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  • Unreported Judgment

R v B

 

[1994] QCA 127

COURT OF APPEAL

DAVIES JA

McPHERSON JA

MACKENZIE J

CA No 472 of 1993

THE QUEEN

 

v.

B

Applicant

BRISBANE

DATE 30/03/94

JUDGMENT

DAVIES JA:  The applicant was convicted after a trial in the District Court at Roma, on 17 November 1993 of two offences, one of breaking and entering in the night-time with intent and one of rape.

At the time of his conviction and sentence, which was on the same day, he was 17 years of age, having been born on 22 December 1976.  He was accordingly sentenced under section 121 of the Juvenile Justice Act in particular under subsection 3 of that section, which provides that, "In relation to a serious offence that is a life offence" – which in this case rape of course is, "the Court may order that the child be detained for a period not longer than" – and then two alternatives are provided 10 years or – and the second alternative is 14 years: if the offence, amongst other things, involves the commission of violence against a person.

The learned sentencing Judge apparently took the view that this offence, although one of rape, did not involve violence against a person and on that assumption he sentenced the applicant to five years detention.  His Honour then went on to order that the applicant be released after serving 50 per cent of that sentence.

His Honour in making that order was acting pursuant to s 188 of the Juvenile Justice Act which provides that unless a Court makes an order under that section, a child sentenced to serve a period of detention must be released from detention after serving 70 per cent of the period of detention.  The section goes on to provide that the Court may order the child to be released from detention after serving 50 per cent or more of that term if it considers that there are special circumstances.  His Honour must have thought that there were special circumstances in this case requiring the order which he made, although he does not appear to have articulated those special circumstances in his reasons for sentence.

The applicant has a prior criminal history, most of which is not relevant to the offences here.  There are perhaps two offences which I should mention which at least have some relevance.  One is that in August 1991 he was convicted of aggravated assault on a child under the age of 14, and the other is that in March 1993 he was convicted of being found in an enclosed yard without lawful excuse.  I should also mention that the applicant had, prior to the time of sentence, spent approximately seven months in custody in relation to this offence.  It was not necessary for his Honour to say anything, specifically with respect to that, nor indeed is it necessary for this Court to do so, because pursuant to s 174 of the Juvenile Justice Act the sentence is counted from the date when the applicant went into custody.

The circumstances of the offences were that some time prior to the commission of the offences the applicant who was a visitor to the complainant's next-door neighbour's residence was drinking with the complainant at that house, that is at the neighbour's house.  The complainant felt ill and became ill there.  She then excused herself and returned to her own home.  Upon her return, she secured her house and then went to bed.  She went to bed in her bedroom in a bed with her six-year-old son who was already asleep.  She awoke to find the applicant having intercourse with her.  She was lying sideways on the bed at the time.  On realising that the applicant was not her boyfriend, the complainant threw her leg over the applicant's head, straightened herself on the bed and pulled the covers up over her.

The applicant desisted, a matter which his Honour the learned sentencing Judge rightly took into account in sentencing him for this offence.  However, he did return to the residence later and touched the complainant on her back under the covers.  She then woke her young son and indicated that the light was going to be turned on and the applicant then left the premises, running away.  She heard the applicant laugh and say, "Yeah," in response to a question, "Did you get any?" which was posed by another visitor to the neighbour's house, a friend of the applicant's.

The applicant must plainly have broken and entered the complainant's house, as the jury found, in order to commit the offence of rape which he did.  Mr Barakin, who appears for the applicant on the application for leave to appeal against sentence, raises two points on either of which he says this Court ought to interfere with the sentence imposed below.

Now, the first, which arises from s 121, is that he says that because subsection 3 provides that in respect of offences for which the penalty would ordinarily be life imprisonment that in the case of a child it should be 10 years or in the other case I have mentioned 14, the Court in imposing the sentence should in some similar way proportionately reduce the sentence from that which would be imposed on an adult would not accept that argument, although it seems to me that generally a child committing an offence would be sentenced to a lesser penalty than an adult for a similar offence.

That appears plainly to have occurred in this case.  Mr Barakin concedes that in the case of an adult an appropriate sentence would have been seven or eight years.  And Mr Callaghan who appeared for the Crown submitted that up to eight years was appropriate.  So that in imposing a sentence of five years imprisonment in the present case, the learned sentencing Judge imposed a sentence substantially less than would have been imposed upon an adult for a similar offence.

The other argument which Mr Barakin advanced specifically was based upon a decision of The Queen v Watts, Court of Appeal number 341 of 1989 and, in effect an executive decision which was made in that case.  And extrapolating from that, Mr Barakin submitted that the appropriate sentence that should have been imposed in this case was three and a half to four years.  I do not think that we can extrapolate from executive decisions in determining what is the appropriate sentence in cases before this Court.

One, therefore, then has to look generally to the question whether having regard to the sort of sentences which have been imposed upon adults and on children for like offences, whether the sentence which was imposed in this case was beyond the range of a sound sentencing discretion.  There are a number of factors, of course, which can be said in the applicant's favour.  One is that he was, as I have already said, of young age.  Secondly, he was, it seems, affected by alcohol.  Though that is no excuse for the commission of the offence, it may to some extent explain his conduct.  His previous criminal history is relatively minor and, as I have already mentioned, when the complainant woke up he desisted, so that it can be said that he did not pursue once the complainant indicated clearly enough that when she woke up she would not consent to the act or the continuation of the act.

He was also, it appears, encouraged by others who may have been older than he although perhaps not a great deal should be made of that.  On the other hand, his remarks shortly after the commission of the offence indicated that there was no remorse on his part.  There was no contraceptive or prophylactic precautions taken.  Very importantly, in my view, it involved the invasion of the security of the complainant's home and it occurred in circumstances in which the complainant was in her own bed and with her own young child.

Having regard to all of those circumstances I would not be of the view that the sentence which was imposed was outside the reigns of a sound exercise of sentencing discretion and I would therefore refuse the application.

McPHERSON JA:  I agree.  I particularly wish to associate myself with my brother's remarks about the operation of s 121 (3)(a) of the Juvenile Justice Act 1992.  That provision is, in my opinion, to be viewed as designed to place an upper limit on the period of detention.  It is not to be considered as requiring what I will call a “pro-rating"of the maximum life penalty under the Code with a view to arriving at a different maximum proportionate to 10 years as a base from, which to calculate the sentence for the juvenile in the particular case before, the Court.

The upper limits that are imposed by s 121(3) appear; to me to have been chosen quite arbitrarily in order – to ensure the children do not serve, or undergo, periods of detention longer than the maxima there specified.  When all that has been said it remains, of course, necessary to bear in mind that the plain intention of the legislature in enacting that section is to ensure that children are treated more leniently than adults.  In the present case, I am satisfied that the Judge approached the sentencing of the applicant in that spirit and that, as my brother Davies has pointed out, he made no error of principle in arriving at the sentence imposed.  I therefore agree that the application should be refused.

MACKENZIE J:  In my view, having regard to the nature and the circumstances of the offence and taking into account the personal circumstances of the applicant, the sentence cannot be said to be manifestly excessive.  I agree with the order proposed.

DAVIES JA:  The order is application refused.

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Editorial Notes

  • Published Case Name:

    R v B

  • Shortened Case Name:

    R v B

  • MNC:

    [1994] QCA 127

  • Court:

    QCA

  • Judge(s):

    Davies JA, McPherson JA, Mackenzie J

  • Date:

    30 Mar 1994

Litigation History

No Litigation History

Appeal Status

No Status