The Queen v Inkerman[1997] QCA 316

 COURT OF APPEAL

PINCUS JA

McPHERSON JA

de JERSEY J

CA No 294 of 1997 

THE QUEEN 

v. 

GREGORY RALPH INKERMANApplicant

AND

CA No 302 of 1997

THE QUEEN

v.

GREGORY RALPH INKERMANRespondent

and

THE ATTORNEY-GENERAL OF QUEENSLANDAppellant

BRISBANE

DATE 29/08/97

JUDGMENT

PINCUS JA:  We have before us an application for leave to appeal by Mr Inkerman, who was convicted of rape in the District Court of Townsville, and an appeal against sentence by the Attorney-General.  The learned primary judge ordered that Mr Inkerman be imprisoned for a period of six years and declared him to be convicted of a serious violent offence. 

It was convenient to deal first with Mr Inkerman's application which complains only of the declaration I have mentioned.  That declaration can be valid only if Part 9A of the Penalties and Sentences (Serious Violent Offenders) Act Amendment Act 1997 applies to the present case, in which the offence was committed before, but the sentence imposed after, the date of commencement of the amending Act, namely, 1 July 1997; the date of commission of the offence was 12 August 1995.  There are, it is pointed out in the submission on behalf of Mr Inkerman, a number of reasons for thinking that this change in the law cannot adversely affect Mr Inkerman; of these perhaps the simplest is section 11(2) of the Criminal Code which is as follows:

"If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law."

Of course this provision may be overridden by subsequent legislation, but it creates a statutory presumption, in effect, in favour of persons such as Mr Inkerman.  It is clear that the effect of the 1997 amending Act, if it applies to him, is to make him liable to punishment to a greater extent than was authorised by the law prior to the amendment.  I can find no indication in the 1997 amendment of an intention to make the provisions of Part 9A apply to offences committed before its enactment.  Counsel for the Attorney-General does not controvert the submission made by Mr Butler SC on behalf of Mr Inkerman that Part 9A cannot so apply; I agree with that submission and I am of the view that the primary judge was in error in making the declaration which he did.

The remaining and perhaps more difficult question is the Attorney-General's appeal against sentence.  Mr Inkerman, a man who turned 28 yesterday, committed the offence on 12 August 1995 when he was nearly 26 years of age.  The complainant went to bed in her home in Cherbourg in the early hours of the morning and awoke to find Mr Inkerman lying on top of her with his penis inserted into her vagina.  As soon as she recognised who he was she shouted to him to get off.  Mr Inkerman told her that the two of them had come home together.  The complainant denied that and said she had walked home on her own.  The complainant started to yell, Mr Inkerman got off her and got dressed and left.  There had never been any friendship between the two of them.  Counsel for Mr Inkerman, however, told the primary judge the following:

"In relation to the penetration, what she [that is, the victim] says is that, 'He was between my legs and I could feel him trying to put his badoo' - by that she means his penis - in her.  'It felt like he had been inside me a little bit and was still trying to put it in me.'"

In consequence of that, counsel for Mr Inkerman suggested below that full penetration had not taken place.  Other relevant circumstances were that there was a plea of guilty and that Mr Inkerman failed to appear at the District Court on 2 December 1996 and a warrant was issued for his arrest.  As to that, counsel for Mr Inkerman below said that Mr Inkerman was on Palm Island throughout the relevant time and easily able to be located. 

Mr Inkerman had, before he had committed the offence in question, been convicted of three other offences.  In 1986 he was convicted of assault occasioning bodily harm and fined $50 and in 1987 was convicted of unlawful wounding and ordered to give 100 hours community service.  In 1991 he was convicted of aggravated assault on a female child under the age of 17 years and placed on 12 months probation.  His only other offence was a breach of the Bail Act in respect of the rape with which the Court is presently concerned.  It is said against him that Mr Inkerman had a history of violence before he committed the rape, but I note that so far as one can tell from the penalties imposed not any of the previous three offences was exceptionally serious. 

The principal subject which has been discussed before us is the relationship between the sentence of six years which was imposed in the present case and the sentences imposed in three previous recent matters.  They are, Stirling (C.A. No. 205 of 1996, judgment delivered 17 September 1997); Press (C.A. No. 489 of 1996, judgment delivered 14 February 1997) and McIlvaney (C.A. No. 427 of 1996, judgment delivered 4 March 1997).  In two of those cases, Stirling and McIlvaney, there was a not guilty plea in respect of the rape.  Here, there was a guilty plea and that must be taken into account in favour of Mr Inkerman.  Further, my impression is that both Stirling and McIlvaney involved, generally speaking, worse offences, as to the physical aspects of what was done, than the present one.

A difficulty for Mr Inkerman, as it seems to me, is the decision in Press where the Court fixed a sentence of seven years; I was, and remain, of the impression that the sentence in Press makes the six years here awarded perhaps seem a little low.

Having regard, however, to the level of sentencing in these three previous decisions, I am of the opinion that a sentence of six years represented a justifiable approach to the matter by the primary judge and I would dismiss the Attorney's appeal.

That is, the orders I would make in relation to the matter are that the Attorney's appeal is dismissed; the application for leave to appeal against sentence is granted and that appeal allowed to the extent of removing the declaration under Part 9A of the 1997 Amendment Act. 

McPHERSON JA:  A sentence of six years imprisonment, seems to be me, to be rather lenient for the offence of rape involving, as this one does, an unlawful intrusion into a woman's house in the night. 

Women, and for that matter, everyone else, are entitled to consider themselves safe in their own homes at night.  If they are not safe there, there is nowhere else that they can be safe. 

The deterrent element in cases of this kind is, therefore, obviously prominent.   It is, in the circumstances, a particular that counts against the offender in this case. But what rather tells against the higher penalty here is that no or little force was used in perpetrating the offence. The offender pleaded guilty and the circumstances of the rape were not attended by any circumstances of the kind that one commonly encounters in the more unpleasant versions of that offence.

Having regard to the principles on which Attorney's appeals against the inadequacy of sentence are entertained in this Court, this in the end does not seem to me to be a case in which the sentence should be considered so manifestly inadequate as to call for intervention on the appeal.

I agree with the order proposed by Justice Pincus for disposing of the matter.

de JERSEY J:  I also agree with the orders proposed by the presiding Judge for the reasons he gave.  I agree also with the observations made by Mr Justice McPherson.

PINCUS JA:  There is no submission you want to make about the form of order, either of you?

MR BUTLER:  No, Your Honour.

PINCUS JA:  Those will be the orders then, as I have indicated.