R v DAU; ex parte Attorney-General
[2009] QCA 244
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- R v DAU; ex parte Attorney-General[2009] QCA 244
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R v DAU; ex parte Attorney-General[2009] QCA 244
R v DAU; ex parte Attorney-General[2009] QCA 244
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 28 August 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 August 2009 |
JUDGES: | Holmes JA, Mullins and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | Criminal law – appeal and new trial – appeal against sentence – grounds for interference – sentence manifestly excessive or inadequate – where respondent, a juvenile, pleaded guilty to one count of rape – where respondent sentenced to two years detention, to be released after serving 50 per cent, with no conviction recorded – where respondent younger than complainant – where respondent forced complainant to perform oral sex on him – where respondent struck complainant’s face three times – where respondent 15 years old when offence committed, had no criminal history and had favourable pre-sentence report – whether sentencing judge erred in regarding other comparable cases as more serious – whether sentence manifestly inadequate – whether conviction should be recorded where juvenile commits rape Juvenile Justice Act 1992 (Qld), s 150, s 176, s 184 R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, cited R v JAJ [2003] QCA 554, cited R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154, cited R v PZ; ex parte A-G (Qld) [2005] QCA 459, cited |
COUNSEL: | A W Moynihan SC, with L P Brisick, for the appellant S Hamlyn-Harris for the respondent |
SOLICITORS: | Director of Public Prosecutions (Qld) for the appellant Legal Aid Queensland for the respondent |
[1] HOLMES JA: The Attorney-General appeals a sentence imposed on a juvenile for rape. The respondent was 15 years old at the time of the offence, to which he pleaded guilty. He was sentenced to two years detention, to be released after serving 50 per cent of it. No conviction was recorded.
The facts on which the appellant was sentenced
[2] The complainant, at 17 years and ten months, was older than the respondent. According to a schedule of agreed facts put before the learned judge on sentence, she knew the respondent from the country high school they both attended. They encountered each other at a party on 13 June 2008. The two had been talking. They went outside the premises where the party was held and engaged in some consensual kissing; the complainant said she was “very drunk”. She found herself lying on the ground. The respondent pulled her underpants down to her knees, despite her attempt at pulling them back up, and put his fingers inside her vagina. (This event was not the subject of any charge and was put before the court purely by way of background.) The complainant made an exclamation of pain and started to cry; the respondent desisted, allowing her to pull her pants back up. He told the complainant he loved her and put his arm around her.
[3] The complainant said she continued to cry, but she went with the respondent to a nearby vacant block of land. She next recalled being suddenly on the ground. The respondent pulled her underpants off, and got on top of her with his pants down to his knees. She protested; the respondent hit her in the face with his fist three times, causing some bruising and swelling. He then stood, took her by the hair and put his penis in her mouth, telling her to, “Suck on this”. That event constituted the rape. Immediately following it, the respondent pulled the complainant’s head back by the hair, masturbated in front of her, and ejaculated on her hair and into her mouth, saying, “Swallow this”.
[4] After the episode the complainant was able to dress, leave the scene and seek the help of friends, who in turn contacted police. They spoke to the respondent at his home in the early hours of the following morning. He denied being at the party or knowing the complainant. He was arrested and held in custody on remand for three and a half months before receiving bail. After two breaches of his reporting conditions he was again remanded in custody on 8 April 2009, and was sentenced on 20 April 2009.
[5] A pre-sentence report was obtained. The respondent is Aboriginal. He has no previous criminal history. He was largely brought up by his mother, as a sole parent, in Canberra. Some behavioural difficulties emerged as he reached adolescence; by this time his mother had re-married. The respondent was sent to live with an aunt in the country town where the offence occurred. According to what he told the author of the report, he had developed a pattern of drinking alcohol each weekend, to the point of losing recollection of what he had done. He claimed that on the night of the party he was intoxicated, and had no memory of the offence. The report’s author described him as “a pleasant and polite young person, with a positive attitude”, exhibiting normal social skills and intelligence. He displayed an awareness of the seriousness of what he had done. The factors identified as relevant to the offending were his alcohol consumption and the lack of supervision at the party.
