The Queen v KG

[2020] NTSC 24

CITATION:The Queen v KG [2020] NTSC 24

PARTIES:THE QUEEN

v

KG

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NOs:21909042 & 21831070

DELIVERED ON:  18 May 2020

HEARING DATES:  25 November 2019, 31 January, 6 March, 23 April and 15 May 2020

JUDGMENT OF:  Grant CJ

CATCHWORDS:

CRIMINAL PROCEDURE – Fitness inquiry – Procedure following fitness inquiry – Special hearing – Procedure following declaration of liability to supervision

Accused unfit to stand trial – Found to have committed nine offences at special hearing – Declared liable to supervision – Custodial supervision order made – Particular considerations arising from the youth of the offender, intellectual disability and functional impairment, the manner in which the special hearing was conducted, and the nature of the offence – Notional term of two years and 10 months fixed

Criminal Code 1983 (NT) Pt IIA

REPRESENTATION:

Counsel:

Crown: M Nathan SC

Supervised Person:   M Aust

CEO (Health):   E Farquhar

Solicitors:

Crown:Office of the Director of Public Prosecutions

Supervised Person:  North Australian Aboriginal Justice Agency

CEO (Health):   Solicitor for the Northern Territory

Judgment category classification:    C

Judgment ID Number:  GRA2004

Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v KG [2020] NTSC 24
Nos 21909042 & 21831070

BETWEEN:

THE QUEEN

AND:

KG

CORAM:    GRANT CJ

REASONS FOR JUDGMENT

(Delivered ex tempore on 18 May 2020)

[1]The youth in this case was charged with nine counts by indictment dated 5 September 2019.  Those offences were alleged to have occurred in Darwin on 20 July 2018.  They included, in general terms, indecent assault, aggravated assault and sexual intercourse without consent.

[2]In the earlier stages of this matter the question arose as to whether the accused was fit to stand trial.  The psychiatric evaluation was that the accused did not understand the concept of pleading either guilty or not guilty to the charges and that he would be unlikely to follow the course of the court proceedings.  On the basis of that evaluation, the prosecution and the defence agreed that the accused was unfit to stand trial, and in accordance with that agreement I recorded findings that he was unfit to stand trial and that it was unlikely that he would become fit to stand trial within the next 12 months.

[3]A special hearing was then conducted before a jury to determine, in respect of each offence charged, whether the accused was not guilty, whether the accused was not guilty because of mental impairment, or whether the accused committed the offence.  That special hearing was held on 25 November 2019 and the jury determined that the accused had committed each of the offences.  That hearing proceeded entirely on the basis of agreed facts.

[4]The accused was 14 years of age at the time of the offending.  He is now 16 years of age.  He suffers from a significant intellectual disability and severe functional impairment secondary to Foetal Alcohol Spectrum Disorder.  He was raised in dysfunctional and transient home environments and suffered early childhood trauma, including exposure to domestic and sexual violence. 

[5]Despite those conditions, it was an agreed fact that at the time of carrying out the conduct constituting the offences the accused did not meet the criteria for “mental impairment” under the Criminal Code 1983 (NT).  That agreement was based on an assessment conducted by a child psychiatrist who concluded that it was most likely that the accused was aware of the nature and quality of his conduct at the time.  To the extent that the accused was unable to reason with a moderate degree of sense and composure about whether the conduct was wrong, that was a consequence of his voluntary intoxication rather than a consequence of intellectual disability, mental illness or brain damage.  At the relevant time, the accused was able to control his actions, but they were influenced by the level of disinhibition caused by his voluntary intoxication.

[6]On the morning in question, the accused consumed various quantities of alcohol, cannabis and methamphetamine which caused him to become intoxicated.  At about lunchtime, he entered the Smith Street Mall in Darwin.  Over the next ten minutes the accused committed nine separate assaults against exclusively, female victims.

[7]The offence charged in Count 1 was an aggravated assault which was constituted by the accused grabbing the victim on her right buttock.  That assault was indecent because the conduct involved a degree of sexual impropriety, either because the accused had a sexual motive or because the conduct was plainly and obviously indecent.  Although it is unnecessary to make any finding in that respect, I infer from all the circumstances which I will go on to describe that the accused did in fact have a sexual motivation of some kind.

[8]The offence charged in Count 2 was an aggravated assault which was constituted by the accused slapping the victim to the genital region using his open hand.  It was also indecent in the relevant sense. 

[9]The offence charged in Count 3 was an aggravated assault which was constituted by the accused attempting to touch the victim's vagina but instead making contact with her lower abdomen.  It was also indecent in the relevant sense.

[10]The offence charged in Count 4 was an aggravated assault which was constituted by the accused grabbing the victim's right buttock.  It was also indecent in the relevant sense.

[11]The offence charged in Count 5 was an aggravated assault which was constituted by the accused grabbing the victim on the buttocks and in the genital region.  It was also indecent in the relevant sense.

[12]The offence charged in Count 6 was an aggravated assault which was constituted by the accused pressing a pair of metal scissors against the victim's shin.  Those scissors were an offensive weapon in the relevant sense. 

[13]The offence charged in Count 7 was an aggravated assault which was constituted by the accused grabbing the victim's face with an open hand. 

[14]The offence charged in Count 8 was an aggravated assault which was constituted by the accused grabbing the victim around the neck with his hands resulting in her being pushed down, and then holding a pair of metal scissors against her neck.  Again, those scissors were an offensive weapon in the relevant sense.

[15]The offence charged in Count 9 was sexual intercourse without consent, constituted by the accused grabbing the victim on her vagina through her underwear in a way that his finger penetrated her vagina.  I find that at the time the accused committed that act he knew that the victim was not consenting to it but was subject to the disinhibition to which I have earlier made reference.

[16]The accused was arrested on 20 July 2018 and has been remanded in detention at the Don Dale facility since that time.  This is the accused's tenth admission to detention in his young life.

[17]Upon the jury returning its verdict, I declared that the accused was liable to supervision pursuant to the Criminal Code. I ordered that a report be filed and served pursuant to s 43ZJ of the Criminal Code detailing the accused's mental conditions and disabilities, his diagnosis and prognosis, details of the accused's response to any treatment, therapy or counselling, and a suggested treatment plan for managing the accused's conditions and disabilities.

[18]In response to that order a report was prepared by the Senior Director of the Office of Disability dated 29 January 2020.  That report details the accused's family background, child protection history and assessments.  At that time the most recent assessment that had been undertaken was by the child psychiatrist in November 2019 dealing with the question of mental impairment.

[19]During his period in the Don Dale facility up to the point at which the report was prepared, the accused had participated in various artistic, sporting and lifestyle programs.  He was reported as engaging positively in those programs.  He also completed the Step-Up program in 2019, which is a psycho-education program directed to young people who have been involved in violent offending.  It was reported that although there were challenges involved in the accused's participation in the program due to language barriers and cognition, there was at least some beneficial engagement with the program.  However, it was recorded that the accused did in fact engage in violent behaviours after the completion of the program.

[20]The accused has an approved National Disability Insurance Scheme plan with the PATCHES therapy service as the specialist coordinator.  That plan was approved for six months with an expiration date in May 2020.  I understand that it has since been extended for a further six months.  As at January 2020 the accused was still on a waiting list for therapeutic interventions.  Those interventions were at that time scheduled to commence in February 2020.  They were to include fortnightly occupational therapy sessions, behavioural support training, speech therapy and psychological intervention.

[21]At the time of that report in January 2020, no suitable placement for the accused outside the Don Dale facility had been identified.  In the opinion of the author of the report there was, in the circumstances, no practical alternative to a custodial supervision order committing the youth to custody in a custodial correctional facility.  However, the report foreshadowed a graduated transition plan from custodial to non‑custodial supervision.

[22]When the matter came back before the Court on 31 January 2020, I ordered Territory Families, in conjunction with the Department of Health, to prepare a further report providing a suggested treatment plan for managing the accused's mental impairment, detailing the services provided and proposed to be provided to him in the future, detailing any offence‑specific therapeutic interventions that were planned, and identifying potential accommodation placements which would allow the supervision, treatment and support of the accused in the community rather than in a custodial correctional facility.

[23]In response to that order a report was prepared by senior officers within Territory Families and the Department of Health dated 4 March 2020.  That report stated that a comprehensive risk assessment was required to outline the supports necessary to transition the accused into the community.  That assessment was being undertaken by a forensic psychologist and was not expected to be completed until some time in April 2020.  The report suggested that ideally the accused's transition would end with his family in Arnhem Land, and that the care and protection unit in that region was investigating support options which would be included in the risk assessment.

[24]The report provided the following information concerning the commencement of the accused's programs and therapies.  Although the accused had undertaken the initial introductory session, musical therapy had yet to be commenced.  A date for the commencement of speech therapy and occupational therapy had yet to be confirmed.  The commencement date for behavioural assessment and therapy had yet to be confirmed.  The accused had completed the Love Bites program in relation to domestic violence, jealousy and relationships, but was unable to demonstrate comprehension of the content or purpose of the program.  A psychologist with expertise treating sexual and violent offenders had commenced working with the accused in order to develop rapport. 

