R v C

[1996] QCA 14

[1996] QCA 14

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND  C.A. No. 436 of 1995

Brisbane

BeforeFitzgerald P.

Pincus J.A.
Mackenzie J.

[R. v. C]

THE QUEEN

v.

C  (Applicant)

FITZGERALD P.
PINCUS J.A.
MACKENZIE J.

Judgment delivered 13/02/1996

JOINT REASONS FOR JUDGMENT FITZGERALD P. AND MACKENZIE J.  SEPARATE REASONS OF PINCUS J.A. CONCURRING IN THE ORDERS MADE

Application for leave to appeal against sentences granted.
Appeal against sentence for rape allowed.
Substitute a period of detention of three years for the period of four years for the offence of rape; otherwise the sentences and orders should stand.

CATCHWORDS: SENTENCE - sexual offences - whether sentence mainfestly excessive - applicant 16 years of age at the time of offending - required to serve a period in detention - whether an immediate release order should have been made under s. 176 of the Juvenile Justice Act 1992 - personal circumstances of the applicant given weight - remorseful and cooperative - no prior convictions - parity of sentence with co-accused’s.

Counsel:Ms C. Holmes for the Applicant

M. Byrne Q.C. for the Crown

Solicitors:Legal Aid Office for the Applicant

Queensland Director of Public Prosecutions for the Crown

Date(s) of Hearing:     1 February 1996

REASONS FOR JUDGMENT - FITZGERALD P. AND MACKENZIE J.

Judgment delivered 13/02/1996

This is an application for leave to appeal against sentences imposed in the District Court at Brisbane on 27 October 1995.  On 30 August 1995, the applicant had pleaded guilty to indecent assault, indecent assault with a circumstance of aggravation, and rape.  All offences had occurred on or about 5 March 1994.  The applicant was sentenced to detention for one year for each of the first two offences, and to detention for four years with an order that he be released after serving 50% of that period for the offence of rape.

The applicant, who was born on 3 February 1978, was 16 at the time of the offences and 17 when he was convicted and sentenced.  A co-offender, David Anthony Muller, who was born on 31 May 1976, was 17 at the time of the offences and 18 when he pleaded guilty on 30 October 1995 to indecent assault with a circumstance of aggravation, rape, and attempted rape.  Muller was sentenced to imprisonment for one year in respect of the offence of indecent assault with a circumstance of aggravation, four years for rape and three years for attempted rape, with a recommendation that he be considered for release on parole after serving 18 months.  In his case, as in the applicant’s case, all sentences were ordered to be served concurrently.

The offences by the applicant and Muller were committed against a 16 year old girl, who until then was a virgin.  All were present at a party at which the girl became extremely intoxicated after consuming alcohol, and the applicant and Muller took advantage of her.  Her clothing was removed, her vagina was touched and they inserted their fingers into her vagina, and the applicant attempt to place his penis in her mouth.  Those activities constituted the offences of indecent assault.  They also forced her legs apart and Muller attempted to place his penis in her vagina but was unable to do so.  With Muller’s assistance, the applicant did partially insert his penis into her vagina but did not effect full penetration.  Muller’s conviction for rape was based on his assistance to the applicant when he raped the girl.

Although the girl’s principal reaction to her experience is one of anger and frustration at her powerlessness, her relationship with her father has deteriorated, she has developed a distrust of males and dropped out of school in the middle of her year 12 course.

The applicant is remorseful, gave an early indication that he would plead guilty, and offered to give evidence against Muller, although that became unnecessary when Muller pleaded guilty on the day when his trial was to commence.  The applicant was sentenced on 27 October 1995, and Muller pleaded guilty on 30 October 1995 and was sentenced on 2 November 1995.  Both were sentenced by the same judge.

