The Queen v Biffin[1999] QCA 312

COURT OF APPEAL

McMURDO P

DERRINGTON J

BYRNE J

CA No 171 of 1999

THE QUEEN

v.

GARRY ROBERT BIFFIN

BRISBANE

DATE 05/08/99

JUDGMENT

THE PRESIDENT: The applicant was convicted of one offence of sexual assault with a circumstance of aggravation on his own plea in the District Court Maroochydore on 11 February 1999. The offence occurred on or about 5 November 1997.

His sentence was adjourned in order for his lawyers to obtain a psychiatric report and he was sentenced on 29 April 1999 to three years imprisonment with a recommendation for parole eligibility after serving nine months.

The applicant claims the sentence is manifestly excessive in  that the learned sentencing Judge was not assisted by comparable sentences and that the learned sentencing Judge did not sufficiently take into account the mitigating personal circumstances of the applicant.

The maximum period of imprisonment for this offence under s. 337 Criminal Code is one of life imprisonment. The comparable sentences to which we have been referred show that at least prior to 1 July 1997 when the penalty was increased to life imprisonment, lower head sentences in comparable circumstances have been imposed.

The difficulty for the applicant is that the legislature determined that where, as here, there has been penetration of the vagina by objects or fingers, the maximum sentence is now life imprisonment. As a result the comparable sentences prior to 1 July 1997 are of limited assistance.

It is useful now to look at the facts of this case. The complainant an 18 year old resided on the Gold Coast but was visiting her father at Noosa. She attended a Melbourne Cup Day race meeting at the racecourse near Caloundra. The applicant also attended that race meeting with members of his real estate agency staff as a reward from their employer for good work performance.

During the afternoon the complainant and her friends were invited to join the applicant's group for champagne in the members enclosure and later were invited to go by helicopter to Maroochydore and by car to Noosa. The whole group had drinks at a Noosa hotel.

During the course of the evening the complainant was not always in the appellant's group. Throughout the evening the appellant drank a large quantity of alcohol and also smoked some marijuana. He became very intoxicated.

Shortly after midnight he saw the complainant talking to a friend outside a Noosa nightclub and he drove up in his car and offered her a ride to her father's house. It was raining lightly and she accepted.

Despite her protests and the directions that she gave him, he drove off in the opposite direction from her father's house. He told her that he was not about to rape her. In time he stopped the vehicle on an isolated dirt road. He got out of the car and came around to the passenger's side, placed his hands on her thighs and said, "You'd better co-operate otherwise I'll kill you."

He pulled her dress and bra down to her waist and roughly fondled her breast. The complainant was frightened and intimidated as the applicant was a very large man and she was comparatively diminutive.

He pulled her skirt up around her waist and removed her panties. He overcame her resistance by grabbing her around the throat and the wrists, red marks were later observed on her throat together with some bruising to the wrists. He then touched her on her genitals and inserted two fingers into her vagina for about three minutes.

He said, "I won't put my dick inside you, I'll just wank myself." The complainant had her eyes closed but heard sounds suggesting that the applicant masturbated whilst touching her vagina. He then said, "You were lucky that I didn't put it inside you, I will take you home now."

He drove her to the back of a closed service station on the Cooroy/Tewantin Road and left her there in the dark. She telephoned police who attended the scene. She identified the applicant from a photograph of his group at the racetrack which appeared in a local newspaper the next day.

The applicant declined to be interviewed by police and indicated he wished to plead not guilty. The complainant was cross-examined in a vigorous manner at the committal and the matter was listed for trial. On the first day of the trial before the jury was empanelled the applicant pleaded guilty. 

The applicant had good references and a good work history. The references suggested that this behaviour was uncharacteristic. It is clear that intoxication was a major factor in his behaviour this evening, but is, of course, no excuse.

Material was placed before the sentencing Judge to support the submission that the applicant had not had any intoxicating liquor since the incident occurred and was making efforts to rehabilitate himself.

The applicant had a number of prior criminal convictions for drink/driving, offences of dishonesty including false pretences and drug convictions. It certainly cannot be said that he came before the Court with unblemished record. At least it can be said he had no prior convictions of a like nature. He was 35 years of age, married and was a good provider for his wife and three young children.

There are very serious aspects to this offence. The offence is one requiring both general and public deterrence. 

There was a degree of premeditation in the offence. The attack by this older, larger man on a diminutive 18 year old, in circumstances where she accompanied him believing she could trust the appellant to drive her to her father's home, but was abducted with threats that she might be killed, make the offence a most serious one. 

The only comparable sentence that has been handed down since the amendments to the Criminal Code in 1997 is that of R v. Millar, CA 201 of 1998, 15 September 1998. In that case Millar was convicted at a trial of indecently assaulting a young woman with a circumstance of aggravation that he penetrated her vagina with a finger. A sentence of three years' imprisonment was imposed. The complainant was a 16- year-old high school student and Millar a 34-year-old boarder in her home. On the night of the offence she and the applicant drank a bottle of Bourbon over some hours. She became ill and vomited. She fell asleep on the lounge with a bucket next to her and woke up to find the appellant lying on the sofa next to her and feeling his hand with his finger inside her vagina.

