R v Am [1996] ACTSC 92 (30 August 1996)

SUPREME COURT OF THE ACT

THE QUEEN v. AM
No. SCC62 of 1996
Number of pages - 10
Criminal law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal law - sentence - juvenile offender - inflicting actual bodily harm with intent to engage in sexual intercourse - factors to which the court must have regard when sentencing juveniles - relevant weight to be afforded to deterrence, retribution and rehabilitation.

Children's Services Act 1986 (ACT), ss5, 47, 63, 68

R v Boudelah [1991] FCA 124; (1991) 100 ALR 93

Hill (1982) 6 A Crim R 202
R v Davis and Dinah (1989) Butterworths Unreported Judgments BC

8900952
Piggott v R (1994) ACL Rep 130 Tas 42

HEARING

CANBERRA, 23 August 1996
30:8:1996

Counsel for the Prosecution: Mr S Madden

Instructing solicitors: Director of Public Prosecutions (ACT)

Counsel for the Accused: Mr R Livingston

Instructing solicitors: Sutherland and Tiirikainen

ORDER

1. On the charge of inflicting actual bodily harm with intent
to engage in sexual intercourse, a conviction be recorded and a
sentence of 12 months detention at Quamby Youth Centre be set.

2. The sentence is to commence from 31 May 1996.

3. It is noted that under s68 of the Children's Services Act
the Director has power to enable the offender to complete his
education at the school he presently attends, and this is
recommended by the Court.

DECISION

HIGGINS J On Thursday, 19 October 1995, at about 6.30pm, the offender, AM committed an offence of assault occasioning actual bodily harm with intent to engage in sexual intercourse.

2. The facts relied upon by the prosecution and admitted by the offender were as follows,

On 31 May 1996 AM was, on his plea of guilty, committed, from
the Children's Court, by Magistrate Ward, to the Supreme Court
for sentence on a charge of assault occasioning actual bodily
harm with intent to engage in sexual intercourse.

On Thursday, 19 October 1995, at about 6:30pm, AM was
rollerblading outside his residence, an apartment block on the
corner of Jardine and Giles Streets in Kingston in the ACT.

MT, who was returning home from work, alighted from the bus at
the Kingston shops on Giles Street. She went to the supermarket
and from there walked through an arcade and onto Jardine Street,
from there onto Eyre Street and then onto Howitt Street which
gave access to her apartment. She then walked down a ten metre
walkway between apartment blocks. As she reached a gate at the
end of that walkway, she became aware of a male youth who was
not known to her but was ultimately identified as AM. He was
wearing a grey school uniform and was behind her, rollerblading
up and down on Howitt Street on the footpath nearest her
apartment. She crossed the car park at the end of the walkway
and walked into the foyer of her block of apartments, closing
the door behind her. She then noticed the same male youth
rollerblading in the car park which she had just traversed. She
saw that he was looking at her.

About five minutes after she entered her apartment AM came to
her door and said with some sense of urgency:
"You've got to help me outside for a minute."
He said:
"My brother and I were rollerblading and he injured himself."

MT accompanied AM with the intention of assisting his brother.
As they reached Howitt Street, AM said:
"This is where he was"
and pointed towards the footpath in front of them.
He said:
"He must have gotten up. I don't know where he has gone."

MT suggested that he go home and see if his brother was there.
She then went around to the main entrance of her apartment
building and collected the mail. As she returned to her
apartment building and entered the foyer she heard someone
behind her. She turned and saw the same male youth, AM, behind
her in the foyer. She said:
"Have you found your brother?"

He replied "No, can I use your phone to try and call him?". She
agreed, unlocked the front door and walked inside. AM followed
her inside, went to the phone and pressed some numbers. After
about 20 seconds he hung up the phone. There was some further
conversation. MT suggested that he go home and look for his
brother. She began walking towards the front door. AM then
grabbed her from behind around the chest and upper arms with
both his arms. MT felt his face on the left side of her neck and
she tried to push him off. She said
"Get off me."

He forced her to the ground so that she fell on her lower back.
As she fell to the ground she began to scream. He knelt down to
the left of her with his left knee against her left hip he
started grabbing at her clothes and body with both hands. She
kept screaming and trying to push him away. He put his right
hand around her throat very tightly. As she continued to fight
him, his hand progressively became tighter and tighter around
her neck until she could hardly breath. He bit her left nipple
through her clothing, grabbed at her torso, at her breasts in
particular saying:
"You're so fucking beautiful."
He said:
"Have sex with me, you've got to have sex with me. If you
don't have sex with me I'm going to die."

