R v J; Ex parte Attorney-General
[2001] QCA 216
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- R v J; Ex parte Attorney-General[2001] QCA 216
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R v J; Ex parte Attorney-General[2001] QCA 216
R v J; Ex parte Attorney-General[2001] QCA 216
COURT OF APPEAL
McMURDO P
HELMAN J
MUIR J
| CA No 5 of 2001 | |
| THE QUEEN | |
| v. | |
| J | Respondent |
| and | |
| ATTORNEY-GENERAL OF QUEENSLAND | Appellant |
BRISBANE
DATE 01/06/2001
JUDGMENT
THE PRESIDENT: The respondent pleaded guilty in the Ipswich District Court on 13 November 2000 to seven counts of rape, three counts of indecent dealing and one count of attempted rape. The offences occurred between 1975 and 1979 when he was 16 years old. He was sentenced to two years' imprisonment suspended after six months with an operational period of four years. The appellant, the Attorney-General, appeals against that sentence on the basis that it is inadequate and also that the learned primary Judge erred in concluding that a term of imprisonment of two years was the maximum period of imprisonment that could be imposed.
The offences, as the learned primary Judge recognised, were extremely serious. When he was about 13 or 14 and his sister, "S", was aged 10 the respondent pulled a wooden crate over the top of them, touched her on the vagina, took her underwear off and lay on top of her. When she screamed he hit her across the face and told her to shut up. He then raped her and ejaculated inside her. She was bleeding and feared she might bleed to death. The respondent told her to shut up or he would get her.
On another occasion he touched "S" on the vagina in the bath. She rubbed soap into his face and he retaliated by pushing her head under the water. He then touched her on the vagina again, made her get out of the bath and lie on the floor and again raped her. He said if she told anyone about it he would kill her.
On the next occasion after a school fete he placed his hand over her mouth and raped her as she sat on his lap.
On another occasion he told her that if she stole a toy truck for him he would never touch her again. When she did so he told her that unless she went into a cane field with him he would tell her mother that she stole the truck. He then raped her in the cane field.
On two other occasions, he touched her on the vagina. On yet another occasion, when "S" was aged between 12 and 13, he asked her to put a band-aid on his finger in her mother's bedroom. He closed and locked the door, pushed her onto the bed, ripped the buttons off her shirt and raped her.
S's victim impact statement describes her life as -
"an emotional roller coaster. I have attempted suicide because of depression. I constantly feel like I'm crazy and unloved. I'm currently on antidepressants and have been for quite some time. I have two boys who are not in my care because I feel like an unfit mother at times because I sometimes let this abuse happen because I could not fight back. I sometimes still have nightmares about what happened. I am currently seeing a counsellor to help me deal with everything that I feel."
Her relationship with her mother, her children, especially her sons and with males and especially her partner have suffered.
The complainant "F" was eight years younger than the respondent. When she was eight and he was 16 he locked the front door of the house and said, "Nobody is going to hear you. It's no use. I am going to have sex with you. Since you are still a virgin I am going to be the first one to have sex with you." He held her down on the bed and said, "It's no use trying to get away because no one will hear you." He pulled off her underwear, said it was going to hurt a little bit and there might be some blood but she should not worry about that because that was common for the first time. He pulled down his shorts and raped her telling her that if she struggled it would hurt even more and he had to keep going until he ejaculated. When he was finished he told her she could have some money but if she told anyone she would not get the money.
On another occasion he pushed his penis into her mouth and on a third occasion he repeated this behaviour and then raped her.
"F's" victim impact statement revealed that the respondent's behaviour made her fear for her children's safety. She had feelings of low self esteem, depression, felt worthless, dirty and had nightmares about this conduct. She too is now receiving counselling, is on antidepressants and has been suicidal.
The respondent's sister, "K", was six years younger than him. When she was aged between nine and 11 and he was 15 to 16 years old, he came into her room wearing only a T-shirt, pulled down her pyjama pants and tried to put his penis into her vagina. She screamed but he slapped her face splitting her lip.
"K" has suffered intimacy problems in her personal relationships, is obsessively over protective of her daughters and has entered into a number of unsuccessful and sometimes violent relationships.
The respondent is now aged 37. He has an extensive criminal history for minor offences of dishonesty resulting in fines and periods of imprisonment up to 12 months. He has a conviction for aggravated assault on a female in 1985 for which he was fined $100 and a conviction for assault occasioning bodily harm and behaving in an indecent manner in 1988 for which he also received minor fines. He has no convictions for significant offences of a sexual nature. It should be noted that he has not committed any offences for 12 years.
A psychologist's report prepared by Mr Peter Jordan stated that the respondent was living with his wife and their four children aged from 6 to 18 months. He has two other children from a previous relationship who live nearby. He is currently unemployed. At the time of these offences he lived with his mother and stepfather with whom he did not get on. His stepfather left the home in about 1978. He did not get on particularly well with his sisters. He was frequently assaulted by his stepfather. He described a family within which sexual abuse was endemic. His mother and stepfather were frequently absent at work and there was little or no supervision of the children in the house. He virtually lived on the streets from early adolescence and developed a problem with drugs and alcohol. In recent years he has received counselling from Alcoholics Anonymous and from other centres. He rarely attended school once he was of high school age and spent some time at Innisfail special school which suggests he has mild intellectual impairment.
He has some functional literacy and numeracy but presented as a person of borderline intellectual capacity or possibly mildly intellectually impaired.
Because the respondent was a child at the time he committed these offences s.107B Juvenile Justice Act 1992 has application. That section provides:
"107B.(1)Subject to subsections (2) and (3), a court sentencing an offender as an adult under section 105, 106 or 107A has jurisdiction to sentence the offender in any way that an adult may be sentenced.
(2)The court must have regard to -
(a)the fact that the offender was a child when the offence was committed; and
(b)the sentence that might have been imposed on the offender if sentenced as a child.
(3)The court can not order the offender -
(a)to serve a term of imprisonment longer than the period of detention that the court could have imposed on the offender if sentenced as a child; or
(b)to pay an amount by way of fine, restitution or compensation greater than that which the court could have ordered the offender to pay if sentenced as a child.
(4)Subsection (3) applies even though an adult would otherwise be liable to a heavier penalty which by operation of law could not be reduced."
At the time of the commission of the offences the relevant sentencing options were under s.62 or s.63 of the Children's Services Act 1965. The seriousness of the offences made it likely that the respondent would have been sentenced either under s.62(1)(g), an order that he "be committed to the care and control of the director for a period not exceeding two years"; or under s.63, an order that he be "detained during Her Majesty's pleasure". There was no suggestion this was a case where a prison sentence under s.62.1(i) was appropriate although that sentence was theoretically open. The prosecutor at sentence and the appellant today submits that a term of imprisonment of six to eight years was open because such a sentence was potentially less than an indefinite sentence.
The appellant, who was represented by Mr Byrne QC, contends that the learned sentencing Judge in saying, "I can sentence you to no more than two years' imprisonment", misunderstood the requirement of s.107B(3)(a). Mr Devereaux, for the respondent, contends however that when the learned sentencing Judge's remarks are read in context, it is clear that her Honour has not misconstrued s.107B.
Her Honour correctly identified the sentencing options that could have applied to the respondent if sentenced as a child (s.107B(3)(a)). She then considered the sentence that might have been imposed upon him (s.107B(2)(b)) rejecting the possibility of an indefinite sentence and concluding that on the facts of this case and on the material before her, he would have been ordered to be committed to two years' care and control. In reaching this conclusion, her Honour obviously had regard to the fact that the offender was a child at the time of the offences (s.107B(2)(a)).
When the sentencing remarks are read in context, her Honour's comments, "That being the case, I can sentence you to no more than two years' imprisonment", merely reflect that after considering all the relevant subsections of s.107, she concluded that in the circumstances of this case it would be wrong to sentence the respondent to more than two years' imprisonment. In context it is clear that her Honour did not misunderstand the effect of s.107B(3)(a) of the Juvenile Justice Act 1992.
Mr Byrne QC nevertheless contends that the sentencing Judge wrongly concluded that an indefinite sentence would not have been imposed in this case. The comparable sentences relied upon by Mr Byrne in making this submission in which indefinite sentences were imposed upon juveniles are readily distinguishable from the facts of this case.
This offender had no prior offending history as a child and committed these offences in the background of a very dysfunctional family in which sexual and physical abuse was endemic. Her Honour rightly concluded that had the respondent been sentenced as a 16 year old under the Children's Services Act 1965 on the material before this Court or before her, he would have been ordered to be committed to two years' care and control.
Although the appellant has referred the Court to instances where indeterminate sentences were imposed in other cases of rape, they were not offences which occurred within the context of a grossly dysfunctional family, as here. Nor was there any suggestion that the respondent was at risk of reoffending or committing such offences again in the future.
Although the sentence imposed does seem lenient, bearing in mind the requirements of s.107B of the Juvenile Justice Act 1992, it is not possible in my view to say that it is inadequate. The respondent pleaded guilty, was cooperative with the authorities and despite his many disadvantages in life, has not committed any offences since 1988.
In the unique circumstances of this case, I am not persuaded the sentence is inadequate, justifying intervention on an Attorney-General's appeal.
It should finally be mentioned that at one stage counsel contended that the operational period of four years imposed in this case was unlawful because it offended s.107B(3)(a), but counsel have since conceded that the operational period is not "a term of imprisonment" within s.107B(3)(a). The term of imprisonment imposed here is two years, not four years: see s.144 Penalties and Sentences Act 1992.
For those reasons, I would dismiss the appeal.
HELMAN J: I agree.
MUIR J: I agree. The sentence imposed may seem low having regard to the serious nature of the offences, but that is a product of the legislation constraining the learned primary Judge. I, too, am not persuaded that she erred in the exercise of her discretion.
THE PRESIDENT: The order is the appeal is dismissed.