R v KU; ex parte Attorney-General (No 2) - [2008] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154

PARTIES:

R
v
KU
(respondent)
AAC
(respondent)
WY
(respondent)
PAG
(respondent)
KY
(respondent)
KZ
(respondent)
BBL
(respondent)
WZ
(respondent)
YC
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 343 of 2007
CA No 344 of 2007
CA No 345 of 2007
CA No 346 of 2007
CA No 347 of 2007
CA No 348 of 2007
CA No 349 of 2007
CA No 350 of 2007
CA No 351 of 2007
DC No 146 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Aurukun and Cairns

DELIVERED ON:

13 June 2008

DELIVERED AT:

Brisbane

HEARING DATES:

13 May 2008; 14 May 2008

JUDGES:

de Jersey CJ, McMurdo P and Keane JA
Judgment of the Court

ORDERS:

In CA No. 350 of 2007, R v WZ:

Appeal allowed;1.

Set aside the sentence imposed in the District Court on 24 October 2007;2.

Order that the respondent be imprisoned for six years and fix a parole eligibility date of 13 June 2010;3.

There will be a declaration that 55 days pre-sentence custody (from 19 September to 5 November 2006 and 16 November to 22 November 2006) be treated as time served under this sentence;4.

Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days.5.

In CA No. 343 of 2007, R v KU:

1.    Appeal allowed;

2.    Set aside the sentences imposed in the District Court on 24 October 2007;

3.    On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010;

4.    Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days.

In CA No. 345 of 2007, R v WY:

1.    Appeal allowed;

2.    Set aside the sentences imposed in the District Court on 24 October 2007;

3.    On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010;

4.    Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days.

In CA No. 351 of 2007, R v YC:

1.    Appeal allowed;

2.    Set aside the sentence imposed in the District Court on 24 October 2007;

3.    Order that a conviction be recorded;

4.    Order that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;

5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 347 of 2007, R v KY:

1.    Appeal allowed;

2.    Set aside the sentences imposed in the District Court on 24 October 2007;

3.    Order on each count that convictions be recorded;

4.    Order on each count that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;

5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 348 of 2007, R v KZ:

1.    Appeal allowed;

2.    Set aside the sentence imposed in the District Court on 6 November 2007;

3.    Order that a conviction be recorded;

4.    Order that the respondent be sentenced to detention for three years to be released after serving 50 per cent of that term;

5.    There will be a declaration that 41 days pre-sentence detention (from 1 to 3 July 2006, 19 to 20 September 2006, 5 October to 10 November 2006, 7 to 8 December 2006 and 19 to 20 March 2007) be treated as time served under this sentence;

6.    Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days;

7. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld).

In CA No. 346 of 2007, R v PAG:

1.    Appeal allowed;

2.    Set aside the sentence imposed in the District Court on 24 October 2007;

3.    Order that a conviction be recorded;

4.    Order that the respondent be sentenced to three years probation on the usual conditions, together with a condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;

5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 349 of 2007, R v BBL:

1.    Appeal allowed;

2.    Set aside the sentence imposed in the District Court on 6 November 2007;

3.    Order that a conviction be recorded;

4.    Order that the respondent be sentenced to probation for three years, on the usual conditions, together with a condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;

5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 344 of 2007, R v AAC:

Appeal allowed;1.

Set aside the sentence imposed in the District Court on 24 October 2007;2.

Order that a conviction be recorded;3.

Order that the respondent be sentenced to two years detention to be released after serving 50 per cent of that term;4.

There will be a declaration that one day pre-sentence detention (from 8 to 9 October 2007) be treated as time served under this sentence;5.

Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days;6.

Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld).7.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – six respondents (AAC, PAG, KZ, BBL, WZ and YC) each pleaded guilty to one count of rape of a 10 year old girl – three respondents (WY, KU and KY) each pleaded guilty to two counts of rape of the same girl – sentencing judge referred to offence as 'hav[ing] sex with young girls' rather than as 'rape' in sentencing remarks on 24 October 2007 – sentencing judge stated that all the respondents would be treated the same 'in terms of the behaviour' – adults and juveniles are to be sentenced under different statutory regimes under the Penalties and Sentences Act and the Juvenile Justice Act – reasons for the sentence imposed are required by s 10 of the Penalties and Sentences Act and s 158 of the Juvenile Justice Act – whether sentencing judge gave adequate reasons to support the sentences imposed – whether the sentencing judge sentenced on an incorrect basis – whether the sentencing process miscarried – whether the Court of Appeal must re-sentence the respondents

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – the adult respondents, WZ, KU and WY, were sentenced to fully suspended terms of six months imprisonment with an operational period of 12 months – the juvenile respondents, YC, KY, PAG, AAC, KZ and BBL, were sentenced to 12 months probation with no conviction recorded – sexual offences by adults on children warrant custodial sentences except in exceptional circumstances – sexual offences by juveniles on children usually warrant a term of detention – whether sentences were manifestly inadequate

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – DUTY OF CROWN PROSECUTOR – officer of the Office of the Director of Public Prosecutions (Queensland) submitted that non-custodial sentences were appropriate for all respondents – Attorney-General on appeal submitted that orders for imprisonment for the adults, and detention for the juveniles, were appropriate for all respondents – considerations of a type of 'double jeopardy', given the concessions of the prosecution at sentence – whether prosecution submissions led sentencing judge into error – whether Attorney-General may resile from the submissions of the prosecution at sentence – whether, if satisfied that the sentencing process miscarried, the appeal should be dismissed because of the conduct of the prosecution

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – ABORIGINAL OFFENDERS – all respondents and victim of Aboriginal descent and living in remote community at Aurukun – relevance of community dysfunction – rape and sexual relations with children not in accordance with Aboriginal customary law and not condoned by Aurukun community – whether only personal disadvantages suffered by each particular respondent should be taken into account – personal disadvantages must be considered with the seriousness of the offence and other relevant factors – whether the dysfunctionality of the community from which the offender came on its own warrants leniency

Child Protection (Offender Reporting) Act 2004 (Qld)
Corrective Services Act 2006 (Qld), s 180, s 192
Criminal Code 1899 (Qld), s 215(1), s 215(3), s 349(1), s 349(2), s 349(3), s 669A, s 671(2), s 671B(2)
Criminal Offence Victims Act 1995 (Qld), s 6, s 7, s 8, s 13
Juvenile Justice Act 1992 (Qld), s 2(e), s 3, s 8(1), s 150(1), s 132, s 134, s 141, s 150(1), s 150(2), s 158, s 176(1)(a), s 193(1), s 208, s 227, s 176(3), s 183(3), s 184(1), Sch 1, Charter of Juvenile Justice Principles, principles 1, 2, 6, 7, 9, 11, 12, 13, 14, 16, 17
Penalties and Sentences Act 1992 (Qld), s 9(1)(c), s 9(1)(d), s 9(1)(e), s 9(2)(a), s 9(2)(c), s 9(2)(e), s 9(2)(p), s 9(3), s 9(4), s 10, s 160D(3)

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, considered
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, applied
Hales v Jamilmira (2003) 176 FLR 369; [2003] NTCA 9, distinguished
Lovelock v The Queen (1978) 33 FLR 132, cited
Lowe v The Queen (1984) 154 CLR 606, cited
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, applied
R v AS; ex parte A-G (Qld) [2004] QCA 259, cited
R v BBE[2006] QCA 532, considered
R v Bell; ex parte Attorney-General (Qld) [1994] QCA 220, considered
R v Bielefeld [2002] QCA 369, considered
R v Black; R v Sutton [2004] QCA 369, cited
R v C [1996] QCA 014, cited
R v Casey, unreported, Court of Appeal, Qld, CA No 262 of 1991, 3 March 1992, considered
R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited
R v D[2003] QCA 150, considered
R v Daniel [1998] 1 Qd R 499; [1997] QCA 139, considered
R v DJL, unreported, Britton SC DCJ, Childrens Court, Qld, Indictment No CC17 of 2006, 5 December 2006 (anonymised by this Court), considered
R v E; ex parte A–G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, considered
R v Fernando (1992) 76 A Crim R 58, considered
R v Fuller-Cust (2002) 6 VR 496; [2002] VSCA 168, considered
R v Gibuma; R v Anau (1991) 54 A Crim R 347, cited
R v GJ (2005) 196 FLR 233; [2005] NTCCA 20, distinguished
R v Irlam; ex parte A-G[2002] QCA 235, considered
R v JAJ [2003] QCA 554, considered
R v Jobson, unreported, Court of Criminal Appeal, Qld, CA No 325 of 1989, 6 August 1990, considered
R v L; ex parte A-G (Qld) [2000] QCA 123, considered
R v LY [2008] QCA 76, cited
R v M; ex parte Attorney-General [2000] 2 Qd R 543; [1999] QCA 442, considered
R v MAC [2004] QCA 317, considered
R v Maygar; ex parte A- G (Qld); R v WT; ex parte A-G (Qld)[2007] QCA 310, cited
R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, considered
R v Mick, unreported, Wallace J, Supreme Court, WA, No 129 of 1988, 14 October 1988, considered
R v MSB, unreported, O'Brien DCJ, Childrens Court, Qld, Indictment No 33 of 2005, 3 November 2006 (anonymised by this Court), considered
R v Myers[2002] QCA 143, considered
R v P[2001] QCA 25, considered
R v Pham [1996] QCA 003, considered
R v Pont[2002] QCA 456, considered
R v PZ; ex parte A–G (Qld) [2005] QCA 459, considered
R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered
R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, considered
R v Riley (2006) 161 A Crim R 414; [2006] NTCCA 10, considered
R v Rogers and Murray (1989) 44 A Crim R 301, considered
R v S[2003] QCA 107, considered
R v SAS[2005] QCA 442, considered
R v TAS, unreported, White DCJ, Childrens Court, Qld, Indictment No 28 of 2005, 27 January 2006 (anonymised by this Court), considered
R v Tuki [2004] QCA 482, considered
R v Wilton (1981) 28 SASR 362, considered
R v Woodley, Boogna, Charles & Ors (1994) 76 A Crim R 302, cited
R v Wykes, unreported, Court of Criminal Appeal, Qld, CA No 149 of 1987, 18 August 1987, considered
The Queen v Haar, unreported, Court of Appeal, Qld, CA No 351 of 1991, 24 June 1992, considered
The Queen v Harris (No 2) (1971) 2 SASR 255, cited
The Queen v Homer (1976) 13 SASR 377, cited

York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited

COUNSEL:

W Sofronoff QC SG with E S Wilson for the appellant
K C Fleming QC with P F Mylne for the respondents

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Aboriginal and Torres Strait Islander Legal Service for the respondents

Index
Page

The circumstances of the offences................................................................... 10
The sentencing process................................................................................... 11
2.1     20 August 2007, Cairns........................................................................ 11
                  2.2     21 September 2007, Cairns.................................................................. 12
                  2.3     24 October 2007, Aurukun.................................................................. 12
(i)     PAG........................................................................................... 14
(ii)     KY............................................................................................. 17
(iii)     YC............................................................................................. 20
(iv)    KU............................................................................................. 23
(v)     WY............................................................................................ 24
(vi)    AAC........................................................................................... 26
(vii)    WZ............................................................................................. 28
(viii)   The judge’s sentencing remarks................................................... 30
(ix)    The District Court’s workload in Aurukun
on 24 October 2007................................................................... 30
2.4    6 November 2007, Cairns..................................................................... 31
(i)     BBL............................................................................................ 31
(ii)     KZ.............................................................................................. 33
(iii)   Prosecutor’s submissions............................................................. 34
(iv)   Defence counsel’s submissions..................................................... 35
(v)    Observations from the Department of Communities’ Officer......... 35
(vi)   The judge’s sentencing remarks................................................... 36
The Attorney-General’s appeals...................................................................... 36
3.1    The offence of rape under the Criminal Code........................................ 36
                 3.2    The parties’ submissions in the appeal.................................................... 36
                 3.3    The roles of prosecutor and sentencing judge.......................................... 37
                 3.4    Should this Court entertain the appeals despite the
  prosecutor’s attitude at sentence?........................................................... 38
                 3.5    Statutory requirements in relation to sentencing....................................... 46
3.6    The relevance of an offender’s personal disadvantages............................ 49
Should this Court re-sentence the respondents?............................................... 51
Further evidence............................................................................................. 52
Re-sentencing the adult offenders.................................................................... 56
6.1    WZ....................................................................................................... 62
                 6.2    KU....................................................................................................... 64
6.3    WY....................................................................................................... 66
Re-sentencing the juvenile offenders................................................................ 67
7.1    YC........................................................................................................ 69
                7.2    KY....................................................................................................... 72
                 7.3    KZ........................................................................................................ 74
                 7.4    PAG..................................................................................................... 79
                 7.5    BBL...................................................................................................... 81
7.6    AAC..................................................................................................... 82
Summary........................................................................................................ 86
Orders........................................................................................................... 88

THE COURT: On 24 October 2007 the adult respondents whom we will call WZ, KU and WY, and some of the juvenile respondents, whom we will call YC, KY, PAG and AAC, each having pleaded guilty to the rape of a 10 year old girl, were sentenced for that offence. Some respondents pleaded guilty to additional offences. WY, KU and KY pleaded guilty and were sentenced for a second offence of rape of the same girl. PAG was sentenced for the offence of unlawful carnal knowledge of a different girl but the sentence imposed for that offence is not the subject of any appeal. WZ, KU and WY were sentenced as adults: they were each sentenced on each charge to six months imprisonment suspended immediately for an operational period of 12 months. YC, KY, PAG and AAC were dealt with under the Juvenile Justice Act 1992 (Qld): they were each sentenced on each charge to 12 months probation without any conviction being recorded.

On 6 November 2007 the two other juvenile respondents, whom we will call KZ and BBL, also pleaded guilty to the rape of the complainant. They were also sentenced to 12 months probation without a conviction being recorded.

Pursuant to s 669A of the Criminal Code 1899 (Qld), the Attorney-General has appealed against the sentence imposed on each respondent on the ground that it was manifestly inadequate for a number of reasons reflecting errors of principle on the part of the learned sentencing judge.[1] Section 669A(1) provides relevantly: "The Attorney-General may appeal to the Court [of Appeal] against any sentence pronounced … and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper."

The notices of appeal whereby the Attorney-General sought to exercise the right of appeal conferred upon him by s 669A were filed on 10 December 2007 and, in the case of the youth YC, on 11 December 2007. In each case, the notice of appeal was filed outside the period of one calendar month prescribed for the commencement of appeals by s 671(2) of the Criminal Code. Accordingly, the Attorney-General sought an extension of time for the commencement of these appeals. On 13 February 2008, this Court granted the extensions of time sought by the Attorney-General.[2]

The circumstances of the offences
[1]Cf R v Melano; ex parte Attorney-General [1995] 2 Qd R 186 at 188 – 190.
[2]The reasons for that decision were published on 19 February 2008: [2008] QCA 20.

The complainant was 10 years old at the time the offences were committed. She was the cousin of, at least, the respondents, KU and PAG.

At the time of the offences, the respondents were aged as follows:
WZ                   -          25 years old
KU                   -          18 years old
WY                   -          17 years old
YC  -          15 years old
KY                   -          14 years old
KZ  -          14 years old
PAG                 -          14 years old
BBL                  -          13 to 14 years old
AAC                 -          13 years old
The respondents and the complainant were all Aborigines living in the Aurukun community.

From the schedule of facts used in the course of sentencing the respondents the following brief details of the offending emerge. The incidents the subject of count 1 occurred between 1 May and 12 June 2006. The respondents WZ, KU, WY, PAG, BBL and KZ had sexual intercourse with the complainant in an unoccupied house at Aurukun. They each had sexual intercourse with her, in turn, in a bedroom while the others waited in another part of the house. The complainant had sex with all of these respondents, without objection, except in the case of BBL who admitted that the complainant objected to his having intercourse with her. BBL claimed that another male (who was not charged) forced him to have sex with the complainant. BBL wore a condom. PAG told police the complainant asked him if she could have sex with him. Initially he refused "because she was just a little kid". She kept asking him. He put on a condom and had sex with her even though he did not want to. KZ was with him when he was having sex. PAG said that KY was telling the complainant to have sex. KU thought the complainant was 11 years old. He wore a condom when he had sex with her. His "brother", WY, "forced him to go see the complainant".

The incidents the subject of count 2 occurred when KU and WY had sexual intercourse with the complainant on another occasion and in another house in Aurukun between May and mid-June 2006. KU said he again wore a condom.

The incident the subject of count 3 occurred on 30 May 2006[3] when AAC had sex with the complainant at a birthday party. He did not wear a condom.
[3]This date is stated on the indictment. The schedule of facts states this count occurred on 13 May 2006.

The incident the subject of count 4 occurred between late May and mid-June 2006 when YC had sexual intercourse with the complainant in the male toilets behind the church at Aurukun. According to YC's version of this incident, which was not contradicted at the sentencing hearing, the complainant asked YC to go with her to the toilet to have sex. The complainant took off her clothes and YC's pants. She lay on the ground and he lay on top of her. He did not wear a condom.

The incidents the subject of counts 5 and 6 occurred when KY had sexual intercourse with the complainant on two occasions between 26 May and 10 June 2006. No other males were present. On one occasion, the intercourse took place at the house where WZ lived when no-one else was at home. KY wore a condom. He claimed the complainant wanted to have sex. On the other occasion, intercourse occurred behind a commercial building in the town.

KZ denied any wrongdoing to police and WZ declined to be interviewed by police. All other respondents made admissions to police. KZ and WZ were implicated by others.

No alcohol or substance abuse was said to be involved in any of the offending.

The sentencing process
2.1 20 August 2007, Cairns

The sentencing process began on 20 August 2007 in Cairns, when PAG, BBL, KZ, KU, WY and WZ each pleaded guilty to having raped the complainant on a date unknown between 1 May 2006 and 12 June 2006 (count 1). The respondents WY and KU also pleaded guilty to raping the complainant on another occasion on a date unknown between 1 May 2006 and 12 June 2006 (count 2). The juvenile KY pleaded guilty to two counts of raping the complainant, the first on a date unknown between 26 May and 8 June 2006 (count 5) and the second on or about 10 June 2006 (count 6).

The schedule of facts to which we have referred was tendered by the prosecution.

Pre-sentence reports were ordered in respect of the respondents present in court, that is, all respondents other than the juveniles, YC and AAC. The court, with the concurrence of the parties, intended that the sentences would be heard at the Aurukun sittings of the District Court in October 2007.

2.2 21 September 2007, Cairns

The matter was next mentioned in the District Court, Cairns, on 21 September 2007. The respondents were not present but were represented by their lawyer. All parties supported the order made by the judge that the registry forward a copy of the schedule of facts and a transcript of the hearing on 20 August 2007 to the Department of Communities. This was to assist departmental officers in preparing the pre-sentence reports.

2.3 24 October 2007, Aurukun

On 24 October 2007 all respondents other than BBL and KZ were sentenced at Aurukun. AAC pleaded guilty to one count of raping the complainant on 30 May 2006 (count 3) and YC pleaded guilty to one count of raping the complainant on a date unknown between 26 May and 12 June 2006 (count 4). The other respondents were arraigned again and pleaded guilty again in respect of these offences. The respondent PAG also pleaded guilty to another sexual offence involving a different female complainant. The learned sentencing judge referred to the schedule of facts which had already been tendered, and invited the prosecutor to state any facts pertinent to the case of particular individuals.

In the course of responding to her Honour's request in relation to the juvenile PAG, the prosecutor, an officer of the Office of the Director of Public Prosecutions (Queensland), said:
"My submission in relation to this particular offence is the same that I make in relation to children of that age, of similar or the same age of that age, is to quote - well, they're very naughty for doing what they're doing but it's really - in this case, it was a form of childish experimentation, rather than one child being prevailed upon by another, although - as I said, although she was very young, she knew what was going on and she had agreed to meet the children at this particular place and it was all by arrangement, so - for that purpose.
I'd ask your Honour to take that into account and if this was standing alone, the Crown would not be asking anymore than for some form of supervisory order, form of probation, or some order of that - similar order to that, your Honour."
The prosecutor went on to say:
"MR CARTER: I've been given certain instructions as to the penalties for these, your Honour. None of the penalties that I've been instructed to seek have been - involve custodian (sic) penalty - immediate custodial penalty, not even for the adults.
HER HONOUR: What about in the light of the PSRs though?
MR CARTER: Even with those, your Honour, yes. I know that other forms of penalty are difficult but I would submit that if your Honour's seeking to impose any form of custodial penalty on the adults, that they be dealt with by way of a - yes, suspended sentence or a parole-----
…
MR CARTER: Yes. But that's the - that's the other course that I've been instructed to take, your Honour. As to the children, I would submit some form of supervised re-orders for them, something that involves possibly a little bit of education, or counselling in relation to matters such as these. But that's all I'd be seeking, that some form of supervisory order of - in the vicinity of no less than 12 months, if it please your Honour, for each of them, having - taking into account the nature of the offence, their admissions and pleas and also the contents of the histories.
It must be stated, I won't resile from this, that the charges of rape and as I'm instructed, it's - that arises in part, due to the age of the complainant and her ability to actually consent to the acts and I ask your Honour to take that into account too, whereas it is called rape, because of that and because of the absence of a proper consent and while that isn't - doesn't excuse them, it does in some way lessen the fact that there was no actual force in the sense-----
HER HONOUR: But she was only 10 at the time, wasn't she-----
MR CARTER: Yes, that's right, and there's no possible way that she could have consented willing - knowingly, with the full knowledge to these offences, even though - that she'd gone through the motions of having sex with these people and I'd submit that that's something as well. They didn't force themselves on her, threaten her, or in any way engage in any of that sort of behaviour.
So, to the extent I can't say it was consensual in the legal sense but in the other - in the general sense, the non-legal sense, yes, it was. So, I then ask on that basis not to seek any periods of detention, not to seek any periods of custody, immediate custody. Unless there's anything further, your Honour, that's - those are my submissions. I can expect that not all of them will have clean histories."
When the learned judge drew attention to the circumstance that one of the respondents (WZ) was a 25 year old man, the prosecutor said:
"MR CARTER: Yes. Yes. Yes, that's correct. He may be chronologically 25 but I don't - I would not - I'd submit that there wouldn't have been much thought given to the age disparity or the legal niceties of consent or that sort of thing. That's why I'm asking in any event that he be given a - either parole or a sentence that's suspended, operational period for 12 to 18 months. If it please your Honour."
No victim impact material was placed before the court either by way of a statement from the victim or oral submissions from the prosecutor.

The learned sentencing judge heard submissions in mitigation of sentence from counsel on behalf of the respondents. Her Honour noted that both the reports for KU and WZ "raise concerns about their ability to understand English". Her Honour enquired whether interpreters were needed. Defence counsel responded that he was satisfied no interpreters were needed "particularly in light of the Crown's admissions".

In the course of his submissions, counsel on behalf of the respondents said that:
"… there'd be a number of sexual relationships that occur at Aurukun between teenagers under the age of 16 … I'm not saying it makes it right, but it just reinforces the lack of education and resources that are given to this community to assist with what clearly is a significant problem."
(i) PAG
Defence counsel made the following submissions on behalf of PAG. He was 14 at the time of the offence. He went to year 9 at school and was now keen to gain employment. He was not presently entitled to Centrelink benefits. He lived with his grandmother and was "keeping out of trouble now". He had "amended his peer group list … he plays rugby league. He goes out fishing with relatives on the weekend. He also goes out night hunting, he is learning how to make spears and he is learning more about his culture … [He] is a young juvenile offender who has committed these offences and admitted to these – this offending behaviour." Defence counsel agreed with the prosecutor's submissions "in relation to the appropriateness of a community based order, which would allow for continuing supervision of [PAG]".

Her Honour then referred to PAG's pre-sentence report which recorded that he was enrolled in year 10 and enquired whether he was attending school. Defence counsel confirmed that he was not attending school.

