R v Hornby

[1996] QCA 446

IN THE COURT OF APPEAL	[1996] QCA 446
SUPREME COURT OF QUEENSLAND

C.A. No. 348 of 1996

Brisbane

[R v. Hornby]

THE QUEEN

v.

JEFFREY JOHN HORNBY

(Applicant)

Pincus J.A.
Derrington J.

Ambrose J.

Judgment delivered 15 November 1996

Judgment of the Court

APPLICATION REFUSED

CATCHWORDS:	RAPE - life sentences - whether manifestly excessive.
Counsel:	Mr M Griffin for the applicant. Mr D Bullock for the respondent.
Solicitors:	Legal Aid Office for the applicant. Queensland Director of Public Prosecutions.
Hearing Date:	25 October 1996.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15 November 1996

The applicant was sentenced in the District Court on 22 February 1996 in relation to a number of attacks on females. There were three offences of abduction, five of assault occasioning bodily harm, one of indecent assault with a circumstance of aggravation, one of common assault, one of administering a stupefying drug, two of robbery, one of indecent treatment of a child under 16 years, one of indecent assault and one of stealing; but the principal counts were seven offences of rape, in relation to each of which the learned primary judge imposed a sentence of life imprisonment. As to the rest, sentences of varying lengths were imposed, the longest period of imprisonment imposed for them being 5 years.

The application challenges only the sentences of life imprisonment; the submission put forward by Mr M Griffin, for the applicant, was that some of these sentences should be reduced to sentences for a fixed number of years, as was done in the case of Killen (C.A. No. 129 of 1991, unreported, 20 September 1991). The following account of the offences deals not only with the seven offences of rape, but with all the lesser offences. There were three complainants.

Complainant 1

This complainant was 18 years of age at the time of the offences, which took place in February 1995. The complainant got to know the applicant, who is 44 years of age, through her grandmother. On 9 February 1995 the applicant asked the complainant if she would like to go to Russell Island to see the applicant’s defacto wife, with whom the complainant got on well. The complainant was told that she would be taken out to a restaurant. On arrival at the island in the applicant’s vehicle, the complainant was driven to a secluded area and told to get out of the car. The applicant punched her in the chest and pushed her to the ground, then directed her to lie on her stomach while he tied her hands behind her back; he briefly placed a hood over her head. The applicant then drove the complainant to a house on Russell Island and in the course of the journey unbuttoned part of her dress and inserted two fingers into her vagina; he also further assaulted her by hitting her on the face. When the two arrived at the house, the applicant cut the rope binding the complainant’s hands and threatened her with a knife, saying that he would kill her "like the last 18 year old girl". That statement might well have been a reference to the death of a young woman, Laural Jacobson, who was aged 18 when murdered in 1989. The applicant was convicted of that murder, but on appeal the conviction was set aside as unsafe and a verdict of acquittal was entered. The applicant’s reference to the death of an 18 year old girl is relevant in the present case; of course, the applicant cannot be now treated as other than innocent of the Laural Jacobson murder.

The applicant forced the complainant to ingest a medication intended to sedate her; he raped her four times in a bedroom of the house, holding her, in effect, prisoner in the house for more than 12 hours. The next day he drove her back to Beenleigh where she lived, first forcing her to withdraw $1,000 from her bank account and give it to him.

Complainant 2

This complainant was 15 years of age when attacked; that occurred on 20 February 1995, shortly after the attack on complainant 1. She too was invited to Russell Island and taken to a house there, where the applicant pushed the complainant onto the floor, then grabbed her around the throat and lifted her back to her feet. He tied her wrists behind her back and tied her ankles with rope, gagged her and started touching her in the vaginal area. He showed her pictures of a female corpse and said that was what happened to the last girl who went to the police and was what would happen to her next if she opened her mouth. The applicant then brought out a knife and pointed it at the complainant and cut her loose. At one stage he threatened to kill her and her family and said that no-one cared about her and that if he killed her no-one would know.

The two people then had coffee and a cigarette together, after which the applicant showed the complainant some kitchen knives and two machetes; he then allowed the complainant to telephone her boyfriend from a phone box, at one point telling her that a particular spot was where he had dumped the last girl. He then had intercourse with her twice and she was taken the next day back to the applicant’s house at Banora Point where her boyfriend was staying. She stayed at Banora Point for the rest of that week and on 24 February 1995 went with the applicant to Russell Island and stayed at the house for three or four hours; on the way home he showed the complainant a knife, a rope and a bandage.

Complainant 3

This complainant is the grandmother of complainant 1 and is a 67 year old widow who had come to know the applicant. On 10 March 1995 the applicant telephoned her and told her, untruthfully, that complainant 1 was on Russell Island and wanted to see her. He drove the complainant to the island and on arrival at a house punched her on the chin, causing her to fall backwards on the floor, as a result of which she suffered a compressed fracture of the spine. He called the complainant filthy names and said that he had killed her grand-daughter. He then took the complainant to a bedroom where he lifted up her bra and pinched her hard on both breasts, then tied her hands and feet with rope and gagged her; he also stole $1,300 in cash from her purse.

While the complainant was bound as we have described, she was kicked in the side of the head and threatened with a knife, being told that she would not get out alive. The applicant then unbound the complainant; she tried to escape, but he caught her and assaulted her again. He then rebound her and put a pillow case over her head. Subsequently he raped her with her hands tied behind her back; she was in pain from the injuries to her back, previously mentioned. When asked by the complainant to cut the cord from her hands the applicant responded by burning the cord with a cigarette lighter. He also asked the complainant to leave some money for him in her letterbox, threatening her that he would get her daughter and grand-daughter if she did not do so. At one stage the complainant was shown photographs of the corpse of a girl who had her hands tied; the applicant said that the photographs were of a girl he was supposed to have killed, but that he had not done so.

Conclusion

At the hearing before the primary judge psychiatric evidence was called as relevant to an application made by the Crown for imposition of an indefinite sentence under Part 10 of the Penalties and Sentences Act 1992. The judge held that he was not satisfied to the requisite standard that the accused should be imprisoned indefinitely. His Honour went on:

"However the calculated brutality of his conduct towards the three complainants is so appalling that in my view on the seven counts of rape the only appropriate penalty is the maximum which I can impose."

The most relevant offences, for present purposes, in the applicant’s criminal history are two assaults occasioning bodily harm in 1976, for which the applicant was imprisoned; an offence described as "robbery with striking and maliciously set fire to a motor vehicle with intent to injure" in 1980; a robbery in 1984; an assault on a female in 1985 and an offence of malicious wounding in 1986. In addition, one finds a number of offences of stealing, driving while disqualified, and other driving offences including drunken driving.

The repeated attacks on females which are described above, committed within a period of a few weeks, certainly suggest a person who presents a danger; but as we have said, the primary judge was not satisfied that the case was one in which an indefinite sentence under Part 10 of the Penalties and Sentences Act 1992 was appropriate. The display, apparently to induce terror, of a photo of the corpse of a woman who had been alleged to be a previous victim is a factor which gives particular reason for concern.

The worst offences were those committed against the elderly complainant 3; no suggestion is made that the sentences for them should be reduced. The question raised by Mr Griffin is whether the other rapes should have attracted a lesser penalty.

It appears to us that the primary judge regarded life sentences as the proper penalty for the totality of the applicant’s behaviour and did not think it necessary, or desirable, to fix a less severe penalty than life in respect of the less heinous of the rapes. The primary judge included in his remarks on sentence the following:

"In the very distant future a parole board might consider this man for parole. Any suggestion that he should be paroled should cause the authorities to think long and hard before recommending his release."

In our opinion the sentences imposed have not been shown to be manifestly excessive and the application for leave to appeal is refused.