R v A[2001] QCA 542

COURT OF APPEAL

de JERSEY CJ

McMURDO P

WILLIAMS JA

CA No 275 of 2001

THE QUEEN

v.

A Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 28/11/2001

JUDGMENT

THE CHIEF JUSTICE:  The respondent pleaded guilty in the District Court to having raped his grandmother at X on 12 April 2001.  He was sentenced on 14 September 2001 at Cairns.  At the time of committing the rape the respondent was 16 years and eight months old, having been born on 7 August 1984.  By the time of sentencing he had reached 17 years. 

The learned Judge sentenced him to 12 months' detention, noting the serious nature of the offence including the use of violence, but forthwith suspended the detention order under section 176 of the Juvenile Justice Act and made an immediate release order requiring the respondent to participate in a rehabilitative program facilitated by Cairns Indigenous Youth Outreach Program staff and departmental officers at Cairns for a period of three months.  The respondent had served 80 days pre-sentence custody.  The Judge did not record a conviction.

As at the time of sentencing the prospect of the respondent's completing the program were not particularly sanguine.  That is because, having been charged in relation to the rape on 19 April 2001 and placed on a conditional bail program, the respondent breached his bail on 8 May 2001 by re-offending.  Bail having been renewed, he again breached the conditions of his bail on 5 July 2001, which led to his being remanded in custody and serving those 80 days pre-sentence custody.

Having been given the opportunity of the three month immediate release order program when he was sentenced on 14 September 2001, the respondent proceeded to breach its conditions by smoking marijuana at the residential facility sometime prior to 12 October 2001.  That resulted in his exclusion from the program, which was a residential program, on 14 October 2001.

He was formally warned and required to attend a meeting with a counselling officer on 25 October and was then placed into the care of his aunt.  He persistently failed after that to attend to the further requirements of his program.  Breach action culminated in proceedings before the same Judge as sentenced him on 14 September 2001.

Dealing with those proceedings last week on 20 November 2001, the learned Judge recorded that she was satisfied that the breach had occurred and that the respondent should not be given any further non-custodial opportunity.  The term of the detention which on 14 September 2001 she fully suspended was 12 months.

She accepted that the respondent had substantially completed the first month of the immediate order program.  She subtracted that one month from the 12 months, and then in addition took account of the 87 days already served in detention.  Her Honour proceeded to reduce the 12 months by an aggregate of four months, consequently ordering the respondent to serve eight months' detention.

As matters stand, therefore, the sentence to which the respondent is currently subject is eight months' detention.  As at today on my calculations he has served a total of 95 days in custody referable to this offence of rape and should be taken in light of her Honour's approach to have completed one month of the immediate release order program.

The Honourable the Attorney-General appeals on the ground that the sentence imposed on the respondent on 14 September 2001, from which the sentence to which he is currently subject derives, was manifestly inadequate for failing to reflect the gravity of the offence generally, in this instance in particular, failing to take into account sufficiently the aspect of general deterrence, failing to recognise the principles of punishment, deterrence, and protection of the community are as important in indigenous communities as they are elsewhere in Queensland, and because the sentencing Judge gave too much weight to factors going to mitigation.

The circumstances of the offence may be taken from this recitation by the Prosecutor before her Honour:

 "The respondent and the complainant were at a family get-together in a house in ['X'].  The respondent is a 52 year old woman, the paternal grandmother of the respondent.  She'd had a few drinks and she decided she'd lie down on the mattress in the loungeroom of the residence.

 During the darkness of the night she was woken by the respondent.  She was woken by him having put a pillow over her face and he was astride, on top of her.  She was startled by this and tried to scream but the attempts were muffled by the pillow. She began to have trouble breathing and attempted to move the pillow from her face and the respondent hit her through the pillow, punched her in the face through the pillow, causing her mouth to bleed.  He then grabbed both her hands and wrists and held them above her head.  He spread the complainant's legs and he, at the time, had his pants on and he raped her.  He placed his penis in her vagina and she describes that he moved up and down inside her and he raped her.  She managed to call out to him, he looked up and was startled.  He got off the complainant and fled through the back door of the house and not long afterwards was located and police noted that he had been drinking.  They attempted to question him in relation to the offence but he declined to be interviewed and was formally charged."

The complainant was only 52 years old but she was described to the learned Judge as frail and elderly and nearly blind.  She suffered bruising and scratches to her lip, wrists and vagina. She was traumatised by the offence, feeling a deep sense of shame in the community.

The applicant had no prior criminal history which could be considered relevant to his treatment.  The learned Judge was influenced, and rightly, by the circumstance that he was a young man and that he was sorry for his actions.

Her reference to his having accepted responsibility "right from the beginning" rather overstated the matter as the respondent had fled the scene and declined to be interviewed by the police, but he did plead guilty at an early stage.

It is difficult to conceive that an offender who, though still a young man aged 16 years eight months, violently raped his frail 52-year old grandmother, and in the course of doing so injured her, should not have been subjected to a substantial term of detention, and even allowing for the plea of guilty and expression of remorse.  The breach of familial trust involved in his raping his grandmother aggravates the seriousness of the case.

I refer to two past cases to support my view as to the need for substantial incarceration.  Bowden, Court of Appeal 472 of 1993, was a 17-year old with a minimally relevant prior record convicted following a trial of the rape of a sleeping complainant in bed with her six-year old son.  He desisted when she awoke.  He was affected by alcohol and was encouraged by others who were older than him.  He was sentenced to five years' imprisonment and was ordered under section 188 of the Juvenile Justice Act to serve 50 per cent of that term.

Watkins, Court of Appeal 63 of 2001, was convicted, following a trial, of the rape of a mildly intellectually impaired 27‑year old woman.  Watkins, also of limited intellectual capacity, was only 15 years old at the time of committing the rape.  He had no prior criminal history and had promising prospects of rehabilitation.  He was sentenced as the result of the appeal, as an adult, to three and a half years' imprisonment.

Mr Farr, who appeared for the respondent, referred particularly to Cushway, Court of Appeal 436 of 1995, where three years was the ultimately imposed term.  That was not a case characterised by additional violence, as here, with resultant injury to the complainant.

Drawing the obvious comparisons and contrasts the respondent in this case should, in my view, have been sentenced to a penalty of the order of no less than four years' detention. 

Absent special circumstances, a child offender is required to serve 70 per cent of the designated period of detention.  See section 188(1).  If there are special circumstances the sentencing Judge may reduce that to a minimum of 50 per cent.

There were no special circumstances warranting reduction in this case, save arguably for the plea of guilty and the circumstance, as emerges now, that the respondent completed one month of the immediate release order program.

Because of the significance ordinarily attaching to a plea of guilty that should, in this case, be regarded as amounting to a special circumstance which, together with the other less significant matter, the completion of one month of the program, would warrant reducing the period to be served to one-half.  It would follow from section 174 automatically that the period of 95 days, if I've correctly calculated, already served, must be counted as part of the two years' detention which will actually have to be served.

That analysis demonstrates the manifest inadequacy of the term of 12 months' detention to which the respondent, prior to the reductions, was subject in consequence of his breach of the sentence imposed on 14 September 2001.

The respondent should have been subjected to detention of the order of four years for this crime, with the special circumstances favouring him, especially the plea of guilty, warranting reduction of the period actually to be served from the usual 70 per cent to 50 per cent.

In my respectful view, the sentence imposed on 14 September 2001 was intolerably lenient and cries out for correction. The learned Judge unfortunately apparently allowed herself to be overwhelmed by circumstances personal to the respondent. 

The sentence imposed ignored, first, the need to signal the community's strong denunciation of crimes of violence involving in this case the violation of a woman's body, none other than the offender's grandmother; second, the need to impose a penalty appropriately deterring the commission of this sort of crime in whatever community the offender be situated; and third, the primacy of the need to protect the personal security of other people, especially women asleep in the sanctity of their homes.

This Court should now impose a four-year term, and I say that notwithstanding that the prosecutor before her Honour proffered a two to three-year term.  That suggested term, while a relevant consideration, of course, does not bind this Court now, and the appropriate term should now be imposed notwithstanding.

Acknowledging sections 109 and 165 of the Juvenile Justice Act, I would record my satisfaction that there is no acceptable reasonable alternative to detention of a substantial order.  The community would reasonably expect that, if not demand it.

I would allow the application and appeal, set aside the penalties imposed on 14 September 2001 and 20 November 2001, and order that the respondent serve four years' detention, to be released from detention after serving 50 per cent of that term, that is after two years.  A conviction would be recorded.

THE PRESIDENT:  I agree with the order proposed by the Chief Justice and with his reasons.

WILLIAMS JA:  I agree.

THE CHIEF JUSTICE:  The order is as I have indicated.