PAG's tendered criminal history was extensive for his age. In February 2006 he was placed on 12 months probation without conviction for breaking and entering premises and committing an indictable offence. In May 2006 he was placed on 12 months probation and ordered to do 80 hours community service and his licence was disqualified for six months for two counts of entering premises and committing an indictable offence, two counts of unlawful use of motor vehicles and one count of dangerous operation of a vehicle. He had therefore only recently been placed on probation at the time of the commission of the rape offence. He continued to commit offences throughout 2006 after the commission of the rape. On 19 December 2006 he was convicted and sentenced to seven weeks detention for wilful damage, attempted unlawful use of a motor vehicle and burglary committed in mid-October 2006. He was also convicted and sentenced to seven weeks detention for unlawful use of a motor vehicle committed on 1 June 2006 (about the time of the present offence) and three further property offences committed on 8 March 2006 (before the present offence). On 22 May 2007 he was placed on 12 months probation without conviction for receiving stolen property in December 2006 and for unlawful use of a motor vehicle in February 2007.

PAG's pre-sentence report noted that his then current probation order involved:
"… weekly phone reporting, monthly face to face contact with his Caseworker and other Departmental officers in the community and engaging in programs as directed by his Caseworker. [PAG] has been meeting some of the requirements of his Orders. He meets his case worker and other Departmental officers at Aurukun Justice Group Building and engages in programs with them. [PAG] has participated in the following programs:
·Alcohol, Tobacco and other Drugs Awareness Program. [PAG] has no substance use issue
·Cultural Activities - he helped collect barks to erect traditional huts.
·Recreational Activities - Community Disco, BBQ and Games
·Sports- Basketball and Touch Football
·Victim Empathy Awareness Programs
·Unpaid community service work
For the last few weeks due to family and cultural activities [PAG] has not been attending youth justice programs. Two of [PAG's] family members died; his family had a 'Tomb Stone Opening Ceremony' and a 'House Opening Ceremony'.
At the time of the current offence [PAG] was subject to supervised orders, 12 month Probation Order linked to 80 hours Community Service Order. The Orders were made on 23 May 2006 in the Aurukun Childrens Court. The Orders had already expired and [PAG] had successfully complied with the requirements of the Orders."
The report referred to the various sentencing orders open under the Juvenile Justice Act. These included probation which would require PAG:
"… to phone report to his caseworker on a weekly basis, accept visits from his caseworker and other departmental officers in the community, actively take part in developing his case plan and attend programs as directed by his caseworker.
Under a Probation Order, a case plan would be developed for [PAG] that would include:
Problem Solving Skills Training - to help improve reasoning skills to walk away from a similar situation and to stay away from the influence of negative peer groups.
Sexual Health Education or Counselling can help assist in re-enforcing age of consent, consensual sex between adult persons as well as addressing any negative sexual beliefs.
Ending Offending Program - to help address offending behaviour and learn relapse prevention.
Victim Empathy Program - to understand the impact his offending has on his victims.
A period of probation would enable the Department to supervise and monitor [PAG's] activities and allow him to participate in community and family life. Further support would be provided by way of re-engaging [PAG] into education or vocational opportunities."
The report noted that a community service order of up to 200 hours could be imposed and that this "would help to provide a clear consequence for [PAG's] offending and be beneficial for his self-worth by allowing him to make positive and meaningful reparation to the community for his actions". Other options included a combined probation and community service order or a combined detention and probation order. Such an order "would provide a clear consequence to [PAG] for this offence and offer him extended support upon release from custody. The detention order can be made for a maximum of six months which is then followed by a probation order for a maximum of twelve months upon release from custody."

Another option was a conditional release order which would allow PAG "… to participate in three separate components to reintegrate him into society, address his offending behaviour and provide some reparation to the community. [PAG] would be required to attend programs to address his offending behaviour as well as educational programs offered and approved by the Department of Communities."

The report also considered the option of detention, noting:
"In considering the sentencing principles outlined in the Juvenile Justice Act 1992, it is requested that Your Honour take into account the following when considering this option:
·[PAG] would be exposed to a cohort of offending peers in detention, which may serve to exacerbate his offending behaviour;
·[PAG's] relationship with his family and his community may be further eroded if he were ordered to serve a period of detention.
·[PAG] has spent 8 days in pre-sentence custody for these offences.
·[PAG] is attending school and a period of detention will interrupt his education and consequently it could affect his school engagement in a long run.
Should Your Honour order [PAG] to serve a period of detention, he would have access to therapeutic programs to address his offending behaviour and would be provided with educational and vocational opportunities via the Queensland Education System.
Upon release [PAG] will be subject to a Supervised Release Order. During the Supervised Release Order period, the Department would provide the assistance necessary for [PAG] to gain employment or educational options as well as to pursue other interests of a recreational nature. [PAG] would be subject to regular reporting requirements and other statutory restrictions. Should [PAG] fail to comply with the terms of the order or re-offend, the Department of Communities may make application to the Court for cancellation of the Supervised Release Order."
PAG's counsel submitted that the most appropriate sentencing option for PAG was probation. A representative from the Department of Communities, Ms Hall, informed the court that a departmental officer was based in Aurukun although there had been difficulties in maintaining this presence because of "all the troubles that do happen in this community". Ms Hall stated that the Department now had "sexual health and life skills programs in Aurukun, which look at all of those issues appropriately with Indigenous males – young males". Her Honour enquired whether this was an appropriate case in which to receive a more detailed psychological report from the Griffith Youth Forensic Service ("GYFS"). Ms Hall responded:
"With respect, Your Honour, it might be overkill with this particular set of facts.
HER HONOUR: It's just that [PAG's] here on two charges.
MS HALL: Yes.
HER HONOUR: Two different girls.
MS HALL: Yes. [PAG] certainly needs a lot of education but then he's - there are a lot of children in this community who think the same way about sexual matters as [PAG] does.
HER HONOUR: Mmm.
MS HALL: So, you know, there but for the grace of God goes most of the children in this community. So general sexual health programs and amongst that the appropriateness of who your sexual partner will be. Those programs I think would be more effective for these boys. And it's only very recently that we've done that. We've had about a year's gap where we've had not a lot of continuity. Back to about October of last year when the first riots happened. So we lost our worker then, but we have now been stable for a few months with
Mr Savage, and there are other officers who also travel in. But those programs are running although it's new, but we've got good programs up."

PAG's grandmother was present in court. The transcript records that what she said to the judge was not recorded because it was indistinct. It seems, however, that she spoke favourably and in support of PAG.
(ii) KY
Defence counsel made the following submissions in respect of KY. He grew up in Aurukun and had the support of his great-grandmother with whom he was living and who "grew him up". He was 14 years old at the time of his offending. He played rugby league. Since getting into this trouble he has taken a new direction and is staying home more and doing the right thing. He was currently completing a community service order and was progressing reasonably well, complying with the order and making an effort to turn his life around.

His grandmother addressed the judge. She confirmed that KY was "doing well" and "always home helping his great-grandmother".

Ms Hall from the Department of Communities confirmed that although KY "hasn't had much of a chance to do much, … he is reporting and he is engaging with [the supervising officer]".

KY had some significant criminal history. In December 2005 he was placed on a good behaviour bond for two counts of unlawful use of vehicles and entering or remaining in a dwelling or yard, the offences occurring on 22 October 2005. On 22 March 2006 he was dealt with for unlawful use of a motor vehicle and entering or remaining in a dwelling or yard in October 2005, and to two further charges of entering premises and committing indictable offences in early 2006. He was sentenced to six months probation without conviction. On 24 May 2006 (about the time of the present offending) he was dealt with for entering premises and committing an indictable offence by break in early 2006 and sentenced to a further six months probation without conviction. On 20 June 2006 he was sentenced for entering premises and committing an indictable offence by break in May 2006 to six months probation without conviction. The commission of that offence and his court appearance in respect of it bridged the time period in which his present offending occurred. He continued to commit offences after his rapes of the victim. On 16 January 2007 he was convicted of entering premises and committing an indictable offence by break, and entering premises with intent, in December 2006. He was sentenced to 29 days detention, with the time spent in pre-sentence detention declared to be time served under the sentence. On 20 February 2007 he was ordered to perform 20 hours community service for entering premises and committing an indictable offence by break in October 2006. On 6 March 2007 the sentence imposed on 16 January 2007 was re-opened and he was re-sentenced: on each charge no conviction was recorded and he was ordered to perform 20 hours community service.

KY's pre-sentence report recorded the following. KY had completed 30 hours of his outstanding community service orders but he had not been compliant with them. He was raised in Aurukun by his aunt and now resides with his grandmother and grandfather. His parents separated when he was young. His problems with the law only commenced when he began to associate with negative peers. His grandmother stated that she had tried very hard to bring him up properly so that he could be a respected person in the community and she had given up drinking alcohol to care for her family. KY's mother often consumed alcohol and was not always available to care for her son. Departmental records showed that KY's family had past and ongoing issues but managed to remain a cohesive family unit through adversity. The family had adequate external supports that might provide a bolster to assist KY in "turning his life around". Environmental and cultural issues, inconsistent education, boredom, peer interaction, lack of adult supervision and poor decision-making skills had contributed to KY's offending. The report included the following:
"People who work with Aboriginal youths observe an excessively negative outlook on life with low self-esteem being characteristic. Cultural dislocation and dispossession appear to have disrupted and even removed traditional rites of passage into adulthood and a cultural vacuum is the result. As a result of the crisis of identity in not knowing traditional culture, young people tend to find a sense of identity in a subculture where offending behaviour, drug taking and work avoidance become the new rites of passage.
…
[KY] appears to be an example of a young person experiencing the cultural vacuum. [KY's] school attendance has been irregular and non compliant as he only attended school until Grade 8. [KY] does not work and has little contact with his biological father. Boredom and the influence of other young offenders from the Aurukun community has been a heavy influence on his offending behaviour. [KY] is involved with a peer group who regularly offends in the area. The company consists of friends and family members and as a result this ties the group together. Coupled with a lack of legitimate outlets for self expression, offending has become almost compulsive for [KY] and some of his friends. Research nominates boredom as playing a major part in the involvement of young people in criminal activities.
…
[KY] stated he is involved with a peer group who regularly offend in the area. The company consists of friends which reinforces the group bond. [KY] states that there is nothing to do in Aurukun.
…
[KY's] capacity to deal with peer pressure and consequently his ability to make positive life decisions is very limited. [KY] is easily influenced by his peers into making negative life decisions such as engaging in offending behaviour.
…
[KY] expressed a lot of frustration with his behaviour in this regard. At the same time he understands that the price that he may have to pay for these particular offences could be high.
…
[KY] stated that his grandmother and grandfather were home at the time he committed the offences, however he left home those nights without permission. [KY] said that when he went out with his friends there was hardly ever an adult present. He said he could leave the household as he pleased. At the time of the offences they were unaware of his exact whereabouts. Without adult supervision, [KY] is free to act as he pleases.
The minimal supervision and lack of strong boundaries has provided [KY] the opportunity to associate with negative peers and participate in harmful behaviours. Stronger boundaries and supervision are required to lessen the chance of [KY] re-offending.
…
It is the author’s assessment that [KY] has issues around making decisions about the type of people he chooses to associate with and the morality of certain actions. [KY's] poor decision making skills may be due to several factors including, his age, the need to be accepted by his peer group and a lack of positive role models. With support, [KY] may improve his decision making skills through ongoing interaction with his family and particularly through contact with appropriate community personnel and external services. Ongoing Departmental support would assist [KY] in making decisions whilst thinking through the associated consequences and ramifications of the decisions that he makes.
…
[KY] showed reluctance to talk about the actual offences … This could have been through shame and guilt expressed by his body language. It appeared that he also carried shame for his behaviour and was not comfortable speaking about the offences. … [KY] stated that he was "very sorry". [KY] said that he was not under the influence of substances … [and] that it was the victim who had encouraged him to have sex with her.
…
[KY] stated that he did not like the time he had spent in the Aurukun watch house and found it to be daunting, even though it was 1 day …
…
[KY] said he wishes to make a positive change and would be willing to participate in programs … to assist him with curbing his offending behaviour. [KY] emphasised during interviews … that he does not wish to go to Detention again and will work on maintaining an affirmative attitude to ceasing his offending behaviours. [KY] also understands that he maybe sentenced to a period of detention for the offences that he has committed."
The report then discussed the various sentencing options under the Juvenile Justice Act in the following terms. KY could be sentenced to up to 36 months probation and, if so, would participate in programs including Challenging Offending Behaviour (to help him recognise and understand why he offends and how he may otherwise utilise his time) and Responsible Decision Making. He would also be expected to have weekly telephone contact with a case worker and monthly face to face contact when the case worker visited the community. KY would be further supported by seeking to re-engage him with education or vocational opportunities. KY had expressed a willingness to comply with a probation order or an order for further community service or a combined order. A combined probation and community service order would enable KY to benefit from continued departmental support through probation and also make reparation to the community for his offending behaviour.

The report included a prepared conditional release order (CRO) initial planning/consultation. The purpose of a CRO is to provide a final option other than detention enabling a young person to be released into the community in a structured program with strict conditions for up to three months. Were KY to be sentenced to such a program he could work with the Aurukun youth workers on community projects and do volunteer work to enhance his work readiness skills and learn respect for his community; be assisted to re-enrol and attend school or to find an apprenticeship; and he would benefit from a mentoring/self-esteem program with a Youth Justice Program Team member. He would also be referred to the "Griffith sex offenders program".

Finally, the report referred to the option of detention, noting:
"It is the Departments’ view that while a Detention Order may provide some protection to the community, it may have a detrimental effect of further entrenching [KY] in a pattern of institutionalisation, anti-social attitudes and beliefs, while exposing him to interaction with serious offenders. [KY] has previously been to detention and is at risk of becoming institutionalised should he return there.
…"
(iii) YC
Defence counsel then made submissions in respect of YC, who was 15 years old at the time of his offending and was 16 at sentence. He was raised in Aurukun by his grandmother. He left school in year 10 and was working at the library in Aurukun two days a week for which he earned $160. He enjoys playing rugby league, hunting and fishing. Defence counsel submitted that a community based order should be imposed to enable him to continue working.

The judge noted that YC was placed on probation and community service only the previous month and enquired how these orders were progressing. Ms Hall for the Department of Communities responded that YC was reporting and was engaging with the supervising officer. YC's grandmother told the judge that he was helpful in minding his grandfather, who was on dialysis, when she was working at the guesthouse.

YC too had a lengthy criminal history for a young person. On 17 November 2004 he was reprimanded for two breaches of bail undertaking and his eight days of
pre-sentence detention was taken into consideration. On 6 April 2005 he was convicted of two counts of entering or being in premises with intent to commit an indictable offence on 11 July and 29 November 2004; entering or being in premises and committing an indictable offence and break on 1 September and 5 and 6 November 2004; entering or being in premises and committing an indictable offence on 13 July 2004; and three counts of unlawful use of motor vehicles on 5, 6 and 30 November 2004. He was convicted on all charges and placed on 12 months probation. On 14 June 2005 he was ordered to perform 80 hours community service without conviction for two counts of entering or being in premises and committing an indictable offence on 3 May 2005 and 1 September 2004 and three counts of unlawful use of motor vehicles, the first committed on 3 May 2005 and the others on 1 September 2005. On all charges no conviction was recorded and he was ordered to perform 12 months probation. On 13 September 2005 he was ordered to perform 40 hours community service without conviction for street and weapon offences. On 15 November 2005 he was ordered to perform 40 hours community service for unlawfully using a motor vehicle on 22 October 2005. On 28 March 2006 he was convicted of multiple property offences committed between June 2005 and February 2006, as well as some traffic matters. He was sentenced to four months detention with pre-sentence detention declared to be time already served under the sentence with the balance suspended to be served by way of a conditional release order and a further order for 20 hours community service. On 17 July 2006, soon after the present offending, he was convicted and ordered to perform a further 100 hours community service for entering premises and committing an indictable offence between 7 and 10 July 2006 (conduct subsequent to the present offending) and entering premises with intent and unlawful use of a motor vehicle, both on 1 June 2006 (about the time of the present offending). He was convicted and ordered to perform 100 hours community service. On 22 May 2007 he was ordered to perform 40 hours community service and 12 months probation without conviction for entering premises and committing an indictable offence by break and entering premises and committing an indictable offence in February 2007. On 18 September 2007 he was ordered to perform 12 months probation and 40 hours community service for two counts of wilful damage and one count each of unlawful use of a motor vehicle and trespass, all committed on 20 August 2007, the day many of his present co-offenders pleaded guilty to raping the complainant.

YC's pre-sentence report prepared in respect of the offences dealt with on 17 July 2006 had been updated in respect of the current offending by a departmental officer. The original report noted the following. YC was willing to try to change his behaviour through counselling and therapeutic programs and had expressed remorse and shown insight. He "had made conscious efforts to remove himself from his co-offending peer group, even though that has sometimes meant he has been 'alone in his room with no-one to talk with'." He had left school and did not wish to return. He was interested in working on the Community Development Employment Program ("CDEP") when old enough and had shown himself to be a reliable worker when engaged on community based orders. With adult supervision, he has shown he can excel. A supervising youth worker had described him as "reliable, mature beyond his years and well above his Aurukun peers". He has admitted to "sniffing" solvents in the past but he has taken a current positive stance against sniffing and smoking marijuana. He has low self-esteem but has no-one in his immediate or extended family with whom he can obtain guidance. He is easily influenced by peers and this is evident in his offending history. If he were influenced by positive peers in a positive environment he would excel. He is not known as a chronic "sniffer" but admits to sniffing in the past and this has led to his offending when he is in the company of youths who also sniff. He has made a commitment not to sniff but will need the support of resistance strategies. With that support he could also improve his decision-making skills, thinking through the consequences of them so that he is able to say no to his peers. He resides with his mother and younger siblings. The general view in the community was that YC was "a good kid unlike the other boys that he hangs around with and needs to get out of Aurukun before he gets caught up here". The report continued:
"He is part of the Top End part of the community. The Top End / Bottom End division was originally partly a geographical division between inland and coastal people or between eastern (top end, two clans) and western (bottom end, three clans). This division has been broken down somewhat by intermarriage and by a new housing division near the airport.
[YC] is keen to learn about traditional values and customs. He enjoys traditional pursuits such as fishing, camping out bush and singing. He is an accomplished spear maker. He also enjoys less traditional activities such as football and playing guitar. While [YC] has not enjoyed mainstream schooling, he has always been a good and attentive student when receiving instruction on cultural matters or when learning traditional ways."
The handwritten note updating that report included the following. YC was currently unemployed but was "a very good attender at Youth Justice (Aurukun-based) programs". He was "reliable, mature (beyond his years and well above his Aurukun peers (very good communicator amongst various age groups -; as well as being a positive young man." YC does not have alcohol issues or smoke marijuana and through personal choice and maturity is resisting peer pressure. The complainant told YC that she wanted to have sex with him. He did not seek her out for sex and was embarrassed by her invitation because of her young age and because he did not want to do it. YC cried during the interview with the author of the report who considered YC was:
"·confused by event, and still doesn't understand why he allowed himself to behave in this way. A very sincere remorse and deep shame.
· [YC] very angry with himself. Told no-one about incident.
· [complainant] female 'kept on asking me'
· [complainant] female not angry after alleged incident."
(Emphasis as in the original)
The author of the updated report emphasised that this was YC's first offence of a sexual nature and that YC was willing to allow the author to support and assist YC in his efforts to separate from his peers.
(iv) KU
Defence counsel made the following submissions on behalf of the adult KU, who was 18 at the time of the offence and 20 at sentence. KU, too, was raised in Aurukun. He had completed his year 8 education and was currently working under the CDEP as a cleaner two days a week earning $190. He had also recently commenced work as a driver at the justice centre. KU plays rugby league. His grandmother was present in court to support him. He was remorseful and ashamed of his actions and recognised that as an 18 year old he should not have been involved in the offending. He was not a robust or mature individual for his years and, although older than the juveniles, these factors made the age difference less significant. Defence counsel urged the judge to impose a penalty like that sought by the prosecutor, but submitted that, because of the serious nature of the offending an immediate recommendation for parole may not be acted upon, so that a wholly suspended prison term would be preferable.

The judge enquired whether it was likely that KU would be able to comply with a suspended term of imprisonment, given that he had not been complying with community service and probation orders. His counsel emphasised that KU's problems were more with meeting commitments than with re-offending. Her Honour, having read the pre-sentence report in respect of KU, invited the Corrective Services officer present in court, Ms Dewar, to add to her report. Ms Dewar declined the invitation. In response to a query from her Honour, KU's counsel stated that he understood KU had stayed out of trouble for almost two years. In the light of KU's criminal history to which we will refer directly, this statement can be seen to be inaccurate. KU's counsel submitted that some of KU's difficulty in complying with orders related to his inability to read and write and his difficulty with language.

KU's grandmother addressed the judge in these terms:
"Your Honour, I know that my grandson always be home because he don't walk around at night … so he never give me a cheek and just lived home and stay with his father … at Aurukun. He always behaving himself. That's all, your Honour."
KU's criminal history was as follows. On 18 January 2005 he was placed on a 12 month good behaviour bond for four counts of offences relating to the entering of premises in November and December 2004. On 15 February 2005 he was placed on a six month good behaviour bond for entering or being in premises with intent to commit an indictable offence and attempted unlawful use of a motor vehicle, committed a few days earlier. On 16 August 2005 he was placed on eight months probation without conviction for entering premises and committing an indictable offence on 11 May 2005. On 15 November 2005 he was sentenced to a total of 120 hours community service for offences of unlawful use of a motor vehicle, wilful damage and trespass, committed in October 2005. He was also convicted and fined for breaching his probation order imposed on 16 August 2005. On 20 September 2006 he was convicted and fined for possessing implements used in relation to particular offences and trespass. These offences occurred in February 2006. On 21 March 2007 he was convicted but not further punished for breaching both his probation order imposed on 16 August 2005 and his community service order imposed on 15 November 2005. He was also convicted of offences related to entering premises and unlawful use of a motor vehicle. These offences occurred between January and March 2006. He was placed on two years probation and ordered to perform community service with convictions recorded. He had no offences committed subsequently to the present offences.

KU's pre-sentence report prepared by officers from the Cairns Probation and Parole Office was tendered. It recorded the following information. KU stated that his offending was the first time he had sexual intercourse with the complainant. He was unsure whether she had previously had sexual intercourse. In relation to the community service orders imposed on 21 March 2007, KU had completed 76 hours with 44 hours remaining. He said he was unable to read or write. He was able to recite the alphabet, the days of the week and to count to 10. After completing year 8 he commenced a traineeship through Comalco in Weipa for six months but on its completion returned to Aurukun where he gained employment through the CDEP doing community work. He was currently working as a cleaner for two days a week receiving $195 a fortnight. He said he had never tried alcohol, illicit substances or solvent sniffing. He plays competition football and trains once or twice a week. His mother died in 2005 from kidney problems. He was shocked at her death and still feels sad about it. His father has a leadership position in Aurukun. His parents separated when he was two years old. His father has formed a new long-term relationship. When KU's mother died, he moved in with his father. His father and his father's partner do not have alcohol in the house and do not drink. KU advised that he had been raised in households without violence or alcohol. He takes prescribed medication to assist with blood pressure and diabetes. He did not feel sorry for the complainant because she was asking for sex. He would not behave in the same manner again because he got into too much trouble. He was "not sure whether the behaviour is wrong as everyone seems to have 'sex' with young girls". He thought she was about the same age as his half-sister aged 12. He seemed to show little remorse and stated that "he was surprised when he was charged". He said he was unsure of the legal age limit on minors having sexual relations. The report concluded:
"[KU] has previously had a mixed response to community based supervision and due to his apparent lack of remorse and reluctance to accept responsibility for his actions it appears that he is unsuitable for a further community based order at this time.
If your Honour was considering a period of imprisonment, then it is noted that your Honour may fix a Parole eligibility date under Section 160D (3) of the Penalties and Sentences Act 1992 … ".
(v) WY
Defence counsel next made submissions in respect of WY, who was 17 years old at the time of the offences and 18 at sentence. He was required to be dealt with as an adult offender. He was also raised in Aurukun and lived with his grandfather and his auntie. His grandfather was on dialysis and WY assisted in his care when his auntie was at work. WY had completed year 10. He was working under the CDEP as a town cleaner two days a week earning about $150. He would like to increase his hours of work through the CDEP. WY had a great sense of shame about his offending.

