R v JJ; R v JJ; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v JJ; R v JJ; ex parte A-G [2005] QCA 153

PARTIES: R v JJ (appellant) / R v JJ (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 27 of 2005 / CA No 341 of 2004 / DC No 13 of 2005 / DC No 409 of 2004 / DC No 337 of 2004 / DC No 252 of 2004

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction / Sentence Appeal by A-G (Qld)

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 13 May 2005

DELIVERED AT: Brisbane

HEARING DATE: 22 April 2005

JUDGES: McPherson, Williams and Jerrard JJA / Separate reasons for judgment of each member of the Court.

ORDERS: 1.The appeal against conviction is dismissed2.The Attorney-General’s appeal against the sentences imposed on 17 January 2005 is allowed and the sentences are varied to the following extent:(a)the sentence imposed on count 1 of indictment no 337 of 2004 is increased from imprisonment for two years to imprisonment for three years;(b)the order that the other sentences imposed on that date be served concurrently with the sentence of three years in 2(a) is set aside, and it is ordered that those sentences be served cumulatively upon that sentence.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – whether accused had capacity to know he ought not to do the act which constituted the offence – whether conviction on some counts inconsistent with acquittal on other counts – whether trial unfair by reason of disclosure to the jury that the accused had spent time in custody and been charged with other offences – whether judge failed to put defence case fairly / CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – rape – dangerous operation of vehicle – stealing – wilful damage – accused diagnosed as psychopathic – psychiatric evidence accused is dangerous and presents extremely high risk or re-offending – whether trial judge incorrectly fettered sentencing discretion under s 144 Juvenile Justice Act 1992 (Qld) – whether sentences should have been concurrent / Children’s Services Act 1965 (Qld), s 62, s 63 / Criminal Code 1899 (Qld), s 29(2) / Juvenile Justice Act 1992 (Qld), s 144 / MacKenzie v The Queen (1996) 190 CLR 348, cited / Makin v Attorney-General for New South Wales [1894] AC 57, cited / Pfennig v The Queen (1995) 182 CLR 461, cited / R v B [1997] QCA 486; CA No 369 of 1997, 6 November 1997, applied / R v J, ex p Attorney-General [2001] QCA 216; CA No 5 of 2001, 1 June 2001, considered / R v Jy, ex p Attorney*‑*General [1997] 2 Qd R 277; [1996] QCA 404, considered / R v McM CA No 252 of 1986, 20 November 1986, considered / R v P [2000] 2 Qd R 401; [1999] QCA 411; CA No 130 of 1999, 28 September 1999, applied / R v PGW (2002) 134 A Crim R 593, considered / R v Watts [1990] 2 Qd R 387, considered / Veen v The Queen (No 2) (1988) 164 CLR 465, applied

COUNSEL: S J Hamlyn-Harris for the appellant/respondent / M R Byrne for the respondent/appellant

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

McPHERSON JA: In September 2004, the appellant JJ was tried in the District Court at Maroochydore on four counts of rape, two counts of indecent dealing, and one of maintaining a sexual relationship with the same complainant girl, who was his younger sister. The jury found him guilty of the first count of rape (count 1) in the indictment, but not guilty of the other offences. He now appeals against his conviction of the single offence of rape of which he was found guilty. For his part, the Attorney-General appeals against the inadequacy of the sentences imposed for this and several other offences to which JJ pleaded guilty on later dates.

The offences for which he was tried and, in the case of count 1, convicted were alleged to have been committed some years ago. Count 1 averred the place to be Tewantin and the date between 11 June 1990 and 1 January 1994. The other offences were alleged to have been committed on dates before March 1995. Independent evidence before the jury suggested that the offence in count 1 took place in January 1991, which was only a few days or weeks after JJ’s 14th birthday. He was born on 14 December 1976, while the complainant, who was born on 23 July 1981 and so was some 4½ years younger than he, was between about 9 and 10 years old at the time of the first offence. All the other offences charged were alleged to have been committed after January 1991.

