed by a Youth Justice worker.

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An order adjourning the proceedings for 12 months on condition that the respondent be of good behaviour for that period.

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An order that no convictions be recorded against the respondent.

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An order that the Registrar appointed under the Community Protection (Offender Reporting) Act 2005 place the respondent's name on the Community Protection Offender Register for four years, and that the respondent comply with the reporting obligations under that Act for that period.

"1 The learned Judge erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case.

2 The learned Judge erred in law in not seeking further psychiatric/psychological evidence and/or in proceeding to sentence without evidence addressing the risk of the Respondent re-offending."

5 Ground of appeal 2 was addressed first by both counsel and I will do the same.

6 The following are relevant portions of the learned sentencing judge's comments when passing sentence:

"[The respondent] has pleaded guilty to charges of indecent assault and rape. These two crimes were committed in or about spring of last year, that is, in or about September, October or November of last year on two separate occasions. He was 15. The victim of both crimes was his niece. She was 6 years old. On the first occasion he removed his pants. The girl remained fully clothed. He placed his penis between her legs on the outside of her vagina. On the second occasion he had vaginal sexual intercourse with her. She sat on top of him and he inserted his penis into her vagina and they had sexual intercourse. He told her, in relation to that act of intercourse, that he would go to gaol if she told on him, and then she would never see him again. She therefore initially remained silent about what had happened. But, early this year, someone overhead the girl discussing what had happened. That person spoke to the girl's parents. Discussions followed. [The respondent] admitted to his father what he had done, and was taken to a doctor, and admitted to that doctor, a general practitioner, what he had done.

That all sounds dreadful, but there is a very important factor that I have not mentioned. That is that [the respondent] is a boy of very low intelligence. The general practitioner referred him to a psychologist. The psychologist, amongst other things, did some testing and measured [the respondent's] IQ at 66. That means that, although he was 15½ years old at the time of these two crimes, his mental age was something like 10 years and 8 months. I have to decide what to do by way of sentencing someone who is now 16 but, in terms of his intellectual development and understanding, is nowhere near as mature as the average 16 year old. He is someone who is intellectually impaired. So we have a crime committed by an intellectually impaired 15 year old upon a very unfortunate girl of 6.

...[T]his is not, in my view, a case that should result in the offender being locked up. I think his rehabilitation has to take priority, and, if he were to be placed in a detention centre, he would come out in a more worrying state than he is now. He has the support of significant sections of his family. His brother, who is the father of the victim, has broken off all contact. His mother died years ago. But he has the support of his father, who has been placed in an unfortunate position of having to be loyal to his other son, and to his granddaughter, as well as supportive and protective of this son. He has the support of his three sisters. He is getting help from the psychologist whom he is continuing to see. He is receiving advice from the psychologist about appropriate sexual focuses and activity.

[The respondent] is a boy who otherwise has not presented a problem. At school there has been no problem with his behaviour or his attendance. He is a slow learner but he has got friends. He does not have any problems involving alcohol or drugs, or any of the usual sorts of problems that I see with young offenders.

It would be inappropriate to lock him up. I cannot punish him by imposing a community service order. He was not considered by a youth justice worker to be suitable for one. He needs to know that, if [he] does anything like this again, he will be in the most terrible trouble. I do not think that it is appropriate for me to make a suspended detention order because I do not think it would be appropriate to punish somebody who, at the time of offending, had a mental age of something like 10 years 8 months, even with a suspended detention order. I will definitely make a probation order. And I think it is appropriate that I also adjourn the proceedings on the basis that he will be ordered to be of good behaviour. I will make an order under s47(1)(d), as well as a probation order.

