SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v JAJ [2003] QCA 554 PARTIES: R v JAJ (applicant) FILE NO/S: CA No 321 of 2003 DC No 249 of 2003 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Sentence Application District Court at Townsville DELIVERED ON: 12 December 2003 DELIVERED AT: Brisbane HEARING DATE: 28 November 2003 JUDGES: ORDERS: McMurdo P, Chesterman and Mullins JJ Separate reasons for judgment of each member of the Court, McMurdo P and Mullins J concurring as to the orders made, Chesterman J dissenting 1. Amend the indictment in this matter presented in the District Court at Townsville on 22 April 2003 by adding the words "JAJ" before the word "raped" 2. Grant the application for leave to appeal against sentence 3. Allow the appeal and instead of four years detention, substitute a sentence of three years detention 4. Otherwise confirm the sentence imposed at first instance CATCHWORDS: CRIMINAL LAW JUDGMENT AND PUNISHMENT SENTENCE JUVENILE OFFENDERS OTHER MATTERS where applicant pleaded guilty to rape and sentenced to four years detention to be released after serving 50 per cent of that time whether special and unusual circumstances of applicant support sentence of three years detention whether sentence manifestly excessive Juvenile Justice Act 1992 (Qld), s 209, Sch 1 R v A [2001] QCA 542; CA No 275 of 2001, 28 November 2001, distinguished R v C [1996] QCA 014; CA No 436 of 1995, 13 February

2 2 COUNSEL: SOLICITORS: 1996, distinguished R v E; ex parte Attorney-General (Qld) [2002] QCA 417; CA Nos 214 and 217 of 2002, 19 September 2002, distinguished R v S [2003] QCA 107; CA No 45 of 2002, 13 March 2003, distinguished R v Watkins [2001] QCA 014; CA No 63 of 2001, 6 June 2001, considered A Moynihan for the applicant M J Copley for the respondent Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent [1] McMURDO P: The applicant, who was sentenced under the Juvenile Justice Act 1992 (Qld) ("the Act"), pleaded guilty on 22 April 2003 to one count of raping his three and a half year old step-brother. Pre-sentence reports were ordered and the applicant was released on bail until his sentence on 5 September 2003 when a conviction was recorded and he was sentenced to four years detention to be released after serving 50 per cent of that time. An order was also made that on his release he was to report his name and address to the officer in charge of the Townsville Police Station and for a period of five years he was to report any changes to his name and address within 48 hours to the nearest police station. The applicant contends the sentence was manifestly excessive in all the circumstances. [2] The applicant was 16 years old at the time of the offence and 17 years old at sentence. He had no relevant criminal history although he had been reprimanded for unlawfully climbing a building on 12 March He has been on bail continuously and has not re-offended. [3] The offence occurred on 16 December The three year old complainant child resided with his grandmother who had full custody of him. The applicant was also residing with the complainant's grandmother, who was the applicant's de facto adoptive mother; the complainant referred to the applicant as his brother, although there was no blood relationship. The applicant was left, against his wishes, to babysit the complainant child as he had done on many occasions. The applicant's mother said that she had often left the child with him and he had always been trustworthy. When the applicant's mother returned from her outing the applicant ran to her and said, "I'm telling you something before anything. [The child] hurt his bum." The toddler was then asleep on a chair. His bottom was bruised, swollen and very red; there was dry blood on his anus which was torn in two places and blood on his underwear. [4] The next morning the applicant's mother asked the applicant for the truth. He said, "I did it, but I only put a finger in." She said, "A finger would not do that much damage so stop lying to me and tell me the truth." The applicant replied, "Yes, I put my penis in." He said he could not remember what happened and blacked out. She told him he could not continue to live in the household; she would report the incident and make arrangements for him to live with his father, her former partner who was the applicant's de facto adoptive father but, again, not a blood relation.

