The Queen v F[1997] QCA 98

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

C.A. No. 114 of 1997

THE QUEEN

v.

F

(Applicant)

C.A. No. 112 of 1997

THE QUEEN

v.

P

(Applicant)

Davies JA

McPherson JA

White J

Orders delivered 24 April 1997 in C.A. No. 112 of 1997.

Reasons for judgment delivered 2 May 1997 in C.A. Nos. 112 and 114 of 1997.

Separate reasons for judgment of each member of the Court;  McPherson J.A. dissenting in C.A. No. 114 of 1997.

ADJOURN THE APPLICATION OF F FOR ONE WEEK.  ORDER THAT A FURTHER PRE-SENTENCE REPORT BE OBTAINED INDICATING WHETHER AN APPROPRIATE PROGRAMME IN WHICH F MAY PARTICIPATE IS AVAILABLE IF AN IMMEDIATE RELEASE ORDER WERE MADE SETTING OUT THE TERMS OF THAT PROGRAMME INCLUDING ITS CONDITIONS.

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 2 May 1997

I agree with the judgment of White J. and with her reasons.  The serious physically harmful and psychologically degrading nature of the conduct of the appellants to their helpless and innocent victims and the apparent callousness with which it was inflicted on them are undoubtedly important factors in considering whether these sentences should be interfered with.  Indeed, had the appellants been adults who did not come within s. 9(4) of the Penalties and Sentences Act 1992 those factors would, plainly in my view, have justified custodial sentences of the kind in fact imposed.  But as White J. has pointed out, the provisions of the Juvenile Justice Act 1992 require special consideration to be given to the rehabilitation of child offenders by orders not involving their custody and require the imposition of custodial sentences only where they are the only appropriate sentences.

A custodial sentence was not the only appropriate sentence which could be imposed on P because, notwithstanding the seriousness of her conduct, she had not previously offended, she had some prospects of rehabilitation, she had, in the past, lacked supervision and she had not previously been given the opportunity of complying with a supervised programme of rehabilitation.

F’s appeal presents greater difficulty.  She had previously offended in a similar way.  However her sentence on the previous occasion was one of two months probation which would have been quite inadequate, in view of her family situation, to have resulted in any lasting beneficial effect.  An order for her detention, together with an order for immediate release into a structured programme with strict conditions and probation for two years will give her an opportunity for rehabilitation which she has not previously had and which, notwithstanding the seriousness of those offences and her previous conviction, she should have.  Having regard to all of the factors mentioned by White J., F is, in my view, too young to be incarcerated without being given that opportunity.  If she fails to seize that opportunity the immediate release order may be revoked and she may be required to serve the sentence of detention.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 2 May 1997

These are applications for leave to appeal brought by two teenage girls F and P against sentences imposed in the Children’s Court.  P, who was 13 years old at the time of the offences and 14 at sentencing, was sentenced to detention for 6 months with an order for release after serving 50% of that term, and probation for two years.  The sentence in the case of F, who was 14, and is now 15 years of age, was the same except that the period of detention imposed was eight months instead of 6 months.

I have read the reasons for judgment of Davies JA and White J. for granting these applications.  I agree with the order which their Honours propose in the case of P.  The seriousness of the offences, which are described in some detail in the reasons of White J., cannot be underestimated.  However, although she was involved in both incidents that gave rise to the offences under review, she has not previously been before the Court; there is some evidence of genuine remorse on her part; and she is the younger of the two offenders.  She falls fairly within the category of a youthful first offender mentioned in Bainbridge (1993) 74 A.Crim.R. 265, 268; and, although her part in the joint assaults on the unfortunate young victims was at least as extensive as that of the other or others involved, there is, in my opinion, reason to think that, without F these violent offences might not have taken place.  Throughout the various reports she is identified as a leader and not a follower; in the course of the  assaults giving rise to the charges she issued commands to her co-offender, which were acted on; and P and the other co-offender were staying at the F home at the time when at least one of the offences took place.

I have also reached that conclusion for some other reasons, which may be briefly stated.  The first is that the offences committed on 14th November 1996 and those on 26 November 1996 show many points of resemblance not only to each other but also to an earlier offence committed by the applicant F alone in January 1995.  On that occasion, the complainant was a 13 year old girl, quite unknown to the applicant, who was sitting on a bench outside a store when her hair was pulled from behind.  She stood up and walked away, whereupon the applicant followed and accused her of trying to lure her boyfriend away.  She then kicked the complainant on the shins on 10 occasions, punched her on the right side of the neck; and scratched her on the leg.  When the complainant asked why the applicant was picking on her, she punched her in the stomach.  The applicant’s explanation to the police was that she did not like the look of the complainant.

At that time the applicant F was only 13 years old.  In the Children’s Court on 6 March 1995 the applicant was dealt with for that offence by placing her on probation for three months.  The experience of probation on that occasion evidently had little impact on her, for she committed these two further offences in November 1996, the second of them while on bail for the first.  All three sets of offences are characterised by motiveless violence and brutality against other girls of about her own age, which is no doubt one reason why the psychologist Dr Dangerfield, who interviewed and assessed the applicant on 7 March 1997, described her as showing “a high degree of competitiveness, dominance, and aggression” and as someone who was “likely to favour aggressive solutions, to be dominating others, and is more likely, if crossed, to respond aggressively”. What is rather chilling about that report is that, at the same time, Dr Dangerfield also found the applicant to be a young person of average intelligence, with a strong ability to control her emotions, who was emotionally stable and calm in adversity.  She is said to be not an impulsive person and to show a high degree of self-control.

To my mind, these conclusions, taken with the circumstances and character of the offences committed, suggest that the applicant engaged in all three acts of violence because she enjoys dominating others and doing so by inflicting pain and humiliation on them.  She has attended four different schools in her first two years of high school, where she is reported to have been involved in aggressive incidents which often resulted in her suspension or expulsion.  Principals of two of the schools she has attended were blunt in their comments, describing her behaviour as that of a “thug”.  Dr Dangerfield considers that the applicant is “at risk of further aggressive outbursts ...”.  At the same time, he considers that her personality profile suggests she is capable of learning from consequences, when these are applied

The question is what is to be done about the applicant.  The sentencing judge in the Children’s Court considered that a period of detention was called for.  Having regard to the statement that she is at risk of re-offending, but that she is capable of learning from the consequences of her actions, it seems to me that the only options provided under the Act were to sentence her to a period of detention or to a period of probation or an immediate release order.

The sentence against which this application is made does, as I have said, already provide for a period of probation for two years.  Having regard to the previous probation order in March 1995, coupled with what is said to be the lack of supervision and discipline in her life, it seems unlikely that probation on its own is likely to be effective in improving the applicant’s present attitude to others, or in protecting them from possible future acts of violence on her part.  The Juvenile Justice Act 1992 speaks of detention (as does the Penalties and Sentences Act of imprisonment) “as a last resort”.  I take that to mean that, before it is resorted to, there must be no other appropriate but more moderate form of sentence available: see s. 165.  I doubt if that differs from saying that if a non-custodial penalty is “within range” it should be imposed.  The question always is, however, whether it is “within range” or “appropriate” for the particular offence in question.

An immediate release order in some ways resembles a suspended sentence, in that a court making a detention order under s. 164 of the Juvenile Justice Act 1992 may, under s. 176(1), immediately suspend that order and make an order that the child be immediately released from detention.  The resemblance is, however, only partial because such a release from detention must take place in accordance with the terms of an “immediate release order”: s. 176(2), and what is meant by that is that the child is to be released into “a structured programme with strict conditions”: s. 175.  It is a requirement of such an order that, during the period of the programme, the child abstain from violations of the law; and that he or she participate as directed by the chief executive in a programme that is recommended in the presentence report mentioned in s. 179 and is also specified in the order itself: see s. 177(1).  In addition, under s. 177(2), the order may  contain requirements that the child comply with conditions that the court considers necessary for preventing a repetition of the offence in relation to which the detention order was made.

From what has been said so far, it is apparent that what s. 175 describes as a “structured programme with strict conditions” is an essential requisite of an immediate release order.  By s. 179, such an order may be made by a court “only if the presentence report considered by it before making the detention order in question indicates that -

1. the child is suitable for release from detention under an immediate release order;

2. an appropriate program in which the child may participate is available on the child’s release under the order”.

Furthermore, under s. 178, it is only if the child expresses willingness to comply with the requirements of the order that an immediate release order may be made.

In the present case neither of the prerequisites prescribed in s. 179 has been satisfied either in this Court or in the Children’s Court where the sentence of detention was imposed. The presentence report that was before the sentencing judge, and is now before this Court, contains a section, of  about a single typed page in length, which refers generally to the option available to the court of making an immediate release order.  The author of the report says that lack of supervision and discipline has played a substantial part in the applicant’s offending; but it offers no guidance as to what measures might be adopted to offset these deficiencies.  On a most generous interpretation, the report might perhaps be said to “indicate” that the applicant is suitable for release under such an order, although it must inevitably be difficult to be satisfied that a person is suitable for release under an order the terms of which are not known. 

However, on no possible view can the report be said to indicate that an “appropriate” program” is available on release of the child under such an order.  It is very far from proposing or recommending anything in the nature of a “structured program with strict conditions” contemplated by s. 175, or anything else resembling a program; and it is even further removed from identifying the requirements with which the applicant must, under s. 179, first have expressed her willingness to comply before the order is made.  Until those “requirements” are specified, so that the applicant is in a position to know what they are, it would scarcely be possible for her to express her willingness to comply with them.  By s. 118 of the Act, a court sentencing a child must take steps to ensure that the child understands the purpose and effect of the order and the consequences that may follow if the child fails to comply with the requirements of the order.

The point at issue cannot be dismissed as one of mere form.  The express requirements of ss. 178 and 179 are prerequisites for the exercise of the court’s jurisdiction to make an order of this kind.  Furthermore, failure to comply with a condition of an immediate release order may have the consequence that the order is revoked by the court under s. 185(7)(b) and, under s. 185(8)(a), that the child is ordered to serve out the original sentence of detention.  It is, therefore, essential that the conditions of the programme be clearly spelled out in advance so that the child, and those in charge of her, may know what it is that she must do or refrain from doing in order to ensure compliance with them.  Specification of the conditions proposed is also necessary in order to enable the court to exercise the discretion it has under s. 177(2) of imposing conditions which it considers necessary to prevent a repetition of the offence in relation to which the detention order was made.

No detail of any such programme or conditions is provided in the presentence report.  The preconception evidently underlying the report is that an immediate release order is an option open to the court and that, if it is adopted, the Department will then devise or make available a programme that satisfies the requirements of ss. 175, 178 and 179.  Such an approach is, however, open to the fundamental objection that it involves an abdication by the court of its sentencing function and its surrender or delegation to a department of the executive government, which is something that a sentencing court is not permitted to do: see R. v. Selling (1913) 13 S.R. (N.S.W.) 628, 632; Re. Mitchell; Re Healey [1938] N.Z.L.R. 671, 674; Lahey v. Sanderson [1959] Tas. S.R. 17, 23; Bowser v. Bourke [1993] 1 Qd.R. 43, 47.  The character and terms of the sentence must be ascertained and complete when it is imposed, and not, at least in any essential respect, left by the court to be determined by some other person or persons.

It follows in my opinion that making an order for immediate release was, on the material before the Children’s Court, not an option that was open to the sentencing judge in the case of the applicant.  It was not an option counsel for the applicant at the hearing invited the judge to adopt.  Had he adopted it, his Honour’s decision would have been liable to be set aside on appeal.  He was not asked by anyone, least of all by counsel, to adjourn the hearing in order to enable an immediate release program to be prepared for his consideration.  On the material before us, it is not an option that can be exercised by this Court now.  If it were, it would be one that, for my part, I would not be readily disposed to adopt without considering whether the order contained conditions necessary for preventing a repetition of the kind of behaviour of which the applicant has, on three occasions, already shown a disposition to commit.  Other unoffending children or adolescents of her age are entitled to expect that they will, at least to that limited extent, be protected against the risk of becoming victims of future conduct of this kind on the part of the applicant.

I would dismiss the application by the applicant F for leave to appeal; but allow that of the applicant P on the terms proposed by White J. in her reasons for judgment.

The other members of this Court have now proposed that a report containing the requisite program, if available, be obtained and considered here.  The introduction of new material on appeal will have the consequence that the process of sentencing the applicant will have to be undertaken afresh: cf. R. v. M. [1996] 1 Qd.R. 650.  If that is to happen, I would prefer to order that the matter be remitted to the Children’s Court, as in R. v. T. [1995] 2 Qd.R. 192, for resentencing to be carried out there by the same or another judge who is better acquainted than we with the specialist requirements of Part 4 of the Act.  However, if the course now proposed is to be followed, it will be necessary for those provisions to be complied with in this Court.

For my part, I would be assisted in discharging that function by having information in the form of victim impact statements by or on behalf of the three complainants who were targets of these offences by the applicant.  See s 109(1)(g).  When that subject was mentioned in the course of the Children’s Court hearing, counsel for the applicant made the following submission:

“Now, your Honour quite rightly raised the fact that the impact on the victims is something which your Honour must take into account.  But, in my submission, one can draw all the inferences one wants to, ultimately this matter has been around for some time.  The police arrested my accused in November, the matters went through for committal hearing in January, it was committed to those sittings here in February and listed for sentence.  Well, there’s only two things, two inferences that can be drawn: either the Prosecution and the police really aren’t all that interested at all in the impacts on victims or the victims themselves aren’t really interested at all in the Court proceedings and have nothing to say about the impact upon them.”

Having regard to the subsequent response of the Departmental representative at the hearing, it would appear that the provision of such statements is a matter to which the Crown (which in this Court supported the sentence imposed as appropriate) should attend.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 2 May 1997

The applicants each pleaded guilty in the Childrens Court on 24 March 1997 to two counts of robbery in company with personal violence, two counts of deprivation of liberty and three counts of assault occasioning bodily harm whilst in company.  The applicant P was aged 13 at the time of the offences and at the time of sentence.  The applicant F was 14 at the time the offences were committed and 15 at the time of sentence.

P was sentenced to 6 months' detention with an order for release after serving 50% of that period in respect of the robberies and 2 years' probation for the other offences.  F was sentenced to 8 months' detention with an order for release after serving 50% of that period in respect of the robberies and 2 years' probation for the other offences.  No convictions were recorded.

P had no previous criminal history whilst F had one minor offence of stealing in July 1994 for which she was reprimanded and committed an assault occasioning bodily harm on 6 March 1995 for which she received 3 months' probation.

Each appeals against the imposition of the sentences of detention on the ground that they are manifestly excessive.

Counts 1 to 6

The complainants in respect of counts 1 to 6 were twin sisters, Melissa and Tracey, aged 15 years.  On Thursday 14 November 1996 they had shopped for groceries at Garden City shopping centre.  They were waiting for the bus home at about 8.50pm and saw P and F whom they did not know waiting at the same bus stop.  One of the applicants approached and asked for a dollar which was refused..  The applicants say that the manner of the refusal was provocative to them.  The complainants' accounts do not support this contention.  The bus arrived about five minutes later and the complainants got in as did the applicants who sat somewhere behind them.  There was no conversation between the two sets of girls on the bus and when it stopped at the complainants' usual bus stop at about 9.00pm they got off the bus as did the applicants and began walking towards their home.

