The Queen v Hill, Andrew Richard

[1982] FCA 117

Re: THE QUEEN
And: ANDREW RICHARD HILL (1982) 60 FLR 302
No. NTG 1 of 1982
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), McGregor(1) and Sheppard(1) JJ.

CATCHWORDS

Criminal Law - juvenile convicted of rape and wounding - appeal by Crown - revocation of suspended sentences - principles of sentencing - detention of juvenile offenders.

Criminal Law (Conditional Release of Offenders) Act (NT) s.5

On appeal from the Supreme Court of the Northern Territory of Australia

Nos. 370-371 of 1981

Criminal Law - Sentencing - Adequacy - Juvenile convicted of rape and wounding - Custodial sentence suspended - Appeal by Crown - Criminal Law (Conditional Release of Offenders) Act 1971 (N.T.), s. 5.

HEADNOTE

Held, that in sentencing a convicted juvenile his youth is an important consideration even in a serious crime. However, youth notwithstanding, courts have found it necessary to impose a custodial sentence for a serious crime of violence.

R. v. Flaherty (1968), 89 WN (Pt 1) N.S.W. 141; R v. Prindable (1979), 23 ALR 665; R. v. Roberts, (1982) 1 WLR 133, applied.

Discretion of Crown to indict juveniles before the Supreme Court discussed.

HEARING

Darwin, 1982, May 28; June 4. #DATE 4:6:1982

APPEAL.

Appeal by the Crown against orders of the trial judge imposing a custodial sentence but suspended on condition that the respondent enter into, inter alia, a recognizance that he be of good behaviour for a period of three years.

The facts appear from the judgment of the court.

I. McC. Barker Q.C. and A. Cavit, for the appellant.

D. H. Avery, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: G. R. Nicholson, Northern Territory Crown Solicitor.

Solicitor for the respondent: Australian Legal Aid Office.

H. W. FRASER

ORDER

1. The appeal be upheld.

2. The order of the learned trial Judge be varied by revoking the suspension of the sentences and the provisions as to the bond.

3. There be a non-parole period of 12 months.

4. The sentences are to date from the taking of the respondent into custody and to be served concurrently.

5. The matter be remitted to the Supreme Court of the Northern Territory for execution. Orders accordingly.

JUDGE1

On 14 December 1981 the respondent Andrew Richard Hill pleaded guilty before a Judge of the Supreme Court of the Northern Territory to a charge of rape and to a second charge of unlawfully and maliciously wounding with a spanner the female mentioned in the first charge. On 15 December 1981, the learned trial Judge sentenced the respondent to imprisonment with hard labour for four years on the first charge and to imprisonment with hard labour for nine months on the second.

Pursuant to s.5 of the Criminal Law (Conditional Release of Offenders) Act 1971, he directed that the respondent be released forthwith upon his giving security himself in the sum of $500.00 by recognizance that he be of good behaviour for a period of three years, that for a period of two years and six months he place himself under the supervision and obey the directions of a Probation Officer in the Territory, or should he return there, in Queensland; and a further undertaking not to return to the Territory during the period of the bond.

Against these sentences the Crown has appealed upon the following grounds:

"That the Learned Trial Judge erred in:-

(a) imposing a manifestly inadequate sentence upon the Respondent in all the circumstances of the case;

(b) that the case was an inappropriate one for the making of the direction which was made pursuant to the Criminal Law (Conditional Release of Offenders) Act;

(c) failing to give sufficient weight to the retributive function of sentencing in imposing the sentence he did;

(d) failing, in all the circumstances of the case, to give sufficient wieght to the deterrent aspect of sentencing;

(e) attaching too much weight and inappropriate significance in all the circumstances of the case to the evidence of the respondent's age."

The Crown seeks a revocation of the suspension of the sentences of imprisonment but did not at the hearing challenge the length of the sentences.

There is no dispute as to the evidence of the respondent's earlier life or to events leading up to and the commision of the offence itself.

The respondent was born in Tasmania on 10 March 1966. His parents separated when he was aged 10 months. His mother remarried. The second husband physically ill-treated his mother in the presence of the respondent and as he "vaguely remembers", the respondent himself. His mother left the second husband. Then in January 1972, his mother and the respondent went to live with her present husband. In July 1981 they married. His stepfather gave evidence before the trial Judge that although during his period in primary school his mother was with him practically all the time, when he attended secondary school neither of the parents devoted a great deal of time to him. The mother herself was working at the time.