When the applicant was sentenced, his Honour stated that there was no course open to him other than to order a period of detention and that “in ordinary circumstances, bearing in mind your youth, a period of detention of six years would be proper but a number of factors, it seems to me, mitigate from that”.  His Honour then made reference to the early indication that the applicant would plead guilty and his willingness to give evidence against Muller, and said that he “should think in terms of a sentence of four years rather than the six I have mentioned”.  Next, he proceeded “to take ... into account” the “many factors which are personal to” the applicant, which were discussed in a report dated 13 October 1995 from a consultant psychiatrist, Dr Lillian Cameron, to the Department of Family and Community Services and a report from two officers of that Department, the Manager and the Family Services Officer at Mt Gravatt, dated 25 October 1995.

Those reports, which his Honour did not discuss in detail, showed that the applicant comes from a broken family, one of his brothers committed suicide, he has an IQ only of 78 and was described by the consultant psychiatrist as “immature and impulsive”.  He also has a problem with alcohol abuse and regularly used marijuana, which he could not afford.  At the time when the consultant psychiatrist saw him, he had a new girlfriend of about five weeks, with whom he wanted to have a child, which the consultant psychiatrist considered unrealistic.  In her view, he needed further general education and to be taught work skills; further, he would benefit from:

“psychiatric treatment for his bereavement, depression, substance abuse ... assistance with adjustment to life ... clear limit setting and stability of accommodation as well as an occupation within his ability such as gardening, packing or other unskilled work under supervision which he might do as a community service if given probation.”

Dr Cameron continued:

“... If he is not incarcerated daily supervision and reporting to a Probation Officer would be of benefit if a supportive relationship could be established and maintained.”

The report of the officers of the Department of Family and Community Services was consistent with the consultant psychiatrist’s report and added various matters; for example, that the applicant’s mother and father “offer a fair level of support”.  They also noted that he “had never been in any trouble at school or home” prior to his offences, and had complied with bail conditions since he was charged, a period of about 18 months, including a 7 p.m. to 7 a.m. curfew.

A number of sentencing option were discussed by the Departmental officers, who said that they took into account the following factors:

“1.The nature and severity of the offences.  The offences for which [the applicant] appears today involve a high degree of personal violation of the victim.  The effect of the rape is likely to have a lasting consequence on the victim.

2.The need for [the applicant] to experience the consequences of his actions.

3.The likely impact on the victim of the offences.

4.The lack of any previous offending history, as well as the absence of further offences since these offences were committed in March 1994.

5.The need for [the applicant] to receive therapeutic support to deal with his issues, such as victim awareness and decision making skills.  This is particularly relevant in the light of Dr Cameron’s psychiatric report outlining [the applicant’s] reduced intellectual capacity and impulsive personality.”

The discussion of the sentencing options and the conclusion which the Departmental officers reached were as follows:

“PROBATION ORDER

A Probation Order can provide a program of rehabilitation which can address some of the underlying factors which contribute to offending behaviour.  The addition of conditions to the order further enhance the opportunity to do this.  The benefits to be gained from such an order are:

Through continued contact the Department will emphasise with [the applicant] the idea of consequences of his actions.  A support plan would be drawn up with the Family Services Officer in order that regular sessions could address such issues as personal responsibility, behaviour and its consequences and victim awareness.  The officer could also assist [the applicant] in linking into employment agencies and provide support in establishing himself in independent living if this is assessed as a viable option.  The court has the option of attaching conditions to such an order.  In this case it may be appropriate to attach a condition that [the applicant] make himself available for counselling in relation to the offending.  Counselling could also be offered in relation to his unresolved grief and loss issues regarding his brother’s suicide and parents’ divorce.

Your Honour may feel, however, that the serious nature of the offences for which [the applicant] appears today would not be satisfactorily be addressed through a Probation Order.  However under Section 121(1)(a) the court can order probation for a period of up to three years.

COMMUNITY SERVICE ORDER

In my assessment, this order would not be appropriate as the offences are person related rather than property related and therefore the order would not provide a meaningful link to the offences.  Under Section 121(1)(e)(ii) a Community Service Order for up to 120 hours can be ordered.  Community Service of a suitable nature could be arranged.  Should the court wish to make such an order, [the applicant] has indicated his willingness to comply with a Community Service Order.

DETENTION ORDER

Given the serious nature of the offences under Section 121(2)(a) the court can order detention for a period of up to seven years for the two indecent assault charges and under Section 121(3)(a) the court can order detention for a period of up to ten years for the rape charge.

Your Honour may wish to consider that according to Section 165 of the Juvenile Justice Act ‘A court may make a Detention Order against a child only if the court after ...

(a)considering all other available sentences is satisfied that no other sentence is appropriate in the circumstances of the case.’

A Detention Order would clearly give [the applicant] the message that the offences he committed are serious and punishable and would provide tangible consequences for these.  In detention [the applicant] would have access to programs which might help rehabilitate him to be able to play a positive role within the community upon release.

However, given that [the applicant] does not have an offending history, [the applicant] may come into contact with other young people who are recidivist offenders.  The rehabilitation process might therefore be better served through a community based order.

IMMEDIATE RELEASE ORDER

If a Detention Order is appropriate for the offence Your Honour may wish to consider suspending the Detention Order and making an Immediate Release Order.  A Detention Order with Immediate Release would give [the applicant] the message that his offending is serious and highly unacceptable to the community and is punishable behaviour.  If your Honour considers this order to be appropriate it would offer [the applicant] the opportunity to maintain his life within the community.  During the period of the order [the applicant] could achieve a number of goals to encourage his integration into the community as a responsible adult through the components of the Immediate Release Order.

Should Your Honour wish to make this order the Department would make available a program involving the following components -

-A reparative (or work) component.  [The applicant] would be asked to attend an agency for three days each week to perform unpaid work.  This would allow [the applicant] the opportunity to gain work skills as well as make some reparation for the offence.

-A reintegrative component.  [The applicant] would be linked to an Adolescent Resource Worker for a morning and afternoon each week.  During these sessions [the applicant] would receive support in linking to employment agencies, addressing issues of independent living e.g. budgeting and developing positive social interests.

-A component to address offending.  [The applicant] would be required to attend a minimum of six counselling sessions to work on issues of offending including self control, decision making skills and victim awareness.  The sessions would also incorporate issues around [the applicant’s] depression.

As part of this component [the applicant] would also be asked to report weekly to the Department of discuss issues of offending with a Family Services Officer.

CONCLUSION

As [the applicant] is to be sentenced for more than one offence, under Section 123 of the Act the court may make more than one order.  Your Honour may therefore consider the option of sentencing [the applicant] to a Detention Order with an Immediate Release for the more serious offence of rape.  Should [the applicant] not comply with the conditions of this order he could be returned to court and may face a Detention Order.

Your Honour may consider a Probation Order to be an appropriate sentence for the two lesser offences.  A condition could be attached to this order for [the applicant] to attend counselling as directed by the Department.  Such a sentence would enable the Department to maintain longer contact with [the applicant] than the three month period allowed by the Immediate Release Order.

Section 124 of the Act deals with convictions.  If the court makes an order under Section 120 the court may order a conviction to be recorded.  However, if the court makes an order under Section 121 a conviction is taken to have been recorded.”

Reference has already been made to the sentence imposed and substantially to the reasons of the sentencing judge, who also referred to the applicant’s remorse and to the period for which the charges had been outstanding.

The applicant’s primary submission was that he should not have been required to serve any period in detention but that an immediate release order should have been made under s. 176 of the Juvenile Justice Act 1992. It was pointed out that the policy of the Juvenile Justice Act is that, if some other course is open, a juvenile should not be detained in custody, and then only for the shortest possible period.  Even so, rape is ordinarily a crime of violence which commonly has serious consequences for the victim, in this case a teenage girl, and the sentencing judge was correct in concluding that a period of actual detention was called for.

