R v B; ex parte

[1999] QCA 463

99.463

COURT OF APPEAL

DAVIES JA THOMAS JA ATKINSON J

CA No 298 of 1999
THE QUEEN
v.

B	Respondent
and
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE
..DATE 04/11/99
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DAVIES JA: This is an appeal by the Attorney-General
against sentences imposed in the District Court at Cairns on
30 July last for three counts of sodomy with a circumstance
of aggravation and two of indecent dealing.

The offences occurred between 25 January and 6 February this year at which time the respondent offender was a 15-year-old child born on 23 July 1983. He is now 16.

In respect of each of the offences the respondent was placed on probation for a period of two years with a condition, in addition to the usual conditions of probation, that he attend therapeutic assessment and treatment as directed; and in addition he was ordered to perform 75 hours of unpaid community service work. No conviction was recorded.

The victim of the offences was a three-year-old relative, the son of the respondent's cousin. The offences were committed over a 10 day period. The respondent sodomised the child on three occasions, fondled his genitals on another and on another occasion had the child fellate him.

Little more is known about the offences than that because the respondent, who was the only person who could speak of them, has been reluctant to talk about them.

At the relevant time the child victim was in the care of his
grandmother. On the last day of the period I have just
mentioned she noticed that he was missing from the yard
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where she had thought he was playing. She immediately went
to the respondent's house, which was next door, apparently
suspecting the respondent of some misconduct with the child
and found the door locked.

She called and screamed for five minutes before the respondent opened the door. Later she found the child's anus to be red and tender. She immediately contacted the police to whom the respondent made admissions of the offences.

There can be no doubt that these offences, particularly the offences of sodomy, were extremely serious. Moreover, they have had a bad psychological effect on the child who has since been acting out sexualised conduct, masturbating himself and asking to lick other children's genitals.

Unfortunately, there is no evidence before the Court of the prognosis of this psychological condition. But there is no doubt in my mind that offences of such seriousness, even when committed by a child of 15, would ordinarily require a period of actual detention.

The difficulty which faced the learned sentencing judge in
the present case was the respondent's mental competence and
its consequences. Psychological testing showed him to be in
the intellectually deficient range of intellectual
functioning.
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This is relevant in two respects. The first is that, though
he apparently appreciated that what he was doing was wrong,
he failed to appreciate the seriousness of that wrong and
that may have some effect on his future conduct.

The second is that he will have much greater difficulty coping with a prison-like environment than his more intellectually competent peers. Though he is apparently physically quite large, he is nevertheless likely to be taken advantage of and perhaps even physically abused by his peers.

The respondent underwent no less than 12 counselling sessions with a psychologist who provided a psychological assessment report to the learned sentencing judge.

Although, as I have mentioned, the respondent was reluctant to speak about his offences, he did say more than once that he felt ashamed and uncomfortable about what he had done, and he did not want the child to grow up and think that what he the respondent had done was okay.

At one stage he even expressed suicidal thoughts. These
expressions of remorse as well as his immediate willingness
to confess his offence, in my view, show his remorse. He
also said that he had apologised to the child's mother for
what he had done.
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The psychologist who had seen him for counselling
recommended that he be encouraged to attend further
counselling and education about appropriate sexual
behaviour. He has also recommended orders of the kind which
her Honour made and recommended against a sentence of
detention because he thought that this would place the
respondent at risk of being abused himself.

No assessment was made by the psychologist of the respondent's prognosis and he was not seen by a psychiatrist. However, the psychologist did express the view that the respondent's intellectual functioning was likely to delay or restrain his moral and ethical development. Hence the desirability of further counselling and instruction in those areas.

The respondent did tell one other person, although no others, that his father had done to him what he had done to the child. Others were unable to elicit this information from the respondent who seemed to be unwilling to speak at all about his father. Indeed, he told some that his father was dead. In fact his father is presently, or I should say at the time of the pre-sentence report, serving a prison term. It is therefore unclear whether the respondent has himself been abused.

The respondent has a good relationship with his mother and
his younger brother, Bradley. They are an Aboriginal family
living in Mareeba. Although they have extended family
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relations they appear to be self-contained, keeping
primarily to themselves.

The respondent has few friends preferring to spend most of his time with his mother and his brother. He has no prior criminal record, does not have a drug or alcohol problem and said that he has never been influenced by alcohol or drugs.

It is perhaps unsurprising, given his intellectual limitations, that the prosecuting counsel on the sentence did not contend for a term of actual detention. He contended for a more intensive regime than probation suggesting an immediate release order followed by probation, thereby ensuring three months intensive counselling and investigation before probation commenced.

Unfortunately, as is common ground in this Court, those two orders cannot be combined. An initial period of intensive counselling and education followed by a less intensive period of supervision and help, when necessary, would, in my view, have been the best solution to the difficult problem which this case presents.

I should also mention that counsel for the Attorney before this Court did not content for a period of actual detention.

In my view the concession made, below and here, was rightly
made. Detention is not an appropriate solution to the
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problem here, notwithstanding the serious nature of the
offences.

Given the limited options open to the learned sentencing judge in those circumstances, the choice appeared to be between an intensive three month regime and a less intensive, but longer period of probation.

Her Honour chose a longer period sensibly, in my view, because the respondent is clearly in need of help over a period much longer than three months.

However, the learned sentencing Judge could have, and in my view, should have imposed a probation order for a longer period than she did, namely, for a period of three years. That would have been open in respect of the sodomy offences, though not in respect of the other offences.

I would therefore allow the appeal and, in respect of the sodomy offences, order in lieu of the order for probation for two years, an order for probation for three years upon the usual conditions and, in addition, upon the condition which the learned sentencing judge imposed. Otherwise I would not interfere with the orders which were made by the learned sentencing judge.

THOMAS JA: I agree. I would add that this case suggests
that the sentencing options currently available are unduly
limited. I would recommend that the reasons which
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Mr Justice Davies has just delivered should be brought to the attention of those concerned with law reform in this area.

DAVIES JA: The orders are as I have indicated.

ATKINSON J: I agree.

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