The learned sentencing judge noted that WY's pre-sentence report did not suggest that he felt sorry for the complainant. Defence counsel emphasised that WY was not a mature person, could not read or write and had limited comprehension. This affected his understanding of situations and his ability to express himself, especially about embarrassing episodes, so that what was apprehended in the report may not have conveyed his true feelings. Her Honour was concerned that the report stated that WY did not have remorse and that he considered having sex with a 10 year old girl was normal. Defence counsel responded:
"Well, perhaps that reinforces Ms Hall's point about the level of understanding that the young men in this community have in relation to the offending behaviour. Maybe it reinforces the fact that not to say that they don't feel ashamed - I do submit they do feel - but to say their level of understanding as to appropriate sexual conduct isn't good, and maybe it's because their experience in relation to other people within the community and their sexual conduct isn't good, and has not been good in the past.
There's a number of them - I mean to say, [WY] near the time was 17. Still of high school age, but is an adult under the terms of the law, when this occurred. And without being flippant about it, your Honour, there'd be a number of sexual relationships that occur at Aurukun between teenagers under the age of 16.
HER HONOUR: We're talking about a 10-year-old, Mr Curtin.
MR CURTIN: Well, including - we've been through this, your Honour, where there's children having babies at 14.
HER HONOUR: Yes. It doesn't make it right, Mr Curtin.
MR CURTIN: I'm not saying it makes it right, but it just reinforces the lack of education and resources that are given to this community to assist with what clearly is a significant problem. We're back to where we started, your Honour. There's A and P's without rehabilitation centres. There's a number of sexual offences occurring without constructive sex offender programs. And not even sex offender programs, but sexual training programs throughout the schools, throughout the community. It's not been addressed in the appropriate manner. I'm sure that the offenders are charged by the police in the appropriate manner. The offenders are sentenced in the appropriate manner. But the rest of the actions prior to that aren't being dealt with in an appropriate manner. Hopefully the programs of Ms Hall won't stop just with juveniles. They'll extend under Ms Dewar's watch to adults, so that young adults are getting this training as well."
WY's tendered criminal history records only that on 13 December 2005 he was placed on nine month good behaviour bond without conviction for unlawful use of a motor vehicle and trespass, the offences being committed on 28 October 2005. WY's

pre-sentence report had attached to it a further criminal history indicating that on

21 June 2006 WY was convicted and ordered to perform 40 hours community service for unlawful use of a motor vehicle in February 2006. It seems this caused the judge to note that WY's criminal history with which she had been provided was not up to date. Her Honour requested the prosecutor to remedy this.

WY's pre-sentence report noted the following. WY failed to report as directed under the latest order and so was ultimately charged with breaching it, as well as for committing further offences. The hearing of these matters had been adjourned. At sentence, WY had not completed any of the most recent community service order. WY had trouble reciting the days of the week, reading a short sentence and counting to 10. He attended school at Aurukun until the end of grade 10. He gained employment through the CDEP as a groundsman earning $150 a fortnight. He said he enjoyed his work and was reliable, does not abuse alcohol and does not take illegal drugs or sniff solvents. He enjoys fishing, hunting, camping, competition football and football training. He grew up in Aurukun where his parents still reside. They separated when he was young. He resides with his mother, her present partner and his younger half-brother. He assists his mother and her partner in caring for his baby brother. He said he thought the complainant was about 10 years old and that "having sex with a girl that's only 10 is normal". He now appreciates the consequences of such conduct and if the same opportunity arose he may not behave in the same way. He said he was unsure of the legal age of a minor having sexual relations. Whilst WY had limited English and a very low literacy level, the author was able to communicate with him by re-phrasing questions and using simple phrases so that he could understand. The interview process was "quite lengthy as [WY] often took some time to respond to the questions".

The report recommended the following:
"Due to [WY's] poor response to the Community Service order and due to the seriousness of the offending, it is respectfully recommended that he is presently unsuitable for community based supervision.
If your Honour was considering a period of imprisonment, then it is noted that your Honour may fix a Parole eligibility date under Section 160D (3) of the Penalties and Sentences Act 1992 …"
Defence counsel submitted that WY should be sentenced to a short term of imprisonment wholly suspended. He submitted that because WY was still under a probation order, he would have useful supervision even if a fully suspended sentence were imposed for the rape offence.
(vi) AAC
Defence counsel next made submissions in respect of AAC, who was 13 years old at the time of the offending. He was raised in Aurukun by his grandmother (who was present at court to support him) and to some extent by his mother. He completed grade 9. He was unemployed but had been doing volunteer work at the Aurukun Arts Centre, helping his uncle and learning arts and crafts. He hopes to become an artist and to do cultural work. His grandmother is happy with this positive change in attitude. The relatives who are supporting him are quite well known artists. AAC had a significant criminal record but was now complying with his community orders.

The judge noted that AAC 's criminal history with which she had been provided was also not up to date. The prosecutor then provided a current criminal history. AAC's criminal history began when he was 11 years old and was sentenced in July 2003 to six months probation without conviction for common assault committed in April 2003. On 28 June 2005 he was convicted but not further punished for an assortment of assaults and property offences committed between December 2003 and November 2004. On 13 September 2005 he was placed on nine months probation without conviction for property offences and common assaults committed between April and August 2005. He was also admonished and discharged for a trespass offence committed on 26 December 2003. On 28 February 2006 he was ordered to perform 50 hours community service, sentenced to 48 days detention with time spent in pre-sentence detention deemed to be time served and to 12 months probation, all without conviction, for serious assault (13 February 2006) and three charges of entering premises and committing an indictable offence by break (between May 2005 and January 2006). On 23 May 2006 he was reprimanded for escaping lawful custody (22 March 2006). On 17 October 2006 (after the present offending) he was admonished and discharged and time spent in pre-sentence detention was deemed to be served under the sentence for three charges of entering premises and committing an indictable offence by break. These offences were committed in March 2006 and so preceded the present offending.

AAC's pre-sentence report had been prepared in relation to further offences to which AAC pleaded guilty in the Aurukun Children's Court on 20 February 2007: rioters injuring building or machinery, entering premises and committing an indictable offence by break, unlawful use of a motor vehicle, attempted entering premises with intent, wilful damage and entering premises and committing an indictable offence by break. These offences occurred in January and February 2007. That report noted the following. AAC has a lengthy history of inhalant abuse since aged 10. He has refused to follow the guidance of his grandmother who has attempted to divert him away from "chroming" (solvent sniffing). He does not seem to care that chroming is damaging his mind and body. It is an outlet for him when he is frustrated or angry and his peers engage in it. AAC requires intense substance abuse counselling and education and a full medical assessment to ascertain the damage that has resulted from his chronic chroming. He holds his peers who engage in anti-social behaviours in high esteem. His grandmother has always been a good support for him but he refuses to follow her guidance and has threatened her with violence to counter her attempts to place structures and boundaries in his life. He has learnt that emotional and sometimes violent outbursts push people away and allow him to make his own rules.

The report further noted:
"[AAC] has grown up in an environment where verbal, emotional and physical violence are the primary tools to deal with conflict. [He] has been forced to take this belief on in order to maintain a level of identity, and power within the community. [He] simply does not currently have the skills to deal with conflict appropriately. [His] inability to successfully deal with strong emotions such as anger lead him to seek an outlet for release, often through engagement with negative peers and associated, anti-social and criminal activity.
… [he] requires intense anger control skills training.
…
… As a result of [AAC] not being engaged in school, employment or employment training he is able to socialise with friends during late hours of the night, and sleep till late hours of the morning on most occasions.
… [He] has to be successfully engaged in employment, employment training or school."
The report recorded that probation would provide much needed support to AAC to assist him in engaging in programs to address his chroming, negative peer influence, unwillingness to comply with supervision, lack of anger control and employment and chronic truancy. It could be combined with a community service order which would provide a tangible consequence for his offending. AAC had performed well on past community service orders.

Ms Hall, representing the Department of Communities, informed the judge that AAC had performed only eight of the 100 hours of his current community service orders. He was not engaging. He actively ran away when an officer called to collect him to perform his community service. He had served 70 per cent of a six month detention order for property offences. Ms Hall explained that in terms of compliance with probation and community service orders, he was erratic: if he wished to be compliant he was, but if he was not interested he would leave.

AAC's grandmother addressed the judge in this way:
"I know my little grandson. He's always at home watching tele and during the day, my big son … and my brother … , they take him to the Arts Centre. He does the paintings and he helps my brother with the carving and when he comes back home he always at home watching tele, 'cos I'm always at home, your Honour. I does the washing and the mopping but he does his own bedroom. He makes his own bed. He does the [indistinct] but – so I'm very proud of my little grandson for what he's doing to himself."
(vii) WZ
Defence counsel's final submissions relating to WZ included the following. WZ was 25 years old at the time of his offending. He too had lived all his life in Aurukun. He was raised by his mother. His grandmother was at court. He completed his education to grade 8. He had an ear injury which affected his balance and hearing. He was unemployed. He had a previous conviction for unlawful carnal knowledge. He was sorry for the shame he caused his mother and his family. He wanted to be sentenced so he could start a new life within the community. He was "probably slow from an intellectual standpoint. He's not someone who has a high intellect or a robust intellect or personality. He's very withdrawn and he's certainly what may be regarded as someone who is a follower rather than a leader." Although he was "the oldest of the pack" he was "someone who follows". In the circumstances, defence counsel submitted WZ's offending would warrant a custodial sentence, but because of parity principles the sentence should be suspended so he can remain in the community with his family.

WZ's criminal history was as follows. On 5 July 1995 he was convicted and ordered to perform 60 hours community service for aggravated assault on a female and unlawful use of a motor vehicle in May 1995. On 28 May 1998 he was convicted and reprimanded for wilful damage committed in April 1998. On 21 October 2003 he was convicted and sentenced to 80 hours community service and fined for two counts of entering or being in a dwelling and committing an indictable offence and break, one count of unlawful use of a motor vehicle and one count of contravening a direction or requirement. These offences occurred in July and August 2003. On 17 February 2004 he was convicted and fined for breach of the community service order imposed on 21 October 2003. He was also convicted and ordered to perform 120 hours community service for entering offences committed in January 2004. On 19 May 2004 he was convicted and sentenced to 12 months probation and 100 hours community service with $50 restitution for an entering offence, and two charges of attempted unlawful use of a motor vehicle with circumstances of aggravation committed in April 2004. On 19 October 2004 he was convicted and fined for being in a dwelling house without lawful excuse in April 2004. He was also convicted and sentenced to 18 months probation and 200 hours community service with a curfew from 7.00 pm until 6.00 am for entering and unlawful use offences committed between July and September 2004. On 8 May 2005 he was convicted and fined for unlawfully being in an enclosed yard and convicted but not further punished for breach of the probation order imposed on 19 May 2004. On 29 March 2006 (a few months before the present offending) he was convicted and ordered to perform 100 hours community service for carnal knowledge of a girl under 16 between December 2004 and March 2005. On 23 May 2006 (shortly before the present offending) he was sentenced to 12 months probation and 40 hours community service for unlawful use of a motor vehicle and trespass on 3 February 2006. On 31 October 2006 he successfully applied for an amendment of the community service order imposed on 29 March 2006. On 6 November 2006 he successfully applied for revocation of that order and he was re-sentenced, convicted and fined $500.

WZ's pre-sentence report noted the following. WZ said that he knew the complainant and attended the house where the offence was committed with the intention of having sex with her. He knew others had had sex with her beforehand because the bedroom door was open and he could see in. The complainant called his name and invited him into the room. She was already naked and they had sexual intercourse. He thought she wanted to have sex with him. Because of his conviction in March 2006 for carnal knowledge of a girl under 16 years, he is now registered on the Australian National Child Offending Registry (ANCOR) so that he must submit any change of details to police. WZ attended school at Aurukun but he could not read or write a short sentence when asked and was unable to count to 10 or recite the alphabet and had trouble reciting the days of the week. The interview process was lengthy. He had no formal work qualifications or training. He was not employed. He said that he did not use drugs or sniff solvents and nor did he abuse alcohol. He trained for and played competition football. He enjoyed fishing. His father died long ago as a result of "black magic". He was reluctant to discuss details of the death.

