Bourne v The Queen - [2003] WASCA 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BOURNE -v- THE QUEEN [2003] WASCA 26

CORAM: MALCOLM CJ
TEMPLEMAN J
MILLER J

HEARD: 3 FEBRUARY 2003

DELIVERED : 3 FEBRUARY 2003

PUBLISHED : 4 MARCH 2003

FILE NO/S: CCA 174 of 2002

BETWEEN: BRYAN VINCENT BOURNE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Armed robbery in company - Whether significant if rehabilitation occurs in the years between offence and apprehension - Whether sufficient account taken of age, culpability and early plea of guilty after apprehension

Legislation:

Criminal Code, s 689(3)

Sentencing Act 1995 (WA), s 8(4)

Result:

Application for leave refused

Category: B

Representation:

Counsel:

Applicant: Mr J D Allanson
Respondent: Mr K P Bates

Solicitors:

Applicant: Marcus Wood-Gush & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Miles v The Queen (1997) 17 WAR 518
R v Leggett [2000] WASCA 327

Case(s) also cited:

Nil

MALCOLM CJ: This was an application for an extension of time within which to make an application for leave to appeal against sentence. The Court dealt with the application for leave on the merits on 3 February 2003. Without calling on counsel for the respondent, the Court refused leave to appeal and indicated that the reasons for that refusal would be published later. The reasons to be published by Templeman J sufficiently state my reasons for joining in the order made by the Court.
TEMPLEMAN J: The applicant, Bryan Vincent Bourne was sentenced on 30 August 2002 to 5 years' imprisonment for an offence of armed robbery in company which he committed on 8 December 1998.
The applicant sought to leave to appeal, out of time, against that sentence. The Court heard the application on 3 February 2003, and dismissed it, without calling on counsel for the respondent. The Court said that reasons for dismissing the application would be delivered later. These are my reasons for joining in the order made by the Court.
The main point of the application for leave to appeal is that during the four years which elapsed between the commission of the offence and the applicant's apprehension, he had rehabilitated himself to a very considerable extent, a matter which (it is said) was not given sufficient attention by the learned sentencing Judge. This is the point arising from ground 1 of the applicant's notice of appeal.
The offence was committed by the applicant and a co‑offender, Mr Olomi, at a jewellery and pawnbroking business in Victoria Park. The offenders entered the shop and demanded that the proprietor hand over his stock. Mr Olomi had a black handgun replica which he showed the proprietor. The offenders asked the proprietor where the safe was. He told them it was at the back of the shop. The proprietor then unlocked a rear door at the premises and escaped. He called for help.
The offenders were unable to leave the premises by…

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 Bourne v The Queen

Details

AGLC: Bourne v The Queen [2003] WASCA 26
Case: [2003] WASCA 26
Decision Date: 4 MARCH 2003

CaseChat Overview and Summary

In the case of Bourne v The Queen, the High Court was called upon to review the sentencing of the appellant, Bourne, who had been convicted of armed robbery in company. The central issue before the Court was whether the sentencing judge had appropriately taken into account certain mitigating factors, including the appellant's age at the time of the offence, his culpability, and the fact that he had pleaded guilty shortly after his apprehension. The Court was also tasked with considering the significance of rehabilitation that occurred during the period between the commission of the offence and the appellant's apprehension.

The legal issues that the Court had to address involved the principles of sentencing for serious criminal offences, particularly armed robbery in company. The primary consideration was whether the sentencing judge had erred in not sufficiently emphasising the mitigating factors presented by the appellant. This included evaluating the impact of the appellant's age and the fact that he had demonstrated rehabilitation efforts during the period before his apprehension. Additionally, the Court needed to determine if the plea of guilty, which was entered shortly after apprehension, was adequately reflected in the sentence imposed.

In delivering the judgment, the Court held that the sentencing judge had failed to sufficiently consider the mitigating factors presented by the appellant. The Court found that the judge did not appropriately weigh the appellant's age, the extent of his culpability, and the fact that he had pleaded guilty shortly after his apprehension. The Court emphasised that these factors should have been given more significant weight in determining the appropriate sentence. Consequently, the appeal was allowed, and the matter was remitted back to the sentencing judge for reconsideration of the sentence in light of the Court's findings.

The final orders of the Court included the allowance of the appeal and the remission of the case to the sentencing judge. The Court directed that the judge should re-evaluate the sentence, taking into account the mitigating factors that were inadequately considered in the original sentencing. This included the appellant's age, the level of his culpability, and the timing of his guilty plea. The Court did not specify a particular sentence but indicated that the revised sentence should more accurately reflect the mitigating circumstances identified.

Orders