The Queen v Billy[1997] QCA 290

COURT OF APPEAL

McPHERSON JA

PINCUS JA

BYRNE J

CA No 208 of 1997

THE QUEEN

v.

PATRICK WILSON BILLY Applicant

BRISBANE

DATE 17/07/97

JUDGMENT

McPHERSON JA:  The applicant was sentenced in the District Court at Townsville on one count of entering a dwelling house with intent and a second count of indecent assault to which he pleaded guilty on 6 May 1997.  The sentence on each count was imprisonment for four years to be served concurrently. 

The circumstances of the offences are that the complainant, a 29-year-old woman, returned to the flat or unit in which she lived in the early hours of the morning of 5 October 1996 and went to bed.  She woke up to find the applicant lying on top of her.  He was naked and trying to kiss her on the lips.  He said, "I want to kiss your clit" and began pulling her pants down saying, "Don't scream.  I have a knife."  A knife was later found on the floor of the bedroom.  She did in fact scream and he got off her and decamped from the flat by the front door.

A man from one of the other units apparently heard the scream and then found the applicant trying to collect his clothes from the yard of the unit.  Some items of personal property were later found with his name on them and in that way the applicant was traced.  He had first tried to put the police off his trial but quite soon afterwards participated in a record of interview in which he admitted the offence.

Needless to say, the complainant has been seriously affected by the experience.  It is perhaps not necessary to enter into the details of the impact of the offences upon her beyond saying that she has been adversely affected in her outlook on life and has even tried to find work outside Townsville where the offence occurred.  She has tended to identify the unit where she was living and the city itself with her unfortunate experience.  It has not been easy for her to remove from where she was because she is a chemist employed by the Institute of Marine Science and no doubt work of that kind is not readily available.

The applicant is a man of 33 years.  He has a criminal history which is not inconsiderable.  In or after 1995 he was convicted of aggravated assault and wilful damage to property and also of the offence of stalking.  These offences are said to have arisen out of a domestic relationship, which in itself may not be a mitigating circumstance, although I suppose it may be said that at least the victim on those occasions was not a complete stranger as she was in this instance.

The sentence on the aggravated assault was imprisonment for three months and, on the stalking offence, six months.  The applicant had already been convicted in 1994 of possession of a weapon in a public place.  At about the same time he was also convicted of breaking and entering a dwelling house with intent, stealing, and impersonating a police officer.

In 1996 there was another conviction for stealing.  In 1997 he was charged with breaching bail on two occasions, and with breaching a domestic violence order and an assault occasioning bodily harm.  All these offences were struck out for want of evidence, so it would not be right to take account of them against him.  There was, however, another stealing conviction in 1997. In favour of the applicant is the fact that he pleaded guilty and spared his unfortunate victim the ordeal of a trial.  I suppose also one should add that he desisted when the complainant screamed, though that may have been for fear of being identified or discovered.

Nevertheless, the District Court Judge rightly took into account that the offences involved entry into the privacy of a woman's home at night coupled with conduct which, on any view, was a terrifying experience for her.  I refer in particular to his threats to kill her and to use a knife for that purpose.

The submission before us is that insufficient allowance was made for the plea of guilty, and also that the sentence is excessive having regard to R v. Brockfield (229 of 1993) and R v. Knight (370 of 1995), and the absence of any recommendation for early parole.  The Judge in sentencing the applicant specifically remarked that the fact that he pleaded guilty entitled him, that is the applicant, to some consideration which the Judge said he intended to reflect in the head sentence.  That would make the sentence, after taking the plea of guilty into account, a rather high one. 

I do not think, however, that the present case is really comparable with the two referred to, or with the case of Marsh, (No. 536 of 1994), to which reference was also made.  Both of the first two cases involved offenders who were much younger men, who seem to have been fortified by the effects of alcohol to the point of believing they had prospects of success if they made a sexual approach to the woman victim concerned.  In neither case did the applicant or offender have any prior record. 

They were, as I have said, both younger men and one at least of them the offender was acquainted with the complainant who, to that extent I suppose, was not confronted by a complete stranger lying naked on her in the middle of the night.  In that case, which was R v. Knight, the complainant seems to have been little affected by the experience and indeed, dealt with the presence of the applicant in her home in what might fairly be described as a stoical fashion.

The only question in the end is whether the learned sentencing Judge sufficiently took account of the applicant's plea of guilty.  For my part, I think that the sentence could not have gone very much higher than four years, perhaps even if the applicant had pleaded not guilty and gone to trial.  In the end, however, any variation which we might otherwise have been disposed to make in the sentence seems to me to be of such a kind as would not substantially alter its substance or effect, and that being so, I do not think we would be justified in interfering with the sentencing discretion in this case.

I would therefore refuse the application for leave to appeal.

PINCUS JA:  I agree, substantially for the reasons that the presiding Judge has mentioned.  I particularly agree with what I understand to be His Honour's view, that the sentence is at least towards the upper end of the possible range and I also agree that we cannot say that the Judge's discretion was wrongly exercised.

I agree with the order His Honour proposes.

BYRNE J:  I agree with the presiding Judge.

McPHERSON JA:  The order will be as I have stated.  That is to say, the application for leave to appeal will be refused.