We are finally persuaded that this Court's duty of securing the protection of the community requires a detention order in this case. KZ, unlike YC and KY, should not be given the opportunity of a three year probation order. In his case, a detention order is the only realistic penalty.

We would order that the respondent be sentenced to three years detention, to be released after serving 50 per cent of that period. The order for release after serving

50 per cent of the term is made in the context of s 227 of the Juvenile Justice Act, which relevantly provides as follows:
"(1)Unless a court makes an order under subsection (2), a child sentenced to serve a period of detention must be released from detention after serving 70% of the period of detention.
(2)A court may order a child to be released from detention after serving 50% or more, and less than 70%, 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 or related offence."

The "special circumstances" in KZ's case relate particularly to the "pressures and disadvantages" referred to earlier in this judgment and also his early plea of guilty.

The period of 41 days pre-sentence custody should be declared to be time already served under this sentence. For the reasons given earlier, a conviction should be recorded.

7.4 PAG

The Solicitor-General on behalf of the Attorney-General submitted that, on the information before the sentencing judge, a sentence of three years detention is appropriate for PAG.

PAG was 14 years old when he raped the complainant in company. He is now 16 years old. The complainant was his cousin. When he pleaded guilty to this offence, he also pleaded guilty to an unrelated offence of unlawful carnal knowledge which pre-dated the present offence and is not the subject of this appeal. The GYFS psychological report notes that this offence concerned a 12 year old female who agreed to have sex with PAG in 2005. He was then about 13. The offence became known when the victim presented with a sexually transmitted infection which triggered a statutorily required investigation. PAG was initially interviewed by police as a potential witness but was subsequently charged. At the time of his original offence, he was subject to a probation order imposed in February 2006 for offences relating to property. He was placed on a further probation order and a community service order for property and traffic offences at about the time he committed the rape offence. He has been dealt with subsequently for more property offences, some committed before the rape and some after. He is currently subject only to the probation order the subject of this appeal. The criminal history records no prior sexual offences but the GYFS report records a conviction for a previous sexual offence in 2005 committed with KY and BBL on a 12 year old girl.

PAG was raised by his grandparents who were recognised Aurukun elders. His father is in prison for murder, and his mother is an alcoholic who has little to do with her family. His grandfather died two years ago, a few months before the present offending, leaving his grandmother as the sole carer for him and his younger brother. His deceased grandfather was his only significant male role model. According to the more recent pre-sentence report prepared by the Department of Communities, PAG has experienced "significant grief, loss and identity issues as a result of parental estrangement". His grandfather's death has caused him added grief and he has lacked a male role model to guide him as he entered adolescence. His grandfather had begun to educate him about the male aspects of traditional Wik life but he was not fully initiated before his grandfather's death. These issues have predisposed him to a heightened likelihood of engaging in negative behaviour during early adolescence. PAG admitted that he knew that what he did to the complainant was "a crime".

PAG’s grandmother deposed in an affidavit recently filed in this Court on his behalf that PAG was “a helpful boy” who “has had no real father figure in his life.” He “helps looking after the younger kids”. She supports him because he is her first grandson and she needs his help and support. She considers that he understands what he did was “bad” and he has told her that it was “Really bad what I done and I feel really sad for that girl.”

The pre-sentence report states that he was closely connected to his peer group and that he "lacks the required skills or motivation to deal with negative peer influence, particularly in relation to offending behaviour". Family dysfunction, lack of a positive male role model and the absence of appropriate sex education have also contributed to his offending behaviour. The report records that he has demonstrated "some empathy towards his victim", "feels bad for having had sex" with her and wishes to apologise. He also understands that he has brought shame on his family and to the whole Aurukun community. He understands that this and other offences have not only impacted on his life but also on others who care for him. He has spent eight days in custody on remand for this offence. He was subject whilst on bail for this offence for about 12 months to a curfew from 8.00 pm to 7.00 am. His grandmother imposed further restrictions on him. She gave him a severe verbal reprimand, made him go to bed without food, made him assist with household chores and placed him under an additional curfew whereby he had to return home immediately after school. She advised that he accepted her punishment without protest and complied with her requirements. PAG and his co-offenders have experienced a level of community ostracism and his grandmother spoke of the shame brought on the family such that she did not wish to face the Aurukun community.

In discussing the sentencing options, the pre-sentence report emphasises PAG's age now and at the time of the offence which was committed 21 months ago, that he has been subject to a probation order for some months, that he has begun to take responsibility for the offence and has agreed to participate in all options available to the Court. If he remains in Aurukun he will reside with his grandmother and other family members and continue with his schooling. He has developed an awareness of risk factors for his offending and has identified longer term goals including continuing his education with a view to obtaining an apprenticeship as a mechanic with the mining company, CHALCO, to be based in Aurukun. He indicated a willingness to comply with a probation order which would allow him to participate in various programs including the GYFS program. In discussing the sentencing option of detention, the report noted PAG's age, his time in custody, that a period of detention may serve to further foster relationships with offending peers and that he has previously demonstrated that he is able to utilise support and assistance under supervised orders where required, the impact on his personal development of being removed from his family, community and traditional way of life and that he is currently attending school.

The psychological report from the GYFS, dated 18 April 2008, says that he has “maintained a relatively consistent attendance at school over recent months ... [he] is reported to have distanced himself from his antisocial peer group ... [he] has apparently stayed out of trouble, has not come to the attention of police for more than 12 months, and is compliant with his current Youth Justice Orders”. Furthermore, he has adopted a leadership role at school by encouraging others to attend. He has been praised by the school principal for his positive attitude. There is no suggestion that PAG has sexually deviant interests. He has matured and developed pro-social beliefs in understanding that his conduct was wrong. These circumstances give some cause for optimism as to his rehabilitation, which may be fostered by subjecting him to the maximum of three years probation.

If PAG were sentenced to detention, he would continue to receive educational opportunity, and his life would be more structured and disciplined; but he would certainly be exposed to a negative peer group. It seems that this may not now occur if he were to remain in the community with the significant support and programs available through a lengthy, structured probation order. Despite the very serious aspects of the offence, detention is not the only appropriate course.[120]
[120]Juvenile Justice Act, s 150(2)(e), Sch 1, Charter of Juvenile Justice Principles, principle 17.

Accordingly, we consider that the probation order currently in place should be set aside. For the reasons given earlier, a conviction should be recorded. We would sentence him to three years probation on the same conditions as are applicable to YC and KY.

7.5 BBL

The Solicitor-General on behalf of the Attorney-General submitted that, on the information before the sentencing judge, a sentence of two to three years detention is appropriate for BBL.

BBL turned 14 years of age around about the time he raped the complainant. He was therefore closer to her in age than most of his co-offenders. For some of that time, he was subject to a six month conditional release order made on 23 May 2006 for numerous offences in relation to property. On 21 February 2006, he had been given nine months probation for property related offences. He committed further property offences after the rape but has apparently not committed any further offences for about 12 months. He has no prior history of sexual offences.[121]
[121]The criminal history records no prior sexual offences but the GYFS report records a conviction for a previous sexual offence in 2005 committed with PAG and KY on a 12 year old girl.

It must be noted here that, uniquely among the respondents, BBL told police that the complainant objected to having sex with him. He did not want to have sex with her but another male (who was not charged) forced him to have sex with the complainant. He knew that she did not want to have sex with him, and yet he persisted. That circumstance of aggravation is a matter of concern. He knew that what he did was wrong: he said that he would have been angry if someone had done to a member of his family what he did to the complainant. He has stated that in future he would ask a female how old she was before considering sex. Of further concern in relation to BBL is the circumstance that his criminal history includes an offence of setting man-traps. The sentencing judge was, however, informed by a representative of the Department of Communities that, fortunately, no-one was hurt as a result of that dangerous and foolish episode referred to earlier in these reasons.

BBL assisted the police in frankly admitting his offending (including the complainant's unwillingness) and he pleaded guilty at an early stage.

BBL resides with his mother. Her regular consumption of alcohol has limited her ability to care for him while he was growing up. Regrettably, his father, said to be the first Aurukun man to work in the Council office, died when BBL was two years old. He has grown up without a significant male role model. He has received limited education in relation to appropriate behavioural boundaries.

It appears that his association with his peer group within the Aurukun community including his co-offenders has been a major contributing factor in his offending behaviour. He told police that he felt forced to have sex with the complainant by a

co-offender. BBL's mother attempted to remove him from the influences of his peer group by sending him to school in Weipa, but he returned to Aurukun because of family connectedness.

BBL is presently attending school in Aurukun. He is of Wik descent and English is his second language. He has also obtained employment. The more recent pre-sentence report prepared by the Department of Communities considers that limited parental support and supervision, lack of appropriate sexual education and male role models and the negative influence of peer groups have contributed to his offending behaviour. He has expressed a willingness to comply with all conditions and requirements of a probation order and understands the consequences of non-compliance. In considering the question of a detention order, the report noted BBL's age, that a period of detention may foster relationships with offending peers, that he has demonstrated through previous supervised orders that he is able to utilise community based support and assistance and that a period of detention may disrupt his education.

The GYFS psychological report notes that BBL has not previously been afforded the opportunity of specialist intervention to address his behaviour. His risk of future sexual or non-sexual offending may be reduced by him engaging in sexual

offence-specific treatment. He is suitable to participate in such treatment and is likely to benefit from it. He has matured since the offence. He is currently in a peer-age relationship which may assist him in separating from the undesirable peer group. His personal risk of sexually re-offending has decreased as a result.

Importantly, his performance over the past months while on probation has been encouraging. The more recent pre-sentence report records that he has had limited contact with his co-offenders since the rape of the complainant. He now feels remorse for his offending against the complainant. He is willing to participate in a sexual offending treatment program. If he remains in the community he will live with his mother and continue his schooling.

Having regard to the positive steps undertaken by BBL towards rehabilitation since this offence occurred more than two years ago, and notwithstanding the circumstances of aggravation of his offending, we consider that probation should be continued, both in his interests and in the interests of the community. It is the aggregation of the circumstances covered by the preceding paragraph which, in the end, persuades us that the last resort sentencing option of detention is not warranted, even though the seriousness of his offence against the complainant was aggravated by her objections to having sex with him.

Accordingly, we consider that his current probation order should be set aside. For the reasons given earlier, a conviction should be recorded. He should be sentenced to probation for three years on the same conditions as YC, KY and PAG.

7.6 AAC

The Solicitor-General on behalf of the Attorney-General submitted that, on the information before the sentencing judge, a sentence of 12 months detention is appropriate for AAC.

AAC was 13 years old when he raped the complainant. He was the youngest of all the respondents. He is now 15 years old and will be 16 in July. At the time he raped the complainant, he was subject to two probation orders for property offences, offences of dishonesty and assault. He was also subject to a community service order for one count of serious assault. The probation and community service orders had been made in February 2006. He has no prior history of sexual offences.

The most recent pre-sentence report prepared by the Department of Communities show that AAC has previously been the subject of five other probation orders, three other community service orders and two detention orders. The psychological report from GYFS refers also to four reprimands.

AAC has a poor record of school attendance and has low literacy and numeracy levels. He is currently neither attending school nor is he in employment. He has a record of drug and substance abuse. His upbringing has been characterised by a lack of adult supervision. He seeks peer acceptance and continually demonstrates poor decision-making. Since 2001, he has resided with his grandmother. His uncle is now prepared to assist AAC as a positive male role model.

AAC has been exposed to domestic and extra-domestic violence from an early age. He has been sexually abused from the age of eight. When he was nine he engaged in sexual behaviour with the present victim. As a result, they were both treated for syphilis.

The lack of appropriate male role models has led to a lack of respect for women and has contributed to his involvement in the offence of present concern. Of great concern is the circumstance that long term chronic substance abuse has resulted in his having limited cognitive capacity to control his behaviour.