3 3 [5] On 19 December 2002, the child was examined by a Government Medical Officer who noted that the anus was widely dilated with evidence of trauma and areas of erythema surrounding the anus; there was a significant posterior laceration of the anus and anal mucosa could be seen through the dilated anus. [6] That day, police interviewed the complainant who said that the applicant "stick his willy in my bum". Police asked him why the applicant did that and the child said, "He was being naughty." Thankfully, the child did not become too distressed when answering police questions and, like any three and a half year old, was more interested in actively playing with toys. [7] Police later conducted an interview with the applicant in which he made full admissions. He said he was babysitting the complainant who had been eating chocolate. It seems the child became grubby and he undressed him and put him in the shower. The child walked naked from the shower into the lounge room. They went into the applicant's bedroom to dress him. The complainant lay on his stomach watching TV and the applicant inserted his erect penis "really hard" into the child's anus; he was angry for having to do all the housework that day. The child cried. The applicant dressed him. The child continued to cry until he fell asleep. When asked if he realised that he had hurt the child, the applicant said he thought the child was crying because the applicant had done something wrong. [8] The applicant's mother prepared a victim impact statement. She said that the child was in pain whenever he tried to pass a bowel motion for days afterwards and has had nightmares, initially every night but, by the time of sentence, less frequently. The complainant misses his big brother. She said that she wanted "the [applicant] to realise how wrong this was, how serious this is and for him to get help". [9] The prosecution at sentence recognised that the applicant had entered an early plea of guilty and cooperated with the authorities by full admissions, but despite the applicant's lack of serious criminal history, requested a salutary deterrent penalty because of the breach of family trust, the vulnerability and age of the complainant and contended that a detention order of between four to six years was required. [10] Defence counsel at sentence contended that the special and unusual circumstances of this case as outlined in the reports prepared for the court supported a sentence of three years probation with appropriate conditions. The pre-sentence report [11] The pre-sentence report prepared by the Townsville/Thuringowa Youth Justice Service established that the applicant had a disjointed and dysfunctional home environment. As already noted, he regarded the grandmother of the complainant as his mother and only recently became aware of the identity of his biological mother, who, as a young troubled girl, was looked after by his adoptive mother. The applicant grew up believing his adoptive mother and her then partner were his parents and in a household of five considerably older step-siblings, children from a prior relationship of the complainant's grandmother, together with his own biological sister. The complainant is the child of one of the applicant's step-sisters. The applicant's mother and her partner, his adoptive father, separated permanently about two years ago. The applicant at sentence resided with his adoptive father who has a new partner; they are very supportive of the applicant, who looks on them as his parents.

4 4 [12] Since being charged with the offence, the applicant has had no contact with the complainant, the complainant's grandmother or any others in that household and has not re-offended. [13] The applicant has been shifted between extended families and households about 24 times in the past seven years. There have been many incidents where the applicant was severely bullied by his older step-siblings and treated as a second-class visitor in the home. He was subjected to unrelenting verbal and emotional abuse, bullying and taunting, often in public and in front of school friends. He was forced to clean the house for lengthy periods and was not permitted to live the same lifestyle as his older step-siblings. He was brutally beaten on occasions. The applicant was diagnosed with ADHD and received medication; for a period he received excessive doses of medication which left him heavily sedated. Because of his learning problems, he did not do well at school where he became easily frustrated and alienated. This compounded his poor sense of self, arising from his unsatisfactory home situation. [14] The applicant resided with his step-brother, K, for six months and was subjected to sexually explicit and provocative incidents, including an occasion when the applicant was himself anally raped when he was too intoxicated to fend off his attacker and perhaps other acts of homosexual exploitation. [15] The applicant's feelings of anger and resentment arising from his unfortunate background continued to be expressed at the time of the compilation of the report through bed-wetting and recluse-type behaviour. [16] At the time