R v SBR

[2010] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBR [2010] QCA 94

PARTIES:

R
v
SBR
(applicant/appellant)

FILE NO/S:

CA No 326 of 2009
DC No 3 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

30 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2010

JUDGES:

McMurdo P and Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application for leave to appeal against sentence be allowed;

2.    The appeal against sentence be allowed but only to the extent that the order recording the conviction be set aside.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to three counts of indecent treatment of a child under 12 and one count of rape – where applicant sentenced under Juvenile Justice Act 1992 (Qld) – where conviction recorded for rape count – where complainant applicant’s sister – where applicant at least five years older than complainant – where applicant’s home environment troubled – where pre-sentence report indicated good prospects of rehabilitation – whether primary judge gave sufficient regard to factors under s 184 Juvenile Justice Act 1992 (Qld) before recording a conviction – whether primary judge erred in exercise of discretion – whether recording conviction manifestly excessive

Juvenile Justice Act 1992 (Qld), s 150, s 151, s 183, s 184

R v DAU; ex parte A-G (Qld)[2009] QCA 244, cited
R v JO[2008] QCA 260, cited
R v KU & Ors; ex parte A-G (Qld)[2008] QCA 154, cited
R v Marshall[2010] QCA 29, cited
Read v J Lyons & Co Ltd [1947] AC 156; [1946] UK HL 2, cited

COUNSEL:

M Power for the applicant/appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1.   McMURDO P:I agree with Muir JA's reasons for granting the application for leave to appeal against sentence and allowing the appeal to the extent of setting aside the recording of a conviction.  I agree with the orders proposed by Muir JA.

1. HOLMES JA:   I agree with the reasons of Muir JA and the orders he proposes.

1. MUIR JA:  Introduction

The applicant was sentenced, after pleading guilty to three counts of indecent treatment of a child under 12 and one count of rape, to two years probation for the indecent treatment offences, and to four months detention and twelve months probation for the offence of rape.  A conviction was recorded only in respect of the rape.  The applicant was between 13 and 15 years of age at the time the indecent treatment offences were committed and was either 15 or about to turn 15 at the time of the rape.  The sole ground of appeal is that the recording of the conviction rendered the sentence imposed for the rape offence manifestly excessive.

Relevant facts

1. The circumstances of the offences, recorded in an agreed statement of facts, were as follows:

Count 1: 

On New Years Eve 2006, the complainant and the applicant were playing in the applicant's bedroom when, "The [applicant] leaned over, pulled the complainant['s] … pants down and began licking her vagina.  The [applicant] then went out into the lounge room and told their parents what he had done".

Count 2:

"… the [applicant] pulled his pants down exposing his penis and asked the complainant … to touch it.  The complainant … touched the [applicant's] penis briefly before pulling her hand away and telling him that she did not want to touch it."

Count 3:

"The complainant … was in the bathroom about to have a shower when the [applicant] came in and lay on top of her.

…

The complainant … was naked and the [applicant] had his pants and underpants pulled down slightly when he laid on top of her.  The [applicant] told police that his penis was erect and he lay on top of her for about 10-15 seconds.  When they heard a car the [applicant] got up, pulled his pants up and left the bathroom.  …

The complainant … told police that it hurt."

Count 4:

"… the complainant … was alone in the kitchen eating breakfast, while her mother and sister were outside …  The [applicant] came into the kitchen and inserted two fingers into her vagina.  She then went to the toilet and blood came out …

The complainant … went back into the kitchen and told the [applicant] that she was going to tell their mother.  The [applicant] asked her not to."

The complainant, who was the applicant's sister, was between seven and ten years of age at the time of the offences the subject of counts 1 to 3, and between nine and ten at the time of the count 4 offence.

The pre-sentence report

1. In a pre-sentence report ordered pursuant to s 151 of the Juvenile Justice Act 1992 (Qld) ("the Act")[1], the author summarised his conclusions as follows:

"In summary the offences before the court appear to be primarily experimental and opportunistic acts that occurred when [the applicant] was able to be alone with the victim without direct adult supervision.  [The applicant] reportedly has experienced factors in his childhood and adolescent years that have contributed to his offending behaviour including ineffective adult supervision, problematic adolescent/parent conflict issues, exposure to inappropriate childhood experiences, an on-going interest in sexually explicit material coupled with an opportunity for sexualised experimentation to have certain needs met at the time. …

The assessed combination of events surrounding [the applicant's] personal history whereby he appears to have been subject to harsh and excessive parental discipline within a dysfunctional family situation, alienated and bullied by his peers and the likely resultant affect on his psychological and emotional health, and individual circumstances are reflected by Pither, Gray, Cunningham, and Lane (1993) that these are the 'very things that can make children at risk to abuse other children' i.e. 'Living in a chaotic family, feeling bad about themselves, not knowing how others feel'."

