Attorney-General v Elzinga[1998] QCA 128

FRYBERG J:  The respondent was convicted in the District Court at Maroochydore on one count of rape and a second of deprivation of liberty. On the first count he was sentenced to imprisonment for five years and on the second to imprisonment for two years and a recommendation was made that he be considered for parole after 18 months. The Attorney-General appeals against that sentence.

The circumstances of the offence were these. The respondent lived in a dwelling unit in the same building as the complainant. They became acquaintances, perhaps friendly, and attended social functions together. However, the respondent was not the complainant's boyfriend.

The complainant lived, apparently, alone and was aged 19. A few days before the offence she had a disagreement with her boyfriend. However, on the night of the offence she, her boyfriend and the respondent, with other people, went to a nightclub and stayed for some considerable number of hours drinking beer with vouchers which the complainant had.

In the course of that evening the respondent asked her about having a relationship and she said that she did not want anything to do with men at that time. While at the nightclub the respondent was touching the complainant on the knee, an action which she thought was intended to make her boyfriend jealous. Ultimately, the others left and the respondent and the complainant walked home together to the unit block. Outside the block the respondent blocked the complainant's path upstairs and said, "If you want to get home you have to kiss me."  In order to gain access to her unit she complied with this request. He persistently asked her to go to his flat but she said no. She went to go up the stairs, slipped and fell into the doorway of his unit.

He appears, on the material put before the trial Judge, then to have placed his hands under her arms and dragged her into the unit shutting the door behind them. Inside the unit he lay on top of her and rubbed her body and inserted his finger into her vagina. Throughout this time she was telling him to stop. She was wearing a tampon because she was menstruating and that tampon remained in place throughout the events of the evening.

It is unnecessary to describe in detail what followed. It suffices to say that he proceeded to remove her clothes. He became, in her description, "angry and really rough" and he raped her. He did not ejaculate. Initially, after the rape he refused to allow her to leave. He told her that if she told anyone he would kill her.

Eventually she was allowed to go. Some time, shortly afterwards, when she had gone to her unit he appeared outside it and apologised for what had happened. He said, "I am really sorry for doing it."  Whether this indicated remorse or a desire to discourage her from going to the police is not clear. He repeated threats to her and told her not to tell anyone what had occurred. In fact, the police were contacted and attended that night. The respondent readily made admissions to them and asserted his regret for what had occurred. He did not retract the admissions at any time and the complainant did not have to give evidence at any time, either at committal proceedings or at the trial, which was, in fact, only a sentence on his plea of guilty.

A Victim Impact Statement was placed before the trial judge and in it the complainant described the difficulties which she had after the rape and particularly psychological difficulties affecting her personal relationships and the fears that she had of men and, in particular, the worries which she had regarding the respondent.

At the time that the respondent committed the offences he was on probation for breach of a Domestic Violence Order. The Domestic Violence Order related to his seeking access to his child which, he said, was being denied by his ex-girlfriend. He lost his temper and did some property damage.

While there is some difference between that and the present situation, it is, I think, a material fact that there had been such a breach and that he was on probation in respect of it. The sentencing judge, quite correctly, referred to the seriousness of the offence, to the importance of deterrence and to the conclusion which he formed that the respondent was remorseful.

Counsel for the appellant did not suggest that the judge had overlooked any particular relevant factor or taken into account any factor which ought not to have been considered. His submission essentially was that the sentence, which was ultimately imposed, was outside the proper range of sentences for this sort of case;  largely because it seemed on the submission, that there had been double counting of the factors in favour of the respondent not only by fixing a low sentence, a sentence at the very bottom of what was submitted to be the range, but also by recommending early parole.

Reference was made particularly to the decision of this Court in R v. Stephens, a decision given upon an appeal by the Attorney-General in a case which has many similarities to the present one. In that case the respondent was convicted on two counts of rape and one of indecent assault on a young woman with whom he had been living in a de facto relationship. Mr Byrne QC for the appellant submitted that this was a difference of significance between that case and the present. It does not seem to me that that is a factor of any great importance. The judge in that case at first instance had sentenced the respondent to three years imprisonment and the Court of Appeal allowed the Attorney's appeal and increased the period of imprisonment to five years with a recommendation that the respondent be eligible for parole after serving two years of that term.

It was conceded in that case by the respondent's counsel that had the case been one of a rape between strangers the appropriate range would have been between five and seven years and in my judgment that concession was correct.

The present case, in my view, cannot be distinguished in any meaningful way from the decision in Stephens. The penalty which was imposed was low and I would not want it to be thought that in rejecting this appeal, as I propose to do, I was, in any way, seeking to establish a new range of penalties.

The penalty imposed was, in my view, within the range open to the judge in the exercise of his discretion, but just. For that reason I do not think this is a case in which it has been demonstrated that it would be appropriate for this Court to intervene. In my judgment the appeal should be dismissed.

THE PRESIDENT:  I agree. However, I emphasise that the rape sentence in this case, including the recommendation for eligibility for consideration for parole, was at the very bottom limit of the sentencing Judge's discretion and then only because of the decision of this Court in Stephens CA No 411 of 1994, judgment delivered 28 November 1994.

Subsequent decisions, including Press and Inkermann indicate that ordinarily this respondent might have expected to receive a heavier sentence. I agree, however, that in the circumstances described by Justice Fryberg, the Attorney-General's appeal should not, in this instance, be allowed.

DAVIES JA:  I agree.

THE PRESIDENT:  The application is refused.