R v KU, AAC, WY, PAG, KY, KZ, BBL, WZ & YC; ex parte A-G

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - POWER TO BRING APPEAL - where the Attorney-General sought an extension of time in which to file an appeal against sentence - where the Attorney-General pointed to failures by the DPP as explanation for delay in filing the appeal - where the respondents resisted the extension - whether sufficiently "exceptional" circumstances exist to justify the granting of the extension

Corrective Services Act 2006 (Qld), s 344

Criminal Code Act 1899 (Qld), s 215, s 349, s 669A(1), s671(2), s 671B(2)

Juvenile Justice Act 1992 (Qld), s 3, s 8(1), s 158, s 176(3), Sch 1

Penalties and Sentences Act 1992 (Qld), s 9(1), s 10

Camden & Anor v McKenzie & Ors [2007] QCA 136; Appeal No 6683 of 2006, 20 April 2007, applied

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, cited

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, applied

R v Bell; ex parte Attorney-General (Qld) [1994] QCA 220; CA No 116 of 1994, 20 June 1994, applied

R v Daniel [1997] QCA 139; CA No 455 of 1996, 30 May 1997, applied

R v Quick; ex parte A-G (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006, applied

R v Wilton (1981) 28 SASR 362, cited

W Sofronoff QC SG, with E S Wilson, for the applicant/appellant

C R McDonald QC, with A W Collins, for the respondents

Director of Public Prosecutions (Queensland) for the applicant/appellant

Aboriginal and Torres Strait Islander Legal Services for the respondents

**[1] THE COURT: On 24 October 2007 the respondents WZ, KU and WY, and the juveniles to whom we will refer to as YC, KY, PAG and AAC, each having pleaded guilty to the rape of a 10 year old girl, were sentenced for that offence. WZ, KU and WY were sentenced as adults: they were each sentenced to six months imprisonment suspended immediately for an operational period of 12 months. YC, KY, PAG and AAC were dealt with under the Juvenile Justice Act 1992 (Qld): they were sentenced to 12 months probation without any conviction being recorded.

[2] On 6 November 2007 the two other juvenile respondents, to whom we will refer as KZ and BBL, who had also pleaded guilty to the rape of the complainant, were sentenced to 12 months probation without a conviction being recorded.

[3] Pursuant to s 669A of the Criminal Code Act 1899 (Qld) the Attorney-General seeks to appeal against the sentence imposed on each of the respondents on the ground that it was manifestly inadequate for a number of reasons reflecting errors of principle on the part of the learned sentencing judge.[1] Section 669A(1) provides relevantly: "The Attorney-General may appeal to the Court [of Appeal] against any sentence pronounced ... and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper."

[4] The notices of appeal whereby the Attorney-General sought to exercise the right of appeal conferred upon him by s 669A were filed on 10 December 2007 and, in the case of the youth YC, on 11 December 2007. In each case, the notice of appeal was filed outside the period of one calendar month prescribed for the commencement of appeals by s 671(2) of the Criminal Code. Accordingly, the Attorney-General is obliged to seek an extension of time for the commencement of these appeals.

[5] In support of the application for the extension of time, evidence has been placed before the Court which shows that the Attorney-General's office did not become aware of the sentences which were imposed in this case until Sunday 9 December 2007. The Attorney-General sought to exercise his statutory right of appeal promptly after becoming aware of the sentences. The Attorney-General did not become aware of these matters before that time because the prosecutor, who appeared in relation to these sentences, did not draw the attention of his superiors in the Office of the Director of Public Prosecutions ("the DPP") to any concern in relation to them. As will appear, the role of the prosecutor in the sentencing process was such that his failure to indicate any concern in that regard to his superiors is hardly surprising.

[6] The application for an extension of time is also supported by the submissions that there is a strong prospect that the decisions of the learned sentencing judge will be held to be erroneous and inadequate if the appeal is allowed to proceed.[2] It is also argued that the public interest in the due administration of justice requires the correction of errors manifest in the sentencing process in this case.

[7] The Court heard argument in relation to this application on 13 February 2008. At the end of that hearing, we came to the conclusion that this Court should exercise its discretion in favour of the granting of an extension of time to allow the

Attorney-General's appeals to be heard. The Court made orders accordingly, and gave directions for the prompt hearing of the appeal on the basis that it would publish the reasons for its conclusion at a later date. We now set out those reasons.