The only aspect of his sentencing that I have not referred to involves the Community Protection (Offender Reporting) Act 2006. Frankly I think that that Act can only serve a purpose if the information that is recorded by the police in relation to sexual offenders might assist in monitoring some future conduct or solving a crime. This is a boy who has the support of his family. I do not see any purpose in requiring him to comply with the reporting obligations that that Act requires for a terribly long period. If he does move out of his father's home and go to live in a residence of his own, normally for a young man that is a very positive thing. But in his case, he will have to report that to the police. When he gets his first car, normally for a young man of limited intelligence that is a very positive thing. He will have to report it to the police. If he gets a job, he will have to report that to the police. If he wants to go on a trip outside Tasmania, normally for a young man of limited intelligence that would be a major milestone in his life. He will have to give the police seven days' notice. I do not think the risk of re-offending, given all that I know about him, and given the psychological counselling that he is receiving, warrants an order that is going to operate for a very long time."

7 In the course of the initial sentencing hearing, on 14 June 2011, counsel for the respondent provided the learned sentencing judge with a report on the respondent from his treating psychologist, Mr Stephen Pinkus. The respondent had attended on Mr Pinkus on six occasions. The report relevantly included the following:

"Both [the respondent] and [his father] have been compliant in their attendance and [the respondent] has been open in his discussions with me. My impression of [the respondent] is that he is both intellectually and emotionally a younger child than his chronological age. This is confirmed in the school reports where I note that [the respondent] is regarded as 'an agreeable student at school who relates well to his friendship group and all adults in the school. It is extremely rare for [the respondent] to require any form of disciplinary intervention though obviously curriculum support is an ongoing necessity.' Psychometric assessment, in 2005, placed his Full Scale Intelligence Quotient (IQ) at about 66 ... , which would mean, [the respondent] had a mental age of about 10 at the time of the offences, when his chronological age was 14 years and 6 months.

This is important both for treating [the respondent] and understanding his misbehaviour. These acts were not just inappropriate, but they were opportunistic. [The respondent's] statement that he will not repeat these actions because he understands the effect it has had on his niece and because he is afraid of the consequences is age appropriate.

In therapy, we are addressing the areas of appropriate sexual focus and activity and the manner in which [the respondent] can appropriately make restitution. He understands the limitations and the anger that other[s] feel towards him, and is actively seeking ways to address this, such as making himself absent when his brother, the father of the victim, may want to spend time to see his father.

I understand that this is a very serious offence and [the respondent] needs to understand its full implications, to the victim, her family, his family and himself. However I would like to note that, given his mental age and his significant history of appropriate behaviour, for example as noted in his school report, incarceration as a punishment is not likely to be as effective in helping him develop better moral choices in future as would be some form of restorative intervention and appropriate therapy. Fortunately, [the respondent] appears to have significant social supports at school and family supports, especially through his father and I will continue to be available as long as it is therapeutically affective."

8 When counsel for the respondent provided the above report to the Court, she said that the age of "14 years six months" at the end of the first of the above quoted paragraphs was a typographical error and should be "15 years and six months", and went on to assert that in the report Mr Pinkus estimated the respondent's mental age at "ten years eight months". That assertion was incorrect. Mr Pinkus assessed the respondent's mental age at "about ten". On the evidence before the learned sentencing judge and before this Court there is no explanation for counsel's statement that the respondent's mental age was assessed at ten years eight months. The statement must be a mistake as mental age, which refers to a person's age-normal level of performance, based on an intelligence test, is calculated by the formula:

9 I mention two other matters in relation to the respondent's mental age. The first relates to the calculation of his mental age being based on his IQ, as assessed in 2005, some five years prior to his crimes. This does not call the calculation into doubt as a person's IQ is a stable characteristic.

10 The second matter I mention is that courts should be cautious about ascribing undue weight to a person's mental age. In the portion of the judgment in Dobson v Jackson [2009] TASSC 118, that is not reported on Austlii, reference is made to the evidence of a consultant psychiatrist, Dr Robert Adler. In that case there was evidence to the effect that the plaintiff, Larissa Dobson, had a mental age of nine when her chronological age was 18. The following extract from the evidence of Dr Adler with reference to attempts to equate an IQ with a particular age bracket is taken from par[255] of that judgment.

