R v S
[2003] QCA 107
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- Unreported Judgment
- Appeal Determined (QCA)
- R v S[2003] QCA 107
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R v S[2003] QCA 107
R v S[2003] QCA 107
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: |
13 March 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 March 2003 |
JUDGES: | de Jersey CJ, McMurdo P and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal against sentence refused |
CATCHWORDS: | CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS - where applicant pleaded guilty to numerous property offences and six counts of rape – where complainant suffers from cerebral palsy - where applicant sentenced to detention for 4 years to be served cumulatively upon a 12 month sentence – where no recommendation for early release from detention – whether sentence manifestly excessive in that the sentences were cumulative and in not ordering release after the applicant had served 50 per cent of the combined sentence Juvenile Justice Act 1992 (Qld), s 165, s 188 R v A; ex parte A-G (Qld) [2001] QCA 542; CA No 275 of 2001, 28 November 2001, applied R v E; ex parte A-G [2002] QCA 417; CA No 214 and 217 of 2002, 11 October 2002, applied |
COUNSEL: | A Moynihan for the applicant M J Copley for the respondent |
SOLICITORS: | Legal Aid (Queensland) for the applicant Director of Public Prosecutions (Queensland) for the respondent |
THE PRESIDENT: On 22 March 2002, the applicant, a juvenile, pleaded guilty in the District Court of Townsville to five counts of burglary and stealing, one count of attempted unlawful use of a motor vehicle, two counts of unlawful use of a motor vehicle with circumstances of aggravation and one count of stealing. The sentence was adjourned and a pre-sentence report ordered.
On 9 August 2002, he pleaded guilty to an ex officio indictment containing one count of entering a dwelling with intent.
On 6 September 2002, he pleaded guilty to six counts of rape contained in a third indictment. A further pre-sentence report was ordered, this time from the Griffith Adolescent Forensic Assessment and Treatment Centre. Submissions as to sentence were made on 12 December 2002 and on 13 December 2002. The applicant was sentenced to 12 months' detention for all the offences on the first and second indictments and a 12 months' detention for breach of probation. These sentences were all concurrent. On the remaining indictment containing the six counts of rape, the applicant was sentenced to detention for four years to be served cumulatively upon the 12 month sentence. Convictions were recorded for all offences. There was no recommendation for early release from detention.
The learned Judge noted that he considered this sentence to be the least period of detention suitable in the circumstances (see s 165 Juvenile Justice Act 1992 (Qld). His Honour recommended that the applicant attend the Griffith University Adolescent Forensic Assessment and Treatment Centre or any other program considered appropriate and that he undergo substance abuse, victim empathy and anger management and cognitive skills programs. The applicant contends that the effective sentence of five years' imprisonment is manifestly excessive, in that the sentences were cumulative and in not ordering release after the applicant had served 50 per cent of the combined sentence.
The property offences contained in the first indictment occurred between 29 June 2001 and 14 October 2001. The applicant stole items from homes including a bicycle, money and a wallet, jewellery, mobile phones, clothing and shoes. Some of the offences were committed in company with other youths. The complainant in respect of three of these counts, one of which was a burglary, was a 73 year old pensioner. The total property damaged or unreturned was $8,075. The last five counts in that indictment were committed whilst the applicant was on a six month probation order and two good behaviour bonds.
The facts relating to the second indictment concerned the break and enter of a home at 8.50 a.m. on 8 March 2002. The home owner returned to find the front door open and the alarm activated. When she entered the house the applicant ran past her and down the street. He was apprehended shortly afterwards by police. This offence also constituted a breach of probation order and occurred whilst he was on bail for the charges in the first indictment.
The offence constituting the breach of probation involved the applicant stealing a blue BMX bike from a 20 year old male at about 9.10 p.m. on 18 April 2001 in Townsville.
The most serious and concerning offences committed by the applicant are those contained in the third indictment which also occurred whilst the applicant was on probation and on a conditional bail program. The complainant is a 16 year old physically disabled young woman who suffers from cerebral palsy which affects the right side of her body in that her right hip and knee are twisted inwards; she is unable to bend her knee when she walks; her right arm is also very weak; sometimes her pronunciation is affected and her speech slurred. She is the first cousin of the applicant, weighs just 45 kilograms and is four foot nine inches tall. The applicant was described as "a strapping young boy and fairly large for his age". At the committal on 15 February 2002, the applicant's lawyer conceded a prima facie case had been made out after the complainant gave evidence-in-chief and without cross-examination.