[8] It is necessary first to set out the circumstances in which the respondents were sentenced and the relevant provisions of the Criminal Code.**

**[9] The complainant was 10 years old at the time the offences were committed. She was the cousin of the respondent, KU.

[10] At the time of the offences, the respondents were aged as follows:**

**[11] The respondents and the complainant were all aborigines living in the Aurukun community.

[12] The schedule of facts used in the course of sentencing the respondents is sketchy, to say the least. It appears that on one occasion between 1 May and 12 June 2006 the respondents WZ, KU, WY, PAG, BBL and KZ had sexual intercourse with the complainant in an unoccupied house at Aurukun. The respondents had sexual intercourse with her, in turn, in a bedroom while the others waited in another part of the house. It appears from the statement of facts that the complainant had sex with all of the respondents, without objection, except in the case of BBL who admitted that the respondent objected to his having intercourse with her. None of the respondents wore a condom. None of the respondents was under the influence of alcohol or other substances at the time of the offending.

[13] KU and WY had sexual intercourse with the complainant on another occasion in the period between May and mid-June 2006. This took place in another house at Aurukun. On this occasion neither of the offenders wore a condom. It was not suggested that alcohol or substance abuse was involved in the offending.

[14] In the period between May and mid-June 2006 YC had sexual intercourse with the complainant in the male toilets behind the church at Aurukun. According to YC's version of this incident, which was not contradicted, the complainant asked him to go with her to the toilet to have sex. The complainant took off her clothes and YC's pants. She lay on the ground and he lay on top of her. He did not wear a condom. No alcohol or substance abuse was involved in the offending.

[15] KZ denied any wrongdoing and WZ declined to be interviewed. All respondents other than KZ and WZ made admissions to police. KZ and WZ were implicated by others.

[16] On 13 May 2006 AAC had sex with the complainant at a birthday party. He did not wear a condom. No alcohol or substance abuse was involved in the offending.**

**[17] On 20 August 2007 each of the respondents, other than PAG, pleaded guilty to having raped the complainant on a date unknown between 1 May 2006 and 12 June 2006. The respondents WY and KU also pleaded guilty to raping the complainant on another occasion on a date unknown between 1 May 2006 and

12 June 2006. The juvenile PAG pleaded guilty to raping the complainant on

30 May 2006. Each of the offences occurred at Aurukun.

[18] On this occasion the schedule of facts to which we have referred was tendered by the prosecution. The schedule of facts showed that in the case of BBL and KZ they positively asserted that the complainant wanted to have sex with them. Only

BBL admitted that the complainant "told him to stop". In pre-sentence reports tendered at the sentence hearing each of PAG, YC and KU was recorded as asserting the complainant's willingness to have sexual intercourse with him.

[19] On 24 October 2007 the respondents, other than BBL and KZ, were sentenced at Aurukun. They were arraigned again and pleaded guilty again in respect of these offences. The respondent PAG also pleaded guilty to another sexual offence involving a different female complainant.

[20] At the commencement of the hearing the learned sentencing judge referred to the schedule of facts which had already been tendered, and invited the prosecutor to state any facts pertinent to the case of particular individuals.

[21] In the course of responding to her Honour's request in relation to the juvenile PAG, the prosecutor, an officer of the DPP, said:**

"My submission in relation to this particular offence is the same that I make in relation to children of that age, of similar or the same age of that age, is to quote - well, they're very naughty for doing what they're doing but it's really - in this case, it was a form of childish experimentation, rather than one child being prevailed upon by another, although - as I said, although she was very young, she knew what was going on and she had agreed to meet the children at this particular place and it was all by arrangement, so - for that purpose.

I'd ask your Honour to take that into account and if this was standing alone, the Crown would not be asking anymore than for some form of supervisory order, form of probation, or some order of that - similar order to that, your Honour." (emphasis added)

"MR CARTER: I've been given certain instructions as to the penalties for these, your Honour. None of the penalties that I've been instructed to seek have been - involve custodian penalty - immediate custodial penalty, not even for the adults.

