R v Burns - [2004] QCA 437

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burns [2004] QCA 437

PARTIES:

R
v
BURNS, Jace Stafford
(appellant)

FILE NO/S:

CA No 305 of 2004
DC No 367 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

16 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2004

JUDGES:

Williams JA and Mackenzie and Philippides JJ

ORDER:

Grant leave to appeal and allow the appeal only to the following extent:

(1) substitute four years imprisonment for the six years imprisonment on count 42, arson
(2) substitute five years imprisonment for six years imprisonment on counts 40 and 43, burglary

(3) the recommendation for post prison community based release and the declaration with respect to pre sentence custody should stand

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where sentencing judge exercised discretion to recommend post prison community based release – whether a suspended sentence more appropriate – whether justice miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant engaged in course of criminal conduct – where over 200 property offences, mostly burglaries, unlawful use of motor vehicles and arson of vehicles – where sentencing judge differentiated between applicant’s juvenile and adult offences – where differential of four years for adult offences – whether sentence for adult offences was excessive – whether sentencing judge gave sufficient weight to youth of applicant

Penalties and Sentences Act 1992 (Qld), s 189

COUNSEL:

M Johnson for the applicant
R Pointing for the respondent

SOLICITORS:

Locantro Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I will ask Justice Mackenzie to deliver his reasons first.

MACKENZIE J: The applicant was born on the 24th of April 1986. From the 3rd of September 2002 when he was almost 16 and a half until the 9th of May 2003, when he was about two weeks beyond his 17th birthday, he engaged in a course of criminal conduct reflected in a 45 count ex officio indictment, a schedule pursuant to section 189 of the Penalties and Sentences Act admitting to 147 other offences and two summary offences.

The offences in the indictment comprised 15 counts of burglary and stealing, one attempted burglary, two counts of breaking and entering with intent, two of entering with intent, seven of stealing, one of fraud, 11 of unlawfully using a motor vehicle, two of arson of a motor vehicle, one attempted unlawful use of a motor vehicle, two of aggravated receiving and one of dangerous operation of a motor vehicle. The schedule included 141 offences of burglary and stealing, four of burglary, one of attempted burglary and one of attempted stealing. The…

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 Burns

Details

AGLC: R v Burns [2004] QCA 437
Case: [2004] QCA 437
Decision Date: 16 November 2004

CaseChat Overview and Summary

The case of R v Burns involved an appeal against the sentence handed down by a lower court. The appellant, who had a history of criminal conduct, had been found guilty of over 200 property offences, including burglaries, unlawful use of motor vehicles, and arson of vehicles. The sentencing judge had exercised discretion to recommend post-prison community-based release, which the appellant contested as inappropriate. The appellant argued that a suspended sentence would have been more suitable and that the justice system had miscarried due to the length of the sentence given for his adult offences. The appeal sought to have the sentence reduced, particularly focusing on the disparity between the sentences for his juvenile and adult offences, which was four years.

The central legal issues in this case were whether the sentencing judge had exercised their discretion appropriately in recommending post-prison community-based release and whether the sentence for the appellant's adult offences was excessive. Additionally, the court needed to determine whether the sentencing judge had given sufficient weight to the youth of the appellant at the time of the adult offences. The appellant argued that a suspended sentence would have been more appropriate given his age at the time of the adult offences and the overall nature of his criminal conduct.

The court found that while the sentencing judge had exercised their discretion in recommending post-prison community-based release, there were grounds to interfere with the sentence itself. The court acknowledged that the appellant's criminal history was extensive but also noted the differentiation made by the sentencing judge between the juvenile and adult offences. However, the court concluded that the sentences for the adult offences were excessive and that the sentencing judge had not adequately considered the youth of the appellant at the time of those offences. The court reduced the sentences for specific counts and maintained the recommendation for post-prison community-based release and the declaration regarding pre-sentence custody.

The court granted leave to appeal and allowed the appeal to the extent of substituting shorter sentences for certain counts, while maintaining the recommendation for post-prison community-based release and the declaration concerning pre-sentence custody. The specific changes included substituting four years imprisonment for the six years on count 42, arson, and substituting five years imprisonment for the six years on counts 40 and 43, both burglaries. This decision reflected the court's view that while the overall sentence needed to be reduced, the structured approach to post-prison release remained appropriate.

Orders

Orders of the court

Grant leave to appeal and allow the appeal only to the following extent:

(1) substitute four years imprisonment for the six years imprisonment on count 42, arson

(2) substitute five years imprisonment for six years imprisonment on counts 40 and 43, burglary

(3) the recommendation for post prison community based release and the declaration with respect to pre sentence custody should stand

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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CITATION:	R v Burns [2004] QCA 437
PARTIES:	R v BURNS, Jace Stafford (appellant)
FILE NO/S:	CA No 305 of 2004 DC No 367 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	16 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2004
JUDGES:	Williams JA and Mackenzie and Philippides JJ
ORDER:	Grant leave to appeal and allow the appeal only to the following extent: (1) substitute four years imprisonment for the six years imprisonment on count 42, arson (2) substitute five years imprisonment for six years imprisonment on counts 40 and 43, burglary (3) the recommendation for post prison community based release and the declaration with respect to pre sentence custody should stand
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where sentencing judge exercised discretion to recommend post prison community based release – whether a suspended sentence more appropriate – whether justice miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where applicant engaged in course of criminal conduct – where over 200 property offences, mostly burglaries, unlawful use of motor vehicles and arson of vehicles – where sentencing judge differentiated between applicant’s juvenile and adult offences – where differential of four years for adult offences – whether sentence for adult offences was excessive – whether sentencing judge gave sufficient weight to youth of applicant Penalties and Sentences Act 1992 (Qld), s 189
COUNSEL:	M Johnson for the applicant R Pointing for the respondent
SOLICITORS:	Locantro Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent