R v Breckenridge - [1998] QCA 136

[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
170398 D.1 T15/LE9 M/T COA50/98
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
170398 D.1 T15/LE9 M/T COA50/98
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Breckenridge

Details

AGLC: R v Breckenridge [1998] QCA 136
Case: [1998] QCA 136
Decision Date: 17/03/1998

CaseChat Overview and Summary

In the case of The Queen v. David Neil Breckenridge, the applicant, a 34-year-old man with no prior criminal history, pleaded guilty to the charge of raping a 17-year-old girl at a party in Mermaid Waters. The District Court sentenced Breckenridge to five years imprisonment, and he appealed against this sentence to the Queensland Court of Appeal.

The legal issues before the Court of Appeal were whether the sentence imposed by the District Court was manifestly excessive and whether the sentence was inappropriate given the circumstances of the case, including the applicant's age, his lack of a criminal history, and his guilty plea. The Court also had to consider whether the sentence was consistent with other similar cases.

The Court of Appeal found that the sentence of five years imprisonment was not manifestly excessive. Justice Davies, who delivered the judgment, noted that the applicant had taken advantage of the complainant, who was considerably younger and intoxicated. The judge also considered other cases cited by the applicant, including R v. Day, R v. Stephens, and R v. Elzinga, and found that the sentence in this case was within the permissible range for such offences. Justice Pincus and Justice Dowsett concurred with the reasons provided by Justice Davies.

The final orders of the Court of Appeal were to dismiss the applicant's appeal against his sentence, affirming the sentence of five years imprisonment imposed by the District Court.

Orders