The unpleasant facts constituting these offences are as follows. On a day unknown between 15 November and 15 December 2001, the complainant, who was 16 years old, and the applicant were at their grandmother's residence. He asked her to go into the grandmother's bedroom as he had something to tell her. He then said he needed a "scrape", a term synonymous with sexual intercourse. The applicant pushed her on to the bed. She attempted to get away, but he caught hold of her and pulled her back. He then made her perform oral sex upon him (count 1). He forced her to place her hand on his penis and told her to "wank" him. During oral sex, the applicant had his hand on the complainant's head, preventing her from drawing away. The complainant at some stage called out to the grandmother, but the applicant put his hand over her mouth to stop her calling out again. The complainant unsuccessfully attempted to push him off her. He then had sexual intercourse with her and ejaculated over the bed (count 2). Whilst showering that night, she noticed she was bleeding from her vagina.
On 17 December 2001, the complainant was at her home when she saw the applicant at the window. He entered her home and forced her upstairs to her mother's bedroom. She unsuccessfully tried to pull away. He said, "I've got a condom, I stole it from the IGA." He then pushed her on to the bed, holding her down with both hands on her shoulder. He removed his clothes and said, "Wank me." He made her rub his penis with her hands for about two to three minutes. He then forced her on to the floor on her knees and placed his hand on her shoulder, preventing her from getting up. He made her perform oral sex on him whilst keeping his hand on her head so she could not pull away (count 3). He then placed a condom on his erect penis, pulled her shorts and underwear down and had sexual intercourse with her (count 4). When he removed his penis, the complainant noticed sperm inside the blood covered condom. She was scared and hurt. She had a shower and noticed blood coming from her vagina.
On 22 February 2002, the complainant, who had now turned 17, attended the applicant's residence with her niece. The applicant prevented her from moving past him. She sat on the couch because she did not want to talk to him. The applicant sat beside her and asked her whether she liked him any more. Understandably she answered negatively. He said that she was easy to get. He pushed aside her underpants and inserted his finger in her vagina (count 5), removed his shorts and had sexual intercourse with her (count 6). He added, "Don't worry, you lost it to me before, so it shouldn't hurt." He ejaculated over her shorts. She tried to push him off, but he was too strong. He told her to spray herself with deodorant before joining the others downstairs, which she did.
The complainant has naturally been very distressed since these incidents. She has found it difficult to concentrate on her schoolwork and sport and has received regular counselling. Before these offences, she trusted the applicant as her cousin, but she now feels that that trust has been betrayed. She recognises that to achieve her life goals, it is important for her to keep her head up and stay strong; this courageous attitude and determination that the applicant's offending will not interfere with her life or her attitudes towards people is to be commended.
The complainant's mother and the aunt of the applicant also provided a victim impact statement. She feels truly shocked and betrayed by the applicant's conduct which has destroyed extended family relationships. She worries that she may have been able to prevent the offending behaviour if she had acted differently. She observes that her daughter was previously carefree, but since these offences were committed, she has become short tempered and lacks patience.
Under the Juvenile Justice Act 1992 (Qld) the maximum penalty for offences attracting a maximum term of imprisonment of life, namely counts 1 to 4 and count 7 on the first indictment and all counts on the third indictment, is 10 years' imprisonment.
The applicant was 14 years old at the time of all offences and 15 at sentence. He had an extensive criminal history before the Children's Court for property offences including stealing, unlawful use of a motor vehicle, entering premises and committing an indictable offence and break and burglary. He was also found guilty of robbery with personal violence in the Townsville District Court on 12 February 2002 and was ordered to perform 50 hours community service with no conviction recorded. In the Townsville Children's Court on 2 October 2002, he was sentenced to nine months' probation and a nine month good behaviour bond for the offences of receiving, obstructing a police officer and trespass. No convictions were recorded. The applicant was the subject of a 12 month probation order imposed in the Townsville Children's Court on 30 January 2002 and had benefited from various community based orders including probation, good behaviour bonds and community service orders in the past.
The pre-sentence report prepared by an officer of the Department of Families indicated that the applicant was released on bail on 4 March 2002 and as a consequence of his reoffending was returned to custody on 13 March 2002. He was then remanded in custody until he was released on a conditional bail program on 16 August 2002. He performed poorly on his conditional bail program and reoffended with the commission of the serious offences set out in the third indictment. He has spent 170 days in custody on remand for these offences. The report noted the applicant is manipulative and self-centred and uses bullying behaviour to achieve what he wants. He associates with known juvenile and adult offenders and his behaviour is negatively affected by his marijuana and alcohol abuse. The applicant's father died whilst his mother was pregnant with him and the absence of a male role model may have had a detrimental influence on him. He is still immature and egocentric and presents as a medium to high risk of committing further offences, including further sexual offences. Whilst he has expressed sorrow for his actions, it seems this is more for the situation that he has now placed himself in, rather than genuine remorse for the victim. He has successfully completed previous community service orders. If sentenced to a period of detention, the applicant would participate in programs and individual counselling designed to address offending as well as offence specific therapy with a therapist from the Griffith Adolescent Forensic Assessment and Treatment Centre. He would have access to TAFE accredited numeracy, literacy and pre-vocational courses. On his release from detention, he would be placed upon a fixed release order which would enable the Department to assist him in the transition from detention to the community.
