R v P M [2009] ACTSC 24 (16 March 2009)

Last Updated: 19 May 2009

HUMAN RIGHTS ACT

R v P M

[2009] ACTSC 24 (16 March 2009)

CRIMINAL LAW AND PROCEDURE – Sentencing – young offender – sexual offences – purposes of sentencing for young offender – Crimes (Sentencing) Act 2005 (ACT), Chapter 8A.

CRIMINAL LAW AND PROCEDURE – Sentencing – young offenders – procedure for imposing sentences – Crimes (Sentencing) Act 2005 (ACT), Chapter 8A.

Crimes Act 1900 (ACT), ss 21, 24, 51, 54

Criminal Code 2002 (ACT), s 308

Crimes (Sentence Administration) Act 2005 (ACT), ss 7, 64, Chapter 8A

Crimes (Sentencing) Act 2005 (ACT), Ch 11, ss 7, 65,

Children and Young People Act 1999 (ACT)

Children and Young People Act 2008 (ACT), ss 68, 111, 116, 201

Human Rights Act 2004 (ACT), s 25(2)

Cotter v Corvisy (2008) 50 MVR 339

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339

R v Boudelah [1991] FCA 124; (1991) 28 FCR 176

R v Roberts [1982] 1 WLR 133

Vaitos (1981) 4 A Crim R 238

TDJ v Carter [2001] ACTSC 38

R v P (1991) 53 A Crim R 112

B (a child) (1995) 82 A Crim R 234

R v Mills [1998] 4 VR 235

Pearce v The Queen (1998) 194 CLR 610

R v O’Rourke [1997] 1 VR 246

McKenna v The Queen (1992) 7 WAR 455

R v Collins [2004] ACTSC 73

Gough and Anor v Chief Constable of Derbyshire Constabulary [2002] EWCA Civ 351; [2002] 2 All ER 985

R (McCann) v Crown Court of Manchester and Anor; Clingham v Kensington and Chelsea Royal London Borough Council [2002] UKHL 39; [2003] 1 AC 787l

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v Field [2003] 1 WLR 882

Welch v United Kingdom [1995] ECHR 4; (1995) 20 EHRR 247

Palmer v Superintendant Auckland Prison [1991] 3 NZLR 315

R v Stockdale [1981] 2 NZLR 189

R v Smith (CA 69/88, 31 May 1988)

R v Pora [2000] NZCA 403; [2001] 2 NZLR 37

R v Poumako [2001] 2 NZLR 695

Kafkaris v Cyprus (ECtHR, Application 21906/04, unreported)

No. SCC 327 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 16 March 2009

IN THE SUPREME COURT OF THE )

) No. SCC 327 of 2008

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

V

P M

ORDER

Judge: Refshauge J

Date: 16 March 2009

Place: Canberra

THE COURT ORDERS THAT:

1. On the first count, of sexual assault in the first degree, the accused is sentenced to five years imprisonment.

2. On the second count, of sexual intercourse without consent, the accused is sentenced to three years imprisonment.

3. On the third count, of sexual intercourse without consent, the accused is sentenced to three years imprisonment.

4. On the fourth count, of theft, the accused is sentenced to twelve month’s imprisonment.

5. Two years of the sentence on the second count be concurrent with the sentence on the first count and that the third count be wholly concurrent with the second count and that the whole of the fourth count be cumulative on the second count.

6. All sentences commence from 19 February 2008.

7. On 18 February 2011 the balance of the sentence be suspended and that the accused sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for four years.

8. The good behaviour order include the following condition in addition to the core conditions, namely a probation condition that during the period of the order he is to be on probation subject to the supervision of the Chief Executive or a person delegated by her and to obey all reasonable directions of that person, especially directions about treatment, particularly for alcohol abuse, and counselling.

1. This is a particularly tragic case where a young man with no prior criminal record has pleaded guilty to three sexual offences and a theft of some possessions of his victim committed when he was 17 years old (a few months short of his 18th birthday) and without warning in frightening and vile circumstances and which have left the victim traumatised, violated and no doubt, severely affected for a long time to come.

2. The offences, whilst not the most serious in the criminal calendar, as judged by the maximum penalties that the legislature have provided, are nevertheless very serious offences for which the community would expect the court to show quite clearly how unacceptable they are and how much the community would wish to try and prevent such offences re-occurring whereby victims suffer so severely.

3. The events occurred on 17 February 2008 after the accused had spent the previous night drinking at a mate’s house. He estimates that he drank a lot of alcohol; the exact nature of the alcohol was unclear, but probably spirits. He and his mate had spoken of prior sexual abuse that the accused had experienced, though his mate told him not to worry about it. This made him feel angry and shortly after 3.00 a.m. he decided to go for a walk to clear his mind. He needed money and formed an intention to rob someone.

4. While he was wandering, he saw the victim who had left home and was walking to work. He approached her from behind and punched her head with his closed fist. The victim screamed and he told her to shut up and continued to punch her.

5. He then pushed her to the ground on her back and continued to punch her while she tried to protect her face and head with her arm. He then turned her onto her stomach and pulled down her clothes while she continued to scream and struggle. The assaults were clearly inflicted with the intent to have sexual intercourse with the victim. This constituted the first offence of sexual assault in the first degree, contrary to s 51 of the Crimes Act 1900 (ACT) (Crimes Act) an offence which attracts a maximum penalty of 17 years imprisonment.

6. The accused then attempted to have anal intercourse but was unsuccessful, so he rolled the victim onto her back again and attempted vaginal intercourse but was again unsuccessful.

7. He then pushed two fingers into the victim’s vagina and moved them in and out for a short time, which acts constituted the second offence of sexual intercourse without consent, an offence under s 54 of the Crimes Act for which the Act provides a maximum penalty of 12 years’ imprisonment.

8. The accused then inserted his penis into the victim’s vagina and engaged in intercourse for a few minutes, being the third count and second offence of sexual intercourse without consent.

9. Shortly after, the accused walked away and the victim attempted to find her clothes but he returned and demanded that she tell him her personal identification number for her debit cards, though she did not tell him.

10. The accused, however, left taking the victim’s handbag which included her mobile telephone, a pair of sunglasses, jewellery, keys, identification documents, bank keycard and credit cards. This constituted the fourth count, namely theft contrary to s 308 of the Criminal Code 2002 (ACT) which provides for a maximum penalty of 10 years imprisonment or a fine of 1,000 penalty units or both.

11. The accused later gave the bag to his aunt and attempts were subsequently made to use a credit card at a local supermarket.

12. The victim went to a friend's house where she was so injured that her friend did not recognise her. An ambulance was called and took her to the Canberra Hospital where a medical examination identified the following injuries she had suffered:

(i) a 2 centimetre full thickness laceration to her upper lip to the right of the midline;

(ii) a 1 centimetre laceration on the mucosal surface of her upper lip, to the left of the midline;

(iii) extensive bruising to the outer aspect of her upper and lower lips;

(iv) her right pinner (outer ear) was swollen with reddened bruising;

(v) a 1.5 centimetre laceration on the right side of her forehead;

(vi) marked generalised swelling over the right side of her face;

(vii) her left ankle was swollen, tender and had a decreased range of movement. The ankle was x-rayed and a review of that x-ray revealed a fracture to the distal fibula (outer aspect of the ankle);

(viii) two loose teeth in the left upper quadrant.

13. The accused was arrested on 19 February 2008 and has remained in custody since then, being a total of 387 days.

14. The accused is a young Aboriginal man. He is the eldest of five children and lived in Bega with his family until he was five. His mother and her then partner, Mr Williams, separated at this time and he moved with his mother and siblings to Canberra and three years later to Queanbeyan when he started living between the homes of his mother and Mr Williams. The separation apparently made him quite withdrawn.

15. He also stated that he saw significant domestic violence between his mother and Mr Williams and that he was also the victim of physical abuse at the hands of his mother and Mr Williams, though that was denied by his mother.

16. The accused’s mother re-partnered but her new partner was also abusive to her and the accused stated that he was sexually abused by the partner. He has not spoken about this but did give an account to Dr Andrew Ellis, a Forensic Psychiatrist, who provided a helpful report about this after seeing him for two hours. The accused has indicated that he would like to have some counselling to help him address this issue. Clearly, the accused has had a difficult early life.

17. The accused appears to have a good relationship with Mr Williams, though there has been some aggressive interaction between them, mostly verbal.

18. The accused strongly identifies as Aboriginal and embraces his heritage having spent considerable time at Wallaga Lake on the New South Wales South Coast where he has family. Much of the fights at school were a reaction to what he saw as racist remarks made to him.

19. The accused spent time at a number of schools in New South Wales and the Australian Capital Territory because of his family’s transient lifestyle. This made it difficult for him to settle in and to gain an adequate education. He attended High School but was expelled from two following fights and left a third half-way through Year 10 because “he did not want to attend school anymore”. He clearly had learning issues and while he has taken the opportunity while in custody to undertake further studies, it was reported that he does not appear to have learned very much despite making significant progress through the courses.

20. His literacy and numeracy skills are well below his chronological age, but he has continued to develop these, to his credit.

21. He appears to excel at Art and has learnt to play a number of musical instruments. I was shown an example of his art work which was impressive. These skills would be excellent to develop as they would give him a significant opportunity to find a satisfying place in the community and enhance his self esteem.

22. The accused has a problem with alcohol and has been actively engaging in the Ted Noffs Foundation programs. He stated that he would like to be alcohol free in the future. This would certainly enhance his chances of becoming a valuable member of his community.

23. He has clearly made important efforts to turn his life around while in custody and accepts that he has learnt valuable lessons. These are matters to his credit and must be strongly taken into account in sentencing.

