R v KAZ[2022] QCA 34

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Fraser JA.

2. [2]
   FRASER JA:  The applicant applies for leave to appeal against a sentence imposed on 29 July 2021 when he was 16 years old for offences he committed in September 2018 when he was 13 years old.  For one offence of rape (count 5) the applicant was sentenced under s 175(1)(g) of the Youth Justice Act 1992 to 18 months detention with an order for release after serving 50 per cent.  For each of two offences of rape (counts 3 and 4) and two offences of indecent treatment of a child under 16 (counts 1 and 2), the applicant was sentenced to two years’ probation.  A “Griffith condition” of the probation order provides that the “child be subject to programs conducted by the Griffith Youth Forensic Service or another appropriate service to address sexual offending.”  Convictions were not recorded.
3. [3]
   The applicant contends that the sentencing judge made three specific errors and that the imposition of a detention order on count 5 rendered the sentence manifestly excessive.
4. [4]
   The circumstances of the offences are set out in an agreed statement of facts.  The applicant and the complainant were in grade eight at school and knew each other.  During the third session on the last day of term they were in the same class and spent some time together.  At the beginning of the lunch break, the applicant approached the complainant, brushed her hair off her face, and kissed her.  The complainant pushed him away and turned to leave.  He grabbed her by the arm and dragged her into a brick alcove in an area that was out-of-bounds at lunch times.  The applicant told the complainant that he would hit her if she screamed.  In the alcove the applicant pushed the complainant against a brick wall.  He kissed her again as he pinned her arms against the wall.  The complainant told him to stop.  He slapped one of her breasts (count 1) and continued to kiss her.  The applicant lifted up clothing and a bra to expose the complainant’s breasts.  He kissed her nipples (count 2) and squeezed and groped at her breasts.  The complainant was shaking and did not know what to do.  The applicant pulled up the complainant’s skirt, moved her underwear, and rubbed the outside of her vagina.  He digitally penetrated her vagina with two fingers (count 3).  The complainant opened her mouth to protest but the applicant told her to shut up.
5. [5]
   Eventually the applicant pushed the complainant by her shoulders on to her knees, so that she was kneeling on the ground.  He clutched at the back of her head, parted her lips with his fingers, pulled his pants down to the ground and inserted his penis into her mouth (count 4).  Eventually the applicant made the complainant stand up by grabbing her underneath each armpit.  He turned her around to face the wall, pushed her against it, pulled her skirt up and moved her underwear to the side again.  The applicant spread the complainant’s legs apart and forcefully shoved his penis inside her vagina (count 5).  The applicant told the complainant a number of times not to scream.  Eventually the applicant withdrew his penis, continued to masturbate himself to the point of ejaculating into his hand and he wiped his hand on the brick wall.  The applicant told the complainant not to tell anyone or he would come and find her.  He told her to stay quiet, count to 20, and once she could not see the applicant anymore, count to 20 again.
6. [6]
   Immediately after the complainant finished counting, she ran towards the school office for help.  When she saw one of her friends she told her she got raped by the applicant.  Other girls saw the complainant crying hysterically and shaking, with her skirt dishevelled and back-to-front.  Those girls reported the matter to a teacher and the complainant was escorted to the office.  She told her year level coordinator that she had been raped.  The police were notified and the complainant participated in an interview with police later on the same day.  Within hours of the offences the complainant underwent a forensic examination.  She was observed to have injuries consistent with her account, including pain and redness to the right side of her upper chest, tenderness to her upper right arm, an abrasion on her right forearm, and dirt and abrasions on her knees.
