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R v Burns

R v Burns

Case [2000] QCA 201 30 May 2000

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SUPREME COURT OF QUEENSLAND

CITATION: R v Burns [2000] QCA 201

PARTIES: THE QUEEN
v
BURNS, Peter John
(applicant)

FILE NO/S: CA No 399 of 1999
DC No 50B of 1998

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT:
District Court at Rockhampton

DELIVERED ON: 30 May 2000

DELIVERED AT: Brisbane

HEARING DATE: 8 May 2000

JUDGES: McMurdo P, McPherson JA, Douglas J
Judgment of the Court

ORDER: Application for leave to appeal against sentence granted. Appeal allowed to the extent of reducing the sentence of imprisonment imposed on count 1 from four and a half to three and a half years. Recommendation to parole authorities not disturbed.

CATCHWORDS:
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - GENERALLY - where no comparable cases for recent crime of torture - where series of acts constituting torture at the lower end of the scale of severity - whether Court can take into account comparable sentences for crimes involving a similar infliction of pain and suffering

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING - whether sentence for torture manifestly excessive - where series of acts constituting torture limited to series of punches delivered on one occasion

Criminal Code (Qld) s 17, s 320A

R v Brown;ex parte A-G [2000] QCA 110; CA 379 of 1999; April 4, 2000, mentioned
R v Burns CA 427 of 1998; May 28, 1999, applied
R v Geddes; ex parte A-G CA 486 of 1998; March 19, 1999, considered
R v Grimley [2000] QCA 64; CA 362 of 1999; March 14, 2000, distinguished
R and S [1999] QCA 181; (1999) 106 A Crim R 51, considered

COUNSEL: A J Rafter for the applicant
G Long for the respondent

SOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P, McPHERSON JA & DOUGLAS J: The appellant was brought to trial in 1998 in the District Court at Rockhampton and arraigned on an indictment charging him with having committed four offences in the course of conduct alleged to have been committed against his wife on 30 October 1997. There was a count charging assault occasioning bodily harm to which the appellant pleaded guilty, and three other charges to which he pleaded not guilty and which went to trial and verdict. Those three charges were torture, rape and a second count of rape. The appellant was found guilty of all three offences at that first trial, but on appeal the convictions were set aside and a new trial ordered: R v Burns CA 427 of 1998; May 28, 1999.

At the second trial in November 1999, the jury returned a verdict of not guilty of the first count of rape, but were unable to agree on the second count of rape. As regards the count charging torture, the appellant…

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 [2000] QCA 201
Case: [2000] QCA 201
Decision Date: 30 May 2000

CaseChat Overview and Summary

The case of R v Burns involved the defendant, Burns, who was convicted of the crime of torture under the Queensland Criminal Code. The court was tasked with determining the appropriate sentence for the offence, focusing on whether the sentence imposed by the lower court was manifestly excessive. The Court of Appeal in Queensland heard the matter and reviewed the sentence, considering the severity of the acts committed and the absence of comparable cases involving recent instances of torture.

The legal issues before the court were twofold: first, whether the court could consider sentences for crimes involving a similar infliction of pain and suffering when there were no recent comparable cases for the specific crime of torture; and second, whether the sentence for the series of acts constituting torture, which was limited to a series of punches delivered on one occasion, was manifestly excessive. The court had to balance these considerations against the character of the offence and the principles of sentencing in Queensland.

The Court of Appeal determined that, in the absence of recent cases of torture, it was appropriate to consider sentences for crimes involving a similar infliction of pain and suffering. The court found that the series of acts constituting torture were at the lower end of the scale of severity. However, the overall sentence of imprisonment imposed on count 1 was deemed to be manifestly excessive. Consequently, the court allowed the appeal and reduced the sentence from four and a half to three and a half years. The recommendation to the parole authorities was not disturbed by the court.

The final orders of the court were to grant leave to appeal against the sentence and to reduce the sentence of imprisonment imposed on count 1 from four and a half to three and a half years. The recommendation to the parole authorities remained unchanged.

Orders

Orders of the court

Application for leave to appeal against sentence granted. Appeal allowed to the extent of reducing the sentence of imprisonment imposed on count 1 from four and a half to three and a half years. Recommendation to parole authorities not disturbed.

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

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Citations

AGLC Citation

R v Burns [2000] QCA 201

Most Recent Citation

R v Blades, ex parte Attorney General [2001] QCA 384

Cases citing this decision · 11 of 11 shown

R v Goulding; R v Goulding, Peters, Potts and Knox; Ex parte
[2016] QCA 65 Para 5

…s time went on. Geddes offers a much more helpful basis for comparison because the torture there occurred over a substantial period.”[30] [26][2000] QCA 201. [27][2002] QCA 254. [28][2002] QCA 44. [29][2001] QCA 366. [30]At p 5-6.…
R v Williamson
[2012] QCA 139

…de Act 1899, is the intentional infliction of severe pain and suffering, physical or mental. That point was recognised by this Court in R. v. Burns [2000] QCA 201 in which it was said ‘the essence of that offence under s. 320A is the intentional infliction of ‘severe pain or suffering’, which may be mental or emo…
R v Peirson
[2006] QCA 251

…s manifestly excessive - whether trial judge should not have considered the psychological impact of the Applicant’s conduct R v Burns [2000] QCA 201; CA No 399 of 1999, 30 May 2000, cited R v Edwards [2001] QCA 366; CA No 173 of 2001, 5 September 2001, considered R v Real [2001] QCA 422; CA No 92 of 2001, 5 Octob…
R v Ping
[2005] QCA 472 Para 1