"I think while it's an appealingly simple answer, and it's calculated in a very simple way, it's called mental age over chronological age by a hundred. That's actually a meaningless statement from a psychiatric or a psychological point of view and the reason I say that is that it suggests that a person is functioning at the level of a normal nine year old. ...

What I meant was that the implication that someone with an IQ of fifty, let's say, and I know Larissa's IQ is higher than that, but I'll choose that for simplicity, it suggests that an eighteen year old is functioning like a normal nine year old - and that's simply incorrect. What it - what the fact is, is that a person with an intellectual disability as severe as an IQ of fifty is that on tests performed say they perform in some areas like a nine year old. But it doesn't actually mean that in functional terms, because there are areas at which the eighteen year old will actually perform better than a nine year old and there are other areas in which they will perform significantly worse. So while it's a commonly used explanation, it's actually inaccurate."

11 Returning to that which occurred in the course of the sentencing hearing after counsel for the respondent provided the Court with a copy of Mr Pinkus' report, counsel for the respondent raised the need for a further report. His Honour said that he would like to know what a Youth Justice worker thought about the respondent's suitability for community service and probation. Thereupon, counsel for the appellant suggested that his Honour also request that the report address the risk of the respondent re-offending. His Honour pointed out that a probation officer was not the right person to speak about the risk of re-offending. Counsel for the respondent said that a psychologist, Damien Minehan, often wrote reports for Youth Justice that covered this risk. Counsel for the respondent, in substance, said that she would make enquiries with a view to Mr Minehan providing a report on the risk of the respondent re-offending which could be included in the report from Youth Justice. On this basis, his Honour ordered that Youth Justice provide a pre-sentence report covering:

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the suitability of the respondent as a candidate for a community service order and/or a probation order, and

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his risk of re-offending.

The sentencing hearing was adjourned to 18 July 2011.

12 On the morning of 18 July 2011, Tracy Quinney, a psychologist with Community Youth Justice, emailed the requested report to the Court. It did not address the risk of the respondent re-offending. This was pointed out to Ms Quinney who responded saying: "It is outside the scope of Youth Justice to do a more thorough risk assessment in relation to sex offences", and added, "I was considering recommending that [the respondent] have a more specific offence related assessment with Damien Minehan from Forensic Mental Health". She went on to say that if the sentencing of the respondent was delayed she would arrange for such a report to be provided.

13 Upon the resumption of the sentencing hearing later that day, his Honour invited submissions from counsel on matters including the absence of a report on the risk of the respondent re-offending. Counsel for the respondent in substance opposed further delaying the matter in order to obtain such a report. Counsel for the appellant acknowledged that further delay would be stressful to the respondent, but submitted that the Court should again order such a report.

14 In dealing with this issue, his Honour acknowledged the relevance of the risk of the respondent re-offending to the sentencing options that were open to the Court and to the requirements of the Community Protection (Offender Reporting) Act. However, his Honour decided against further delaying the sentencing in order to obtain such a report. His Honour said he was in a position to make an assessment of the risk of the respondent re-offending, having regard to the information that was before him on the respondent's age, IQ and general behaviour and the impact that the proceedings had had on the respondent.

15 The information before his Honour included the following:

• The respondent's full scale intelligence quotient (IQ) as assessed in 2005, was about 66, which meant that he had a mental age of about ten at the time of the offences, when his chronological age was 15 years and six months.

• The respondent had the support of a significant portion of his family.

• Whilst a slow learner, the respondent had friends.

• The respondent was getting regular help from a psychologist who was advising him about appropriate sexual focuses and activity.

• The respondent was a boy who otherwise had not presented a problem and at school there had been no problem with his behaviour or his attending.

• The respondent did not have any problems involving alcohol or drugs or any of the usual problems seen with young offenders.

16 When dealing with the risk of the respondent re-offending for the purposes of the Community Protection (Offender Reporting) Act, his Honour commented that he did not think that the risk of him re-offending, given all that he knew about the respondent, and given the psychological counselling that he was receiving, warranted an order that operated for more than four years.