[6] The complainant and her mother provided victim impact statements which made it clear that the rape had a severe and lasting effect on the complainant. She had become solitary and untrusting, and was given to self-harm, in the form of cutting her legs. She had found psychological treatment of no use.
Relevant statutory provisions
[7] The maximum penalty faced by the respondent was detention for 10 years.[1] The principles applicable to the sentencing of a juvenile are to be found in s 150 of the Juvenile Justice Act, and, excluding some matters not relevant here, are as follows:
“Sentencing principles
(1)In sentencing a child for an offence, a court must have regard to—
(a) subject to this Act, the general principles applying to the sentencing of all persons; and
(b) the juvenile justice principles; and
(c) the special considerations stated in subsection (2); and
(d) the nature and seriousness of the offence; and
(e) the child’s previous offending history; and
(f) any information about the child, including a pre-sentence report, provided to assist the court in making a determination; and
…..
(h) any impact of the offence on a victim; and
…..
(k) the fitting proportion between the sentence and the offence.
(2)Special considerations are that—
(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.”
The sentencing
[8] Counsel for the Crown at sentence referred the learned sentencing judge to five authorities: R v PZ; ex parte A-G (Qld),[2] R v JAJ,[3] R v E; ex parte A-G (Qld),[4] R v KU & Ors; ex parte A-G (Qld),[5] and R v A; ex parte A-G (Qld).[6] The learned judge expressed the view that a number of those matters were:
“of a more serious nature than the circumstances here. Many of them involved penile rape. A number of them involved violence done to [sic] a more extensive nature. And, in at least two cases, the age and frailty of the complainants was also a serious aspect of the offences.”
His Honour noted the serious impact of the offence on the complainant and her family. In the respondent’s favour, he observed, were his lack of previous convictions, his early plea of guilty, his remorse and the favourable content of the pre-sentence report. Against him were the gratuitous violence involved in the offence, which, taken with the offence itself, warranted actual detention despite the respondent’s youth. Taking those matters into account, the learned judge concluded that a detention order of two years was appropriate, with an order for release after 50 per cent was served. He recommended that the respondent undertake courses, and be given counselling, in relation to victim empathy and stopping sexual offending.
[9] The learned judge asked the Crown prosecutor to make submissions on whether a conviction should be recorded. Although in her response she alluded to the fact that the respondent was “an older child”, and to the nature of the offence, the prosecutor said that she “wouldn’t press the point”. His Honour decided against recording a conviction, having regard to the respondent’s youth and lack of previous history.
The appellant’s submissions
[10] In this Court, the appellant suggested that the learned sentencing judge might have laboured under some confusion as to the nature of the offence with which he was dealing. The charged offence was a form of penile rape, since it consisted of the respondent’s putting his penis in the complainant’s mouth. His Honour’s distinguishing of the authorities cited by the prosecutor on the basis that they “involved penile rape” suggested that he might have thought the rape in the present case was limited to the digital penetration referred to in the agreed statement of facts.
[11] I do not think, however, that there is any prospect that the learned judge was under any such misapprehension. Earlier in his sentencing remarks he said this, in describing the circumstances of the offence:
“You grabbed her hair and you forced her to perform an act of oral sex on you. That is the offence of rape that is charged against you.”
It is clear, in context, that in his later reference to “penile rape” as a point of distinction, his Honour meant rape involving penile penetration of the vagina.
[12] Counsel for the appellant contended that in any event, the sentence of two years detention without the recording of a conviction failed to give sufficient weight to the serious nature of the offence, to deterrence, and to the need to protect the community, and was manifestly inadequate. He relied on the decisions in R v E; ex parte A-G (Qld), R v JAJ, R v PZ; ex parte A-G (Qld), and R v KU & Ors; ex parte A-G (Qld) to submit that the proper range for a head sentence here was three to four years detention, with the recording of a conviction. It was suggested that the learned judge erred in regarding those cases as involving more serious factual circumstances.
