SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree with Chesterman JA that the application for leave to appeal against sentence should be refused.  I also agree with his Honour's reasons, except in one respect.  I am unable to accept that protection of the community from offenders is accurately described as "the first principle of juvenile justice." 

[2] Section 3 of the Juvenile Justice Act 1992 (Qld) provides:

“(1) Schedule 1 sets out a charter of juvenile justice principles.

(2) The principles underlie the operation of this Act.”

[3] Section 2 of the Act provides that the principal objectives of the Act are:

“(a)to establish the basis for the administration of juvenile justice; and

(b)to establish a code for dealing with children who have, or are alleged to have, committed offences; and

…

(d)to ensure that courts that deal with children who have committed offences deal with them according to principles established under this Act …”

[4] The charter of juvenile justice principles in Schedule 1 contains 20 principles.  Neither Schedule 1 nor any other provision of the Act provides, expressly or impliedly, that any one of the 20 "principles" has precedence over any of the others.

[5] Section 150(1) of the Act requires that a court sentencing a child for an offence 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); …”

[6] Special considerations listed in subsection (2) 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

…

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

[7] I consider it unlikely that any one general principle was intended by the Legislature to override the "special considerations".  The fact that protection of the community from offences is the first principle mentioned in Schedule 1, in my view, is of no consequence in weighing the relative importance of that principle and the others in Schedule 1.  If principle 1 is to be regarded as more significant than the other 19 principles, logically it would follow that principle 2 is to be regarded as more significant than principle 3 and so on.  I can see no basis upon which it can be concluded that the Legislature attempted any such prioritisation.

[8]  CHESTERMAN JA: On 12 December 2008 after a two day trial before a judge sitting alone the applicant was convicted of one count of rape and one count of attempted rape.  The rape occurred on about 13 May 2007 and the attempted rape on a date unknown between 14 May 2007 and 9 October 2007.  The applicant formally admitted the acts constituting the two offences.  The trial was limited to the question of the applicant’s capacity to know that he ought not to have done the acts charged against him.  The applicant was born on 1 December 1994.  He was 12 years old at the time of the offences.

[9] Pack DCJ found the applicant had the requisite capacity.  An appeal against the finding was dismissed.[1]  The circumstances of the offences were described by PMcMurdo J:

“[5]The complainant in the first count was a boy aged about four years.  A 13 year old boy heard the complainant call out from under a house where a number of children had been playing.  The boy went to investigate and saw the complainant holding his bottom.  The appellant was present when the complainant said that the appellant put “his dick in my bum”.  The appellant said “no, I didn’t” and then left the scene.

[6]At the time of that first offence, the appellant was living with his mother.  Shortly afterwards, the appellant’s mother rang his father who lived elsewhere.  She asked him to take the appellant into his care and he agreed.  A couple of days after that happened, two police officers came to his house and told the father that they were investigating the appellant for sexually assaulting a child.  When the police had left, the father confronted the appellant, asking him what he had done.  At first the appellant did not answer and then said he did not know.  His father suggested that he had “molested a kid” and asked him where this had occurred.  The appellant said underneath a house.  The father said it was wrong to touch another child to which the appellant replied it had been done to him.  The father said that the same had happened to him but that “I don’t go touching any kid”.

[7]In June or July of 2007 (according to the father’s statement which was tendered at the trial), the appellant’s father was told by another of his children that she had just seen the appellant underneath their house with a younger sibling (the three year old boy who was the complainant in the second count).  This girl’s evidence of what she had seen, as related to police officers in a recorded interview, was the evidence of the second count.  The effect of her evidence was that the appellant was about to do what he had done on the occasion of count one but that he desisted when she arrived and told him to stop.

[8]The evidence of the father and that of his daughter was not challenged.  Although the date of the second event was unknown, it was at least open to the judge to conclude that it occurred after the event the subject of count one, and after the appellant had been confronted by his father about that event.”

[10]  On 5 June 2009 the applicant was sentenced on count 1 to three years detention with a declaration that he had already been detained for 491 days, between 7 October 2007 and 30 January 2008, and between 25 May 2008 to 5 June 2009.  He was ordered to serve 70 per cent of the period of detention.  On count 2 he was sentenced to a term of three years probation with special conditions that he attend the Griffith Youth Forensic Service or such other programme accredited by the Department of Communities and comply with all reasonable requirements of the programme and take such medication as was prescribed by his doctors.  Convictions were recorded for both offences.

[11]  In passing sentence the judge said:

“… the court is very concerned that you might do something like you’ve done again in the future.  The Court very much hopes that that won’t be the case.  You will realise that if you do commit offences like this … Judges have to punish you for what you’ve done.  And partly also, when you have to serve detention or probation, part of the reason … is to try and persuade or encourage other people not to commit offences, such as you have.

Courts have to do what they can … to try and make sure that young children … are very much protected.  It will be in your interest to keep yourself away from young children if you’re having some sort of sexual attraction to them because if you come back to Court again, it won’t be possible to deal with you as leniently as the Court’s dealing with you today.”

[12]  The applicant seeks leave to appeal against the sentence on the basis that three years detention was manifestly excessive.  The applicant does not complain about the imposition of three years probation and does not submit that no detention was warranted.  The argument is that detention in excess of two years was excessive.  The applicant’s particular complaints were that the sentencing judge:

• Did not explain why he decided upon a term of three years detention;

• Did not refer to the principle that a child should be detained in custody only as a last resort and for the least time justified under the circumstances;
• Did not refer to positive indications of rehabilitation;
• Did not give reasons for ordering that the applicant serve 70 per cent of the period of detention;
• Did not properly consider the discretion conferred by s 227(2) of the Juvenile Justice Act 1992 (Qld) (“the Act”).

[13]  The applicant’s counsel conceded that decisions of this Court:

“… such as R v MAC [2004] QCA 317; R v S [2003] QCA 107 and R v JAJ [2003] QCA 554 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 … however none of those cases … involve an offender as young as 12.”

[14]  It may be noted that one of the respondents in R v KU & Ors; ex-parte A-G (Qld) [2008] QCA 154 who was identified as AAC was 13 years old at the time of the offending.  That case involved the rape of a 10 year old girl.  The intercourse was in fact consensual though the child victim was too young to give consent.  AAC had prior convictions for assault and theft.  He was sentenced on appeal to two years detention, to serve 50 per cent.  The case is less serious than the present which involves much younger children violated against their will.  AAC does not support the applicant’s submission that two years detention was the maximum period that could reasonably been imposed.

[15] R v JAJ [2003] QCA 554 may suggest that three years detention was excessive.  JAJ was a more serious case of rape resulting in a term of detention of three years.  JAJ was 16 when he raped his three and a half year old step-brother whom he had been left to look after at home when the adults of the family went out.  He committed the act out of anger and frustration at being left at home.  He was sentenced to four years detention which was reduced on appeal to three. 

[16]  The value of the decision as a precedent is diminished by the fact that in an earlier case, R v A; ex parte Attorney-General of Qld [2001] QCA 542 a term of four years detention was imposed for relevantly identical circumstances.  A, who was also 16, raped his frail 52 year old grandmother.  He muffled her screams with a pillow and punched her in order to subdue her.  He was sentenced to 12 months detention which was increased on appeal to four years.  The Chief Justice (with whom the President and Williams JA agreed) said that A should have been sentenced to a penalty:

“… of no less than four years’ detention.”

[17]  In R v E; ex-parte attorney-General (Qld) (2002) 134 A Crim R 486 Williams JA noted:

“There are a number of cases where juveniles have received sentences in the range [of] three to five years detention for a single episode of rape without any gratuitous violence being involved.”

[18]  The cases therefore do not support the applicant’s absolute proposition that a term of detention of more than two years was excessive.  If it was excessive it can only be by reason of the applicant’s youth at the time of the offending and circumstances particular to him which would indicate that in accordance with s 150(2)(e) of the Act a lesser period of detention should have been imposed.

[19]  The applicant was examined by Dr Stones, psychiatrist, who reported on 19 April 2008 for the purposes of treatment and sentencing:

“Insight

His insight is probably very limited in terms of his ability to understand the effects his behaviour has on others, in particular his victims. I was not really able to discuss this with him because of his refusal to discuss the matters of his offences but it is plain that he continued to indulge in inappropriate sexual behaviour after what for most children would be quite a big shock, and after being told repeatedly not to masturbate in front of others, he continued to do so. This is probably part of a wider picture of (the applicant) being unable to understand other peoples' responses to the things he does even those of a less severe antisocial nature. He is thus unable to recognise when he is doing or saying something which might annoy others, and the repercussions that this brings on him.

Diagnoses

The diagnoses here are of Attention Deficit/Hyperactivity Disorder with the classic features of a poor attention span, hyperactivity in inappropriate circumstances and impulsivity. The other main and probably more serious disorder here is that of a Conduct Disorder, severe level, and this disorder has been present since early childhood.

In terms of his capacity to understand what he has done is wrong and that it may well have very negative effects on the small children he has exploited, I really do not believe that (the applicant) can understand matters at this level. He may well be able to learn that certain behaviours are wrong and certain behaviours are right but only in the sense that these are being imposed upon him by authority and not that he has any inner sense of why these behaviours should be right or wrong. I doubt very much if he can feel any level of remorse for the activities he has been placed in detention for, and I do not believe he in any way can understand the possible ramifications for the children he has assaulted. For these reasons I believe he is quite likely to become a very dangerous young man.”

[20]  A psychological assessment prepared as part of a pre-sentence report by Mr Rowden, concluded:

“Based on test results, (the applicant) is a young person with a moderate to high probability to commit a sexual offense (sic) in the future.  In addition, he displays no remorse for the impact of his actions on others.  Therefore, in my opinion, return to an environment where supervision is not present, will result in a high risk of occurrence of sexual offending.”

[21]  The applicant was also examined by Dr Warlow psychiatrist, who reported on 27 May 2009:

“… (the applicant) presented as … agitated and very defensive.  … he was of lower intellect, and … his language skills and insight were compromised.  There was a lack of insight particularly as regards the effect of his sexual behaviour on others, in the context of having little empathy.  He was also thought to be a solitary person. … Since (the applicant) was around four or five years of age, matters had deteriorated and even more so since around seven years of age.  He had problems including fighting at (the detention centre), having threatened his sisters with a knife, having problems with anger since he was young, especially if he did not get his own way, having a lowered intellect, setting a property on fire … wandering from home … and shoplifting … without any charges.  In addition, he had been found masturbating openly when with his father and also looking at pornography.  He continued to masturbate in the presence of others despite being told not to.  He was found to have excessive interest in the children who lived with the father, particularly when they were changing and, … in the shower.”

[22]  Dr Warlow expressed the opinion that the applicant:

“… had severe Conduct Disorder from early childhood.  He was only able to chose from right wrong if it was imposed by an authority.  He did not show remorse.  In addition … he may have diminished intelligence.  He had ADHD associated with poor concentration, impulsivity and hyperactivity.  … he was not able to return to the family and it would be too hard for him to be supervised in foster placement.  It was thought that he should stay in a place like the (the detention centre) possibly for years or in a long-term psychiatric facility.  It was thought that treatment of the ADHD would assist the Conduct Disorder and learning problems.  In terms of prognosis, it was considered that he was a “very dangerous young man” and he needed continuous supervision.  … The overall concern was that he had a low IQ, mental health issues and was at a high risk for sexual offending.”

[23]  These reports unhappily present a bleak picture of the applicant and his prospects for rehabilitation.  He represents a considerable risk to young children with whom he might come in contact.  His lack of insight and empathy as well as his behavioural disorder and impulsivity indicate that there are no means readily at hand by which the risk can be ameliorated.  The applicant is not a suitable candidate for rehabilitation except over the long term and with intensive confining supervision.  The applicant’s low intellect and behavioural disorders mean that he will not quickly respond to courses designed to improve his conduct.

[24]  The rehabilitation of youthful offenders is given primary importance by the Act, but it is not its only focus.  In my dissenting judgment in JAJ I said in a passage apparently approved by the Court in KU:

“The youthfulness of an offender and his prospects of rehabilitation are obviously most germane to the exercise of a sentencing discretion but it is, I think, a mistake to concentrate too greatly on the personal circumstances of the offender, which will often be unfortunate, and not pay sufficient regard to the protection of the community which is affected by the imposition of appropriate punishments.  It is desirable to indicate to youths who might be inclined to satisfy their sexual appetites on young children that such activity will result in substantial loss of personal liberty.  This is the first principle of juvenile justice, just as it is in the case of adults.”

[25]  In R v E; Ex parte Attorney-General (Qld) Jerrard JA said, in a passage also approved in KU:

“… courts sentencing juvenile offenders … have as a principal object the rehabilitation … of the juvenile offender … . Nevertheless, courts are not to overlook the fact that the protection of members of the community from the infliction of harm can be achieved not only by the means of rehabilitation of the individual causing that harm in the past, but also by sentences having a generally deterrent effect in the community.”

[26]  Two factors of considerable importance had to be addressed in the exercise of the sentencing discretion.  The first was that the applicant has made no real progress towards rehabilitation since the offences were committed despite being in custody for over a year and undergoing courses aimed at modifying his attitudes and behaviour.  The second, which became more important because of the first, was the community’s need for protection.  Given the applicant’s limited intellect and behavioural disorders he is likely to respond only slowly and uncertainly to programs of rehabilitation.  In cases where the prospects of rehabilitation are bright and prospects of re-offending low a court can deploy considerable leniency.  The applicant unhappily is not in that category.  His knowledge of right and wrong comes only from the imposition of sanctions by those put in authority over him.  The need for personal deterrence was therefore paramount. 

[27]  It is apparent from the remarks of the sentencing judge that his Honour was concerned the sentence he imposed should serve to protect young children from the applicant and deter him from again engaging in such offending.  These were both legitimate objects of the sentence.  There is a substantial risk that the applicant would re-offend if given the opportunity to be alone with young children.  It is apparent from the psychiatrists’ reports that he does not understand that what he has done is wrong and that he should not engage in such behaviour. 

[28]  The sentencing judge cannot, I think, be criticised for emphasising the need to protect young children by imposing a substantial period of detention.  If the applicant is to be persuaded that he should not indulge his sexual desires at the expense of children it is by the imposition of the constraints on his liberty.  In the applicant’s case deterrence and community protection outweigh rehabilitation as a consideration because of its limited prospect of success.

[29]  The applicant’s particular complaints about the sentence are without substance.  The sentencing judge made it clear why he thought a substantial term of detention was required.  It is optimistic to describe the applicant’s prospects of rehabilitation as “positive”.  He is, as I understand the reports, likely to benefit from a prolonged period of intensive supervision such as he will receive in detention, followed by probation.  A long term of detention and probation will also serve to protect the community, and its children.  The complaint that the applicant was required to serve 70 per cent of the detention is unremarkable: it is the statutory norm.  See s 227(1) of the Act.

[30]  The question whether the protection of the community is the first principle of juvenile justice has no bearing on the outcome of the application.  Muir JA doubts the proposition.  To my mind the answer is almost axiomatic.  I would understand the raison d’etre of the criminal law, from its primitive inception to its modern elaborate appendages, the Act and its adult counterpart, the Penalties and Sentences Act 1992, is protection of the society which devised the law from delinquent depredations upon the life and limb of its members, and their property.  The principle numbered 1 in the Charter of Juvenile Justice set out in Sch 1 to the Act is: “The community should be protected from offences.”  It is appropriate, therefore, I think, to regard this as the first principle. 

[31]  How the protection is to be afforded in a particular case will depend upon the circumstances of the offence and the offender.  In some cases it may be achieved by admonition and instruction (probation and the like) that there are personal and social benefits in walking through life along the paths of righteousness.  In other cases it will be necessary to rely upon punishment to persuade and deter offenders against persisting in crime.  The Act expresses a preference for reformation over retribution but leaves the appropriate penalty in each case to the discretion of the court which will take into consideration the principles of juvenile justice (s 3 of the Act) and the considerations identified in s 150. 

[32]  As I say none of this affects the result of the application which, for the reasons given earlier, should be refused. 

[33]  WHITE J:  I have read Chesterman JA’s reasons for judgment and agree with his Honour that the application for leave to appeal against sentence should be refused.  I agree with his Honour’s reasons for doing so but, like Muir JA, I have one reservation.

[34]  I am unable to discern in the provisions of the Juvenile Justice Act 1992 (Qld), the Charter of Juvenile Justice Principles, nor the parliamentary debates on the Juvenile Justice Bill support for his Honour’s opinion that the “first principle” of juvenile justice is the protection of the community.

[35]  Muir JA has set out some of the relevant provisions of the Juvenile Justice Act.  Where s 150(1)(a) (formerly s 109(1)(a)) requires the court to have regard, subject to the Act, to “the general principles applying to the sentencing of all persons”, this court in R v W; ex parte Attorney-General[2] held that this must be taken to be a reference to:

“…such principles as had, prior to the Penalties and Sentences Act, been worked out by the judges, and not to any principles stated in the latter Act.”[3]

The court added:[4]

“It follows that, in our opinion, the Court is not bound, in considering the respondent’s case, specifically to apply subs. (3) and (4) of s. 9 of the Penalties and Sentences Act.  Although most of the principles there set out may be thought to represent the general law, it is no part of the policy of that law to apply to violent offences principles markedly at variance with those applicable to other offences.”

[36]  This approach was that of the court in R v KU & Ors; ex parte A-G (Qld).[5]  The court referred to observations by McMurdo P, when sentencing a juvenile offender for rape under the Juvenile Justice Act, in R v JAJ[6] that:

“One of the Charters of Juvenile Justice Principles is that ‘a child should be detained in custody for an offence, whether on arrest or sentence only as a last resort and for the least time that is justified in the circumstances.’  This must be read in the context of the other principles also relevant to this case. These include that the community should be protected from offences; that a decision affecting a child should, if practicable be made and implemented within a time frame appropriate to the child’s sense of time; and that the child’s age and maturity are appropriate considerations.”

[37]  The court then quoted a passage from the judgment of Chesterman J (as his Honour then was) in the same case where his Honour ventured the following opinion:

“…it is, I think, a mistake to concentrate too greatly on the personal circumstances of the offender, which will often be unfortunate, and not pay sufficient regard to the protection of the community which is affected by the imposition of appropriate punishments.”

The court then quoted from observations of Jerrard JA in R v E; Ex parte Attorney-General (Qld):[7]

“…courts sentencing juvenile offenders are instructed by both the statutory commands in the Juvenile Justice Act, and the shared wisdom of other experienced judges, to have as a principal object the rehabilitation if possible of the juvenile offender while the offender is still a juvenile.  Nevertheless, courts are not to overlook the fact that the protection of members of the community from the infliction of harm can be achieved not only by means of rehabilitation of the individual causing that harm in the past, but also by sentences having a generally deterrent effect in the community.”

[38]  The court in R v KU made no comment on those passages but there is nothing in the judgment to suggest that merely because emphasis was placed on the protection of members of the community that that emphasis elevated to a “first principle” that protection.  As with all of the principles mentioned and the specific provisions in the Juvenile Justice Act, the facts and circumstances of each case will indicate which principles or provisions will be of more significance than others.

[39]  Furthermore, there is nothing in the parliamentary debates when the Juvenile Justice Bill was introduced by the Minister which would lead to a construction of the Charter of Juvenile Justice Principles which gave priority to one over others.  The emphasis in the debates was to move from child welfare needs which had been the primary focus of the Children’s Services Act 1965 (Qld) to an approach which held children accountable for their actions.[8]