17 Against this background I return to ground 2. It contains two contentions. The first contention is that the sentencing judge erred in law in not seeking further psychiatric/psychological evidence and the second contention is that his Honour erred in proceeding to sentence without evidence addressing the risk of the respondent re-offending.

18 The first contention is premised on the assumption that his Honour was obliged by law to seek further psychiatric/psychological evidence. His Honour was subject to no such obligation. It was however necessary for his Honour to obtain a pre-sentence report. This was because his Honour had resolved to sentence the respondent under the Youth Justice Act 1997 and had in mind imposing a probation order or a community service order. That Act, s48(2), provides that a court must not impose such an order unless it has first obtained a pre-sentence report. That provision does not require a court to obtain a report on the risk of an offender re-offending and there is no provision that does so. In the absence of a provision requiring a court to obtain a report of any particular type or on any particular matter, it is not incumbent upon a court to do so. For example, when dealing with an offender under the provisions of the Sentencing Act 1997, a court may order a pre-sentence report pursuant to that Act, s82. However, that provision does not impose an obligation on the court to obtain such a report, even when dealing with a young offender. See the decision of the Court of Criminal Appeal in Suckling v Ling A27/1973. It was, of course, open to either party to obtain and provide to the Court any reports that the party considered necessary. It was not, however, incumbent upon his Honour to obtain a psychiatric or psychological report on the respondent or a report on the risk of him re-offending. Moreover, in the circumstances of this case, there was no error in his Honour's conclusion that it was not necessary to adjourn the sentencing in order to again seek such a report.

19 The second contention advanced in ground 2 is that his Honour erred in proceeding to sentence without evidence addressing the risk of the respondent re-offending. It is simply not correct to say that his Honour was without this evidence. There was a considerable amount of evidence from which his Honour could make an assessment about this risk. Some of that evidence is summarised in par[15] above. I agree with his Honour that he was in a position to make the necessary assessment.

21 I turn to ground of appeal 1. In the course of her submissions in support of the contention that the sentence was manifestly inadequate, ultimately counsel for the appellant did not suggest that the learned sentencing judge should have imposed an immediately effective sentence of detention, or challenge the primacy that his Honour afforded to rehabilitation when sentencing the respondent. Counsel was right not to do so. Counsel contended that a wholly suspended sentence of detention should have been imposed.

22 I distil the core submissions of counsel for the appellant as being that his Honour did not impose a sentence that marked the seriousness of the respondent's crimes, and this coupled with the failure to record a conviction, resulted in a sentence that paid no regard, or insufficient regard, to the needs of general deterrence and denunciation.

23 Pursuant to the Youth Justice Act, s49(3), it is only when a court imposes a sentence consisting of or including a period of detention and does not wholly suspend it, that a conviction must be recorded. If a court imposes a fine, probation order, community service order, or rehabilitation program, it may order that a conviction is, or is not, to be recorded under that Act, s49(2). In determining whether or not to record a conviction, the Court must have regard to all the circumstances of the case, including the nature of the offence, the youth's age, any sentences or sanctions previously imposed on the youth, and the impact that the recording of a conviction would have on the youth's chances of rehabilitation generally or finding or retaining employment, that Act s49(4).

"(5) Except as otherwise provided by this or any other Act, a finding of guilty without the recording of a conviction is not taken to be a conviction for any purpose.

(6) A finding of guilty without the recording of a conviction bars a subsequent proceeding against the youth for the same offence as if a conviction had been recorded."

25 Subsection (6) preserves the right of a youth to plead autrefois convict. Whilst the effect of subs(5) is that a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose, this does not mean that in no circumstances may a court that deals with a youth for a subsequent offence pay regard to an earlier finding of guilt. The Act, s3(1), defines "previous offending history" as including any offence "in respect of which a youth has been found guilty, whether or not the charge ... has been dismissed or a conviction recorded". A principle contained in the Act, s5(1)(j), is that the punishment of a youth is to be appropriate to the previous offending history of the youth. Moreover, as s49(5) only requires that a finding of guilty without the recording of a conviction not be taken to be a conviction for any purpose, there is no reason why a court dealing with a subsequent offence may not pay regard to the fact that the offender had been found guilty of an earlier offence. A failure to record a conviction does not amount to a failure to find an offender guilty.

26 The significance of recording a conviction was addressed by the Court of Criminal Appeal in Attorney-General v Smith [2002] TASSC 10. That case involved an appeal against the failure of the sentencing judge to record a conviction against an offender, aged 33, who had pleaded guilty to an assault that involved throwing his victim to the ground and punching her a number of times. It was accepted for the purposes of the sentencing of the offender that his responsibility for his crime was diminished as he was suffering from untreated schizophrenia. Whilst the offender in that case was dealt with under the provisions of the Sentencing Act, the following passage from the decision of Crawford J (as he then was) (agreed with by Underwood J (as he then was) and myself) applies with equal force to a determination of whether or not to record a conviction under the Youth Justice Act. Crawford J said at pars[24] - [27]:

"For the purpose of determining whether the failure of the learned judge in this case to record a conviction was a manifestly inadequate response, it is necessary to consider the possible effect of that failure in cases in general and in this case in particular. For the purpose of the dangerous criminal provisions of the Sentencing Act, and particularly s19, when a judge is considering whether to declare an offender to be a dangerous criminal, the judge will not be permitted, when determining whether 'the offender has at least one previous conviction for a crime involving violence or an element of violence' (see s19(1)(b)), to have regard to the fact that the offender has previously been found guilty of such a crime without the recording of a conviction (as occurred here). The offender would be entitled to assert, even on oath or statutory declaration, that he or she had no previous conviction, or to expressly deny having been convicted of the relevant offence, and could not later be charged with perjury. As was pointed out in R v Briese, ex parte Attorney-General [1997] QCA 10; [1998] 1 Qd R 487 at 491, a failure to record a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the Immigration Department. Under the Firearms Act 1996, the offender would not be absolutely disqualified by s29(3)(a) from obtaining a licence because he would not come within the category of a person who 'within the period of 5 years before the application was made, has been convicted in Tasmania or elsewhere of any crime involving violence to another person'.

In R v Brow_n, ex parte Attorney-General_ [1994] 2 Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act as some deterrence to others if it becomes known.

When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. ... If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction.

I have come to the conclusion that the sentence, that is the dismissal without recording a conviction, was a manifestly inadequate one. The crime was ... as the Director submitted, a moderately severe assault, and in my view it ought to have been made clear by his Honour, to the respondent and the public, that he was criminally responsible for what he had done. ... I acknowledge that a sentencing judge has an extremely wide discretion to exercise. I would not have been concerned by a dismissal if the nature of the crime had been trivial, but it certainly was not that and in all the circumstances I am satisfied that at the very least, a conviction should have been recorded. ... "

27 The learned sentencing judge did not say why he did not record convictions against the respondent. I infer that he took this course because he considered that it was not "appropriate to punish somebody who at the time of offending, had a mental age of something like ten years eight months", and because to do so would impact adversely on the respondent's chances of obtaining employment. I am in no doubt that the latter is so. However, bearing in mind the very serious nature of the respondent's criminal conduct and the unavoidable uncertainty about whether he might re-offend it was, with respect, most important that convictions be recorded. Those who have a legitimate interest in knowing about the respondent's criminal conduct include future employers. It may be that the respondent can find employment as gardener or labourer in a crèche or school. To my mind, the need for potential employers in areas such as these to be in a position to know of the respondent's criminal conduct outweighs the adverse impact of recording convictions on his employment prospects. With respect, for this reason alone, I consider that it was an error not to record the convictions. An additional reason is that in due course, when the respondent's victim reflects on what he did to her and how it was dealt with by the Court, the failure to record a conviction would provide her with good reason to feel that she had not been vindicated. This inadequacy in the sentence imposed on the respondent will be touched on in the course of that which I now turn to, that is, whether the sentence is manifestly inadequate because it fails to address the needs of general deterrence and denunciation.

28 Not surprisingly, authorities and sentences involving teenagers convicted of rape emphasise the seriousness of the crime and more pertinently, for present circumstances, the relevance, albeit reduced relevance, of considerations such as general deterrence and denunciation.

29 Whilst a number of the authorities to which I will refer are to the effect that the penalty for rape must be a sentence of imprisonment, they also recognise that the seriousness of the crime may vary markedly according to the circumstances of the particular case. That this is so is reflected by the pronounced disparity between some of the sentences to be referred to. When considering past sentences it should be kept in mind that as to those imposed prior to 1987, the offender was eligible to apply for parole after serving one-third of the sentence.

30 I have not gone to the trouble of detailing the circumstances that are the subject of each sentence to which I refer. Suffice it to say that in my view there is no question that the gravity of the respondent's criminal conduct is towards the bottom of the range for conduct of the nature of that which is the subject of the sentences.

31 In Bowden v R [1968] Tas SR (NC) 15**,** the Court of Criminal Appeal dealt with a male aged 18 who raped a female aged 14. In the course of dismissing his appeal against a sentence of eight years' imprisonment, Burbury CJ (agreed with by Crawford and Chambers JJ) said:

"There are some crimes which irrespective of the youth and previous good character of the offender must be visited with a long gaol sentence, and rape is one of them. The crime of rape is always serious but like every other crime varies in seriousness according to the circumstances of the particular case."

32 Austin v R [1971] Tas SR 227 involved a male aged 18 who raped a female aged five. In the course of dismissing his appeal against the sentence of eight years' imprisonment, the Court of Criminal Appeal adopted the above quoted passage from Bowden v R.

33 In Thompson v R Serial No A21/1971, the Court of Criminal Appeal dealt with a male aged 15 who raped a female aged ten. The court observed that the offender "was no doubt going through the normal adolescent period of 'turbulent eroticism'", and reduced his sentence of four years' imprisonment to one of two years' imprisonment with one year suspended

34 R v Laredo, Serial No A82/1977 involved a 16 year old who was one of two males who raped a 15 year old female. The sentence imposed by the trial judge was a declaration that he be a Ward of the State, an order directing that he be committed to an institution, and a probation order. The Court of Criminal Appeal was unanimous in holding that the sentence was manifestly inadequate. Neasey and Cosgrove JJ increased it to three years' imprisonment. Nettlefold J would have increased it to two years' imprisonment. As to the sentence imposed by the trial judge, Neasey and Cosgrove JJ said at 7 of their decision :

"In all the circumstances we are of opinion, with respect, that the orders made in respect of the respondent Laredo were grossly over-lenient. If the only matters to be considered were what was best for the respondent himself, they might have been justified. But when such matters are considered as the gravity of the crime of rape, and the public interest in having such punishments imposed as will vindicate community detestation of it and deter its commission by others, a sentence which does not involve a term of imprisonment cannot be justified. The offence was ... committed in the presence of three other youths, upon a girl with whom the respondent had in the recent past had an affectionate relationship, at least on her part. Those facts added substantially to the humiliation of the victim. It was not a crime committed impulsively or as a consequence of sudden passion. There were no mitigating circumstances in the context of the rape itself ...

This Court has of course in previous cases adverted to the gravity of the crime of rape. In Bowden v The Queen [1968] Tas SR (NC) 15**,** and in Austin v The Queen [1971] Tas SR 227, the Court emphasised that in most cases it is proper to impose a deterrent sentence of imprisonment upon a person convicted of rape, irrespective of the youth and previous character of the offender. This was such a case, in our opinion, notwithstanding the youth of the respondent."

Nettlefold J said at 6 of his decision:

"With great respect, I fully appreciate His Honour's reluctance to make an order imprisoning this youth and thus throw him amongst hardened criminals. However, at the end of the day, I am persuaded that the making of such an order cannot be avoided. It is important for the maintenance of peace and order that the law be so administered that those minded to commit a serious crime like rape are given no cause to hope that they may escape a prison sentence. That a prison sentence is the predicable result of an act of rape is an important notion to keep before the minds of those minded to commit such acts. And that youths may escape imprisonment for rape is a dangerous proposition ..."

