R v SBY[2013] QCA 50

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA.  I agree with the orders proposed by Her Honour, and with her reasons.

[2] MUIR JA: I agree with the reasons of White JA and with the orders she proposes.

[3] WHITE JA: On 7 June 2012, in the Mackay Children’s Court, the applicant pleaded guilty to seven counts of rape and was sentenced to three years detention to be released after serving 50 per cent.  Convictions were recorded.  He was sentenced to three years probation for five counts of indecent dealing to which he had also pleaded guilty.  Convictions were not recorded. 

[4] At the same time, he was sentenced on a second indictment in respect of nine property offences, one count of arson, and one count of unlawful use of a motor vehicle, to all of which he had pleaded guilty.  For the arson offence he was sentenced to six months detention, to be released after serving 50 per cent of that sentence, to be served cumulatively on the detention imposed for the rape offences.  Probation was imposed for the other offences on that indictment.  No convictions were recorded for this group of offences. 

[5] The offences, the subject of the first indictment (“the sexual offences”) were committed between 31 July 2010 and 5 January 2011 when the applicant was aged between 14 and 14 and a half years.  The offences, the subject of the second indictment (“the property offences”), were committed on 20 May 2011 and on 20 June 2011 when the applicant was aged 14 years and 10 months and 14 years and 11 months. 

[6] The appellant pleaded guilty to the sexual offences on 17 November 2011 and a pre-sentence report was ordered.  The applicant’s bail was extended. 

[7] On 5 April 2012 the applicant pleaded guilty to the property offences.  An addendum to the pre-sentence report was ordered.  Once again his bail was enlarged.

[8] When the sentence hearing came on the primary judge had the benefit of a psychological report by Mr Samuel Kilby of the Griffith Youth Forensic Service dated 21 March 2012, a pre-sentence report prepared by Ms Helen O'Brien, Acting Court Co-ordinator of the Mackay Youth Justice Service Centre in the Department of Communities, dated 2 April 2012 and Ms O'Brien’s addendum report (to take account of the subsequent property offences) dated 28 May 2012. 

[9] The applicant had no previous criminal history when he came to be sentenced.

[10] This court, with the consent of the Director of Public Prosecutions, granted the applicant an extension of time within which to seek leave to appeal to 19 July 2012. 

Grounds of appeal

[11] The applicant contends that the sentence of three years detention imposed for the rape offences is manifestly excessive.  At the hearing he sought and was granted leave to add a second ground, namely, that the sentencing judge erred in recording convictions for the rape offences. 

[12] It is not contended on behalf of the applicant that a non-custodial sentence was appropriate, but that three years was manifestly excessive.  Instead, detention in the order of 18 months up to two years, to be released after serving 50 per cent, ought to have been imposed.

[13] The applicant does not seek to disturb the sentences in respect of the other offences.

[14] The sentence hearing proceeded on the Statements of Facts. 

Circumstances of offending

(i)The sexual offences

[15] The complainant child was the applicant’s half-sister.  She was aged nine years at the time of the offending.  As was related in the psychological report, the applicant has two older brothers aged 25 and 21.  His parents separated just before he was born and subsequently re-partnered.  The applicant has three half-sisters born to his father and his father’s current wife.  They were, at the time of the pre-sentence report, aged one, three and 10.[1]  The applicant’s mother and her partner did not have any children of their own, but the applicant’s step-father had three children from a previous relationship, aged 18, 21 and 25. 

[16] The applicant primarily lived and grew up in his mother’s household.  The arrangements for access and custody between his parents were far from harmonious.  After a holiday visit to his father’s family in 2007 he remained with his father permanently.  He did not adjust well to the family boundaries which were imposed upon him in the new household.  His schooling response was also poor.

[17] The complainant and the applicant gave different explanations of the events which culminated in the charged offences.  The applicant blamed the child for initiating their sexual interactions.  The statement of facts represents the complainant child’s version of events.

[18] The child identified the first occasion of indecent treatment as the first time she stayed home alone with the applicant, one to two months before the family moved residences.  On that occasion the applicant played a pornographic film depicting “naked people licking girls’ vaginas” on a DVD player in his room.[2]  He forced the child into the room with him by pushing her and telling her that if she did not go in he would not take her swimming or to the skate park (count 1).

[19] The applicant discussed the film with the child and exposed his penis and masturbated in front of her (count 2).  She left the room shutting the door.  The applicant opened his door and the child returned to his room.  He pulled her pants down.  She punched him.  The applicant performed oral sex on her (count 3).  She said she did not like it.  The applicant then put his penis in her vagina.  Only partial penetration occurred (count 4).  She punched him again.  The mother then returned home.

[20] A day or two later the applicant put his penis into the child’s vagina but when she told him to stop he did so (count 5).

[21] The complainant’s grandmother lived next door to this residence.  In preparation for the move family members were in the house cleaning.  The complainant went next door to her grandmother’s house where the applicant already was.  He had taken with him a pornographic film which he had found in his father’s house.  He put the film on when the complainant arrived (count 6).  It depicted sadomasochistic behaviour.  The applicant thought he heard someone coming so he stopped the film and hid it.

[22] The complainant told police that the applicant would do these things to her “pretty much” every time their parents were not there.  She thought that this was seven to 10 times but that intercourse did not occur on each occasion. 

[23] On 4 January 2011, after the complainant had made disclosures to her mother, to whom the applicant had also admitted the conduct, the complainant attended the police station.  On that day police also spoke to the applicant.  He participated in an interview in which he told police that the offending had started by him telling the complainant sexual stories that he had heard from his step-sister.  He told police that the child had suggested that they should try what was in the stories and that the sexual conduct had occurred regularly until recently.  He described showing an indecent pornographic DVD on the first occasion and said he had penetrated the complainant’s vagina.  This offending constituted counts 7 and 8. 

[24] Counts 1 and count 7 bear similarities.  Count 1 is the complainant’s version of the “first occasion” the applicant showed her an indecent film, while count 8 is the applicant’s version of the “first time he could remember” showing the complainant an indecent film.[3]  Counts 2 to 4 and count 8 also bear similarities.  Count 2 to 4 being the complainant’s version of the indecent treatment and rape, while count 8 is the applicant’s version of the rape.  The complaint’s version only mentions partial penetration, while the applicant’s version omits the cunnilingus.  While there is some sense of “double charging” here, the applicant does say that the offending the subject of counts 7 and 8 “had happened more than once before”.  In any event, as no complaint has been made, and the statement of facts was agreed to by the defence, it may be put to one side.

[25] The applicant admitted to police showing the complainant pornographic DVDs which he had taken from his father’s room on more than five occasions (count 9).  He added that when he and the complainant were in the grandmother’s house after watching a pornographic DVD they had also had sex, although he said it was at the complainant’s direction (count 10).

[26] The applicant admitted to another occasion when he said the complainant had asked him to lick her vagina which he did (count 11) and he then penetrated her vagina with his fingers (count 12).

[27] He admitted to police that he did not know how many times he had had sex with the complainant but that it was more than 10 times.  He wore a condom twice.  He had licked her vagina more than twice and had digitally penetrated her more than twice.  He denied ever threatening her or promising any reward.

[28] The applicant told Mr Kilby (the psychologist who prepared the pre-sentence report) that this offending had commenced 18 months to two years prior to detection.  As to what led to this offending, there is some inconsistency in accounts given to the psychologist by the mother, step-mother, father and applicant.  It seems that the child had been sexually abused by one of the applicant’s older brothers before the applicant came to live in the household.  However, it is not clear if the applicant knew of it.

[29] As a consequence of this sexual offending coming to light the applicant was removed from the family home, placed in foster care and subjected to a two year Child Protection Order which expires on 18 July 2013.

(ii)Property offences

[30] According to the applicant’s foster carer, who was very supportive of the applicant, he did not settle well at school and formed friendships with a troubling anti-social peer group which exposed him to drinking alcohol and smoking cannabis.  His foster carer reported to the psychologist that he understood that the applicant still regularly smoked with his peers. 

[31] As a consequence of the friendship with this group, over the night of 19 May 2011 the young offenders gained entry to a construction site and committed the offences, the subject of counts 1 to 6 on the second indictment.  Those premises were completely fenced with a six foot high wire mesh fence.  When inside, the offenders attempted to enter a shipping container that had been converted into an office.  When they were unable to gain access they removed an air vent and climbed inside to look for property to steal (count 1).

[32] They also broke into a construction vehicle parked at the site by removing a side window.  A fire extinguisher was stolen, its contents sprayed around the area, and then discarded (count 2).  The offenders broke into a heavy rolling vehicle, also parked at the site, via a removed side window.  A fire extinguisher was stolen from this vehicle as well and sprayed inside the vehicle (count 3).  The offenders also broke into an excavator by smashing a side window.  A first aid kit and fire extinguisher were stolen from inside (count 4).  They broke into another excavator and rummaged through the cabin but nothing was identified as missing (count 5).

[33] After the offenders had broken into the container/office they lit a fire inside causing considerable damage to the container and its contents.  Part of the wooden floor was consumed by the fire.  The total cost of the property damaged in the fire was $10,175.36, while the damage to the shipping container was $12,214, being a total loss of $22,389.36 (count 6).

[34] About a month later on the evening of 19 June 2011 the offenders broke into a locked car parked in a driveway and stole a wallet containing $300 in cash.  The wallet was retrieved and returned without the cash (count 7).  The same thing happened with respect to another unlocked parked car.  A phone was stolen and $150 taken from a wallet (count 8).  Later that evening the offenders pushed a car out of a driveway onto the road and stole $50 cash from a wallet, the remote to a garage and a set of house keys (count 9).

[35] The offenders gained entry to a residence via a window in the garage.  When inside they stole a mobile phone and a container of coins from the kitchen.  They broke into a car parked in the garage and stole coins and two sets of keys (count 10).  Some coins and the mobile phone were returned to that complainant.

[36] Finally, that evening, the offenders stole a locked car which had been parked in the driveway of a house.  The car was located some distance away, badly damaged ($10,275) (count 11).

[37] When police spoke to the applicant on 20 June 2011 he made full admissions to the offences telling police that the primary aim had been to locate money and property to steal.  When they entered the shipping container/office and could not find anything to steal they burned what they could and ran.  They had started the fire by pouring petrol from a nearby generator into a water bottle, putting a rag in the top of the bottle, lighting the rag and throwing the bottle inside.  The applicant told police that he had driven the stolen vehicle, had eventually lost control and crashed, driving off the road into a ditch near a cane field.

The psychologist’s report

[38] Mr Kilby assessed the applicant, using psychometric tests as well as clinical information, as attempting to put a socially acceptable gloss on his sexually offending conduct by minimising his responsibility and casting the majority of the blame towards the complainant.  He thought the applicant was possibly exhibiting mild anxious and depressive symptomotology and mild difficulties with anger which required further assessment.[4]

[39] While Mr Kilby observed:

“Exposure to pornography has not as yet been proven to be a causal risk factor for sexual offending behaviour.  However, it is suggested that early exposure to pornography provides clear visual messages, and new information to young people, and that this information has the potential to be adversely instructional in nature.  Specifically, the information contained in pornographic images may not provide an accurate portrayal of human sexuality.  Unlike learning provided within educational settings, exposure to pornography may indeed be counterproductive to the development of healthy and appropriate sexual behaviour.”[5]

[40] Mr Kilby observed that although the applicant presented with some understanding of appropriate and inappropriate sexual behaviour he exhibited some concerning attitudes and beliefs, particularly that he believed the age of sexual consent should be 15 (his own age) and that he would “probably” be able to comply with the law but was non-committal.

[41] Mr Kilby observed that although the applicant depicted himself as complicit in all of the sexual offences he held the child responsible for instigating them and made efforts to minimise his culpability.  He attempted to describe her as:

“insistent, coercive and highly sexualised to portray her as the motivated individual in their sexual activities and that he simply complied with her requests.”[6]

Mr Kilby observed that the applicant was thus engaging in chronic victim blaming, avoiding responsibility and minimising his offending and thought that without intervention “cognitive distortions may serve to justify future offending behaviour and increase resistance to change”.[7]

[42] Mr Kilby administered juvenile sex offenders’ risk assessments and concluded that the applicant’s profile suggested “a probable level of risk as moderate”.[8]

[43] Although the applicant expressed remorse in relation to the offending, Mr Kilby opined that this appeared to be solely in relation to the legal consequences and the child protection intervention removing him from his family.  He presented as angry towards the child for getting him to engage in sexual acts with her.  He demonstrated no empathy for the victim and no insight into the short or long term impacts of his offending on her.  Mr Kilby added that although the applicant directed blame towards the child for initiating sexual interactions, he took half the responsibility “because he was older” and should not have done the acts. 

[44] According to Mr Kilby the applicant presented with a poor understanding of how to self manage risk and prevent re-offending in the future.  He regarded the applicant’s presentation as “quite concerning” which suggests that the applicant:

“requires education and counselling to challenge criminogenic cognitions and beliefs, as well as to encourage adherence to legal and socially-accepted standards for sexual behaviour.”[9]

[45] He noted that specific treatment for the applicant could be provided whilst he remained within the Youth Justice System.  The property offending was not the subject of Mr Kilby’s report.

The court reports

[46] Ms O'Brien, of the Mackay Youth Justice Service Centre, after reviewing the background circumstances of the offending and Mr Kilby’s report in relation to the applicant, informed the court that should the applicant be sentenced to detention he would be engaged in various educational, skill development, therapeutic and recreational programs.  He would have the opportunity to engage with the Griffith Youth Forensic Service on a voluntary basis.  If he were not compliant with his attendance in that program he would not be subject to breach action while subject to a detention order.  She noted that he had indicated a willingness to co-operate.  On release, after serving the custodial period he would be subject to the conditions of a Supervised Release Order pursuant to s 228 of the Youth Justice Act 1992 (“the Act”). 

[47] The addendum pre-sentence report deals with the property offences and the sentencing options for those offences.  Since the sentences imposed for that group of offences are not challenged on this application it is unnecessary to refer further to that addendum report. 

[48] At the time of sentence the applicant was living with his foster carer but did not go to school or TAFE although it was his future intention to attend the latter.

Contentions below

[49] The prosecutor informed the primary judge that counsel had agreed on the range and referred to three cases, namely R v JAJ,[10] R v MAC[11] and R v SBR,[12] without further analysis.  The prosecutor submitted for one order[13] of three years detention for the rape offences.  The prosecutor sought the recording of a conviction in relation to the rape offences having regard to their serious nature, their number and the concern expressed in Mr Kilby’s report of the risk of re-offending given the lack of insight and empathy of the applicant.  The prosecutor sought a three year probation order in respect of the indecent treatment offences. 

[50] Because the submission was to be made that the property offence penalty should be cumulative insofar as it related to the arson (in respect of which the recording of a conviction was also sought), the prosecutor submitted that the applicant should serve only 50 per cent rather than the customary 70 per cent of the sentence.[14]  The net result was said to be that the applicant would be in detention for 21 months and probation would continue for a year and three months after release.

[51] Counsel for the applicant agreed with the proposed sentence put forward by the prosecution, namely: for the seven counts of rape, a three year detention order with the applicant to be released after serving 50 per cent; for the five counts of indecent treatment, a three year probation order with special conditions; for the arson offence, a combination order of six months detention with the applicant to be released after serving 50 per cent and one year probation upon release; for unlawful use of a motor vehicle, a three year probation order; and for the remaining property offences, a two year probation order.  Counsel submitted:

“But in terms of the presentence report, the reason why my learned friend and I aren’t divided on what would be the appropriate penalty is because it’s clear on the cases that this is the lowest penalty that can be imposed for this kind of offending …”[15]

[52] While agreeing with penalty, counsel made strong submissions that convictions should not be recorded under s 183 and s 184.  Counsel accepted that the rapes were serious but argued that the applicant was young and had no previous convictions.  Because of his poor educational background, his counsel submitted, his capacity for rehabilitation would be hampered by a conviction recorded for rape.

Sentencing reasons

[53] It is agreed that the primary judge made an error at the commencement of his reasons by stating that the applicant was 13 at the time of the sexual offending and 14 at the time of the property offending.  He was aged between 14 and 14 and a half.  The respondent seeks to argue that this was his understanding of the applicant’s age and not a slip.  Accordingly, the sentence his Honour imposed was in respect of a younger person and undue moderation might thus be inferred.[16]  This is unlikely.  It was plainly a slip.  At no stage in the proceedings was any reference made other than that the applicant was 14 at the time of the sexual offending.  It was plain in all the written material on which the primary judge relied. 

