Attorney-General v L[1999] QCA 334

COURT OF APPEAL

McPHERSON JA

DERRINGTON J

MACKENZIE J

BRISBANE

DATE 19/08/99

JUDGMENT

RESTRICTED ACCESS TRANSCRIPT

MACKENZIE J:  This is an Attorney-General's appeal against sentence.  The respondent pleaded guilty to one count of common assault and another count of attempted rape which arose out of events occurring over a short period of time one evening.  The respondent was sentenced to 12 months' detention but given the benefit of an immediate release order under section 176 of the Juvenile Justice Act.

The Attorney's complaint essentially is that the immediate release order should not have been made and that the respondent should serve a period of detention.

The respondent was a little over 16 years of age at the time of the offences.  At the time they were committed he was on bail for an offence of robbery in company with actual violence.  That offence concerned the robbery of a taxi driver of his takings, his wallet, his car keys and his mobile phone.

He was sentenced for that offence prior to being sentenced for the present offences and was placed on probation for three years and 200 hours community service in respect of that offence.  He had previously been placed on probation for an offence of wilful damage which apparently involved a neighbourhood dispute.

The offences with which we are concerned occurred at and in the vicinity of a residence at Goodna.  The complainant in the attempted rape count, who was 14, had earlier been assaulted by her boyfriend and took refuge in the house of the complainant on the count of common assault who was 16.

The 14-year-old girl's boyfriend had followed her into the house and threatened both girls with a knife.  After they shouted for help the respondent came with several other youths from a nearby park and disarmed the boyfriend and ejected him from the house.

The respondent left the house but shortly afterwards re-entered it through a window wearing a balaclava.  Although it is not in the transcript of the remarks made on sentence, it appears from a report that he was seen ransacking a room in the house and, when confronted by the complainant in the assault count, he grabbed her and pushed her up against a wall.  Despite his wearing a balaclava the girl recognised him and, after she inquired why he was in the house, he left. 

Shortly afterwards the complainant in the attempted rape count heard a noise and went downstairs.  She saw the respondent and asked him why he had assaulted the other girl.  He then commenced to feel her in a sexual way.  That culminated in his striking her heavily with his elbow and wrestling her to the ground and attempting to have sexual intercourse with her.  He said that he was going to rape her.  The complainant bit his finger, which was over her mouth at that time, and he then ran away.

The material before the sentencing Judge suggests that he was affected to some extent by alcohol on the evening in question.  He was said by his counsel to have an alcohol problem which he recognised and was prepared to address, although at the time the Family Services presentence report was prepared, it did not seem to be the case that he had that degree of insight into his problem.

The Crown Prosecutor submitted that it was an appropriate case for an immediate release order of 12 months.  That is one of the hurdles which Mr Clark frankly concedes that he must confront.

The presentence report prepared by an officer of the Family Services Department was to the effect that the respondent was a suitable candidate for an immediate release order and recommended counselling in respect of the alcohol problem.  The report said that he had completed 150 hours of the 200 hours community service for the robbery offence by the time the report was compiled. 

The report also suggested that while a detention order without immediate release would illustrate to the respondent the seriousness of his offending behaviour, it may not benefit his rehabilitation process having regard to the short criminal history and the department's ability to work with him to address his offending behaviour.  The report noted that the offending period coincided with the respondent leaving school and remaining unemployed with time on his hands.

There is also tendered today a report from the Family Services Officer dealing with the case and the effect of that is that he has successfully completed his immediate release order and has been a compliant person in respect of that and with respect to his probation.  He has not, in particular, demonstrated any difficulty in reporting and there has been no cause for the department to warn or breach him and nor has he re-offended since receiving his immediate release order.

It is against that background that the Attorney-General has appealed on the grounds that the sentence was manifestly inadequate because it failed to adequately reflect the gravity of the offence generally and, in particular, that it failed to take sufficiently into account the aspect of general deterrence and that too much weight was given to factors going to mitigation.

It is, of course, not necessarily fatal to an Attorney-General's appeal that the Crown Prosecutor has made submissions supporting the order eventually made, although it is a factor militating against the success of such appeals; The Queen v. Conquest, CA 395 of 1995.

The essence of the case put on behalf of the Attorney-General was that a sentence with a component of actual detention was necessary because of the serious nature of the offences which were committed while the respondent was on bail for another offence of violence.

Without such a component, it was submitted, there was no real deterrence and it was submitted that an appropriate sentence was 12 months detention with an order under section 188(2) of the Juvenile Justice Act for release after serving less than 70 per cent or without such an order.

In addition to the difficulty arising from the Crown Prosecutor's submissions before the sentencing Judge supporting the making of an immediate release order, there is also the factor referred to in The Queen v. Melano, ex parte Attorney-General (1995) 2 QR 186 to the effect that this Court is sometimes less reluctant in an appeal by an offender to alter the sentence imposed below than in an appeal by the Attorney, especially where liberty is at stake and the effect would be to return someone who is not in custody into custody.

The attitude of the Crown Prosecutor in the proceedings before the sentencing Judge and the reports available to the sentencing Judge suggesting that the rehabilitation of the respondent was more likely to be promoted by the option adopted by the sentencing Judge than by immediate term of detention are factors which we must take into account.

Reference was made to the Juvenile Justice Act making it a special consideration that a detention order should be imposed only as a last resort and if so for the shortest possible period.  That, as was pointed out during argument, begs the question to some extent, because it cannot be denied that some offences are so serious that the preferred principle in the Juvenile Justice Act cannot prevail.

It is indeed the case that attempted rape is a serious offence and in general one would imagine would attract a component of actual deprivation of liberty subject to any particular circumstances in a particular case.

The reality of this case seems to be that abuse of alcohol seems to have been the catalyst for the respondent's offending behaviour on this occasion and one would think on the previous occasions.  That cannot of course be used as an excuse.  Unless the offender addresses his alcohol abuse, he is likely if he comes before the Court in future, as an adult charged with similar offences, to be sentenced to prison rather than being given a further community-based order.

The particular offences committed on this occasion are ones of violence and whatever the outcome of this case it should not be seen as inviting any general approach that a non-custodial sentence is appropriate in such cases. 

However in my view on this occasion the order made by the sentencing Judge was one which was open to her and does not demonstrate any error in principle or result in a sentence which is demonstrably outside a sound exercise of the sentencing discretion.

As I have said, however, there are unusual circumstances in this case and it ought not to be regarded as setting any general principle.  I would in view of what I have said dismiss the Attorney's appeal.

McPHERSON JA:  I agree.

DERRINGTON J:  I agree.

McPHERSON JA:  The appeal is dismissed.