24. Dr Ellis diagnosed the accused as suffering from a post-traumatic stress disorder as a result of the violence and sexual abuse he was both exposed to and suffered. He also considered he would be regarded as suffering from alcohol abuse were he not in remission because of his custodial environment. He also reported that the accused meets the criteria for conduct disorder though his behaviour in custody has not resulted in any reportable incidents. He is regarded there as something of a loner. These, however, are not sufficient mental issues to avoid any general deterrence in the sentence: Cotter v Corvisy (2008) 50 MVR 339 at 349-51.

25. The accused suffers from asthma and enuresis which must be a problem for him but which may be resolved if the post-traumatic stress disorder is addressed. It is clear that he will have to have treatment for that disorder and in the Pre-Sentence Report it was stated that if he is sentenced to Bimberi a treatment plan will be developed with the assistance of Forensic Mental Health Services.

26. I received a Victim Impact Statement which, at the victim’s request, was read by Ms Lucy Gregory, Witness Assistant in the Office of the ACT Director of Public Prosecutions.

27. Courts well-know the trauma that sexual assault causes and the long-term effects it can produce. It is important, however, to be reminded of the depth of the interference with a victim and her life that is caused by such crimes and how it can pervasively affect all aspects of her life: emotional, social, familial, employment, medical, financial and even in ordinary daily tasks such as showering and looking after pets.

28. It is also important for the accused to hear what the victim has experienced and how his short, unwelcome invasion into her life has changed it completely and for a long time if not forever.

29. I will not try to summarise the Statement; the accused heard it read. It makes challenging reading and was challenging to hear read. It reinforces that the victim suffered and continues to suffer significantly and will do so into the future.

30. Her physical injuries alone were shocking. They were described by Dr Catherine Sansum, a medical practitioner from the Forensic and Medical Sexual Assault Care Unit, as “considerable”. They required her to be seen by a Plastic Surgery Registrar, an Orthopaedic Registrar and subsequently a Dentist for substantial dental work. They required ongoing treatment over a considerable period of time and caused ongoing pain and discomfort.

31. Her relations with her family, her pets, her friends and her work were severely disrupted and her finances were greatly depleted. She did not return to work for about six months and then initially only on light duties. Perhaps easiest to overlook are the little ongoing indignities but they must not be ignored – of not being able to take a shower in the usual way, of having to prove her identity to her bank, of being unrecognised by her pets, of having to recount her story to so many people, of being insecure and afraid of things, places and activities that she used to take for granted.

32. It is distressing that a young man with no criminal history and clearly some artistic talent and commitment to his culture and heritage should be the cause of such trauma and harm.

33. The accused has pleaded guilty and that is an important factor, though it was only after he was committed for trial. It has to be given full weight for the savings to the criminal justice system in his willingness to facilitate the course of justice: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at 343. Mr Sabharwal, who appeared for the accused, pointed out that the relatively late plea was caused by the need to obtain forensic medical reports. It permits the plea to be taken into account in a reasonably significant way. It was, however, a strong prosecution case, with DNA evidence pointing to the accused.

34. In particular, the plea has saved the victim the trauma and humiliation of giving evidence, an important consideration as noted by Gallop J in R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 at 181. I was informed that the committal proceedings were, effectively, a paper committal with no requirement for the victim to attend.

35. Although I think the issue needs to be dealt with cautiously, I note that the victim was a complete stranger to the accused and the courts have often treated that as an aggravating factor: Vaitos (1981) 4 A Crim R 238 at 276, 300.

36. As I noted earlier, the accused has no prior criminal record. He has been in trouble at school, though there may be some explanation for that. The accused clearly has some difficulty in managing his anger but has not been involved while in custody with any “reportable incidents”.

37. It is hard to understand why these horrific offences were committed. Dr Ellis is the only person with whom the accused really discussed them. He was clearly disinhibited by alcohol and angry at the apparently casual dismissal by his friend of his concern about previous abuse he had suffered. He then stated to Dr Ellis, however, that he “also thought he needed some money and he formed the intention that he would go and rob someone”. He also said that “he was feeling angry at the world in general, and in particular to people who showed a lack of understanding about the anger and suicidal feelings he was experiencing about having previously been abused”. Yet, of course, the victim knew absolutely nothing of these things. That he was abused as a child, of course, evokes sympathy and a need to tailor an appropriate sentence but hardly mitigates the seriousness of the offence nor, in the state of our current knowledge, explains the offending.

38. Gallop J said in R v Boudelah at 188:

It is within the knowledge of mankind and the experiences of the courts that rape cases can vary markedly, unlike some other crimes such as armed robberies or ordinary breaking, entering and stealing from a suburban home. The crime of rape embraces a wide range of criminality, but in the orderly administration of the criminal law, no less than in other crimes, the preservation of relativity in sentences passed is necessary.

39. Mr Sabharwal urged on me that this was not the most heinous example of the crime and suggested it was somewhere in the mid-level of seriousness. Mr C Todd, who appeared for the prosecution, submitted that it was significantly more serious than that. In my view, it is a very serious offence. The beating was very severe; it was to procure digital and penile penetration and though in themselves they were not significantly different from many other appalling invasions of the victim’s privacy and integrity, they were committed in the context of attempts at anal and vaginal intercourse. Though these crimes were not charged and for which no penalty can be imposed they are part of the context in which the offences were committed.

40. The theft was, in itself, fairly unremarkable, save that, again, in the context, it was the final indignity to a woman who had been minding her own business and going to her work expecting that in this community she would be safe to do so.

41. The task of sentencing in all cases is difficult. This case presents particular challenges. Nevertheless, as in a passage quoted with approval by Gallop J in R v Boudelah at 187, Lord Lane CJ, speaking for the Court of Appeal said in R v Roberts [1982] 1 WLR 133 at 134-5:

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

42. As Gallop J commented in R v Boudelah at 186:

There is no difficulty in the case of sexual offences in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences the voice of the community, through the legislation enacted by Parliament, expresses its abhorrence.

The Sentencing Regime for Young Offenders

43. As this is the first case of which I am aware that this Court has sentenced an offender to which the new regime effected by the Children and Young People Act 2008 (ACT) applies, it is appropriate that I make a few comments about that.

44. In 2008 when the Children and Young People Act 2008 (ACT) and related legislation were enacted, the provisions for sentencing were transferred to the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Chapter 8A of the Sentencing Act is the relevant part of that Act for the sentencing of young offenders, though it incorporates a number of provisions of the Sentencing Act itself found in other Chapters of it.

45. As the accused was 17 ½ years old at the time of committing the offences, he is a young offender for the purposes of the Sentencing Act.

46. The first issue is to confirm that the new regime does apply. It was agreed by both parties that the Sentencing Act applies. This is clear from the transitional provisions of the Sentencing Act, namely Chapter 11. Section 201 provides that the Sentencing Act, as amended, by the Children and Young People Act 2008 (ACT) and associated legislation applies in relation to “the sentencing of a young offender after the commencement day”, which means the day the Children and Young People Act 2008 (ACT) commenced.

47. Accordingly, subject to s 25(2) of the Human Rights Act 2004 (ACT), as to which, see below, I should apply the Sentencing Act provisions.

48. Section 7 of the Sentencing Act sets out the purposes of sentencing. It provides:

7 Purposes of sentencing

(1) A court may impose a sentence on an offender for one or more of the following purposes:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender;

(g) to recognise the harm done to the victim of the crime and the community.

(2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

49. This applies to sentencing proceedings for young offenders (s 133A(2)), but is modified by s 133C which states:

133C Young offenders – purposes of sentencing

(1) Despite section 7(2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7(1).

(2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.

50. In making those provisions, there has to some extent been a break from the previous legislation where there were specific provisions relating to the appropriate factors to be considered in deciding the form of a sentence to be imposed. See, for example, s 68 of the Children and Young People Act 1999 (ACT), which sets out principles to be followed by courts, and others, and which did not include matters such as general deterrence or punishment in terms.

51. Nevertheless, this court has held that s 68 of that Act did not prevent general deterrence or retribution from playing an appropriate part in the sentencing of young offenders. See TDJ v Carter [2001] ACTSC 38 at [10]-15].

52. Thus, although the current provisions which apply from the Sentencing Act now use more traditional expressions of the purposes of sentencing and apply them to young offenders, they may not make a significant difference in the approach actually taken by the courts.

53. The common law approached the sentencing of youthful offenders in much the way that the Sentencing Act now requires. As was said by Mathews J with whom Gleeson CJ and Samuels JA agreed in R v P (1991) 53 A Crim R 112 at 116:

The approach to be adopted in the sentencing of young offenders has been discussed in a number of cases. In Wilcox (unreported, Supreme Court, NSW, 15 August 1979), Yeldham J remarked during the course of sentencing of a young offender that “in the case of a youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation”. His Honour relied upon Smith [1964] Crim LR 70, where it was said: “In the case of a young offender there can rarely be any conflict between his interest and the public’s. The public have no greater interest than that he should become a good citizen.” This principle was also adopted by Hunt J in Bellavia (unreported, 16 August 1980).

Subsequent decisions of this Court, however, suggest that considerations of general deterrence should not be ignored completely when sentencing young offenders. In Broad (unreported, 30 March 1984), Street CJ referred to “the necessity to deter antisocial conduct ... commonly manifested by vandals in this city in current times” but also was “concerned that for a young man of 19 with a clear earlier record and a supportive family background, importing as it does the prospects of real confidence in rehabilitation, a custodial sentence does not reflect the appropriate approach to be taken”.