He pulled her skirt up and pulled at her underpants with an
upward motion. As he was pulling at her underwear, he said:
"Yeah, that's what I want, yeah, wow, that's what I want,
oh wow, oh wow."

He put one hand underneath her underwear and touched her on the
outside of her vagina. As he pulled at her underwear he let go
of her throat. When this happened she tried to sit up. As she
did this, he punched the right side of her head with his left
closed fist. He then pushed her head back down onto the floor.
He started to punch her more around her head with a closed fist.
She tried to get up and he punched her around her back and right
rib area. She managed to roll over onto her stomach but he
continued punching her while he held her head by her hair with
his other hand. MT continued to scream.

At this time LC, MT's boyfriend, arrived outside, saw what was
happening, and ran for the rear sliding door, which was locked.
He kicked the door about four times and bent the frame enough to
squeeze through. When he got inside he saw that the young person
still had hold of MT from behind. AM then pushed MT to the
ground and started to run toward the front door of the flat. LC
gave chase. AM ran out the front door and pulled the door to. LC
caught the door before it closed. He chased the young person
into the foyer and around the corner towards the carports of the
apartments. AM ran through the carports and through the gate
into the area between the blocks of flats. He tried to close the
gate on LC who blocked the gate from closing and pursued AM into
the area between the flats where AM stopped. AM said:
"I'm really sorry, I'm really sorry, it's not my fault. Some
guy paid me 150 bucks to do it."

3. I have also received into evidence a statement from the victim, MT.

4. Whilst the physical injuries she sustained in the course of the attack were transient in their effect, the emotional and mental harm is both serious and far from yet resolved.

5. The victim is also upset by the realisation, however it was conveyed to her, that as a juvenile, the offender is likely to receive less severe punishment than if he had been an adult.

6. From her perspective, it obviously would not, and did not, make any difference to her distress that her attacker was a juvenile.

7. The same issue was raised, though from a different perspective, by the learned committing Magistrate, Mr Ward.

8. His Worship, in my view, quite correctly characterised the offence, which carries a maximum penalty of 14 years imprisonment, as "a particularly brutal one".

9. The offender clearly intended rape and but for the intervention of the victim's male friend, she might have suffered even more serious physical injury than she did.

10. His Worship went on to say,

If the defendant was an adult, even with his obvious
disabilities, he would almost certainly receive a gaol sentence
in the order of two to three years. On the face of it, section 5
of the Children's Services Act seems to constrain me to the type
of sentence suggested (by Juvenile Justice), that is a non
custodial sentence. It cannot be right that in circumstances
where a defendant has the same antecedents as this defendant and
commits an horrendous crime that the court must be constrained
solely by section 5 considerations.

11. If not solely so constrained and giving due weight to the offender's age and antecedents, his Worship was of the view that a just and appropriate sentence would be one year's detention in an appropriate institution.

12. That sentence is, of course, considerably less than for an adult in similar circumstances.

13. In the case of any offender, adult or juvenile, due weight must be given to their personal circumstances and antecedents as well as matters affecting their moral culpability for the crime.

14. This offender was born on 1 May 1979. Hence, he was 16 years of age at the time of the offence. The offender has never before come under adverse police notice. Although his parents separated when he was 12 years of age, his family background was neither deprived nor lacked in care and affection towards him.

15. There are younger siblings but the offender's relationship with them is also unremarkable.

16. It does not appear that the offender set out with the intention to commit this offence. It does seem that when he saw the victim, he decided to engage her in conversation. He used deception to do that. By the time he inveigled himself into her flat, he would seem to have conceived the idea of engaging in some sort of sexual act.

17. When he did assault the victim, he was clearly and dangerously out of control.

18. He now expresses sorrow and remorse. He seems sincerely sorry for the harm he has caused to the victim. He has now learnt that his mother was many years ago a sexual assault victim and she has been able to explain to him the kind of damage such assaults typically cause.

19. What then would dispose this otherwise typical young student, in Year 11 of his schooling, to carry out such a dastardly attack?

