R v Barron - [2013] QCA 349

[2013] QCA 349

COURT OF APPEAL

MARGARET McMURDO P
ANN LYONS J
DAUBNEY J

CA No 123 of 2013
CA No 292 of 2013
DC No 1975 of 2012
DC No 2230 of 2011

THE QUEEN

BARRON, Allan Raymond Applicant

BRISBANE

WEDNESDAY, 27 NOVEMBER 2013

JUDGMENT

THE PRESIDENT: On 1 May 2013, the applicant, Allan Raymond Barron, pleaded guilty before his Honour Judge Noud to burglary and stealing (count 1) and assault occasioning bodily harm whilst armed (count 2). Both offences were committed on 26 May 2012. Judge Noud sentenced him to 18 months imprisonment on count 1 and to two years imprisonment on count 2, both sentences to be served concurrently with each other but cumulatively on a sentence of three years imprisonment with a parole release date set on 19 April 2013 imposed by his Honour Judge Jones on 19 October 2012 for the offence of unlawful wounding. Judge Noud fixed a parole eligibility date of 18 June 2014. The applicant has applied for leave to appeal against his sentence, contending that it is manifestly excessive in light of his diagnosis since his sentence of terminal throat cancer.

With the concurrence of the respondent, the applicant was granted leave to adduce evidence from his lawyer to the following effect. On 9 July 2013, the applicant’s lawyers were advised that the applicant had been diagnosed the previous day with throat cancer. His lawyers were unable to discuss the matter with the applicant until 19 August 2013 when he confirmed this diagnosis by video link and stated that he was to undergo surgery the following Wednesday and was to then be treated with chemotherapy. After prolonged efforts, the applicant’s lawyers obtained a letter concerning the applicant dated 25 October 2013 from the medical oncology registrar at the Princess Alexandra Hospital, Dr Samuel Jones. Dr Jones confirmed that the applicant has a squamous cell carcinoma, probably originally at the base of his tongue, which had metastasised to multiple bilateral lymph nodes in his neck and superior mediastinum. His cancer is incurable. He has been offered palliative chemotherapy to attempt to control its progression and minimise symptoms. During his chemotherapy, a life threatening clot in his lung developed which was being managed with anti-coagulation therapy. Whilst life expectancy predictions were difficult to make “[a]n educated estimate would be that he wouldn’t be expected to live past 2 years from diagnosis, and that his life expectancy would be measured in months.”

Counsel do not know why the applicant, upon learning of his terminal condition, did not immediately apply for special circumstances parole rather than making this application. It can be expected that this ordinarily would be the avenue to be adopted in a case of this kind. But time is of the essence for the unfortunate applicant and the interests of justice require this Court to now deal with his application.

The respondent, whilst contending that the sentences imposed by Judge Noud were not manifestly excessive in light of the material placed…

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 Barron

Details

AGLC: R v Barron [2013] QCA 349
Case: [2013] QCA 349
Decision Date: 27 NOVEMBER 2013

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an application from Allan Raymond Barron against his sentence, which was imposed by Judge Noud for burglary and stealing, and assault occasioning bodily harm whilst armed. Barron's application was for leave to appeal against the sentence, which he contended was manifestly excessive in light of his recent diagnosis of terminal throat cancer. The appeal was heard by the President, Margaret McMurdo P, Ann Lyons JA, and Daubney JA.

The legal issues the court had to decide were whether the sentence was manifestly excessive in light of Barron's terminal illness and whether the appeal should be allowed. The court noted that the sentence imposed was not manifestly excessive on the basis of the information available at the time, but the extraordinary and tragic health issues that had come to light since the sentence required the court to make orders in the interests of justice.

The court found that the applicant's diagnosis of terminal throat cancer, with an estimated life expectancy of less than two years, warranted a re-sentencing to enable him to be released into the community forthwith. The court also noted that such an approach was consistent with previous cases, including R v Leith, R v Russell, and R v Hughes. The court proposed to grant the application for leave to appeal, allow the appeal, and vacate the orders made by Judge Noud on 1 May 2013, that the sentences on counts 1 and 2 be served cumulatively on the sentence imposed by Judge Jones on 19 October 2012 and that his parole eligibility date be fixed at 18 June 2014. Instead, the court ordered that the date the applicant be released on parole be today.

The orders proposed by the President were confirmed by the court. The application for an extension of time for leave to appeal was dismissed.

Orders