In a welfare report presented as part of the evidence, it is said that the respondent's needs were emotional, that the more his parents tried to satisfy his physical material needs to the neglect of his emotional ones, the more the respondent "acted out" and therefore the angrier his parents became. This caused further withdrawal by the respondent from emotional ties. Eventually, after an incident, his stepfather administered some corporal punishment - "open hand". Following this, in November 1980, the respondent ran away and travelled around Australia, sometimes in dubious company. He stated he was looking for his natural father, thought to be in northern New South Wales. His account of this appears in the welfare report and need not be repeated here. Eventually, in about September 1981, he arrived in Darwin and obtained work on prawning trawlers, associating there with other employees who were older and bringing him, it is said, into contact with activities such as the use of alcohol and drugs.

One of his fellow employees was the prosecutrix. Her statement was tendered by consent as part of the evidence on the plea The respondent's counsel said his instructions were not basically in conflict with it except as to time sequence and the number of times (referring to the rape), she was struck with a spanner.

The prosecutrix was aged 19. The respondent developed some strong feeling for her. He wanted to have a sexual relationship with her. However, she made it clear to him that she did not reciprocate. They worked on the same boat for about a month. They were both on the same boat on 14 October 1981 and sharing the same cabin, not on any basis of intimacy but because, we accept, of crewing arrangements. The prosecutrix's statement described an incident here which was quite obviously a serious sexual assault accompanied by violence including choking her, so she felt, for about 15 minutes and hitting her head against the wall of the boat about six times. She persuaded the respondent to stop. He said he was sorry, that he was going crazy. This incident was not reported to the police; we are not concerned with it other than to observe that he was aware of her attitude and even then realised that his behaviour including the use of violence was reprehensible.

The prosecutrix moved out of this cabin to another. She and the respondent were on board the same boat on 18 October 1981, though not sharing the same cabin. She was asleep in bed with a sheet over her wearing only briefs. Some evidence suggests that the respondent may have been affected by liquor immediately before the commission of the offence. However, she awoke to find the respondent standing beside the bed holding a spanner 12" or more long and very wide. She moved. He struck her on the head with the spanner. She felt blood on her head and he hit her again with the spanner. He punched her a number of times on the head, apparently around the right side of the face and the eye. She was crying. He told her that if she yelled or screamed he would hit her again. The offence followed. Without waiting to put on clothes, the prosecutrix was able to get out of the cabin via the hatch. She asked bystanders for help and indicated the respondent who was nearby as having raped her. He, however, moved away, hid for some days and eventually was arrested after taking another boat out of Darwin Harbour in an attempt to escape. This matter was the subject of an appearance in the Children's Court.

The prosecutrix spent from two to four days in hospital under observation and has made a complete recovery from her physical injuries.

The respondent was described as one who had been a "difficult child" and his behaviour at home was not always satisfactory. He presented his parents with problems despite the goodwill they felt towards him. Some statements by the respondent to the welfare officer as to certain mistreatment by his stepfather are in conflict with the sworn evidence given by the latter which is to the effect that he was physically punished on only one occasion. According to the welfare report, in the event of a prison sentence being imposed, his parents would continue to support him on release and assist him to settle down and in his career.

In his record of interview, taken on 22 October 1981, the respondent has admitted relevant facts.

The submission of counsel for the appellant was that this was a serious offence with almost no mitigating factors and that the offence of rape is so intrinsically serious that it would only be in exceptional circumstances that a person found guilty of rape would be released. Secondly, he submitted that the circumstances in which this rape was committed make it a bad case of rape because the respondent inflicted considerable violence upon the prosecutrix.

The respondent's counsel argued that a suspended sentence was a genuine sentence, not just a release on a bond. He referred, inter alia, to Wood v. Samuels (1974) 8 SASR 465 at pp.467-468. He referred to a passage in "Principles of Sentencing" (Thomas) 2nd Ed. p.18, to the effect that there can hardly ever be any conflict between the public interest and the offender and the difficult task of the Court is to determine what treatment gives the best chance of obtaining that objective. He submitted that it appeared his Honour had this in mind. He submitted the learned trial Judge took into account all options even if not mentioned. He cited Napper v. Samuels (1972) 4 SASR 63. He submitted his Honour could well have taken the view the respondent would respond and become rehabilitated, that society was protected and the trial Judge's discretion was properly exercised.

The learned trial Judge was faced here with a difficult problem. On the one hand, the respondent was aged 15 years and 7 months at the time of the offence, with a somewhat unstable background. He had spent approximately a year away from home in various parts of Australia, without any parental support or company. However, this was a situation he had brought about by running away. His parents were anxious to have him back to their home and, in fact, have taken him back. They wish and are prepared to offer him support in every way. There are no other children in the home. His stepfather gave evidence indicating there were prospects of getting him employment in work with machinery. The respondent has shown aptitude for this.

The respondent has expressed remorse for his actions. He pleaded guilty. He is said to abhor violence. His behaviour during remand has been excellent. The welfare officer, who gave evidence, expressed the opinion that incarceration may bring him into contact with undesirable company. The learned trial Judge was entitled to regard these factors as indicating the imposition of a penalty, yet one which was non-custodial.

On the other hand, rape is a most serious offence. It has been said by the Court of Appeal in England -

"Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence. This was certainly so in the present case. A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly to emphasise public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last, but no means least, to protect women."

See Regina v. Roberts (Hugh) (1982) 1 WLR 133 at 134.

The respondent's offence was committed after an unsuccessful attempt several days earlier involving the use of violence to subdue the prosecutrix and in circumstances where he was under no misapprehension, by her earlier rejection of his advances, that she wanted no intimate association with him.

This was clearly a rape committed when the respondent had complete foreknowledge of the prosecutrix's attitude to him, and it was preceded by not inconsiderable violence, his attention being pressed when the prosecutrix was bleeding and crying. The welfare report is properly concerned with the treatment of the appellant. But there are other factors with which this Court has to be concerned. In R. v. Prindable (1978-79) 23 ALR 665 at p.668 this Court, though not dealing with a case of rape, stated -

"It is essential that crimes of violence should be visited with punishment sufficiently severe to demonstrate the community's concern that its members be allowed to live in peace and to demonstrate that the courts, for their part, will take whatever action is appropriate to deter others who might disturb that peace."

From the same authority, we refer to a later passage at p.669 -

"The result of his Honour's decision to suspend the sentence was, in our view, to produce a sentence so lenient that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deterrent to others: see per Jordan CJ in R. V. Geddes (1936) 36 SR (NSW) 554; Channon v. R. (1978) 20 ALR 1 at 5."

The passage in "Principles of Sentencing" mentioned earlier is qualified later in these terms -

"The policy is subject to exceptions where the offence concerned is extremely serious or is thought to require a particular emphasis and deterrent . . . "

It seems that the reason why his Honour treated the respondent in the way he did is found in this sentence -

". . . You are essentially being treated in this matter because you are a juvenile offender, with no previous convictions . . . . "

We agree that the youth of the respondent is an important consideration even in a serious crime. But, youth notwithstanding, Courts have found it necessary to impose a custodial sentence for an offence such as this. See e.g. Reg. v. Flaherty (1968) 89 WN (Pt. 1) NSW 141 at p.146, per Wallace ACJ and per Asprey JA at p.154.

In our view the course taken by his Honour was so inappropriate to the serious crime of violence with which he was dealing as to indicate that his discretion miscarried.

It is necessary that this Court substitute the correct sentence. In our view, to leave undisturbed the terms of imprisonment imposed but to revoke their suspension and substitute a non-parole period of 12 months will sufficiently recognise the seriousness of the offences and the youth of the offender. Each sentence of four years and of nine months will be served concurrently. We remit the matter to the Supreme Court of the Northern Territory for execution.

At our invitation there has been provided by the Department of Community Development in this Territory a statement of arrangements that can be made for the detention of juvenile offenders in the Northern Territory. We are informed that Giles House in Alice Springs is available and there individuals, assessed as to their needs, are able to receive instruction in e.g. vocational skills.

We strongly recommend to the authorities that the respondent be committed to Giles House.

Following sentence the learned trial Judge commented that he did not consider the seriousness of this matter justified either the Crown or the Courts of Summary Jurisdiction from depriving children of the protection the child welfare legislation was designed to extend; that it was inappropriate for the Crown to determine whether a child would be dealt with in the Supreme Court or in a Children's Court merely by electing to lay an indictment, a practice which would thwart the apparent intention of the legislature in setting up special Courts. He said that children, unless exercising their right to trial by jury, or unless charged with homicide, should not appear as defendants in the Supreme Court and that where the child and his guardian expressed the wish to plead guilty to a serious charge in the Children's Court, it is that Court, which should determine the matter.

A consideration of what his Honour said leads us to think that all he was doing was expressing a personal opinion of what he thought the policy of the Crown in indicting juveniles before the Supreme Court should be. Nothing that he said, therefore, can bind the Crown in what it does. What he said, as he implicitly acknowledged, was his own view and may not reflect the views of other judges of the Supreme Court of the Northern Territory. In all those circumstances it seems inappropriate for us to offer any comments on the views expressed by his Honour or which would fetter any existing discretion residing in the Crown.