In C, S and T (unreported, Court of Criminal Appeal, NSW Gleeson CJ, Allen and Studdert JJ, 12 October 1989), Gleeson CJ accepted a submission that

‘in sentencing young people ... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed’.

See also, B (a child) (1995) 82 A Crim R 234 at 243; R v Mills [1998] 4 VR 235 at 241.

54. It was pointed out in submissions that s 133C of the Sentencing Act makes the giving of more weight to rehabilitation than the other purposes of sentencing a matter of discretion. It is difficult to see how that could not have been inevitable in such legislation. It is mandatory, however, to consider rehabilitation in relation to young offenders under that provision and these two amount, in my view, to a statutory enactment of the common law position.

55. This is confirmed by the Explanatory Statement, one of the more fulsome, detailed, thoughtful and helpful such statements. It says:

Rehabilitation of young offenders is the starting point for both the CRC [United Nations Convention on the Rights of the Child] and Australian common law. Australian common law places considerable emphasis on rehabilitation as the starting point for sentencing courts when deciding upon an appropriate sentence for a young offender. In R v Voss [2003] NSWCCA 182 the NSW Court of Criminal Appeal cited with approval common law principles laid down in previous cases such as Wilcox [1979] (NSW, unreported 15 August 1979), such as:

... in the case of a youthful offender ... considerations of punishment and general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation.

...

The principle of rehabilitation being the starting point for sentencing children and young people does not mean that principles such as community safety or accountability, are never considered. Sentencing courts would consider applying those principles in cases of serious offences or serious recidivism, having firstly considered the principle of rehabilitation.

...

A sentencing methodology that reflects the CRC discussion and Australian common law is encapsulated in the foreshadowed amendments to the Crimes (Sentencing) Act 2005. These amendments create a new chapter in the Act that specifically deals with sentencing children and young people.

The amendments to the Crimes (Sentencing) Act 2005 also includes specific dispositions relevant to children and young people, such as education and training conditions, accommodation orders and supervision conditions. Relevant amendments to the Crimes (Sentence Administration) Act 2005 to administer these orders, and other orders in a manner consistent with the interests of children and young people are also included in this schedule.

56. There are, however, some specific provisions that the Sentencing Act mandates in relation to young offenders in addition to, for example, the standard list of relevant considerations in s 33 of the Sentencing Act. Thus s 133D(1) provides:

In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:

(a) the young offender’s culpability for the offence having regard to his or her maturity;

(b) the young offender’s state of development;

(c) the past and present family circumstances of the young offender.

57. The regime, where a custodial option is imposed is also different. While the terminology is imprisonment, that is not the effect of such a sentence. Further, there is no parole regime. The relevant provisions are ss 133G and 133H of the Sentencing Act which are in the following terms:

133G Young offenders – sentences of imprisonment

(1) This section applies if a court is sentencing a young offender to imprisonment under section 10.

(2) The sentence of imprisonment must be a list resort for the shortest appropriate term.

(3) The court must consider making a combination sentence consisting of

(a) the sentence of imprisonment; and

(b) a good behaviour order with a supervision condition.

(4) The court must not sentence the young offender to imprisonment for life.

133H Young offenders – imprisonment to be a detention place

(1) This section applies (instead of section 10(3)) if a court sentences a young offender to imprisonment and the young offender is under 21 years old when the sentence is imposed.

(2) The sentence must be served by full-time detention at a detention place unless the young offender is

(a) released from full-time detention under this Act or another territory law; or

(b) transferred to a correctional centre under the Children and Young People Act 2008.

58. Section 111 of the Children and Young People Act 2008 (ACT) permits the Chief Executive to transfer a young offender under 21 years to a correctional centre if it is considered to be “in the best interests of the young detainee or other young detainees”. The specific considerations that must be taken into account include the young detainees’ wishes, their maturity and known history, their developmental capacity, their behaviour, their vulnerability in a correctional centre, the availability of appropriate programs for them there and the likelihood of rehabilitation there. They must, however, be transferred at age 21.

59. While a young offender is in a detention place, namely a detention place under the Children and Young People Act 2008 (ACT), s 116 of that Act requires the young offender aged over 18 to be segregated from those under that age. This is clearly criminologically sound and is useful for a court to know when considering how to structure a custodial sentence for such a person.

60. The other matter, implied in s 133G(3) of the Sentencing Act, is that there is no parole regime for young offenders. Section 65 of the Sentencing Act includes in the definition of an excluded sentence of imprisonment a sentence of imprisonment imposed on a young offender. It then applies Pt 5.2, which is the provision for setting a non-parole period to sentences of imprisonment, other than excluded sentences of imprisonment. Thus, parole is not available to young offenders.