Under s 29(2) of the Criminal Code a person under the age of 14 is not criminally responsible for an act or omission unless it is proved that at that time he had the capacity to know that he ought not to do the act or make the omission. The age 14 years in s 29(2) was, however, substituted in 1997 for 15 years, so that JJ’s criminal responsibility as regards count 1 fell to be determined at the date at which the rape was committed in 1991 when he was not yet 15 years old. Ground 1 of the amended notice of appeal is that the prosecution failed to prove beyond reasonable doubt that JJ had the relevant capacity at the date of the offence in count 1.

The complainant’s evidence relative to count 1 was that at that time she lived at Tewantin, with her brother JJ and their parents. In about 1990, when she was between nine and ten years old, she went with him to the house two doors down on an occasion when there was no one there. They climbed through a window, and he started going through the drawers in the main bedroom. He found or claimed he found a packet containing a condom, which he showed her asking her if she knew what it was. When the complainant said she did not, he told her it was a condom that “you put … on your penis”, and asked “would you like to try it”. She said “No, I’m too young and you’re my brother. You don’t do that to me”. He said he could do this, “and nobody cared”. Then he removed her clothes and his own, and pulled her on to the bed, where he had sexual intercourse with her she said without her consent. It hurt her and she later noticed a stain about 10 cm long or round on the sheet, which she thought was or contained blood. Afterwards, he told her “don’t tell Mum or Dad or I’ll hurt you”.

In directing the jury, the judge told them that the prosecution must prove that JJ had the capacity to know that he ought not to do the act making up the charge in count 1 of sexual intercourse with his sister, and that it was “an additional matter” which had to be proved. His Honour referred the jury to the facts relating to JJ’s age pointing out that he had turned 14 in December 1990. Elsewhere in the course of summing up he gave directions about the meaning of rape. On resuming on the following morning, he repeated that the prosecution also had to prove that, at the time the particular offence was committed, JJ had the capacity to know that he ought not to do the act which constituted the offence; and that capacity, he added, was “a product of age and level of intelligence”.

The complainant’s evidence, although specific about the place and circumstances of the offence charged in count 1, was imprecise about the date except that it was in about 1990 when she was in grade 5 at primary school and between nine and ten years old. However, the Crown also called as a witness a Mr M, who in 1990 and 1991 lived with his family at the house two doors down at Tewantin. He was interested in motor racing and he and the family sometimes used to stay away overnight. On returning home on one such occasion, he discovered the back door open. It had been locked when they left. He found the bed was “all messed up” or disturbed; there was a used condom in it; and a “decent sized” blotchy type of stain on the bottom sheet on the bed in the main bedroom. Being married, he said he never used condoms himself. He was able to place the date of this event as being in the month of January 1991. At that stage, it will be recalled, JJ had turned 14 a few days or weeks before.

The question raised by amended ground 1 is whether at the time at which the offence was alleged to have been committed (which there was acceptable evidence from Mr M was in January 1991) the Crown had succeeded in proving beyond reasonable doubt that JJ had the capacity to know that he ought not to do the act in question. The judge’s summing up on this question seems to have treated the relevant “act” for the purpose of count 1 as being sexual intercourse or carnal knowledge with a girl who happened to be his sister; on one view, it may have been a composite consisting of carnal knowledge (as it was called in 1991) without her consent. But that was not a point taken by the amended ground 1, even allowing for the enlargement sought to be placed upon it in the written outlines and oral submissions of Mr Hamlyn-Harris, which complained that his Honour had not pointed to any part of the evidence to be considered in determining the issue under s 29(2).

There was, it may be noted, no application by counsel on either side for a redirection on the matter. The reason why the direction on s 29(2) was somewhat muted was, as Mr Hamlyn-Harris himself candidly acknowledged, because JJ’s case and his testimony at the trial on count 1 consisted of an outright denial of the complainant’s evidence about the incident. He denied having had sexual intercourse with the complainant whether with or without her consent at the place designated or at any other time or place; and he testified that he had never been in the house two doors down from his family home at Tewantin. If he was proposing to raise an issue about the direction under s 29(2), he was in the position of denying his capacity to do something which he was testifying positively he did not in fact do. Prudently, perhaps, he said nothing about it in his evidence, and nothing was said or done to make an issue of it at the trial.

There was, in any event, ample evidence on which the jury could make the necessary finding. It included the surrounding circumstances including conduct closely associated with the act: see R v F, ex p Attorney-General [1999] 2 Qd R 157, 162. The question, as Pincus JA observed in R v B [1997] QCA 486, at 5-6, and as is evident from s 29(2) itself, is not whether the accused knew he was doing wrong, but whether he had the capacity to know he ought not to do the act in question. Here his own sister, according to her evidence, told JJ that she was too young for it and, he being her brother, “you don’t do that to me”. His response was that “he could do this”, and after the event “Don’t tell Mum or Dad, or I’ll hurt you”. Uncontradicted, the evidence was sufficient to satisfy the jury that he had the capacity to know he ought not to rape her. It was not suggested that JJ was intellectually impaired and, indeed, the jury were in a position to form their own impressions from having seen him giving evidence in the witness box even if many years after the event.

It was nevertheless submitted that there was expert psychiatric evidence in the possession of the Crown at the trial, to which it will be necessary to refer in more detail in the appeal on sentence, that in 1995 JJ had been described as a “biological psychopath” and in 1999 as having a history of “gross borderline and antisocial personality disorder”. It was suggested on behalf of JJ that the prosecution could have adduced this evidence before the jury at the trial to prove that he had the requisite capacity specified in s 29(2). As to this, it is enough to say with a degree of confidence that, if evidence like that had been sought to be given at the trial, the defence would certainly have objected to it, and the judge would have felt bound to exclude it in the exercise of his discretion as unfairly prejudicial. Indeed, if it had been admitted, it can be predicted that we would now be entertaining an appeal against JJ’s conviction on the other six counts on which he was instead acquitted by the jury.

JJ’s conviction on count 1 was also made the target of amended ground 2 as being inconsistent with the verdicts of acquittal on the other six counts. As has been said, those counts charged JJ with other sexual offences committed against the complainant including further charges of rape and acts of indecent dealing, as well as maintaining a sexual relationship with her when she was under 16. The criterion for identifying inconsistency between verdicts as a basis for setting aside a conviction was considered in MacKenzie v The Queen (1996) 190 CLR 348 and other recent decisions of the High Court. Here it is sufficient to refer to what was said by Thomas JA and Chesterman J after reviewing those authorities in R v P [2000] 2 Qd R 401, 404, which was that inconsistency in this sense arises “only if there is no rational basis for distinguishing between verdicts”. In the present case there plainly is such a basis. The other incidents forming counts 2 to 6 each rested entirely on the unsupported testimony of the complainant (which JJ in his evidence contradicted and denied) about matters that took place a long time ago. She was cross‑examined at length and to some effect, and admitted that on occasions in the past she had told some falsehoods to members of the family and that she had misstated the content of a telephone conversation with JJ.

The jury were directed in conventional terms to scrutinise her evidence carefully. It is evident that they acted on this warning. They found JJ guilty on the only count on which there was evidence which would or might have been considered capable of corroborating her account of the commission of the offences charged. The evidence of Mr M about finding his house open, the bed disturbed and the condom and the stain on the sheet provided striking support for what she told the jury had happened in that place and on that occasion. Mr M was able even to locate the incident to the month of January in 1991. The only point of real difference between the two witnesses concerned her statement that JJ had found the condom in a drawer in the house, whereas Mr M said he had none there. The jury may have thought that his saying he found the condom in the drawer was a subterfuge on his part to conceal the fact he had brought it with him with the intention of having sexual intercourse with her. There does not seem to have been any other purpose at the time in going to the house. Nothing there was stolen. On any view of it, there was a rational basis for the difference in the verdict of guilty on count 1 and the verdicts of acquittal on the other counts. The jury were entitled if they saw fit to accept the complainant's testimony where it was corroborated, but to feel less than the same degree of confidence where it was not. At one time in the recent past it was necessary as a matter of law to direct juries to make a distinction according to whether evidence of sexual offences was or was not corroborated. That requirement has now been displaced by statute, but it is impossible in the light of its history to treat it now as an irrational one.