the report was compiled, the applicant was attending TAFE fulltime and addressing his learning deficits in the areas of numeracy and literacy. [17] The applicant expressed remorse for the offence and was concerned that he may have scarred the complainant for life. The writers of the report were uncertain whether the applicant fully comprehended the long-term implications of this remark but they accepted there was a level of remorse for the pain and suffering he has caused his step-brother. He also expressed anger at having to do so much housework in his former household and concern that he may re-offend. The applicant said he genuinely loved his younger step-brother and enjoyed their time together. Although he had some concept of the seriousness of his behaviour, the writers of the report expressed doubt whether he adequately appreciated the gravity of the offence but thought his comment: "I think I might need help, so I don't hurt anyone else" showed some insight. [18] In discussing sentencing options, the writers of the report noted that the applicant had agreed to participate in a youth justice conference should one be ordered; that a probation order with special conditions that the applicant attend the Griffith Adolescent Forensic Assessment & Treatment Centre or like program to address his sexual offending behaviour was open; that a community service order of up to 200 hours would assist to reinforce the seriousness of the offence and provide an action/consequence approach when combined with a probation period; that an alternative to a period of actual detention would be a conditional release order, but as this could only be for up to 12 months, it would be preferable to combine this with an additional probation period under s 180 of the Act. The writers noted that whilst detention:

5 5 " may operate as a punitive measure and incapacitate [the applicant] for the protection of the community, [it] would not necessarily be of optimal benefit in terms of [the applicant's] rehabilitation. [He] has not previously spent any time in custody and it is questionable whether a period of detention on its own would necessarily be of any benefit." The writers nevertheless recognised the need for a deterrent sentence with consequences for the offender for a serious offence of this type. The psychological report [19] A psychological report was prepared by Mr Ian Nisbet from the Griffith Adolescent Forensic Assessment & Treatment Centre. Mr Nisbet observed that childhood abuse, insecure family attachments, substances abuse, school suspensions and previous involvement with the police featured in the applicant's case history. Tests were administered which showed that the applicant has learned to deal with negative emotions by internalising them as depression or pessimism rather than by externalising them in violent or destructive behaviour. There are no indications of severe anti-social personality traits and his relationship with his father is an area of relative strength. Anger at being left to babysit his young step-brother was the motivation for the offence. He saw himself as 60 per cent and his mother and her current partner as 40 per cent responsible because they left him to mind the child even though they knew he did not want to. Tests suggest that the applicant is at a moderate risk of engaging in further sexually abusive behaviour but that he is likely to benefit from offence-specific intervention and counselling, which has been shown to decrease recidivism in adolescents who have committed sexual offences. Unsupervised access to young children is likely to increase his risk of re-offending but completion of a program focussed on the development of a relapse prevention plan and the strengthening of his relationship with his father is likely to decrease his risk of reoffending. This intervention would be maximised in the context of a structured and supervised case plan, overseen by the Department of Families. The applicant has indicated his willingness to participate in such a program. The sentencing principles under the Act [20] The maximum penalty for this offence under the Act is ten years imprisonment. Section 208 of the Act requires that a detention order may be made against a child only if the court, after considering all other available sentences and taking into account the desirability of not holding a child in detention, is satisfied that no other sentence is appropriate in the circumstances. One of the Charters of Juvenile Justice Principles is that "a child should be detained in custody for an offence, whether on arrest or sentence only as a last resort and for the least time that is justified in the circumstances". 1 This must be read in the context of the other principles also relevant to this case. These include that the community should be protected from offences; 2 that a decision affecting a child should, if practicable be made and implemented within a time frame appropriate to the child's sense of time; 3 and that the child's age and maturity are appropriate considerations The Act, Schedule 1 Charter of Juvenile Justice Principles, 17. Above, 1. Above, 11. Above, 12.

