R v Billy - [1997] QCA 290

COURT OF APPEAL

[1997] QCA 290

McPHERSON JA
PINCUS JA

BYRNE J

CA No 208 of 1997
THE QUEEN
v.

PATRICK WILSON BILLY Applicant

BRISBANE
..DATE 17/07/97
170797 D.1 T2/DR7 M/T COA149/97
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 170797 D.1 T2/DR7 M/T COA149/97

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…

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 Billy

Details

AGLC: R v Billy [1997] QCA 290
Case: [1997] QCA 290
Decision Date: 17/07/1997

CaseChat Overview and Summary

The applicant, Patrick Wilson Billy, was convicted and sentenced in the District Court at Townsville for entering a dwelling house with intent and indecent assault. The victim, a 29-year-old woman, awoke to find the applicant lying on top of her, naked and attempting to kiss her while threatening her with a knife. The applicant pleaded guilty to the charges, resulting in a concurrent sentence of four years' imprisonment for each count. The Court of Appeal reviewed the case to determine whether the District Court had correctly exercised its sentencing discretion and if the sentence was appropriate.

The Court of Appeal assessed whether the District Court had sufficiently considered the applicant's plea of guilty and if the sentence was excessive. The judges noted the serious nature of the offences, the applicant's criminal history, and the impact of the crime on the victim. They compared the case with previous cases where similar sentences were imposed, concluding that the current case was distinguishable due to the applicant's age, criminal history, and the nature of the threats made to the victim.

The Court of Appeal found that the District Court had appropriately considered the plea of guilty and that the sentence was within the appropriate range. The judges agreed that the sentence was towards the upper end of the possible range, but it did not substantially alter its substance or effect. Therefore, the Court of Appeal refused the application for leave to appeal, upholding the original sentence.

Orders