R v Burling & Gill

Case [2011] QCA 51


SUPREME COURT OF QUEENSLAND

CITATION:

R v Burling & Gill [2011] QCA 51

PARTIES:

R
v
BURLING, Dawn Andrea
GILL, Karen Leanne
(applicants)

FILE NO/S:

CA No 80 of 2010
CA No 84 of 2010
SC No 354 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2010

JUDGES:

Margaret McMurdo P, Chesterman JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

In each application for leave to appeal against sentence, the application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicants were convicted of one count of importing a commercial quantity of MDMA – where Burling was sentenced to 12 years imprisonment with a non-parole period fixed at seven years and three months – where Gill was sentenced to nine years imprisonment with a non-parole period fixed at five years and six months – where the applicants argued that the trial judge erred in considering that there was a "norm" for setting a non-parole period at 60-66 per cent of the head sentence – whether the court should re-sentence the applicants in light of the decision in Hili v The Queen; Jones v The Queen (2010) 272 ALR 465; [2010] HCA 45 – whether the sentence imposed was manifestly excessive

Crimes Act 1914 (Cth), s 16A, s 21E

Grimwood v The Queen [2002] WASCA 135, cited
Hili v The Queen; Jones v The Queen
(2010) 272 ALR 465; [2010] HCA 45, considered
Melikian v The Queen [2008] NSWCCA 156, cited
R v Chandler[2010] QCA 21, cited
R v Jimson [2009] QCA 183, cited
R v Kevenaar (2004) 148 A Crim R 155; [2004] NSWCCA 210, cited
R v Oprea [2009] QCA 184, cited
R v Ruha, Ruha & Harris; ex parte Commonwealth DPP (2010) 198 A Crim R 430; [2010] QCA 10, considered
R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited
Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247, cited

COUNSEL:

N V Weston for the applicant Burling
D R MacKenzie for the applicant Gill
C R Rice SC for the respondent

SOLICITORS:

Callaghan Lawyers for the applicants
Director of Public Prosecutions (Commonwealth) for the respondent

[1]      MARGARET McMURDO P:  On 25 November 2010, this Court dismissed the applicants' appeals against their convictions of importing a commercial quantity of ecstasy.  The Court gave the parties leave to make further submissions as to the applications for leave to appeal against sentence in light of the recent decision of Hili v The Queen; Jones v The Queen.[1]  Both Burling and Gill originally contended that their sentences were manifestly excessive.  Burling was sentenced to 12…

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AGLC
R v Burling & Gill [2011] QCA 51
Case
[2011] QCA 51
Decision Date

CaseChat Overview and Summary

The applicants, Burling and Gill, appealed against their sentences imposed following their conviction for importing a commercial quantity of MDMA. The matter was heard in the High Court of Australia. The crux of their appeal was the assertion that the trial judge had erred in applying a "norm" for setting a non-parole period at 60-66 per cent of the head sentence. They argued that this norm was no longer applicable in light of the High Court’s decision in Hili v The Queen; Jones v The Queen. They further contended that the sentence imposed on them was manifestly excessive.

The High Court considered whether the applicants' contentions regarding the application of the "norm" for non-parole periods were valid and whether the sentences were indeed manifestly excessive. The Court noted the applicants’ argument that the trial judge had misapplied the legal principles regarding the setting of non-parole periods by adhering to a norm that had been effectively overruled by the High Court. However, the Court found that the trial judge had correctly applied the principles as they stood at the time of sentencing and that the norm in question had not been definitively overruled by the High Court. The Court also found that the sentences imposed were not manifestly excessive, taking into account the seriousness of the offence and the need for deterrence and denunciation.

Accordingly, the Court dismissed the applicants’ appeals against their sentences. The applications for leave to appeal against sentence were refused.

Orders

Orders of the court

In each application for leave to appeal against sentence, the application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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