6 6 The learned sentencing judge's approach [21] In his careful and detailed sentencing remarks, the learned primary judge did not expressly state that he had considered all other available sentences and was satisfied that no sentence other than detention was appropriate in the circumstances; nor did his Honour specifically state his reasons for making the detention order, 5 although the serious circumstances of the offence plainly left no other option. In fixing the period of four years detention, his Honour did not specifically advert to the fact that this period of detention was for the least time that could be justified in the circumstances. [22] The applicant's contention that the sentence is manifestly excessive turns on the submission that four years detention was not the least period of detention justified in the circumstances. This requires a consideration of comparable cases. The comparable cases [23] In R v A, 6 the Attorney-General appealed against a sentence of 12 months detention to be served by way of an immediate release order imposed on a 17 year old Cairns indigenous youth who, like this applicant, was 16 years and 8 months at the time of his offending. A raped his frail and nearly blind 52 year old grandmother who was sleeping on a mattress on the floor. He muffled her screams with a pillow and punched her in the face through the pillow causing her mouth to bleed. He was detained shortly afterwards by police. He had been drinking and declined to be interviewed. The complainant suffered bruises and scratches to her lips, wrists and vagina and was traumatised and shamed by the offence. A had no previous criminal history, was sorry for his actions and pleaded guilty at an early stage. After A was charged with rape he was placed on a conditional bail program which he breached by re-offending. He was placed on bail a second time and again breached his conditions of bail and so was remanded in custody. He was sentenced to a three month immediate release order program and breached this program by smoking marijuana. He was warned but persistently failed to attend for the further requirements of his program and breach action followed. The court determined that a penalty of no less than four years detention was warranted and the circumstances of the plea of guilty and the completion of one month of the immediate release order program warranted reduction of the period actually to be served to 50 per cent, observing that the community's strong denunciation of such crimes of violence and the need to impose an appropriate deterrent penalty and community protection were relevant considerations. [24] An important distinguishing feature is that A's subsequent offending, although not apparently serious in itself, did not suggest that his prospects of rehabilitation were as promising as those of this applicant. [25] In R v E; ex parte Attorney-General (Qld), 7 E pleaded guilty to two counts of rape, four counts of attempted rape and one of torture. He was sentenced to an effective term of two years detention and the Attorney-General appealed, contending that this sentence was manifestly inadequate. E committed the offences over a five day period upon a 30 year old woman suffering from cerebral palsy. He was 16 years and 4 months at the time and 17 and a half at sentence. During the course of the offences, E burned the complainant with cigarettes on her left leg, inner thigh and See s 209 of the Act. [2001] QCA 542; CA No 275 of 2001, 28 November [2002] QCA 417; CA No 214 and 217 of 2002, 19 September 2002.

7 7 vagina, took away her wheelchair and hid it for some days, and terrorised her with a butcher's knife, demanding that she kill herself, threatening to kill her, and cutting her left palm and one toe. The offences of rape involved the placing of his penis in her mouth and his fingers in her vagina. E showed little remorse or insight into the gravity of his conduct. He had a dysfunctional background. The pre-sentence and psychological reports indicated that he minimised his criminal activity; had a lack of awareness of the significance of his behaviour and was at medium risk of sexually re-offending with an ongoing need for supervision and offence-specific therapy to address his offending behaviour. He had no prior criminal history but had been a significant user of illicit drugs. This Court determined that the sentence imposed failed to reflect the gravity of the multiple offending and that juveniles have received sentences in the range of three to five years detention for a single episode of rape without gratuitous violence, referring only to R v A. The appeal was allowed and an effective sentence of four years detention was substituted, with an order that E be released after serving 50 per cent of that term. [26] It is difficult to compare one dreadful case with another to determine which is worse, but E is perhaps even more serious than this case in that it involved a number of offences committed over a period of five days and demonstrated a continuous course of cruelty towards the victim, rather than the single episode here. Nor did E's personal circumstances seem as peculiar and his rehabilitative prospects as encouraging as this applicant's. [27] The applicant in R v Watkins 8 appealed against his sentence of five and a half years imprisonment imposed for a rape committed by him when he was 15. Although he was sentenced as an adult, s 107B of the Act required the sentencing court to have regard to the fact that he was a child when the offence was committed and limited any imprisonment to the period that could have been imposed had he been sentenced as a child, namely 10 years imprisonment. Watkins did not have the mitigating factor of an early plea of guilty and cooperation with the authorities, having been convicted after a trial. The complainant was a 27 year old intellectually impaired woman suffering from Downs Syndrome and had a vulnerable personality. Whilst she had been able to live independently but with supervision prior to the offence and had some employment, her loss of confidence as a result of the offence meant that she had lost her employment and her style of independent living. Watkins had no prior criminal history and had committed no further offences and was therefore thought to have promising prospects of rehabilitation. The sentence was reduced to three and a half years imprisonment. [28] In R v C 9 the applicant applied for leave to appeal against his sentence of detention for four years with an order that he be released after serving 50 per cent of that period for the offence of rape. He, too, was 16 at the time of the offence and 17 at sentence. He and a 17 year old co-offender indecently assaulted, raped and attempted to rape the 16 year old complainant who, until then was a virgin. His cooffender was sentenced as an adult to an effective term of four years imprisonment with a recommendation for parole after 18 months. All concerned were extremely intoxicated and the applicant and his co-offender took advantage of the complainant. The offenders removed her clothing, touched her vagina, inserted their fingers and the applicant attempted to place his penis in her mouth. They 8 9 [2001] QCA 250; CA No 63 of 2001, 6 June [1996] QCA 014; CA No 436 of 1995, 13 February 1996.

