Rapists of girl, 10, `should be jailed'
14.05.2008
By Sarah Elkes.
QUEENSLAND'S Solicitor-General has called for jail sentences ranging from one to eight years for nine males who were not sent to prison after they pleaded guilty to raping a 10-year-old girl at Aurukun, on Cape York, in 2006.
The appeal against the sentence, which began in Queensland's Court of Appeal yesterday, was launched by Attorney-General Kerry Shine after the case was revealed in The Australian last year.
Cairns District Court judge Sarah Bradley gave suspended sentences to three men, aged 17, 18 and 25 at the time of the rapes, and ordered that six juveniles, aged between 13 and 15, be placed on probation orders with no convictions recorded.
Mr Shine had previously described the sentences as ``manifestly inadequate''.
Solicitor-General Walter Sofronoff, for the Attorney-General, yesterday argued there had been five ``evident errors of law'' in the sentencing.
He said there were legal precedents that an adult who sexually assaulted a child and a juvenile who raped a 10-year-old should be imprisoned.
Mr Sofronoff argued that two of the adult offenders, aged 25 and 18 at the time of the rape, should be jailed for eight years, with a parole eligibility date to be set. He said the third adult, aged 17, should be jailed for seven to eight years.
He argued that the six juveniles should receive detention sentences of between one and three years.
Mr Sofronoff said Judge Bradley had not given reasons for handing down non-custodial sentences to the males and had treated all the offenders equally, despite differences in age and criminal history.
He said Judge Bradley had failed to take into account the principle of general deterrence, and had placed too much emphasis on Aurukun's social dysfunction as a reason for the offenders' lack of moral standards. It was the Aurukun community's right to ``have a sentence that truly deters this offence''.
``Members of even a dysfunctional society -- if that is what it is -- require and deserve the protection of law,'' Mr Sofronoff told the court.
He asked the bench -- which comprised Chief Justice Paul de Jersey, Court of Appeal president Margaret McMurdo and Justice Patrick Keane -- to choose a sentence that would assert a ``fundamental standard of behaviour in Aurukun''.
But Ken Fleming, senior counsel representing the offenders, told the court that his clients should not be imprisoned or detained and said the appeal should be dismissed.
Mr Fleming said while the law said a child under the age of 12 was incapable of giving consent, ``the complainant had sex with all (of the offenders) without objection''.
He suggested the ``lack of objection'' could influence the sentence of the offenders.
There was an ``uncomfortable tension that it was sex without objection and was actively encouraged'' by the victim, he said.
But Chief Justice de Jersey said he had ``great difficulty'' in accepting that consent or lack of objection from the victim could mitigate the sentence. The suggestion from prosecutor Steve Carter that the girl had given consent to sex in a ``non-legal sense'' was ``nonsense'' and an ``irrelevant consideration'', Chief Justice de Jersey said.
Mr Fleming said there had been flaws in the case from the beginning.
He said prosecutor Steve Carter did not ask for custodial sentences. He said the arrangements were made by telephone, with the judge in Cairns and the accused in Aurukun.
Mr Fleming said the accused should not have been included in the one indictment, but conceded that while the prosecutor had suggested this, the defence had agreed to it.
The hearing continues today.
