Court of Appeal (Qld)|2005-12-09|Before: McMurdo P, Keane JA and Chesterman JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Keane JA and Chesterman JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
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 - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEALAND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERALOR OTHERCROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THEPERSON - where the respondent, a juvenile,was convicted on his own plea ofguilty of two counts of rape, one count of indecent assault, one count ofassault occasioning bodilyharm whilst armed, three counts of common assault,one count of deprivation of liberty and one count of threatening injury withintentto compel a person to smoke a dangerous drug - where all these offenceshad been committed on the same occasion against a 16 yearold female - where therespondent was sentenced under the Juvenile Justice Act 1992 (Qld) -where the respondent had no previous criminal record and had a tragic familybackground - where the respondent was sentencedto three months detentionsuspended forthwith and he was placed under the supervision of the Department of
Communities for a period
of three years - whether the sentence imposed on the
respondent was manifestly inadequate - whether the nature of the respondent's
offending meant that a sentence of actual detention should be imposed
Juvenile Justice Act 1992 (Qld), s 193, s 227
R v C [1996] QCA 14
CA No 436 of 1995, 13 February 1996,
cited
R v E
ex parte Attorney-General of Queensland [2002] QCA 417
(2002) 134 A Crim R 486, applied
R v JAJ [2003] QCA 554
CA No 321 of 2003, 12 December 2003,
considered
R v MAC [2004] QCA 317
CA No 118 of 2004, 3 September 2004,
cited
R v Osenkowski (1982) 30 SASR 212, distinguished
R v S [2003] QCA 107
CA No 445 of 2002, 13 March 2003, cited
Judgment (53 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the appellant
[2]
[1] McMURDO P: I agree with the orders proposed by Keane JA and with his reasons.
[3]
[2] KEANE JA: On 20 May 2005, the respondent, a juvenile, was convicted on his own plea of guilty of two counts of rape, one count of indecent assault, four counts of assault, one count of assault occasioning bodily harm whilst armed, one count of deprivation of liberty and one count of threatening injury with intent to compel a person to smoke a dangerous drug. All the offences had been committed on 14 May 2004. The respondent was remanded on bail while pre-sentence reports were obtained.
[4]
[3] The respondent was sentenced on 30 September 2005 under the Juvenile Justice Act 1992 (Qld) ("the Act"). He was sentenced on one count of rape to three months' detention to be suspended immediately. It was further ordered that the respondent participate in a program as directed by the Chief Executive of the Department of Communities ("the Chief Executive") for three months. On the other count of rape, the respondent was ordered to be released under the supervision of the Chief Executive pursuant to s 193 of the Act for a period of three years. In respect of the other offences, the respondent was ordered to be released under the same kind of supervision for a period of two years.
[5]
[4] The Attorney-General has appealed against that sentence on the ground that it was manifestly inadequate. It was submitted in this regard that the sentence imposed failed to reflect adequately the seriousness of the offences, did not give proper regard to considerations of deterrence and gave too much weight to factors going to mitigation.
[6]
[5] The female complainant was a 16 year old student at the time the offences were committed. She and a friend attended a party at a house at Browns Plains on the evening of 14 May 2004. After the complainant arrived, the respondent and the complainant went into the bathroom and began kissing. The respondent asked the complainant to have sexual intercourse with him. She refused. He then asked her to give him a "blow job". She again refused. He then pushed her head against the wall and walked out of the bathroom.
[7]
[6] An hour later, the respondent walked up to the complainant in the lounge room and held a large black handled knife to her throat. One of his friends then pushed the respondent's hand away and told him to leave.
[8]
[7] The complainant sought to leave the party. As she walked out the front door, the respondent saw her and asked her where she was going. She said that she was going home. He told her that she was not going home until she smoked cannabis. She refused, and he then slapped her face. She again refused to smoke cannabis, and he again slapped her face.
[9]
[8] The respondent then placed his hands on the complainant's shoulders and pushed her to the floor. He then picked up a weights dumbbell and struck her head with it causing her pain and a contusion which did not subside for several days.
[10]
[9] The respondent then grabbed her by the wrist and took her into one of the bedrooms which was occupied by several males who were smoking cannabis. The complainant tried to walk out of the room, but the respondent took hold of her wrist and pulled her towards him saying that she was "not going anywhere".
[11]
[10] The respondent then told the complainant that she was going to smoke cannabis or else she was going to give everyone in the room "a head job". The complainant, understandably frightened, agreed to smoke cannabis.