8 8 forced her legs apart and the co-offender attempted to place his penis in her vagina but was unable to do so. With his co-offender's assistance, the applicant partially inserted his penis but did not effect full penetration. The victim felt anger and frustration at her powerlessness. Her relationship with her father deteriorated, she developed a distrust of males and left school in the middle of Year 12. The applicant was remorseful, pleaded guilty at an early stage and offered to give evidence against his co-offender. Reports tendered at sentence showed the applicant had an IQ of only 78, came from a broken family in which one brother had committed suicide, and he was immature and impulsive with an alcohol abuse problem and a marijuana habit which he could not afford. He had never before been in trouble at school or at home and his parents offered a fair level of support. He had complied with his bail conditions for a period of about 18 months. This Court concluded that the seriousness of the offence required nothing less than a period of actual detention but issues of parity required a lower head sentence for the child than the adult because the child could not be released from detention earlier than after having served 50 per cent of the sentence. The court effectively determined that the shortest appropriate period of imprisonment for the applicant was three years and reduced the sentence accordingly, without interfering with the order for release after serving 50 per cent of that sentence. [29] The offence in C, though, of course, most concerning, was not as serious as the offence here. [30] The applicant in R v S 10 unsuccessfully applied for leave to appeal against an effective sentence of four years detention to be served cumulatively upon a 12 month period of detention for property offences. There was no recommendation for early release. He pleaded guilty to six counts of rape, a large number of property offences and was dealt with for breach of probation. The total property damaged or unreturned was $8,075 and one of the property offences was committed whilst the applicant was on a six month probation order and two good behaviour bonds. The offence of rape was committed upon his 16 year old physically disabled cousin who suffered from cerebral palsy. She was just 4 feet 9 inches tall and weighed 45 kilograms whilst he was a strapping young boy and fairly large for his age. The offences were committed over an extended period. He was 14 at the time of the offences and 15 at sentence and had an extensive previous criminal history for property offences and for robbery with personal violence. He was released on conditional bail program but performed poorly and re-offended. The reports tendered at sentence indicated that he was manipulative, self-centred and used bullying behaviour to achieve his goals. He associated with known juvenile and adult offenders and his behaviour was negatively affected by marijuana and alcohol abuse. This Court determined that the sentence imposed was appropriate because of the large number and seriousness of the offending when the applicant, though young, had no immediately promising prospects of rehabilitation. [31] S's multiple offending and re-offending was more serious than this applicant's. S was younger than this applicant but had no promising prospects of rehabilitation. Conclusion [32] There can be no doubt that this was a most serious offence: it was a shocking breach of trust by a 16 year old committed upon his completely innocent three and a half 10 [2003] QCA 107; CA No 45 of 2002, 13 March 2003.

9 9 year old step-brother. It is impossible to know at this time the long-term consequences of it upon the complainant. The seriousness of the offence warranted a salutary deterrent sentence and no sentence other than a period of detention was appropriate in the circumstances. 11 The Act also requires that a child be detained in custody when sentenced for an offence for the least time that is justified in the circumstances. 12 [33] The reports placed before the sentencing court suggest there are encouraging prospects of rehabilitation now that the applicant has new parent figures in his life, a suitable residential placement available when released from detention, and will receive appropriate offence-specific treatment and counselling. He cooperated with the administration of justice and pleaded guilty at an early stage. He has expressed remorse and has some insight into the seriousness of his conduct commensurate with his immaturity and considering his extremely unsatisfactory background. He has no relevant previous criminal history and has not re-offended during the period he was on bail. Whilst his actions can never be condoned, the Act requires this Court to consider them in the context of his immaturity and unfortunate background; he was himself subjected as a juvenile to prolonged physical, sexual and emotional abuse and this has been a factor contributing to his own serious offending. Even in the context of the many reports setting out dysfunctional backgrounds of offenders constantly placed before this court, the applicant's background is startling and remarkable in the extent and degree of dysfunctionality. This has resulted in feelings of anger and resentment which he expresses through continual reactive bed-wetting and reclusive-type behaviour. These facts, viewed in the light of the cases to which I have referred, demonstrate that the least sentence of detention was three years, rather than the four ordered by the primary judge. I would not interfere with the remaining orders, including the order that the applicant be released after serving 50 per cent of his detention. This sentence appropriately recognises the mitigating factors, including the applicant's youth, cooperation with the administration of justice, his promising prospects of rehabilitation and the desirability, both for him and the community, that he be supervised after his release from detention for a lengthy period. The reporting order provides additional community protection. [34] I would grant the application for leave to appeal against sentence, allow the appeal and instead of four years detention substitute a sentence of three years detention. I would otherwise confirm the sentence imposed at first instance. [35] Although the applicant was correctly arraigned, the respondent has brought to the Court's attention a typographical error in the indictment which he asks the Court to amend by adding the applicant's name before the word "raped". The applicant does not object to this course. Orders: 1. Amend the indictment in this matter presented in the District Court at Townsville on 22 April 2003 by adding the words "JAJ" before the word "raped". 2. Grant the application for leave to appeal against sentence See s 208 of the Act and Schedule 1 of the Act, Charter of Juvenile Justice Principles, 17. Above.

10 10 3. Allow the appeal and instead of four years detention, substitute a sentence of three years detention. 4. Otherwise confirm the sentence imposed at first instance. [36] CHESTERMAN J: The circumstances of the crime committed by the applicant are fully set out in the reasons for judgment of the President. The offence involved a very serious act of buggery by a 16 year old on a three year old boy who regarded him as a brother and looked to him for protection. Despite his unsatisfactory family life, which the President has described, the applicant knew his act was criminal but nevertheless performed it to give vent to his feelings of anger and frustration at being made responsible for the child s welfare for the evening. [37] Clause 1 of the Charter of Juvenile Justice Principles found in Schedule 1 to the Juvenile Justice Act 1992 (Qld) ( the Act ) provides that: The community should be protected from offences. It is a later Clause, 17, which requires that a child should be detained in custody only as a last resort and for the least time justified in the circumstances. [38] Section 150 of the Act provides, unremarkably, that when sentencing a child the court must have regard inter alia to: The nature and seriousness of the offence The fitting proportion between the sentence and the offence Section 150(2)(e) repeats the requirement found in Clause 17 of the schedule. [39] There is no doubt that given the serious nature of the offence and the age of the applicant that a substantial period of detention was the only appropriate sentence. The maximum period for which the applicant could have been detained was 10 years, 70 per cent of which would be spent in actual confinement. The learned sentencing judge imposed a penalty of four years detention with an order, pursuant to s 227(2) of the Act, that he be released after serving only 50 per cent of that time. In my opinion this is barely adequate for the serious sexual defilement of the three year old boy and represents the shortest appropriate period of detention. [40] In R v A; ex parte Attorney-General [2001] QCA 542 the Chief Justice (with whom the President and Williams JA agreed) said: the respondent in this case should, in my view, have been sentenced to a penalty of the order of no less than four years detention. The sentence imposed was intolerably lenient and cries out for correction. The learned judge unfortunately allowed herself to be overwhelmed by circumstances personal to the respondent. The sentence imposed ignored, first, the need to signal the community s strong denunciation of crimes of violence involving in this case the violation of a woman s body, none other than the offender s grandmother; second, the need to impose a penalty appropriately deterring the commission of this sort of crime in whatever community the offender be situated; and third, the primacy of the need to protect the personal security of other people

11 11 Note the reference to of the order of no less than four years detention. [41] In R v E; ex parte Attorney-General [2002] QCA 417, which is also analysed in the President s reasons, Jerrard JA said: courts sentencing juvenile offenders are instructed by both the statutory commands in the Juvenile Justice Act, and the shared wisdom of other experienced judges, to have as a principal object the rehabilitation if possible of the juvenile offender while the offender is still a juvenile. Nevertheless, courts are not to overlook the fact that the protection of members of the community from the infliction of harm can be achieved not only by the means of the rehabilitation of the individual causing that harm in the past, but also by sentences having a generally deterrent effect in the community. Williams JA said: There are a number of cases where juveniles have received sentences in the range of three to five years detention for a single episode of rape without any gratuitous violence being involved. [42] The youthfulness of an offender and his prospects of rehabilitation are obviously most germane to the exercise of a sentencing discretion but it is, I think, a mistake to concentrate too greatly on the personal circumstances of the offender, which will often be unfortunate, and not pay sufficient regard to the protection of the community which is affected by the imposition of appropriate punishments. It is desirable to indicate to youths who might be inclined to satisfy their sexual appetites on young children that such activity will result in substantial loss of personal liberty. This is the first principle of juvenile justice, just as it is in the case of adults. [43] Although there are encouraging signs that the applicant may have escaped the more harmful social and psychological influences of his childhood and adolescence one must remain cautious about his prospects of rehabilitation. It is to be noted that the applicant is to report, pursuant to s 19 of the Criminal Law Amendment Act, for a period of five years after his release from detention so that the authorities may keep his behaviour under review. This order is not to be disturbed and indicates a concern that the applicant has shown a tendency to commit further sexual assaults. There is more chance that the applicant would curb that tendency if he appreciated that such conduct will result in substantial punishment. A lenient sentence may encourage him to think that the risks associated with re-offending are not high. [44] According to the psychologist s report the applicant: identified anger as being a direct precipitant to the offence, saying that he was really pissed off at being left to baby-sit his young nephew (sic) When asked why he had chosen this victim, he replied that he was the only one around at the time (and he) had to take (his) anger out on something. He did, however, endorse statements suggesting that he may condone sexually coercive behaviour. (The applicant s) scores suggest that he may be considered a moderate risk of engaging in further sexually abusive behaviour While (the applicant) has admitted to the offence, he is yet to accept full responsibility for it and there is evidence to suggest that he may harbour attitudes that are supportive of coercive sexual practices Unsupervised access to young children is likely to

12 12 increase his risk of re-offending, while completion of a program of offence specific counselling on the strengthening of his relationship with his father is likely to decrease his risk of reoffending. [45] In my opinion it cannot be said that a period of four years detention, only two years of which will actually be served before he is released, is manifestly excessive punishment for a sodomitical attack on a small boy which left him with serious injury. Any lesser sentence would not protect the community and would not deter the applicant (or other like-minded youths) from engaging in such conduct. The requirement that a period of detention be for the shortest appropriate period calls attention to these considerations. [46] There can be no doubt that the learned sentencing judge had regard to what this court said was the appropriate range of the duration of detention for crimes of this type. Uncertainty and inconsistency will follow if those decisions are not respected. [47] I would refuse the application. [48] MULLINS J: The issue on this application was whether the sentence imposed by the learned sentencing judge was manifestly excessive. [49] The horrific nature of the offence meant that detention was the only appropriate sentencing option. [50] Without taking into account the factors personal to the applicant, the comparable cases for the offence of rape committed by a 15 or 16 year old which are analysed by the President support a period of detention for this offence of between 3 and 4 years. [51] The personal factors in the applicant s favour include his prospects for rehabilitation (despite his dysfunctional background), his lack of relevant criminal history and his cooperation with authorities in relation to the investigation and the prosecution of the offence. [52] I agree with the reasons of the President that, taking into account all relevant sentencing considerations applicable to the applicant s offending, detention for a period of 4 years could not be described as the shortest appropriate period of detention. See s 150(2)(e) of the Juvenile Justice Act 1992 (Qld). The sentence that was imposed was manifestly excessive and the period of detention which should have been imposed was 3 years. [53] I therefore agree with the orders proposed by the President.