Webster (a pseudonym) v The Queen
[2016] VSCA 66
•11 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0123 | |
| BRADLEY WEBSTER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES: | MAXWELL P, REDLICH and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 July 2015 | |
DATE OF ORDERS: | 31 July 2015 | |
DATE OF PUBLICATION OF REASONS: | 11 April 2016 | |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 66 | |
JUDGMENT APPEALED FROM: | DPP v [Webster] (Unreported, County Court of Victoria, Judge Lacava, 18 June 2015) | |
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CRIMINAL LAW – Sentence – Appeal – Multiple counts of rape committed by 17 year old appellant – Appellant sentenced in Children’s Court to 12 month youth supervision order, with conditions - Appellant resentenced in County Court, on DPP’s appeal from Children’s Court, to 2 years detention in a youth justice centre – Inapplicability of general deterrence – Error in taking into account general deterrence in resentencing of appellant – Whether different sentence should now be imposed – Child offender – No prior criminal history – Rehabilitation – Primacy of rehabilitation – Children, Youth and Families Act 2005, s 362 - Application for leave to appeal granted – Appeal allowed – Appellant resentenced to youth attendance order for 12 months, with conditions.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms H Spowart with Mr J R Cass | Victoria Legal Aid |
| For the Respondent | Ms R Sharp | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA:
Summary
The applicant (‘BW’) was found guilty, after a contested hearing in the Children’s Court, of seven charges of rape. The charges all arose from a single episode. At the time of the offending, BW was 17 years old, and the victim (J) was 15 years old.
BW was sentenced to a Youth Supervision Order for a period of 12 months, with conditions attached. The Director of Public Prosecutions then appealed to the County Court, arguing that the sentence was inadequate. The appeal was by way of a hearing de novo. On this occasion, however, BW pleaded guilty, and the matter proceeded as a plea.
The County Court allowed the Director’s appeal, holding that a custodial sentence was the ‘only appropriate disposition’ in view of the seriousness of the offending. BW was resentenced to two years’ detention in a Youth Justice Centre.
BW sought leave to appeal to this Court against that decision. The Crown having conceded sentencing error, the Court on 31 July 2015 made orders granting BW leave to appeal and allowing his appeal. He was resentenced to a Youth Attendance Order for a period of 12 months, with conditions attached.[2] We indicated at the time that this was a decision of at least a majority of the Court, and that reasons would be published subsequently.
[2]See [32] below.
We have had the advantage of reading in draft the reasons for judgment of Beach JA. His Honour would have granted leave to appeal but would have dismissed the appeal. What follows are our reasons for concluding that a non-custodial order was appropriate in the circumstances.
This appeal highlights, once again, the difficult task which confronts a sentencing court when imposing sentence for serious crimes committed by a young offender. In such a case, there is — or, at least, there appears to be — an acute conflict between sentencing considerations. On the one hand, conventional considerations of just punishment and denunciation point towards a custodial penalty, because serious offences are seen to require the uniquely punitive sanction of loss of liberty.[3] On the other hand, the public interest in the rehabilitation of an offender is never greater than in the case of a young offender.
[3]See Boulton v The Queen [2014] VSCA 342 [104]–[105].
In fact, as discussed below, the conflict is more apparent than real. What is so distinctive, and so important, about juvenile justice is that it requires a radically different balancing of the purposes of punishment. The punitive or retributive considerations which are appropriately applied to adults must be largely set to one side.
There are three reasons for this. First, the young offender’s immaturity is seen as markedly reducing his/her moral culpability; secondly, custody can be particularly criminogenic for a young person, whose brain is still developing; and, thirdly, the very process of development and maturation which is under way is seen as providing a unique opportunity for rehabilitation and — hence — for minimising the risk of re-offending.
As will appear, the primacy of rehabilitation in the sentencing of young offenders is well established, both at common law and by the principles of the Children Youth and Families Act 2005 (‘the CYF Act’). In our view, this was a case where BW’s culpability was much less than would have been the case for an adult offender, and where the importance of promoting his rehabilitation meant that a non-custodial order was called for.
One of the consequences of this approach to sentencing is that the victim of serious offending like this (and her family) may feel that the harm they have suffered because of the offending is given insufficient weight in the sentencing process. The victim impact statements reveal the profound impact of this offending on J and her family. Our conclusion on resentencing should not be taken as implying that these impacts have been overlooked or undervalued.
Summary of facts and proceedings
We gratefully adopt Beach JA’s comprehensive and lucid summary of the circumstances of the offending and of the applicable provisions of the CYF Act. It is unnecessary for us to repeat any of those matters.
As his Honour has pointed out, the Crown conceded — rightly, in our view — that the County Court judge fell into error by taking into account (as the prosecutor had erroneously submitted he should do) general deterrence as a sentencing consideration. As the applicant’s written case pointed out, this Court in CNK v The Queen held that, on a proper construction of the CYF Act, general deterrence was excluded from consideration in the sentencing of children.[4]
[4](2011) 32 VR 641 (‘CNK’).
Further, we respectfully agree with his Honour that the judge erred in finding that BW had not given instructions to his counsel in the Children’s Court that he would plead guilty to any of the rape charges. In fact he had instructed his counsel, before the Children’s Court hearing, that he would plead guilty to two rolled-up counts of rape.
The decision of the Children’s Court
As noted earlier, BW was convicted after a contested hearing in the Children’s Court. The plea in mitigation took place some weeks later, before the Magistrate who had found the charges proved. It is instructive to examine the plea submissions, and the Magistrate’s reasons for decision.
The prosecutor pointed out that the basis of BW’s plea of not guilty was that the victim had been consenting. He must be sentenced, it was submitted, as someone who had shown no remorse. Because of his age, BW should be viewed as being at the ‘higher end’ of moral culpability for a young offender.
The prosecutor submitted that immediate custody was required, having regard to the gravity of the offending and its ‘overwhelming impact’ on the victim and her family. The appropriate disposition was said to be a Youth Justice Centre Order. A non-custodial order was not within range.
Defence counsel informed the Magistrate that BW had expressed remorse to her in the course of the hearing. Counsel said that BW had observed how distressed the victim’s family were and was coming to appreciate that ‘everybody is damaged to some degree as a consequence of what happened on the night’.
Counsel pointed out that the offending had occurred during a phase in BW’s life which
was really quite disrupted and quite markedly different from what had occurred prior to that, which was a very stable, loving and supportive family arrangement.
Counsel submitted that the offending revealed ‘a prevailing immaturity in respect of his interactions with women’.
In her reasons for sentence, the Magistrate noted that, in finding BW guilty of rape, she had concluded that BW had ‘not given any thought to whether [J] was not consenting or might not be consenting’. This was a reference to s 38(2)(a)(ii) of the Crimes Act 1958, as then in force. Her Honour said that this finding ‘reflects my overall view of the events on the night’.
Her Honour then referred to the principles set out in s 362 of CYF Act which, she said, were
very different to sentencing an adult. The focus of this Court is not, as might be thought, simply matching a penalty to the crime. Punishment and deterring others are not principles of this court in sentencing, but rehabilitation with the design that no further offending occurs. Keeping the defendant at school and home and suitability of the sentence are principles of this court.
The learned prosecutor rightly points out that making the offender to be responsible for his actions is also a very important aim of his sentence as is the desire to protect the community.
Her Honour made the following finding:
[A]fter coming to this country at a very early age [BW] lived a law abiding [life] and [had] successful years as a teenager excelling in sport. His relationship with an older and troubled girl saw him using cannabis daily and leaving his family for her, and when that relationship ended he literally had nowhere to go, sleeping on couches at friends’ houses. Thus to the end of 2013. For the next 12 months he started to offend and develop depressive and suicidal thoughts, referred to by Dr Scedari in the clinician’s report. He spent a [period] in custody as a result.
[BW’s] response to all of this was not to give up, [but] he has rather been positive and has engaged (indistinct) on several occasions with Mr Scedari and Youth Justice over some months. Recommendations are made by these services to specialist counsel and an intensive sexual offending course called MAPPS,[5] which aims to reduce his risk of offending through the development of knowledge, skills and attitudes.
I accept the Prosecutor’s concern that [BW] may not seem accepting of what he has done. In my view the material bears out in his sessions with the clinic and Youth Justice an emerging understanding of how this conduct is viewed and most importantly of a willingness to receive this counsel. Put simply he does not yet have an adult’s view of the complexities of all of this but the signs are there and it’s not (indistinct) Most importantly his life has stabilised with not only professional but family support. He has re-engaged in education. He’s doing his VCE which will occupy him (indistinct). He’s borne the brunt of shame and scrutiny in the media which is very difficult … (indistinct).
The impact of [BW’s] crimes on [J] and her family has been devastating. Having teenager daughters myself your grief and hurt is heartfelt by this court. I know that my sentence today doesn’t and cannot match your grief. Sentencing, however, is a different exercise …[6]
[5]Male Adolescent Program — Positive Sexuality.
[6]Emphasis added.
After ‘carefully balancing all the material’, her Honour concluded that the appropriate sentence was an ‘intensive sentence in the community by way of a Youth Supervision Order for 12 months’.
Sentencing young offenders
The sentencing framework is provided by s 362(1) of the CYF Act, which provides as follows:
In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child’s family; and
(b) the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e) the suitability of the sentence to the child; and
(f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g)if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
In CNK v The Queen,[7] the Court said this in relation to s 362(1):
[7](2011) 32 VR 641 (‘CNK’).
We start with the opening words of the subsection. Not only is the language imperative (‘the Court must’) but the words ‘as far as practicable’ operate, in context, as words of emphasis. Since the word ‘practicable’ means ‘feasible’ or ‘able to be done or accomplished’, the phrase ‘as far as practicable’ means as far as it is possible to go. Hence the sentencing court must have regard to each of the specified matters to the maximum extent possible. And the statutory obligation to ‘have regard to’ a specific matter requires the court to give the matter weight ‘as a fundamental element in the decision-making process’. Moreover, as explained below, the specified matters are not matters of fact but statements of policy. They identify the policy objectives which must — to the maximum extent possible — govern the sentencing of young offenders.
Secondly, the matters to which regard must be had are — without exception — directed at a consideration of the effect of the proposed sentence on the child. This is true even of para (g) which, although expressly referring to the need to protect the community, directs attention to what will deter, or prevent, the particular child from engaging in ‘violent or other wrongful acts’.
…
Thirdly, what s 362(1) obliges the sentencing court to do ‘as far as practicable’ is to impose a sentence which fits the young offender as much as — or perhaps even more than — it fits the crime. Thus the court must, as far as practicable, impose a sentence which is suitable to the child (para (e)) and must, as far as practicable, impose a sentence which will achieve the following policy objectives:
·strengthen and preserve the child’s relationship with his/her family;
·allow him/her to live at home;
·allow him/her to continue with education, training or employment; and
·result in the minimum stigma to the child.[8]
[8]Ibid 644 [8]–[9], [11] (emphasis added).
The principles which apply to sentencing young offenders were, in our respectful view, powerfully summed up by Vincent JA in R v Evans,[9] as follows:
An elaborate system has been developed to deal with the problem of offending by children and young persons in our community, with a separate court, separate detention facilities, supervision systems and so forth. Whilst broadly speaking, normal sentencing principles can be said to remain applicable when dealing with youthful offenders, as a matter of law and practice it is recognised that the respective weight to be given to relevant factors will vary. In addition the Children and Young Persons Act 1989 (Vic.) sets out a number of matters to which a sentence in the Children’s Court must have regard and which differ in kind and emphasis from roughly similar provisions in the Sentencing Act 1991 (Vic.). Underlying this system is the attribution of considerable significance to the generally accepted immaturity of the young people who appear before the Children’s Court and the need, in the interests of the community and the young persons concerned, to endeavour to divert them from engagement in anti-social conduct at that early stage of their lives. These considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older and presumably more mature individuals.[10]
[9][2003] VSCA 223 [44].
[10]Citations omitted, emphasis added. See also KT v The Queen [2008] NSWCCA 51 [23].
There is an established body of research which provides clear empirical support for this — very different — approach to sentencing young offenders. For example, Cauffman and Steinberg in a 2012 article said:
While the cognitive capacities of 16-year-olds may approximate those of adults, psychosocial maturation proceeds more slowly than cognitive development, leading to social and emotional differences between adolescents and adults that continue well beyond midadolescence and have profound effects on decision making. Of particular relevance to the present discussion are age differences in susceptibility to peer influence, future orientation, reward sensitivity, and the capacity for self-regulation — all of which are potential considerations in assessments of individuals’ criminal responsibility and competence to stand trial. Available research indicates that adolescents and adults differ significantly with respect to each of these attributes.[11]
[11](2012) 7 Victims and Offenders 428, 434.
Further, the Court in CNK drew attention to other relevant research:
The risk that a period of detention will be counterproductive for an offender — and hence for the community — is never higher than in relation to a young offender who has not previously been in custody. Research to which the Chief Scientist of New Zealand has recently drawn attention has highlighted the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely.[12]
[12](2011) 32 VR 641, 662 [77]. The research article was Steinberg, ‘Adolescent Development and Juvenile Justice’ (2009) Annual Review of Clinical Psychology 47, pp 65-8, cited in Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence, Report to Prime Minister of New Zealand by Chief Science Advisor (May 2011) p 28.
The position may be summed up as follows. First, the statutory framework for juvenile justice compels the court sentencing a young offender (almost always the Children’s Court) to adopt the offender-centred (or ‘welfare’) approach, rather than the ‘justice’ or ‘punishment’ approach.[13] Secondly, and just as importantly, this strong legislative policy is well supported by the extensive research into adolescent development conducted over the past 30 years.[14]
[13]For an explanation of the terminology, see K Richards, ‘What makes juvenile offenders different from adult offenders?’, Trends and Issues in Crime and Criminal Justice No 409 (Australian Institute of Criminology, February 2011) p 6.
[14]C M Chu and J R P Ogloff, ‘Sentencing of Adolescent Offenders in Victoria: A Review of Empirical Evidence and Practice’ (2012) 19 Psychiatry, Psychology and the Law 32.
Conclusion
There was nothing in the circumstances of this case which, in our view, would have required any departure from these principles. On the contrary, BW’s immaturity was readily apparent, not least from his failure to give any consideration to whether J might not be consenting. He had no prior criminal history, and this offending had occurred in a period of particular instability in his personal life.
As Beach JA has recorded in his reasons, the material before the Court indicated that BW would respond very positively to the programs which he would be required to undertake as part of the Youth Attendance Order. In our view, this was precisely the kind of case where, notwithstanding the objective gravity of the offending, the public interest was best served by promoting BW’s rehabilitation.
For completeness, we would add that there was uncontested expert evidence before this Court (for the purposes of resentencing) that BW was ‘having significant difficulty coping with being detained in a Youth Justice Centre’. In the expert’s opinion, he was likely to become more depressed and despondent the longer he stayed in detention. According to established principles, those considerations also militated in favour of a non-custodial disposition.
In addition to the standard conditions, requiring attendance at a Youth Justice unit and compliance with the directions of the Secretary of the Department of Human Services, the Court ordered that BW comply with the following special conditions:
1. Attend the Male Adolescent Program for Positive Sexuality as directed by the Secretary.
2.Attend the Hospitality Employment and Training program as directed by the Secretary.
3. Abstain from alcohol.
4. Abstain from the use of illegal drugs.
5. Reside with your father or alternatively as directed by the Secretary.
6.Not leave your place of residence between 9.00 pm and 6.00 am daily except for the purpose of undertaking employment or training or obtaining medical assistance or complying with any condition of this order or for any other purpose authorised by the Secretary.
7.Undergo psychological counselling with [B] or another suitable psychologist as directed by the Secretary.
8.Undergo drug and alcohol counselling with Youth Support and Advocacy Service or another service as directed by the Secretary.
9. Undergo drug and alcohol testing as directed by the Secretary.
BEACH JA:
Introduction
After a contested hearing lasting three days in the Children’s Court in December 2014, the applicant was found guilty of seven charges of rape. On 11 February 2015, the applicant was sentenced to a 12 month youth supervision order with conditions. Pursuant to s 427 of the Children, Youth and Families Act 2005 (the ‘CY&F Act’), the Director of Public Prosecutions appealed against the sentence imposed by the Children’s Court.
The Director’s appeal was heard in the County Court over three days in April and May 2015. Pursuant to s 429 of the CY&F Act, the appeal to the County Court was a rehearing de novo. While the applicant was not bound by the outcome in the Children’s Court, on the appeal, the applicant pleaded guilty to the seven charges of rape of which he had been convicted in the Children’s Court.
On 18 June 2015, the Director’s appeal to the County Court was allowed and the applicant was resentenced as follows:
Charge
Offence Maximum Sentence Cumulation 1 Rape 2 years in a Youth Justice Centre 18 months in a Youth Justice Centre Base 2 Rape 2 years in a Youth Justice Centre 12 months in a Youth Justice Centre Nil 3 Rape 2 years in a Youth Justice Centre 12 months in a Youth Justice Centre Nil 4 Rape 2 years in a Youth Justice Centre 12 months in a Youth Justice Centre Nil
12 Rape 2 years in a Youth Justice Centre 12 months in a Youth Justice Centre Nil 13 Rape 2 years in a Youth Justice Centre 12 months in a Youth Justice Centre 3 months in a Youth Justice Centre 26 Rape 2 years in a Youth Justice Centre 12 months in a Youth Justice Centre 3 months in a Youth Justice Centre Total Effective Sentence: 2 years in a Youth Justice Centre Non-Parole Period: N/A Pre-sentence Detention Declared: 1 S 362A CYFA statement: 2 and a half years in a Youth Justice Centre Other orders:
The applicant sought leave to appeal against the sentence imposed in the County Court on the following grounds:
1. The learned Sentencing Judge erred by impermissibly applying adult sentencing principles and in doing so imposed a custodial sentence, a disposition that was not appropriate for the Applicant who is a child.
2. The learned Sentencing Judge erred in rejecting the recommendation in the Department of Health and Human Services Pre-Sentence Report that the Applicant be placed on a Youth Supervision Order, or in the alternative a more onerous Youth Attendance Order.
3.The learned Sentencing Judge failed to have regard to Verdin’s (sic) principles 5 and 6 when resentencing the Applicant.
4.The learned Sentencing Judge erred in failing to exercise the residual discretion.
5.The learned Sentencing Judge erred in finding the Applicant had not given instructions to plead to any charges of rape in the Children’s Court.
6.The individual sentences and degree of cumulation imposed upon the Applicant are manifestly excessive having regard to:
(a)The primacy of rehabilitation as the fundamental principle governing the sentencing of children;
(b) The Applicant’s mental health;
(c) The Applicant’s vulnerability within a custodial environment;
(d)The content and recommendations in the Department of Health and Human Services Pre-Sentence Report;
(e)Protection of the community, accountability and suitability of the sentence and
(f) The principle of totality when cumulating charges 13 and 26 upon the base sentence.
At the hearing of the application for leave to appeal, the applicant sought leave to abandon grounds 3, 4 and 5. After debate with the Court, the applicant withdrew his application to abandon grounds 4 and 5. While the applicant did not pursue the errors alleged in grounds 3, 4 and 5 as separate grounds of appeal in his oral submissions, the matters identified in those grounds were pursued as part of an argument that a less severe sentence than that imposed by the County Court judge should now be imposed by this Court.
At the conclusion of oral argument, the Court indicated that it would endeavour to give judgment in this matter in the week following the hearing. On 31 July 2015, the Court indicated that, by at least a majority, leave to appeal would be granted, the appeal would be allowed and the applicant re-sentenced. I agreed, and agree, for the reasons given below, that leave to appeal should be granted. However, and with respect, I do not agree that the appeal should be allowed. For the reasons that follow, I would dismiss the appeal.
Circumstances of the offending
The circumstances of the applicant’s offending may be briefly described as follows.
At approximately 8:30pm on 12 April 2014, the victim (who was then 15 years old) attended a party at a suburban park with her friends. The victim drank two ciders prior to going that night and she took cask wine along to the park. While at the park the applicant (who was then 17 years old) and his friends arrived. The victim and applicant had not met until that point. They sat at a table near a toilet block drinking alcohol.
The group moved to a street corner where they met another friend. The applicant then took the victim’s hand and told her to come with him. They knocked at the window of a flat where a friend of the applicant lived but did not get an answer.
Charge 1 (rape - vaginal penetration)
The applicant picked the victim up and took her to an alcove area on the north side of the building. The victim put her legs around the applicant and asked ‘What are we doing?’ The ground was a mixture of scoria rock. The applicant repeatedly tried to kiss the victim but she did not kiss him back. The applicant was facing the victim who had her back to the doorway. The victim was being blocked in by the applicant and could not move.
The applicant pulled the victim’s underwear down with both hands as she was saying ‘no’ and ‘stop’. Her skirt remained on. She tried to pull her underwear up. He turned her around and pushed her up against the brick wall which hurt her face. He turned her around and told her to bend over. He penetrated her vagina with his penis. She said, ‘No, please don’t’. He said words similar to ‘I know you like it, tell me you like it’.
Charge 3 (rape - oral penetration)
The applicant turned the victim around and told her to get on her knees. He said words similar to ‘Get on your knees and suck me off’. She said, ‘No, please, I don’t want to.’ He pushed her to the ground onto her knees. He penetrated her mouth with his penis and made her suck his penis. During this time he had a hand on the back of the victim’s head.
Charge 2 (rape - vaginal penetration)
After a period of time the applicant pulled the victim back up, he turned her around and pushed her against the wall again. He told her to bend over again and again penetrated her vagina with his penis. During this time the victim continued to plead with the applicant to stop and he responded with ‘I’m almost done baby’. The victim was experiencing great pain in her vagina which caused her to cry. She was also feeling pain in her face as a result of having her face pushed up against the wall.
Charge 4 (rape - oral penetration)
The applicant made the victim turn around again and told her to get on her knees and ‘suck him off’ again. The victim believed that the applicant had ejaculated. She said words similar to ‘No, you’re done’. He said he wasn’t and forced the victim to suck his penis. The victim was crying and asking him to stop.
Charge 12 (rape - vaginal penetration)
The applicant then turned the victim around again and penetrated the victim’s vagina with his penis as he continued to have her bent over against the wall.
Charge 26 (rape - vaginal penetration)
The victim tried to pull her underwear up and walk away. The applicant grabbed her and told her she wasn’t leaving and that he was almost done. She continued to cry as she pleaded with him to stop. He kept saying, ‘I’m almost finished.’ He again made her turn around, bend over and face the wall as he penetrated her vagina with his penis.
Charge 13 (rape - oral penetration)
The applicant again forced the victim to suck his penis. The victim could see ejaculate on the applicant’s penis. She told him he was finished and he said he was still hard. He said words similar to ‘Just clean it off’ or ‘You need to lick me clean’. He made the victim lick the ejaculate from his penis.
The victim recalls two occasions where she spat ejaculate on the ground beside her. The applicant was not wearing a condom. Throughout the incident the victim was scared of the applicant.
The victim ran off crying and reunited with the rest of the group. She told her friend what had taken place who then confronted the applicant punching him in the face. Police were contacted and attended the scene where the applicant was arrested.
The victim was conveyed to the Royal Children’s Hospital. Examination revealed the victim had suffered serious injuries as a result of the applicant penetrating her vagina. She sustained a deep tear around her vagina, a large tear to her hymen. She had other cuts to her vagina along with bruising to her vagina and hymen. The injuries were consistent with blunt force penetrative trauma. The victim also had grazing to her knees where she had been forced to kneel on the stones. She felt sore all over. The victim had lost a lot of blood from her vagina which was on her legs.
Biological evidence located at the scene and analysed was found to be semen and matched the DNA profile of the applicant. Blood stains detected on the applicant’s jeans and jumper matched the DNA profile of the victim.
Interview by police
The applicant was interviewed at the Fitzroy Police Station on 13 April, 2014. An independent third person was present while the applicant was in custody. The applicant admitted that he had met the victim in a park on the evening of 12 April 2014.
The applicant denied that he had raped the victim. He stated during the interview that the victim had willingly kissed him and had consensual penis-vagina sex with him. He further stated the oral penetration was consensual and at times initiated by the victim.
During the interview the applicant stated:
We started touching each other and stuff like that.
We had sex.
We had sex, afterwards she started crying, I shouldn’t be doing this, I shouldn’t be doing this.
She just got upset after we did it.
She’s the one that kissed me earlier.
I have commitments with another girl so I didn’t really want to do anything.
The applicant stated that the victim had started kissing him on the way to the street, and that she had grabbed his waist. He said that he asked her if she had a condom prior to sex, and she said she was on the pill.
The applicant further stated:
I inserted my penis into her vagina from the back.
I stopped and she went down on her knees and did oral sex.
Then she inserted my penis into her mouth.
And then she went back up and turned back around and then I did it again until I was done.
I put my pants up, then she started crying and saying ‘I shouldn’t have done that. What am I doing?’ and then she power walked off.
The relevant legislative provisions
As the applicant was under the age of 18 years at the time of his offending, he was, and is, required to be dealt with in accordance with the provisions of the CY&F Act.