7. [7]
   The applicant became aware of the commotion at the school whilst the complainant was being taken to the office.  A student saw that the applicant was wide-eyed and running away from the teachers looking for him.  Police arrested the applicant at school later that afternoon.  He participated in a record of interview with his step-father present as a support person.  The applicant told police the complainant kissed him and then he went way too far.  On the applicant’s account, any kissing was consensual and initiated by the complainant.  The applicant denied that anything other than kissing had occurred.  He explicitly denied he had engaged in the conduct described by the complainant.
8. [8]
   DNA evidence subsequently derived from forensic specimens collected from the applicant, the complainant, and the offence location, strongly supported the complainant’s evidence that the applicant engaged in that conduct.  The charges against the applicant were committed for trial by a full hand-up committal in late February 2019.  The indictment was presented in May of the same year.  In December 2019 the applicant pleaded not guilty to all counts.  A pre-recording of the complainant’s evidence scheduled to take place in February 2020 was adjourned because of the complainant’s hospital admission for an overdose.  A trial scheduled to take place on 20 April 2020 was adjourned to enable the applicant to bring pre-trial applications.  On 11 September 2020 the applicant pleaded guilty to counts 1 and 2 and not guilty to counts 3-5.  Evidence of the complainant and two other affected child witnesses was pre-recorded on 6 November 2020. The trial was listed for the sittings commencing in late January 2021.  A trial scheduled to take place on 3 February 2021 did not proceed because the trial judge recused himself.  The matter was listed for trial in the sittings commencing 24 May 2021.  On 6 May 2021 the applicant pleaded guilty to all counts.  A pre-sentence report was ordered and the matter was listed for sentence.
9. [9]
   A victim impact statement by the complainant described extensive and severe emotional and other impacts.  She was rendered unconscious by anxiety attacks.  She underwent very frequent counselling.  Her consultations with doctors and psychologists did not appear to assist her.  Her knowledge of the imminence of the court hearing in February 2020 drove her to overdose on Panadol.  She presented at hospital on 18 February 2020 with suicidal – homicidal ideation and was admitted as in-patient with a then unknown date of discharge.
10. [10]
    A psychological report records that the applicant had previously been diagnosed as having a mild intellectual disability.  The diagnosis assisted in explaining the applicant’s learning difficulties, social difficulties, and frequent behavioural problems at school.  He was at a low level across most of the functioning areas, with notable difficulties in communication, community use, leisure and self-direction.  He was academically behind his age equivalent peers.  The applicant presented “as a youth with mild intellectual disability with co-morbid depressive and anxiety symptomatology” who was “inhibited and apprehensive, and experiences pervasive feelings of personal inadequacy and worthlessness, that appear to have resulted in anxiety and mood disturbance”.  The applicant could not correctly identify the age of consent.
11. [11]
    The applicant denied exposure to pornography or engaging in any masturbatory behaviour.  The psychologists considered those denials were inconsistent with his sexual offending behaviour and amounted to an attempt to minimise concerns about his sexual knowledge and behaviour in the context of anxiety related to the offences.  The psychological report refers to Education Queensland records of 22 different categories of school behaviour problems and the absence of explicit reporting for sexually inappropriate behaviours in school settings.  The psychologists observed:

“Youth Justice requested this information from Education Queensland, however, they advised that they could not share this information given an absence of parental consent for release.  Subsequently, it is unknown whether [the applicant] engaged in sexually inappropriate behaviour at school, and this information has not been recorded or shared as part of the current assessment.  The absence of this information is considered a limitation to the current assessment.”

12. [12]
    The applicant maintained partial denials of his offending behaviour.  He sought to blame the complainant.  The applicant “demonstrated little empathic concern and general indifference to the harms caused to the complainant as the result of his offending behaviour” and was primarily focussed upon possible negative outcomes for himself.  He demonstrated limited awareness of potential future risk situations and how they might be managed.  Significant gaps remained in understanding the applicant’s offences and further assessment, within future offence-specific therapeutic intervention, was warranted.
13. [13]
    The psychologists opined that an intellectual disability did not directly cause sexual offending.  It was suspected that the applicant’s mild symptomatology and sequelae “served to loosen his inhibitions and created vulnerability to his development of aberrant and dysregulated behaviour”.  His “likely self-exposure to pornography appears to have shaped his development of ... attitudes and ideas about what behaviours were acceptable, desirable and pleasurable), influencing his sexually coercive behaviour.”  The psychologists estimated that the applicant presented as a moderate to high risk of sexual reoffending.  His risk of recidivism would increase if he was not offered appropriate care, supervision and monitoring, and engagement in structured activities.  The applicant was suitable to engage in sexual offence-specific treatment and likely to benefit from it.  The psychologists also recommended the applicant engage in “structured pro-social activities that are assessed as safe.”  Engagement “in education and within schools are a principal agency” for socialisation and correction for at-risk youth.  It was the psychologists’ opinion that the applicant’s risk could be managed within school settings.
14. [14]
    A Youth Justice caseworker in the Department of Children prepared the pre-sentence report.  Many of the statements in the pre-sentence report are to the same effect as statements in the psychological report.  The pre-sentence report records that, because the offences occurred at school, Youth Justice Services requested more detailed information about the applicant’s behavioural incidents whilst at the school before the offences.  Youth Justice Services was advised that “due [the applicant’s mother] not consenting to the release of this information, the relevant legislation prevents the Department of Education from releasing any further information in relation to [the applicant] without a subpoena”.  In consequence, the Department had not been able to obtain a more detailed history of the applicant’s behaviour in the school environment.  After referring to pre-disposing risk factors that had been described by the psychologists, the report states that because of the unavailability of further information the author was unable to complete a thorough assessment about the presence of any predisposing sexualised behaviour in a school environment.
15. [15]
    The report states the applicant was unable to return to a mainstream high school during the remand period.  He had instead enrolled in the School of Distance Education, but had difficulty with that learning model and completed very minimal schooling.  The applicant continued to reside with his mother, her partner, and two younger siblings in the family home.  He had worked upwards of 30 hours most weeks since commencing employment as a kitchen hand in a restaurant on May 2021. The applicant was willing to explore vocational training options but indicated that it would need to fit around his employment commitments.  In the remand period, he engaged with bail support service facilitated by Mission Australia.  Until the end of 2020 he attended activities with that service on a regular basis, including sporting and cultural activities.  That service had ceased operating in late 2020.  The applicant had declined a further referral to a similar support service.  The report records that all sentencing options were discussed with the applicant and the applicant had consented to all of them.
16. [16]
    The report identifies sentencing options that might be considered appropriate:

    1. (a)
       A probation order, with the option to impose a condition that the applicant engage with specialist services to address sexual offending behaviour.

The report describes a “Griffith condition” as an example of a suitable condition: “To attend the Griffith Youth Forensic Service or any other program as directed by Youth Justice and comply with all reasonable requirements of the program and maintain a rate of progress that is satisfactory to the treatment program”.

2. (b)
   A community service order.

The report notes that under s 200(4) of the Youth Justice Act, any ordered community service hours that exceed the maximum of 200 hours are of no effect.

3. (c)
   A detention order with an order suspending the detention order and a conditional release order requiring the applicant to be involved in a structured program for a maximum of three months.

The pre-sentence report states the conditional release order program would require the applicant to participate in employment and/or education and interventions to reduce the likelihood of further offending, and the applicant would be required to work intensively with his case worker throughout the duration of that order.  The applicant would be required to attend educational, vocational and/or employment activities; for the applicant that would consist of him continuing with his current employment.  He would be required to engage with supports to explore vocational, educational and training opportunities (which would need to fit in with his employment commitments), engage with support to explore recreational activities, and engage in individualised sessions with his case worker in relation to healthy relationships, appropriate sexual conduct and safety planning.

The report states the applicant had been assessed as a suitable candidate for a conditional release order and a copy of a proposed program developed by the department was attached and marked “C”.  The effect of that program is to support the applicant’s employment as a priority, whilst providing additional support for the applicant to re-engage with his education at an approved program provider and participate in specified vocational, recreational and reintegration activities.

Relevantly to one of the grounds of the application in this Court, the report states, “…due to the short duration of a conditional release order, Youth Justice would not have sufficient time to engage [the applicant] in specialist services to address sexual offending, such as engagement with the Griffith Youth Forensic Service or alternative service providers”.

4. (d)
   A detention order.

The report states a detention order would provide a clear punishment for the applicant and a strong message that such offending is unacceptable, but it would deny the applicant the opportunity to continue with his current employment and limit his opportunity to address his offending behaviour with community based supports.  In detention, the applicant would have the opportunity to attend educational and vocational-based programs and other interventions aimed at addressing his risk factors from within the detention centre.  Following detention he would be released into the community under a supervised release order, the focus of which would be to reintegrate the applicant into community based programs and interventions, with adequate support to assist him in the transition.

5. (e)
   A community service order combined with a probation order under s 178 of the Youth Justice Act, or a period of detention combined with a probation order under s 180 of the Act.  (Under s 180, the maximum period of detention is 6 months, and the probation order may operate for a maximum period of 1 year commencing upon release from detention.)^[1]

17. [17]
    The purpose of the “conditional release order” mentioned in (c) of the preceding paragraph is to provide “an option instead of the detention of a child by allowing a court to immediately release the child into a structured program with strict conditions”.^[2]  Such an order must require the child to participate as directed by the chief executive in a conditional release program for a period not exceeding three months.  At the end of the program period, the child is no longer liable to serve a period of detention under the detention order unless the child has contravened the conditional release order, in which event proceedings may be taken against the child with a view to the sentencing court revoking that order and ordering the child to serve the sentence of detention.^[3]
18. [18]
    At the sentence hearing the Crown submitted that appropriate sentences were (for count 5) detention for a period in the range 18 months to two years, suspended by way of a conditional release order, and (for counts 1-4) a lengthy probation order, perhaps in the vicinity of three years, with a Griffith condition.  Counsel for the Crown submitted that under this combination of sentences the applicant would be subject both to an intensive program for three months under the conditional release order and the longer-term specific intervention provided under a Griffith condition.  Counsel for the applicant submitted that it would be appropriate to sentence the applicant to probation for two to three years with a condition that he engage with the Griffith program and undertake any course or training programs required by his probation officer.
19. [19]
    The first specific error for which the applicant contends is that the sentencing judge erred in the application of s 208 of the Youth Justice Act by failing to properly consider the suitability of other available sentences.
20. [20]
    To put that section in context I will first refer to other relevant provisions of the Act.  The effect of s 150(1)(a) is that, subject to other provisions of the Act, a Court sentencing a child must have regard to general sentencing principles, including the sentencing purposes of punishment, rehabilitation, personal deterrence, general deterrence, denunciation, and community protection.^[4]  Congruently with that provision, s 150(1) requires the sentencing court also to have regard to (so far as is relevant for the subject sentence) “(d) the nature and seriousness of the offence”, “(f) the presence of any aggravating or mitigating factor concerning the child” and “(j) any impact of the offence on a victim, including harm mentioned in information relating to the victim given to the court under the Penalties and Sentences Act 1992, section 179K”.
21. [21]
    As s 150(1) (a) contemplates, the general sentencing principles are qualified by other provisions of the Act.  In particular:

    1. (a)
       Section 150(1)(b) requires a sentencing court to have regard to the Youth Justice Principles, which include:

“9. A child who commits an offence should be –

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

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

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

4. (d)
   dealt with in a way that recognises the child’s need for guidance and assistance because children tend to be dependent and immature.

…

13. A person making a decision relating to a child under this Act should consider the child’s age, maturity and, where appropriate, cultural and religious beliefs and practices.

…

17. A child should be dealt with under this Act in a way that allows the child –

1. (a)
   to be reintegrated into the community; and

2. (b)
   to continue the child’s education, training or employment without interruption or disturbance, if practicable; and

3. (c)
   to continue to reside in the child’s home, if practicable.

18. A child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances.”

2. (b)
   Section 150(1)(c) requires the court to have regard to “the special considerations” in s 150(2) that:

“(a) a child’s age is a mitigating factor in determining whether or not to impose a penalty, and the nature of the penalty imposed; and

2. (b)
   a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community; and

3. (c)
   the rehabilitation of a child found guilty of an offence is greatly assisted by –

1. (i)
   the child’s family; and

2. (ii)
   opportunities to engage in educational programs and employment; and

4. (d)
   a child who has no apparent family support, or opportunities to engage in educational programs and employment, should not receive a more severe sentence because of the lack of support or opportunity; and
5. (e)
   a detention order should be imposed only as a last resort and for the shortest appropriate period.”

22. [22]
    Consistently with those provisions, particularly Youth Justice Principles 17 and 18 and ss 150(2)(b), (c) and (e), s 208 provides:

“A Court may make a detention order against a child only if the Court, after –

1. (a)
   considering all other available sentences; and

2. (b)
   taking into account the desirability of not holding a child in detention;

is satisfied that no other sentence is appropriate in the circumstances of the case.”

23. [23]
    The sentencing judge’s reasons for making a detention order (without an order immediately suspending detention and a conditional release order) are expressed in the following passage of the sentencing remarks, in which I have added the emphasis:

“Obviously, before I can consider imposing a period of detention, I need to have regard to section 208 of the Youth Justice Act which provides that a court may make a detention order against a child only if the court, after considering all other available sentences and taking into account the desirability of not holding a child in detention, is satisfied that no other sentence is appropriate in the circumstances of the case. I am of the view that the failure by you to engage meaningfully with the Griffith Youth Justice clinicians in the preparation of the report, your lack of empathy, your ongoing blaming of the victim, and the lack of cooperation by your mother, are such that when the statement that the period that would be the subject of a conditional release order would be inadequate to address your moderate to high risk of reoffending, that a conditional release order would not be appropriate.

In my view, despite your lack of criminal history, despite the fact that you were only 13 years of age at the time you committed these offences, and despite the fact that you have not offended in the meantime, the brutal and protracted nature of the offending, the significant and truly tragic consequences for the victim, and your complete lack of empathy are such that the requirements of section 208 are satisfied.

For the sake of completeness, I consider that in circumstances where, understandably, restorative justice is not sought nor appropriate, that a probation order or other community based order is inadequate in addressing the need for a sentence which is reflective of both personal and general deterrence, denunciation and protection of the community. You need to be placed into a structured environment where a meaningful process of rehabilitation can occur.

Because you have demonstrated no empathy, no acceptance of responsibility, and sought no treatment for the underlying causes of your offending since you committed these offences, you remain a moderate to high risk of reoffending. And when this, taken into account together with the expressed inadequacy of a conditional release order in the pre-sentence report, I am of the view that all other available sentences are not sufficient, and although a sentence of detention is a sentence of last resort, it is appropriate in these circumstances.”