Ground 3 is that the trial was unfair by reason of disclosure to the jury that JJ had spent lengthy periods of time in custody and had committed or had been charged with other offences. The ground has reference primarily to admissions made by defence counsel about the dates and periods when JJ was in the custody of the Department of Corrective Services in 1994 and 1995 and then continuously from 12 December 1995 to 7 November 2003, as well as to documentary evidence of telephone calls made by him from Wolston Park Correctional Centre in 2002 and 2003. The latter included two calls made by JJ to the complainant on 2 August 2002. One was a “pretext” call in the course of which the complainant alleged that JJ had threatened her. However, in the course of cross-examination she agreed after being shown transcripts of the calls that they contained no threats of that kind.

The other material was presented to explain why, on the complainant's account of it, if as she claimed in evidence she had been raped by JJ nearly every day over a two-week period or more, he would suddenly have ceased to do so. The complainant was admitted into foster care on 20 March 1995, with the consequence that, taken with his incarceration, there was a period of only about two months in the following eight or nine years during which he could have sexually offended against her. On appeal, JJ criticised his counsel’s conduct at the trial for not having ensured that the true cause of JJ's absences from home and from the complainant were not better concealed from the jury; but the fact that he was in prison during the period specified served to place the possibility of contact between them completely out of the question, so that the admissions served the purposes of the defence as well as the prosecution. The jury were not told the reason for his incarceration but simply that he was in prison during those periods.

It is, of course, the law that evidence may not be adduced of other criminal acts in order to show that the accused’s conduct or character is such that he is likely to have committed the offence charged. At the same time, the fact that evidence tends to show the commission of other crimes does not render it inadmissible if it is otherwise relevant to the offence charged: Makin v Attorney-General for New South Wales (1894) AC 57, 65; Pfennig v The Queen (1995) 182 CLR 461, 475. The present case falls within the latter category. The learned judge in summing up made it quite clear that the jury were not to use evidence of JJ’s incarceration for the illegitimate purpose mentioned in Makin v A-G. That they acted on his warning to this effect is shown by the fact that they acquitted on all counts in the indictment except the first. At the time it took place, JJ had not previously committed any offences, or none of which the jury were made aware. The position might have merited closer attention had JJ been found guilty of other counts in the indictment. But he was not; and he has no basis in prejudice or unfairness for complaining about his conviction on count 1, substantiated as it was in fact by the independent evidence of Mr M.

Ground 4 is that in summing up to the jury the learned judge failed adequately to put the defence case fairly. No one doubts that it is the duty of the judge to remind the jury of and fairly put to them the case for the defence at the trial. JJ’s case at the trial was, as is evident from the record and was conceded on appeal, that he had not committed any of the offences charged including the first. He gave evidence to that effect at the trial denying that he had ever had sexual intercourse with the complainant or sexually assaulted her in any way on the occasions charged or otherwise. In relation to count 1, as we have seen, he denied ever having been in the house two doors down at Tewantin. There was nothing more that could have been said about the defence in this or other cases of similar bare denial than to provide the jury as the judge did with a reminder of JJ's evidence on each count.

Counsel for the defence addressed the jury for a little over an hour. What he said during that time is not recorded; but one may suppose it would have dealt very largely with matters going to the complainant’s credit. It is accepted that the appropriate warnings required by law were given by the judge, and it is conceded that they might not have been without effect. It is scarcely possible to say that the defence submissions to the jury were not adequately summarised or dealt with in the summing up when one does not know what they were. Whatever they were, it is apparent from the verdicts of acquittal returned on all bar count 1 that they were efficacious. Count 1 was, as has been said more than once, unique in having the support of Mr M’s independent and rather striking testimony of what he found in his house in January 1991. Otherwise the jury might have acquitted on that count too.

The appeal against conviction should in my opinion be dismissed. The appellant had a fair trial and the jury properly discriminated according to the evidence in reaching the verdicts to which they came.

From this I turn to the matter of sentence. JJ, who is the respondent to the Attorney’s appeal, was convicted in September 2004, but the proceedings were adjourned to enable a presentence report to be obtained. By the time the matter came back before the trial judge for sentencing, JJ had pleaded guilty to various other offences, for all of which together he was sentenced by the trial judge on 17 January 2005.

On that occasion in January 2005, he was sentenced for offences committed on the following dates to terms of imprisonment that are stated in brackets in each instance:

(a)rape, in January 1991 (imprisonment for 2 years);

(b)dangerous operation of motor vehicle while adversely affected, on 22 November 2003 (imprisonment for 18 months);

(c)unlawful use of a motor vehicle on about 5 December 2003, with the aggravating circumstance that he removed part of it (imprisonment for 2 years);

(d)stealing on 6 January 2004 (imprisonment for 6 months);

(e)wilful damage and stealing both on 6 January 2004 (imprisonment for 6 months).

The sentences in (b) and (c) were ordered to be served cumulatively, but concurrently with the sentence in (a). The sentences in (d) and (e) were also to be concurrent with the sentences in (a), but cumulative upon those in (b) and (c). JJ was declared to have been in custody before sentence for a period of 106 days between 23 January 2004 and 7 May 2004. The upshot was that he was ordered to serve 4 years imprisonment, with a declaration that 106 days was time already served.

The circumstances of the rape in January 1991 have been recounted. The offence of dangerous operation in (b) above was committed beginning at 12.40 am on Saturday 22 November 2003 in Hastings Street, Noosa. He was heard loudly revving the engine of his vehicle. When directed by police to pull over, he reversed quickly, colliding with a street sign, and drove off at speed along Hastings Street. Given that it was “schoolies week” and there were many pedestrians about, his driving was dangerous. He was pursued by police for 20 minutes over a distance of 39 kms reaching speeds of up to 170 kph on the Sunshine Motorway. He was brought to a halt only when his tyres were deflated by a “stinger” device. His blood alcohol level was found at the time to be 0.086. The offence was committed only some 15 days after his release from prison following his imprisonment for 8 years for another offence or offences.

The unlawful use offence in (c) grew out of his response to the damage sustained in the chase on 22 November. Having a vehicle that was now immobilised, he went to Redbank railway station and on about 5 December took a car from the car park there, which he drove to the Sunshine Coast. Once there, he removed two wheels from that car, and used them to replace those on his own vehicle that had been deflated in the police chase. This conduct was charged as aggravating the unlawful use. The offences of stealing in (d) and wilful damage in (e) on 6 January 2004 were committed when he took a hose and three bamboo torches from a shop and later damaged a coin dispenser at a laundromat.

JJ was aged 29 at sentencing. He has an extensive history of prior offending starting as a child in 1992. Most involved property offences, such as breaking, entering and stealing and unlawful use of vehicles; but in 1994 he was convicted of aggravated assault on a child, and there are two recorded convictions for possession of a weapon or replica. It was, however, his conviction in April 1995 in the District Court at Gladstone at the age of 18 that led to the earliest of several psychiatric diagnoses carried out between 1995 and 2005. He was convicted on that occasion in 1995 of abducting a boy aged 9 from the company of the boy’s companions on a bike track and attempting to have anal intercourse with him, as well as perpetrating various other acts of indecency and terror upon him. The details of the offence are related in R v J, ex p Attorney*‑*General [1997] 2 Qd R 277, which reports an unsuccessful appeal from a sentence of imprisonment for 8 years for what he had done on that occasion. Since then he has been convicted and sentenced for offences committed while in prison, such as wilful damage and assaulting another prisoner. He has also been recorded making a threat to kill his sister the complainant for her part in his conviction in 2004.

