R v Burley; ex parte - [1998] QCA 98

IN THE COURT OF APPEAL [1998] QCA 098

SUPREME COURT OF QUEENSLAND

Brisbane C.A. No.449 of 1997

[R v Burley; ex parte A-G]

THE QUEEN
v.

TROY ALLEN BURLEY
Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
Appellant
Fitzgerald P
McPherson JA
Shepherdson J

Judgment delivered 19 May 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

ATTORNEY-GENERAL’S APPEAL AGAINST SENTENCE ALLOWED. SENTENCES OF 16 YEARS IMPRISONMENT IMPOSED BELOW SET ASIDE AND IN LIEU THEREOF SENTENCES OF 20 YEARS IMPRISONMENT IMPOSED.

CATCHWORDS: CRIMINAL - appeal by Attorney-General against sentence of serial rapist to 16 years imprisonment, on the ground that it is manifestly inadequate - youthful respondent at times series of offences committed (17½ and 18 years) - no prior criminal history - pleas of guilty at early stage avoiding need for committal proceedings as well as trial - Crown’s submission that range was 20 years to life imprisonment - risk of future offending behaviour quite high but no evidence before court as to whether respondent capable of change - appeal allowed - sentence set aside and in lieu sentence the respondent to 20 years imprisonment.

Counsel:Mrs L Clare for the appellant
Mr B Farr for the respondent

Solicitors:Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

Date of hearing: 18 March 1998

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19 May 1998

The circumstances giving rise to this appeal are set out in the reasons for judgment of Shepherdson J.

The question for this Court’s consideration is whether an effective sentence of 16 years’ imprisonment for the respondent’s total criminality was so low as to warrant increase by this Court. That question must be answered by reference to the law in force at the time of the respondent’s offences, which occurred prior to the amendment of the Penalties and Sentences Act 1992 by the Criminal Law Amendment Act 1997 and the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997.

Accordingly, although the respondent’s offences were serious violent offences within the meaning of Part 9A of the Penalties and Sentences Act, his sentences can be remitted under the Corrective Services Act 1988.[1] However, there is no basis for an assumption that he will be granted parole under the Corrective Services Act, and not be required to serve the full period of imprisonment to which he has been sentenced. The sentences imposed on the respondent were required to be no more severe than is necessary to achieve the purposes for which they were imposed.[2] He is a young man, presently aged 20 years, with no previous criminal convictions. He pleaded guilty and is entitled to have that taken into account in reduction of his sentences unless there are reasons for not doing so.[3] Further, in my opinion, the sentencing judge was correct to assume in favour of the respondent that there is some prospect of his rehabilitation. Such an assumption, and not the contrary assumption,…

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 Burley; ex parte

Details

AGLC: R v Burley; ex parte [1998] QCA 98
Case: [1998] QCA 98
Decision Date: 19 May 1998

CaseChat Overview and Summary

In the case of R v Burley; ex parte, the Attorney-General appealed against the sentence imposed on a serial rapist, arguing it was manifestly inadequate. The respondent, who had no prior criminal history, committed a series of offences at ages 17½ and 18 years, and entered guilty pleas that avoided the need for committal proceedings and a trial. The Crown submitted that the appropriate range for the sentence was 20 years to life imprisonment, considering the high risk of future offending behaviour. However, there was no evidence presented regarding the respondent's capacity for change. The court had to determine whether the sentence of 16 years imprisonment was manifestly inadequate.

The legal issues before the court centred on the adequacy of the sentence imposed on the respondent. The court was required to consider the seriousness of the offences, the age of the respondent at the time of the offences, the absence of a prior criminal history, and the potential risk of future offending behaviour. The Crown argued that the sentence was inadequate, while the defence maintained that it was appropriate given the circumstances. The court had to balance these factors to determine whether the sentence was manifestly inadequate and warranted an appeal.

In its decision, the court found that the sentence of 16 years imprisonment was indeed manifestly inadequate. The court acknowledged the seriousness of the offences, the youth of the respondent at the time of the offences, and the absence of a prior criminal history. However, the court also noted the high risk of future offending behaviour and the absence of evidence regarding the respondent's capacity for change. The court concluded that a sentence of 20 years imprisonment was more appropriate and allowed the appeal, setting aside the original sentence. The respondent was subsequently sentenced to 20 years imprisonment.

The final orders of the court were to allow the appeal, set aside the original sentence of 16 years imprisonment, and in lieu, sentence the respondent to 20 years imprisonment. The court's decision emphasised the need for a sentence that adequately reflected the seriousness of the offences, the youth of the respondent, and the risk of future offending behaviour.

Orders