R v Breckenridge[1998] QCA 136

COURT OF APPEAL

DAVIES JA

PINCUS JA

DOWSETT J

CA No 427 of 1997

THE QUEEN

v.

DAVID NEIL BRECKENRIDGE Applicant

BRISBANE

DATE 17/03/98

JUDGMENT

DAVIES JA:  David Neil Breckenridge pleaded guilty to rape in the District Court on 30 October 1997.  He was sentenced to five years imprisonment and he appeals against that sentence.  He is 34 years of age with no prior criminal history.

His victim was a 17-year-old girl employed in a business of which the applicant was the customer service manager.  On the night in question they both attended a party for employees of their employer at a house at Mermaid Waters.  The complainant consumed a substantial amount of alcohol, a small quantity of marijuana, went for a swim and then fell asleep in a chair.  Prior to that it appears that the applicant may have shown some sexual interest in her but plainly she none in him.

At about 11.30 p.m. or midnight the applicant woke the complainant and told her that she should go to sleep in a bedroom.  He escorted her to one upstairs.  When he did not return immediately a man called Clayton Ross went to investigate.  He saw that the complainant and the applicant were beneath a doona on the bed.  He heard what he described as either kissing or whispering noises which he thought came from the applicant.  He observed that the complainant was not moving.  A woman, Kylie Ross, then went into the bedroom obviously concerned for the complainant's welfare and saw that she was asleep.  By this time the applicant got out of the bed and he left the room and returned to the party.  At about 2 a.m. he was seen to return to the bedroom.  He was followed on this occasion by a woman called Judith MacKenzie.  On this occasion he picked up the complainant and took her into another bedroom across the hallway.  Ms MacKenzie again followed him to make sure the complainant was comfortable and to ensure that the applicant left the room. 

Some time later the complainant woke to find the applicant on top of her.  He was naked and was having intercourse with her.  She asked him to get off saying, "Please don't do this."  He replied, "It's all right, don't worry, we've been going for half an hour already."  She then pushed him away, managed to wrap herself in a doona and went downstairs where she met another party-goer, a Mr Hood.  He saw that she was visibly distressed.  She made an immediate complaint to him and subsequently a complaint to the police.

Her victim impact statement shows that the incident caused her considerable psychological upset which is not surprising.  It may be said in the applicant's favour that other than that necessary for the purpose of intercourse there was no violence or coercion.  On the other hand, as has been pointed out in the written outline of the respondent, given the complainant's state, that was unnecessary.  Moreover it is plain from the facts which I have already related that the applicant had signalled his predatory intentions for some time and that he took advantage of a very much younger girl affected by alcohol.  The discrepancy in their ages was rightly seen by the learned sentencing Judge as an important factor.

On the other hand, apart from this offence the applicant appears to have been of reasonably good character.  He has a good work history and references tendered on his behalf apparently spoke highly of him. He supports a six-year-old son.

In sentencing the applicant the learned sentencing Judge thought that six years was an appropriate sentence and, instead of making a recommendation for early parole because of the factors which I have mentioned in the applicant's favour and, as well, his plea of guilty, his Honour reduced the sentence to one of five years imprisonment.

None of the sentences cited to this Court as comparable indicate that having regard to all the relevant factors, including the need for deterrence, the sentence imposed here was manifestly excessive.  In my view they tend to show the contrary.  In R v. Day (CA No. 247 of 1993, 13 September 1993), the applicant who was convicted of rape after a trial was sentenced to six years imprisonment without any recommendation for early parole.  He was 33 and his victim was 25.  The victim had returned with him to his flat after a party apparently on the promise that he would arrange for her to be taken home.  Nevertheless she observed the applicant placing a mattress on the floor in front of the television set and resisted his advances only when he pulled her down on to it from her position on the couch and got on top of her.  She then made it clear that she did not wish to have intercourse with the applicant but she did not call out, notwithstanding that there was another occupant of the flat.  The sentence imposed in that case, which was not disturbed by this Court on appeal, tends to indicate, in my view, that the sentence imposed here was within the permissible range for this case although, it might be thought, a high one.

The main sentence relied on by the applicant appears to have been R v. Stephens (CA No. 411 of 1994, 28 November 1994), an appeal by the Attorney-General against a sentence of three years imprisonment with a recommendation after six months on two counts of rape.  The appeal was successful and this Court substituted a sentence of five years imprisonment with a recommendation after two years of that.  It is true that the circumstances of that case appear to be more serious than those in this and that the sentence imposed there was after a trial.  On the other hand the appeal was one by the Attorney-General and the sentence imposed by this Court is likely to have been one towards the bottom end of the appropriate range. Moreover the applicant in that case was only 21 years of age at the date of commission of the offences, again with no relevant criminal history.  His youth was plainly a relevant mitigating factor.  I do not think that case is of much assistance to the applicant's argument here.

The applicant also relied on a recent decision of this Court in R v. Elzinga (CA No. 416 of 1997, 26 February 1998), which was another Attorney's appeal.  That was a case in which the respondent and the complainant had apparently been at a function together and had returned to their respective flats which happened to be in the same building.  He then said something to the effect that she would be permitted to go to her flat only if she kissed him and they did then kiss.  He then dragged her into his unit and there raped her.  He was immediately remorseful and apologised to her.  The sentence which was imposed was one of five years for the rape and two years for a lesser offence with a recommendation after 18 months.  This Court refused to increase that on the Attorney's appeal but in the circumstances of that case, in my view, it is of little assistance in determining what the appropriate sentence was here.

There are a number of cases which are perhaps less comparable referred to in the outlines and I shall not refer to those.  In my view, for the reasons which I have already indicated, I do not think the sentence imposed here was manifestly excessive and I would refuse the application.

PINCUS JA:  Although I have had some slight doubt about the matter in view of the circumstances of the case I agree with the reasons given by the presiding Judge and the order His Honour proposes.

DOWSETT J:  I also agree.

DAVIES JA:  The order is as I have indicated.