A judge for a Cape York Peninsula case has suspended the sentence of three of seven gang rapists who had sex with a 10 yo girl, saying that she 'probably consented.' The four other rapists were juveniles. The oldest offender, 26 years old, was sentenced to six months, suspended for 12 months.
Triumph of ALP legislation?
Monday, December 10, 2007
Ten Year Old Girl Consents To Gang Rape
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Girl, 10, 'probably agreed' to sex
By Tony Koch and Padraic Murphy
NINE men who pleaded guilty last month to gang-raping a 10-year-old girl at the Aurukun Aboriginal community on Cape York have escaped a prison term, with the sentencing judge saying the child victim "probably agreed" to have sex with them.
Cairns-based District Court judge Sarah Bradley ordered that the six teenage juveniles not even have a conviction recorded for the 2005 offence, and that they be placed on a 12-month probation order.
Judge Bradley sentenced three men over the age of consent of 16 - aged 17, 18 and 26 - to six months' imprisonment, with the sentence suspended for 12 months.
Because the 28-day appeal period has expired, the sentences cannot be altered.
Judge Bradley said from her Cairns home yesterday that she considered the sentences "appropriate" in the case because they were the penalties asked for by the Crown prosecutor.
"I am not in a position to comment and I refer you to my sentencing remarks," Judge Bradley told The Australian.
Family supporters of the child victim warned that violence and murders could follow the judge's decision not to jail any of the offenders, and they questioned what message the ruling sent to the community.
When sentencing seven co-accused on October 24 at Aurukun, Judge Bradley noted: "The girl involved was not forced and she probably agreed to have sex with all of you."
The four juveniles are aged 14 to 16 years. They and the adults come from some of the most prominent and powerful Aboriginal families on Cape York.
Two more juveniles pleaded guilty on November 6 to raping the child, and were also given probation with no convictions recorded.
The child victim, now aged 12, does not enjoy the elevated family status of her attackers, and has had to be removed from Aurukun and put with foster parents.
News of the non-custodial sentences has added to the violent hatreds that exist in Aurukun between families and tribes and which have played a part in recent brawls involving dozens of assailants, many armed with sticks and spears.
Queensland Attorney-General Kerry Shine said last night hehad called for an urgent meeting this morning with state Director of Public Prosecutions Leanne Clare, who, it is understood, was not told of the submissions made by her prosecutor for non-custodial sentences for the rapists.
Mr Shine said he needed to receive a clear picture of the circumstances surrounding the sentencing, including the prosecutor's submissions.
"I have been made aware of this tragic event this afternoon and have had an opportunity to read the sentencing remarks," Mr Shine said.
"I'm truly horrified by the circumstances of these offences. The circumstances of this case have not previously been brought to my attention, and nor has there been any communication with my office with regard to an appeal.
"Rape, particularly of a 10-year-old girl, by numerous offenders, is to my mind horrific in the extreme.
"It therefore appears to me that what I consider to be a particularly lenient sentence needs explanation."
One of the adult rapists, Raymond Frederick Woolla, 26, is on the Australian National Child Offence Register following a conviction on March 29 last year for unlawful carnal knowledge of a female child - an offence committed after he was charged with the rape of the 10-year-old girl.
Judge Bradley said Woolla was the oldest and should have known a lot better.
"You cannot have sex with anyone under 16," she said.
"However, as I said before, I am not treating anyone any differently in terms of being a ringleader, and in your case, again, I will impose a sentence of imprisonment but it will be wholly suspended so you do not go to jail today.
"But if you get into more trouble in the next year, you could end up in jail." Woolla had been arrested on August 7, 2006, and the judge said the 14 days he spent in custody awaiting his sentence was to count as "imprisonment already served".
When sentencing the juveniles, Justice Bradley said: "All of you have pleaded guilty to having sex with a 10-year-old girl and (one of the juveniles) has pleaded guilty to having sex with another young girl as well.
"All of you have to understand that you cannot have sex with a girl under 16.
"If you do, you are breaking the law, and if you are found out, then you will be brought to court and could end up in jail.
"I accept that the girl involved, with respect to all of these matters, was not forced, and that she probably agreed to have sex with all of you.
"But you were taking advantage of a 10-year-old girl and she needs to be protected, and the girls generally in this community need to be protected.
"This is a very serious matter.
"It is a very shameful matter and I hope that all of you realise that you must not have sex with young girls.
"Anyone under 16 is too young.
"Some of you are still children yourselves.
"Others of you are adults but I am treating you all equally in terms of the behaviour.
"I am not treating any of you as the ringleader or anything likethat."
She asked each prisoner to stand up and said she hoped they would realise it was wrong to have sex with young girls.
Justice Bradley then offered them probation and when each agreed to accept that, she said she would not record a conviction.
To one of the juveniles, she said: "You are still a child. You have pleaded guilty to one offence of rape.
"You have been in a lot of trouble in the past, though, and you still have some community service to do.
"You have not been doing that well. I am prepared to offer you probation but you have got to stick with the rules of probation."
The juvenile agreed and was then placed on 12 months' probation, with no conviction recorded.
Let’s clear up the Heiner affair
Piers Akerman
THE news that nine young males who gang-raped a 10-year-old girl in Queensland escaped prison sentences will come as no surprise to regular readers of this column.
There are eerie overtones in this case to the culture exposed by the disgraceful Heiner affair.
Since August, I have argued for the appointment of an independent inquiry or an independent special prosecutor to examine the injustices at the heart of the Heiner matter, which revolves around the shredding of documents from an inquiry into a Queensland youth detention centre.
One of the matters raised during that inquiry, according to several witnesses, was the rape of an Aboriginal girl who was an inmate of the John Oxley Youth Centre.
Retired magistrate Noel Heiner, who ran the inquiry before it was closed down by the Goss government, told a House of Representatives inquiry he could not recall whether the matter was raised during his investigation.
However, as he could also not recall interviewing the director of the John Oxley Youth Centre, Peter Coyne, when he had in fact quizzed him for a full day, his memory of events is at best unreliable.
That rape remains the subject of a lengthy and continuing Queensland police investigation which has now been expanded to include another alleged incident.
When the rape was initially reported, the young victim was strongly dissuaded by youth workers and police from pressing her case even though she was under the age of consent at the time and it should have made no difference under the law whether she wished to have the matter pursued.
It was a clear case of carnal knowledge and the victim’s thoughts on police action were and remain totally irrelevant.
Further, it should have been an open and shut case as several of her attackers confessed to taking part in the rape at the time.
In the current case, Queensland District Court judge Sarah Bradley said in her sentencing remarks: “I accept the girl involved, with respect to all of these matters was not forced, and that she probably agreed to have sex with all of you. But you were taking advantage of a 10-year-old girl and she needs to be protected and the girls generally in this community need to be protected.
“It is a shameful matter and I hope that all of you realise that you must not have sex with young girls. Anyone under 16 is too young.
“Some of you are still children yourselves.
“Others of you are adults but I am treating you all equally in terms of the behaviour. I am not treating any of you as the ringleader or anything like that.” Each of the offenders was offered probation with no record of conviction.
In the case of the young girl who was raped while in the care of the Queensland Government, a prima facie case of carnal knowledge was conveniently overlooked.
In the more recent matter, the judge considered the victim’s “consent” worthy of mention during her sentencing remarks, even though the “consent” of an underage victim should carry absolutely no weight at all, let alone when such a “consent” was given by a 10-year-old child to nine males, one aged 26.
It is difficult to escape the suspicion that had the victims in both cases not been Aboriginal, a very different approach to the law might have been taken by every branch of the Queensland Government involved.
An impressive array of retired senior judges including the former West Australian Chief Justice (David Malcolm), two retired NSW Chief Judges (Jack Lee, now deceased, and Dr Frank McGrath), two retired NSW Supreme Court Justices (Roddy Meagher and Barry O’Keefe), one of Australia’s foremost QCs (Alec Shand) and a legal academic and barrister (Alastair MacAdam), all wrote to former Queensland premier Peter Beattie seeking the appointment of an independent special prosecutor into the unresolved Heiner affair and were rebuffed.
Their plea was sent to the current Queensland Premier Anna Bligh and was similarly rejected with the claim that the matter had been thoroughly investigated. That is absolute humbug as neither Beattie nor Bligh has ever released critical documents to investigators.
The Queensland Bar Association has now conducted two inquiries into the matter (the second after receiving the judges’ letter) but has refused to discuss its findings. Secrecy and suppression surround the Heiner matter.
This latest demonstration of the peculiarity of the law as it exists in Queensland is therefore not unusual.
But Prime Minister Kevin Rudd is a Queenslander, and was intimately involved as chief of staff to former premier Wayne Goss in the activities of his cabinet which ordered the shredding of the Heiner documents, though knowing some were wanted as evidence in court actions.
As a Queenslander, Rudd might now consider clearing up this ongoing controversy once and for all, by ensuring an outside independent body be charged to look into all of the dark corners and put in place a mechanism to ensure that indigenous children in his home state have the same rights before the law as all children, whatever their parentage, have nationally.
Three weeks ago Rudd said he would govern for all Australians, now he can show us he meant it.
10-year-old “agrees” to being pack-raped
Andrew Bolt
Child rape is endemic in Aboriginal communities. So what signal has been sent by this judge?
NINE males who pleaded guilty last month to gang-raping a 10-year-old girl at the Aurukun Aboriginal community on Cape York have escaped a prison term, with the sentencing judge saying the child victim “probably agreed” to have sex with them.