…Act 1899 (Qld), is the intentional infliction of severe pain and suffering, physical or mental. That point was recognised by this Court in R v Burns [2000] QCA 201 in which it was said ‘the essence of that offence under section 320A is the intentional infliction of “severe pain or suffering” which may be mental…
Ofakineiafu Michael David v The Queen
[2004] NZCA 301

…Grounds for appeal [9] The appeal against sentence was advanced by Mr Cordwell on the basis that the Judge placed inappropriate weight on the views expressed by the family of the deceased and that the deceased was later to die; did not allow sufficiently for what was alleged to be the “relatively mi…
R v Morris; ex parte
[2004] QCA 463 Para 3

…The cases of Geddes (1999) 106 A Crim R 14, Mah [2004] QCA 198 and Burns [2000] QCA 201 were referred to by the appellant by way of comparatives. The first two cases were clearly more serious ones than the present case and thus offer little assistance. However, they share a feature, in common with the present cas…
R v Mah
[2004] QCA 198

…-G (Qld) [1999] QCA 84; (1999) 106 A Crim R 14, considered R v BH [2000] QCA 110; (2000) 110 A Crim R 499, considered R v Burns [2000] QCA 201; CA No 399 of 1999, 30 May 2000, cited R v Dack [2002] QCA 44; CA No 340 of 2001, 20 February 2002, cited R v Edwards [2001] QCA 366; CA No 173 of 2001, 5 September 2001,…
R v Lumley
[2004] QCA 120 Para 1

…; CA No 268 of 1994, 12 September 1994. [15][1995] QCA 251; CA No 102 of 1995, 27 April 1995. [16][2002] QCA 254; CA No 63 of 2002, 23 July 2002. [17][2000] QCA 201; CA No 399 of 1999, 30 May 2000.…
R v Dack
[2002] QCA 44

…ng the offences, and I respectfully agree with that observation. After reviewing the cases of R v. Ambrose, CA No 5 of 1995 21 March 1995, R v. Burns [2000] QCA 201 CA No 399 of 1999, 30 May 2000 and R v. Brown [2000] QCA 110 CA No 379 of 1999, 4 April 2000, the Court concluded that the sentences imposed on Real…
R v Real
[2001] QCA 422 Para 1

…In R v Burns [2000] QCA 201, a sentence of five years was reduced to 3 ½ years where the conduct constituting the torture involved the offender punching his de facto wife seven times leaving bruising on her breasts and chest, her mid back, left cheek, chin and right forearm. The assailant carried out the prolonge…
R v Blades, ex parte Attorney General
[2001] QCA 384 Para 1

…on and evaluation of confessional evidence. [7] McKinney v The Queen (1991) 171 CLR 468. [8] R v Wakeley [1994] 2 Qd R 196, 200-201; cf R v D [2000] QCA 201 para 21.…

View all 11 citing cases →

Cases cited in this decision · 3 of 3 shown

R v B; ex parte A-G
[2000] QCA 110 Para 1

…being imposed is 14 years. The only two cases to which we are referred are R and S [1999] QCA 181; (1999) 106 A Crim R 51 and R v Brown; ex parte A-G [2000] QCA 110; CA 379 of 1999; April 4, 2000, where sentences of imprisonment for 11 years and eight years respectively were imposed. Another example is R v Geddes…
R v Grimley
[2000] QCA 64 Para 1

…range, but periods of as little as two years or less are not unknown depending on the seriousness of the injury and the pain involved: cf R v Grimley [2000] QCA 64; CA 362 of 1999; March 14, 2000.…
R v R & S; ex parte
[1999] QCA 181 Para 1

…nt innovation in the Criminal Code. The maximum penalty capable of being imposed is 14 years. The only two cases to which we are referred are R and S [1999] QCA 181; (1999) 106 A Crim R 51 and R v Brown; ex parte A-G [2000] QCA 110; CA 379 of 1999; April 4, 2000, where sentences of imprisonment for 11 years and e…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Burns [2000] QCA 201
PARTIES:	THE QUEEN v BURNS, Peter John (applicant)
FILE NO/S:	CA No 399 of 1999 DC No 50B of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	30 May 2000
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2000
JUDGES:	McMurdo P, McPherson JA, Douglas J Judgment of the Court
ORDER:	Application for leave to appeal against sentence granted. Appeal allowed to the extent of reducing the sentence of imprisonment imposed on count 1 from four and a half to three and a half years. Recommendation to parole authorities not disturbed.
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - GENERALLY - where no comparable cases for recent crime of torture - where series of acts constituting torture at the lower end of the scale of severity - whether Court can take into account comparable sentences for crimes involving a similar infliction of pain and suffering CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING - whether sentence for torture manifestly excessive - where series of acts constituting torture limited to series of punches delivered on one occasion Criminal Code (Qld) s 17, s 320A R v Brown;ex parte A-G [2000] QCA 110; CA 379 of 1999; April 4, 2000, mentioned R v Burns CA 427 of 1998; May 28, 1999, applied R v Geddes; ex parte A-G CA 486 of 1998; March 19, 1999, considered R v Grimley [2000] QCA 64; CA 362 of 1999; March 14, 2000, distinguished R and S [1999] QCA 181; (1999) 106 A Crim R 51, considered
COUNSEL:	A J Rafter for the applicant G Long for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent