R v Biffin - [1999] QCA 312

99.312

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
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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.
050899 T7/TW12 M/T COA183/99
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
050899 T7/TW12 M/T COA183/99
got out of the car and came around to the passenger's side,
placed his hands on her thighs and said, "You'd…

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 Biffin

Details

AGLC: R v Biffin [1999] QCA 312
Case: [1999] QCA 312
Decision Date: 5/08/1999

CaseChat Overview and Summary

The case of R v Biffin involved the applicant, Garry Robert Biffin, who was convicted of one count of sexual assault with a circumstance of aggravation on his own plea in the District Court of Maroochydore. The offence occurred on or around 5 November 1997, and Biffin was sentenced on 29 April 1999 to three years imprisonment with a recommendation for parole eligibility after serving nine months. Biffin appealed against the sentence, claiming it was manifestly excessive, as the sentencing judge was not assisted by comparable sentences and failed to sufficiently take into account the mitigating personal circumstances of the applicant.

The legal issues before the court were whether the sentence was manifestly excessive, and if the sentencing judge failed to adequately consider the mitigating personal circumstances of the applicant, such as his absence of prior convictions for sexual offences and his family circumstances. The maximum period of imprisonment for this offence under section 337 of the Criminal Code is life imprisonment. The court noted that prior to 1 July 1997, when the penalty was increased to life imprisonment, lower head sentences in comparable circumstances had been imposed. However, the court held that the comparable sentences prior to 1 July 1997 were of limited assistance due to the increased penalty.

The court found that the sentence imposed, which included the recommendation for parole, was not manifestly excessive, as all relevant factors were taken into account by the sentencing judge. The court held that the sentence was a light one, especially in view of the parole recommendation, and bearing in mind that the maximum sentence is life imprisonment. The court refused the application and upheld the original sentence.

In summary, the Court of Appeal found that the sentence imposed on Garry Robert Biffin for his sexual assault conviction was not manifestly excessive, and that the sentencing judge had adequately taken into account the mitigating personal circumstances of the applicant. The court refused the applicant's appeal against the sentence.

Orders