The applicants approached the complainants and asked if they had any money.  They replied that they did not.  They were asked how old they were and replied that they were 15.  They were about to cross the Mt Gravatt-Capalaba Road when P demanded that they hand over their purses.  Melissa said she would not.  The purse was in her shoulder bag which she was carrying over her shoulder.  P then reached over and grabbed the purse from her bag as they were crossing the road.  She took the money out of the purse which she returned to Melissa and at the same time F grabbed Tracey's purse and pulled money and cards out of it.  F threw the purse and cards onto the roadway and commenced punching and kicking Tracey several times in the head.  The force of the punches and kicks caused her to lose balance and stumble.  They were then on a traffic island in the middle of the road.  F had hold of Tracey's hair and was pulling it with such force that it cause her head to turn sideways.  P told Melissa to follow and not to run away.  P was not holding onto her but she followed because she was worried about what might happen to herself or to Tracey.  They crossed to the other side of the road with F still holding onto Tracey's hair.  Tracey was hit several times to the head by F.  P, who was taller than Melissa, struck her on the side of her face.  The complainants were told to walk down a dirt track and that if they tried to scream or run away or wave down a car they would be killed.  F denied making threats that the complainants would be killed although P recalled threatening to "half kill" them.  F compelled Tracey, whom she continued to hold by the hair, to put her arm around her shoulder to avert suspicion.  She hit her a number of times in the head.  They walked for some time in this fashion when P told Melissa to take her shoes off and after she had done so said that they should fit one of her friends.  P then demanded Melissa's handbag agreeing that the girl could take out the contents and put them in a plastic shopping bag.  When P saw a walkman being put into the shopping bag she demanded to be given it.  P took the walkman and they continued walking towards a park.  Tracey was asked by F if she had any cigarettes which she denied and was then punched in the head again being told not to lie.  She was asked did she smoke and when she replied no she was again punched in the head.  F told her that once she got to the park she was going to be punched again and that if she did not fall down after she punched her twice she would kill her.

When they reached the park P began punching Melissa repeatedly in the face with her fist.  She placed her hand at the back of Melissa's head and forced it in the direction of a steel pole but Melissa was able to avoid contact.  Melissa lost balance and fell to the ground and whilst on the ground P kicked her in the head and on her back.  Most of the kicks landed on her back and legs.  F had grabbed hold of Tracey's head and rammed it into a post on a picnic table.  Tracey tried to protect herself by covering her face with her arms and hands but F kept punching her with both hands and hitting her in the face and upper body areas.  Tracey fell down a number of times and every time she fell down she was grabbed by the hair, pulled back up again and punched until she fell down.  When she fell to the ground she was kicked.  She was unable to say how many times she fell to the ground and was pulled back up by her hair.  Neither girl called out for help as they were fearful that they would be killed as threatened.

Tracey heard F say "Come on, let's swap" after which P came over and started to punch her.  She again fell to the ground and was punched and kicked while lying on the ground.  Every time she fell down P told her to get up and finally she was pushed into the poles of a rotunda in the park.  P told Tracey to take off her Nike shoes which she did and handed them over to P.  P then made her walk to a see-saw, climb onto it and punched her in the face and pushed her off the see-saw.

F punched Melissa in the head on numerous occasions to both sides of her face.  She lost her balance and fell to the ground where she was kicked by F in the back and the stomach area.

The complainants then picked up their shopping bags and walked along the street with the applicants.  They were asked if they had anything to drink.  When they said they did not P said "don't lie, you have milk" and then kicked Tracey in the back.  Both girls were pushed into a garden and left by the applicants.  Tracey's face was hurting and blood was coming from her mouth and nose.  The attack took place over about 30 minutes.  They then ran home, saw their older sister who contacted the police and were driven to the hospital by a neighbour and spoken to by police at the hospital.  They were able to give the police a description of the girls and of the stolen property.  They were treated at the hospital and allowed home.  Melissa had soft tissue swelling and bruising to her face and nose, a grazed arm and her abdomen was soft without bruising.  She was prescribed analgesia for pain.  Tracey's injuries were more severe.  She had bruising to her face and forehead on the right side bruising and lacerations to the upper lip and a swollen nose.  An x-ray indicated that there was a minor depression of the tips of the nasal bones.  She had left shoulder bruising and right middle finger bruising.  A quantity of uprooted hair was on her clothing.

Police located the applicants that night near the park and spoke to them outside the home where F lived with her father.  Her father was away in Sydney attending to urgent family business.  P was staying with F that night.  There was no adult present or available.  Melissa's shoes were identified by her that night at the F residence.  The following day the police obtained a search warrant.  Again no adult was present but another girl named Samara, who was involved in the subsequent assault, was there.  When police explained what they were looking for F handed the property taken from the complainants the previous night and agreed to be interviewed.

The applicants substantially confirmed the account of what had occurred given by the complainants.  The stolen money had been used to buy sweets.  P said that she had a very bad temper and got worked up.  She agreed that she threatened to beat and half kill the complainants and that she had rammed one of the girls' heads into a chair at the park.

The applicants were arrested on 15 November 1996 and granted bail.

Count 7

The events the subject of count 7 occurred on the afternoon of 26 November.  The complainant was a 14 year old student at Macgregor State High School.  She was at Garden City planning to catch a bus home.  As she walked through the shopping centre she saw P, whom she knew from school, who asked her if she could borrow a dollar.  The complainant said that she did not have a dollar and P called her a slut.  She left that area but saw later P who was then joined by F whom she also knew from school and four other girls.  When she was outside the shopping centre and near the bus stop she heard P call out "slut slut you know who you are".  The complainant said that she had a name and P replied "yeah, the ugly one".  The complainant kept walking and was kicked "in the backside" by P who then grabbed her by the hair pulling her ponytail and forcing her head back.  P told her not to get smart or cheeky and F added "you deserve what you get".  P continued to pull the complainant's hair and made her apologise which she did.  P let her go and walked away.

