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Inkemala v The Queen [2005] NTCCA 6

PARTIES: INKEMALA, Burton

v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 13 of 2004 (20205382)

DELIVERED: 20 April 2005

HEARING DATES: 20 April 2005

JUDGMENT OF: MARTIN (BR) CJ, THOMAS AND
RILEY JJ

CATCHWORDS:

CRIMINAL LAW
Appeal – appeal against sentence –non-parole period – error of principle in calculation of period – head sentence to remain unaltered – non-parole period amended – appeal allowed.

Criminal Code (NT), s 192(3) and s 196(1); Sentencing Act (NT), s 55(1).

REPRESENTATION:

Counsel:
Appellant: S Cox QC
Respondent: R Noble

Solicitors:
Appellant: Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: A
Judgment ID Number: Mar0509
Number of pages: 9

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Inkemala v The Queen [2005] NTCCA 6
No. CA 13 of 2004 (20205382)

BETWEEN:

BURTON INKEMALA
Appellant

AND:

THE QUEEN
Respondent

CORAM: MARTIN (BR) CJ, THOMAS AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 20 April 2005)

Martin (BR) CJ:
[1] The appellant pleaded guilty to five offences arising out of a lengthy course of conduct during the evening of 6 April 2002 into the morning of 7 April 2002.

[2] On the first count, that the appellant deprived the complainant of her personal liberty, the learned sentencing Judge imposed a sentence of three years' imprisonment. On the second count, that the appellant had sexual intercourse, namely penile penetration of the anus, without the consent of the complainant, the sentencing Judge imposed a sentence of eight years' imprisonment.
[3] Count 3 concerned vaginal sexual intercourse without the consent of the complainant and a sentence of seven years' imprisonment was imposed. Count 4 involved anal penetration in respect of which a sentence of eight years' imprisonment was fixed. Finally, count 5 again concerned anal penetration and a sentence of eight years' imprisonment was imposed.
[4] The learned sentencing Judge directed that the sentences imposed with respect to counts 2, 3, 4 and 5 be served concurrently with each other, but cumulatively upon the period of three years imposed for the deprivation of liberty. A total head sentence of eleven years was thereby arrived at and his Honour fixed a non-parole period of seven years and nine months. The sentences were backdated to commence on 1 October 2003 to reflect time spent in custody.
[5] The appellant complains that the sentences, in particular the total period of eleven years and the non-parole period, are manifestly excessive. There is a complaint that the principle of totality was not properly applied. In particular, counsel for the appellant submitted that the accumulation of the sentences imposed for the crimes of rape upon the sentence for deprivation of liberty was in error. The appellant also raises an issue related to the non-parole period to which I will return.
[6] It is unnecessary to canvas the facts in any detail. In substance the appellant and the complainant, who were unknown to each other, came to be drinking at the same premises. When the complainant left the premises late at night, the appellant followed her.
[7] The complainant was accompanied by a male companion. The appellant walked up behind both the complainant and her companion and punched the companion. The complainant screamed at the offender and tried to push him off. The male companion ran off. The appellant struck the complainant and she fell to the ground.
[8] In essence, the appellant took hold of the complainant and made her accompany him. He applied violence to her. Over the next eleven hours, the appellant deprived the complainant of her liberty and raped her on four occasions. As I have said, the rapes involved both vaginal and anal penetration.
[9] The complainant was subjected to a terrifying and humiliating ordeal over a very lengthy period of time. Every crime of rape is serious. These crimes were particularly so.
[10] The appellant was born on 7 December 1970. He is an initiated Arrente man. He has been married for some 19 years and there are three children of the marriage aged 10, 6 and 1 year. The appellant has a strong relationship with his wife and strong support from both her and his wider family.
[11] At the time that the appellant initially followed the complainant and attacked her and her male companion, the appellant was grossly affected by alcohol. The learned Judge accepted that the appellant has no alcohol problem, but that on this occasion, he had engaged in binge drinking which included the consumption of port.
[12] The appellant has no relevant prior offending and the offending in which he engaged can reasonably be said to be out of character.
[13] A complaint was made about the manner in which the sentencing Judge treated the appellant's plea of guilty. His Honour made the following observation:
“It is not an early plea. The victim had to give evidence at the committal and she anticipated a trial. In her victim impact statement she says she found this very hurtful.”
[14] In my opinion, this complaint is without substance. It was an appropriate observation that the plea was not an early plea. His Honour was not suggesting that the offending was aggravated by the failure to enter an early plea or by the fact that the victim had to give evidence at the committal and had anticipated the trial. His Honour was merely stating the facts that were relevant to an assessment of the appropriate reduction in the sentence to be allowed for the fact of the plea of guilty. His Honour was emphasizing that the appellant was not entitled to the benefit of an early plea.
[15] Submissions were also made concerning the appellant's remorse and prospects of rehabilitation. The sentencing Judge observed that the appellant has no real insight into his offending, but also remarked that the appellant has expressed some remorse. His Honour noted that the appellant apologised to the victim in writing through his legal representative. He also noted that the appellant has apologised to his wife, his family and the victim's family.
