DISTRICT COURT OF QUEENSLAND

1. [1]
   The offender in this case was born on the 10^th day of December 1984.  He was 16 years at the date of the offences and is now 17 years of age.  The complainant was 30 years of age.  The offences occurred between the 6^th day of March 2001 and the 11^th day of March 2001 at Brisbane.  The offender is dealt with as a child pursuant to the provisions of the Juvenile Justice Act 1992: s. 105 (“the Act”).  The offences with which he is charged are four counts of attempted rape, two counts of rape and one of torture.  He has pleaded guilty to each charge.  The facts giving rise to each of the offences are as follows:

2. [2]
   Count 1 Attempted rape:

The offender tried to have sex with the complainant and he pushed her on her back and forced her legs apart and tried to put his penis in her vagina.  He held her wrists above her head.  She did not yell out because he had previously hit her and she was terrified of him. (See para 83 of complainant’s statement Ex. 2)

Count 2 – Attempted Rape:

The offender had burned her with cigarettes and then tried to have sex with her.  He pulled his penis out to the top of the shorts and put it against her vagina but she resisted and there was no penetration.  (See para. 85 Ex. 2)

Count 3 – Rape:

The offender put his fingers in her vagina.  They were in there for a few seconds.  (See para 97 Ex 2).

Count 4 – Attempted Rape:

The offender pushed her on to the floor of the bathroom, forced her legs open, pulled down his shorts and tried to stick his penis inside her.  (See para 98 Ex 2).

Count 5 – Attempted Rape:

The offender tried to have sex with the complainant but could not because she was kneeling and struggling to prevent it (para 102 Ex 2).

Count 6 – Rape:

The complainant was hit on the back of the head with the offender’s hand and he pulled her mouth open and his penis went into her mouth for a few seconds. 

Count 7 – Torture:

Over a period of five days, the complainant was subjected to being burnt with cigarettes on her upper thigh in the vicinity of her vagina, she was kicked by the offender, her wheelchair was taken from her and because she suffered from cerebal palsy had to crawl around the floor, the offender held a knife to her throat and there were threats to kill her.  She was cut on the hand with a knife.  (Ex 2).

Pre-Sentence Reports

3. [3]
   A report dated 6 June 2002 was obtained from the Open Area Youth Justice Service, Department of Families. The report stated that there were four factors contributing to the offender’s conduct:

1. Maternal deprivation of family environment.

The offender told the interviewer that his mother would have different partners at home and witnessed domestic violence and sexual acts. The author of the reports said that the life experiences would have contributed to his conduct and his hostility towards women.

2. Situational Factors

The offender was residing with a care provider, appointed by the Department of Families prior to these events.  After an argument, he left the house and was living on the streets when he met the co-offender involved in these events who was a friend of the complainant.  The offender, according to the author of the report, said that his established feelings of rejection and inappropriate behaviour were exacerbated by his environment.  The subject offender was also subjected to physical abuse by his co-offender an older person.  As the several acts by the subject offender occurred when the complainant’s boyfriend, the co-offender, was absent it cannot be said that the subject offender was co-erced in this respect.

2. Poor impulse control and anger management

At the time of the offences the offender was alleged to be aggressive and responding negatively.  He had this lack of impulse control and ability to handle or manage his anger. 

3. Drug Use

Since the time that the offender has been in the care of his present carer, he has not been using drugs.  At the time he was using them to a significant degree and he, the offender, strongly attributes the commission of the offences to his drug use.

4. [4]
   The offender has attempted to minimise his actions in terms of their duration and seriousness according to the report. His current situation is that he is in the care of a person who states that his personal circumstances have changed considerably and he is more stable in his present environment which is a facility outside Brisbane. The supervisor is an approved care provider.

5. [5]
   After looking at the various options available, the author suggests that any period of detention should be suspended to allow the offender to complete an immediate release order (IRO) of up to three months. An appropriate program is attached to the report. The prosecution have suggested three (3) years probation for the torture and five (5) years detention suspended for an immediate release order. In effect, the offender would spend no time on detention under those orders.