The psychological report prepared by the Griffith Adolescent Forensic Assessment and Treatment Centre provided further background information. Because the applicant's father died shortly before his birth, in accordance with Torres Strait Islander custom, the applicant was placed in the care of his paternal grandmother in Western Australia from the time he was aged one until he was four years old, in order to compensate her for the loss of her son. He returned to Townsville when he was five, where he began school. He began smoking marijuana and cigarettes while still at primary school, drank alcohol and has engaged in inhalant abuse. Tests administered indicated that he is far more likely to perpetrate further non-sexual offences than sexual offences, however he remains at moderate risk of committing further sexual offences. His risk of reoffending may be reduced by providing offence specific intervention and helping him to understand risk factors and apply risk management strategies. During the interviews, he shifted from his initial stance of denying the rapes to acknowledging his guilt and shame at his behaviour. He conceded that it was "the biggest mistake" of his life. He keenly feels the loss of a relationship with his biological father, a man who it appears, was highly respected in the North Queensland community. He has an exaggerated sense of entitlement, and with his recent sexual maturity, has a propensity to take advantage of others including in the sexual arena; he has exploited a vulnerable victim in order to gratify his sexual desires. He has indicated a willingness to take part in offence specific therapy, which is available at the Cleveland Youth Detention Centre.
There can be no doubt that the serious nature of the applicant's offending against his vulnerable cousin required a significant period of detention. These offences occurred whilst the applicant was on bail and the subject of community based orders. In addition, the applicant has shown himself to be a serial property offender, continuing to commit property offences whilst on bail and on community based orders for like offences. On the other hand, he was but 14 years old during the period of his extensive offending and did not have the maturity of an adult. The Juvenile Justice Act 1992 (Qld) recognises that he should be sentenced in a manner different to an adult. He has pleaded guilty at an early stage to all counts and the complainant in the sexual offences was not cross-examined.
The Attorney-General appeals against sentence of R v. A ex parte Attorney-General [2001] QCA 542; CA No 275 of 2001, 28 November 2001, and R v. E [2002] QCA 417; CA Nos 214 and 217 of 2002, 11 October 2002, demonstrate that the effective sentence of five years' detention was within the applicable range of the shortest appropriate period of detention able to be imposed in this case after weighing all the competing interests, including protection of the community (see Juvenile Justice Act 1992 (Qld), s 165. Whilst those cases also demonstrate that youth, difficult background and early pleas of guilty may be factors, especially when in combination, that warrant reducing the period to be served to one-half under s 188 Juvenile Justice Act 1992 (Qld), that is not automatically so. Here, the learned primary Judge considered all these matters and determined not to make an order for release after 50 per cent.
It cannot be said that his exercise of discretion in this manner miscarried, or that the sentence was in any way manifestly excessive for this multifarious and serious repeat offending without immediately promising prospects of reform.
I would refuse the application for leave to appeal against sentence.
THE CHIEF JUSTICE: I agree. It was grotesque offending which warranted a substantial penalty notwithstanding the very young age of the offender.
In light also of the applicant's criminal history and the less than optimistic forecast to be drawn from the psychological reports, the effective five year term, the result of the accumulation of the terms, was amply warranted.
The imposition of cumulative terms was specifically warranted by the separation in nature and time between the instances of offending.
The Judge was in no sense obliged to reduce the period to be served from 70 per cent to 50 per cent. His declining to do so involved the exercise of a discretion. He said "I am not satisfied that there are special circumstances under Section 188 subsection 2 of the Juvenile Justice Act such that I should order your release after serving 50 per cent of your sentence and I reach that conclusion notwithstanding your age, your pleas of guilty, your limited criminal history at the relevant times, the length of detention which you will have to serve and the desirability of being under supervision for a significant period after release from detention."
The cases to which the President has referred support the view that a plea of guilty in particular may constitute a special circumstance for the purposes of Section 188 subsection 2, but they do of course not say that where there is a plea of guilty, a Court must take that course.
The discretion accorded by that subsection is limited only by the need to identify special circumstances. Its terms are:
"A Court may order a child to be released from detention after serving 50 per cent or more and less than 70 per cent of a period of detention if it considers that there are special circumstances, for example, to ensure parity of sentence with that imposed on a person involved in the same or related offence."
The learned Judge in this case is to be taken to have concluded that notwithstanding the features to which he referred, there were not in his view special circumstances which in this case warranted exercising the discretion to reduce the 70 per cent to 50 per cent. No doubt he had in mind the gravity of the offending, the applicant's past record and the apparent need for prolonged supervision.
WHITE J: I agree that the application for leave to appeal against sentence should be refused for the reasons expressed by the Chief Justice and the President.
THE CHIEF JUSTICE: The application is refused.