35 George v R [1986] TASSC 19; [1986] Tas R 49, dealt with a male aged 15 who raped a female aged four. He had been sentenced to three years' imprisonment. The Court of Criminal Appeal was unanimously of the view that his sentence should be reduced. Cosgrove J and Cox J (as he then was) reduced it to 18 months' imprisonment. Nettlefold J would have reduced it to one year's imprisonment. In the course of his reasons for decision at 55, Nettlefold J made the point that in cases involving a youth, general deterrence "is not aimed at deterring adult offenders in general but is aimed at deterring members of the group of which [the] youth is a member who are minded to behave as he did". With regard to denunciation he observed that "a just denunciation may be more muted" in the case of a youth.

"One's natural tenderness towards the young and the innocent tends to excite feelings of revulsion from, and rage against any person who causes any sexual interference to them. But those feelings ought not to obscure the fact that it is the criminal who is to be punished, and that, by and large, he is to be punished for the criminality of his act. In calculating punishment, it is always appropriate to bear in mind the need to deter others who may be minded to commit similar acts; and in that context, to be mindful of the fact that adolescent males often have strong sexual urges combined with sexual curiosity. But the object of protecting the young and innocent by the public imposition of heavy deterrent sentences ought not to be pursued so far that the punishment is unduly cruel or unjust to the particular offender. The punishment ought not to be completely out of balance with the criminality of the act, and it ought not to be so crushing as to have a disproportionate effect on the life of the offender. One isolated impulsive act by a young boy ought not to be the occasion for the imposition of a devastating deprivation of liberty at an important and formative stage of his life."

"The rape of a child of four years is undoubtedly a very serious crime which naturally excites a sense of public outrage which it is proper for the court to take into account (see B v The Queen [1968] Tas SR (NC) 15 and A v The Queen [1971] Tas SR 227), though not to the exclusion of all other factors for as Green CJ said in H v The Queen, CCA, 46/1980, 'the public feeling which is to be reflected in a sentence is informed public feeling' capable of differentiating between the turpitude for this kind of conduct of a mature, intelligent recidivist for example and an immature adolescent with no previous behavioural transgressions.

In my opinion, despite the youth and immaturity of the applicant and despite the brevity of the criminal conduct engaged in, the offence in question remains a shocking assault upon a young child and it was his Honour's duty, as he said, 'to mark the community's revulsion of this type of crime, to deter like conduct on the part of others and to protect children'."

At 63 Cox J made the point that the class of persons to be deterred when sentencing a youth is a more limited class than the general body of adult offenders.

38 Stonehouse v R A90/1993, dealt with a 17 year old male who had raped a four year old female. He had briefly penetrated the mouth of his victim with his penis. The trial judge sentenced him to two years' imprisonment. The Court of Criminal Appeal was unanimously of the view that the sentence was manifestly excessive and reduced it to a backdated sentence of nine months' imprisonment with five months suspended. When re-sentenced, the offender had already served three and a half months of the sentence. In the course of its reasons the Court approved the above quoted passage from the decision of Cosgrove J in George v R (supra), as well as the views expressed by Cox J at 62 and 63 of that decision.

39 R v Everett, R v Phillips [1994] TASSC 39, and (1994) 72 A Crim R 442, was an appeal by the Attorney-General against the leniency of sentences imposed upon offenders, aged 18 and 19, for aggravated armed robbery. In the course of his decision, Cox J said at par[13]:

"Undoubtedly there are types of offences the gravity of which is such that they are consistently treated as calling for sentences which emphasise the aspect of general deterrence. The most obvious is that of murder ... .Rape is another offence recognised as normally calling for a sentence of actual imprisonment for a significant period of time. Even in cases of extreme youth and prior good character the courts have consistently held that only a term of actual imprisonment could fulfil the requirement of deterrence in the case of rape (see Thompson v R, Unreported 21/1971 and George v The Queen [1986] TASSC 19; (1986) Tas R 49, both offenders being 15 years of age and of unblemished character otherwise). ... R v Causby (1984) Tas R 54 is another instance of serious crime (non consensual indecent assault upon a 15 year old boy by one aged 17 years) where the need for general deterrence out-weighed the youth and previous good conduct of the offender and required the imposition of an actual sentence of imprisonment notwithstanding the respondent's good prospects for rehabilitation."

40 The following is a very brief extract of sentences on the Court's database for rape involving offenders aged 15 or 16. In each case a conviction was recorded.

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TT - Wright J, 24 September 1992. Fifteen year old male orally raped a young male child. Two years' imprisonment with one year suspended.

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DS - Wright J, 17 August 1995. In one attack a male aged 15 orally and vaginally raped a girl aged 16 on five occasions. Four years' imprisonment with six months suspended.

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PG - Crawford J, 29 November 1995. Over a period when the male offender was aged 15 to 16 he on three occasions orally and vaginally raped a female aged seven to eight, and on two occasions indecently assaulted her. Four and a half years' imprisonment with two years suspended.

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SB - Evans J, 13 July 1999. Male aged 15 anally raped a male aged 13. Two years' imprisonment with six months suspended.

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CB - Evans J, 20 December 2002. Male aged 15 orally raped female aged seven. Wholly suspended sentence of 18 months' detention.

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DG - Evans J, 8 December 2004. Fifteen year old male vaginally raped a 13 year old female. Two years' detention.

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HR - Evans J, 18 August 2008. Fifteen year old male orally raped a female aged five. Six months' detention.

41 Consistent with the views expressed by Neasey and Cosgrove JJ in R v Laredo (supra), if the only matter to be considered by the learned sentencing judge when sentencing the respondent was his rehabilitation, the sentence imposed may have been justified. However, what I take from the authorities and sentences referred to is that when imposing a sentence on a youth for the crime of rape, whilst rehabilitation is ordinarily the primary consideration for youthful offenders, this does not mean that the Court may disregard the needs of general deterrence and denunciation. As to denunciation, what I have in mind is the need to deal with the crime in a way that is sufficient to provide the victim with appropriate vindication and to assuage informed public outrage. The personal violation suffered by the victim and the legitimate public outrage at the rape of a child of six are matters that needed to be addressed by the sentence imposed on the respondent. With respect, I am of the view that in this case the most lenient sentence that could adequately address these issues was one of suspended detention. It is to be remembered that the respondent's criminal conduct involved both a rape and an earlier serious indecent assault. Although he had a reduced mental age, he was aware that he could go to gaol for his conduct and warned his victim of this outcome if she told on him.

42 Whilst the needs of general deterrence are muted when dealing with a youth, they should not be ignored. It is to be expected that as with the respondent, many of his peers would experience a period of turbulent sexual development and adjustment. Notwithstanding the privacy afforded to proceedings involving youths, it is inevitable that the respondent's peers would become aware of the proceedings and their outcome. It is highly undesirable that the sentence imposed on the respondent should leave his peers with the impression that he received no penalty. I am concerned that this is the impression left by the failure to record convictions against the respondent and the orders that were made.

43 I would allow the appeal and quash the sentence in so far as it adjourned the proceedings for 12 months on condition that the respondent be of good behaviour during this period and did not impose convictions. In re-sentencing the respondent I would:

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order that convictions be recorded;

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order that he be sentenced to a period of nine months' detention, wholly suspended on condition that for a period of two years from 18 July 2011 he not commit an offence that if committed by an adult could be punishable by imprisonment;

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confirm the orders made by the learned sentencing judge as to probation and under the Community Protection (Offender Reporting) Act.

44 I have had the benefit of reading the judgment of Evans J in draft form. I agree with his reasons and the orders he proposes.

45 I agree with the reasons for judgment of Evans J and the orders he proposes.