R v Gill - [1999] QCA 358

99.358

COURT OF APPEAL
PINCUS JA
McPHERSON JA

CHESTERMAN J

CA No 230 of 1999
THE QUEEN
v.

CHRISTOPHER ALAN GILL	Applicant
BRISBANE ..DATE 26/08/99
JUDGMENT
260899 D.1 T9/LE9 M/T COA207/99

PINCUS JA: The applicant was convicted on pleas of guilty on four indictable offences and sentenced to three and a half years imprisonment on each. It is conceded by the respondent the Judge erred in sentencing the applicant in respect of two of the offences, namely wilful and unlawful damage. The maximum penalty at the time was two years and the penalties imposed exceeded that.

The other two offences charged, apart from the two I have mentioned, were breaking and entering with intent and unlawful and indecent assault. All of these offences were committed on 28 October 1995 but the applicant was not convicted until 4 June 1999. The reason for this delay was not gone into in detail at the hearing below. It appears to have been due to a large extent to uncertainty as to the applicant's psychiatric state at the time of the offences and this took some time to investigate.

The applicant is now 32 years of age and was apparently at one stage living in a relationship with the complainant woman in Sydney. They both moved to Brisbane independently.

At the time of the offences the relationship was at an end

and the complainant had spent the night at home with her
boyfriend and her two young children. Early the next day
according to the information supplied to the primary Judge
the applicant telephoned her and said, "I didn't like what I
saw last night." About 7.30 a.m., according to the same
information, he was outside the house and the complainant
told her boyfriend to go to the bathroom, apparently to get

2 JUDGMENT

260899 D.1 T9/LE9 M/T COA207/99

the boyfriend out of the way. She asked the applicant what
he wanted and he punched out a glass window next to a
security door and then ripped the security door open and
entered the house.

Rather strangely, when he got inside he took a telephone away from the complainant, who was about to ring the police, and phoned his father to tell the father that he was at the complainant's house, that he had smashed windows and kicked the door in. After this phone call, the applicant went upstairs and banged on the door of the bathroom in which the complainant's boyfriend and children were present. He then came downstairs and said, "I've seen his face. He'll want to look out when he's on the streets." He said to the complainant, "You're fucking that. You fucked every Tom, Dick and Harry," and he said, "[N]ow, I'll fuck you, too."

He pushed her backwards over a lounge, spread her legs and thrust a hand into her vagina causing much pain. She was later found to be suffering from swelling and soreness in that area, but apparently no lacerations. The applicant told the complainant he was…

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 Gill

Details

AGLC: R v Gill [1999] QCA 358
Case: [1999] QCA 358
Decision Date: 26/08/1999

CaseChat Overview and Summary

In the Court of Appeal of Queensland, the case of R v Gill involved an appeal against sentence by the applicant, Christopher Alan Gill, who had been convicted on four indictable offences. The offences included wilful and unlawful damage, breaking and entering with intent, and unlawful and indecent assault. The applicant was sentenced to three and a half years imprisonment on each charge. The appeal focused on the sentencing of two of the offences for which the maximum penalty was two years, as the penalties imposed exceeded that. The delay in the applicant's conviction was due to uncertainty about his psychiatric state at the time of the offences.

The legal issues before the court were whether the primary judge erred in sentencing the applicant in respect of the wilful and unlawful damage offences and whether the penalties imposed were excessive. The court had to consider the medical evidence presented, particularly the opinions of four psychiatrists, to determine the applicant's mental state at the time of the offences. The primary judge found that the applicant was legally responsible for his actions, a decision which the Court of Appeal found no basis to disagree with.

The Court of Appeal, led by Pincus JA, considered the applicant's history and the evidence presented, including his actions leading up to the offences and his behaviour since. The court noted the applicant's previous convictions and his expressions of concern about his mental state prior to the offences. The court concluded that the overall sentence of three and a half years was appropriate but reduced the sentence for the wilful and unlawful damage offences to one year, in line with the respondent's submission. The court also altered the parole recommendation, ordering that all sentences be suspended after six months with an operational period of two years. Both McPherson JA and Chesterman J agreed with the reasons and order proposed by Pincus JA.

Orders