24. [24]
    The remarks in the first and last paragraphs about what the sentencing judge perceived to be an inadequacy of a conditional release order are founded upon the statement in the pre-sentence report quoted in the last sentence of [16](c) of these reasons.  That statement was made only about an order for detention qualified by an order for immediate suspension and a conditional release order.  The statement does not purport to apply in relation to the combination of orders upon different counts proposed by the Crown.  Under that combination of orders, the applicant would be obliged to complete the intensive program for three months under the conditional release order concurrently with the first three months of a much longer period of probation, which would require engagement in the long term, specific intervention to address sexual offending under the Griffith condition.  The sentencing judge’s remarks do not address the submission by counsel for the Crown to that effect.
25. [25]
    There are specific provisions in the Youth Justice Act restricting the combinations of orders that may be made for a single offence,^[5] but those restrictions do not apply where a combination of orders results from different orders being made for different offences: see R v A and S, Ex parte Attorney-General (Qld).^[6]  In that case, the Court held that the Youth Justice Act (then named the Juvenile Justice Act 1992) empowered a court to sentence a juvenile offender for separate offences by way of concurrently operating orders for probation and for detention with immediate release.  McMurdo P and Thomas JA observed that this is “a useful combination when sentencing juvenile offenders for multiple offences, combining the long-term supervision and control of probation with the instant intense supervision of an immediate release order.”^[7]
26. [26]
    Because the sentencing judge did not take into account the effect of the combination of orders proposed by the Crown, the sentencing judge failed to consider the suitability of all available sentences other than detention, as required by s 208 of the Youth Justice Act.  That error was compounded by an error in the sentencing judge’s finding (in the third paragraph of the quoted passage) that the applicant needed to be in “a structured environment” (meaning detention) for his rehabilitation; reasoning that detention is necessary for a child offender’s rehabilitation is inconsistent with the Youth Justice Act.^[8]
27. [27]
    The second specific error for which the applicant contends is that the sentencing judge incorrectly determined that the applicant had failed to engage in activities while on bail which addressed his risk of re-offending.  The applicant relies upon observations the sentencing judge made during the submissions for the Crown that the applicant had not continued to offend but had not done anything to address his propensity to offend, the applicant was a high to medium high risk sex offender, and he had not availed himself of any support to deal with that risk.
28. [28]
    The respondent relies upon the general rule that it is necessary to look to the words used by a judge in his or her reasons in order to ascertain the basis for the judge’s decision, particularly where there is no ambiguity of language,^[9] but a similar sentiment was reflected in the sentencing judge’s remark that, you have “not sought any treatment for the reasons underlying your offending”.  The evidence does not support a finding that the applicant, a child with the intellectual disability described in the psychological report who was under the care of his mother, should have appreciated that there was an available treatment of the underlying reasons for his offending which he should have undertaken whilst on bail.
29. [29]
    The third specific error for which the applicant contends is that the sentencing judge erred by treating as an aggravating factor the absence of consent by the applicant’s mother to the release of information to Youth Justice.  The sentencing judge remarked “You have, with the support and active participation of your mother, frustrated efforts to assess the risks of your reoffending…” and took into account (see the first paragraph of the passage quoted in [23] of these reasons) “the lack of cooperation by your mother” as a factor relevant to the question whether no sentence other than detention was appropriate in the circumstances of the case.  That was evidently a reference to the applicant’s mother’s conduct in not consenting to the release of information about the applicant’s behaviour at school.  There is no evidence that the applicant participated in or even knew of his mother’s conduct.
30. [30]
    The sentencing judge having made specific errors in the exercise of the sentencing discretion, the Court is obliged to re-sentence afresh unless it concludes in the independent exercise of its discretion that the same or a more severe sentence is the appropriate sentence.^[10]  It is therefore unnecessary to consider the ground of the application that the imposition of the detention order on count 5 rendered the sentence manifestly excessive.
31. [31]
    In assessing the weight to be attributed to sentencing purposes which support a sentence of detention it is necessary to bear in mind the emphasis in the Act upon rehabilitation in the community and the significance of the age of a child offender; consistently with the premise upon which the Youth Justice Act operates, the pre-sentence report and the psychological report support a rehabilitative sentence as the most effective means of reducing the risk of recidivism and the distressing circumstance that the applicant was as young as 13 when he committed the offences of itself weighs against imposing detention.  It is also in the applicant’s favour that he had no history of committing offences, he did not commit any further offences during the very long period when he was on bail, he found employment, and for a significant part of that long period he cooperated with a bail support service.
32. [32]
    It is necessary also to bear in mind that the applicant is entitled to mitigation of the sentence on account of his pleas of guilty.  But he is not entitled to the degree of leniency afforded to an offender who is insightful and remorseful; he falsely told police that the complainant initiated consensual kissing, he falsely denied having engaged in his offending conduct, and he sought to blame the complainant for his own offending conduct.  The extent of the mitigation that otherwise might be allowed for the pleas of guilty is limited by the circumstances that the pleas were entered in the context of a strong Crown case, none of the pleas were entered until after dates had been fixed for trial, and the pleas of guilty to the most serious offences were not entered until after the complainant and two other affected child witnesses had given their pre-recorded evidence and those counts had been listed for trial after a trial of those count previously listed to take place could not proceed.