HER HONOUR: What about in the light of the PSRs though?

MR CARTER: Even with those, your Honour, yes. I know that other forms of penalty are difficult but I would submit that if your Honour's seeking to impose any form of custodial penalty on the adults, that they be dealt with by way of a - yes, suspended sentence or a parole-----

MR CARTER: Yes. But that's the - that's the other course that I've been instructed to take, your Honour. As to the children, I would submit some form of supervised reorders for them, something that involves possibly a little bit of education, or counselling in relation to matters such as these. But that's all I'd be seeking, that some form of supervisory order of - in the vicinity of no less than 12 months, if it please your Honour, for each of them, having - taking into account the nature of the offence, their admissions and pleas and also the contents of the histories.

It must be stated, I won't resile from this, that the charges of rape and as I'm instructed, it's - that arises in part, due to the age of the complainant and her ability to actually consent to the acts and I ask your Honour to take that into account too, whereas it is called rape, because of that and because of the absence of a proper consent and while that isn't - doesn't excuse them, it does in some way lessen the fact that there was no actual force in the sense-----

HER HONOUR: But she was only 10 at the time, wasn't she-----

MR CARTER: Yes, that's right, and there's no possible way that she could have consented willing - knowingly, with the full knowledge to these offences, even though - that she'd gone through the motions of having sex with these people and I'd submit that that's something as well. They didn't force themselves on her, threaten her, or in any way engage in any of that sort of behaviour.

So, to the extent I can't say it was consensual in the legal sense but in the other - in the general sense, the non-legal sense, yes, it was. So, I then ask on that basis not to seek any periods of detention, not to seek any periods of custody, immediate custody. Unless there's anything further, your Honour, that's - those are my submissions. I can expect that not all of them will have clean histories." (emphasis added)

[23] When the learned judge drew attention to the circumstance that one of the respondents (WZ) was a 25 year old man, the prosecutor said:

"MR CARTER: Yes. Yes. Yes, that's correct. He may be chronologically 25 but I don't - I would not - I'd submit that there wouldn't have been much thought given to the age disparity or the legal niceties of consent or that sort of thing. That's why I'm asking in any event that he be given a - either parole or a sentence that's suspended, operational period for 12 to 18 months. If it please your Honour." (emphasis added)

[24] The learned sentencing judge heard submissions in mitigation of sentence from Counsel on behalf of the respondents. In the course of those submissions, Counsel on behalf of the respondents said that:

"... there'd be a number of sexual relationships that occur at Aurukun between teenagers under the age of 16 ... I'm not saying it makes it right, but it just reinforces the lack of education and resources that are given to this community to assist with what clearly is a significant problem."

An officer of the Department of Communities told her Honour that:

"... there are a lot of children in this community who think the same way about sexual matters as [PAG] does ... So, you know, there but for the grace of God goes [sic] most of the children in this community."

[25] The judge made the following remarks in relation to these offences:

"HER HONOUR: All of you have pleaded guilty to having sex with

All of you have to understand that you cannot have sex with a girl under 16. If you do, you are breaking the law, and if you are found out, then you will be brought to Court and you could end up in gaol.

I accept that the girl involved, with respect to all of these matters, was not forced and that she probably agreed to have sex with all of you, but you were taking advantage of a 10 year old girl and she needs to be protected, and young girls generally in this community need to be protected.

This is a very serious matter. It is a very shameful matter and I hope that all of you realise that you must not have sex with young girls. Anyone under 16 is too young.

Some of you are still children yourselves. Others of you are adults, but I am treating you all equally in terms of the behaviour. I am not treating any of you as the ringleader or anything like that." (emphasis added)

**[26] On 6 November 2007 the respondents BBL and KZ were sentenced. On that occasion, the learned sentencing judge referred to the offences in question as rape. In conformity with the approach taken by the judge to the sentencing of their

co-offenders, each of these respondents was placed on probation for 12 months, and no conviction was recorded.**

**[27] At this point it is necessary to refer to s 349 of the Criminal Code which, by

sub-section 2(a), defines rape as occurring, inter alia, if a "person has carnal knowledge with or of [another person] without the other person's consent." By

sub-section (3) it is provided that for the purposes of s 349 "a child under the age of 12 years is incapable of giving consent."

