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 1998DIVISION: 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 CourtORDER: 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, consideredCOUNSEL: A J Rafter for the applicant
G Long for the respondentSOLICITORS: 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…
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- AGLC
- R v Burns [2000] QCA 201
- Case
- [2000] QCA 201
- Decision Date
CaseChat Overview and Summary
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
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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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