6. [6]
   A further report was obtained from two persons who are part of the School of Applied Psychology at Griffith University (Ex 1A). Various tests have been carried out in relation to the offender’s conduct. Reference is made to his previous history, including his drug use. The offender is now completing school externally via distance education from the facility where he lives. The offender was assessed as a person of average build and average intellectual functioning. His problems are related to resolving his relationship with his mother. The causes of his conduct were discussed. The offender attributes some blame to some provocation by the complainant and the drugs he was on at the time. According to the report, he does feel guilty about what he had done and the fact that the victim might not forgive him. His plea of guilty is evidence of his remorse. In fact he liked the complainant because she had given him a bicycle. He demonstrated a lack of sexual knowledge. The authors state that, based upon their testing him and all the circumstances, the offender was considered to be at medium risk of sexually re-offending. The offender was willing to engage in therapy as part of any community based order. Such therapy was available through the Griffith Adolescent Forensic Assessment and Treatment Centre. That service is available within the Youth Detention Centre, a factor which may have been overlooked by the prosecution.

Principles to be applied

7. [7]
   Section 4 of the Act provides for the general principles of sentencing and juvenile justice.  At the top of the list is the principle that the community must be protected from these types of offences.  Another principle is that a child should be detained in custody for an offence, only as a last resort.  The present offender has no previous conviction.  The High Court in Veen v The Queen (1978-1979) 143 CLR 458 gave recognition to the protection of the community as being an important factor in determining sentences, but was not, of itself, a justification for a sentence of preventative detention.

8. [8]
   Section 349 of the Criminal Code was amended on 27 October 2000 to include digital penetration and fellatio as falling within the definition of rape, if done without the consent of the other party.  The maximum penalty, therefore, for the rape offences in the present instance is life imprisonment and for attempt to commit rape, 14 years’ imprisonment and torture carries the same penalty.  Therefore, all of the subject offences fall within the definition of “serious offence” within the meaning of section 8 of the Juvenile Justice Act 1992.  Pursuant to s 121 of the said Act, if a child is found guilty of a serious offence and the court is presided over by a judge, the court may order up to three years’ probation or make a detention order for up to seven years in relation to the attempted rape or torture and in relation to the rape offences a period of not more than 10 years or up to and including the maximum life if the offence involves a commission of violence against a person and the court considers the offence to be a particularly heinous offence having regard to all the circumstances.  The prosecution have made no submissions in relation to the latter.  The order of detention can be made with or without an immediate release order under s 176 : See s 121(4).

9. [9]
   In R v C 1996 (QCA 14) Court of Appeal 436 in 1995, the court set out in full the options available.  It seems appropriate that I do so in the present case:

“SENTENCING OPTIONS

The sentencing options available to the Court are outlined in Sections 120 and 121 of the Juvenile Justice Act, 1992.  Attached to this Pre-Sentence Report is a copy of the “Sentencing Options Information Sheet”, marked with the letter “B”, for the Court’s perusal.

Probation Order.

Your Honour may consider a Probation Order for B.  This order would allow B to be supervised by the Department of Families for an extended period of time in order that his offending behaviour is appropriately addressed.  As components of the Probation Order B may participate in the following:

a) To participate in and successfully complete the Griffith Adolescent Forensic Assessment AND treatment Program, including individual, group and family counselling, as this would be the primary focus of the Probation Order to address B’s offending behaviour through counselling and therapeutic intervention;

b) Report to, and receive visits from the Department of Families;

c) Address anger management needs, factor that has been assessed as contributing towards B’s offending; and

d) Develop life skills in order to encourage a future transition from Bestbrook into the wider community.

The conditions of Probation Order have been explained to B and he has agreed to comply if ordered by the Court.  The serious consequences of failing to comply with this order have also been examined to B.

Community Service Order

Your Honour may wish to consider a period of community service for B.  This would provide a consequence for Bradley’s offending in terms of unpaid reparation, however it is the assessment of the author that it would not provide opportunity to address the psychological issues identified in the attached reports.  In view of the nature of the offences, a Community Service Order may have little relevance to B in terms of his association between the Court’s sentence and the offences.  Should Your Honour consider this an appropriate sentencing opinion, B can be sentenced up to 200 hours of community service under Section 120(e)(vii) of the Juvenile Justices Act 1992.