[12]
[11] The complainant was strongly affected by the cannabis. She left the bedroom, walked to the lounge room and fell on the floor. The respondent, who had followed her, sat on top of her. He placed one leg on either side of her so that she could not move. He then began to kiss her. He then put his hand inside her underpants and began stroking her vagina. He then pushed his fingers into her vagina. A short time later he took his fingers out of her vagina and removed her underpants. At this stage, the complainant was crying. She repeatedly asked him to stop. Another male person then took hold of her shoulders, while yet another rubbed her breasts.
[13]
[12] The respondent then pushed a finger into her vagina and said: "Don't worry, we're just having a bit of fun. You will enjoy it."
[14]
[13] The respondent then picked up a beer bottle and moved it towards her vagina. The complainant again repeatedly asked him to stop. Despite these entreaties, the respondent inserted the bottle into her vagina. She felt severe pain. She believes that she then passed out at this point.
[15]
[14] When the complainant woke up, she got up off the floor and walked outside. She saw the respondent and walked away from him. He approached her and demanded that she not walk away from him. He then pushed her to the ground. She got up off the ground and walked away down the street.
[16]
[15] The respondent originally denied the offences when interviewed by police. He later made partial admissions. He has yet to demonstrate any remorse for his conduct towards the complainant.
[17]
[16] No victim impact statement was tendered at sentence but it can be assumed that the offence has had serious detrimental consequences for the 16 year old complainant.
[18]
[17] The respondent was born on 5 July 1988. He was nearly 16 years of age at the time of the offence and 17 years of age at the time of his sentence.
[19]
[18] The respondent has no history of having been convicted of any crime. He had, however, previously come to the attention of the police.
[20]
[19] Pre-sentence reports were obtained from the Logan Youth Justice Service and from a psychologist, Ms Meg Perkins. The psychologist described the respondent as "egocentric, lacking in remorse and empathy ... [he] had aggressive symptoms at a very young age and has had substance abuse issues which increase the risk of his offending continuing into adulthood".
[21]
"Without treatment, [the respondent] will continue to pose a risk to the community. He has proved himself capable of committing a sadistic sexual offence and at the same time demonstrated a lack of remorse and victim empathy. He has, no doubt, been significantly damaged by his life experience and he seems to have some neurological dysfunction in the area of language and communication. All of these factors indicate that intensive treatment with cognitive therapy is essential."
[22]
[21] The learned sentencing judge was told by the respondent's counsel that the respondent has a girlfriend with whom he has a child; that he has a job and wishes to get a trade; that he suffered from a deprived upbringing; and that he co-operated with the authorities in respect of one of his co-offenders. It may be said immediately that this latter consideration could only be of little relevance having regard to the respondent's primary role in the outrages committed against the complainant.
[23]
[22] The learned sentencing judge referred to the respondent's "dreadful personal circumstances". In this regard, the respondent was a victim of the circumstance that his mother was, and is, a drug addict who has failed to care for him. The respondent's mother so neglected her parental responsibilities that the respondent first used illicit drugs at 18 months of age. He has received no guidance at all in how to live a constructive and useful life. It may be acknowledged that the circumstances of the respondent's upbringing were truly tragic.
[24]
[23] Nevertheless, the gravity of the offences was such that the learned sentencing judge acknowledged that decisions of this Court indicate that "a period of detention of up to four years is well within the range for these types of offences".
[25]
[24] His Honour's orders were made on the footing that:
[26]
"[h]ad it not been for [the] dramatic turn-around in [the respondent's] behaviour in the past 12 months or so, [his Honour] would have unhesitatingly ordered that [the respondent] serve a lengthy period of detention as that would be the only penalty to impose commensurate with the offences [the respondent has] committed, particularly the rape offences."
[27]
"prepared to give [the respondent] a chance to confirm that [he has] reformed, and with continued assistance hopefully [the respondent] will become a worthwhile citizen and rise above the deprivation [the respondent has] endured to date."
[28]
[26] The Act provides that a detention order should only be made against a child as a last resort.[1] It does not follow that a period of detention is never an appropriate sentence for a juvenile, particularly when a serious offence such as rape is involved. The maximum penalty for an adult found guilty of rape is life imprisonment.[2] The Act provides that a juvenile found guilty of an offence for which the punishment is life imprisonment may be detained for up to 10 years.[3]
[29]
[27] In R v C,[4] Fitzgerald P and Mackenzie J said:
[30]
"It was pointed out that the policy of the Juvenile Justice Act is that, if some other course is open, a juvenile should not be detained in custody, and then only for the shortest possible period. Even so, rape is ordinarily a crime of violence which commonly has serious consequences for the victim, in this case a teenage girl, and the sentencing judge was correct in concluding that a period of actual detention was called for."
[31]
[28] In R v E; Ex parte Attorney-General (Qld),[5] Williams JA, with whom Helman J agreed, said:
[32]
"There are a number of cases where juveniles have received sentences in the range of three to five years detention for a single episode of rape without any gratuitous violence being involved. It is sufficient to refer to the recent case of R v A[2001] QCA 542. There, a 16 year old was initially sentenced for the offence of raping his grandmother to 12 months' detention with an immediate release order requiring participation in a rehabilitative program. No conviction was recorded. This court on appeal recorded a conviction and ordered the offender to serve four years detention to be released after serving 50% of that term."
[33]
[29] More recent decisions of this Court in R v MAC[6], R v S[7] and R v JAJ[8] confirm that a range of three to five years detention is appropriate in the case of juvenile offenders who commit rape and plead guilty to the offence.
[34]
[30] In R v JAJ, for example, the applicant had pleaded guilty to anally raping his three and a half year old step brother. JAJ had been 16 years old at the time of the offence, had no prior convictions and came from a background that McMurdo P said was "startling and remarkable in the extent and degree of dysfunctionality".[9] JAJ's explanation for his offending was that it had been committed in a moment of anger and frustration at being left to babysit the child against his wishes. He expressed real remorse for what he had done. This Court, by majority, reduced the original sentence of four years detention imposed on JAJ to three years and affirmed the order made by the learned sentencing judge that JAJ be released after serving 50 per cent of his detention. What is clear is that, even after making all allowances that might be made for a plea of guilty, the absence of any prior offending and a dysfunctional upbringing, a 16 year old who is convicted of rape should, unless the circumstances are truly exceptional, be sentenced to a substantial period of time in detention.
[35]
[31] Given the clear trend of the authorities to which I have referred, the sentence imposed on the respondent by the learned sentencing judge was manifestly inadequate as punishment for the persistent, violent and cruel conduct of the respondent towards the complainant. The sentence cannot be allowed to stand. The offences committed by the respondent were so serious as to require, in my view, a head sentence of detention for four years before circumstances of mitigation are taken into account.
[36]
[32] There is nothing about this case, whether in terms of prospects for rehabilitation or the respondent's personal circumstances that, when compared to the circumstances of other cases to have come before this Court, could be said to be so remarkable or extraordinary as to warrant a sentence that did not involve a substantial period of actual detention. Accordingly, it falls to this Court to resentence the respondent.
[37]
[33] In relation to the "turnaround in the respondent's life" since the commission of the offences to which the learned sentencing judge referred, it is apparent that the respondent was in a relationship with his current girlfriend at the time this offending occurred. Indeed it would seem that the respondent's child must have been conceived at about this time. He is in full-time employment. As to the provision of necessary guidance, programs for anger management, sexual offender treatment and life skills are available to juvenile offenders in actual custody and there is no reason to think that the respondent will not be able to avail himself of these opportunities.
[38]
[34] The "turnaround" in the respondent's life is, in truth, more a hope than a demonstrated fact. The view that the respondent had turned his life around was not, in my respectful view, a sound basis on which to refrain from imposing the sentence of actual detention which the horrific circumstances of the respondent's offences called for. It may be accepted that, as King CJ said in R v Osenkowski:[10]
[39]
"[t]here must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
[40]
But in the present case, bearing in mind the respondent's cold cruelty to the complainant, his persistence, and his lack of remorse and the absence of any real basis for an optimistic view of the prospects of rehabilitation, a deterrent sentence involving a substantial period of actual detention was required. There is no decision of this Court which could be said to support the decision of the learned sentencing judge to allow the respondent to be released forthwith under the supervision of the Chief Executive.
[41]
[35] Although the circumstances of the respondent's upbringing were tragic, the mitigating circumstances personal to the respondent to which the learned sentencing judge referred can, in my opinion, be given sufficient recognition by a sentence of three years detention. Such a sentence also recognizes that he has been subject to, and complying with, community-based orders and subject to the threat of this appeal since 30 September 2005. An order that the respondent be released from detention after serving 50 per cent of that term pursuant to s 227(2) of the Act is, in my view, warranted by the special circumstances of this case. The special circumstances which justify that approach in this case are that the respondent is in full-time work, has not reoffended since the present offences were committed and has shown a commitment to treatment.
[42]
[36] For these reasons, the sentence imposed on the respondent was manifestly inadequate.
[43]
[37] I would allow the appeal and set aside the orders made below. In lieu thereof, I would order that the respondent serve three years detention on each count of rape, such sentences to be served concurrently. I would further order that the respondent be released from detention after serving 50 per cent of that term. A warrant should issue for the arrest of the respondent but lie in the Registry for seven days before it is taken out.
[3]Juvenile Justice Act 1992 (Qld), s 176(3)(a). A sentence up to and including life imprisonment may still be imposed if the offence involved violence and may properly be regarded as being particularly heinous: Juvenile Justice Act 1992 (Qld), s 176(3)(b).