The Court noted that "the appellant did not spare the complainant the ordeal of a trial, and she suffered distress when later she came to appreciate what had been done to her;  but there is no reason to suppose that in this instance she suffered physical pain or permanent ill-effects as a result.

Features that tend to exacerbate the offence are the difference in ages between the offender and the complainant, and that the appellant took advantage of her while she was drunk and asleep in her own home. Nevertheless, it is not as serious as it would have been if the commission of the offence had involved an intrusion into the privacy of her own bedroom". The Court found the sentence of three years' imprisonment was manifestly excessive and substituted a term of imprisonment of 18 months. 

It must be said, however, that this offence is much worse than Millar. Here, the complainant who, it seems, from the material before this Court, was not adversely affected by liquor, got into the applicant's car believing she would be taken to her father's home and against her will was driven to an isolated spot where these offences were committed. Death threats were made. The offences have had a significant impact on her as is demonstrated by the victim impact statement. 

The learned sentencing Judge from his sentencing remarks seems to have been under the misapprehension that the maximum penalty for the offence was 10 years whereas, as I have stated, it was life imprisonment. 

Although the primary judge said in his sentencing remarks that he was making the recommendation for parole eligibility solely on the basis of the plea of guilty, such a generous recommendation must necessarily also have taken into account the other mitigating factors including the lack of prior convictions for similar offences and the applicant's good work history and good family support. 

It should also be noted that all the relevant factors seem to have been placed before the sentencing Judge by the counsel who appeared for the applicant below.

When all these matters are taken into account it cannot be said that the sentence imposed, which includes the recommendation for parole, was in any way manifestly excessive. I would refuse the application.

DERRINGTON J: I agree. I would add that I do not think that it is particularly fair to suggest that His Honour was not provided with reasonably full particulars of the personal considerations relating to the applicant by counsel representing him at the hearing. In fact, a perusal of the transcript would reveal that very adequate details of that were given. To have gone further would have been either to be repetitious or to have embroidered what was already there. 

The only other feature that causes me concern which has not been referred to by the learned President is that the applicant has had to have realised only the evening before, or the morning when the matter was first called on for trial, what he had done. His recollection of that caused him to plead guilty. It is interesting to note that notwithstanding his apparent recollection which caused him to plead guilty it was then followed by an adjournment of the matter to enable him to obtain a psychiatrist's report. 

That psychiatric report, which is most unsearching of the full circumstances and details of the matter, recounts a story by the applicant which is quite inconsistent with the facts. For some strange reason it seems as though the psychiatrist either was not supplied with or chose to ignore the Crown version of the events which were accepted by the applicant himself. The Crown version of the events of course being that provided by the complainant.

These matters all make it difficult to accept the proposition that the applicant really couldn't remember the details of what he had done, at least sufficiently to realise the general implications of his actions. Perhaps that fits in with his past history of fraudulent conduct for which he has been convicted on some occasions.

I agree with the order proposed by the President and with her reasons for them.

BYRNE J: The material circumstances have been mentioned in the reasons for judgment of the President. 

The applicant relied on three grounds in pursuing this application. First, it was said that the sentence appears excessive in comparison with other cases. Next, it was argued that insufficient allowance was made for the absence of prior relevant, that is to say sexual offence, convictions. Then it was put that insufficient allowance was made for the personal circumstances of the applicant, such as his position as an employer of others, and his family circumstances.

As to the first, in my view decisions concerning offences like the present committed before 1 July 1997 are of limited assistance now that the maximum sentence has been increased to life imprisonment.

As to the contention that insufficient recognition was given to the absence of prior convictions for sexual offences and to the applicant's personal circumstances, it is true, as the President has said, that the Judge commented that his recommendation for much earlier than usual parole was founded "solely" on the resource savings associated with the plea of guilty and the alleviation of the distress which the complainant might be expected to suffer by testifying at the trial. However, in my view, it is not possible to reconcile that comment with either the earlier remarks made by the Judge in referring to the applicant's family, or with the very substantial credit reflected by the recommendation for parole after only nine months of the sentence has been served.

In these circumstances, I am unable to conclude that the Judge failed to give adequate recognition to the applicant's personal circumstances or absence of prior convictions for sexual offences. 

I would add that there is no satisfactory basis in fact to support the submission made by Mr Devlin that the applicant's personal circumstances, so far as they are material, were not sufficiently drawn to the attention of the sentencing Judge. On the contrary, I consider that they were.

This brings me to the nub of the facts and the submission that the sentence is excessive.

This applicant exposed the complainant to a terrifying ordeal. The acts of digital penetration were accompanied by other, closely related, incidents of violence, and a threat to kill if the complainant did not submit to the applicant's depravity - an episode which persisted over several minutes.

Her victim impact statement poignantly, but nonetheless seemingly fairly, describes the consequences. These include nightmares and other distress, including anxiety attacks leading to illness, and difficulty in relationships with men.

In all the circumstances, in my opinion this was by no means a heavy sentence. Indeed, especially in view of the parole recommendation, and bearing in mind that the maximum sentence is life imprisonment, I consider the sentence a light one.

I would refuse the application.

THE PRESIDENT: The order is the application is refused.