It would serve no useful purpose to repeat the details of the various other offences committed since 1994. Since being convicted of the offences in Gladstone in 1995, JJ has been examined by a psychologist and by no fewer than four different psychiatrists; they are, Dr Alroe in 1995, Dr Atkinson in 1999, Dr Kar in 2003, and Professor Harvey Whiteford in December 2004 and again in January 2005. All agree JJ suffers from an antisocial personality disorder, or, in short, that he is psychopathic. There is a difference about whether he meets the criteria for paraphilia. Professor Whiteford thinks not, but considers that JJ’s unwillingness to control his actions and desire for immediate sexual gratification is simply a part of his general desire for gratification. Professor Whiteford’s opinion agrees with that of Drs Atkinson and Kar that JJ is dangerous and presents an extremely high risk of re-offending. There is, he says, no known treatment for his condition, which tends to become less evident with age, but not until the fourth decade of life. One or more of the psychiatrists appear to consider JJ to be partially illiterate, perhaps intellectually retarded. However, having read the letter which he wrote to the sentencing judge in this matter, I share with his Honour a different impression of his standard of literacy and intellectual capacity.

The rule with which a sentencing judge is confronted in a case of this kind was stated in Veen v The Queen [No 2] (1988) 164 CLR 465, 472. It is that, although a higher sentence may be justified by the potential for re-offending, the penalty imposed must still be proportional to the offence and the circumstances in which it was committed. Otherwise a life sentence might be imposed for a comparatively minor offence on the hypothesis that the offender was likely to do something much more serious in the future. Legislation can alter this, but there is none that is relevant on this occasion. The penalty must not be “disproportionate to the gravity of the instant offence” (164 CLR 465, 477), and may not be increased beyond what is proportionate simply as a protection to society against the risk of recidivism: R v Aston (No 2) [1991] 1 Qd R 375, 381. The offence committed by JJ in 1995 was very serious, but the principle in Veen [No 2] was applied to it in R v J [1997] 2 Qd R 277, as it must also be on this occasion.

On behalf of the Attorney-General, Mr M R Byrne of counsel put forward two principal submissions in favour of increasing the sentence in the present case. The first was that the learned judge had incorrectly fettered his discretion in holding as he did that the available sentence in respect of count 1 (rape) was limited to a maximum of two years imprisonment. That was because the sentencing in 2005 of the appellant as an adult for an offence committed by him as a child in 1991 was required to proceed in accordance with s 144 of the Juvenile Justice Act 1992. Section 144(3)(a) of the Act precludes the court from ordering a term of imprisonment longer than the period of detention that could have been imposed on the offender if sentenced as a child. Section 144(2), which was formerly s 107B of that Act, requires the sentencing court to “have regard to”: (a) the fact that the offender was a child when the child offence was committed; and (b) the sentence that might have been imposed on the offender if sentenced as a child.

At the time of the offence of rape in January 1991, s 62(1)(g) of the Children’s Services Act 1965 conferred on the court a power to order that a child found guilty of an offence be committed to the care of the Director for a period not exceeding two years. Section 63(1) of the Act nevertheless provided that when a child was convicted of an offence for which, if not a child, he would be liable to life imprisonment, the court might in its discretion order that he be detained during Her Majesty’s pleasure. In other words, s 63(1) authorised a form of indeterminate custody for a child in the case of an offence like rape, which then as now carried for an adult who committed it a maximum term of life imprisonment. In my view, it is correct to say that such a form of detention was, within the meaning of s 144(3), longer than the period of two years detention in the care of the Director that could have been ordered under s 62(1)(g) of the Act of 1965.