61. There is a difficulty with s 133G of the Sentencing Act which perhaps comes from the perspective of adult sentencing. That is to say, the section appears to allow two approaches as follows:

(a) The court could impose a sentence of imprisonment which is regarded as the appropriate sentence, having regard especially to ss 10 and 133G(2) of the Sentencing Act and then suspend part of that sentence with a good behaviour order. This would amount to imposing a period that in sentencing an adult would be regarded as a head sentence and then suspending it after what would, in sentencing an adult, be regarded as the non-parole period.

(b) The court could impose a sentence of imprisonment of only the duration which is regarded as the minimum period during which the person should be denied liberty, called when sentencing an adult the non-parole period, and then release the offender, without suspending the imprisonment on a good behaviour order for such additional period as the court thinks fit.

62. When sentencing an adult, the non-parole period has been described as “the minimum term that a judge determines justice requires that [the offender] must serve having regard to all the circumstance of the offence”: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629. This is remarkably similar to the second criterion in s 133G(2) of the Sentencing Act.

63. Neither counsel submitted, however, that I was bound to proceed in accordance with what I set out in par 61(a) as opposed to the alternative in par 61(b).

64. The effect of these provisions, then, is that for a young offender, a court does not set a non-parole period but instead, if it wishes to permit parts of the sentence to be served on condition release, it may suspend part of the sentence and impose a good behaviour order. In my view, there is a danger in the alternative approach, in that when a sentence of full-time custody without any suspension but truncated to be followed by a good behaviour condition as a combination sentence is possible, it would run the real risk, unlike a head sentence with a non-parole period when sentencing adults, that the term of imprisonment would be seen as manifestly inadequate. Hence the need for a sentence of the proper length to be imposed but then to be partially suspended. A good behaviour order is then required to be made for all suspended sentences for at least the length of the suspended portion of the sentence: s 12(3) of the Sentencing Act.

65. This has the beneficial effect of giving the young offender a release date that is certain and not dependent on a decision of an administrative body such as the Sentence Administration Board. The problem is that it is notoriously difficult to predict how an offender, especially a young offender, will respond in custody and what regime should be implemented for the conditional release period. Parole orders usually have detailed provisions, including about residence, employment, drug and other treatment and the like about which a court, some years away from the date of release and with no knowledge of how a young offender who will be undergoing significant developmental change will be placed and what his or her needs will be, must speculate. This inevitably will lead to generalised conditions much at the discretion of those tasked with supervising, not necessarily a bad thing but a quite different, less formal process with perhaps less safeguards than the parole regime administered by the Sentence Administration Board. It may also encourage somewhat longer periods in custody as courts take a more cautious attitude knowing there is no discretion available to prevent the release of someone manifestly unready to return to the community.

66. A further issue arose just as I was about to pronounce sentence. Mr Brian Liddy, who had instructed Mr Sabharwal, sought leave to raise the issue of s 25(2) of the Human Rights Act 2004 (ACT). It provides:

A penalty may not be imposed on anyone for a criminal offence that is heavier than the penalty that applied to the offence when it was committed. If the penalty for an offence is reduced after anyone commits the offence, he or she benefits from the reduced penalty.

67. Mr Liddy drew my attention to s 127 of the Children and Young People Act 1999 (ACT) which was operative at the date on which the accused committed the offences. It provides:

Remission of time to be spent in institution

If a young person has been committed to an institution, the chief executive may, unless the Childrens Court otherwise ordered when committing the young person, having regard to the young person’s conduct and industry or to special circumstances, reduce the period stated by the court under that paragraph by not more than 1/3 of the period so stated.

68. Mr Liddy submitted that as this section had been repealed and was no longer applicable, the accused had been denied the benefit of these remissions and so was denied the benefit of a reduced penalty which was required by s 25 of the Human Rights Act 2004 (ACT). I stood the matter down so that submissions could be made on the issue.

69. As it was obviously desirable that the sentencing which had been set for today should proceed as soon as possible, it has not been possible to give this matter as much consideration as I would wish.

70. The first question is whether the remissions (or absence of them) is part of the penalty imposed. In general terms, the administration of a sentence is not a matter that the sentencing judge should take into account: R v Collins [2004] ACTSC 73 at [14]- [17].

71. Nevertheless, it is difficult not to think that the period of custody is not a matter to which the court should have regard. The matter, however, is not free from some international jurisprudence. In particular, the question of what is or is not a penalty for the purposes of such a human rights provision has received some consideration. See Gough and Anor v Chief Constable of Derbyshire [2002] EWCA Civ 351; [2002] 2 All ER 985; R (McCann) v Crown Court of Manchester and Anor; Clingham v Kensington and Chelsea Royal London Borough Council [2002] UKHL 39; [2003] 1 AC 787.

