R v MG[2018] QDC 194

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr MG you have pleaded guilty to one count of rape. I take into account the plea of guilty and reduce the penalty I would have otherwise imposed by reason of the plea. It shows co-operation in the administration of justice, has spared the cost of a trial and importantly, has spared the complainant from having to give evidence.

2. [2]
   In sentencing you I take into account s 9(1) of the Penalties and Sentences Act 1992 (Q). That section provides:

“9  Sentencing Guidelines

3. (1)
   The only purposes for which sentences may be imposed on an offender are—

1. (a)
   to punish the offender to an extent or in a way that is just in all the circumstances; or

1. (b)
   to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

1. (c)
   to deter the offender or other persons from committing the same or a similar offence; or

1. (d)
   to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

1. (e)
   to protect the Queensland community from the offender; or

1. (f)
   a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).”

3. [3]
   I also take into the relevant provisions of s 9(2) of the Penalties and Sentences Act.

4. [4]
   Because this is an offence of a sexual nature against a child, the provisions of s 9(4), (5) and (6) apply. You must serve an actual term of imprisonment unless there are exceptional circumstances. In deciding whether there are exceptional circumstances a court may have regard to the closeness in age between you and the child. In this case you were 17 and the child was 4. I also have regard primarily to the matters mentioned in sub-section (6).

5. [5]
   An issue arose during the hearing on whether you are to be treated as a child or an adult. It was common ground that the Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016 (Q) came into force on 12 February 2018.

6. [6]
   Section 387 provides:

“387  Offences by 17-year-olds before commencement if offence proceedings not started

3. (1)
   This section applies to a person who, as a 17-year-old, committed an offence before the commencement if a proceeding against the person for the offence had not been started before the commencement.

3. (2)
   For this Act or another Act, the person is taken to have committed the offence as a child.”

7. [7]
   Further s 390 provides:

“390  Current proceedings for offences by 17-year-olds

3. (1)
   This section applies in relation to an offence committed, or alleged to have been committed, by a person when the person was 17 years old if there is a current proceeding for the offence.

3. (2)
   A transitional regulation may provide for the person to be treated as a child in relation to the offence and, for that purpose, provide for the application of this Act or another Act to the person.

3. (3)
   The matters for which the transitional regulation may provide include the following—

1. (a)
   removing the current proceeding to the Childrens Court for hearing and determining under this Act;

2. (b)
   if the current proceeding is not removed to the Childrens Court for hearing and determining under this Act—applying a provision of this Act to the proceeding;

3. (c)
   applying a provision about bail under part 5 to the person;

4. (d)
   if the person is being held on remand, or otherwise being held in custody, in a corrective services facility on the commencement—

1. (i)
   providing for the transfer of the person to a detention centre; or

1. (ii)
   applying a provision of this Act to the person as if the person were being held on remand in the chief executive’s custody, or otherwise held in custody in a detention centre;

5. (e)
   applying a provision of this Act to any sentencing for the offence.

4. (4)
   A court may, on application by the person, the prosecution or the chief executive or on its own initiative, make an order or give directions it considers necessary to facilitate the application of this Act or another Act to the person under the transitional regulation.

5. (5)
   In this section— current proceeding—

1. (a)
   means a proceeding started but not finally dealt with before the commencement; and

1. (b)
   includes a proceeding in which a person has been convicted, within the meaning of the Penalties and Sentences Act 1992, but not sentenced before the commencement.”

8. [8]
   Turning then to the Regulations, regulation 10 of the Youth Justice (Transitional) Regulation 2018 (Q) provides:

“10 Current proceeding if committed for trial or sentence and indictment not presented

3. (1)
   This section applies if—

1. (a)
   the person had been committed for trial or sentence for the offence before the commencement; and

2. (b)
   immediately before the commencement, an indictment for the offence had not been presented to the Supreme Court or the District Court.

3. (2)
   On the commencement, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

3. (3)
   This section does not apply if an application has been made under section 11 or 12 to reopen the committal proceeding.”

9. [9]
   In this case it is common ground that the indictment was presented prior to 12 February 2018. In those circumstances you are not to be treated as a child. An issue did arise as to whether this court should have regard to sentences imposed on juveniles in light of the fact that if you had now been charged you would be a child. I will deal with that issue later.

10. [10]
    You were born on 6 January 2000. You were 17 years of age at the time of the offence and you are now 18. You have no criminal history. Exhibit 1 is the up to date pre-sentence custody certificate. You have spent seven days in pre-sentence custody.

11. [11]
    As to the facts of this case (Exhibit 2) the complainant was born on 7 July 2012. She was four years of age at the time. You were born on 6 January 2000 and thus were 17 years of age at the time. You were cousins. On 8 January 2017 the complainant and her mother were at a family gathering at your home in Coomera. You and the complainant were in the garage area alone. The complainant child was dressed in underpants, shorts and a singlet. You were both seated on a single mattress in the garage area. You asked her if you could play with her vagina. You put your right hand underneath her underpants and rubbed her vagina and then put your finger inside her vagina by using a rubbing motion so that it went in up to your fingernail before pulling your finger out. You rubbed her vagina for about a minute. She told you to stop and you stopped. The complainant child’s mother entered the garage through a closed door. When she entered she found the room to be in darkness. She turned the light on and saw you and the child alone on the mattress on the floor. She saw the child was wearing her singlet and underpants. The complainant and her mother left the garage and returned upstairs. In response to a direct question from the mother she disclosed that you had touched her vagina. The mother and two other relatives confronted you. You initially denied touching her, however shortly thereafter you made admissions about touching her private place. You apologised. The complainant and her mother left the address, returned home and the police were called. The complainant child was interviewed by police on 9 January 2017 but did not disclose any offending. On 9 January 2017 police attended your address and arrested you. You made full admissions in a formal interview. You were charged, remanded in custody and granted bail on the first appearance before a Magistrate.

12. [12]
    It is noteworthy that the case against you is based on your admissions. In that regard I take into account the principles mentioned in AB v R (1999) 198 CLR 111.

13. [13]
    There is a victim impact statement - exhibit 3. The victim impact statement tells me that there has been a significant effect upon the child in this case. The victim impact statement tells me that the offence has profoundly impacted both the complainant and her mother. The complainant is experiencing psychological difficulties which are manifested in her artworks, in which she depicts how much she dislikes herself. Copies of these have been attached. She is hypervigilant when it comes to safety and compulsively locks doors and windows in the home to make sure she is safe. She wears multiple layers of clothing. She has a fear of men which she did not have prior to the incident. For the first six months she experienced nightmares and bed wetting and was afraid of the bad people and that you would come and get her in the night. She has difficulty concentrating at school and difficulty accepting boundaries and limits. The mother has also been adversely affected. She experiences sleep disturbance, her eating routines have been affected and she has been prescribed anti-depressants by her doctor. She has real concerns for her daughter’s future.

14. [14]
    You were charged on 9 January 2017. You spent 22 hours in custody. I take that into account.

15. [15]
    There was a registry committal on 24 April 2017 and the indictment was presented on 10 August 2017.

16. [16]
    There was an unsuccessful pre-trial application in which you attempted to have the record of interview excluded. In those circumstances the matter cannot be regarded as an early plea but the matter did not go to trial.

17. [17]
    The alleged existence of a domestic relationship is relevant. It is an aggravating feature of this case that this is a domestic violence offence (see s 9(10A) of the Penalties and Sentences Act.) 

18. [18]
    The Crown prosecutor points out in his submissions a number of aggravating features. They are:

1. There was a 13 year age difference between the two of you.

2. The child was only four and was vulnerable.

3. There has been a significant effect on the child.

4. The offence occurred in the child’s home.

5. A breach of trust was involved here.

6. It was not momentary offending.

19. [19]
    In addition aside from the rape itself, you made admissions you made the child touch your penis on the outside of your clothing. I am not sentencing you for that act but it puts in context the charged act of rape (R v D [1996] 1 Qd R 363).

20. [20]
    Again I observe that you made voluntary disclosures about the touching of your penis, which is to your credit.

21. [21]
    The Crown prosecutor submits in your favour:

1. The admission to family members.

2. The AB admissions.

3. The apology to the child.

4. You are of a very young age.

5. You did desist.

22. [22]
    The prosecutor submits for a head sentence in the order of three years imprisonment. He relies on the following cases:

1. R v AAD [2008] QCA 4.

2. R v BBE [2006] QCA 532.

3. R v SAH [2004] QCA 329.

23. [23]
    I have taken into account those cases in reaching my decision, but of course each case depends on its own facts and it is for the sentencing judge to do the best that he or she can on the given facts of the case.

24. [24]
    Ms Boothman on your behalf tendered a report of Dr Andrews - exhibit 4. Also Ms Boothman tendered on your behalf the defence material - exhibit 5. I have had regard to these documents.

25. [25]
    The report from Dr Andrews was obtained for a cognitive assessment and an assessment for your fitness for trial. Because of assessments done in 2016 it was decided that further testing would not be warranted. You denied suffering from any mental health difficulties and you did not demonstrate symptoms suggestive of psychosis. You presented as suffering from intellectual difficulties. Your language was simple but you had no difficulties expressing yourself. You demonstrated embarrassment and remorse for your actions.

26. [26]
    You were born on 6 January 2000 in New Zealand. You reside with your parents and eleven siblings of which you are the youngest. Your mother suffers from type 2 diabetes and as such your sister SG is your main caregiver. Prior to coming to Australia you resided in a small village in the Cook Islands for eight years. You denied being exposed to any family violence or abuse. You went to school on the Cook Islands to year four and then came to Australia and started at [redacted school]. You experienced difficulties with attention, reading and writing. You were suspended once for hitting another student at school. You then attended the [redacted]. You have had educational support throughout your schooling because of attentional and learning difficulties. You were suspended in high school for fighting and truancy but completed year twelve with assistance. A WISC-IV test was conducted in March 2012 which indicated that your verbal comprehension index was in the third percentile, perceptual reasoning index in the first percentile, working memory index in the first percentile and processing speed index in the fourth percentile. Your full scale IQ is in the extremely low range. There was a further assessment in April 2016 but your full scale IQ could not be meaningful interpreted due to discrepancies. You achieved a low average in the verbal comprehension index, extremely low range in the perceptual reasoning index, borderline to extremely low range in the working memory index, and borderline range in the processing speed index. Your overall general adaptive functioning was noted for the extremely low range. There was no formal mental health history and you denied suffering from depression or anxiety symptoms. You denied using alcohol but used cannabis once a week between 2014 and 2015. You denied using the drug since that time. You told the psychologist that you had asked the victim to touch your penis and placed her hand on the outside of your clothes. You acknowledged that she did not want to do this act, and you acknowledged that you touched her vagina. You engaged in the sexual acts due to temptation. You said you had watched pornography on your phone and found it hard to quantify how much you had viewed. You found it difficult to stop watching this material. Viewing the pornography was a precursor to your actions. You were aware that the actions were very wrong. It was ultimately noted that as a result of the assessments you fell within an education intellectual disability category.

27. [27]
    It was noted:

“Whilst Mr [MG’s] intellectual difficulties would not cause him to sexually offend his cognitive and functional impairments would certainly reduce his ability to consider consequences of his actions and engage in moral reasoning to a level of similar aged peers. His intellectual impairments however, do not preclude him from understanding right from wrong.”

It was noted that you did not present with sexually deviant thoughts, rather your offending occurred in the context of exposure to pornography, lack of sex education, impaired cognition and poor ability to consider consequences of your actions. It was noted with respect to treatment/management that you would benefit from being involved with a health professional around issues of sexual education, issues of consent and sexual relationships. You reported at times that you found it difficult to cease viewing pornography. Your sister had confiscated your phone and you could not access this material but this was not a viable management strategy. It would be more appropriate for you to engage with a mental health professional to develop self-regulation strategies to manage your viewing of pornography and assist with sexual development.

28. [28]
    I also take into account the contents of exhibit 5- the letter from Retana, your apology and the affidavit of Halley concerning counselling with the Bishop.

29. [29]
    Ultimately in her submission Ms Boothman submits that exceptional circumstances exist.

1. She first points to the fact that you were only 17 years and two days old at the time of the offence.

2. She secondly points to the fact that unfortunately because the commencement date of the legislation is 12 February 2018, it would be an unjust result for you to be treated as an adult even though you must.

3. Thirdly, she relies on the cognitive impairments referred to in the report (Muldrock v R (2011) 244 CLR 120).

4. Fourthly, she relies on the counselling you have had with your bishop.

5. Fifthly, she relies on your remorse which is evidenced in your sister’s letter.

6. Sixthly, she submits that if you are sentenced to an actual custodial term of imprisonment you will be deported. This is because you are not an Australian citizen. You come from New Zealand and the Cook Islands. If you were to be deported it would cause hardship to you because your entire family is in Queensland.

7. Seventhly, she submits that there is significant co-operation here in the form of the AB admissions.

8. She submits there is no injury; it was a shallow penetration.

9. She submits it was opportunistic offending.

10. She submits you will be a reportable offender regardless.

30. [30]
    Ms Boothman submits that if exceptional circumstances are established you should receive a suspended sentence. She concedes you do have some extended family in New Zealand. You presently live with your parents and your sister is an informal guardian. She came to court to support you. Your mother was too sick to come to court. Ms Boothman distinguished the crown cases and relied on the single judge decision of Kubik dated 17 October 2012.

31. [31]
    Two aspects of Ms Boothman’s submissions require further analysis.

32. [32]
    First I turn to the issue of deportation.

33. [33]
    In R v UE [2016] QCA 58, the Court of Appeal held that the prospect of deportation of an offender is a proper matter for consideration in determining an appropriate sentence. It was noted at [16] that proof that deportation will in fact be a hardship for the particular offender will be required. However, I note that R v Norris ex parte Attorney-General (2018) 331 FLR 92; [2018] QCA 27 is authority for the proposition that a sentence cannot be fashioned to defeat or avoid the operation of the Migration Act 1958 (Cth).

34. [34]
    In this case it was initially submitted to me that it was definite that your visa would be cancelled and you would be returned to New Zealand (exhibit 6). It was submitted that the Minister must cancel your visa under s 501(3A) of the Migration Act. The sentence was adjourned so that I could receive further evidence on this issue.

35. [35]
    Exhibit 7 are the further Crown submissions and exhibit 8 the further defence submissions. I have regard to these submissions.

36. [36]
    You are presently a lawful non-citizen of Australia with a valid visa. In an email from Stacey Callaghan dated 18 September 2018 (part of Exhibit 7) it was noted that you hold a sub-class 444 special category visa. All visa holders are required to pass the character test and a foreign national may have their visa cancelled if they do not pass this character test. The character test is set out in s 501(6) of the Migration Act. It applies irrespective of age or nationality. Section 501(3A) of the Act requires that the foreign national’s visa must be cancelled if they are serving a full time term of imprisonment for an offence committed in Australia and the charge was a sexually based crime involving a child. The mandatory visa cancellation may be revoked if the Minister is satisfied the foreign national passes the character test or there is another reason why the original decision should be revoked. In deciding whether or not to exercise the power to revoke the mandatory cancellation, Ministerial Direction 65 is relevant. This commenced on 23 December 2014 and is binding on departmental delegates and the AAT. The decision maker may give consideration to the sentencing Judge’s remarks including any comments concerning the likelihood of re-offending. Primary considerations are protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community. The decision maker must also take into account strength, nature and duration of ties to Australia, impact on victims and extent of impediments if removed.