This invites attention to the sentencing practice as it stood at the time in or about 1991. In R v McM (CA 252 of 1986) the Court of Criminal Appeal set aside a sentence ordering indefinite detention under s 63 of the Children’s Services Act 1965 for a 15 year old offender who had raped his five year old cousin causing her severe internal injuries. However, the decision in that case was subsequently departed from if not directly overruled in R v Watts [1990] 2 Qd R 387. There Carter J gave compelling reasons for disagreeing with the comment in R v McGrath that the actual operation of s 63 militated against rehabilitative goals in the case of children ([1990] 2 Qd R 387, 393-394). The Court of Criminal Appeal in R v Watts dismissed an application to appeal against an order for indefinite detention in the case of a rape by a 14 year old. More recently, in R v PGW (2003) 134 A Crim R 593, 595, this Court held that, in using the words “have regard to”, the former s 107B of the Juvenile Justice Act did not tie the court in sentencing an adult for a child offence to a maximum of two years imprisonment. The same applies to the identical expression now in s 144(2) of the Act. Circumstances, said the Chief Justice “may warrant imposing a sterner penalty than would have been visited upon the child”. The decision in R v J, ex p Attorney-General [2001] QCA 216, which in the end turned on an exercise of sentencing discretion, is not inconsistent with this conclusion. Accepting that an order for indeterminate detention under s 63(1) of the Act of 1965 is “longer” than an order for two years detention in the Director’s care, I conclude that his Honour was mistaken in thinking that the most severe penalty he could impose was limited to a sentence of imprisonment for two years. His sentencing discretion was not restricted by statute in the way he supposed.

This opens the sentence imposed on counts 1 to review by this Court on the Attorney’s appeal. It may be accepted that decisions, such as R v PGW itself, confirm that in arriving at the appropriate sentence to be imposed on an adult for an offence committed by him as a child, the offender’s later conduct may show that he has rehabilitated himself. It does not follow that the converse applies; namely, that if someone like JJ is to be sentenced now for the offence in count 1 committed in January 1991, his subsequent record, including his serious offending in 1995 can be used to increase the sentence to be imposed now. I did not understand Mr Byrne to be contending for that approach except in the sense he submitted that the appellant should be denied the leniency often accorded to youth in the expectation that there are prospects of future rehabilitation.

On behalf of the Attorney-General, Mr Byrne nevertheless contended on appeal for a sentence of 5 years for the offence of rape in count 1. It is the duration of the sentence of imprisonment that his Honour said he would have imposed here if he had considered himself free from any statutory inhibition in doing so. There are, however, some matters that tend to militate against doing so. For one thing, as his Honour observed, the rape committed in 1991 displayed no unusually violent features. It happened some 13 or more years ago when JJ was a 14 year old child and before he had committed any other recorded offences. Sentencing him now as an adult, but “having regard to” the fact that he was a child when the offence was committed, leads me to conclude that he should attract a sentence of between three and four years for this offence in 1991. Cf R v C [1996] QCA 014; R v Watkins [2001] QCA 250; R v JAJ [2003] QCA 554.

The other matter that is questioned by counsel for the Attorney-General is the judge’s decision to make the sentences imposed for the offences committed in late 2003 (imprisonment for 3½ years) and early 2004 (imprisonment for 6 months) concurrent with the sentence of two years imposed for the rape in 1991. I am unable to see a justification for adopting that course. The offence in 1991 and those in late 2003 and early 2004 were quite separate in time and nature. Even allowing for the “totality” principle in sentencing, the effect of the orders made in this case was in practical terms that JJ was not required to undergo any period in custody for the rape offence in 1991. On the other hand, it seems to me that the effective four year sentence imposed for each of the later offences was, considered individually or cumulatively, possibly somewhat severe for the wrongdoing involved.

There is another factor which falls to be considered. It is a letter from the Director of Legal Services in the Department of Corrective Services at pp 416 to 418 (part of ex 7) of the appeal record in this matter. The letter is undated but it was prepared for and provided to the sentencing judge in this matter which ultimately took place on 17 January 2005. It records that through an error in the backdating of the time spent in custody under his sentencing for the offence in April 1995 and later offences in prison, JJ was kept in custody nearly 7 months beyond his “custodial end date”. The Director of Legal Services asked that this extra period in prison should if possible be taken into account in sentencing on the occasion in question, which took place on 17 January 2005. The learned judge, however, said he did not consider that it was a matter which he should attempt to address in sentencing for the offences before him, remarking that “it may be pursued elsewhere”.

I have, however, come to the conclusion that this extra period in custody that was served by JJ ought to be reflected in the sentence now being imposed or varied. I expressly record that the period of nearly seven months referred to in the letter has been taken into account by the court in arriving at the sentence now being proposed or imposed for the offence of rape in count 1.