72. The European Court of Human Rights has dealt with this issue. In R v Field [2003] 1 WLR 882, the Court of Appeal referred to Welch v United Kingdom [1995] ECHR 4; (1995) 20 EHRR 247 as the leading case on this issue. It accepted the following as the criteria that this case established to determine whether an action following an offence was a penalty or not. The criteria were (with reference to the paragraphs in Welch v United Kingdom):

(i) the starting point is whether the measure is imposed following a criminal conviction (see p 262, paras 28 and 29);

(ii) the nature and purpose of the measure are also relevant (see p 262, paras 28 and 30);

(iii) its characterisation under national law is relevant (see p 262, paras 28 and 31);

(iv) the procedures involved in the making and implementation of the measure are relevant (see para 28);

(v) its severity is relevant (see pp 262, 263, paras 28 and 32); and

(vi) the court will look at the substance, rather than the form, in determining whether the measure forms part of a “regime of punishment”: see pp 261, 263, paras 27, 33 and 34.

73. The UK courts, however, seem to have been mainly concerned with post-offence actions such as banning orders, driving disqualification and registration on sex registers.

74. On the other hand, in New Zealand, the issue of non-parole periods has received significant consideration. In Palmer v Superintendant Auckland Prison [1991] 3 NZLR 315, Wylie J, relying on R v Stockdale [1981] 2 NZLR 189 and R v Smith (CA 69/88, 31 May 1988), said at 321-324:

I am unable to accede ... that eligibility for parole or remission forms part of “the penalty” for the offence. Parole and remission are altogether separate matters from “the penalty”.

...

[T]he natural interpretation to be afforded to s 25(g) [the equivalent to s 25(2) of the Human Rights Act 2004 (ACT)] ... is that the section is concerned only with variations in the maximum or minimum penalty which may be imposed by the Court at sentencing. In that sense the penalties in respect of the offences of which the accused was convicted have not been varied, but have remained exactly the same.

...

If parole and remission formed part of “the penalty” for the purposes of s 25(g) of the Bill of Rights Act ... (t)he resulting mental mindfield tends to confirm that these considerations are simply not within the intention of s 25(g).

75. I also note s 127 of the Children and Young People Act 1999 was only relevant to sentences of committal to an institution. This matter is, however, being determined in the Supreme Court, when s 123 of the same Act would have permitted other sentences. Indeed, it is arguable that s 127 does not even apply to Supreme Court committals to an institution under s 123(1)(b).

76. In any event, Mr Liddy did not suggest I should reduce the sentence I imposed by one-third. Given that it is entirely discretionary, that would not be appropriate.

77. While, of course, sentencing a young offender to a term of imprisonment (even if served in a detention centre) is a heavy burden, it should always be for the shortest period that can reasonably be sufficient to make the court’s recognition of the seriousness of the offence and the other purposes of punishment.

78. On the other hand, both R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 and R v Poumako [2001] 2 NZLR 695 both seem to suggest that the imposition of a non-parole period as part of a sentence was subject to s 25(g) of the Bill of Rights Act 1990 (NZ), the equivalent of s 25(2) of the Human Rights Act 2004 (ACT). That was, however, on different legislation and it does not seem to me, in the short time I have had to consider the matter, applicable.

79. In any event, Mr Liddy pointed to the decision in Kafkaris v Cyprus (ECtHR, Application 21906/04, unreported) which was against him, though by majority.

80. I was also referred by Mr Todd to the Explanatory Statement for the Children and Young People Bill 2008 which pointed out that s 127 of the former Act itself breached human rights, as decisions on remissions had to be made by an independent body and not by the Executive.

81. Accordingly, in my view s 25(2) of the Human Rights Act 2004 (ACT) has no particular role to play, although I am bound to ensure that, not only should the sentence be the shortest appropriate but it should allow for rehabilitation to play a significant part in the administration of the sentence. This I can do by partly suspending the sentence.

82. Applying these statutory provisions and the law that they bring with them, I turn then to the sentence to be imposed.

The Sentence to be Imposed

83. As I have said, these offences were serious. The offence of sexual assault in the first degree was committed with vicious aggression resulting in severe and long-lasting physical and emotional consequences. Nothing short of a custodial sentence is appropriate and Mr Sabharwal very properly concedes that this was so.

84. Mr Sabharwal also submitted that all offences were part of the same continuing episode and so all sentences should be concurrent. I am, of course, required to impose separate sentences for each offence: Pearce v The Queen (1998) 194 CLR 610. The question of what is a continuing episode, or, as the High Court has it a connected series of events, is always problematic. It is permissible, where the events while linked in time or otherwise, to cumulate sentences, when, for example, the offences add to the debasement and humiliation of the victim: R v O’Rourke [1997] 1 VR 246 at 252. In this case, there is some need for accumulation because, while a higher sentence could be imposed on the most serious of the crimes, that is the sexual assault in the first degree, and make the sentences or the other offences wholly concurrent that risks the infliction of too high a penalty on that more serious offence.

85. I take into account the plea of guilty which has moderated each sentence. The psychological condition of the accused is also relevant but not so much here to mitigate the penalty as to help structure the sentence. I also take into account that the accused is a first offender.