[25]It was also reported that the accused had been stable within the Don Dale facility over the previous few months.  It was suggested that his positive behavioural changes were largely due to the influence of an older detainee, and some caution was expressed as to whether those positive behavioural changes would be generalised in the community.  The accused had a 90 per cent attendance rate at the Tivendale School at that time.  His reading ability had improved from that of a 5‑year-old to that of an 11‑year-old in a period of five months, but his comprehension was impaired.

[26]The report made three primary recommendations.  The first was the completion of the risk assessment.  The second was that in the absence of identified alternative placements there was no practical alternative to detention at the Don Dale facility.  The third was that any transition from custodial to non‑custodial supervision should occur in accordance with a graduated transition plan.

[27]This Court has since received the psychological report containing the risk assessment.  That report is dated 16 April 2020.  That report contains the following conclusions.

(a)The accused's brain injury and adverse childhood experiences have made him vulnerable to exhibiting sexually inappropriate behaviours.  Those adverse experiences include exposure to violence against women and pornography.  The precipitants of his offending behaviours include pornography, substance abuse, anti-social peers and the lack of a structured lifestyle.

(b)The accused presents a high risk of sexual recidivism, and is most likely to re‑offend against a peer‑aged or older female.  The accused is more likely to offend in an urban area than in a remote or regional setting.

(c)So far as a treatment plan is concerned, it was proposed that the psychologist who had previously commenced developing rapport with the accused deliver offence‑specific intervention with oversight from the author of the report.  It was noted that further detail of the plan could be provided on request, but that such plans were, by their nature, constantly evolving to the needs of the client and dependent upon client‑specific factors which emerged.

(d)Various accommodation and placement options had been explored by Territory Families.  It had been concluded by that point that a placement in Arnhem Land was unviable.  (I note in this respect that the accused's legal representative does not suggest that such a placement would be suitable at this point in time or in the foreseeable future.)

[28]Again, the report recommended a staged or graduated transition into the community.  The report contained the following conclusions. 

(a)The accused's risk of sexually re‑offending would require reassessment on his release into the community. 

(b)The recommended release environment was Out-of-Home-Care housing in Darwin with other young people. 

(c)Any imminent release into the community is not feasible because appropriate housing, co‑tenants and a mentor have not yet been identified; the accused had only just begun targeted intervention regarding his offending behaviour; and a care team had yet to be formed. 

(d)A period of at least six months would be required to prepare services adequately to allow the accused to transition into the community.

[29]While counsel for the accused takes issue with the appropriateness of the assessment tools used to determine the risk of sexual re‑offending, and the absence of any risk ratings and justification for those ratings in the report, no real issue is taken with the fundamental conclusions appearing in the report as matters presently stand.  Counsel for the accused’s principal complaint is that the accused has been detained since 20 July 2018 but little or no progress has been made in identifying alternative accommodation for the accused outside of the custodial setting, there has been a delay in the provision of treatment and therapeutic interventions which might prepare the accused for release from a custodial setting, and no clear graduated plan has been formulated to facilitate that transition.

[30]Having previously declared the accused liable to supervision under Div 5 of Pt IIA of the Criminal Code, it is now necessary to make a supervision order.  For the reasons described in the various reports and assessments, that order must necessarily be custodial in nature at this point in time.  That is so even in the application of the principle that restrictions on a supervised person's freedom and personal autonomy are to be kept to a minimum that is consistent with maintaining and protecting the safety of the community. 

[31]The question then arising under s 43ZA of the Criminal Code is whether the accused should be committed to custody in a custodial correctional facility or some other appropriate place.  That section contains two relevant requirements which are at odds in some senses.  The first requirement is the Court must not make a custodial supervision order committing the accused person to custody in a custodial correctional facility unless it is satisfied that there is no practicable alternative.  However, the Court's hand in that determination is to some degree forced by the second requirement, which provides that unless the Court receives a certificate from the Chief Executive Officer of the Department of Health, it must not make a supervision order committing the accused to custody in some other appropriate place. 

[32]The Court is entirely reliant on the Executive to make appropriate facilities and services available for the custody, care or treatment of accused people who continue to present the relevant level of risk to either themselves or the community.  There is in this jurisdiction a dearth, or at least a shortage, of appropriate secure accommodation outside the custodial correctional context to house supervised persons subject to custodial supervision orders.  In the absence of those facilities or services in some other appropriate place, an accused person who does present that form of risk must necessarily be committed to a custodial correctional facility.  As this Court has observed on many previous occasions, that situation is far from ideal.

[33]Section 43ZG of the Criminal Code provides that when the Court makes a supervision order it must fix a term that is appropriate for the offence concerned and specify the term in the order.  If the supervised person was charged with the commission of multiple offences, the Court must fix the term by reference to the offence carrying the longest maximum period of imprisonment.  In this case, that is the offence charged in Count 9 of sexual intercourse without consent, which carries a maximum penalty of life imprisonment.  While that requirement does not mean that the context in which this offending took place is excluded from consideration, the term is to be fixed only by reference to the offence charged in Count 9.

[34]Fixing the appropriate term in this case presents a number of difficulties and particular considerations. 

[35]First, while I intend to fix the term in accordance with the regime in the Sentencing Act 1995 (NT) given the seriousness of the offence, the purposes of punishment, rehabilitation, personal and general deterrence, denunciation and community protection are subject to modification when sentencing youthful offenders. The youthfulness of an offender will usually form a valid ground for extending leniency and adopting a therapeutic approach to sentencing. Youthful offenders, even in the ordinary course, are less culpable due to immaturity and the fact that they have not fully developed a capacity to control impulsive behaviour. Rehabilitation is usually a far more important consideration than punishment and deterrence when dealing with youthful offenders. However, this does not mean that rehabilitation will necessarily be the paramount sentencing consideration given the serious nature of this offending, or that it is necessarily more important than other sentencing purposes.

[36]Secondly, the accused has a history of sexually dysfunctional behaviours for which he would have borne criminal responsibility but for the principle of doli incapax.  Some of that history is discussed in the decision of the Court of Appeal in KG v Firth [2019] NTCA 5. While that history does not constitute a prior criminal history or bear upon the accused's character for sentencing purposes in the ordinary sense, it is relevant to the purpose of community protection and it does inform the question of the accused's prospects for rehabilitation.

[37]Thirdly, as I have already described, it is common ground that the accused has cognitive impairments secondary to a neurodevelopmental disorder, that he was raised in an unregulated environment and that he has been exposed to domestic and sexual violence.  While the accused does not have a “mental impairment” within the meaning of the Criminal Code, he does have abnormalities in his mental and intellectual functioning which bear upon the sentencing process.  In particular, they reduce the accused's moral culpability for his conduct in a way that bears on the weight properly given to punishment and denunciation, and they reduce the weight properly given to deterrence.  On the other hand, they increase the significance of community protection in the sentencing calculus.

[38]Fourthly, by operation of the legislation, a person who is not fit to stand trial is taken to plead not guilty for the purposes of the special hearing.  The accused in this case, and for that reason, did not have the option of entering pleas of guilty and taking the benefit of the ordinary discount given in those circumstances.  However, he is still entitled to some discount in recognition of the manner in which the special hearing was conducted.  The hearing took less than one day and proceeded entirely on agreed facts.  None of the complainants or other witnesses were required to give evidence.  The question of mental impairment was effectively conceded and not agitated.  For those reasons, the accused is entitled to a discount on the term for the willingness to facilitate the course of justice and utilitarian grounds, including the cost savings and the avoidance of trauma for victims and witnesses.  On the other hand, there is no suggestion that the accused is remorseful for his conduct, or indeed capable of remorse, and this is not a case in which the manner in which proceedings were conducted would necessarily encourage other defendants who are similarly situated.  I will be applying a discount to the term fixed, adjusted having regard to those considerations.

[39]Turning then to the offending itself, sexual intercourse without consent is one of the most serious crimes in the criminal catalogue, as is apparent from the maximum penalty of life imprisonment which has been fixed by the legislature.  Any offence of sexual intercourse without consent is serious given the significant impact it will have on the victim and the gross interference with the victim's person and autonomy which it entails.

[40]This offending also involved a flagrant physical interference with a woman who was going about her ordinary business in a shopping precinct.  She was vulnerable in the sense that she was a female in a public place and that sort of affront would have been entirely unexpected.  The offending was brazen and took place in the public gaze.  Members of the public must be able to feel safe in places like this.