[28] Under sub-section (1) the maximum penalty for the crime of rape is life imprisonment. Under s 176(3) and s 8(1) of the Juvenile Justice Act the maximum penalty for a juvenile offender is 10 years detention.

[29] Section 215(1) of the Criminal Code provides that "[a]ny person who has or attempts to have unlawful carnal knowledge with or of a child under the age of

16 years is guilty of an indictable offence." Section 215(3) provides that "[i]f the child is under the age of 12 years, the offender is guilty of a crime, and is liable to imprisonment for life".**

**[30] On behalf of the Attorney-General it is said that the sentencing remarks of the learned judge were inadequate to explain the basis on which the sentences were imposed, and that her Honour's approach to sentencing the respondents erroneously equated the criminality of the respondents to an offence against s 215(1) of the Criminal Code rather than the distinctly more serious offence of rape. Further, it is argued that her Honour, for no good reason, erroneously treated adults as no more responsible for their crime than children.[3] Finally, it is said that her Honour allowed the proper exercise of the sentencing discretion to be overwhelmed by consideration of the extreme disadvantage suffered by Aboriginal children growing up at Aurukun.

[31] The respondents resist the grant of the extension of time sought by the

Attorney-General, arguing that the grant of an extension of time to allow the respondents to be placed again in jeopardy beyond the sentences already passed would be unfair to the respondents, and that it is not possible to discern an error of the kind which would justify that exceptional course. The respondents argue that the sentences imposed by the learned judge reflect her Honour's acceptance of the approach urged upon her Honour by the prosecutor which, in turn, reflected the undesirability of a custodial sentence in these cases, and that the prosecuting authorities should not be allowed to disavow that approach on appeal. It is also said that the respondents were induced by the attitude consistently expressed to their Counsel and the sentencing judge by the prosecutor, ie that a custodial sentence would not be sought, to refrain from placing before the learned sentencing judge evidence in mitigation of sentence which would have been adduced had it been suggested that a custodial sentence was to be sought by the prosecution.

[32] The respondents also argued that no sufficient explanation had been given by the Attorney-General, either for the delay which had occurred in the matter coming to the attention of the Attorney-General, or for the position adopted by the prosecutor before the learned sentencing judge.**

**[33] The respondents relied upon statements in GAS v The Queen[4] where Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ confirmed that, while it is for the sentencing judge alone to determine the sentence to be imposed in any given case,[5] there is a discretion in an appellate court in a criminal matter "to dismiss [an] appeal on the ground that the prosecution led the sentencing judge into a material and decisive error."[6]

[34] Of particular relevance in relation to the circumstance that the non-custodial sentences were imposed on the respondents in this case at the urging of the prosecution, is the following passage from the judgment of King CJ, with whom Mitchell and Williams JJ agreed, in R v Wilton:[7]**

"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in Reg v Tait and Bartley ((1979) 46 FLR 386; 24 ALR 473) by 'double jeopardy'. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General."

This passage was referred to with approval by Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen.[8]

**[35] In relation to the respondents' complaints as to the insufficiency of the explanation for the delay in filing the notice of appeal, the point is made on behalf of the Attorney-General that the Attorney-General acts independently of the DPP and must do so where the Attorney-General perceives the conduct of the DPP's officers to be contrary to the public interest.[9] It is where the relevant officers of the DPP fall into error that the Attorney-General's right of appeal may be required to remedy an injustice which might otherwise go unremedied. The present is, it is said, a case where the Attorney-General should not be shut out from the exercise of that function because of a failure on the part of the responsible prosecutor to bring these matters to the attention of his superiors within the DPP which led to the

Attorney-General being unaware of the circumstances of these cases. We consider that this contention should be adopted. The right of appeal conferred by s 669A should not be defeated by a compound failure in the performance of their duties by those whose performance is intended by the legislature to be overseen by the exercise of the right.

[36] But even if the point made on behalf of the Attorney-General is accepted, the respondents maintain that the considerations of "double jeopardy" in favour of refusing an appeal which were referred to by King CJ in R v Wilton remain important, especially in a case where, by reason of delay in instituting an appeal, the Attorney-General is obliged to seek the exercise of this Court's discretion to allow the appeal to proceed at all.

