R v IC[2012] QCA 148

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  I agree with the reasons of Philippides J and the orders she proposes.

2. FRASER JA:  I agree with the reasons for judgment of Philippides J and the orders proposed by her Honour.

3. PHILIPPIDES J:  The applicant was sentenced on 12 December 2011 to two years detention on his plea to one count of rape committed on 19 February 2011.  Pursuant to s 227(2) Youth Justice Act 1992 (Qld) (“Youth Justice Act”) the sentencing judge ordered that the applicant be released from detention after serving 50 per cent of the sentence.  The applicant seeks leave to appeal against the sentence imposed, the grounds of appeal being that the sentence imposed was manifestly excessive.

4. The applicant was born on 15 April 1996 and was 14 years and 10 months at the time of the commission of the offence.  He was 15 years and eight months at the time of sentence.  He has no criminal history.

Circumstances of the offence

5. The circumstances of the offence are as follows. The complainant was a 24 year old woman unknown to the applicant. She had been out drinking and then returned to a friend’s house where she drank some more wine.  At about 5.30 am she tried to telephone her former partner.  She then walked to a nearby telephone booth on the Bruce Highway and tried calling again.  Whilst in the telephone booth she noticed two teenage boys, one of whom was the applicant, walking towards her.  They said good morning and walked past, with the other boy going into the nearby service station and the applicant walking into some bushes nearby.

6. The complainant left the booth and proceeded back towards the highway. She noticed that the applicant was about 40 metres behind her. He called out, “Come here.” The complainant went to him and asked him if he knew her. He said that he did not and then grabbed her tightly by the wrist. She resisted, asking him repeatedly to let her go. He got behind her and grabbed her in a bear hug and said something like, “Just quickly. Just a quick one,” in Torres Strait Creole.

7. The applicant then picked the complainant up and carried her into some nearby bushes. She screamed for help. He squeezed her torso tightly enough to cause her some difficulty in breathing. She then told him, “Okay, okay. I’ll give in.”

8. He put her down but maintained his grip on her wrist. She asked again to be released. He turned her around and picked her up again and took her further into the bushes where he dumped her on the ground. He forced her legs apart with his knee while she continued to struggle to free herself. He repeated the words, “Quick one,” again in Creole.

9. The complainant was left somewhat breathless by the applicant’s bear hug. He pulled her shorts and underpants down so that they were dangling from her right knee. He then inserted what felt to the complainant to be two fingers into her vagina saying, “Stay still. I’ll put it in quickly.” He then moved his fingers in and out of her vagina four or five times.

10. The complainant then managed to punch the applicant in the mouth. She reached around and seized a nearby stick with which she hit him to the side of the head. He stood up and ran away. The complainant then called triple 0 and walked back to her mother’s house where she told her sister what had just happened.

11. The complainant suffered some minor bruising to her back and left shoulder and some abrasions where she was thrown to the ground.

12. The Crown Prosecutor specifically disavowed a reference in the Schedule of Facts tendered at the arraignment, to the applicant squeezing the complainant’s throat during the assault.

13. The applicant attended the police station the following day. He declined to participate in a recorded interview, however did make some admissions and co‑operated by providing to police the clothes he had been wearing and a bandage he was wearing at the time that had assisted the complainant’s sister in identifying who he was.

Sentencing remarks

14. In sentencing the applicant, the sentencing judge noted that there were “some very disturbing features” in the present case, including that the applicant had followed the complainant having seen her and developing a sexual interest in her. His Honour also took into account a number of factors going to mitigation, including the applicant’s young age, favourable references and matters set out in the pre‑sentence report which outlined adjustment difficulties which the applicant was undergoing at the time.  In particular, the applicant (who came from the Torres Strait) had been placed as a boarder in a college in Cairns to further his education, but had been experiencing difficulty coping with the situation.  Regard was also had to the applicant’s plea and co-operation with the authorities.  There was a full hand-up committal and the complainant was spared the ordeal of having to give evidence.