[41]Having said that, there are different categories of objective seriousness in the crime of rape.  That categorisation will depend upon whether the rape is accompanied by violence and degradation beyond the minimum which is inherent in the non‑consensual character of the act, the extent to which physical force is used, the degree of planning and organisation involved, whether it occurs in company, whether a weapon is used, whether there are any threats, whether advantage is taken of a relative position of power or the victim's vulnerability, the extent to which the victim is terrorised in the process and whether the conduct involved the risk of sexually transmissible diseases.  That is not to say that the absence of some or all of those aggravating factors operates in mitigation.  It is only to say that in the context of an offence which attracts the maximum penalty of life imprisonment, the objective circumstances of this offending place it towards the lower end of the scale.

[42]The offending was atypical in nature.  It was not premeditated, it involved only the momentary penetration of the victim's vagina by the accused's finger placed on the outside of the victim's underwear, and it did not involve violence beyond the minimum which is inherent in that form of assault.  The character of this offending is different to what might be described as the ordinary category of rape, in which the offender's conduct is directed to their own physical stimulation and gratification.  However, I do not think that particular distinction operates to lower the objective seriousness of the offending beyond the fact that it involved a momentary penetration of the victim in the manner I have described and the absence of the aggravating factors to which I have already referred.

[43]While I have already detailed the particular considerations which operate in this sentencing exercise, the term appropriately imposed is not at large.  Although there is no tariff for crimes of sexual assault given the wide range of circumstances and offenders, sentencing standards or practices for the offence can still be discerned.  The term fixed in this case must ensure reasonable consistency in sentencing and a uniform application of principle.  While a factual assessment in one case or range of cases cannot be used as a legal precedent or authority to govern the term fixed in another, leaving aside what might be described as the worst cases, the comparative sentences in this jurisdiction suggest a range of somewhere between 5 and 10 years for the crime of rape. 

[44]A review of the sentences imposed by this Court between 2012 and 2015 involving an adult offender and an adult victim, after excluding the most serious of cases, shows an average head sentence of 6 years and 5 months and an average non‑parole period of 4 years and 3 months.  Of course, in the vast bulk of those cases punishment and deterrence were the principal sentencing purposes.  As I have already described, those purposes have limited application in the present case.

[45]Counsel for the accused made reference during submissions to The Queen v Nabegeyo (2014) 34 NTLR 154 as representative of a sentence for a more typical offence at the lower end of the spectrum. That case involved a sleeping victim who was incapable of resistance and who did not suffer harm or physical pain, a spontaneous and unplanned act which did not involve gratuitous violence, and a first offender who had pleaded guilty, albeit not at the earliest opportunity. The offender in that case was re‑sentenced to a head sentence of 5 years.

[46]In this particular case, even allowing for the age and personal circumstances of the offender, the application of the most generous discount available on the bases I have described, and the atypical nature of this offending, I do not consider that it is possible to go below a term of 2 years and 10 months for this conduct.  Even the fixing of that term is stretching the legitimate breadth of the sentencing discretion.

[47]I make the following orders.

1.The supervised person is subject to a custodial supervision order pursuant to s 43ZA(1)(a)(i) of the Criminal Code under which he is committed to detention at the Don Dale Youth Detention Centre.

2.A term of 2 years and 10 months is fixed pursuant to s 43ZG(1) of the Criminal Code, backdated to 20 July 2018.

3.While subject to the custodial supervision order, the supervised person is to remain under the care and treatment of Territory Families and his National Disability Insurance Scheme support providers (“the treating team”).

4.The supervised person is to co-operate fully with the treatment plan formulated by the treating team as amended from time to time, and in particular he is to:

(a)    comply with all reasonable directions of the treating team, including taking prescribed medications and submitting to testing, assessment and other medical interventions necessary as adjuncts to the taking of those medications;

(b)    comply with all ongoing assessments relevant to his cognitive condition that may be ordered as part of his treatment plan;

(c)    participate in any counselling or education relevant to his cognitive condition and criminogenic factors as deemed necessary or appropriate by the treating team; and

(d)    attend any rehabilitation or treatment program as required by the treating team.

5.The Superintendent of the Don Dale Youth Detention facility, including his or her delegated officers, may authorise the supervised release of the supervised person from detention for periods as determined in consultation with his treating team for the purposes of implementing a transition plan for the supervised person's eventual release from custodial supervision.

6.During any period of supervised release, the supervised person is to remain in the care, custody and control of the Superintendent and is to comply to with all reasonable directions of the Superintendent and the treating team.

7.The appropriate person is to file and serve a report detailing the treatment and management of the supervised person's mental impairment, condition or disability by close of business on 21 November 2020.

8.The matter is listed for major review at 9 am on 14 December 2020.

9.The accused is excused from attending at that time if legally represented.

10.The parties have liberty to apply.

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