The complainant walked towards the bus stop when F called to her to come back which she did because she believed that F would have run after her had she not done so.  F then said to her "you deserve what you get" and P and three others came up, P challenging her to a fight.  The complainant's hair was grabbed again by one of the companions and she was verbally abused.  She was punched in the stomach with a fist by Samara who had been staying with F and P on the night of the earlier assaults.  The complainant was told by P to get down onto her knees which she did, told to bark like a dog and to apologise to P.  She was told to act like an American Indian which she did and then told again to get down on her knees.  She was punched on the left side of the head by Samara.  F said "you'd better even it up" and the complainant was punched again on the right side.  As a result of this punch one of her earrings came out.  She was told that she could get up and go and had gone about ten metres when F called her back again.  She was told to get down on her knees and crawl and bark like a dog.  She complied while P rode on her back.  Another girl, not part of the applicants' group, came up and said "can you leave her alone there's no need for that" to which F replied "shut up or you'll be next" and the girl walked off.  Some further cruel teasing about bus money occurred before the assailants left the complainant.

She had missed her bus and walked with a friend to her home where she was given a lift home and then contacted the police.

The assailant Samara who was aged 16 gave a statement to the police which confirmed the complainant's account of the involvement of P and F.  She had no previous criminal history and was punished by the police with a caution.

F was spoken to by the police on 5 December and P on 18 December in respect of this incident.

The court below had no victim impact statements provided to it.

Pre-sentence reports

The court below had the benefit of pre-sentence reports in respect of each girl and a representative of the Department of Families Youth and Community Care made submissions.

(i)The report on P

The report from the Department of Families, Youth and Community Care provided background on P.  Her parents were divorced.  She is of Italian descent on her mother's side and Maori on her father's.  He lived at Mount Isa.  The two children from that marriage lived with their mother.  The mother had been in various relationships with men two of which involved domestic violence including with the father of the applicant.  The applicant expressed anger at her mother for moving constantly and not allowing her to settle into any one community.  She resented having few friends and expressed difficulties in maintaining relationships.  She dealt with her problems in an aggressive manner derived from her family experiences.  The applicant indicated that she had experienced racism which had added to her anger and feelings of alienation.  She had a history of truancy and had attended three different schools in 1996.  She had truanted thirty days in the first term of 1997.  She indicated that what she had done in respect of the offences was "stupid" and recognised that the victims would have been scared and sore.  She would have telephoned to say that she was sorry but was precluded from doing so by the conditions of her bail.  She acknowledged that she had a bad temper, got angry and would be willing to receive help.  The writer of the report accepted that the applicant was genuinely upset about the incidents but believed that P was capable of "doing this again unless assisted with her behaviour".  The report indicated that a probation order would be of benefit to the applicant.  The Mount Gravatt area office was then establishing a probation group specifically designed to meet the needs of young women in the juvenile justice system which would address anger management, victim awareness and provide a counsellor experienced in matters such as divorce, unsettled childhood, racism and self-esteem.  Because of P’s poor education record facilities were to be provided to support her in her return to school.  It was proposed that if a probation order were made the department would employ an adolescent youth worker to assist her until she demonstrated maturity and responsibility in her own life.  The applicant's mother would be offered a place in a parent support group established to assist parents with difficult children.  The report concluded

"The defendant child's needs for education is critical.  Support and supervision for this will be provided throughout her period of probation.  The need for structure to assist the defendant child with feelings of security and stability will enhance her ability to change her behaviour and improve her self-esteem.

It is my belief that the defendant child's offending behaviour is a cry for help.  Unless this young woman is rehabilitated her life will continue to go in the wrong direction.  Ultimately if the outcome is successful, both the community and the defendant child will have benefited."

The reports on F

In addition to a pre-sentence report prepared by the Department of Families, Youth and Community Care a report was also prepared by Mr G Dangerfield, psychologist.  The departmental report noted that the child was of Philippino descent on her mother's side and Australian on her father's side.  Her parents divorced when she was seven and she lived with her mother until she was eleven.  Thereafter she lived with her father.  The report noted that lack of supervision and discipline had played a substantial part in her offending behaviour.  Her father admitted before the court that he was to blame for his daughter's wrongdoing in as much as he worked at two jobs and was not at home until 8.30pm and did some week-end work.  A good relationship existed between the father and daughter.  Adverse comments about her conduct were made from her previous schools although the applicant denied any problems at school.  The applicant expressed regret to the departmental officer for her wrongdoing and sorrow that she had shamed and disappointed her father.  She was unable to give any explanation for the offences.  It is this factor which particularly caused concern to the departmental officer considering the sentencing options and was no doubt the reason for a psychological assessment.  The report noted that the applicant  had high self-esteem, was of good academic ability, stable in a new school and had a good relationship with her family.

The report concluded that the applicant was a young woman in "crisis" and considered that "appropriate consequences and supervision could rehabilitate and change the direction in which she has been heading".  It was conceded that she was "tough" and favoured aggression as a method of problem solving.  It was suggested that an immediate release order with probation could provided strict supervision and the opportunity for her to become involved in intensive counselling to develop negotiation, cooperation and mutual problem solving skills while a period of probation would allow those strategies to be maintained.