Community service activities would be available through community agencies accessed through the Department of Families.  This will be the result of an assessment to identify appropriate activities to encourage both a diversion from further offending and reparation for his offending behaviour.

The conditions of a Community Service Order have been explained to Bradley and he has agreed to comply if ordered by the Court.  The consequences of failing to comply with this order have also been explained to Bradley.

Detention Order

Your Honour has the option of sentencing B to a period of detention, however it is requested that the Court take into consideration the following factors when considering this option:

• B has no criminal history in Queensland;
• B has not previously had the benefit of any supervised community-based orders;
• The commitment to move on from offending through a structured treatment program, including community-based components, would not be readily available to B in custody; and
• The principles of the Juvenile Justice Act 1992 outline the Detention is to be considered as a last resort.

Immediate Release Order

Your Honour may consider sentencing B to a period of detention, then immediately suspending the order to allow B to complete an Immediate Release Order of up to three months.  This order would allow for B to participate in a structured program in order to address his offending behaviour and encourage a diversion for further offending.

Should Your Honour consider this an appropriate sentencing option an Immediate Release Order program, developed in consultation with Bradley, is attached to this report marked with the letter “c”.  Given B’s current residence and isolation of Bestbrook the Immediate Release Order Proposal attached includes maximum contact hours of 20 hours per week.  Should B’s residential situation change the Immediate Release Order Program will be reviewed.” (Exhibit 1).

10. [10]
    I have taken those matters into account in determining what an appropriate sentence would be in the present case. It is clear that community based orders would facilitate community programs and further treatment and counselling of the offender. However, even if the offender were in detention, he would have access to programs which might help to rehabilitate him to be able to play a positive role within the community upon release (C p 4).  As pointed out by Counsel for the offender, the Department of Families or its equivalent has had an interest in the offender since he was seven years of age but care of him since he was 14 years of age.  He has some degree of insight into what he has done.  It was suggested in the report that if a detention order was made that the offender would not have access to “a structured treatment program including community based component”.  That does not mean of course that some programs to assist in his rehabilitation would not be available.  Detention is to be considered as a last resort but also the seriousness of the offences has to be balanced against that consideration and also an expectation in the community that it will be protected from these types of offences.  A barrage of tests carried out by the Griffith Adolescent Forensic Assessment and Treatment Centre would seem to indicate that the offender is at medium risk of sexually re-offending.  I have been referred to various cases such as R v Watkins Court of Appeal 6/2/2001 and Queen v R Court of Appeal 13 of 1996.   Those cases concerned the actual penile penetration prior to the amendment in October 2000.  In some way the facts in R v C were similar to the present case, the difference being penile penetration albeit partial in nature.  There was also a count of indecent dealing, which was the insertion of the fingers into the vagina of the complainant, and also an attempt to place his penis in her mouth.  The features in that case were said to be more serious than R v Watkins where a three year six months head sentence was imposed (Watkins p. 8 per Muir J).  The head sentence of three years detention for the rape was imposed in C.   The offender had no previous convictions and an order was made that he be released after 50% of the head sentence was served.  A one year period of detention was given in relation to the other offences, including indecent assault.  The offender in C was 16 years at the time of the offences and 17 years when he was convicted and sentenced.  In Watkins, the offender was sentenced as an adult but with regard to s. 107B of the Act.  That complainant had a mild intellectual disability arising from Downs Syndrome.

Factual Background

11. [11]
    In the present case there is no victim impact statement. The statement given by the complainant to the police is Ex 2. There was a committal hearing with full cross- examination of the complainant. The complainant was born with cerebal palsy and had been in a wheel chair all her life. She is unable to walk unaided and crawls around without her wheel chair. The offenders took advantage of her in that regard. She suffered minor cuts from a knife, bruising, two black eyes and cigarette burns. Not all were caused by the present offender. With effort, she can tense her groin muscles and can manage to move her legs by taking weight with her upper body and so enable herself to get on to her knees. The treatment which she received from the present offender was despicable, even for a 16 year old with his deprived background. The offender should be found accountable and encouraged to accept responsibility for the offending behaviour. There seemed to be some reluctance on his part to do so by minimising his actions in relation to the offences, given their duration and seriousness, which may suggest a lack of awareness about his behaviour (Ex 1 p 3).  He has expressed a degree of remorse for his offences and it is likely that he was influenced by the conduct of his co-offender, who is yet to be dealt with.  In some ways he was attempting to copy his co-offender.  The present offender’s acts added to the complainant’s nightmare.  There were two other adults in the house.  One finally rang the police at the request of the complainant.