[16] In my view, his Honour has taken into account those relevant matters and there is no basis for any finding that he has erred in this regard. It is not without significance that the author of a pre-sentence report ordered by the sentencing Judge was told by the appellant that the Crown facts, which the appellant had previously accepted as correct, were all wrong and were made up by the complainant. The appellant also told the author that the complainant wanted to have sex with him. These statements and the attitude displayed by the appellant during the interview with the author of the pre-sentence report demonstrated a difficulty in accepting that the appellant was truly remorseful and justified the observation by the sentencing Judge that the appellant has no real insight into his offending.
[17] Notwithstanding the plea of guilty and other matters of mitigation to which I have referred and to which the sentencing Judge referred, in my view it cannot be said that the total sentence of eleven years' imprisonment was manifestly excessive.
[18] Similarly, in my view there was no error in the approach of the sentencing Judge by directing that the sentences imposed for the crimes of rape be cumulative upon the sentence for the deprivation of liberty. That was a course that was open to his Honour. It would also have been open to his Honour to accumulate one or more of the sentences for the crimes of rape. In particular, the sentence for the last crime of rape could well have been accumulated bearing in mind that it was committed after a long period of deprivation of liberty and at a time when the appellant had had an opportunity to sober up to a reasonable degree. It was also a crime committed in a place quite separate from and a reasonable distance from the point at which the appellant first attacked the complainant and her male companion.
[19] In my opinion, there is no substance in the suggestion that the total period of eleven years is not proportionate to the total gravity of the appellant's offending. As I have said, the crimes were particularly serious and were committed over a lengthy period of time. The ultimate sentence of eleven years was well within the range of the sentencing discretion.
[20] As to the non-parole period, the learned sentencing Judge stated that under the terms of the Sentencing Act, the minimum non-parole period that could be fixed in respect of the offending was 70% of the period of eleven years. His Honour then fixed a non-parole period of seven years and nine months. It appears that his Honour applied the formula of 70%.
[21] Section 55(1) of the Sentencing Act provides that where a court sentences an offender to be imprisoned for an offence against s 192(3) of the Criminal Code that is not suspended in whole or in part, the court shall fix a non-parole period of not less than 70% of the period of imprisonment that the offender is to serve under the sentence. The sentences to which s 55(1) apply were those imposed in respect of the crimes of rape in counts 2 - 5. Section 55(1) did not apply to the sentence imposed for deprivation of liberty contrary to s 196(1) of the Code.
[22] In respect of the sentence for deprivation of liberty, pursuant to s 54 of the Code, the minimum non-parole period was 50% of the sentence imposed.
[23] In these circumstances, the fixing of the non-parole period has been attended by an error of principle. This requires this Court to consider the question of the non-parole period afresh in the exercise of this Court's discretion. In my view, the appropriate non-parole period would be a period of seven years.
[24] For these reasons, I would allow the appeal to the extent of setting aside the non-parole of seven years and nine months and substituting for that non-parole period, a non-parole period of seven years. Otherwise, the individual head sentences and the total of eleven years should not be disturbed.
Thomas J:
[25] I would allow the appeal. I agree with the reasons presented by the Chief Justice.
[26] I also agree with his proposed orders and I have nothing to add.
Riley J:
[27] I agree with the Chief Justice that the appeal should be allowed but only to the extent of the challenge to the non-parole period. I agree with his reasons.
[28] The appellant committed four offences of sexual intercourse without consent over approximately an eleven-hour period. Three of those offences occurred at one location and the fourth at a later time at a quite separate location. In relation to those offences, in my view, there was available a basis for imposing sentences that were partially cumulative and partially concurrent. This is particularly so in relation to the final offence of sexual intercourse without consent. The appellant may regard himself as fortunate that his Honour chose to direct that those sentences be served concurrently.
[29] I agree with the submission of the Crown that the offence of deprivation of liberty was not just a background feature of the offending but was serious offending in its own right. In the circumstances of this matter, I see no error in accumulating this sentence with the sentence on the other four offences.

[30] I regard each of the sentences imposed as quite moderate in light of the seriousness of the offending committed over a protracted period, in the circumstances where the offender has no real insight into his offending and demonstrates no real victim empathy. Personal deterrence is a significant consideration in this case.
[31] Likewise general deterrence is a significant consideration.
[32] His Honour did not mention the totality principle but the application of that principle would not lead to a reduction in the penalty imposed.
[33] I agree with the orders proposed by the Chief Justice.
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