A Director’s appeal against sentence from the Children’s Court to the County Court is governed by ss 427 to 429 of the CY&F Act. On the hearing of such an appeal, the County Court is required to set aside the sentence imposed in the Children’s Court. Section 429 of the CY&F Act relevantly provides:
(1)An appeal under s 427 must be conducted as a rehearing and the respondent is not bound by the plea entered in the Children's Court.
(2) On the hearing of an appeal under s 427, the appellate court —
(a) must set aside the sentence of the Children's Court; and
(b)subject to this section, may impose any sentence which the appellate court considers appropriate and which the Children's Court imposed or could have imposed; and
(c)may exercise any power which the Children's Court exercised or could have exercised.
(6)In imposing a sentence under sub-s (2), the appellate court must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.
Section 360(1) of the CY&F Act deals with the various sentences that may be imposed upon a child. That section provides:
(1)If the Court finds a child guilty of an offence, whether indictable or summary, the Court may—
(a) without conviction, dismiss the charge; or
(b)without conviction, dismiss the charge and order the giving of an undertaking under s 363; or
(c)without conviction, dismiss the charge and order the giving of an accountable undertaking under s 365; or
(d)without conviction, place the child on a good behaviour bond under s 367; or
(e) with or without conviction, impose a fine under s 373; or
(f)with or without conviction, place the child on probation under s 380; or
(g)with or without conviction, release the child on a youth supervision order under s 387; or
(h)convict the child and make a youth attendance order under s 397; or
(i)convict the child and order that the child be detained in a youth residential centre under s 410; or
(j)convict the child and order that the child be detained in a youth justice centre under s 412.
Section 361 of the CY&F Act then provides:
The Court must not impose a sentence referred to in any of the paragraphs of s 360(1) unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph of that section.
As to the relevant matters to be taken into account when sentencing a child, s 362(1) of the CY&F Act provides:
(1)In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child's family; and
(b) the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e) the suitability of the sentence to the child; and
(f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g)if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
Next, s 430I of the CY&F Act deals with the obtaining of pre-sentence reports by an ‘appellate court’.[15] Section 430I(2) provides that the ‘appellate court must order a pre-sentence report if it is considering making a youth residential centre order or a youth justice centre order’. In conformity with this section, the County Court judge who heard the appeal in this matter ordered a pre-sentence report. Prior to the delivery of his reasons, the judge received a pre-sentence report dated 11 June 2015. This report was signed by a youth justice case worker and a team leader, both employed by the Department of Health and Human Services. The 11 June 2015 report supplemented earlier pre-sentence reports dated 9 February and 23 April 2015.[16]
[15]In Pt 5.4 of the CY&F Act (which Part contains s 430I), ‘appellate court’ is defined to mean ‘the County Court or the Trial Division of the Supreme Court, as the case requires’: see s 3 of the CY&F Act.
[16]There was also a Children’s Court Clinic Report and a Children’s Court Clinic Drug Program Confidential Psychological Assessment Report to which the courts below had access.
The appeal from the County Court to this Court is brought pursuant to s 430R of the CY&F Act. That section permits a person sentenced to a term of detention by the County Court to appeal to this Court against that sentence if:
(a)in the proceeding that is the subject of the appeal, the Children’s Court had not ordered that the person be detained; and
(b)the Court of Appeal gives the person leave to appeal.
Section 430T of the CY&F Act provides that the Court of Appeal must allow an appeal if, but only if, the appellant satisfies the Court that there is an error in the sentence imposed by the County Court and that a different sentence should be imposed.
Before turning to the County Court judge’s reasons, one further point should be noted. In CNK v The Queen,[17] this Court determined that, on a proper construction of s 362(1) of the CY&F Act, general deterrence which, unlike all other sentencing considerations, was unconnected with the particular offender, was excluded from consideration in the sentencing of children.[18]
[17](2011) 32 VR 641 (‘CNK’) (Maxwell P, Harper JA and Lasry AJA).
[18]Ibid [4]–[16].
The judge’s reasons
The judge commenced his reasons for sentence with a description of the history of the proceeding.[19] In the course of dealing with the history of the proceeding, the judge said:
I was told and, accept that there were discussions pre-contested hearing between your practitioner and the prosecutors in an attempt to resolve the hearing in the Children’s Court into a plea. On 7 May I was given a statement of agreed facts between the parties that deal with those discussions. The charges were not resolved on a plea or any other basis. You did not plead guilty to any of the charges. You contested them all. I am satisfied that you did not give any instructions to your counsel that you would plead guilty to any charges of rape and any suggestions as to how the contested charges could be resolved on a plea basis were subject to receipt of your instructions. That is because you were of the opinion that what you did to your victim was at all times consensual. You have maintained that position post-conviction and, right up to, but not during, this appeal.[20]
[19]DPP v [Webster] (Unreported, County Court of Victoria, Judge Lacava, 18 June 2015) (‘Reasons’) [1]–[7].
[20]Ibid [7].
The judge then summarised the facts of the appellant’s offending, before saying:
This kind of offending will almost always result in the imposition of a custodial sentence. Your offending here though occurred when you were aged 17 and a child. In those circumstances the same principles that would normally apply in sentencing an adult, general and specific deterrence, just punishment and denunciation do not have the same level of application. In sentencing a child the principle that guides the sentence is rehabilitation of the child and the prospects of achieving a full rehabilitation. That is the guiding principle both in the interest of the offender and in the community’s interest recognising that the community has an interest in ensuring children and young offenders are properly rehabilitated. The reasons for this approach have been well known and applied for a very long time. The law recognises that children can do stupid things and can commit very serious offences. The community has a very strong interest in the imposition of a sentence that will bring about and maintain full rehabilitation.
But there are also very serious cases where the law recognises that a custodial disposition may be imposed even on a child and this is acknowledged in the Act itself. There is a tipping point, dependent upon the seriousness of the offending and, all of the circumstances of the case, including those personal to the child offender, where a disposition primarily focused towards rehabilitation of the child gives way to a disposition in favour of detention. In my opinion, the level of seriousness of your offending and, all of your personal circumstances, tip the balance towards the imposition of a sentence that involves detention in a Youth Justice Centre. Whilst the pre-sentence report prepared for the Magistrate in the Children’s Court recommended a Youth Supervision Order and, the Magistrate adopted that recommendation, in my opinion the sentence imposed was inadequate having regard to all the circumstances.[21]
[21]Ibid [17]–[18].