12. [12]
    What separates the present case from the other cases referred to is the length of time over which the complainant was subjected to the acts of torture and also the ongoing approaches by the offender for sexual gratification. The acts occurred over five (5) days. The cases referred to by defence Counsel in her submissions touching upon separate counts of rape, attempted rape or torture, were often more serious cases involving adults. In Attorney-General v Lawrie Court of Appeal 189 of 1999 which was attempted rape, and assault, a 16 year old threatened two young girls aged 14 and 16 with a knife and touching of one in the vaginal area, striking her, and then attempting to have sexual intercourse.  There was 12 months’ detention given subject to an immediate release order which was given then in a situation which was less serious than the present case.  Also, since the change to the legislation, recognition must be given to the fact that acts which were previously indecent assault are now categorised as rape. Therefore those cases which have been referred to in relation to indecent assaults are of less probative value given the present legislative provisions.  Certainly in relation to the torture counts, cases such as Geddes Court of Appeal 486 of 1998 and Brown Court of Appeal 379 of 1999 involved acts of torture by adults and in Geddes case on a child of 18 months.  The facts in Brown were slightly more serious.  Sentences were six years and seven years for Geddes and Brown respectively.  In Burns Court of Appeal 427 of 1998, the offender was charged with one count of torture and two rape.  He received a sentence of five years imprisonment for the rapes and twelve months for the torture which was concurrent.  As the appeal was allowed on conviction, the actual sentences were not discussed in the Court of Appeal.  One other decision of a single judge of the District Court was Egan and Litfin 15 February 1999.  The facts were that a group of men took the complainant from his home and assaulted him in a car using their fists and a beer bottle and burning his back with cigarettes.  There were threats to kill him and he was subsequently released.  The accused were 25 and 20 years of age respectively and each received three years imprisonment.  In setting the head sentence, I have taken into account all of the mitigating circumstances put before the court.  There are no “special circumstances” which would lead to a further order under s. 188(2) by which a recommendation for early release could be made. 

13. [13]
    The plea of guilty and the question of remorse have been considered as part of the process in setting the head sentence. A full committal hearing was held some twelve (12) months ago. It is not suggested that this was an early plea. There was still ongoing denial relating to the burning by the complainant with cigarettes. The risk factors are set out in that same report, (Ex 1A). His rehabilitation can continue whilst in detention.

14. [14]
    It must be remembered that the present offender is being dealt with as a child. The President of the Court of Appeal, Justice McMurdo in The Queen v Bird & Schipper [2000] QCA 94 made the following comments which were agreed with by Justice Pincus.

“The Courts have long recognized that youth in the absence of prior convictions is a significant mitigating factor.  This remains so despite the 1997 amendments to the Act, see Lovett, and section 94 of the Act.”

15. [15]
    In relation to the reports provided by way of presentence reports, it is my experience that these reports rarely recommend detention, even on serious offences and where the offender has a long criminal history. Sections 109 and 165 of the Act are relevant when one is considering an order for detention.  The pre-sentence reports are an essential part of the process:  s. 110.

16. [16]
    Given the nature of the subject offences, having considered all the other available options, I am satisfied that in respect of these offences that no other sentence is appropriate in the circumstance of this case other than a period of detention. The ongoing nature of the acts over five days and the inhumane treatment shown to the complainant distinguishes this case from the other cases discussed.

17. [17]
    I recommend that the offender whilst in detention do undergo specific therapy to address his offending behaviour specifically relating to drug abuse, anger management and sexuality and intimacy issues. Access to such treatment is available at the Youth Detention Centres according to the authors of the Griffith University Report (Ex 1A).

Orders

18. [18]
    Rape – 2 counts – Two years detention on each count to be served concurrently.

Attempted Rape - 4 counts and torture  - 12 months detention on each count to be served concurrently and concurrent with the two (2) years head sentence. 

Conditions are recorded on each count.

It is noted that the offender has spent one day in custody as at the date of this order.