33. [33]
    The psychologists’ evidence about the applicant’s mild intellectual disability is material for the sentence, but it does not justify a finding that the disability reduced the applicant’s moral culpability for his offending such as to supply an independent ground for mitigation of his sentence.  The applicant’s initial threat of violence if the complainant screamed, his violent response when the complainant told him to stop, his silencing of her protests, and his concluding threat that he would find her if she complained demonstrate that the applicant knew what he was doing was wrong.
34. [34]
    Despite the reduced significance the Youth Justice Act attributes to sentencing purposes that weigh in favour of detention and the particular circumstances favouring a rehabilitative sentence, the circumstances as a whole, especially the objective seriousness of the applicant’s offending and the severity of the harm he inflicted upon the youthful complainant, persuade me that any sentence which does not require the applicant to serve a period of custody in detention would be inadequate to hold the applicant accountable for his offending (Youth Justice Principle 9(a)), would have insufficient regard to the aggravating features of the offences (s 150(1)(f)), would inadequately reflect the significance of the impact of the applicant’s offending upon the complainant (s 150(1)(j)), and would have insufficient regard to the sentencing purposes of punishment, general deterrence, and denunciation (s 150(1)(a)).  On the most serious count, count 5, no sentence other than detention with a period of actual custody is appropriate.
35. [35]
    Rehabilitation nevertheless remains an important sentencing purpose.  It is appropriately addressed by a lengthy probation order with a Griffith condition, such as was imposed by the sentencing judge on each of counts 1-4.  It is not submitted that under the Youth Justice Act a probation order cannot be imposed to operate concurrently with a detention order, at least during the period of the supervised release order under which the child must be released from detention.^[11]
36. [36]
    In fixing upon the length of the detention order, it is necessary to keep in mind that s 150(2)(e) of the Youth Justice Act requires that a detention order should be for the shortest appropriate period.  In this aspect of the sentence, relatively greater weight should again be given to the factors favouring a rehabilitative sentence.  Upon the evidence of the psychologists, rehabilitation in the community under the Griffith condition and otherwise under the probation order seems more likely to reduce the risk of recidivism than would a very long period in detention.  As to the minimum custodial period under a detention order, s 227(2) of the Youth Justice Act provides that a court may order a child to be released from detention after serving 50 per cent or more, and less than 70 per cent, of a period of detention if it considers that there are special circumstances, for example to ensure parity of sentence with that imposed on a person involved in the same more related offence;^[12] and s 227(1) provides that unless an order is made under subsection (2), the child must be released from detention after serving 70 per cent of the period.
37. [37]
    The appropriate sentence in all of the circumstances is (for counts 1-4) probation for two years with a Griffith condition (as ordered by the sentencing judge) and (for count 5) an order for detention for 14 months with release after serving 50 per cent of that period.  For the purposes of s 227(2), the special circumstances justifying the order that the applicant be released from detention after serving 50 per cent of that period of detention are that the applicant was only 13 years old when he committed the offences, he had no record of previous offending, he found employment and did not re-offend during the lengthy period he was on bail, and the psychological report indicates his rehabilitation would best be promoted by treatment in the community.  It was not submitted that convictions should be recorded under ss 183(3) and 184.  Taking into account the considerations already discussed, and consistently with the sentencing judge’s decision in this respect, I would not record convictions.
38. [38]
    Having regard in particular to the facts that the applicant was only 13 years old when he committed the offences against the 14 year old complainant and he suffers from the disability described by the psychologists, that sentence is consistent with such guidance as may be derived from the sentence of two years detention to be released after serving 50 percent upheld in R v DAU; Ex parte Attorney-General (Qld)^[13] for an offence of rape by a 15 year old child who engaged in similar offending conduct against an 11 year old child except that he did not commit a penile/vaginal rape, and the sentence of two and a half years detention to be released after serving 50 per cent upheld in R v AAV^[14] for two counts of rape and four counts of indecent dealing by a 16 year old child against an 11 year old child.
39. [39]
    The wholly rehabilitative sentence, which the Attorney-General failed to have set aside in R v MBQ: Ex parte Attorney-General (Qld)^[15] is explicable by the circumstances that the offender in that case was only 12 when he offended, he had a mental age of only nine (and the Court bore in mind that under the Criminal Code children under 10 are presumed not to be criminally responsible),^[16] he did not properly understand that he ought not to commit the offences, there was persuasive evidence that the offending was out of character, he had promising rehabilitative prospects, there was an absence of any physical injury to the toddler complainant, the degree of penetration and force used was considered to be minimal, and the offender had cooperated with police.
40. [40]
    McMurdo P’s discussion in MBQ^[17]of more serious offending for which more severe sentences (involving four years detention and, in one case, three years detention) for more serious offending by children does not indicate that 14 months with release after 50 per cent of that period is not the appropriate sentence in this case.
41. [41]
    I would make the following orders:

1. Grant the application for leave to appeal.
2. Allow the appeal.
3. Vary the orders made by the sentencing judge by substituting “14 months” for “18 months” in the detention order for count 5.
4. Otherwise confirm the orders made by the sentencing judge.

42. [42]
    BOND JA:  I agree with the reasons for judgment of Fraser JA and with the orders proposed by his Honour.