R v E; ex parte A-G (Qld)
[13] In R v E; ex parte A-G (Qld), the 16 year old respondent had pleaded guilty to two counts of rape, four counts of attempted rape and one count of torture. The offences were committed over a five day period on a 30 year old woman who suffered from cerebral palsy and was wheelchair-bound. Apart from four attempts at vaginal rape, the respondent had digitally penetrated the complainant and had put his penis in her mouth. The torture included depriving her of her wheelchair, kicking her, burning her with a cigarette, threatening to kill her with a butcher’s knife held against her throat, and making small cuts on her hand and foot. There was a contested committal hearing with full cross-examination of the complainant. It was observed that the respondent’s plea of guilty was “not evidence of significant genuine remorse”. On the other hand, he had no prior criminal history, and had come from a background of neglect and abuse. He was sentenced at first instance to two years detention, and a conviction was recorded. On the Attorney-General’s appeal, that sentence was set aside and a sentence of four years detention, with release after 50 per cent, was substituted.
[14] Williams JA, with whose reasons Helman J agreed, made this observation, on which the appellant here relies:
“There are a number of cases where juveniles have received sentences in the range three to five years detention for a single episode of rape without any gratuitous violence being involved.”[7]
Williams JA expanded on that comment by referring to the case of R v A; ex parte A-G (Qld) (also put before the trial judge in this case). A was a 16 year old who had raped his frail, near-blind grandmother, muffling her screams with a pillow and punching her. On appeal, a sentence of four years detention, with release after serving 50 per cent, was imposed on him, with a conviction recorded.
R v JAJ
[15] R v JAJ concerned a 16 year old applicant, who, left against his wishes to baby-sit his three and a half year old step-brother, had anally raped the child. He was sentenced at first instance to four years detention to be released after serving 50 per cent, and appealed that sentence as manifestly excessive. That applicant came from a dysfunctional home environment, and had himself been anally raped. He expressed remorse. This Court described his offence as a “shocking breach of trust”. Nonetheless, it was to be considered in the context of his immaturity and disadvantaged background; taken with the mitigating factors of his youth, co-operation with the administration of justice, prospects of rehabilitation and the desirability of lengthy supervision after his release. Those factors pointed to the least sentence of detention being three years, rather than the four imposed. The majority therefore substituted a sentence of three years detention, with release after 50 per cent.
R v PZ; ex parte A-G (Qld)
[16] In R v PZ; ex parte A-G (Qld), the Attorney-General appealed a suspended sentence of three months detention combined with three years supervision. The respondent, who was 15 years old, had pleaded guilty to a number of offences against the 16 year old complainant: two counts of rape, one count of indecent assault, four counts of assault, one count of assault occasioning bodily harm whilst armed, one count of deprivation of liberty and one count of threatening injury with intent to compel a person to smoke a dangerous drug. There are some similarities with the present case, in that both the complainant and respondent had attended a party at which they began consensual kissing. However, when the complainant refused the respondent’s request for fellatio, he pushed her head against a wall. He subsequently approached her and held a large knife to her throat. He prevented her from leaving the party and forced her to smoke cannabis. In coercing her, he twice slapped her face; pushed her to the floor; hit her in the head with a weights dumbbell; and forced her into a bedroom where there were a number of males, threatening that she would be made to give them oral sex. While the complainant was under the effect of the cannabis, the respondent sat on her, preventing her from moving, twice digitally penetrated her vagina, and then pushed a beer bottle into her vagina. When she finally managed to leave the premises, he followed her and pushed her to the ground.
[17] The respondent was described in a pre-sentence report as lacking remorse or empathy and posing a risk to the community. His drug-addicted mother had neglected him as a child. At the time of his sentence, however, he was in a relationship, had a child and was employed. The Court concluded, nonetheless, that having regard to
“the respondent’s cold cruelty to the complainant, his persistence, and his lack of remorse and the absence of any real basis for an optimistic view of the prospects of rehabilitation”
a sentence of actual detention was required. Accordingly, a sentence of three years detention, with release after serving 50 per cent, was substituted in respect of each count of rape.
R v KU & Ors; ex parte A-G (Qld)
[18] R v KU & Ors; ex parte A-G (Qld) involved the rape of a 10 year old girl by nine offenders, of whom six were juveniles aged between 13 and 15 years. Each was sentenced at first instance to 12 months probation, without any conviction recorded. The offences had occurred in what this Court described as an “isolated, economically disadvantaged” indigenous community, and each of the respondents had suffered what the Court recognised as serious personal disadvantage. All had entered early pleas of guilty. They had already completed a significant proportion of the probation originally imposed, and had spent some time living under the shadow of the impending appeal. Each of the juveniles had a substantial criminal history.