Next, the judge dealt with the pre-sentence report obtained by him pursuant to s 430I(2) of the CY&F Act. The judge said:
The Pre-Sentence Report ordered by me makes a similar recommendation to that made to the Magistrate. It recommends a community based disposition. It says, inter alia:
‘Custody, while presenting as the obvious response may in the longer term prove detrimental to the rehabilitative prospects for this young man and potential to community safety … . A Youth Supervision Order would offer intensive supervision and support.’
In the alternative, the Pre-Sentence report recommends a Youth Attendance program as a form of partial detention.
I have given a great deal of consideration to these recommendations. Because of the seriousness of your offending I do not accept either of them as an appropriate disposition. In my view the sentence I impose must be that of immediate custody. It is my understanding that a period of custody in a Youth Justice Centre will allow you access to programs designed to assist your full rehabilitation including access to the MAPPS program albeit that this might not be on a group basis.[22]
[22]Ibid [19]–[21].
The judge then dealt with various provisions of the CY&F Act, including ss 360, 361 and 362. In the course of this discussion, the judge also dealt further with the appellant’s background and submissions made to the judge by the appellant’s counsel, before saying:
In arriving at an appropriate disposition of this appeal I have taken all of these matters into consideration. I understand that you may be depressed and have anxiety about the trouble you now find yourself in and the way these matters may affect your life. However, I am confident from all of the material that I have read about you that your prospects for a full rehabilitation are reasonably good. In particular you have the on-going support of your father and that will be available to you when you are released from custody. There is no evidence that because of depression or anxiety your time in detention will be harder than for others.
Whilst I think your prospects for full rehabilitation are reasonably good I cannot say on the evidence available to me that you will not re-offend in this way. Your actions were purely selfish and, you have I think with some reluctance, come to concede that what you did was without the victim’s consent. Whilst I have no doubt you now regret what you did, you have not in my view wholly embraced that what you did was wrong because the victim did not consent and you knew that to be so. I admitted into evidence a letter written by you in which you state that doing the MAPPS program has given you a broader mind about how the victim was not consenting. In fact she said ‘No’ to you and you would not accept that. You still have not acknowledged that she said ‘No’ and that concerns me. (s 362(g).[23]
[23]Ibid [39]–[40].
Next, the judge dealt with victim impact statements that had been provided by the complainant and her parents. The judge, correctly in my view, described these as ‘telling documents’.[24]
[24]Ibid [41].
The judge then dealt with the prosecutor’s submissions in the following terms:
[Counsel] who appeared on behalf of the Director[25] argued that having regard to the nature and circumstances of the offending which she submitted is very serious and the principles that must be applied in sentencing a child, nevertheless the circumstances of offending here call for the disposition to properly reflect some application of both specific and general deterrence and just punishment. She submitted that when everything about the offending and the circumstances peculiar to yourself are taken into account the sentence imposed by the Magistrate below is inadequate and manifestly so. Having reflected on the matter at some length I agree with her submissions.[26]
[25]Not counsel who appeared for the respondent before this Court.
[26]Reasons [42].
Finally, the judge said:
The imposition of a Youth Supervision Order with conviction and conditions in my view is inadequate. So too in my opinion a Youth Attendance Order disposition. In my opinion, having regard to the seriousness of your offending and all of the facts and circumstances personal to you concerning your background and family situation, the only appropriate disposition here should be one that imposes detention in a Youth Justice Centre. In my judgment any of the other dispositions set out in s 360(1)(a) to (i) would be inadequate. In my judgment a disposition utilising the powers contained in those sections would not properly reflect the serious level of your offending.
In a very comprehensive written outline and in oral submissions [counsel for the applicant] properly brought to my attention a number of authorities relating to the principles applicable in the sentencing of children and young and youthful offenders. She repeated those submissions in a further outline of argument sent to my Associate at 9:30 this morning and I have heard further submissions from [different counsel] who appeared on your behalf this morning.
Both emphasised that since being convicted in the Children’s Court you have engaged in counselling with Youth Justice describing your engagement as ‘consistent and exemplary’. Both urged me not to impose a disposition that would involve you being detained away from your family and which would interrupt your education. That is also the recommendation of those who prepared the Pre-Sentence Reports. [Counsel] also referred me to Boulton v R [2014] VSCA 342, [115] and she relied upon the principles therein set out.
In arriving at my decision I am conscious of my obligation to apply those principles where possible in the sentencing process. But I must have regard to the gravity of the offence, the fact that you have pleaded guilty here only after having first run a contested hearing, your character and antecedents and, family circumstances and the impact upon the victim. In my judgment the Youth Supervision Order of 12 months imposed by the Magistrate below was inadequate. In my judgment the seriousness of your offending as a child called for the imposition of a sentence which would mean that you be immediately detained in a Youth Justice Centre. In reaching my decision I am conscious of the well-known principles that must be applied in sentencing children and I have taken into account all of the submissions that have been made on your behalf and all that has been written about you by those who prepared the various Pre-Sentence Reports and the reports attached to them.[27]
[27]Ibid [43]–[46].
Specific error
In grounds 1–5 of the applicant’s ‘Notice of Application for Leave to Appeal Against Sentence’, the applicant alleged a number of specific errors: first, that the judge had erred by impermissibly applying adult sentencing principles that had no relevance when sentencing a child; secondly, that the judge erred in rejecting recommendations contained in pre-sentence reports obtained pursuant to the provisions of the CY&F Act; thirdly, that the judge failed to have regard to principles 5 and 6 referred to in R v Verdins[28] — namely the fact that the existence of a psychological condition could mean that a sentence of detention would weigh more heavily on the applicant (principle 5), and that there was a serious risk of detention having a significant adverse effect on an applicant’s mental health (principle 6); fourthly, that the judge erred in failing to exercise the ‘residual discretion’; and fifthly, that the judge erred when he said that he was satisfied that the applicant did not give any instructions to his counsel in the Children’s Court that he would plead guilty to any charges of rape.[29]
[28](2007) 16 VR 269 (‘Verdins’).
[29]See Reasons [7].
Shortly after the commencement of the hearing before this Court, counsel for the respondent conceded that there was an error in the sentence imposed by the County Court. Counsel who appeared for the Director in the County Court[30] had submitted to the County Court judge that general deterrence was a relevant matter to be taken into account when sentencing the applicant. The judge accepted that submission. Unfortunately, the submission was wrong and contrary to this Court’s decision in CNK. That concession having been made by counsel for the respondent, the central issue for this Court now becomes whether a different sentence should be imposed.[31]
[30]Not counsel who appeared before this Court.
[31]See s 430T(1)(b) of the CY&F Act.
While, as a result of the respondent’s concession, it is now not necessary to engage in any detailed analysis of the applicant’s grounds of appeal that make complaint of specific error, the issues raised in those grounds need to be considered, in varying degrees, in determining whether a different sentence (and if so what sentence) should now be imposed. Specifically, in determining whether any different, and what, sentence should now be imposed, it is necessary to examine:
(a) what, if any, role just punishment plays in the sentencing of a child;
(b) to what (if any) extent a sentencing judge might be bound to accept a recommendation in a presentence report that is required to be obtained by the provisions of the CY&F Act;
(c) the relevance of Verdins principles 5 and 6 to the sentencing of the applicant;
(d) the question of whether, and to what extent, there is any ‘residual discretion’ to dismiss a Director’s appeal from the Children’s Court notwithstanding that a County Court judge might conclude that the sentence imposed in the Children’s Court was inadequate; and
(e) the extent to which any preparedness by the applicant to plead guilty to any charge in the Children’s Court should have moderated (or should now moderate) the applicant’s sentence.
Relevant sentencing considerations
As has been said before, when sentencing a child, rehabilitation is the paramount consideration. The well-known detrimental consequences to an offender and the community are to be avoided if at all possible when imposing a sentence on a person under the age of 18 years. Specifically, general deterrence and denunciation have no role to play in the sentencing synthesis of an offender who offended while under the age of 18 years. However, that is not to say that there will not be cases where the circumstances of the offending and the offender require that a sentence involving detention be imposed upon such a person.
In sentencing a child, the gravity of the offence, the remorse of the offender, whether or not the offender pleaded guilty, the offender’s character and antecedents, and the impact of the offending on the victim are all matters to be taken into account by a court imposing a sentence for offending committed by a person under 18 years of age.[32]
[32]CMK (2011) 32 VR 641, 652 [39]. See further, s 359 of the CY&F Act which deals with victim impact statements.
While it may be accepted that rehabilitation is the paramount consideration in the sentencing of a person under 18 years, just punishment is also a relevant issue. That is not to say that aspects of punishment in the sentencing of a person under 18 years of age assume anything like the significance they might in the sentencing of an adult — only that the issue of punishment must be appropriately factored into the sentencing synthesis along with other relevant matters (including those set out in s 362(1) of the CY&F Act).
A residual discretion
The applicant submitted that in a Director’s appeal from the Children’s Court to the County Court under s 427 of the CY&F Act, there is a ‘residual discretion’ in the County Court to dismiss the appeal even if the County Court considered that the sentence imposed in the Children’s Court was manifestly inadequate. The applicant’s submission was, in effect, that the discretion described as the ‘residual discretion’ that exists in relation to Crown appeals against sentence to this Court (and described in CMB v Attorney-General (NSW)[33]) also exists in relation to a Director’s appeal to the County Court under s 427.
[33](2015) 89 ALJR 407 (‘CMB’).
That submission overstates the true position. In CMB, the High Court reaffirmed the proposition that in a Crown appeal against sentence to the Court of Appeal, in addition to establishing relevant error, the Crown also bore an onus of persuading the Court of Appeal that the Court’s discretion should not be exercised so as to lead to the dismissal of the appeal (the so-called ‘residual discretion’).[34]
[34]See DPP v Zhuang [2015] VSCA 96 [47] (Redlich, Priest and Beach JJA).
However, unlike a Director’s appeal against sentence pursuant to s 287 of the Criminal Procedure Act 2009, on the hearing of a Director’s appeal under s 427 of the CY&F Act, the County Court ‘must set aside the sentence of the Children’s Court’ and ‘may impose any sentence which the [County Court] considers appropriate and which the Children’s Court imposed or could have imposed’.[35] The judge of the County Court hearing an appeal pursuant to s 427 of the CY&F Act must, unlike this Court in an appeal brought under s 287 of the Criminal Procedure Act, decide for himself or herself what sentence is to be imposed.[36]
[35]CY&F Act, s 429.
[36]Cf Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81, 87, where Hunt J (with whom Grove and Allen JJ agreed) said:
The judge of the District Court hearing an appeal pursuant to the Justices Act must decide for himself what penalty is to be imposed, not whether that (or those) imposed by the magistrate was (or were) appropriate. It is not like a sentence appeal to this Court. It is certainly inappropriate for the judge to consider only whether he should either reduce or increase the penalty imposed by the magistrate; it is also inappropriate to consider only whether he should interfere with that penalty. He must in every case proceed to consider for himself in the exercise of his own discretion what penalty should be imposed. That is not to say that he cannot agree with what the magistrate has done, but he may do so only if such penalty imposed by the magistrate accords with his own independent assessment of the circumstances of the case.
That said, to the extent that the applicant’s submissions about a residual discretion encompassed the proposition that a County Court judge hearing an appeal under s 427 of the CY&F Act might determine that an overly lenient sentence given in the Children’s Court, that facilitated and furthered an offender’s rehabilitation, might properly be imposed again by the County Court so as to continue ongoing rehabilitation from the time the matter was dealt with in the Children’s Court to the time of sentence by the County Court judge, that submission may be accepted. It would, in many cases, be a proper exercise of the sentencing discretion in the County Court to determine that the same (or no greater) sentence should be imposed on an appeal to the County Court (even if the original sentence might be thought to be inappropriately lenient), if to do so would continue the furtherance of ongoing rehabilitation in accordance with the provisions of the CY&F Act. Such reasoning, however, does not involve the acceptance of a residual discretion of the kind normally referred to in a Crown appeal to this Court, nor the application of a burden of persuasion on the Director in conformity with the principles discussed in CMB in relation to Crown appeals against sentence to this Court.
Presentence report recommendations
Section 430I of the CY&F Act requires the County Court judge, hearing an appeal from the Children’s Court, to order a pre-sentence report if he or she is considering making a Youth Residential Centre order or a Youth Justice Centre order. Section 573(3) of the Act permits the author of a pre-sentence report to ‘recommend an appropriate sentence for the child who is the subject of the report’. Plainly, the CY&F Act contemplates that a sentencing judge must have regard to, and deal with, any pre-sentence report that is required to be obtained by the provisions of the CY&F Act — including any sentencing recommendation made as permitted by s 573(3).
However, nothing in the CY&F Act requires a sentencing judge to follow blindly any sentencing recommendation in a pre-sentence report. The CY&F Act does not delegate the power of sentencing to the author of a presentence report required to be obtained pursuant to its provisions. That said, the sentencing recommendations made in a pre-sentence report must be given the full weight that they deserve to be given in the overall sentencing synthesis. There will be cases where the recommendation might be shown to be well-founded, upon a detailed understanding of all of the relevant facts and circumstances. In such cases, one would expect a sentencing judge not lightly to depart from a relevant sentencing recommendation. On the other hand, there may be cases where the reasoning in the pre-sentence report discloses that less weight should be given to a sentencing recommendation because of some difference between the facts as understood by the author of the pre-sentence report and the facts as ultimately disclosed to the sentencing court. Each case will depend upon its own facts.
Should a different sentence be imposed in this case?
Error having been established in the present case (specifically, the judge’s consideration of general deterrence as a relevant sentencing factor), the question now becomes whether, taking into account all relevant matters, including evidence of events that have occurred since the sentence was imposed,[37] a different sentence or sentences should now be imposed. Because error was conceded by the Director and because of the need for this Court to determine on up-to-date material whether a different sentence should be imposed, the applicant was permitted to adduce up-to-date evidence from the youth justice case worker who was the author of the 11 June 2015 pre-sentence report, and also from a consulting clinical and forensic psychologist, Mr Jeffrey Cummins, who had examined the applicant on 7 July 2015.
[37]Kentwell v The Queen (2014) 252 CLR 601, 618 [43].
In giving her evidence, the youth justice case worker reiterated a recommendation made in the 11 June 2015 pre-sentence report that consideration be given to placing the applicant on a youth supervision order, with a special condition that he undertake a male adolescent program for positive sexuality (‘MAPPS program’). In the event that the Court ‘considered a custodial sentence’, the youth justice case worker requested that ‘consideration be given to the alternative option to custody being a youth attendance order with a special condition to undertake the MAPPS program’.
As to the MAPPS program, the youth justice case worker said that the psychologist who assessed the applicant recommended that he engage in this program in group sessions. Group sessions are apparently available if the applicant is not in custody. However, only one-on-one sessions are available for the applicant in custody. This was said by the youth justice case worker to be another reason to prefer a non-custodial disposition in the present case. No issue was taken by the respondent with this evidence.
The consulting psychologist, Mr Cummins, after weighing up all of the information he had concerning the applicant, expressed the opinion that the applicant’s risk of reoffending by committing another sexual offence is ‘currently low-moderate’. Mr Cummins went on to say that this risk would likely be reduced if the applicant ‘participated in and actively benefited from offence specific treatment such as that available through the MAPPS program’. Having expressed this opinion, Mr Cummins then said:
Based upon my assessment of [the applicant], he is having significant difficulty coping with being detained in YJC and he does present as being at least moderately depressed and in my opinion it is very probable the longer time he spends in YJC, the more depressed and despondent he will become. Further, it was apparent from his comments at interview he is of the opinion he is having additional difficulty coping in YJC because he had already been on a rehabilitative path whilst on a deferral of sentence. In my opinion, it is therefore reasonable to conclude that for this reason it will be more onerous for him to spend further time in YJC than for someone who had not undergone successful rehabilitation whilst on a deferral of sentence.
Mr Cummins’ opinion, which was not before the County Court judge, provides a basis for moderating, in accordance with principles 5 and 6 in Verdins, the applicant’s sentence.
The question of the applicant’s remorse is more problematic. The applicant contested all of the charges against him in the Children’s Court. However, the following points may be made:
(f) first, the applicant faced 26 charges in the Children’s Court, 19 of which he was acquitted at first instance;
(g) secondly, the applicant did not contest his convictions for the 7 charges the subject of this application on the Director’s appeal to the County Court. Rather, the applicant chose to accept responsibility for those crimes by pleading guilty on that appeal; and
(h) thirdly, the County Court judge was wrong to state[38] that the applicant did not give any instructions to his counsel in the Children’s Court that he would plead guilty to any charges of rape. It was agreed between the parties (both in the County Court and before this Court) that the applicant instructed his counsel before the commencement of the hearing in the Children’s Court that he was prepared to plead guilty to two rolled up charges of rape in relation to what occurred in the alcove.
[38]Reasons [7].
The applicant submitted that the individual sentences and the orders for cumulation imposed in the County Court were manifestly excessive having regard to, amongst other things, the primacy of rehabilitation as the fundamental principle governing the sentencing of children; the applicant’s mental health; the applicant’s vulnerability within a custodial environment; the contents and recommendations of the pre-sentence reports; and the principle of totality, either considered alone or when considered with the cumulation of three months of the sentences on each of charges 13 and 26 upon the base sentence. In my view, this submission must be rejected. Notwithstanding the primacy of rehabilitation and all of the matters relied upon by the applicant, in my view, it cannot be said that the sentences and orders imposed by the County Court judge leading to a total effective sentence of two years’ detention in a Youth Justice Centre, for this offending, committed as it was by a 17 year old, was wholly outside the range of permissible sentences open in this case. That, of course, does not resolve the present application. The question remains whether a different sentence or sentences and orders should now be imposed having regard to all of the circumstances of the offending and the applicant.
The objective seriousness of the applicant’s offending was, on any view, high. The offending was protracted and involved repetition in the face of the victim’s cries and pleas for the applicant to cease. The offending involved force and gave rise to both internal and external injuries, with a significant amount of blood loss from the victim’s internal injuries. The devastating effects of the applicant’s offending is documented in the victim impact statements of the 15 year old victim and her parents.
In my view, no different sentences or orders than those imposed in the County Court should now be imposed. Giving full effect to the primacy of rehabilitation and the obligation to impose a sentence that ‘as far as practicable’ has regard to each of the matters set out in s 362(1) of the CY&F Act, I am unable to conclude that some different sentence or sentences should now be imposed. Having regard to the objective seriousness of this offending and its consequences, and notwithstanding all of the mitigatory and other matters to which I have referred, I have concluded that it is, with respect to those who take a different view, not appropriate to impose any of the sentences referred to in paragraphs (a)–(i) of s 360(1) of the CY&F Act or any different sentence or sentences from those imposed in the County Court.
Conclusion
In my view, the appeal should be dismissed.
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