37. [37]
    Therefore, even if the Minister cancels the visa under s 501(3A), the Minister must then give notice to you under s 501(CA) of the Migration Act and invite you to make representations to the Minister regarding the revocation of the original decision. The Minister may revoke the original decision if you make representations in accordance with the invitation and if you satisfy the Minister that you pass the character test or there is another reason why the original decision should be revoked. This provision has received consideration in a number of Federal Court decisions (for example Coker v Minister for Immigration and Border Protection [2017] FCA 929; BCR 16 v Minister for Immigration (2017) 248 FCR 456; [2017] FCAFC 96).

38. [38]
    So it is not definite that you will be deported. However, I do not ignore the possibility you might be. This would cause you hardship because of your young age; the fact your family is in Australia; the fact that you have been here since being very young and in light of your mental state.

39. [39]
    Turning to the submitted unfairness, the explanatory note to the bill noted that:

“The youth justice system in Queensland currently applies to young people aged between 10 and 16 years of age, with young people alleged to have committed offences as 17 year olds treated as adults in the criminal justice system. Inclusion of 17 year olds in the adult criminal justice system is inconsistent with the United Nations convention on the rights of the child, and the law in all other Australian states and territories. It is also inconsistent with a substantial body of Queensland and Commonwealth law, which defines adulthood at 18 years… due to significant resource implications associated with the inclusion of 17 year olds in the youth justice system, it was not possible to give effect to that intention immediately… the benefits of including 17 year olds in the youth justice system are nationally and internationally recognised. Children and young people’s neurological and cognitive development is immature and incomplete to a degree, warranting a criminal justice system that responds to this group in a developmentally appropriate manner. The youth justice system provides a number of special protections to children and young people that are not available to adults. These include an increased stability to divert young people from the court system; reduced exposure to adult criminal systems; the provision of education and rehabilitation to young people through access to mandated specialised programmes; and more intensive staff support and supervision in custody.”

40. [40]
    I have regard to the fact that as and from 12 February 2018 you would have been sentenced as a child. Sentences of children for counts of rape should not be ignored by me when I consider my decision. I do appreciate though that the principle that a sentence of imprisonment is one of last resort (section 150 of the Youth Justice Act 1992 (Q)) does not apply to this case. Also of course the maximum penalty under section 349 of the Code is life imprisonment unlike the maximum penalty for a juvenile. In my view though the fact is you would now be treated as a juvenile and it is a matter of “luck” when the indictment was presented. This is a “relevant circumstance” under section 9(2) (r) of the Penalties and Sentences Act.

41. [41]
    A sentence of detention coupled with probation is within the range of penalties imposed on juveniles convicted of rape. In R v SBR [2010] QCA 94, the offender pleaded guilty to three counts of indecent treatment of a child under 16 and one count of rape. He was aged between 13 and 15 at the time of the indecent treatment and around 15 at the time of the rape. The complainant (his sister) was between 7 and 10 years of age at the time of the indecent treatment and between 9 and 10 years of age at the time of the rape. The rape was a digital penetration of her vagina. The offender was sentenced to four months detention and 12 months’ probation for the rape, to be served concurrently with two years’ probation for the indecent treatment offences. A conviction was recorded only in respect of the rape. The appeal against the recording of the conviction was allowed.

42. [42]
    In R v IC [2012] QCA 148 the child received 16 months detention with an order for release after 50 per cent on one count of rape. The child was 14 years and 10 months old and the complainant 24. He had no criminal history. The rape involved grabbing a stranger in the early hours of the morning, throwing her to the ground forcing her legs apart and inserting fingers four or five times. Although the complainant was older and the rape was more serious.    