20. A psychiatric report was tendered from Dr Saboisky. He recounted a history that shortly after his birth, the offender was found to have suffered brain damage. That has not affected his intellectual functioning but it has seriously affected his hearing. There was delayed speech development and a loss of gross motor skills. The hearing problem required numerous operations, he has only 30% hearing in one ear which is at risk should he suffer a blow to the head.

21. The offender has been the subject of much taunting from other children both because of his awkwardness and his deafness. The hearing aids he initially wore were quite prominent.

22. At the same time he has had to undergo a great deal of rehabilitative therapy and medical treatment.

23. All of this has led to him being socially isolated and immature, though he is now doing well scholastically. That progress has been achieved by very special efforts within the school he now attends.

24. Dr Saboisky could find no psychological defect or any evidence of any tendency towards sexual deviation. His evaluation was,

... he is an immature young man with limited social skills who
is chronically shy because of persistent negative evaluation and
the fear of further negative evaluation.

25. There were also two psychological assessments of the offender.

26. Mr Nomchong identified the offending behaviour as a consequence of a desire by the offender to be accepted by his peers. He considered that there was an element of dissociation involved. That is, that the offender was, to a degree, in a dreamlike state. That certainly accords with his own report of his thought processes before, during and after the attack. Mr Hodges considered his behaviour to reflect a pattern of responding to rejection with physically aggressive behaviour.

27. I have to say that none of this process has been explained terribly clearly. It is important, I believe, that it not be misinterpreted so as to appear to cast any responsibility onto the victim for what the accused did. Whatever he did, and why ever he did it, it was not in any way the fault of the victim.

28. Her only fault was to be helpful to a young person who seemed in need of assistance. She was repaid for her kindness with a violent sexual assault.

29. Nor do I consider that the offender lacked responsibility for his actions. True, he surrendered to impulses which, had he been more socially mature, he would not otherwise have done. However, that does not excuse what he did, though it may assist to explain it.

30. His plea of guilty, remorse, prior good behaviour and personal circumstances all are matters favourable to the offender which he is entitled to have taken into account.

31. However, as his Worship observed, had he been an adult, a penalty involving a substantial period of imprisonment would still be indicated.

Sentencing of Juveniles
32. There are two provisions of the Children's Services Act 1986 (ACT) (CS Act) which are relevant for present purposes.

5. (1) In any proceedings in a court having jurisdiction in the
Territory, whether the proceedings are under this Act or under
some other law, being proceedings against or concerning or
affecting a child, the court shall, in the exercise of its
jurisdiction or powers, seek to procure for the child such care,
protection, control or guidance as will best lead to the proper
development of the personality of the child and to the child's
becoming a responsible and useful member of the community.

(2) In the exercise of a power, whether under this Act or under
some other law of the Territory, by a body, authority or person,
being a power the exercise of which affects or concerns a child,
the body, authority or person shall seek to procure for the
child the matters referred to in subsection (1).

(3) For the purpose of subsections (1) and (2), the court,
body, authority or person shall have regard to such matters as
seem to it or the person to be appropriate and, in particular,
to such of the following as are appropriate:
(a) the need to strengthen and preserve the relationship
between the child and his or her parents and other members of
his or her family;
(b) the desirability of leaving the child in his or her own
home;
(c) the desirability of allowing the education, training or
lawful employment of the child to be continued without
interruption or disturbance;
(d) the desirability of ensuring that the child is aware that
he or she must bear responsibility for anything that he or she
does that is contrary to law; and
(e) the need to protect the community or a particular person
from the violent or other unlawful acts of the child.

33. It will be noted that s5(3) does not purport to confine the Court's consideration to the five enumerated matters. These matters are each relevant to a person of any age but it is plainly intended that they be given greater weight in the case of an offending child than for an adult.

34. Further, a child will, usually, have a less well developed sense of responsibility than an adult.

35. A child's perception of time into the future is also much more limited. Thus, to a young child, a year may seem so long that it might as well be five years to an adult.

36. That no doubt influences the form of s47 of the CS Act,

47. (1) Where a child has been convicted of an offence by the
Court, the Court shall, as soon as practicable and, in any case,
within 6 months after the date of the conviction, make one or
more of the following orders:
(a) an order reprimanding the child;
(b) a conditional discharge order;
(c) an order imposing a penalty provided by law with respect to
the offence;
(d) any other order that the Court is empowered by any other
law to make with respect to the offence;
(e) where a fine is not provided by law with respect to the
offence, an order imposing a fine not exceeding 50 penalty
units;
(f) where reparation or compensation is not provided for by law
with respect to the offence, an order that the child make
reparation by way of money payment, or pay compensation, in
respect of any loss suffered or expense incurred by reason of
the offence, but so that the total amount of reparation or
compensation does not exceed $1,000;
(g) a probation order;
(h) an attendance centre order;
(i) a residential order having effect for such period, not
exceeding 2 years, as the Court specifies;
(j) an order committing the child to a State institution in a
specified State or Territory for such period, not exceeding
2 years, as the Court specifies;
(k) an order committing the child to an institution for such
period, not exceeding 2 years, as the Court specifies;
(m) orders in accordance with section 49A.

(2) A probation order may be expressed to commence to have
effect when an order under paragraph (1)(i), (j) or (k) ceases
to have effect.

(3) A conditional discharge order shall specify the period,
being a period not exceeding 6 months, within which the
conditions of the order are to be complied with.

37. It may be noted that the limit imposed by s47(1)(k) does not apply to this Court if it decides, pursuant to s63(1)(b) or (c), to deal with the child as if he or she had been an adult at the time of the commission of the offence.

38. The question raised by his Worship is, to my mind, answered by the decision of the Full Federal Court in R v Boudelah [1991] FCA 124; (1991) 100 ALR 93. It was, therefore, not necessary for the finalisation of the matter to have been delayed by committal to this Court unless his Worship had been satisfied that his sentencing powers were not adequate to deal with the matter. That was not the case.

39. Gallop J, at 101, adhered to his previously expressed view that the effect of s5,

... is not to oust general deterrence and retribution as
relevant considerations, but to confer dominance on the
rehabilitation factor in the exercise of the sentencing
discretion in respect of youthful offenders.

40. A sentence for rape in company was thus increased from 4 years suspended after 6 months to the imposition of a non-parole period of 18 months.

41. Von Doussa J agreed with that construction. Although dissenting as to the result of the appeal, Jenkinson J expressed no dissent from the interpretation by the majority of s5.

42. Thus, it is, or should be, clear to any Court sentencing juveniles in this Territory that regard may, and should, be had to the requirements of personal and general deterrence and retribution in fixing the sentence to be imposed on the offending juvenile.

43. Nevertheless, greater weight than in the case of an adult is to be afforded the matters referred to in s5(1) of the CS Act.

44. Thus, in Hill (1982) 6 A Crim R 202, a 15 year old who committed a violent rape had a suspended sentence set aside on a Crown appeal. A sentence of 12 months non-parole was imposed instead.

45. In R v Davis and Dinah (1989) Butterworths Unreported Judgments BC 8900952, the offenders, both juveniles, had severely beaten and injured a young woman and then committed acts of indecency upon her. Neither showed any remorse. The Court of Criminal Appeal of Western Australia set aside probation orders and imposed sentences of imprisonment of between 3 and 4 years but, by reason of their youth, the offenders were declared eligible for parole.

46. Perhaps closer to the present case is Piggott v R (1994) ACL Rep 130 Tas 42. The offender had engaged in a prolonged attack on a young woman with intent to engage in sexual intercourse with her. He was, though young, not a juvenile, being aged 19 at the time.

47. He was sentenced to 12 months to be released on probation after 6 months. Crawford J considered that 12 months was a little high but not excessive and the 6 months to serve was "entirely appropriate".

48. Slicer J agreed that the offence committed warranted "significant sanction". Even though the offender did not require personal deterrence to avoid re-offending, the need for general deterrence warranted the custodial sentence imposed.

49. That the seriousness of this offence is such, and must be seen as such, that it would only in an exceptional case be visited with other than a custodial sentence. No such case is made out in the present circumstances.

50. However, given the offender's age, level of maturity, his family and educational circumstances, it would be inappropriate to proceed as if he was an adult.

51. AM, stand.

52. On the charge that you inflicted actual bodily harm upon MT with intent to engage in sexual intercourse with her, I record a conviction and sentence you to 12 months detention at Quamby Youth Centre.

53. As, in my view, it would have been appropriate for that penalty to have been imposed on 31 May 1996, I direct that the sentence commence from that date.

54. I note the Director's powers under s68 of the CS Act and recommend that the Director grant leave to enable the offender to complete his education at the school he presently attends.