Court of Appeal (Qld)|2001-11-28|Before: Act J, Jersey CJ, Murdo P, Williams JA

The applicant had no prior criminal history which could be considered relevant to his treatment. The learned Judge was influenced, and rightly, by the circumstance that he was a young man and that he was sorry for his actions.

Her reference to his having accepted responsibility "right from the beginning" rather overstated the matter as the respondent had fled the scene and declined to be interviewed by the police, but he did plead guilty at an early stage.

It is difficult to conceive that an offender who, though still a young man aged 16 years eight months, violently raped his frail 52-year old grandmother, and in the course of doing so injured her, should not have been subjected to a substantial term of detention, and even allowing for the plea of guilty and expression of remorse. The breach of familial trust involved in his raping his grandmother aggravates the seriousness of the case.

I refer to two past cases to support my view as to the need for substantial incarceration. Bowden, Court of Appeal 472 of 1993, was a 17-year old with a minimally relevant prior record convicted following a trial of the rape of a sleeping complainant in bed with her six-year old son. He desisted when she awoke. He was affected by alcohol and was encouraged by others who were older than him. He was sentenced to five years' imprisonment and was ordered under section 188 of the Juvenile Justice Act to serve 50 per cent of that term.

Watkins, Court of Appeal 63 of 2001, was convicted, following a trial, of the rape of a mildly intellectually impaired 27-year old woman. Watkins, also of limited intellectual capacity, was only 15 years old at the time of committing the rape. He had no prior criminal history and had promising prospects of rehabilitation. He was sentenced as the result of the appeal, as an adult, to three and a half years' imprisonment.

Mr Farr, who appeared for the respondent, referred particularly to Cushway, Court of Appeal 436 of 1995, where three years was the ultimately imposed term. That was not a case characterised by additional violence, as here, with resultant injury to the complainant.

Drawing the obvious comparisons and contrasts the respondent in this case should, in my view, have been sentenced to a penalty of the order of no less than four years' detention.

Absent special circumstances, a child offender is required to serve 70 per cent of the designated period of detention. See section 188(1). If there are special circumstances the sentencing Judge may reduce that to a minimum of 50 per cent.

There were no special circumstances warranting reduction in this case, save arguably for the plea of guilty and the circumstance, as emerges now, that the respondent completed one month of the immediate release order program.

Because of the significance ordinarily attaching to a plea of guilty that should, in this case, be regarded as amounting to a special circumstance which, together with the other less significant matter, the completion of one month of the program, would warrant reducing the period to be served to one-half. It would follow from section 174 automatically that the period of 95 days, if I've correctly calculated, already served, must be counted as part of the two years' detention which will actually have to be served.

That analysis demonstrates the manifest inadequacy of the term of 12 months' detention to which the respondent, prior to the reductions, was subject in consequence of his breach of the sentence imposed on 14 September 2001.

The respondent should have been subjected to detention of the order of four years for this crime, with the special circumstances favouring him, especially the plea of guilty, warranting reduction of the period actually to be served from the usual 70 per cent to 50 per cent.

In my respectful view, the sentence imposed on 14 September 2001 was intolerably lenient and cries out for correction. The learned Judge unfortunately apparently allowed herself to be overwhelmed by circumstances personal to the respondent.

The sentence imposed ignored, first, the need to signal the community's strong denunciation of crimes of violence involving in this case the violation of a woman's body, none other than the offender's grandmother; second, the need to impose a penalty appropriately deterring the commission of this sort of crime in whatever community the offender be situated; and third, the primacy of the need to protect the personal security of other people, especially women asleep in the sanctity of their homes.

This Court should now impose a four-year term, and I say that notwithstanding that the prosecutor before her Honour proffered a two to three-year term. That suggested term, while a relevant consideration, of course, does not bind this Court now, and the appropriate term should now be imposed notwithstanding.

Acknowledging sections 109 and 165 of the Juvenile Justice Act, I would record my satisfaction that there is no acceptable reasonable alternative to detention of a substantial order. The community would reasonably expect that, if not demand it.

I would allow the application and appeal, set aside the penalties imposed on 14 September 2001 and 20 November 2001, and order that the respondent serve four years' detention, to be released from detention after serving 50 per cent of that term, that is after two years. A conviction would be recorded.

THE PRESIDENT: I agree with the order proposed by the Chief Justice and with his reasons.

THE CHIEF JUSTICE: The order is as I have indicated.

R v A; ex parte Attorney-General of Qld [2001] QCA 542 (28 November 2001)

R v A; ex parte Attorney-General of Qld [2001] QCA 542

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R v A; ex parte Attorney-General of Qld [2001] QCA 542 (28 November 2001)