The applicant presented to Mr Dangerfield as "hostile, defensive and wary".  It appears that she was given no notice of the intention to assess her psychologically and this may have accounted for some of her hostility.  The contact took about two hours.  The abilities assessment conducted by the psychologist placed her in the average range but he noted that they may be an under estimate of her abilities.  The applicant depicted her family life as very normal with a low level of conflict in which family members were allowed to express themselves and in which high importance was placed on being an individual.  Her personality profile showed marked competitiveness, dominance and aggression.  She was not revealed to be an impulsive person and showed a high degree of self-control.  Mr Dangerfield concluded that overall the applicant was a very strong personality who would be prone to aggression and dominance in social situations and capable of being calculating in an attempt to dominate others.  He added that this was balanced by a high degree of warmth "and connectedness with others".  She had leadership qualities and was at risk of further aggressive action unless she received appropriate social skills training and consequences for her actions.  He concluded that "from a psychological point of view it is important that F experience some consequences for her aggressive behaviour so that she can learn that such behaviour is not acceptable."  He also recommended that she learn acceptable ways of dealing with conflict with others and the need to be more sensitive and respectful to others.  He recommended that she be involved in counselling and therapy that emphasised those goals as well as anger management and skills training for conflict situations.

In the course of submissions made by an officer of the department his Honour discussed with her the positive features of detention centres for children.  He said at (R44)

"... Detention should be a place where, you know, children can be taught, taught to be moral, to be disciplined and to come out better than when they went in, not worse than when they went in."

Miss Wills, the departmental representative responded

"Experience has shown us that often children who are detained come out not having rehabilitated but, in fact, just the opposite, they have learnt skills that they really didn't need to have."

Grounds of Appeal

Both applicants seek leave to appeal against their sentences on the ground that they are manifestly excessive.  In the case of P it was submitted that she had recognised the inappropriateness of her behaviour and had written an apology to the victims on the day that she was sentenced.  It was submitted that in view of the provisions of the Juvenile Justice Act 1992 and in particular s. 4(c)(i) and s. 109(2)(e) that it was an incorrect approach to impose a detention order of a fairly short duration on such a young first offender who had prospects for rehabilitation.

In the case of F it was submitted that rehabilitation remained an important consideration and that an immediate release order under s. 176 of the Act would permit strict supervision together with appropriate rehabilitation counselling.

Principles

The principles to be applied in respect of these young offenders are to be found in the Juvenile Justice Act 1992.  Section 3 provides inter alia that the Act provides a code for dealing with children who have committed offences and recognises the importance of families and communities in the provision of services designed to rehabilitate children who commit offences and to reintegrate them into the community.  Section 4 sets out the general principles underlying the operation of the Act.  Subsection 4(b)(i) provides that a child should be detained in custody for an offence "only as a last resort".  Subsections 4(e)(i) and (ii) provide that a child who commits an offence should be held accountable and encouraged to accept responsibility for the offending behaviour and punished in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways.  The age and maturity of a child are relevant considerations in a decision made with respect to the child, s. 4(g).

Part 5 of the Act deals with sentencing generally.  Section 108(1) makes it clear that a child must be sentenced in accordance with the provisions of the Act and nothing else.  The sentencing principles as are relevantly applicable to these applications are set out in s. 109(1) and include the nature and seriousness of the offence, the child's previous offending history, any impact of the offence on a victim, and a fitting proportion between the sentence and the offence.  Subsection (2) provides for special considerations on sentencing including that a non-custodial order is better than detention in promoting a child's ability to reintegrate into the community, and that the rehabilitation of a child found guilty of an offence "is greatly assisted by" the child's family and opportunities to engage in educational programs and employment.  Section 109(2)(e) provides:

"A detention order should be imposed only as a last resort and for the shortest appropriate period."

A court may make a detention order against a child only if it has ordered received and considered a pre-sentence report, s. 164.  It may make a detention order against a child only if after considering all other available sentences and taking into account the desirability of not holding a child in detention it "is satisfied that no other sentence is appropriate in the circumstances of the case", s. 165.

An immediate release order is a detention order but is available to provide for a final option instead of the detention of a child by allowing the court immediately to release the child into a structured program with strict conditions, s. 175.  Such an order must be supported by the pre-sentence report and must require the child to participate as directed by the chief executive in an appropriate program for a period not longer than 3 months.  It is thus abundantly clear that the legislature intended that young offenders should not be sentenced a period of actual detention unless every other available sentencing option has been considered and found inappropriate as a means of dealing with the offending behaviour under consideration.  This policy is reflected in the Penalties and Sentences Act 1992, s. 9(4) in respect of young offenders subject to that Act and has been the approach of courts prior to the passage of that Act as was recognised in Bainbridge (1993) 74 A. Crim R 265 at p. 268.  The approach to an application for leave to appeal against sentence by a juvenile offender sentenced under the Juvenile Justice Act is thus different from considerations which apply to the review of sentences imposed on adult offenders.

The Sentences

In sentencing the applicants his Honour below made reference to the attack on the first complainants as a "protracted, gratuitous, intemperate assault".  He expressed concern that the victims were school children who were "assaulted, insulted, abused, humiliated and injured" and that the abuse and assaults were for no purpose other than to satisfy their "perverse pleasure and sickening sadism".  His Honour observed that parents "of children expect the law to exert its authority to protect their children from predatory attacks such as these," and the "law will not disappoint them on this occasion".  In considering the appropriate sentence to impose his Honour stated (R52):

"As a general rule, the Court leans in favour of non-custodial sentences where children are concerned.  There are times, however, when the circumstances of the offence are such that the Court cannot dispose of the matter in a non-custodial way.  It is, I think, wrong to close one's eyes to the political reality that certain highly visible serious offences evoke community outrage or fear which only punitive sanction can mollify.  There are some crimes, which, of their nature, are so serious and so shocking to the conscience of the community that anything short of a custodial disposition would do nothing to assuage community concern.  I think in the classification of cases that come before this Court this case falls into the type I have just referred to."

His Honour noted that P was a very youthful first offender but said (R53)

"Nevertheless, it is not every first offender who can avoid a custodial sentence.  However, the fact that she is a first offender is a matter to which I must give due weight, but it is not in every case that youthful first offenders can expect to avoid a penalty of detention being imposed.  It is true that as a general rule Courts are reluctant impose a custodial sentence on a first offender, especially a youthful first offender.  However, one must have regard to all the circumstances of the case ...

There will be times when the general rule will give way to an overriding public interest in punishing young offenders guilty of serious offences which are an affront to the principle of upholding the dignity and authority of the law and which constitute a serious threat to public safety."

The importance of rehabilitation in respect of young offenders was discussed by this Court in Bainbridge.  Referring to s. 9(4) of the Penalties and Sentences Act 1992 the Court observed at p. 268:

"That provision gives legislative support to the view which, as appears from the above document, has long been the view of courts with respect to youthful first offenders.  It need hardly be said that the younger the offender generally the greater is the chance and consequently the desirability of rehabilitating that person without requiring him or her to undergo the rigours of imprisonment;  there are, of course, some cases which are so serious that notwithstanding youth and the absence of relevant previous convictions, the offender must go to gaol."

That section provides that a court may impose a sentence of imprisonment on an offender under the age of 25 years who has not previously been convicted only if the court having considered all other available sentences and taking into account the desirability of not imprisoning a first offender is  satisfied that no other sentence is appropriate in all the circumstances of the case.

In a number of cases with features similar to the present this Court has had occasion to comment on the appropriate approach to the sentencing of a juvenile under the Juvenile Justice Act.  In A CA No 25 of 1997 the applicant, aged 14 years at the time of the offence, was sentenced to six months' detention with an order that he be released after serving 50% for his part in a schoolyard assault on a boy aged 13 years by two other boys.  The detention imposed was sought to be justified by reference to the community interest in deterrence and the consequences for the victim which in that case were serious.  The President stated at p. 4:

"However, that is not as has been said on numerous occasions the appropriate first question to be asked when the person to be sentenced is a juvenile."

His Honour indicated that the applicant's prospects of rehabilitation together with his own mitigating circumstances had not been given sufficient recognition by the sentencing court.

In Parsons CA No 477 of 1996 the court noted that the factors which most influenced the Magistrate below in imposing a four month detention order on a 14 year old girl with no criminal convictions who seriously assaulted another 14 year old girl in company, were the seriousness of the assault, the prevalence of such offences and the need for general deterrence.  Davies JA observed at p. 4:

"These are no doubt important factors but, having regard to the principles to which I have just referred, [in the Juvenile Justice Act] so too are the facts that this child has no previous criminal convictions of any kind and, apparently through no fault of her own, has a serious anger control problem caused by her family upbringing, in particular her father's conduct towards her."

The Court concluded that a non-custodial sentence was within range and that being so a non-custodial sentence therefore "should have been imposed" having regard to the provisions in the Juvenile Justice Act.

In L CA No 117 of 1995 an offender aged 14 years and 9 months was sentenced to a detention order of one year coupled with an immediate release order in respect of a number of offences the most serious of which was arson involving a motor vehicle.  He had no previous convictions.  The applicant at the time of the hearing had completed half of the intensive care program which was accepted as beneficial to him.  De Jersey J noted at p. 4 that if the order for detention and immediate release could not lawfully have been made "in that it could not be considered the only appropriate order in the circumstances" then it  should be set aside.  The Court considered that a detention order even when coupled with provision for immediate release was not the only appropriate sentence in terms of s. 165 notwithstanding the gravity of the arson.  Probation and community service were held to be appropriate alternatives once the very young age of the offender and lack of prior criminal history was taken into account.

In C CA No 160 of 1996 the applicant was sentenced to four months' detention with an order for release after two months in respect of what were mostly property offences involving about $17,000 although there was one offence of assault of a teacher.  Further property offences were committed whilst on bail.  The applicant was between 14 and 15 years when the offences were committed.  The Court observed that "short periods of incarceration are generally undesirable.  As the Act emphatically recognises, this is especially true for juveniles with appreciable prospects of rehabilitation."

Mr Rafter referred to R v. Rowe and Talbott CA Nos 149 and 152 of 1996.  Although a matter to which the Penalties and Sentences Act applied it is of some assistance as the circumstances of the offences involved an unprovoked very serious assault on a young man.  The applicants, 17 year old young men pleaded guilty to assault occasioning bodily harm whilst in company.  The victim of their assault was a 16 year old school boy whom the applicants violently assaulted at a party at which they were all guests.  They were all affected by liquor.  They had left their victim unconscious in a paddock in the night with no concern for his safety.  The assault was particularly brutal and the injuries were described by the doctor as indicating one of the worst assault cases that he had seen over recent months in the accident and emergency section of the hospital to which the victim was admitted.  The assault had psychiatric consequences for the complainant.  A sentence of 18 months' imprisonment to be suspended after serving 3 months with an operational period of 2 years and a conviction recorded was imposed below.  The sentencing judge had observed that there was a hardening of attitude by the courts relating to offences of serious personal violence and emphasised the need for protection of the public from such violent assaults.  The seriousness of the assault and the consequences for the victim were noted by Ambrose J with whose reasons the other members of the Court agreed.  However his Honour noted that the making of an intensive correction order pursuant to Part 6 of the Penalties and Sentences Act was not canvassed below and had that occurred it was likely that serious consideration would have been given to making such an order.  An immediate release order under the Juvenile Justice Act is similar to an intensive correction order made under the Penalties and Sentences Act.  His Honour observed at p. 7

"Neither of the applicants has any criminal antecedents and the prospects for their development as gainfully occupied law abiding members of society could only be lessened by their incarceration for a period of three months in prison where they would inevitably be subjected to pressures to maintain and develop anti-social attitudes by some of the persons with whom they would come into contact in that environment."

The Court ordered that the applicants serve a sentence of 12 months' imprisonment by way of an intensive correction order.  It is of course the case that children are detained not in a prison but in a youth facility but the observations made by his Honour may be applied to juvenile detainees particularly very young offenders who might be incarcerated with older and more hardened juvenile offenders.

P

It is tempting to suppose that P being younger than F had come under her influence in committing the serious assaults on the first complainants and the humiliating conduct upon the second complainant by the year's disparity in their ages.  However it seems clear from P’s account of what had occurred and her attitude to what she was doing that she  lost her temper in respect of the first complainants and gives no suggestion that she was in any way urged on in her offending behaviour by F.  She seems to have played a much more dominant role than F in the second offence.  There is no doubt that his Honour's characterisation of the assault on the first complainants as vicious, prolonged and unprovoked was correct.  The three victims suffered gross indignity and humiliation and in the case of Tracey serious injury.  Even without the benefit of information about the psychological effect of the assaults on them there could be little doubt that the complainants would have suffered continuing distress as would their families.

A consideration of P’s background, her age, that she had no previous convictions and had potential for rehabilitation were she to be given the opportunity of guidance and supervision makes it clear that a substantial period of probation was an appropriate sentence to impose upon her notwithstanding all the bad features of the assaults and that the second occurred whilst on bail.  Therefore in my view consistently with the principles of the Juvenile Justice Act that sentence should be substituted for the sentence of detention.

F

There were additional serious factors to consider when sentencing F which included the previous assault in 1995 and the failure of any satisfactory mitigatory explanation for her wrongdoing.  It is this latter matter which is most concerning and would cause a sentencing court to reflect carefully on the appropriate penalty.  It is clear that she is in need of guidance, direction and discipline if she is to become a worthwhile member of the community and not further offend.  She was given only 3 months' probation in respect of the assault which occurred in 1995 and this would not seem a long enough period to deal with her needs.  That F engaged in further offensive conduct whilst on bail is another serious factor.  The previous assault and the matters raised in both the departmental report and the psychologist's report suggest that there were no mitigating circumstances such as a personal problem with anger control such as P experienced.  These factors suggest that a detention order was justified.  She is however still young being only 15 years with an ambition to complete her education.  In my view his Honour ought to have concluded that, provided there was available an appropriate structured programme with strict conditions in which F could participate upon release under an order made pursuant to Subdivision 2 of Division 7 of the Juvenile Justice Act, appropriate orders would have been a detention order together with an order for her immediate release into such a programme.  Such orders would have sufficiently marked her serious wrongdoing but also enabled a strict supervisory programme to be implemented so that she could recognize the consequences of her offending conduct whilst allowing her a real prospect of rehabilitation which may well be lost should she be required to serve a term of detention in a centre.

However the pre-sentence report considered by his Honour, whilst it indicated that F was suitable for release from detention under an immediate release order, failed to indicate that an appropriate programme in which she might participate was available on her release under such an order.  The report should have identified the programme including its conditions.  In those circumstances his Honour ought to have adjourned the sentence hearing in order to obtain a further pre-sentence report stating whether an appropriate programme was available and, if so, what it was, including its conditions.  His Honour would then have been in a position to determine whether, assuming F was willing to comply with the requirements proposed, such an order should have been made.

Conclusion

Both applicants have been in detention since their sentence was imposed on 24 March 1997.  Unsuccessful applications were made for bail pending the hearing of the applications to appeal against sentence.  I would give leave to appeal and allow the appeal in the case of P.  In her case the orders were made on 24 April 1997 with reasons to be published.  Those orders were to set aside the sentences imposed below on counts 1 and 2 and in lieu order that she undergo probation for 2 years concurrent with the sentence of probation imposed below with respect to the other counts and order, as was the case below, that no convictions be recorded.  In the case of F I would adjourn the application for one week and order that, in the meantime, a further pre-sentence report be obtained indicating whether an appropriate programme in which F may participate is available if an immediate release order were made and setting out the terms of that programme including its conditions.