Cairns-based District Court judge Sarah Bradley ordered that the six teenage juveniles not even have a conviction recorded for the 2005 offence, and that they be placed on a 12-month probation order.
If the boys were white, would the judge have let them walk?
The depravity behind this girl’s rape is shocking enough. The judge’s reaction is even more startling, and helps to explain how such a toxic culture has been allowed to fester for so long.
The poor girl. At least she’s now been ”stolen”.
UPDATE
Simon Cameron says this case is not unprecedented, unfortunately. Here’s a similar one, albeit involving younger offenders, that he reported in 2002:
A JUDGE has recorded no convictions against a gang of four teenagers who sexually assaulted an 11-year-old girl in a Thursday Island toilet block.
UPDATE 2
Both good news and shocking:
THE Queensland Government will review all criminal sentences in Cape York communities from the past two years after nine teenagers who gang-raped a girl escaped jail time…
Premier Anna Bligh said she was concerned the sentence could be part of a trend in the region.
UPDATE 3
What may have led Justice Sarah Bradley to take what seems an astonishingly lenient view of this pack rape - a view that I doubt she’d have taken had the offenders been white?
I haven’t yet got access to transcripts and the full judgement of this case, which may reveal all. But this speech by the Judge in January, titled Using Indigenous Justice Initiatives in Sentencing, suggests some fashionable theories and an apparent desire to ingratiate might help to explain a lot:
The statistical facts highlight why Indigenous offenders should be given special consideration in courts. Indigenous people are over represented in the criminal justice system in every Australian jurisdiction. ...
In June 2006 the Human Rights Council of the United Nations adopted the United Nations Declaration on the Rights of Indigenous Peoples which is currently before the General Assembly. The declaration requires States to take effective measures to ensure that “Indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means"6 and further that “States shall consult and co-operate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them"…
On 19 December 2000 the Queensland Government entered into a justice agreement with the then Aboriginal and Torres Strait Islander Advisory Board representing Indigenous people… The agreement has a particular target of reducing Indigenous incarceration rates by 50% by 2011.
All of these innovations and ways of doing Indigenous Justice are steps towards justice… Judicial officers are better informed as to the background of the offender and the context in which the offence took place. Penalties can be more creative, meaningful and appropriate to the offenders, their victims and their communities…
There are times when the offending behaviour clearly warrants the imposition of severe and significant penalties. There are also times when a judge who has knowledge of a community, has information about the community view of the offending, the background to it and the full particulars of those involved may decide that an alternative penalty is appropriate. Determining which category of case is before you can be problematic and can often only be done with input from the Indigenous community itself.
UPDATE 4
More clues, from a speech Bradley gave last year - Applying Restorative Justice Principles in the Sentencing of Indigenous Offenders and Children:
Justice is being done in a restorative manner when the process:
• Focuses on the harm done rather than the rules broken;
• Shows equal concern for victims and offenders and their communities and involves all three;…
• Encourages collaboration and reintegration rather than coercion and isolation of the offender. ..
Restorative Justice involves an emphasis on reparation, rehabilitation and reconciliation rather than punishment, condemnation and retribution. It is about healing rather than hurting...
Recently in Cairns, an eight year old, an eleven year old and a thirteen year old were accused of raping a three year old girl. No criminal justice action could be taken against the eight year old alleged offender as he was below the age of criminal responsibility. The thirteen year old was referred by police to a Youth Justice Conference and the eleven year old was charged with criminal offences. In due course, I, or a colleague, will most likely have to consider whether to refer the eleven year old to a Youth Justice Conference… Conferencing is a facilitative process which at its best provides the offender and his/her family with the opportunity to confront his/her guilt and move on, and the victim and his/her family with the opportunity to commence healing…
For those of us who are convinced of the benefits of applying Restorative Justice principles when sentencing, the current political and community climate presents challenges. There is an obvious tension between an instinctive attraction towards the application of Restorative Justice principles and the pressure through the media of political and community perceptions that the system is “soft” on criminals and sentences too light.
How very right Justice Bradley was on that last point, at least.
I’m not surprised Premier Bligh says she fears there’s a trend to not punishing Aboriginal rapists. There’s plenty of faddish legal theory around to make anyone suspicious.
Child safety department knew of girl's plight
By Tony Koch
QUEENSLAND'S Child Safety Department knew that a 10-year-old girl had been gang-raped but did not report it to police, despite the girl also contracting a sexually transmitted disease from the encounter.
The child - who had been living in a Cairns foster home before the department decided to return her to Aurukun, in Cape York - has been diagnosed as "mildly intellectually impaired" and suffering from fetal alcohol syndrome, having been born to an alcohol-dependent mother.
The Australian yesterday revealed nine males who pleaded guilty to gang-raping the girl had escaped a prison term, with sentencing judge Sarah Bradley saying the child victim "probably agreed" to have sex with them.
