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R v Burling & Gill

R v Burling & Gill

Case [2011] QCA 51 25 March 2011

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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…

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 Burling & Gill

Details

AGLC: R v Burling & Gill [2011] QCA 51
Case: [2011] QCA 51
Decision Date: 25 March 2011

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Burling & Gill [2011] QCA 51

Most Recent Citation

R v Dehghani; ex parte [2011] QCA 159

Cases citing this decision · 6 of 6 shown

R v Wci
[2025] QCA 131 Para 9

…es and Sentences Act 1992 . It was a significant but not an overwhelming feature. It was also accepted that, in accordance with R v Burling [2011] QCA 51 at [14], “low-level couriers generally receive a lesser sentence than those at a higher level in the drug hierarchy”. The sentencing judge accepted the opinion…
R v Schelvis
[2016] QCA 294 Para 1

…mstances. I note also that an argument which was very similar to that made on behalf of Schelvis was rejected in R v Burling & Gill .[134] [134][2011] QCA 51 at [1], [2], [24]-[29].…
R v Nerbas
[2014] QCA 259 Para 1

…the proportion reflected in the sentencing of a co-offender of theirs who had cooperated under s 21E. No error in sentencing was discerned. [52][2011] QCA 51.…
R v Douglas
[2014] QCA 104 Para 1

…vel of criminality. It was submitted that the evidence indicated that the appellant was probably a low level courier. [10](1999) 199 CLR 270. [11][2011] QCA 51.…
R v Maya & Kennedy
[2012] QCA 123 Para 1

…ty for the offence was life imprisonment. The conduct involved was in this respect significantly more serious than the conduct in this case. [8][2011] QCA 51.…
R v Dehghani; ex parte
[2011] QCA 159 Para 1

…n, rather than the existence of some “norm”, led to the same proportionality in the length of the non-parole periods.[10] [10] R v Burling & Gill [2011] QCA 51, 8, [31] per Chesterman JA with whom Philippides J agreed.…

View all 6 citing cases →

Cases cited in this decision · 11 of 11 shown

Hili v The Queen
[2010] HCA 45

…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 Quee…
Jones v The Queen
[2010] NZCA 119

…6 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 Hil…
R v Chandler
[2010] QCA 21 Para 1

…to R v Ruha , Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10 which had been expressly approved by the High Court in Hili and to R v Chandler [2010] QCA 21, an appeal which followed Ruha and in which the Chief Justice presided. It was after reference had been made to those authorities that the prosecutor…
R v Ruha, Ruha & Harris; ex parte
[2010] QCA 10 Para 1

…regard is had to what transpired during sentencing submissions. The Chief Justice was referred to R v Ruha , Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10 which had been expressly approved by the High Court in Hili and to R v Chandler [2010] QCA 21, an appeal which followed Ruha and in which the Chief J…
R v Oprea
[2009] QCA 184 Para 1

…e judge imposed a sentence of nine years imprisonment with parole after five and a half years, that is, at about 60 per cent of the head sentence. [2][2009] QCA 184.…
R v Jimson
[2009] QCA 183 Para 1

…mposed in Oprea ; R v Tran [7] and R v Jimson .[8] [5](2004) 148 A Crim R 155; [2004] NSWCCA 210. [6][2002] WASCA 135. [7](2007) 172 A Crim R 436. [8][2009] QCA 183.…
Melikian v R
[2008] NSWCCA 156 Para 1

…ences recognised the different roles of all three offenders. His Honour did not sentence either applicant on any incorrect factual or legal basis. [3][2008] NSWCCA 156, [42]. [4](2007) 173 A Crim R 458, [79]-[80]; [2007] NSWCCA 247.…
Tyler v R; R v Chalmers
[2007] NSWCCA 247 Para 1

…Honour did not sentence either applicant on any incorrect factual or legal basis. [3][2008] NSWCCA 156, [42]. [4](2007) 173 A Crim R 458, [79]-[80]; [2007] NSWCCA 247.…
R v Tran
[2007] QCA 221

…a , 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…
R v Kevenaar
[2004] NSWCCA 210 Para 1

…es imposed on Dehghani and Burling. It was supported by the sentences imposed in Oprea ; R v Tran [7] and R v Jimson .[8] [5](2004) 148 A Crim R 155; [2004] NSWCCA 210. [6][2002] WASCA 135. [7](2007) 172 A Crim R 436. [8][2009] QCA 183.…
Grimwood v The Queen
[2002] WASCA 135 Para 1

…and Burling. It was supported by the sentences imposed in Oprea ; R v Tran [7] and R v Jimson .[8] [5](2004) 148 A Crim R 155; [2004] NSWCCA 210. [6][2002] WASCA 135. [7](2007) 172 A Crim R 436. [8][2009] QCA 183.…

Legislation cited in this decision · 1

Crimes Act 1914 (Cth)
16A 2 mentions (from Para 1)

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