SUPREME COURT OF QUEENSLAND

1. THOMAS JA:  The applicant was sentenced as an adult in the District Court for rape committed by him when he was 15.  That procedure was necessary because of section 105 of the Juvenile Justice Act 1992.  However section 107B of that Act requires the Court to have regard to the fact that the applicant was a child when the offence was committed, and it limits any imprisonment to the period that could have been imposed in respect of detention had he been sentenced as a child.  The maximum detention for rape was 10 years.

2. The learned sentencing judge sentenced the applicant to five and a half years imprisonment.

3. The sentence was imposed after a defended trial before a jury. The learned judge’s sentencing remarks suggest that his Honour was outraged at the way in which the applicant had defended the charge, and particular remark was made of the stress to which the complainant, an intellectually impaired person, had been subjected. His Honour commenced his sentencing remarks by expressing “wholehearted” agreement with the jury’s verdict, and proceeded to describe the applicant’s evidence as “a pack of lies”. His Honour then mentioned the vulnerable personality of the complainant and continued:

“Those of us, including yourself, who had to observe the closed circuit television whilst she was giving evidence no doubt observed how she reacted to the stress of having to come and give evidence and if you were not, then I was pondering how long it would take her to recover from the effort and ordeal of giving evidence”.

4. A little later in stating the details of the offence his Honour stated:

“There was not merely penetration, but there was ejaculation.  That is always a bad feature of rape because independent upon the timing of the act pregnancy can follow.  We know it did not here and you may remember that we were told why, although the jury were not told why.  Perhaps sensibly Miss S has undergone sterilisation to protect herself from either consensual or non-consensual acts of intercourse and ejaculation by males”.

5. His Honour then commented upon the evidence that the applicant had given in his defence:

“The explanation that you tendered to the jury, somewhat unbelievably in my view, casts a slur on Miss S, the suggestion that did so being that she effectively overcame your resistance and embarrassment and manipulated you to the point of ejaculation, then dipped into the bag to see what lollies were in there and smeared herself and her clothing with your ejaculate.  You may be a virgin, as you rushed to tell the jury, but you have a very fertile imagination”.

6. The applicant was himself a hyperactive child with significant cognitive difficulties including poor social reasoning, poor logical reasoning and immaturity.  The complainant was 27 years old and suffered mild intellectual disability arising from Downs Syndrome, with deficits in attention and concentration, and limited understanding of societal behaviour.  The applicant lived opposite the duplex in which the complainant lived.  Prior to committing the offence the applicant was playing a game which involved making skyrockets from dried teabags.  Some time after this the applicant followed the complainant when she returned to her duplex.  He then forced her into the bedroom and had intercourse with her without consent.  He left her in a distressed state.

7. I have no doubt that his Honour’s somewhat emotional comments transgressed a principle that was upheld in Siganto v The Queen^[1].  The pointed reference to the victim’s distress in having to give evidence was plainly a matter that affected his Honour.  Siganto expressly decides that it is erroneous to treat distress occasioned to a complainant by having to give evidence as an aggravating circumstance.^[2]  Indeed no court is entitled to increase a sentence in order to mark its disapproval of an accused exercising the right to be tried or presenting a defence, even if it is perceived to be time-wasting or scurrilous.^[3]

8. These principles are necessary to protect the process of a criminal trial. It would be very dangerous to permit extra punishment to be inflicted because a court perceived a defence to have been conducted insensitively, or with excessive zeal, or even dishonestly. If perjury has been committed it may be separately charged and proved. But until that happens it is wrong that additional punishment be inflicted upon the offender because of the Court’s perception that lies have been told.^[4]  Of course such conduct may properly support an inference of absence of remorse which can be taken into account.  But, this apart, an accused person should not be made subject to any additional criminal sanctions through conducting a defence.  Community sympathy for the victims of crime currently places considerable pressure upon the presentation of a robust defence.^[5] Compensation to victims is a separate issue which should not be permitted to occlude the criminal process.  The right to every citizen to present a vigorous defence must be jealously guarded by the courts.

9. I consider that error is shown in the sentencing process in this matter, and that an excessive penalty resulted. I have already indicated that the applicant had to be sentenced by reference to Juvenile Justice Act principles.  His Honour made no reference to these in his sentencing remarks.  The applicant had no prior criminal history, and committed no offence during the three years that passed before he was brought to trial by which time he was 18.  That is a significant period in his life, and is promising for his prospects of rehabilitation.

10. His Honour did not discuss the appropriate level of sentencing in relation to juvenile offenders, although C^[6] had been mentioned in submissions.  The cases which give some indication of sentencing level in such cases include C, B^[7] and R.^[8]  The circumstances in C (rape by two persons of a 16 year old girl) were slightly more serious than those in the present matter, but C pleaded guilty.  C was 16 years old at the time.  The Court of Appeal reduced his sentence to three years detention with a requirement that he serve 50 per cent.  The circumstances in B and in R, (where sentences of five years detention, to serve 50 per cent, were upheld) were substantially more serious than those in the present matter.

11. One of the most serious aspects of the present case is that there has been a severe impact upon the complainant. She had been living an independent existence although closely supervised by her parents and friends, and had some employment. Her employment and her feeling of independence have been lost.

12. I have the benefit of having read the proposed reasons of Muir J which set out additional circumstances relevant to this matter. I agree with those reasons, and will not again set out the relevant additional facts. In my view the proper sentence in this matter consistently with application of the principles of the Juvenile Justice Act, the decided cases, and having regard to the fact that he is to be sentenced as an adult, is imprisonment for three and a half years.

Orders

1. Leave to appeal against sentence is granted.

2. The appeal is allowed.

3. The sentence below is varied by replacing five and a half years imprisonment with three and a half years imprisonment.

13. MUIR J:  The applicant was convicted of one count of rape after a trial by jury and sentenced on 26 February 2001 to a term of imprisonment of five and a half years.  He seeks leave to appeal against that sentence on the grounds that it is manifestly excessive.

14. The applicant was born on 20 November 1982 and was a little over 15 years of age on 10 January 1998, the time of the offence. He comes from a dysfunctional family and was subjected to bashings by his father from a very early age. The learned primary judge noted that the applicant was a “hyperactive, impulsive child” at the time of the offence. He left school in 1999, having repeated grade 11 without passing. He was assessed by a psychologist as having significant cognitive difficulties, including poor social reasoning and poor logical reasoning. The psychologist reports also that he is immature.

15. He is now in a relationship with a 19 year old woman with whom he has had two children.

16. The applicant has no previous convictions.

17. The complainant was 27 years of age at the time of the offence. She knew the applicant who lived opposite the duplex where she lived alone although closely supervised and aided by her family and friends. She was described in evidence before the learned sentencing judge as having mild intellectual disability arising from Downs Syndrome. That evidence reveals that she has deficits in attention and concentration, limited knowledge and understanding of expected societal behaviours and customs, and substantial impairments in areas of adaptive functioning.

18. Immediately prior to the offence, the applicant and the complainant had a conversation outside her home.  At the conclusion of the conversation, the applicant, uninvited, followed the complainant inside.  He forced her into the bedroom, stripped off her clothes and had non-consensual intercourse with her.  He then departed, leaving the complainant in a distressed state.

19. Although the complainant suffered no noticeable signs of physical injury as a result of the applicant’s conduct, the consequences for her seem to have been grave. Prior to the offence she had been living an independent existence, although, as I have mentioned, closely supervised. The victim’s impact statement provided by the complainant’s parents suggests that the attack on her resulted in emotional disturbance, physical deterioration and a loss of confidence which, in turn, led to loss of her employment.

20. It was submitted by Mr Moynihan, who appeared for the applicant, that the sentencing discretion miscarried because the learned sentencing judge failed to place any or any sufficient weight on a number of relevant matters and improperly placed excessive weight on the way the applicant conducted his defence and on the distress caused to the complainant.

21. In relation to the ground of appeal last mentioned, it may be accepted that whilst a plea of guilty and even perhaps in rare circumstances, the way in which a trial is conducted and the distress caused to a complainant thereby is not a matter to which regard may be had in determining the offender’s sentence.^[9]

22. It is not entirely clear to me from the sentencing remarks that the judge did take into account in determining sentence the impact on the complainant of the trial and the way in which it was conducted. It is, of course, impermissible for the sentence to have been fixed by reference to such considerations.

23. Having regard to the view I take of the appropriateness of the sentence, it is unnecessary for me to express a concluded view on this point. I content myself with the observation that when in the course of making sentencing remarks, a judge makes observations on matters which are irrelevant to the exercise of the judge's discretion, it is not unreasonable to conclude, unless the context dictates otherwise, that the observations have been treated by the judge as relevant to the exercise of the discretion.

24. The applicant was sentenced under section 121(3)(a) of the Juvenile Justice Act 1992 which relevantly provides that -

“In relation to a serious offence that is a life offence, the court may order that the child be detained for (a) a period not more than 10 years; [or (b) a period up to and including the maximum of life, if--

1. the offence involves the commission of violence against a person; and

2. the court considers the offence to be a particularly heinous offence having regard to all the circumstances.”]

25. It is possible to detect in the reasons a considerable degree of indignation on the part of the judge. That is understandable. The offence was perpetrated on an intellectually disadvantaged victim and that, as the judge rightly concluded, was an aggravating circumstance of the offence.

26. Section 109 of the Juvenile Justice Act requires a court to have in mind in sentencing a child for an offence, inter alia, the child’s previous offending history (subsection (1)(e)) and the special considerations stated in subsection (2). Those considerations include –

“(a)a child's age is a mitigating factor in determining whether or not to impose a penalty, and the nature of a penalty imposed; and

(b)a non-custodial order is better than detention in promoting a child's ability to reintegrate into the community; and

(c)the rehabilitation of a child found guilty of an offence is greatly assisted by--

(i)the child's family; and

(ii)opportunities to engage in educational programs and employment; and

…

(e)a detention order should be imposed only as a last resort and for the shortest appropriate period.”

27. The applicant was an adult when sentenced but section 107B(1) requires the Court to have regard to the fact that the applicant was a child at the time of the offence and the sentence that might have been imposed on him if sentenced as a child.

28. Section 107B(3) provides that the maximum sentence can be no longer than the period of detention.

29. Mr Moynihan, who appeared for the applicant, drew the Court’s attention to a number of recent judicial pronouncements concerning the approach to be taken in sentencing youthful offenders, especially those without prior relevant convictions.  Those observations include that of Byrne J in R v Lovell^[10] and of McMurdo P in R v Bird and Schipper.^[11]  At the former reference, Byrne J said -

“Nonetheless, youth remains a material consideration, for the rehabilitation of youthful, even violent offenders, especially those without prior relevant convictions, also serves to protect the community."

30. At the latter reference, McMurdo P, with whose reasons Pincus JA expressed general agreement, said –

“The courts have long recognised that youth in the absence of prior convictions is a significant mitigating factor: this remains so, despite the 1997 amendments to the Act, see R v Lovell and Section 9(4) of the Act.”

31. Some support for the applicant is derived from R v C,^[12] although the court was concerned with other issues such as parity with sentence imposed on a co‑accused.

32. In that case, the applicant was 16 at the time of the offences and 17 when convicted and sentenced. He was sentenced on a plea of guilty to indecent assault, indecent assault with circumstances of aggravation and rape to detention for one year for each of the first two offences and to detention for four years for the third offence with an order that he be released after serving 50% of that period. He and a co-accused took advantage of a 16 year old intoxicated girl at a party. The removed her clothing, inserted fingers into her vagina, the applicant attempted to place his penis in her mouth, they forced her legs apart and the applicant, with the assistance of his co-accused, partially inserted his penis into her vagina. On appeal, the sentence was reduced to a period of detention of three years for the offence of rape. Of course, unlike the applicant, here the applicant in R v C pleaded guilty and showed remorse.  But there were features of the offence in R v C which were more serious than those under consideration.

33. In R v B^[13] the sentence was 5 years with an order that the applicant be released after serving 50% of the sentence.  The applicant was 17 and entered with intent – and had prior relevant criminal history.  Reliance was also placed on R v R.^[14]  There the offence was accompanied by violence.  The applicant there was also 17.  He was sentenced to 4 years imprisonment.

34. Having regard to the foregoing, I have concluded that the sentence is manifestly excessive in that it fails to give sufficient recognition to the background of the applicant, including his limited intellectual capacity, the characteristics reported on by the psychologist, the limited extent of the violence employed, the age of the applicant, his prospects of successful rehabilitation and the absence of a prior criminal record.

35. The applicant, after all, was just over 15 years of age at the time of the offence. His conduct must be viewed from that reference point. I mention also the absence of any suggestion that there is a likelihood of his re-offending. As Mr Moynihan pointed out, he was not charged with any offence between 10 January 1998 and his trial in February 2001.

36. I would grant the applicant leave to appeal against sentence, allow the appeal, set aside the sentence below and substitute a term of imprisonment of 3 years and 6 months.

37. ATKINSON J:  I have had the advantage of reading the reasons of Thomas JA and Muir J.  I agree with their Honours’ analysis of the facts, the relevant sentencing principles and the Juvenile Justice Act 1992 and their conclusion that the sentence is manifestly excessive.