15. The sentencing judge referred to the principles relating to the sentencing of juvenile offenders set out in the Youth Justice Act, including that detention should only be imposed as a last resort and for the shortest possible period: Principle 17, Charter of Youth Justice Principles, Schedule 1 and s 3 Youth Justice Act.  His Honour concluded that the circumstances of the case were such that a detention order was nevertheless required to be made.

16. The sentencing judge was referred to and had regard to the decision of R v DAU; ex parte A-G (Qld) [2009] QCA 244.  His Honour observed that there were some features in DAU that were worse than the present case.  In that regard, the complainant in DAU was punched in the face three times, and DAU’s sexual offending went beyond that of the applicant to include masturbating and ejaculating on the complainant.  Further, DAU was slightly older than the applicant.  However, the sentencing judge also considered that there were some features that made the present case worse than DAU.  The feature he identified was that the applicant “stalked” the complainant, who was unknown to him.  The stalking was a reference to the applicant’s conduct in following the complainant after seeing her at the telephone booth.

17. His Honour concluded that a sentence that was the same as that imposed in DAU (of two years detention with the applicant being released after 50 per cent of the sentence and no conviction being recorded) was warranted.  His Honour also made a recommendation that the applicant attend the Griffith Youth Forensic Service or other program as directed.

Relevant statutory provisions

18. The maximum penalty faced by the respondent was detention for 10 years: s 176(3)(a) Youth Justice Act.  The principles applicable to the sentencing of a juvenile are to be found in s 150 of the Youth Justice Act, which provides, insofar as is relevant for present purposes:

“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 youth 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

(g)if the child is an Aboriginal or Torres Strait Islander person – any submissions made by a representative of the community justice group in the child’s community that are relevant to sentencing the child, including, for example –

(i)the child’s relationship to the child’s community; or

(ii)any cultural considerations; or

(iii)any considerations relating to programs and services established for offenders in which the community justice group participates; 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.”

Applicant’s submissions

19. It was not disputed that a sentence of detention was appropriate in the circumstances of the offence, given that it involved accompanying violence against a stranger, after the applicant had followed her some distance. However, the applicant contended that the period of two years detention imposed was manifestly excessive having regard to the circumstances of the offence and the authorities.

20. It was submitted that the learned sentencing judge erred considering the present case as on a par with DAU and in not concluding that DAU concerned a significantly more serious case.  Further, a review of other authorities did not provide any pertinent comparative in terms of the nature of the offending in the present case where a juvenile offender has engaged in digital rape of an adult complainant.  It was submitted that authorities such as R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, R v A; ex parte A-G (Qld) [2001] QCA 542, and R v R [1996] QCA 75 generally concerned rapes by juvenile males on adult females and involved significantly more than digital penetration.  And authorities which did involve the offence of digital rape, such as R v SBR [2010] QCA 94, generally concerned offending by male juveniles directed against child complainants. 

21. It was additionally contended that, having regard to the applicant’s personal circumstances and prospects of rehabilitation, as demonstrated in the pre-sentence reports and the references tendered on his behalf, it could not be said that the sentence imposed was a sentence of detention for the least time that is justified in the circumstances.

22. On behalf of the applicant, it was submitted that the range appropriate to the circumstances of the case was a sentence of between 12 to 18 months detention. Counsel effectively submitted that the sentence that should have been imposed was one at the bottom end of that range with the discretion being exercised for release after 50 per cent was served. Counsel contended for a sentence of six months actual detention coupled with an order that the applicant be placed on probation for a period of 12 months, with a special condition that the applicant attend the Griffith Youth Forensic Service.

DAU

23. DAU concerned an unsuccessful Attorney-General’s appeal against a sentence of two years detention with release after 50 per cent was served and no conviction being recorded, imposed on the 15 year old offender on his plea to one count of rape.  The facts of the offending in that case are summarised by Holmes JA at [2] and [3] as follows:

“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.

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’.”

24. DAU claimed to have been intoxicated and to have no memory of the offence. He had no previous criminal history. The rape had a severe and lasting effect on the complainant, who became solitary and untrusting and given to self‑harm.

25. After an extensive review of authorities such as R v PZ; ex parte A-G (Qld) [2005] QCA 459, R v JAJ [2003] QCA 554, R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, R v KU & Ors; ex parte A-G (Qld) (No 2) [2011] 2 Qd R 439; [2008] QCA 154, and R v A; ex parte A‑G (Qld) [2001] QCA 542, which were put before the court in DAU to support the submission that the sentence there imposed was manifestly inadequate, Holmes JA (with whom the other members of the court agreed) made the following observations at [21] - [22]:

“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.

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.”

Consideration

26. An analysis of DAU makes it apparent that in this case the learned sentencing judge erred in treating it as an apposite comparative and on a parallel with the present case.  The conduct of DAU was considerably more protracted and, as the sentencing judge acknowledged, the degrading sexual assault perpetrated in DAU went far beyond that of the applicant.  In addition to the other distinguishing aspects identified by the sentencing judge, the complainant in DAU was particularly vulnerable at the time of being assaulted, being very drunk and unable to defend herself.  The complainant in the present case was a good deal older than the applicant.  She was in a position to fend off the applicant ultimately by attacking him, causing him to flee.  The feature which the sentencing judge focussed upon as making the present case worse than DAU, that the applicant had followed the complainant immediately before committing the offence, while significant and concerning, does not result in the present case being able to be equated with that of DAU.

27. Counsel for the respondent sought to draw some support for the sentence imposed by referring to other authorities considered in DAU, in particular R v JAJ and R v PZ; ex parte A-G (Qld).  However, those cases do not assist in setting an appropriate sentencing range in the present case having regard to their factual circumstances as outlined in DAU by Holmes JA in the extracted comments above.

28. In the circumstances, the learned sentencing judge erred in approaching his sentencing discretion on the basis that DAU set the sentencing range applicable to the case.  The sentencing discretion has miscarried and must be exercised afresh.

29. As mentioned, it was accepted in the submissions of the applicant’s counsel that a detention order was required to be imposed. Of course the sentencing principles applicable to juvenile offenders require that a detention order be imposed for the shortest appropriate period. However, a sentence of six months detention, even when combined with a further order, as urged by the applicant’s counsel, would not appropriately reflect the seriousness of the offending in the present case. The gravity of the offending, which involved digital penetration and the use of force against the complainant, who was a stranger to the applicant and who was followed and accosted in a public place, calls for a more substantial period of detention.

30. In my view, a sentence of 16 months detention, with an order that the applicant is released after serving 50 per cent of the sentence, is appropriate. Such a sentence adequately reflects the seriousness of the offending, while also properly accommodating the matters of mitigation in the applicant’s favour, which include special circumstances warranting the exercise of the discretion under s 227(2) of the Youth Justice Act.  As mentioned, they include the applicant’s plea, co-operation with the authorities, lack of prior convictions, positive references, remorse and rehabilitation prospects as outlined in the psychological report and pre-sentence report.

31. It was not in issue that no conviction should be recorded. Such an order is appropriate, given the applicant’s age, lack of prior convictions and rehabilitation prospects. I would also make a recommendation that following release from detention, the applicant attend the Griffith Youth Forensic Service.

Orders

32. The orders that I would make are:

1. The applicant have leave to appeal against the sentence imposed on 12 December 2011.

2. The appeal be allowed and the sentence be set aside.

3. A sentence of 16 months detention be substituted, the applicant to be released from detention after serving 50 per cent of that sentence.

4. It is recommended that the applicant attend the Griffith Youth Forensic Service.

5. It is ordered that no conviction be recorded.