[54] His Honour noted that the applicant made admissions when spoken to by police, and in respect of the sexual offending, admitted to additional offences of which the police had no information which could found charges.  He regarded those admissions as demonstration of “a degree of remorse”.  He did note that Mr Kilby thought these admissions were more to do with the legal consequence of the offending than full insight into the wrongfulness of the conduct.  His Honour did not make specific reference to the AB principle.[17] 

[55] The primary judge referred to two letters from the complainant’s mother which set out the serious effect that the offending has had upon the child.  His Honour described the conduct as very serious, noting that it went “far beyond mere sexual experimentation by a boy or a teenager”.[18]  He noted there was some element of pressure applied to the complainant to participate in the offending.  He concluded that a sentence of detention was the only appropriate penalty for the offences of rape and that no other sentence was appropriate in the circumstances of the case.  In this he was reflecting the requirements of s 150(2)(e) of the Act and Youth Justice Principles[19] that a detention order, if imposed, should be as a last resort. 

[56] His Honour accepted the submission of both counsel that a period of detention of three years was appropriate.  His Honour did not expressly say that three years was “the shortest appropriate period” as s 150(2)(e) requires it to be when a detention order is made.  However, in light of the joint submission as to the appropriate period of detention – particularly experienced defence counsel’s submission set out above – it can readily be inferred that that was the basis of his Honour’s acceptance.

[57] It is an aspect of Mr Benjamin’s submissions that three years detention for rape was not, on the authorities and in the circumstances, the shortest appropriate period.

[58] After dealing with the property offences, the primary judge considered whether a conviction should be recorded for the rape and arson offences, as had been submitted for by the prosecutor.  His Honour correctly considered the terms of the Act concerning the recording of a conviction.  That provision requires that a conviction is not to be recorded against a child who is found guilty of an offence other than under s 183.  Rape is an offence for which a conviction may be recorded.  Section 184 sets out the considerations to which a court must have regard when considering whether or not to record a conviction. 

[59] His Honour summarised defence counsel’s submissions referring to R v SBR[20] and distinguished it.  His Honour concluded that in view of the repeated nature of the offending and the very serious facts in relation to each of the counts, convictions should be recorded.  His Honour also took into account the victim impact statement.  He noted the submissions that the recording of a conviction would impede the applicant’s rehabilitation, and, while his Honour accepted that the applicant would be disadvantaged, he was of the view that the circumstances of the offending were sufficiently serious to warrant the recording of a conviction.  He rejected the prosecution submission to record a conviction for the arson offence because the property offences, including the arson, were committed when the applicant had been removed from his family, and was suffering as a result of that isolation.

Submissions on application

[60] Mr Benjamin submitted that the authorities demonstrate that a period of detention of less than three years was open.  If that is so, then the period ordered was not for “the shortest appropriate period”.[21]  As an aspect of the alleged manifest excess of the penalty, he submitted that the primary judge erred in the exercise of his discretion in recording convictions for the rape offences.

(i) Legislation

[61] Section 183 of the Act provides that a conviction is not to be recorded against a child who is found guilty of an offence other than pursuant to that section.  By s 183(3), if a court makes an order under s 176, the court “may order that a conviction be recorded or decide that a conviction not be recorded”.  If a child is found guilty of a relevant offence, by s 176(3):

“ … that is a life offence, the court may order that the child be detained for –

(a) a period of not more than 10 years…”

The penalty for rape is life imprisonment.[22] 

[62] Section 184 sets out the considerations which the court must take into account when deciding whether or not to record a conviction:

“(1)…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.

(2) Except as otherwise provided by this or another Act, a finding of guilty without the recording of a conviction is not taken to be a conviction for any purpose.

(3) A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.”

[63] Section 184(2) concerning the effect of not recording a conviction is in identical terms to s 12 in the Penalties and Sentences Act 1992.

[64] The approach to sentencing juveniles is governed by the provisions of the Act, and the Charter of Youth Justice Principles set out in Sch 1 of the Act, which “underlie the operation” of the Act.[23]  The relevant principles for this application are:

“1The community should be protected from offences. …

8A child who commits an offence should be -

(a)held accountable and encouraged to accept responsibility for the offending behaviour; and

(b)dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways; and

(c)dealt with in a way that strengthens the child’s family. …

17A 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.”

(ii) Case authority – length of sentence

[65] Mr Benjamin submitted that the primary judge placed too great a weight on the seriousness of the offending without giving proper consideration to “all the circumstances of the case”.  He distinguished the three cases which had been mentioned before the primary judge. 

[66] He submitted that JAJ[24] was of little assistance in establishing an appropriate range.  That offender was 16 at the time of the offending with no relevant criminal history, had been on bail continuously and had not re-offended.  He pleaded guilty to raping his three and a half year old stepbrother when he was angry that he had been left to babysit the child.  He inflicted serious anal injuries on the child.  After initially lying, then minimising what he had done, he made admissions.  That offender had a very deprived childhood.  He was sentenced to four years detention.  The court concluded, by majority, that a sentence of three years was the least period of detention justified in the circumstances. 

[67] The President, with whom Mullins J agreed, reviewed a number of decisions but none assist here as they concerned violent sexual offending.  Her Honour concluded that three years detention recognised the mitigating factors including youth, cooperation in the administration of justice, promising prospects of rehabilitation and the desirability of a long period of supervision.  A conviction was recorded by the primary judge.  It appears not to have been the subject of the application for leave to appeal.  Contrary to Mr Benjamin’s submissions, JAJ does assist in considering the range and approach to sexual offending by a juvenile.  Although the single act of rape was violent and the age difference much greater, the familial relationship and attendant breach of trust are similar factors.  JAJ also demonstrates the positive factor good prospects of rehabilitation can have.

[68] The offender in MAC[25] pleaded guilty to a range of sexual offences against three children aged 10, six and three.  They included one count of rape and two counts of attempted rape.  Only one of the children, the three year old, was related to the offender, being his niece.  The other complainants were a child of his mother’s friend and a neighbour’s child.  He was 13 and 14 at the time of his offences, and 15 at sentence and had no prior convictions.  He, too, had a difficult family life.  His sentence of four years detention was not disturbed on appeal.  The circumstances were compared with that imposed in JAJ.  Justice Jerrard, with whom Davies JA and Mullins J agreed, noted that the offender would receive treatment in detention and that it was “impossible to be confident about prospects of rehabilitation”.  There are, despite the number of complainants, some similarities with the present offending. 

[69] In R v SBR[26] the offender pleaded guilty to three counts of indecent treatment and one count of rape.  He was aged about 15 at the time of the rape and younger for the other offences.  The complainant was his sister and was aged between seven and 10 years when the offences of indecent treatment were committed and between nine and 10 at the time of the digital penetration which constituted the rape offence.  The pre-sentence report revealed that the offender had been the subject of harsh and excessive parental discipline within a dysfunctional family and had been bullied by his peers.  The victim of his offending wished to have a normal relationship with him.  He was sentenced to four months detention and 12 months probation for the rape offence with a conviction being recorded with respect to that offence.  The sentence application was only in relation to the recording of a conviction.

[70] In SBR, Muir JA, with whom the President and Holmes JA agreed, concluded that the primary judge’s focus on the serious nature of the offending had caused him to give insufficient weight to all of the circumstances of the case.  His Honour referred to the offender’s youth and that his social, emotional and moral development had been impeded by his home environment.  His Honour noted that the pre-sentence report held out good prospects for rehabilitation; that he had no criminal history; the rape was digital and unaccompanied by violence or coercion; no victim impact statement or other evidence to suggest the impact of the offending on the complainant exceeded that which would normally be expected; there was no evidence to suggest that the offender posed an appreciable risk of re-offending whether within his family or otherwise; it was in the interests of the community that the offender’s good prospects for rehabilitation and finding and retaining employment not be impeded unnecessarily.  The application was allowed to the extent that the order recording the conviction was set aside. 

[71] Mr Benjamin concedes that the persistent sexual offending by the applicant was more serious than in SBR but not such as to require a sentence of three years detention.  Since only the recording of the conviction was before the court, the sentence imposed in SBR is of no assistance with respect to the appropriate period of detention here.

[72] Mr Benjamin advanced two further cases as bearing upon the appropriate sentence – R v JO[27] and R v DAU.[28] JO was a rather special case and concerned only the recording of a conviction.  The offender was 13 when he woke his 17 year old sister, holding a knife and stating that he was going to kill her.  His shorts were pulled down and he was masturbating.  He said that he wanted to have sex once.  She ran away from him and locked herself in a bedroom.  He tried to get into the bedroom.  She eventually came out, found her brother still masturbating and he demanded that she have sex with him.  His sister snatched the knife and ran.  He followed her.  She went next door to a neighbour.  Not surprisingly, she was scared for her life during the incident.  After the incident, she had to move out of home so that the brother could continue to live with his parents. 