38. An examination of cases involving youthful rape offenders shows that the one which is most useful for comparative purposes is R v C.^[15]  C was 16 years old when he committed the offences for which he came to be sentenced. His sentence of 4 years imprisonment for rape with an order that he be released after serving 50% of that sentence was reduced on appeal to a sentence of 3 years with an order that he be released after serving 50% of that period.

39. The circumstances of the offences were that C and a co-offender, who was 17 years old at the time of the offence, were convicted of indecent assault, indecent assault with the circumstances of aggravation and rape of a 16 year old girl who was extremely intoxicated by alcohol at a party and who was not sexually experienced. The offences involved the application of force upon her but there was only partial penetration of the applicant’s penis into her vagina. However the fact that he had a co-offender made the offences more serious.  The young woman suffered anger and frustration at her powerlessness, developed a distrust of men and dropped out of school in the middle of her Year 12 course.

40. The learned sentence judge had said that given the offender’s youth, in ordinary circumstances he would have sentenced him to a period of detention for 6 years. However there were very important mitigating factors. Like the youthful offender who was the applicant in this appeal, C was immature and impulsive and had a low IQ. He had problems with significant unresolved grief because of his parents’ divorce and a brother who had committed suicide and also suffered from substance abuse. Like the applicant, he had no criminal record and in the long intervening period between the offence and his sentence he had committed no other offences.

41. However, there were two significant differences in C’s case from this case. The first was that not only was C very remorseful and gave an early indication that he would plead guilty, he also offered to co-operate with the prosecution by giving evidence against his co-offender. As Pincus JA held:^[16]

“The Court should not, in my opinion, overlook opportunities to encourage this sort of co-operation.  It is common enough to find that offenders co-operate to the extent of admitting complicity in and supplying information about their own offences; it is much less usual for offenders to assist in the task of getting information about other offenders or supplying evidence to be used against other offenders.”

42. The second significant difference was that C’s co-offender, who was an adult, was sentenced to 4 years imprisonment with the recommendation that he be considered eligible for release on parole after serving 18 months. Because of the Juvenile Justice Act, under which C was sentenced, the Judge could not order his release from detention until he had served 50% of his sentence.  The only alternative was detention with an immediate release order which, while it was recommended in the pre-sentence report, was rejected by the sentencing judge.  C’s co-offender had been sentenced to 4 years imprisonment with a recommendation for release on parole after serving 18 months.  In order to maintain parity, the Court of Appeal reduced C’s sentence from 4 years to 3 years so that, like his co-offender, he could be released after serving 50% of that sentence or 18 months.

43. C’s offences, while serious, did not include the aggravating features that appeared in this case where the applicant raped an intellectually disabled woman in her own home and continued with the non-consensual intercourse until ejaculation. Secondly, although the applicant cannot and should not be penalised for pleading not guilty and requiring a trial of the matter, he does not get the substantial benefit gained by an offender like C who pleaded guilty to the offences.  As Hayne J held in AB v The Queen:^[17]

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known.  Leniency is extended to both offenders for various reasons.  By confessing, an offender may exhibit remorse or contrition.  An offender who pleads guilty saves the community the cost of a trial.  In some kinds of case, particularly offences involving young persons, the offender’s plea of guilty avoids the serious harm that may be done by requiring the victim to describe yet again, and thus relive, their part in the conduct that is to be punished.”

Furthermore, C had offered to assist the authorities in the prosecution of his co-offender.

44. An offender who saves the victim of a sexual offence going through what is generally recognised as the ordeal of giving evidence,^[18] which is particularly significant in a case where the victim is vulnerable because of youth or intellectual disability, is entitled to a significant discount on sentence not just because of the saving to the public purse.  C’s sentence of 3 years detention reflects that significant discount.

45. In all of the circumstances, to achieve consistency in sentence it appears to me that the sentence in this case should be greater than that given on appeal in C’s case with its important mitigating factors. On the other hand, the sentence should not be as great as the sentence of 5 years imprisonment upheld in R v B^[19] where the offender was two years older than the offender in this case, although I note that in B’s case, he desisted from the non-consensual intercourse when the complainant woke up and she indicated that she would not consent to the act or its continuation.

46. In the circumstances, I agree that the sentence of 5½ years was excessive and that the appropriate period of imprisonment to which the applicant should have been sentenced was 3½ years.