R v Young; ex parte A-G

Court of Appeal (Qld)|2002-11-05|Before: de, Jersey CJ, McMurdo P and Davies JA, Separate reasons for judgment of each, member of the court, each concurring as to the orders made

Director of Public Prosecutions (Queensland) for the appellant

THE CHIEF JUSTICE: The Honourable the Attorney-General appeals against a sentence of imprisonment imposed upon a 43 year old man for, as principally relevant, maintaining a sexual relationship and committing rape upon a 12 year old girl. For those offences he was imprisoned for six and a half years. He was dealt with at the same time for other offences but there is no need to deal with them now. His prior criminal history was not greatly relevant.

These were shocking incidents of sexual offending characterised by betrayal of trust, intimidation, violence and injury. The offending began when the respondent was acting as babysitter for the 12 year old complainant. The rapes occurred at least weekly over approximately nine months up to February 2001. The circumstances led to the complainant becoming terrified of the respondent who actively pursued and intimidated her into submission. The respondent exhibited no remorse, had little insight into his conduct and needed treatment. He committed some of the offences while on bail. The only substantial mitigating feature was that he pleaded guilty on an ex-officio indictment.

Unfortunately, before the learned sentencing Judge the Crown Prosecutor submitted for a range of five to seven years' imprisonment. That was plainly inadequate. For multiple violent rapes by a mature man committed upon a girl as young as 12, over a period as long as nine months, amounting to maintaining, even allowing for the pleas of guilty, imprisonment of the order of 10 to 12 years was, in my view, warranted. See especially Myers, Court of Appeal 353 of 2001 where a sentence of 11 years' imprisonment following a trial was upheld on appeal. The current offences should be viewed more seriously than those of Myers because of the greater number of offences, the high level of violence involved and the active intimidation used to overcome the complainant's attempts at resistance.

These sentences were dramatically out of line and the response of this Court should not be unduly limited by the circumstance of the Prosecutor's seriously wrong submission to the sentencing Judge in light of the respondent's being in prison serving an already substantial term.

I would allow the appeal and order in lieu of imprisonment for six and a half years, imprisonment in respect of counts 1, 2, 4 and 5 for 10 years. Although it need not be expressly ordered, that would automatically attract the serious violent offence consequence, on any view undoubtedly appropriate in light of the particularly violent nature of this offending.

THE PRESIDENT: I agree. The learned primary Judge regarded these sentences as most serious. Her Honour imposed a sentence at the upper end of the range of imprisonment requested by the prosecutor at sentence. Nevertheless, as the Chief Justice has explained, the sentence of six and a half years' imprisonment here is manifestly inadequate in the circumstances. As the learned primary Judge observed, these offences are an indictment on the Cape York community in which they occurred. The facts before the learned primary Judge, which have again been relied upon here without challenge, were that the complainant's school, the local Queensland Police Service, the complainant's family and the general community either knew or should have known of the respondent's abuse of the complainant, and nobody did anything for a very long time. Any Queensland community must do better at nurturing and protecting its 12 year old children.

A sentence of 10 years' imprisonment is warranted here because of the persistent intimidatory abuse and rape of this child over an extended period. I sincerely hope the sentence will be a deterrent to others who might think they can behave in a like manner without detection and serious punishment. This Court's reasons will, of course, be published in due course. I hope those reasons are brought to the attention of the community involved. I agree with the order proposed by the Chief Justice.

DAVIES JA: I agree with the order and the reasons of the Chief Justice.

THE CHIEF JUSTICE: The orders are as I have indicated.

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