R v Heckendorf [2017] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION: R v Heckendorf [2017] QCA 59

PARTIES: R / v / HECKENDORF, Jesse William / (applicant)

FILE NO/S: CA No 319 of 2016 / DC No 451 of 2016

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane – Date of Sentence: 1 November 2016

DELIVERED ON: 11 April 2017

DELIVERED AT: Brisbane

HEARING DATE: 30 March 2017

JUDGES: Fraser and McMurdo JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to an offence of rape and one of assault with intent to commit rape – where the applicant had viciously raped the complainant after meeting her and drinking with her throughout the course of the afternoon – where the complainant had not demonstrated any “romantic interest” in the applicant – where the rape included violent assaults and choking of the complainant and resulted in the complainant fracturing a rib – where the complainant contracted Hepatitis C as a result of the rape – where the actual act of penetration was described as “relatively quick” but the attack was “particularly vicious” – where the applicant initially denied the rape had occurred but ultimately pleaded guilty – where the applicant was aged 22 years at the time of the offence – where the applicant was sentenced to 10 years’ imprisonment with the automatic result that the offence was declared a serious violent offence – whether and to what extent a sentencing judge can consider a pattern of sentencing outcomes consistently with Barbaro v The Queen (2014) 253 CLR 58 – whether the sentence was manifestly excessive / Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, considered / Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited / R v Adams [2009] QCA 51, cited / R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, cited / R v Newman (2007) 172 A Crim R 171; [2007] QCA 198, cited / R v Porter [2008] QCA 203, cited / R v Postchild [2013] QCA 227, cited / R v Purcell [2010] QCA 285, cited / R v Williams; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 250; [2014] QCA 346, cited / Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered

COUNSEL: B J Power for the applicant / C W Heaton QC for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.

McMURDO JA: On 1 November 2016 the applicant was convicted by his own pleas of guilty of an offence of rape and one of assault with intent to commit rape. The offences were committed on 15 November 2015. He was sentenced to concurrent terms of imprisonment of 10 years and five years respectively. Consequent upon the imposition of the 10 year term, the rape offence was declared a serious violent offence. A period of 351 days of pre‑sentence custody was declared.

He applied for leave to appeal against each of those sentences on the ground that the sentence imposed was manifestly excessive. But ultimately, only the 10 year term is challenged.

The facts and circumstances of the offence

The complainant was a 28 year old woman who one afternoon went to a hotel where she met the applicant and a friend of the applicant, neither of whom she had known previously. The three drank and socialised together over the course of the afternoon before going to the applicant’s father’s house to continue their drinking.

They drank together for another few hours until about 8.30 pm when the applicant’s friend left. The complainant said that she would leave also. They were then on a verandah. The applicant then asked her to come inside the house and offered to help her roll a cigarette and asked if he could also have one. When she entered the house, he immediately attacked her, grabbing her by the throat and slamming her head onto the floor. He then apologised and helped her get to her feet. He was heavily intoxicated. She decided to roll him a cigarette so she could then leave. But he grabbed her again and dragged her into a bedroom where he threw her onto the bed. He got on top of her on the bed and began choking her with his hands around her neck. She struggled and yelled at him to stop. But he ripped her clothes off and then threw her onto the floor. He smashed her head onto the floor and again choked her with one hand around her neck. She tried to reach for her phone but he threw it away. His conduct to this point constituted the offence of assault with intent to rape.¹

She continued to fight against him whilst she was on the floor but he then forced his penis into her vagina. He penetrated her for a “few seconds” before withdrawing his penis and ejaculating onto the complainant’s stomach. He then stood up.

The complainant then went to a bathroom before collecting her belongings and a blanket which she wrapped around herself as she left the house. She went home and contacted a friend after which she was taken to a hospital. She suffered a fractured rib, injuries to her neck, arms and legs and bruising and a scratch to her head. Most seriously, blood tests which were conducted over the next few days revealed that she had contracted Hepatitis C.

The complainant was able to tell police where the incident had occurred and that the offender’s name was Jesse. Police located the house and found that a trailer in the back yard was registered to the applicant’s father. They then found the applicant, who was arrested and transported to a watchhouse where he was later interviewed. He denied raping the complainant. But he said that he had been at the house with her and the other man. He said that he had gone to sleep at the house whilst the complainant and the other man remained on the verandah and that when he awoke, the two had gone.

In a statement tendered at the hearing, the complainant said that she had lost all self‑confidence and was unable to leave her house alone due to a “fear of people and large crowds”. She becomes agitated and nervous when left alone, which often causes her to break down and burst into tears. She feels very depressed and has had suicidal thoughts and feelings of worthlessness and shame.

A letter from a doctor who has been treating her described the seriousness of Hepatitis C. The condition can be treated and cured, but the medication is expensive and would require her to travel a considerable distance to the nearest Hepatitis C clinic which is in Toowoomba. There are side effects from the treatment, most commonly flu‑like symptoms, low blood counts, difficulty in thinking, nervousness and depression.

The applicant’s circumstances

The applicant was born in June 1993, so that he was aged 22 years at the time of the offence and a year older when sentenced. He had no significant criminal history. As an 18 year old he had been fined $500, with no conviction recorded, for committing a public nuisance and obstructing a police officer by running away from police when approached by them about his behaviour. As a 19 year old, he had been fined $300, again with no conviction recorded, for an offence of possessing something for use in the commission of a crime. The particulars of that offence were apparently not serious enough to be explained to the sentencing judge.

A report by a psychiatrist was tendered, which detailed the applicant’s poor education and history of substance abuse, including opiates, amphetamines, alcohol and cannabis. The psychiatrist said that there appeared to be no psychotic symptoms which had contributed to the offences. But his provisional diagnosis was that the applicant suffered from some form of psychotic illness, possibly schizophrenia or a drug induced psychosis and that the applicant was currently in remission from polysubstance abuse. He noted that the applicant was Hepatitis C positive.

The sentencing hearing

The prosecutor submitted that taking the plea of guilty into account, the sentence should be between eight and 10 years’ imprisonment, with a declaration of a serious violent offence (SVO). He referred to R v Walsh,² R v Dowden,³ R v Basic⁴ and R v Cosh.⁵

The applicant’s counsel referred the sentencing judge to R v Postchild,⁶ which he said supported his submission for a sentence of eight years’ imprisonment with no SVO declaration.

The sentencing reasons

The judge described this as a brutal attack with devastating consequences for the victim. Her Honour observed that there had been no flirting between the applicant and the victim and no other suggestion of any “romantic interest”. She summarised the facts and referred to the effects of the offence upon the victim. She discussed the applicant’s antecedents, saying that there was “a reasonable work history and a very minor criminal record.” She said that the plea of guilty could be described as “early” although that consideration was affected by the very strong case against him. Her Honour accepted that the applicant was remorseful. Referring to the applicant’s schizophrenia, her Honour observed there was no evidence linking that illness to the offence or any additional hardship in prison.

Her Honour said that “[t]he actual act of penetration was relatively quick … [b]ut the offence was particularly vicious”.

Her Honour referred to the need for protection of the community against an offence such as this and said that this was a serious example of the offence of rape. Her reasons concluded as follows:

“But for your plea of guilty, I would have sentenced you to 12 years’ imprisonment. I am reducing that sentence in light of the plea of guilty, having regard to the fact that you will be serving 80 per cent of the sentence before eligibility [for] parole. The sentence will be 10 years’ imprisonment. If the declaration of a serious violent offence had not been automatic, I would have made it anyway. This was an exceptionally serious example of rape.”