With this in mind I address the Attorney’s appeal against the effective sentence of 4 years imposed in January 2005. The sentence of two years for the rape in 1991 should, when freed from the supposed statutory limitation, be increased to imprisonment of three years. The sentences of imprisonment for 3½ years and 6 months, totalling 4 years imposed for the offences committed in 2003 and 2004 should stand. JJ has not sought leave to appeal against them. On the other hand, as already explained there is no reason why those sentences should have been made concurrent with the sentence on the conviction for the rape committed in 1991. The period of nearly seven months has, it is expressly recorded here, been taken into account in moderating the sentence imposed for that rape from a range of three to four years earlier envisaged down to three years. In other respects the sentences imposed in the District Court will stand.

The orders proposed therefore are as follows:

(1)The appeal against conviction is dismissed.

(2)The Attorney-General’s appeal against the sentences imposed on 17 January 2005 is allowed and the sentences are varied to the following extent:

(a)the sentence imposed on count 1 of indictment no 337 of 2004 is increased from imprisonment for two years to imprisonment for three years;

(b)the order that the other sentences imposed on that date be served concurrently with the sentence of three years in 2(a) is set aside, and it is ordered that those sentences be served cumulatively upon that sentence.

By force of the provisions of the Child Protection (Offender Reporting) Act 2004, JJ is, by virtue of his conviction of this rape, now required, without court order, to report in accordance with those provisions.

WILLIAMS JA: I have had the advantage of reading the comprehensive reasons of McPherson JA in this matter. I agree with all that he has said therein and with the orders proposed.

JERRARD JA: In these appeals I have read and respectfully agree with the reasons for judgment and orders proposed by McPherson JA in the appeal against conviction, but respectfully disagree as to one aspect of His Honour’s reasons for judgment and proposed order in the Attorney-General’s appeal against sentence. In that latter appeal the ultimate question, posed by s 144(3)(a) of the Juvenile Justice Act 1992, is whether a term of imprisonment of three, four, or five years is a term longer than the period of indefinite detention during Her Majesty’s pleasure to which Mr JJ could have been sentenced if dealt with as a child. The answer is finite terms of imprisonment are not longer than an order that (a child) be “detained during Her Majesty’s pleasure”.¹

There was one odd feature in the orders made by the learned sentencing judge, identified in McPherson JA’s reasons at [20]. The learned sentencing judge ordered the sentences of six months imprisonment on each of the various offences committed on 6 January 2004 to be concurrent with each other, and with the sentence of two years imprisonment for rape, but cumulative upon the sentences totalling three and a half years for dangerous operation of a motor vehicle with a circumstance of aggravation and unlawful use of a motor vehicle with a circumstance of aggravation. The oddity in that is because the judge had ordered that the two year sentence for rape be concurrent with the three and a half year terms. In my respectful opinion the learned sentencing judge undoubtedly intended those six month sentences to be concurrent with each other and cumulative upon the three and a half years imprisonment ordered as ordered, and the order that those sentences of six months also be concurrent with the sentence for the rape offence should be deleted. Doing so will not increase Mr JJ’s head sentence as imposed by the learned sentencing judge, because that sentence was intended to be and was a total of four years imprisonment.

I respectfully agree with McPherson JA that that effective four year period for the offences committed in late 1993 and early 2004 were somewhat severe; taking that consideration into account and the fact that Mr JJ served seven months longer prior to his release in 2003 than he had been ordered to serve, I would not increase the two year term ordered by the learned sentencing judge on the count of rape to three years. Instead, I would simply order that that two year term be served cumulatively upon the accumulated terms totalling four years imprisonment to which Mr JJ had already been sentenced. That would result in a head sentence of six years imprisonment, of which it should be declared that a period of 105 days had already been served as at 17 January 2005. I would not make any recommendation for consideration for early release on parole.

Footnotes

1. s 63 of the Children’s Services Act 1965-1987 ↩