[1]Now titled Youth Justice Act 1992 (Qld).

1. Elsewhere in the Report, the author remarked:

"[The applicant] said that around the time that the police were contacted in September 2008 the victim told him that she wanted things with her brother to be normal.  In relation to his feelings about the offending, he said that he never felt good about what he had done and remembered going to his room after the first time he offended and crying and feeling anger toward himself.  At [the applicant's] developmental age, adolescents are more egocentric and reflect concern more about their own feelings than others.  Additionally, children often don’t know all the reasons why they act abusively.

It is the author’s assessment that, though [the applicant] lacks emotional maturity and understanding he does have some insight to his offending behaviour and the impact of the offences on the victim.

…

[The applicant] is a 17 year old currently not attending educational activities nor in employment.  He has spent no time in custody for his offences.

[The applicant] provided immediate disclosure and admission of his offending to his family and the police.  He has been behaving appropriately and has continued to reside with his family."

The sentencing remarks

1. In his sentencing remarks the learned sentencing judge emphasised the seriousness of the offending conduct:  he referred to the applicant's "shameful and despicable conduct" and to the offence of rape as "a most serious offence".

1. After referring briefly to the Report, the sentencing judge said:

"As you have heard said, our Higher Courts have stated repeatedly that serious sexual offences against children almost inevitably result in a custodial sentence for the offender, where time is actually served in custody and rightly so, because children are the vulnerable victims; they are capable of being exploited and abused and that principle applies even where the offender is a juvenile."

1. His Honour then stated that he had taken into account the applicant's age, early plea, the Report and defence counsel's submissions.

1. After imposing sentences for counts 1, 2 and 3 the sentencing judge gave the following reasons for making a detention order for the rape offence:

"1. It is the offence of digital rape of a girl of eight to nine years of age, who is your younger sister by at least five years.

2. You inserted two fingers into her vagina, from which she subsequently bled.

3. You well knew what you were doing, as you asked the complainant not to tell your mother."

1. The sentencing judge then explained, "My reason for recording a conviction is that it is a most serious offence. I have had regard to the provisions and the other criteria set out in section 184 of the Juvenile Justice Act in the exercise of my discretion on this point, but I am satisfied that it is appropriate to record a conviction for that fourth count".

Counsel for the respondent's submissions

1. Counsel for the respondent submitted, in substance, that the rape was "a most serious offence" having regard to the familial relationship, the bleeding suffered by the complainant, the age disparity and the applicant's appreciation of wrongdoing. He submitted that the judge had had regard to the criteria in s 184 and that no error of principle had been revealed.

Consideration

1. Whether it was appropriate for a conviction to have been recorded was governed by s 184 of the Act which provided:

"(1)In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—

(a)       the nature of the offence; and

(b)      the child’s age and any previous convictions; and

(c) the impact the recording of a conviction will have on the child’s chances of—

(i)        rehabilitation generally; or

(ii)       finding or retaining employment."

1. Section 183(1) of the Act provided that, "Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence". Where a child was found guilty of an offence and reprimanded or ordered to be of good behaviour for not longer than a year, a conviction was not to be recorded.[2] Otherwise, the recording of a conviction was a matter for the exercise of the Court's discretion, subject to the constraints imposed by s 184.

   [2]Juvenile Justice Act 1992 (Qld), s 183(2).

1. It may be seen from s 183 and s 184 that the "primary position"[3] in relation to the recording of a conviction was that a conviction not be recorded.

   [3]See R v JO [2008] QCA 260 and the cases referred to in paragraphs [12] and [16] of that decision.

1. The primary judge's decision to record a conviction seems to have been motivated principally by his conclusion that the rape was "a most serious offence" and by his understanding that there was a "principle" which applied "even where the offender is a juvenile", namely that "serious sexual offences against children almost inevitably result in a custodial sentence".

1. I find it impossible to resist the conclusion that his Honour's focus on these considerations led him to give insufficient weight to "all the circumstances of the case" and the other matters which s 184(1) required to be considered.

1. In R v KU & Ors; ex parte A-G(Qld)[4] it was said in the reasons of the Court that, "The recording of a conviction for the offence of rape is the irreducible minimum level of denunciation required by an offence of this gravity, and notwithstanding the resulting application of the Child Protection (Offender Reporting) Act 2004 (Qld)".  That pronouncement was not made by reference to some abstract concept of rape in its (now) multitudinous forms as an exercise in judicial legislation.  Rather, the Court, as the above passage and its context make clear, was directing its remarks to the facts before it.[5] A statement by an intermediate appellate court such as this assists in achieving consistency in sentencing but does not relieve a sentencing judge of the obligation to exercise the sentencing discretion with regard to all relevant circumstances including, of course, statutory requirements such as those contained in s 184(1).

   [4][2008] QCA 154.

   [5]See the reasons of Holmes JA in R v DAU; ex parte A-G (Qld) [2009] QCA 244, para [24].

1. A fuller discussion of relevant considerations in this regard is to be found in R v Marshall.[6]

   [6][2010] QCA 29 at [47] – [49].

1. The following observations of Lord MacMillan in Read v J Lyons & Co,[7] although made in a rather different context, are also of relevance:

"Your Lordships' task in this House is to decide particular cases between litigants and your Lordships are not called upon to rationalize the law of England.  That attractive if perilous field may well be left to other hands to cultivate.  It has been necessary in the present instance to examine certain general principles advanced on behalf of the appellant because it was said that consistency required that these principles should be applied to the case in hand.  Arguments based on legal consistency are apt to mislead for the common law is a practical code adapted to deal with the manifold diversities of human life and as a great American judge has reminded us 'the life of the law has not been logic; it has been experience.'"

[7][1947] AC 156, 175.

1. Amongst the matters required to be considered by s 184(1) was the applicant's youth. He was no older than 15 and his social, emotional and moral development appears to have been impeded by his home environment. The incestuous nature of the offending against the applicant's vulnerable younger sister, whilst increasing its gravity, also provided part of the background against which a troubled youth, who was poorly supervised and directed by his parents, fell into unlawful sexual experimentation.

1. The Report holds out good prospects of rehabilitation.  The latest date on which the rape offence was committed was 29 January 2007 and there was no suggestion of re-offending or of any other inappropriate sexual conduct between then and 30 November 2009, the date of sentencing.  The applicant cooperated fully with the authorities.  There was no denial of the complaints made against him and he disclosed the conduct constituting count 1.  He had no criminal history.  The rape was digital and unaccompanied by violence or coercion, except for the use of the force inherent in the insertion of the applicant's fingers.  There was no victim impact statement or other evidence to suggest that the impact of the offending conduct on the complainant exceeded that which would normally be expected in such circumstances.

1. This was not a case in which the evidence suggested that the applicant posed an appreciable risk of re-offending, whether within his family or otherwise.  It was not in the public interest that the applicant become a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld) but it is in the interests of the applicant and of the community that the applicant's good prospects of rehabilitation and of "finding and retaining employment"[8] not be impeded unnecessarily.  I do not doubt that the recording of a conviction would impinge adversely on those prospects.  Accordingly, the considerations favouring a decision not to record a conviction far outweighed those supporting the recording of a conviction and a review of recent decisions provides examples of convictions not being recorded where the offending conduct has been at least as serious as that of the applicant.[9]

   [8]Juvenile Justice Act 1992 (Qld), s 184(1)(c).

   [9]R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467; Director of Public Prosecutions v Candaza [2003] VSCA 91; R v B [1995] QCA 231; R v B [2003] QCA 24 and R v DAU; ex parte A-G (Qld) [2009] QCA 244.

Conclusion

1. For all the above reasons, despite the breadth of the discretion vested in the primary judge,[10] the exercise of the primary judge's discretion miscarried and must be re-exercised by this Court.  The appeal against sentence is limited to the setting aside of the recording of the conviction and, as the term of imprisonment imposed has already been served, I will refrain from commenting on the appropriateness of that part of the sentence, beyond observing that it is difficult to reconcile with the "special consideration" that, "a detention order should be imposed only as a last resort",[11] the other "special considerations" in s 150(2) of the Act and with the statements of principle in the authorities in relation to the sentencing of youthful offenders.[12]

   [10]R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd R 182, 193.

   [11]Juvenile Justice Act 1992 (Qld), s 150(2)(e).

   [12]See eg., Lahey v Sanderson [1959] Tas SR 17 at 21 referred to with approval by Wanstall CJ in R v Price [1978] Qd R 68, 70 – 71.

1. As is explained above, the circumstances are such that no conviction should have been recorded.

1. Accordingly, I would order that the application for leave to appeal against sentence be allowed and that the appeal against sentence be allowed but only to the extent that the order recording the conviction be set aside.