It is said by officers of the Department of Communities that he has demonstrated some remorse for his offence. It is also said, however, that he continues to be strongly influenced by his contact with a negative peer group. It is said that his offending behaviour might be exacerbated by an order for detention. On the other hand, continuing exposure to "a cohort of offending peers" is just as, or more, likely to occur if this Court were to make an order for a community based form of punishment.

The more recent pre-sentence report is dated 12 March 2008. It records that AAC has indicated a willingness to comply with a probation order including one making attendance at and compliance with programs. In discussing the sentencing option of a detention order, it notes that this would result in AAC being exposed to a cohort of offending peers which may exacerbate his offending behaviour and it would further erode his relationship with his family and community.

The most recent of the reports in respect of AAC is the GYFS psychological report dated 18 April 2008. It noted the following. AAC was verbally aggressive and threatening towards his grandmother with whom he was residing. After the interview, he again verbally abused her. She indicated that she was worried about her physical safety if she returned home. AAC was difficult to engage in interview and had difficulty controlling his emotions and behaviours so that the interview was terminated prematurely. This may have been because AAC was confused ~~and~~ or frustrated about having to participate in another interview so soon after having been interviewed for the pre-sentence report the previous week. The report also considered that AAC may have experienced increased shame associated with media reports of his offence. His grandmother was distressed when discussing AAC's substance abuse but expressed her commitment to parenting and supporting him and requested help to guide and assist him in this respect. He has mostly been raised by his grandmother. The report concludes that factors which are likely to perpetuate AAC's sexual offending behaviour include "access and opportunity, ongoing dysregulation, antisocial attitudes, continued confusion regarding sexual norms and boundaries, difficulties in interpersonal relationships, and sustained association with an antisocial peer group that condones underage sexual behaviour." The factors which, if successfully managed, may reduce this risk are that AAC is suitable to engage in sexual offence-specific treatment and is likely to benefit from such intervention, including:
"Individual Treatment Elements
A.Developing strategies and skills for behavioural restraint eg. building skills in behavioural and emotional self-regulation, problem solving skills training and consequential thinking
B. Sexual offence specific interventions including challenging cognitive distortions specifically associated with this behaviour, victim awareness, education about appropriate sexual behaviour, and safety planning to more effectively assist [AAC] with self-management strategies to cope effectively within high risk situations
C. Strategies aimed to increase [AAC's] engagement in prosocial behaviour including building a pro-social peer group, building stronger connections to other pro-social community structures and activities, and building healthy relationship skills.
Individual treatment elements could be provided by GYFS, in collaboration with local partners, if this is ordered by the court. [AAC's] treatment intervention is likely to be of a longer duration than his juvenile co-offenders. This intervention can be offered by GYFS irrespective of location.
There is also a range of contextual factors that assist in understanding [AAC's] sexually abusive behaviour. Interventions in the absence of contextual change may have limited efficacy. Case specific systemic interventions therefore will form a critical part of the overall intervention plan and should include:
Systemic Interventions
A. [AAC] to engage in structured activities that promote prosocial behaviour
B. Strengthen relationships between [AAC] and his grandmother and facilitate increased supervision within the home
C. Opportunities to be provided to [AAC] to engage in cultural activities and to develop a positive identity within the family and community
D. [AAC] to build connections to positive male role models
E. Strong messages about appropriate behaviour, sexuality education and the promotion of healthy relationships to be available on a community level, ensuring more youth in Aurukun also have improved access to this information.
[AAC's] grandmother will require significant support and guidance to address [AAC's] behaviour within the home and facilitate increased supervision. The support and encouragement of [his grandmother] will be critical for enhancing [AAC's] engagement with his treatment process.
Any prospective intervention will need to take into account cultural considerations, including the involvement of local Indigenous workers in intervention planning and delivery. This will assist in minimising potential cultural and language barriers and ensure treatment is offered locally to [AAC]. To achieve this, GYFS would identify an Indigenous person or agency working within the Aurukun community, to assist in treatment provision, in conjunction with GYFS staff. GYFS would provide supervision and support to these collaborative partners, in addition to having some direct involvement in the provision of intervention to address the above individual and systemic goals. Collaboration with local practitioners and community members has the potential to build the capacity of the local community to address broader sexual abuse issues at a community level.
In addition to the above, it is recommended that [AAC] receive interventions from other service providers external to GYFS. These should include:
External Interventions
A. Engagement with an experienced mental health professional to assess and provide treatment for his victimisation experiences and trauma symptomatology.
B. Referral to a neuropsychologist for assessment of cognitive impairment relating to extensive inhalant use.
Finally, it is noted that the treatment plan outlined above is less likely to be effective in the absence of broader community level interventions targeting a range of general social concerns including poverty, limited employment and recreational opportunities, substance abuse and community violence. Current government sponsored interventions are providing a wealth of resources in communities and this presents a unique opportunity to contextualise individual interventions within broader systemic change and the promotion of a safe community."

AAC’s grandmother deposed in an affidavit recently filed on his behalf that AAC had twice tried to hang himself in Aurukun; tried to kill himself when he was at Cleveland Detention Centre; and that she was worried that he would hurt himself if he were sent away to detention. She supports all her children and grandchildren including AAC. She confirmed many of the dreadful details of AAC’s background. She stated that he was behaving himself and helping her around the house. She hoped that he would not be sent away to Cleveland but realised she had “to leave it to the Courts”.

Because of the enormity and variety of problems faced by AAC, and the contextual problems relating to the Aurukun community in which he lives, the program for his treatment suggested in the GYFS psychological report is ambitious. In contrast to YC, KY, PAG and BBL, AAC's chronic substance abuse and his present attitudes suggest that his rehabilitative prospects are not presently promising. There are factors in his favour. The reports that have been tendered on his behalf do however hold out some hope. AAC assisted the police in admitting his commission of the present offence. He was the youngest of all the co-offenders and therefore the closest in age to the victim. He did not commit the offence in company and nor has there been any suggestion such as in BBL's case, that the complainant was a reluctant participant in the offence. Parity issues between the juvenile co-offenders are also relevant. The contextual factors pertaining to AAC personally are perhaps the most compelling of all the respondents in explaining how AAC, a 13 year old boy, came to commit this serious offence. They are not, however, an excuse for his conduct. Rape of a 10 year old girl is such a serious offence that, even in the particular circumstances of AAC's case, a non-custodial sentence can only be imposed where it is clear that this will be in the best interests of his rehabilitation and the community will be adequately protected. That, sadly, is not so in AAC's case.

We are finally persuaded that, as in KZ’s case, there is no realistic alternative to a detention order. For the reasons given earlier, a conviction should be recorded. Balancing all the competing considerations, we consider that he should be sentenced to two years detention. His circumstances are such as to warrant his release after serving 50 per cent of that term.[122] There should be a declaration that he has served one day in custody on remand for this offence to be taken as time served under this order for detention.
[122]Juvenile Justice Act, s 227.

Having regard to AAC's chronic substance abuse, it is important to recognise that if he were ordered to serve a period of detention, he would be afforded the opportunity to address his problems with substance abuse. He would also have access to therapeutic programs to address his offending behaviour and would be provided with educational and vocational opportunities which he is unlikely to have if he continues to live within the Aurukun community.

AAC must be denied access to alcohol and drugs for his own prospects of rehabilitation and in order to protect the community. In detention, he will have structure in his life and educational and vocational opportunities which are lacking at Aurukun. We have come to the conclusion that a period in detention for two years is the only course which has any prospect of achieving these objectives. There are special circumstances under s 227 Juvenile Justice Act warranting his release after 50 per cent. These are his particularly young age, the "pressures and disadvantages" pertaining to him as referred to earlier in this judgment, his co-operation with the police and his early plea of guilty.

Summary

The Court has concluded that the sentencing of the respondents in these cases was attended by a number of errors. These errors were so serious as to produce a clear miscarriage of justice. The errors, and the resulting miscarriage of justice, were so serious, and the circumstances in which they occurred so extraordinary, as to warrant allowing the Attorney-General's appeals, even though the sentences which were originally imposed were essentially in accordance with the submissions put to the learned sentencing judge by the prosecution. The prosecution must bear substantial responsibility for what occurred, but the errors which attended the sentencing of the respondents cannot be accounted for by the submissions of the prosecution. The imposition of a proper sentence was ultimately the responsibility of the judge.

The sentences imposed upon the adult respondents disregarded the approach established by decisions of this Court as to the sentencing of adults who sexually abuse children. Each respondent's individual circumstances were not given proper attention, even to the extent that the criminal responsibility of the adult offenders was equated to that of the child offenders. And the sentences originally imposed involved an abnegation of the duty of the court to protect innocent or vulnerable members of the community from crime.

In re-sentencing each of the respondents, this Court has fixed a sentence within the binding statutory framework applicable to adults and juveniles respectively. In each case the sentence is intended to reflect the gravity of the offending of each respondent while giving necessary recognition to each respondent's plea of guilty, and the circumstances of disadvantage relevantly suffered by him.

In the case of each of the adult offenders, the Court's approach has been to impose the most lenient sentence which may be imposed consistently with the gravity of the rape of a 10 year old girl, committed by an adult acting in company with other men. The gravity of the offence is such that a sentence of imprisonment is required in each case in order to make it clear that the community regards the offences as unacceptable, and to provide a measure of protection to vulnerable members of the community.

In the case of each of the juvenile offenders, the Court's approach has been to seek to balance the statutory requirement to protect the community with the statutory requirements that a child with no apparent family support should not receive a more severe sentence because of that, and that a custodial sentence should only be imposed "as a last resort and for the least time that is justified in the circumstances",[123] bearing in mind that the rape of a 10 year old child should usually result in a custodial sentence in the absence of significant exculpatory circumstances.
[123]Juvenile Justice Act, Sch 1, Charter of Juvenile Justice Principles, principle 17.

In the case of the juvenile respondents referred to by the designations YC, KY, PAG and BBL, we consider that, because the rehabilitation of offenders serves to protect the community, the Court should act upon the evidence of their efforts to move away from the negative peer group relationships. The influence of these peer groups is the most serious manifestation of the many disadvantages which have beset their young lives. We consider that their efforts in the appreciable period which has elapsed since their offending in mid-2006 warrant a sentence of the longest period of probation available under the law. This would recognise their attempts to rehabilitate themselves, and provide them with the further support which each of them needs to pursue his rehabilitation. These orders are made, both in the interests of each of them, and in the interests of the community.

The offence committed by each of the juvenile respondents was so serious that, having regard as well to their criminal histories, a conviction must be recorded.

In relation to each of the juvenile respondents designated KZ and AAC, the Court has concluded that a sentence of detention is necessary, both to promote the rehabilitation of each of those offenders and to protect the community. It is evident that KZ and AAC have been unable to distance themselves from negative peer group influences. Because of AAC's extreme youth, the period of detention to which he is sentenced is two years, as opposed to three years in the case of KZ. They should each be released after serving 50 per cent of those periods because of their pleas of guilty, the particular "pressures and disadvantages" referred to earlier in this judgment, and, in AAC's case, his very young age at the time of his offending and his co-operation with the police.

Orders

The Court makes the following orders:

In CA No. 350 of 2007, R v WZ:

1. Appeal allowed;

2. Set aside the sentence imposed in the District Court on 24 October 2007;

3. Order that the respondent be imprisoned for six years and fix a parole eligibility date of 13 June 2010;

4. There will be a declaration that 55 days pre-sentence custody (from 19 September to 5 November 2006 and 16 November to 22 November 2006) be treated as time served under this sentence;

5. Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days.

In CA No. 343 of 2007, R v KU:
1.Appeal allowed;
2.Set aside the sentences imposed in the District Court on 24 October 2007;
3.On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010;
4.Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days.

In CA No. 345 of 2007, R v WY:
1.Appeal allowed;
2.Set aside the sentences imposed in the District Court on 24 October 2007;
3.On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010;
4.Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days.