43. [43]
    On the issue of exceptionality I have had regard to R v Tootell ex parte Attorney-General [2012] QCA 273. In that case the offender had pleaded guilty to three counts of unlawfully and indecently dealing with a child under 16 with the aggravating circumstances that the child was under 12 and in his care. He originally received a fully suspended sentence and was placed on probation. On appeal the sentence was allowed and he was sentenced to two months’ imprisonment followed by 12 months’ probation on count one and 14 months imprisonment suspended after two months on counts two and three. The offender was a 24 year-old child care worker in charge of a group of young children at a child care centre. He committed the offences against two 3 year old girls. On two separate occasions when he was reading a book to A, he rubbed her upper thigh and groin area and on the second occasion rubbed her vaginal area outside her underpants ejaculating shortly after. The last offence occurred when he was sitting on the floor with B, helping her to complete a puzzle. He rubbed her upper thigh groin and vaginal area outside her pants again ejaculating. One of the children had said something which raised concern and the supervisor of the child care centre confronted the respondent and he made admissions to what he had done. Of his own volition he went with his father to the police and confessed to the conduct described. Neither children disclosed any wrongdoing in their interviews. The offender had no criminal history and had neuropsychological deficiencies with an IQ reading of 77. It was ultimately held that it was not open to the judge to regard the mitigating circumstances as so exceptional as to not require a custodial term of imprisonment.

44. [44]
    At the end of the day in this case, I am not persuaded there are exceptional circumstances. Whilst there is a risk of deportation, it is not inevitable. Even for children, periods of detention (some coupled with probation) are within the sentencing range.

45. [45]
    I need to bear in mind the following factors in this case:

1. This is a serious crime.

2. The child here was very young.

3. It was not momentary, it was more protracted than that.

4. The maximum penalty here is life imprisonment.

5. There has on the evidence been a significant effect on the victim.

46. [46]
    In those circumstances despite the matters raised by the defence, I am not persuaded that exceptionality has been established here. In my view the crime is just too serious for you not to serve some period of imprisonment. Sometimes despite youth, a person must serve an actual custodial sentence because of the serious nature of the offence.

47. [47]
    I do of course take into account the principles mentioned in R v Dullroy and Yates [2005] QCA 219 insofar as the sentencing of youthful offenders is concerned.

48. [48]
    Having regard though to the mitigating factors here which are not insignificant and in particular to your mental state, young age, co-operation and the risk of deportation, in the unusual circumstances of this case I propose to offer you a prison probation order.

49. [49]
    Subject to your consent my orders will be as follows:

1. A conviction is recorded.

2. Pursuant to s 92(1)(b) of the Penalties and Sentences Act 1992, I order the defendant be imprisoned for a period of four months. I further order that he be released under the supervision of an authorised corrective services officer for a period of two years and he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 and report within 24 hours of release from prison to an authorised corrective services officer.

3. Additionally, he is to submit to such medical psychiatric or psychological treatment directed towards sexual offending as directed by an authorised corrective services officer.

4. Pursuant to s 159A of the Penalties and Sentences Act I declare that he has served seven days in pre-sentence custody. I state the dates are between 14 September 2018 and 21 September 2018 and I declare that to be time already served under the sentence.

50. [50]
    Also, whilst I appreciate that it is within the discretion of the Minister, I would strongly recommend the defendant be allowed to remain in Australia. The fact is he had no previous convictions; he is still very young (only 18 years of age); the offence here occurred when he was a child under International and Commonwealth Law and now Queensland law; he made full admissions to the offence without which the Crown would have had no evidence against him; all of his direct family are in Australia and he had no direct family in New Zealand; his sister is effectively his guardian; he lives at home with his parent; he is of low intellect; and I intended that he receive in depth psychological and psychiatric treatment under the Probation Order so as to rehabilitate him. I also consider that the treatment is designed to significantly reduce the risk of reoffending to a low level (if any, noting that the psychologist did not specifically deal with this issue).

51. [51]
    In all of those circumstances, I strongly recommend he not be deported from Australia.

52. [52]
    I direct a copy of Exhibit 4 be sent to Corrective Services to assist in the defendant’s management in custody and on probation.