An eight-month investigation was conducted into the April 2006 multiple rape and submitted to the Department of Child Safety, resulting in one senior officer being sacked and two others suspended for 12 months on full pay - a situation that still exists.
A senior departmental official yesterday told The Australian that the child involved was sexually abused at age seven and, as a safety measure, was put with various foster families, eventually ending up in 2005 with a non-indigenous family in Cairns. But she was returned nine months later to Aurukun, where she was gang-raped by the nine males.
"These non-indigenous people were fantastic - ensuring she went to school, and the father actually took a year off his work to personally supervise this girl," he said. "But two new social workers were appointed to the north and they expressed the view, which was repeated many times to the investigating committee, that putting an indigenous child with white foster parents was another stolen generation.
"They convinced the department with this rubbish and the girl was taken from Cairns to Aurukun - back to where she was being abused previously and where she had contracted syphilis as a little child - and she was unsupervised, with the result that she was constantly raped.
"The report sets out how every step of the way the Child Safety Department did everything wrong, and all because they weretold that a safe, white environment was `another stolen generation'."
A report of the rape in The Australian yesterday sparked animmediate response, with Queensland Attorney-General Kerry Shine announcing he would lodge an appeal against the sentencing of the nine attackers.
But Mr Shine admitted the appeal would be hampered by the fact the prosecutor in the case, Steve Carter, did not recommend jail. Mr Carter yesterday refused to speak to The Australian about the sentences, referring questions to the DPP's office in Brisbane.
The Queensland Government also ordered a review of every sentence handed down in every sexual assault case in Cape York communities in the past two years.
Premier Anna Bligh said the purpose of the review was to examine whether the sentence in the Aurukun rape case was part of"system-wide" problems in the Cape.
"I want to satisfy myself that the people of Cape York, and the people who live in remote indigenous communities, are receiving the same level of justice as we can expect in any other community in Queensland," Ms Bligh said. "I do want to satisfy myself that this is not part of a broader sentencing trend that reflects a lower standard for those communities."
The case also prompted questions as to whether the federal intervention in Northern Territory Aboriginal communities should be extended to Queensland in an effort to prevent such abuses occurring again.
Prime Minister Kevin Rudd refused to commit to a such a move, saying: "I think the appropriate thing is to await the further deliberation of Queensland's Attorney-General."
The official report produced following the eight-month investigation states that a senior Child Safety officer was told on May 11 last year that the child had gonorrhea. It was revealed after the girl attended the Aurukun medical clinic on May 5 last year asking for a pregnancy test and condoms.
That information was immediately relayed to Child Safety, but the senior Child Safety officer did not pass the information on to police in line with her statutory obligations, and when questioned about it said she had spent several weeks making inquiries if gonorrhea was contractable through means other than sexual transmission.
The investigating committee also reported that the Child Safety officers took no remedial action when the girl threatened to commit suicide.
The committee's findings of failures by the Child Safety Department included possible non-reporting of other criminal offences against children to police, other possible early returns of indigenous children to their communities without sufficient prior consideration, and failure to record a suicide risk alert regarding the raped child's threat to suicide and whether this is indicative of a broader problem.
The report's findings also highlighted a loss of departmental documents including the child's Suspected Child Abuse and Neglect (SCAN) file and other SCAN files; a lack of knowledge by staff of what diseases constitute sexually transmitted diseases; and a lack of knowledge by staff of what may constitute a criminal offence on a child.
The committee also found the child had first contracted syphilis in April 2002 when she was aged seven and was raped by five juveniles in Aurukun, receiving severe genital injuries.
When sentencing the nine juveniles for the gang rape carried out last year, Judge Bradley said: "All of you have pleaded guilty to having sex with a 10-year-old girl and (one of the juveniles) has pleaded guilty to having sex with another young girl as well.
"All of you have to understand that you cannot have sex with a girl under 16.
"If you do, you are breaking the law, and if you are found out, then you will be brought to court and could end up in jail.
"I accept that the girl involved, with respect to all of these matters, was not forced, and that she probably agreed to have sex with all of you."
This "judge" and supposed "woman" who basically apologized to the child rapists for being found out, is a sorry sack of dog doo. This is beyond my comprehension how a child can consent to being gang raped. Give me a break! This child was severely abused the first time at seven years old, where she had severe genital injuries as a result of five adults raping her. Then it happens to her again. This child has been raped by everyone. I'm so sick. I'd like for all her abusers to be sexually tortured in the same way they tortured her.
I agree that it is appalling. I don't accept torture as a result for this girl's administrative abusers, but I don't think they should be in positions of responsibility, and maybe they should get hard time in jail. I feel pity for the girl. I am reminded of the Shakespeare play Titus Andronicus and how the father dealt with his daughter's rape. The problem still seems to be ALP governance.
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