[37] The respondents also make the point that, while it is true that the proper sentencing of offenders is always a matter of public interest, the principles reflected in the passages cited above show that that interest will only exceptionally justify an appellate court entertaining an assertion on behalf of the prosecution that a sentence imposed in accordance with the prosecution's submission was not a proper sentence. As the passages cited above show, the abiding reason for this constraint is that, in the administration of criminal justice, the interests of finality are, save in exceptional cases, of paramount importance as a protection of the individual from ongoing harassment by the State.

[38] It is also apparent, we think, from the passages cited above that an arguably appellable error cannot, without more, constitute "exceptional circumstances" such as would justify exposing an accused person to the additional jeopardy of a more severe sentence than that previously sought by the Crown.

[39] The issue for this Court is then whether the circumstances of this case are sufficiently exceptional as to justify allowing the Attorney-General now to raise the contention that the sentences of imprisonment imposed on the adult respondents should not have been suspended, and that each of the juvenile respondents should have been convicted and sentenced to detention orders.

[40] The present case is, we think, clearly "exceptional" in the relevant sense, for several reasons. First, as appears from the sentencing remarks of the learned judge, it is arguable that the sentencing judge proceeded to the sentence of the respondents on 24 October 2007 on a footing which did not at all reflect the gravity of the offence of rape. Each respondent's offence was not merely "having sex with young girls" or unlawful carnal knowledge of a girl under 16 years of age, yet that was the express focus of the learned sentencing judge's sentencing remarks on 24 October 2007.

[41] To the extent that it may be said to be unfair to read the learned sentencing judge's remarks so strictly, it is important to emphasise that it is well-established by decisions of this Court that sexual offences committed by adults against children should attract a sentence involving actual imprisonment or detention save in exceptional circumstances.[10] A rape of a 10 year old girl by 13 to 15 year old juveniles would also warrant a sentence of actual detention in the absence of significant exculpatory circumstances. The learned sentencing judge's reasons do not articulate any reasons which would warrant a departure from that usual course. Nor were any reasons given for deciding that, in the case of the juvenile offenders, no conviction should be recorded. The absence of such reasons is itself, at least arguably, an error of law.[11]

[42] On behalf of the respondents, it was said that the approach of the prosecutor meant that the sentencing hearing was effectively a "no contest" in that it was common ground between the parties that non-custodial sentences should be imposed on all the respondents; but even if, under the general law, it is open to the parties to relieve a court of the need to give reasons justifying its decision, the learned sentencing judge here was under a statutory obligation to give reasons for the imposition of the suspended sentences by virtue of s 10 of the Penalties and Sentences Act 1992 (Qld). So far as the juvenile offenders are concerned, s 158 of the Juvenile Justice Act requires that the Court ensure that the child understands "the purpose and effect of the order". These statutory requirements are imposed, not merely for the benefit of persons being sentenced, but to advance the public interest in rationality and transparency in the administration of criminal justice: these statutory requirements cannot be waived by the parties.

[43] On behalf of the Attorney-General, a strong argument has been advanced that the respondents have not been sentenced on a basis which reflects the gravity of the crime of which each was convicted as a result of his own plea of guilty, ie the very serious crime of the rape of a 10 year old girl. In GAS v The Queen, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said that the discretion to dismiss an appeal by a prosecuting authority on the ground that the prosecution contributed to the error the subject of complaint should not be exercised to dismiss an appeal as to sentence in a case where it was not the submission of the prosecution which "accounted for the sentencing judge's error" but the sentencing judge's "failure to appreciate, and give sufficient weight to, exactly what the appellants were admitting, in the circumstances of the case, by their pleas of guilty."[12] The present case is, to say no more at this stage, arguably such a case; and this is so whatever reasons led the prosecutor to adopt the position he did in relation to the sentencing of the respondents.

[44] Secondly, to treat all of the respondents "equally in terms of the behaviour" [sic] is arguably erroneous. While it may have been correct, in the light of the factual basis on which the sentence proceeded, to regard none of the respondents as the "ringleader", there were material differences in the personal circumstances of the respondents. To treat an adult, such as WZ, on the same footing as a 13 year old boy, such as AAC, in terms of criminal responsibility for raping a 10 year old girl, without saying why that course is adopted, is arguably an error of principle of a fundamental kind.[13] The same point may be made in relation to the absence of any stated basis for treating the respondent BBL, who admitted that the complainant objected to having sex with him, on the same basis as the respondent YC whose criminality appears to be of a distinctly lesser order.

[45] Thirdly, the juveniles were given sentences of probation which will ensure that they receive some degree of supervision. The suspending of the sentences imposed on the adult offenders reflects, at least arguably, a failure to recognise that, at the very least, the young adult offenders, too, should be subject to some degree of supervision which they will not receive under a suspended sentence.

[46] Finally, to the extent that, although not expressed by the learned sentencing judge, her Honour treated these offences as not warranting a custodial sentence, or, even in the case of each of the juveniles, the recording of a conviction, because of the dysfunctional community in which they have grown up, there is a strong body of authority to the contrary. The courts have consistently said that they cannot ignore the claims of innocent members of the community to the protection afforded by the criminal law. As Fitzgerald P observed in R v Daniel:**

"It would be grossly offensive for the legal system to devalue the humanity and dignity of members of Aboriginal communities or to exacerbate any lack of self-esteem felt within those communities by reason of our history and their living conditions and, as was stated in Bell, Aboriginal women and children who live in deprived communities or circumstances should not also be deprived of the law's protection. To revert to the matters discussed in the previous paragraph, they are entitled to equality of treatment in the law's responses to offences against them, not to some lesser response because of their race and living conditions."[14]

**[47] A court, in imposing sentence, must impose a sentence for the offence which recognises the gravity of the offence and which is apt to serve to protect the innocent members of the offender's immediate community from a repetition of criminal misconduct by the offenders and others who may be of a like mind.

[48] So far as the adult respondents are concerned, the Penalties and Sentences Act provides that purposes for which sentences can be imposed include:**

(a) To deter the offender and other persons from committing the same or similar offences: s 9(1)(c);

(b) To make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved:

s 9(1)(d);

(c) To protect the Queensland community from the offender: s 9(1)(e).

So far as the juvenile offenders are concerned, the first principle stated in the Charter of juvenile justice principles pursuant to s 3 of the Juvenile Justice Act is that the community should be protected from offences. None of these considerations were adverted to by the sentencing judge. The argument advanced on behalf of the Attorney-General is that they were lost sight of in the sentencing process. There is clearly force in that argument.

**[49] We recognise that the juvenile respondents were subject to a different sentencing regime than the adult respondents. To the extent, however, that it is said on behalf of the respondents that the non-custodial sentences imposed in this case are to be understood as an acknowledgment of the dysfunctional community in which the respondents have been brought up, it may be argued in response that the need for punishment which will deter the commission of serious crimes is all the more compelling because of the abject failure of the immediate community to provide adequate care and protection for its children.

[50] That having been said, offenders should not be punished for their crimes without regard for their personal disadvantages, to the extent that those disadvantages are relevant and established by the evidence. In this regard, in Neal v The Queen,[15] Brennan J (as his Honour then was) said:**

"The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice."

[51] In R v Bell & Anor; ex parte Attorney-General (Qld),[16] the Court of Appeal, constituted by Fitzgerald P, Davies JA and Demack J, expressed their disagreement with the approach of a sentencing judge to the sentencing of an Aboriginal offender "in a different way from the way I would approach the problem if [the offender] were a standard member of the white community." The sentencing judge regarded this approach as justified because of "the pressures and disadvantages" experienced by the offender as a member of an Aboriginal community. The Court of Appeal said:

"There are aspects of what his Honour said with which we must record our disagreement. It was right for him to have regard to the respondent's disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law's protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which an offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members."[17]

**[52] Whilst recognising the considerations applicable to the juvenile respondents under the Juvenile Justice Act, the position is then that the personal disadvantages suffered by an offender cannot lessen the gravity of an offence. That disadvantage may, of course, be taken into account in fixing a sentence as lenient as is consistent with punishment sufficient to recognise the gravity of the offence and to protect vulnerable members of a community, whether by removing miscreants or by providing for personal and general deterrence.