In CA No. 351 of 2007, R v YC:
1.Appeal allowed;
2.Set aside the sentence imposed in the District Court on 24 October 2007;
3.Order that a conviction be recorded;
4.Order that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;
5.Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 347 of 2007, R v KY:
1.Appeal allowed;
2.Set aside the sentences imposed in the District Court on 24 October 2007;
3.Order on each count that convictions be recorded;
4.Order on each count that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;
5.Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 348 of 2007, R v KZ:
1.Appeal allowed;
2.Set aside the sentence imposed in the District Court on 6 November 2007;
3.Order that a conviction be recorded;
4.Order that the respondent be sentenced to detention for three years to be released after serving 50 per cent of that term;
5.There will be a declaration that 41 days pre-sentence detention (from 1 to 3 July 2006, 19 to 20 September 2006, 5 October to 10 November 2006, 7 to 8 December 2006 and 19 to 20 March 2007) be treated as time served under this sentence;
6.Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days;
7.Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld).

In CA No. 346 of 2007, R v PAG:
1.Appeal allowed;
2.Set aside the sentence imposed in the District Court on 24 October 2007;
3.Order that a conviction be recorded;
4.Order that the respondent be sentenced to three years probation on the usual conditions, together with a condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;
5.Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 349 of 2007, R v BBL:
1.Appeal allowed;
2.Set aside the sentence imposed in the District Court on 6 November 2007;
3.Order that a conviction be recorded;
4.Order that the respondent be sentenced to probation for three years, on the usual conditions, together with a condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program;
5.Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance.

In CA No. 344 of 2007, R v AAC:

1. Appeal allowed;

2. Set aside the sentence imposed in the District Court on
24 October 2007;

3. Order that a conviction be recorded;

4. Order that the respondent be sentenced to two years detention to be released after serving 50 per cent of that term;

5. There will be a declaration that one day pre-sentence detention (from 8 to 9 October 2007) be treated as time served under this sentence;

6. Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days;

7. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld).

CITATION:	R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154
PARTIES:	R v KU (respondent) AAC (respondent) WY (respondent) PAG (respondent) KY (respondent) KZ (respondent) BBL (respondent) WZ (respondent) YC (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 343 of 2007 CA No 344 of 2007 CA No 345 of 2007 CA No 346 of 2007 CA No 347 of 2007 CA No 348 of 2007 CA No 349 of 2007 CA No 350 of 2007 CA No 351 of 2007 DC No 146 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Aurukun and Cairns
DELIVERED ON:	13 June 2008
DELIVERED AT:	Brisbane
HEARING DATES:	13 May 2008; 14 May 2008
JUDGES:	de Jersey CJ, McMurdo P and Keane JA Judgment of the Court
ORDERS:	*In CA No. 350 of 2007, R v WZ:* Appeal allowed;1. Set aside the sentence imposed in the District Court on 24 October 2007;2. Order that the respondent be imprisoned for six years and fix a parole eligibility date of 13 June 2010;3. There will be a declaration that 55 days pre-sentence custody (from 19 September to 5 November 2006 and 16 November to 22 November 2006) be treated as time served under this sentence;4. Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days.5. *In CA No. 343 of 2007, R v KU:* 1. Appeal allowed; 2. Set aside the sentences imposed in the District Court on 24 October 2007; 3. On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010; 4. Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days. *In CA No. 345 of 2007, R v WY:* 1. Appeal allowed; 2. Set aside the sentences imposed in the District Court on 24 October 2007; 3. On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010; 4. Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days. *In CA No. 351 of 2007, R v YC:* 1. Appeal allowed; 2. Set aside the sentence imposed in the District Court on 24 October 2007; 3. Order that a conviction be recorded; 4. Order that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program; 5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance. *In CA No. 347 of 2007, R v KY:* 1. Appeal allowed; 2. Set aside the sentences imposed in the District Court on 24 October 2007; 3. Order on each count that convictions be recorded; 4. Order on each count that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program; 5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance. *In CA No. 348 of 2007, R v KZ:* 1. Appeal allowed; 2. Set aside the sentence imposed in the District Court on 6 November 2007; 3. Order that a conviction be recorded; 4. Order that the respondent be sentenced to detention for three years to be released after serving 50 per cent of that term; 5. There will be a declaration that 41 days pre-sentence detention (from 1 to 3 July 2006, 19 to 20 September 2006, 5 October to 10 November 2006, 7 to 8 December 2006 and 19 to 20 March 2007) be treated as time served under this sentence; 6. Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days; *7. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act* 1992 (Qld). In CA No. 346 of 2007, R v PAG: 1. Appeal allowed; 2. Set aside the sentence imposed in the District Court on 24 October 2007; 3. Order that a conviction be recorded;** 4. Order that the respondent be sentenced to three years probation on the usual conditions, together with a condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program; 5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance. *In CA No. 349 of 2007, R v BBL:* 1. Appeal allowed; 2. Set aside the sentence imposed in the District Court on 6 November 2007; 3. Order that a conviction be recorded; 4. Order that the respondent be sentenced to probation for three years, on the usual conditions, together with a condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program; 5. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance. *In CA No. 344 of 2007, R v AAC:* Appeal allowed;1. Set aside the sentence imposed in the District Court on 24 October 2007;2. Order that a conviction be recorded;3. Order that the respondent be sentenced to two years detention to be released after serving 50 per cent of that term;4. There will be a declaration that one day pre-sentence detention (from 8 to 9 October 2007) be treated as time served under this sentence;5. Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days;6. Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld).7.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – six respondents (AAC, PAG, KZ, BBL, WZ and YC) each pleaded guilty to one count of rape of a 10 year old girl – three respondents (WY, KU and KY) each pleaded guilty to two counts of rape of the same girl – sentencing judge referred to offence as 'hav[ing] sex with young girls' rather than as 'rape' in sentencing remarks on 24 October 2007 – sentencing judge stated that all the respondents would be treated the same 'in terms of the behaviour' – adults and juveniles are to be sentenced under different statutory regimes under the Penalties and Sentences Act and the Juvenile Justice Act – reasons for the sentence imposed are required by s 10 of the Penalties and Sentences Act and s 158 of the Juvenile Justice Act – whether sentencing judge gave adequate reasons to support the sentences imposed – whether the sentencing judge sentenced on an incorrect basis – whether the sentencing process miscarried – whether the Court of Appeal must re-sentence the respondents CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – the adult respondents, WZ, KU and WY, were sentenced to fully suspended terms of six months imprisonment with an operational period of 12 months – the juvenile respondents, YC, KY, PAG, AAC, KZ and BBL, were sentenced to 12 months probation with no conviction recorded – sexual offences by adults on children warrant custodial sentences except in exceptional circumstances – sexual offences by juveniles on children usually warrant a term of detention – whether sentences were manifestly inadequate CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – DUTY OF CROWN PROSECUTOR – officer of the Office of the Director of Public Prosecutions (Queensland) submitted that non-custodial sentences were appropriate for all respondents – Attorney-General on appeal submitted that orders for imprisonment for the adults, and detention for the juveniles, were appropriate for all respondents – considerations of a type of 'double jeopardy', given the concessions of the prosecution at sentence – whether prosecution submissions led sentencing judge into error – whether Attorney-General may resile from the submissions of the prosecution at sentence – whether, if satisfied that the sentencing process miscarried, the appeal should be dismissed because of the conduct of the prosecution CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – ABORIGINAL OFFENDERS – all respondents and victim of Aboriginal descent and living in remote community at Aurukun – relevance of community dysfunction – rape and sexual relations with children not in accordance with Aboriginal customary law and not condoned by Aurukun community – whether only personal disadvantages suffered by each particular respondent should be taken into account – personal disadvantages must be considered with the seriousness of the offence and other relevant factors – whether the dysfunctionality of the community from which the offender came on its own warrants leniency Child Protection (Offender Reporting) Act 2004 (Qld) Corrective Services Act 2006 (Qld), s 180, s 192 Criminal Code 1899 (Qld), s 215(1), s 215(3), s 349(1), s 349(2), s 349(3), s 669A, s 671(2), s 671B(2) Criminal Offence Victims Act 1995 (Qld), s 6, s 7, s 8, s 13 Juvenile Justice Act 1992 (Qld), s 2(e), s 3, s 8(1), s 150(1), s 132, s 134, s 141, s 150(1), s 150(2), s 158, s 176(1)(a), s 193(1), s 208, s 227, s 176(3), s 183(3), s 184(1), Sch 1, Charter of Juvenile Justice Principles, principles 1, 2, 6, 7, 9, 11, 12, 13, 14, 16, 17 Penalties and Sentences Act 1992 (Qld), s 9(1)(c), s 9(1)(d), s 9(1)(e), s 9(2)(a), s 9(2)(c), s 9(2)(e), s 9(2)(p), s 9(3), s 9(4), s 10, s 160D(3) Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, considered Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, applied Hales v Jamilmira (2003) 176 FLR 369; [2003] NTCA 9, distinguished Lovelock v The Queen (1978) 33 FLR 132, cited Lowe v The Queen (1984) 154 CLR 606, cited Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, applied R v AS; ex parte A-G (Qld) [2004] QCA 259, cited R v BBE[2006] QCA 532, considered R v Bell; ex parte Attorney-General (Qld) [1994] QCA 220, considered R v Bielefeld [2002] QCA 369, considered R v Black; R v Sutton [2004] QCA 369, cited R v C [1996] QCA 014, cited R v Casey, unreported, Court of Appeal, Qld, CA No 262 of 1991, 3 March 1992, considered R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v D[2003] QCA 150, considered R v Daniel [1998] 1 Qd R 499; [1997] QCA 139, considered R v DJL, unreported, Britton SC DCJ, Childrens Court, Qld, Indictment No CC17 of 2006, 5 December 2006 (anonymised by this Court), considered R v E; ex parte A–G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, considered R v Fernando (1992) 76 A Crim R 58, considered R v Fuller-Cust (2002) 6 VR 496; [2002] VSCA 168, considered R v Gibuma; R v Anau (1991) 54 A Crim R 347, cited R v GJ (2005) 196 FLR 233; [2005] NTCCA 20, distinguished R v Irlam; ex parte A-G[2002] QCA 235, considered R v JAJ [2003] QCA 554, considered R v Jobson, unreported, Court of Criminal Appeal, Qld, CA No 325 of 1989, 6 August 1990, considered R v L; ex parte A-G (Qld) [2000] QCA 123, considered R v LY [2008] QCA 76, cited R v M; ex parte Attorney-General [2000] 2 Qd R 543; [1999] QCA 442, considered R v MAC [2004] QCA 317, considered R v Maygar; ex parte A- G (Qld); R v WT; ex parte A-G (Qld)[2007] QCA 310, cited R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, considered R v Mick, unreported, Wallace J, Supreme Court, WA, No 129 of 1988, 14 October 1988, considered R v MSB, unreported, O'Brien DCJ, Childrens Court, Qld, Indictment No 33 of 2005, 3 November 2006 (anonymised by this Court), considered R v Myers[2002] QCA 143, considered R v P[2001] QCA 25, considered R v Pham [1996] QCA 003, considered R v Pont[2002] QCA 456, considered R v PZ; ex parte A–G (Qld) [2005] QCA 459, considered R v Quick; ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, considered R v Riley (2006) 161 A Crim R 414; [2006] NTCCA 10, considered R v Rogers and Murray (1989) 44 A Crim R 301, considered R v S[2003] QCA 107, considered R v SAS[2005] QCA 442, considered R v TAS, unreported, White DCJ, Childrens Court, Qld, Indictment No 28 of 2005, 27 January 2006 (anonymised by this Court), considered R v Tuki [2004] QCA 482, considered R v Wilton (1981) 28 SASR 362, considered R v Woodley, Boogna, Charles & Ors (1994) 76 A Crim R 302, cited R v Wykes, unreported, Court of Criminal Appeal, Qld, CA No 149 of 1987, 18 August 1987, considered The Queen v Haar, unreported, Court of Appeal, Qld, CA No 351 of 1991, 24 June 1992, considered The Queen v Harris (No 2) (1971) 2 SASR 255, cited The Queen v Homer (1976) 13 SASR 377, cited York v The Queen (2005) 225 CLR 466; [2005] HCA 60, cited
COUNSEL:	W Sofronoff QC SG with E S Wilson for the appellant K C Fleming QC with P F Mylne for the respondents
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Aboriginal and Torres Strait Islander Legal Service for the respondents