[73] In JO, the young offender suffered from Klinefelters syndrome, which is associated with an increased risk of neuro-developmental and psycho-social problems.  He was ordered to undergo three years probation with conditions and a conviction was recorded.  He presented, according to the psychologist, with a moderate to high risk of re-offending and would benefit from various forms of intervention.  That offender had not previously been convicted of any offence.  Justice Holmes concluded that the importance of rehabilitation was a strong consideration in the offender’s favour, and, although serious, the facts and circumstances of the offending were not so serious as to require the recording of a conviction. 

[74] In DAU, the Attorney-General appealed in respect of the sentence imposed on a 15 year old who had pleaded guilty to the rape of a nearly 18 year old girl at a party.  He was sentenced to two years detention to be released after serving 50 per cent and no conviction was recorded.  The complainant and the offender were both significantly affected by the consumption of alcohol.  The complainant was subjected to a particularly degrading experience – the rape consisting of the penetration of her mouth by the offender’s penis.  In the course of the encounter the offender hit her in the face with his fist three times causing bruising and swelling.  The victim impact statement showed that the experience had a severe and lasting affect on the complainant.  The offender had no previous convictions. 

[75] It was contended for the Attorney-General that the proper range was three to four years detention with the recording of a conviction.  In the course of her reasons, Holmes JA referred to a number of decisions some of which have been discussed above.  The other cases, apart from those already discussed, related to the violent aspects of the assault on the victims and are sufficiently dissimilar to require no further elaboration.  Her Honour noted that in KU[29] and JAJ a significant age disparity between the offender and victim was a factor to be taken into account and observed:

“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”.”[30]

[76] The respondent on this application additionally referred to R v IC.[31]  That offender was 14 years and 10 months when he offended.  He pleaded guilty to raping a 24 year old woman, who was unknown to him, on the side of the highway.  He was sentenced to two years detention to be released after serving 50 per cent.  No conviction was recorded.  The facts are so dissimilar from the present as to require no further consideration, save to note that the sentence was reduced to one of 16 months detention.  That was based on the plea, co-operation, lack of prior convictions, positive references, remorse and good rehabilitation prospects.

(iii) Counsel’s submissions – length of sentence

[77] Mr Benjamin submitted that the applicant’s very young age and that he had not committed any further sexual offences in the 18 months between charge and being sentenced mitigated his offending considerably.  The applicant’s age must be considered an important factor, of course, but its disparity with that of his half-sister, a child of nine, is very important, as the cases emphasise.  This was not a case of mutual exploration of sexual activity between juveniles close in age.  This was a violation of the protective role which a much older brother ought to have demonstrated to his half-sister.  That he had committed no further sexual offences merely served to suggest that his risk of re-offending had, for that period, been held in check. 

[78] Mr Benjamin also submitted that four counts of rape and two counts of exposing the complainant to indecent films came entirely from the applicant’s own admissions to police and required significant recognition in the sentence imposed.  The primary judge did not characterise those admissions quite in that way.  He said they indicated “a degree” of remorse.  In a passage which is regularly cited, Hayne J in AB v The Queen[32] said:

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known.  Leniency is extended to both offenders for various reasons. … And the offender who confesses to what was an unknown crime may properly be said to merit special leniency.  That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition.”

[79] The way in which a sentencing court will approach the sentence of an offender who has made admissions to criminal conduct will vary according to the circumstances.  Here, the generality of the complainant’s account, in respect to some of the conduct, meant that police could not charge the applicant with offences of rape, or further exposure to indecent material, beyond those for which she could give some particulars.  Nonetheless, the other rapes were known to the authorities – the admissions crystallised them into chargeable criminal conduct.  This does not mean, of course, that those admissions should receive no recognition.  But they do not entitle the applicant to a significant reduction, particularly in light of the primary judge’s observation, supported by the expert opinion of Mr Kilby, that the applicant’s remorse had more to do with the legal consequences of the offending than insight into the offending.  It is not clear that the primary judge reflected those admissions in the sentence beyond recognising the plea of guilty.  There is a material difference in being convicted of three counts of rape and seven.  When that is coupled with the statutory stricture to impose the shortest appropriate period of detention it must be concluded that error has occurred.

[80] Apart from that omission, his Honour’s approach to the sentence took into account all the relevant circumstances which s 150 of the Act required.  The offending was persistent, it involved penile sexual intercourse with a young child, there was some coercion involved and a discreditable attempt to blame the complainant.  There was a concerning lack of insight and prospects for rehabilitation were not optimistic.

[81] A consideration of the cases to which reference has been made suggests that the sentence of three years, putting to one side the AB principle, did not offend the obligation in s 150(2)(e) of the Act that the detention should be for the shortest appropriate period.  However, insufficient recognition was given to the fact that four of the rape convictions arose from the applicant’s admissions and that ought to have led to a reduction in the sentence.  In the circumstances, I would reduce by three months the detention order made in respect of the rape offences to periods of two years and nine months.

(iv) Recording of conviction

[82] At the court’s request Mr Benjamin prepared a note concerning the provisions of the Commission for Children and Young People and Child Guardian Act 2000 on the effect of the recording of convictions on screening for particular employment under that Act.  Without wishing to minimise the detailed analysis which he undertook, in summary, that Act provides that those who wish to work in particular jobs or wish to establish particular businesses involving children must first undergo screening by the Commission for Children and Young People to ensure that they are suitable to do so.  It is an offence for a “disqualified person” to sign an application made about them by an intended employer who wishes to employ that person in such a business or to sign an application for a regulated business.  A disqualified person is a person who has been convicted of an offence, amongst others, against a child or is subject to reporting obligations.  In some circumstances there may be no capacity even to employ such a person.

[83] There is nothing in the applicant’s background or plans which would suggest that he would be likely to seek employment of that kind.  The observations of this court in R v Briese; Ex Parte Attorney-General,[33] referring, it is true, to adult offenders pointed out the considerable affect in the community of a person being entitled to conceal the truth about his or her criminal background, particularly from those who would be entitled to know about it.[34]

[84] In R v Gallagher; Ex Parte Attorney-General,[35] McPherson JA expressed the opinion that it was undesirable to refrain from recording a conviction in cases involving sexual offending against children, because those who have care or custody of children will be deprived of an opportunity of finding out if someone has, in the past, committed a sexual offence or offences against a child, enabling them to take reasonable precautions for the welfare of those children.

[85] In R v DAU, on the question of the recording of conviction Holmes JA quoted the statement of principle from R v KU & Ors ex parte A-G (Qld):

“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). …”[36]

Her Honour commented that this statement was not meant as “an unqualified prescription for the recording of a conviction in every case of rape”[37] but was specific to the circumstances of the offending.  Her Honour held in that case there was no error in a conviction not being recorded in the circumstances. 

[86] The primary judge noted that the Act provides that a conviction is not to be recorded other than under s 183 of the Act and set out the various factors in s 184 of the Act.  His Honour distinguished SBR[38] on the basis that in that case there was one count of rape as against seven in the case of this applicant; that it was unaccompanied by violence or coercion; and there was no victim impact statement or other evidence to suggest that the impact of the offending exceeded what would normally be expected; it was an offence of digital rape. 

[87] His Honour concluded that convictions ought to be recorded in respect of each of the counts of rape “having regard to the repeated nature of the offending, and the very serious facts in relation to each of the counts”.  His Honour also referred to the effect on the complainant and noted the submission that the applicant would be disadvantaged in terms of his rehabilitation.  Nonetheless, he concluded that the circumstances of the offending were so serious as to warrant the recording of a conviction.  Clearly his Honour gave careful thought to whether or not to record conviction.  This is demonstrated by his Honour’s rejection of the submission that a conviction should be recorded for the arson offence, his Honour explaining that the applicant was then emotionally distressed and isolated from his family.  His Honour exercised his discretion having regard to the considerations set out in s 184 and they were not limited to the nature of the offence.  No error has been shown in the recording of a conviction.

Orders

[88] The orders which I propose are:

1. Application for leave to appeal against sentence granted.

2. Allow the appeal.

3.(i)Instead of the sentences imposed below on counts 3, 4, 5, 8, 10, 11 and 12, impose sentences of two years and nine months detention on each count to be served concurrently.

(ii)The appellant be released from custody after serving 50 per cent of the detention order.

4. The orders made in the District Court are otherwise affirmed.