Further, the applicant’s alternative submission that this Court should now add an immediate release order cannot be accepted: cp. M (C.A. No. 268 of 1995, unreported judgment dated 5 December 1995).  The period of three months’ actual detention which the applicant has already served is considerably less than the minimum called for in response to the applicant’s offences.

The applicant also submitted that nonetheless, having regard to his personal circumstances and other factors favouring leniency, the period of detention ordered was excessive.  Further, it was argued that the sentencing judge erred in his conclusion that the applicant’s misconduct was “more serious” than that of the co-offender, Muller, and that there was a disparity between the two sentences, which required the applicant serve a longer period in custody than Muller.

There is force in the latter submission.  There is no real distinction to be drawn between the activities of the applicant and Muller, the older of the two, and the applicant’s remorse and cooperation exceed Muller’s; when his personal circumstances are taken into account, the applicant clearly should not have been punished more severely than Muller.

The sentencing judge noted that his power to order the applicant’s early release was “constrained by the various approaches and requirements that the Juvenile Justice Act imposes”, and s. 188 of that Act does impose an anomalous fetter upon a sentencing judge’s discretion. While the legislature plainly does not intend children to be punished more severely than adults and has insisted that children not be detained for longer than is necessary (see, for example, J (C.A. No. 348 of 1995, unreported judgment dated 21 November 1995), a child sentenced to detention cannot be ordered to be released until he or she has served at least half that period (s. 188) unless an immediate release order is made under s. 176.

Even a order under s. 188(2) that a child “be released from detention after serving 50% or more, and less than 70%, of a period of detention” requires the Court to be satisfied that “there are special circumstances, for example to ensure parity of sentence with those imposed on a period involved in the same ... offence”.  However, there is no provision concerning what should be done if parity with the sentence imposed on an adult co-offender would not be achieved by an order that a child be released after serving 50% of his or her period of detention.

In order to achieve parity between co-offenders when one is a child and the other an adult, it might be necessary to impose a lower head sentence on the child than the adult.  That is consistent with the policy of the Juvenile Justice Act, as is recognised by Bowden (C.A. No. 472 of 1993, unreported judgment delivered 30 March 1994).  In the present matter, to achieve parity between the applicant and Muller, it is at least necessary to reduce the applicant’s sentence for rape to three years.  The only “special circumstances”, the factors personal to the applicant, continue to support the order that he be released after serving 50% of the period of detention imposed.

The question remains whether a comparison of the relative culpabilities of the applicant and Muller and their personal circumstances should see the applicant’s period of detention further reduced.  While conscious of the arguments in favour of such a course and the desirability of returning the applicant into the community as soon as possible, we consider that additional leniency would unduly diminish the seriousness of the applicant’s offences and their adverse consequences for his victim.

Accordingly, we would grant the application, allow the appeal and substitute a period of detention of three years for the period of four years for the offence of rape.  Otherwise, the sentences and orders should stand.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 13/02/1996

I have read the joint reasons of Fitzgerald P and Mackenzie J.  I agree that the applicant’s remorse and co-operation exceeded those of his co-offender Muller.  There was otherwise not a great deal to differentiate, for the purpose of sentence, the circumstances relating to one offender from the circumstances relating to the other.

It seems to me important that the applicant was prepared to give evidence against Muller and that he gave the police a statement for that purpose.  The Court should not, in my opinion, overlook opportunities to encourage this sort of co‑operation.  It is common enough to find that offenders co-operate to the extent of admitting complicity in and supplying information about their own offences; it is much less usual for offenders to assist in the task of getting information about other offenders or supplying evidence to be used against other offenders.  We are told from time to time, and it is indeed obvious, that conduct of the latter kind is contrary to the code of behaviour ordinarily observed by such people - all the more reason then to ensure that when it occurs it is rewarded.

I agree in the orders proposed by the President and Mackenzie J.