The arguments in this court

For the applicant it was argued that a sentencing pattern for “serious examples of the offence of rape can be discerned” from comparable cases and that the sentence in the present case fell outside that “range”, given the applicant’s youth, plea of guilty and history of serious mental health problems. To demonstrate that pattern, the applicant’s counsel referred to four cases in this court: R v Purcell,⁷ R v Benjamin,⁸ R v Postchild and R v Williams; Ex parte Attorney*‑**General (Qld)*.⁹

The respondent’s argument emphasised that, according to Barbaro v The Queen,¹⁰ comparable sentences do not set a “range” of permissible sentences. It suggested that the applicant’s argument was wrong in principle because it sought to establish with numerical precision an upper limit in the exercise of the sentencing discretion in the present case. It was argued the range of sentences imposed for offences involving rape vary widely as to the circumstances in which they are committed. Nevertheless the respondent’s argument referred to some cases as comparable, namely R v Porter,¹¹ R v Adams¹² and R v Newman.¹³

The respondent’s argument apprehended other arguments in the applicant’s case, which went beyond the stated ground of the proposed appeal that the sentence was manifestly excessive. The respondent saw an implication in the applicant’s case that the sentencing judge erred by giving insufficient weight to the applicant’s mental health and to his plea of guilty. Each of those considerations was recognised in the judge’s reasons. But that was accepted by the applicant’s argument. It is clear that the applicant’s argument is only that the sentence was manifestly excessive.

Consideration

As the respondent submits, comparable cases do not establish with numerical precision an upper limit which governs the sentencing of an offender in another case. In Barbaro v The Queen, French CJ, Hayne, Kiefel and Bell JJ said:¹⁴

“[I]n seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence.”

The importance of consistency of sentencing was discussed by Gleeson CJ in Wong v The Queen:¹⁵

“All discretionary decision‑making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision‑making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

The consistency which is required is in the application of relevant legal principles¹⁶ and consistency in this sense is not synonymous with numerical equivalents.¹⁷ Nevertheless, as French CJ, Hayne, Kiefel and Bell JJ said in Barbaro v The Queen,¹⁸ a pattern of sentencing outcomes can reveal and reflect the relevant principles.

I do not understand the applicant’s argument to be inconsistent with those authorities. It rightly refers to some cases which are arguably comparable and which are said to reveal a relevant pattern of sentencing outcomes. What must be considered is whether with the benefit of comparable cases and having regard to all of the relevant sentencing factors, this court is driven to conclude that there must have been some misapplication of principle.¹⁹

I go then to the comparable cases cited in the applicant’s argument, the first of which is R v Purcell. That applicant was convicted after a trial of charges of rape and assault occasioning bodily harm. This Court reduced his original sentence of 12 years’ imprisonment to a term of 10 years. He raped an intoxicated woman as she walked home one night. He grabbed her from behind and forced her into dense vegetation. He then ripped open her jeans and penetrated her vagina with his penis. He struck her several times in the face. At first he denied a sexual encounter but defended the case at trial upon the basis that it was consensual. He unsuccessfully appealed against his conviction. He was a man in his 30s with a substantial criminal history which included several offences of violence and an offence of procuring a child under the age of 12 to commit an indecent act. He had been to prison for offences of housebreaking, assault occasioning bodily harm whilst armed and deprivation of liberty. That involved a comparable degree of violence to the present one although the present case had more serious effects for the victim. In particular there is here the victim’s infection with Hepatitis C. Against that, in the present case the applicant pleaded guilty, was young and had no relevant criminal history.

Next is R v Benjamin, which involved a 25 year old offender who raped a young woman as she was out jogging. He pleaded guilty and was originally sentenced to 11 years’ imprisonment, which this court reduced to a term of nine years but still with an SVO declaration. He struck the victim causing cuts and bruises and other injuries, although less severe than in the present case. The victim described the ongoing impact on her, beyond her physical injuries. She had become terrified of being alone and afraid of any male stranger who was nearby. He had been to prison for various offences which included breach of a domestic violence order and common assault.

The next case is R v Postchild, where a 24 year old offender raped a young woman with whom he was in a relationship. She had told him that she was still in love with her former partner. She rejected his sexual advances and he became angry and attacked her. He pushed her onto her back, removed her top and used duct tape to tie her hands to the slats of a bed. He then proceeded to penetrate her vagina with his penis as she screamed. In response to her screams he applied duct tape to her mouth. After a trial, he was sentenced to a term of six years with no SVO declaration. This court held that the sentence was not manifestly excessive. That offender had a substantial previous criminal history, including a suspended sentence for carnal knowledge. The applicant’s counsel concedes that there was a greater level of actual violence in the present case than in Postchild and the consequences for the victim in the present case were more severe. Nevertheless that offender went to trial and had a substantial and relevant criminal history.

The fourth case is R v Williams; Ex parte Attorney*‑**General (Qld)*. He was a 31 year old offender who raped a young woman who was on an evening training run. He followed her in his car before grabbing her and pulling her down an embankment and raping her. He ejaculated into the complainant’s vagina. A victim impact statement showed that the offending had had a marked effect. He pleaded guilty and had a minor criminal history and a good work history. He was originally sentenced to eight years’ imprisonment with an eligibility for parole after three years. This Court varied his sentence by removing the provision for an early eligibility for parole. The degree of violence was greater in the present case and again, there is the consequence here of the infection of Hepatitis C. Nevertheless that offender was older and the offence did involve substantial violence.

The first of the cases cited by the respondent is R v Porter, where this Court held that a sentence of 15 years’ imprisonment, imposed upon a 42 year old man who entered the home of the complainant and penetrated her three times in several ways, was not manifestly excessive. He was convicted after a trial, had a significant criminal history and lacked remorse. As the respondent submits, the injuries in that case were less serious and, although the man was infected with Hepatitis C, there was no transmission to the complainant.

The second case cited by the respondent is R v Adams, where the applicant was sentenced to 10 years’ imprisonment for offences which included some five counts of rape. He had been in a sexual relationship with the complainant which had ended before this offence. He inflicted considerable violence upon the victim, binding her hands in front of her body and making her lie on her stomach as he hit her in the head. He then had vaginal and anal intercourse with her as she struggled and cried. He taped her mouth and ankles. He penetrated her anus and vagina with his fingers. She was left with ongoing anxiety and depression. He pleaded guilty but only on the first day of the trial. He was refused an extension of time to apply for leave to appeal against sentence on the basis that the sentence could not be considered manifestly excessive. That was a more serious case: there were five counts of rape and the violence was more severe although its effects were not. It was a late plea of guilty. That applicant was aged 23 when he committed the offences and 25 when sentenced. He had a criminal history which included an offence of robbery with actual violence.

The third case cited by the respondent is R v Newman. He was aged 17 with no prior convictions and pleaded guilty to offences, including rape, committed against a 60 year old woman in her own home. There was considerable violence inflicted by him and she suffered significant injuries including a broken jaw. This Court held that his sentence of 13 years’ imprisonment was not manifestly excessive. The extent of the violence in that case appears to have been greater than in the present one. There was the aggravating factor in the case, as there was in Porter, that he had unlawfully entered the victim’s home and attacked her there.

As the applicant’s argument rightly accepts, the present case involved a high degree of violence. An important aggravating circumstance is that the victim contracted Hepatitis C. In some other cases, simply the potential for the transmission of that disease has been regarded as an aggravating feature.²⁰ The actual transmission of the disease provides a yet more serious aggravating factor.

In my conclusion this was a heavy sentence but I am not persuaded that it is so heavy that there must have been some misapplication of principle.

Order

I would refuse the application for leave to appeal.

MULLINS J: I agree with McMurdo JA.

Footnotes

1. Criminal Code (Qld) s 351. ↩

2. [2008] QCA 391. ↩

3. [2010] QCA 125. ↩

4. [2000] QCA 155. ↩

5. [2007] QCA 156. ↩

6. [2013] QCA 227. ↩

7. [2010] QCA 285. ↩

8. [2012] QCA 188. ↩

9. [2014] QCA 346. ↩

10. (2014) 253 CLR 58, the submission citing also R v Goodwin; ex parte Attorney*‑*General (Qld) [2014] QCA 345 at [5]. ↩

11. [2008] QCA 203. ↩

12. [2009] QCA 51. ↩

13. [2007] QCA 198. ↩

14. (2014) 253 CLR 58, 74 [41]; see also R v Kilic (2016) 91 ALJR 131 at [21]-[24]. ↩