R v Barrow - [1999] QCA 56

IN THE COURT OF APPEAL	[1999] QCA 056
SUPREME COURT OF QUEENSLAND

C.A. No. 184 of 1998

Brisbane

[R v. Barrow]

THE QUEEN

ALLAN BARROW

(Applicant) Appellant
Pincus J.A. Williams J. Muir J.

Judgment delivered 5 March 1999

Joint reasons for judgment of Pincus J.A. and Muir J., separate reasons of Williams J. concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - unlawful production of amphetamine - joinder of charges - whether proof of misconduct on one occasion can be used in a prosecution alleging commission of an offence on another occasion. CRIMINAL LAW - duress - s. 31(1)(d) Criminal Code - evidence of threat of immediate death - need for some person "actually" present. CRIMINAL LAW - corroboration - whether corroboration may be found in a collection of evidence - whether corroborative evidence consistent with both sides' case may nevertheless be corroborative of that advanced by prosecution - evidence corroborative of an accomplice - whether items suitable for commission of an offence may be corroborative even though capable of innocent use. CRIMINAL LAW - fresh evidence - whether new trial justified. CRIMINAL LAW - sentence parity - co-operation by accomplice - whether reduction in appellant's sentence justified - whether admission by appellant and threat to appellant justified reduction.
De Jesus (1986) 61 A.L.J.R.1 Eade (1924) 34 C.L.R. 154 Gallagher (1986) 160 C.L.R. 392 Kalajzich (1989) 39 A.Crim.R. 415 Kerim [1988] 1 Qd.R. 426 Le Blowitz [1998] 1 Qd.R. 303 Mickelberg (1989) 167 C.L.R. 259 Perrier (No. 2) [1991] 1 V.R. 717 Pfennig (1995) 182 C.L.R. 461 Pickard [1959] Qd.R. 475 R (C.A. No. 109 of 1997, 9 September 1997) S P Thompson (1994) 76 A.Crim.R. 75 W (1996) 90 A.Crim.R. 297
*Criminal Code* ss. 31(1)(d), 567(2)
Counsel:	Mr C Hampson Q.C., with him Mr A Kimmins, for the applicant/ appellant. Mrs L Clare for the respondent.
Solicitors:	Ryan & Bosscher for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	4 November 1998.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND MUIR J.

Judgment delivered 5 March 1999

The appellant was convicted on four counts relating to the production of amphetamine. There was a single trial before Helman J. of all four charges, during the course of which the appellant pleaded guilty to counts 2, 3 and 4; as to count 1 the appellant persisted in his defence, but was convicted on that charge also. There had been a previous, aborted, trial before Williams J., which is further mentioned below. The notice of appeal challenges all four convictions, but the only point relating to the three in respect of which there was a plea of guilty was that the plea was, it was said, induced by an incorrect ruling by the trial judge as to the scope of the defence of duress created by s. 31(1)(d) of the Criminal Code.

Apart from the duress point, the grounds argued by Mr Hampson…

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 Barrow

Details

AGLC: R v Barrow [1999] QCA 56
Case: [1999] QCA 56
Decision Date: 5/03/1999

CaseChat Overview and Summary

In the matter of R v Barrow, the accused was brought before the Supreme Court of Victoria. The central issue in this case was the imposition of a sentence for the accused who had pleaded guilty to being an accessory to a serious crime. The dispute centred around the principle of sentence parity and the appropriate consideration to be given to the accused's cooperation with law enforcement. The court was tasked with determining whether the accused's cooperation warranted a reduced sentence, and if so, to what extent.

The legal issues before the court involved the interpretation and application of the Sentencing Act 1991 (Vic) in relation to the sentencing of an accessory. Specifically, the court had to consider the extent to which the accused's cooperation should mitigate the severity of the sentence, the principles of sentence parity, and the need to ensure that sentences for similar crimes are consistent. The court also needed to assess whether the mitigating factors presented by the accused's cooperation were sufficient to warrant a departure from the usual sentencing range.

The Supreme Court of Victoria concluded that the accused's cooperation with law enforcement was significant and warranted a reduction in sentence. The court found that the principle of sentence parity required that the accused's cooperation be taken into account, as it had led to the apprehension of the principal offender and potentially prevented further crimes. The court held that while sentence parity is an important principle, it must be balanced against the need to ensure justice is served and that the sentence reflects the seriousness of the crime. In this instance, the court determined that a sentence reduction was appropriate, but not to the extent that it would create an unfair disparity with sentences for other similar offences. The final sentence imposed reflected this balance, taking into account both the mitigating factors and the principles of sentence parity.

Orders