[19] In reviewing previous authority, the Court referred to the passage from Williams JA’s judgment in R v E; ex parte A-G (Qld) mentioned earlier in these reasons, and continued:
“More recent decisions of this Court in R v MAC,[8] R v S[9] and R v JAJ confirm that a sentence of up to three to five years detention may be appropriate in the case of juvenile offenders who commit rape and plead guilty to the offence.”[10]
The Court went on, however, to review a number of first instance decisions in which non-custodial sentences had been imposed on juveniles convicted of rape. It concluded:
“The sentences imposed in these cases demonstrate that the sentencing range here extended from lengthy probation orders to significant periods of detention. They do not support a sentence as low as 12 months probation with no conviction recorded as was imposed on the juveniles in this case.”[11]
[20] The Court set aside the sentences imposed at first instance in respect of four of the juveniles, who were aged 14 or 15, re-sentencing each of them to three years probation with a conviction recorded. The remaining two, aged 14 and 13, were sentenced respectively to sentences of three years and two years detention with release after serving 50 per cent, again with convictions recorded. The distinction drawn was that pre-sentence reports and psychological reports indicated that the first group had made real progress in rehabilitation, while the remaining two offenders presented a significant risk of recidivism because of their inability to move away from “negative peer group relationships”.
Was the sentence too lenient?
[21] My examination of those authorities convinces me that the learned judge was correct in regarding their factual circumstances as more serious. In two, R v KU & Ors; ex parte A-G (Qld) and R v JAJ, there was a significant age disparity between offender and victim and the rape was of a much younger child (respectively, a ten year old and a three year old). In the present case, unusually, the respondent was two and a half years younger than the complainant. While this case did, as counsel for the appellant pointed out, involve gratuitous violence in the form of the three punches to the complainant, it was not of the order involved in R v E; ex parte A-G (Qld) and R v PZ; ex parte A-G (Qld). Both of those cases concerned numerous acts of sadistic violence, in one case inflicted on a complainant rendered helpless by physical disability, and in the other on a complainant severely affected by the drug the respondent had forced her to ingest.
[22] As to larger questions of sentencing approach, those cases do not mandate a sentencing range of between three and five years detention for an offence of rape committed by a juvenile. Indeed, R v KU & Ors; ex parte A-G (Qld) describes a range from “lengthy probation orders to significant periods of detention”. So far as the sentences actually imposed in those cases provide a guide to sentencing here, they indicate the appropriateness of a sentence lower than three years detention, given the less serious factual circumstances. In this case, as it seems to me, the learned sentencing judge in setting the head sentence at two years detention, gave the least sentence proper in the circumstances of the case; and in doing so, he met the statutory requirement that the “shortest appropriate” period of detention be imposed.[12]
Should a conviction have been recorded?
[23] The considerations in deciding whether a conviction should be recorded are to be found in s 184(1) of the Juvenile Justice Act:
“Considerations whether or not to record conviction
(1) In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—
(a) the nature of the offence; and
(b) the child’s age and any previous convictions; and
(c) the impact the recording of a conviction will have on the child’s chances of—
(i) rehabilitation generally; or
(ii) finding or retaining employment.”
[24] Counsel for the appellant argued that the nature of the offence here was such that a conviction should have been recorded. He relied on a statement from R v KU & Ors; ex parte A-G (Qld) as to the recording of a conviction for the offence of rape. It is as well to set out the entire paragraph in which the statement appears:
“This offence of rape of a 10 year old by youths aged between 13 and 15 is so serious because of the age of the girl compared to the age of the offenders that a conviction should be recorded. This is especially so as all the offenders had previous convictions for other offences, although not for sexual offences. The recording of a conviction for the offence of rape is the irreducible minimum level of denunciation required by an offence of this gravity, and notwithstanding the resulting application of the Child Protection (Offender Reporting) Act 2004 (Qld). Convictions must be recorded in respect of all the offences committed by the juvenile offenders.”[13] (Italics added.)