86. I have carefully read the very helpful and comprehensive pre-sentence report which shows that the accused has shown insight into his behaviour and has taken steps to deal with some of the causes of the offending behaviour, including his abuse of alcohol. He is seeking to address his lack of education and there is now comprehensive material assessing his psychological condition and counselling needs which he is willing to address and a treatment plan can be put into place to meet his needs in these areas.

87. I have also re-read the Victim Impact Statement. The trauma she suffered is significant and ongoing.

88. It was put to me by Mr Todd that though legally the accused is to be dealt with under the young offender’s regime, he was, when he committed these offences, so close to being an adult that the young offenders regime should have little if any effect.

89. While it is true that within the young offenders regime one can give differentiation between offenders of different ages and many of the factors set out in s 133D will inevitably mean that older or more mature young offenders will be treated differently than younger less mature young offenders, I reject the implication that the accused be dealt with really as an adult. This would be to ignore the legislation. As Seaman J said in McKenna v The Queen (1992) 7 WAR 455 at 468:

At common law, youth is a significant mitigatory factor (although normally its weight decreases as the offender moves through the early 20s) and so is the need to attempt rehabilitation of youthful offenders. There is also, in my view, a significant difference between a youthful offender and an offender who is defined as a child by legislation.

This leads to a situation in which there will be a marked transition in the severity of sentencing for offences committed on and after the day on which an offender attains 18. In my view that is the case because the offender no longer enjoys the particular statutory protection for juveniles which is implicit in the Children’s Court of Western Australia Act 1988 and the Child Welfare Act 1947 and is indeed reflected by s 282 of the Criminal Code.

With respect, his Honour is correct and I am bound to accept that the legislative remit is that until the accused offends while aged 18, he is to be treated in all respects as a young offender.

90. It seems to me that the accused is entirely culpable for the offences. His excessive alcohol drinking, his anger and his prior experience of abuse do not to any significant degree mitigate his culpability, though they help to explain his actions, and certainly mandate appropriate sentencing options.

91. While the accused has clear difficulties with learning and is not as advanced as is desirable and he has some intellectual ability, the overall reports from Drs Ellis and Kasinathan, showed a young man of the maturity that one would expect of one of his age.

92. I have had regard to the past and present family circumstances as summarised earlier and as set out comprehensively in the Pre-Sentence Report.

93. I accept that the accused is remorseful; he said he felt “sick” at the thought of the offences and this is re-inforced by his refusal to talk about them for he is clearly highly embarrassed and regretful at the incidents that he knows he committed.

Sentence

94. Accused, please stand:

(1) On the first count, of sexual assault in the first degree, I sentence you to five years imprisonment.

(2) On the second count, of sexual intercourse without consent, I sentence you to three years imprisonment.

(3) On the third count, of sexual intercourse without consent, I sentence you to three years imprisonment.

(4) On the fourth count, of theft, I sentence you to twelve month’s imprisonment.

(5) I direct that two years of the sentence on the second count be concurrent with the sentence on the first count and that the third count be wholly concurrent with the second count and that the whole of the fourth count be cumulative on the second count.

(6) I order that all sentences commence from 19 February 2008.

(7) I direct that on 18 February 2011 the balance of the sentence be suspended and that you sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for four years.

(8) I direct that the good behaviour order include the following conditions in addition to the core conditions, namely a probation condition that during the period of the order you are to be on probation subject to the supervision of the Chief executive or a person delegated by her and to obey all reasonable directions of that person, especially directions about treatment, particularly for alcohol abuse, and counselling.

95. The effect of this is that I have sentenced you to prison for seven years to begin when you were first arrested on 19 February 2008 and to end on 18 February 2015 but that you be released after serving three years that is on 18 February 2011 if you then sign an undertaking not to commit offences, to obey directions and other conditions that will be explained to you.

96. If you had not pleaded guilty, I would have sentenced you to seven years on the first count, four years on each of the second and third counts and eighteen months on the fourth count. That would, with appropriate cumulation probably have amounted to a total of ten years.

97. I have set a low period of time that you must stay in custody, a total of three years, because you were a young offender at the time, and because of your need for rehabilitation, your good response to rehabilitation to date, your insight and remorse and the other matters I have mentioned.

98. This is a severe sentence but they were terrible crimes that you committed and it is necessary and appropriate that this be clearly recognised. I hope that you continue working at your rehabilitation, especially your art, music and celebrating your aboriginal heritage. These should provide you with opportunities when you are released to show that you can be a good citizen and that these appalling, vicious and despicable crimes are not a sign of your true nature and can be put well behind you.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 16 March 2008

Counsel for the plaintiff: Mr J Sabharwal (12 March 2009); Mr B Liddy (16 March 2009)

Solicitor for the plaintiff: Legal Aid Office (ACT)

Counsel for the defendant: Mr C M Todd

Solicitor for the defendant: Director of Public Prosecutions (ACT)

Date of hearing: 12 March 2009

Date of judgment: 16 March 2009