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BRISBANE - The legal officer who prosecuted the controversial Australian gang-rape case described the crime as "childish experimentation" and consensual "in a general sense".
Cairns-based district court judge Sarah Bradley did not record convictions against six teenage attackers and gave three others - aged 17, 18 and 26 - suspended sentences over the rape of a 10-year-old girl in the indigenous community of Aurukun in 2006.
The case has outraged the community, with Prime Minister Kevin Rudd saying he was "disgusted and appalled".
Queensland Premier Anna Bligh admits her Government failed the girl, who was pack-raped twice in a far northern indigenous community - the second time after being returned there by child safety officers.
The child was gang-raped at the age of 7 in the Cape York community of Aurukun in 2002, and was later put into foster care with a non-indigenous family in Cairns. However, child safety officers in April 2006 returned her to Aurukun, where she was raped again at the age of 10.
Bligh said yesterday that there was "absolutely no question" the Child Safety Department had failed the girl.
Bligh could not give a reason for the officers' decision to return the girl to Aurukun, but said it should never have happened.
Media reports suggested the officers removed the child from her white foster parents and returned her to Aurukun to avoid "another stolen generation".
The girl is now in the care of the Child Safety Department.
Queensland Director of Public Prosecutions Leanne Clare yesterday came under fire from child advocates and the state opposition for not seeking jail sentences for the offenders in the second rape case.
Attorney-General Kerry Shine has also lodged an appeal to increase the sentences, handed out on October 24.
While Clare has declined to comment, her office publicly released transcripts of the court proceedings.
They revealed that during the case, DPP legal officer Steve Carter described the incident - in which the girl contracted a sexually transmitted disease - as "consensual sex".
"To the extent I can't say it was consensual in the legal sense, but in the other - in the general sense, the non-legal sense, yes, it was," Carter told the court.
"So, I then ask on that basis not to seek any periods of detention, not to seek any periods of custody, immediate custody."
Carter said the girl and the boys and men had prearranged the sex and they had not forced themselves on the girl or threatened her.
"My submission in relation to this particular offence is the same that I make in relation to children of that age ... they're very naughty for doing what they're doing but it's really - in this case, it was a form of childish experimentation, rather than one child being prevailed upon by another.
"Although she was very young, she knew what was going on and she had agreed to meet the children at this particular place and it was all by arrangement. I'd ask your Honour to take that into account."
Carter also told the court such incidents were not out of character in small, remote communities.
" ... Children, females, have got to be - deserve - the same protection under the law in an Aboriginal or an indigenous community as they do in any other community," Carter said.
"But sometimes things happen in a small community when children get together and people that are just past their childhood and these sort of things are what we're dealing with today."
Federal Indigenous Affairs Minister Jenny Macklin says the courts and child protection system failed the girl.
Macklin said the case was a "shocking reminder" of the child abuse occurring in indigenous communities.
"Like the Queensland Premier Anna Bligh and the indigenous women of Queensland who have spoken out ... I believe that child safety is paramount, and child victims of violence deserve the full protection of the law," she said at a stolen generations conference in Sydney.
The row takes place against the background of the federal Government's beginning the process of formulating a national apology to the stolen generations.
- AAP