[53] Relevant disadvantage personal to any particular offender must be established by evidence. In R v Daniel, Moynihan SJA said:**

"It may be appropriate to reflect particular considerations relevant to a particular community in sentencing. It may be, for example, that an aboriginal community has a regime for dealing with classes of offences or offenders which it is appropriate for the court to consider and reflect in a sentence. No such issue arises in this case. It was submitted to the effect that the applicant should receive a lower sentence than might otherwise be the case because he and his victim lived in a deprived and dysfunctional community where alcohol abuse and violent crime was more prevalent and more tolerated than in the general community. As is pointed out by the President, the latter contention in particular was not established by evidence. It is not apparent that it is a situation such as might be the subject of judicial notice. It by no means follows that such considerations should lead to a lower sentence."[18] (emphasis added)

**[54] To the extent that any offender may have suffered personal disadvantages which should be reflected by way of moderation of the punishment which should be imposed on that offender that should be established by evidence.

[55] In this case, an extension of time to enable the appeal to be determined would only proceed, on the basis acknowledged by the Solicitor-General at the outset of his argument in this Court, that each respondent should have every opportunity to adduce evidence of any personal disadvantage suffered by him which might be relevant by way of mitigation of sentence.**

**[56] If it ultimately be accepted that the learned sentencing judge has erred in these respects, the errors are of so serious a kind that they must be corrected in order to maintain public confidence in the administration of justice. The correction of any such errors is likely to involve the success, to some degree, of each appeal.

[57] This Court concluded that the extensions of time should be granted to enable these appeals to proceed. There are strong arguments that the sentencing process miscarried in the respects identified by the Attorney-General; which are fundamentally inconsistent with the due administration of criminal justice. There is, therefore, a real prospect that the appeals, or some of them, may be successful. Consideration of the issue of parity between offenders makes it desirable that the sentences imposed on all respondents be considered together in the hearing of the appeals. The late filing of the notices of appeal by the Attorney-General has been explained and this tardiness was, of itself, not apt to cause such prejudice to the respondents as to require the refusal of the extension of time, cognisant as we are of the Charter of juvenile justice principles 7(a) and 11.

[58] Nor will the respondents suffer prejudice as a result of the conduct of the prosecutor at or prior to the sentence hearing. They will be able to adduce in this Court any evidence which they may be advised to call by way of mitigation of sentence; and, by virtue of s 671B(2) of the Criminal Code, the Attorney-General will be precluded from urging this Court to increase the sentence of any respondent by reason of any new evidence.**

[59] It is further ordered by the consent of the parties that, in respect of KU, WZ and WY, the Chief Executive prepare and file a pre-sentence report under s 344 of the Corrective Services Act 2006 (Qld) including, if considered necessary, a psychological or psychiatric report, by 13 March 2008.

[1] Cf R v Melano; ex parte Attorney-General (Qld) [1994] QCA 523; [1995] 2 Qd R 186 at 188 - 190.

[2] Cf R v Tait [1998] QCA 304; [1999] 2 Qd R 667; R v GV [2006] QCA 394.

[3] Cf Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609; R v Woodley, Boogna, Charles & Ors (1994)

76 A Crim R 302 at 307.

[4] [2004] HCA 22; (2004) 217 CLR 198 at 213 [40].

[5] R v Black; R v Sutton [2004] QCA 369.

[6] See also R v Richardson; ex parte A-G (Qld) [2007] QCA 294 at [32] - [34].

[7] (1981) 28 SASR 362 at 367 - 368.

[8] [1994] HCA 49; (1994) 181 CLR 295 at 302.

[9] R v McQuire & Porter (No 2) [2000] QCA 40 at [35].

[10] See R v Quick; ex parte A-G (Qld) [2006] QCA 477 at [5] and the cases there cited.

[11] Camden & Anor v McKenzie & Ors [2007] QCA 136 at [29].

[12] GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 at 213 - 214 [40].

[13] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 607; R v Woodley, Boogna, Charles & Ors (1994)

76 A Crim R 302 at 305 - 307.

[14] [1997] QCA 139 at 48 - 49.

[15] [1982] HCA 55; (1982) 149 CLR 305 at 326.

[16] [1994] QCA 220.

[17] [1994] QCA 220 at 7 - 8.

[18] [1997] QCA 139 at 4.