R v Burrows - [2004] QCA 306

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burrows [2004] QCA 306

PARTIES:

R
v
BURROWS, Kenneth Patrick
(applicant)

FILE NO/S:

CA No 166 of 2004
SC No 208 of 2003
SC No 170 of 2004
SC No 247 of 2004
SC No 258 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

20 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2004

JUDGES:

McPherson and Jerrard JJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where accused involved in the large scale trafficking of the dangerous drug methylamphetamine – whether the accused employed violence and weapons – where the learned sentencing Judge’s starting point was eleven years imprisonment – whether a reduction in the head sentence to nine years with a serious violent offence declaration adequately reflected the accused’s plea of guilty

Penalties & Sentences Act 1992 (Qld) Part 9A
R v Geary [2003] 1 Qd R 64, cited

COUNSEL:

S Lewis for the applicant
M J Copley for the respondent

SOLICITORS:

AW Bale & Son for the applicant
Director of Public Prosecutions (Queensland) for respondent

DUTNEY J: On the 13th of May 2004, the applicant was sentenced in relation to a large number of mainly drug related offences. The most serious of these and the one which governed the effective sentence was an offence of trafficking in methylamphetamine over a period from the 8th of September 1998 until the 5th of September 2001.

In relation to the trafficking offence the applicant was sentenced to nine years imprisonment with a declaration that it was a serious violent offence. In arriving at the ultimate head sentence her Honour, the sentencing Judge, moderated what she said would have been a sentence of 11 years imprisonment to reflect the plea of guilty. Had a sentence of 11 years been imposed it would, of course, have been impossible to reflect the guilty plea by any recommendation for early release because of the provisions of part 9A of the Penalties and Sentences Act 1992. Thus the only way credit could have been given for the plea was by a reduction in the head sentence.

The applicant was born on 24th of March 1966. He was a user of both heroin and methylamphetamine. He received a good report from the Community Corrections officer who supervised the period of an intensive correction order to which I shall shortly refer, although as will be clear he deceived the corrections officer as to his continuing offending behaviour.

The applicant was 32 when he commenced the offending behaviour with which we are concerned. Before that time he had a negligible criminal history. The only relevant offences were under the Weapons Act for collecting weapons while unlicensed.

The applicant was engaged in producing and…

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 Burrows

Details

AGLC: R v Burrows [2004] QCA 306
Case: [2004] QCA 306
Decision Date: 20 August 2004

CaseChat Overview and Summary

The case of R v Burrows involved the sentencing of an individual involved in large-scale trafficking of methylamphetamine, a dangerous drug. The matter was heard in a court of law where the accused had pleaded guilty to the charges against him. The sentencing judge began with an eleven-year imprisonment sentence, but later adjusted it to nine years, including a declaration of a serious violent offence. The court was tasked with examining whether this reduction in the sentence adequately accounted for the accused's plea of guilty.

The legal issues before the court centred around the appropriate sentence for the accused, considering the nature and extent of his involvement in drug trafficking, and the use of violence and weapons in the commission of the crimes. The court needed to determine if the final sentence, reduced to nine years, was commensurate with the gravity of the offence and if it appropriately recognised the accused's early guilty plea. The court was also required to consider the circumstances of the offender, including any relevant mitigating factors.

The court assessed the evidence and circumstances of the case, ultimately concluding that the nine-year sentence with a declaration of a serious violent offence was appropriate. The court found that the plea of guilty warranted a reduction in the sentence, but the severity of the crimes necessitated a significant custodial term. The court took into account the nature of the drug trafficking, the involvement of violence and weapons, and the need to deter similar criminal activity. The final sentence was deemed to adequately reflect the accused's plea of guilty and the seriousness of the offence.

The court dismissed the application for further review of the sentence, affirming the nine-year custodial term with the declaration of a serious violent offence. The decision underscores the importance of considering the circumstances of the offender and the gravity of the offence when determining an appropriate sentence, while also recognising the value of an early guilty plea.

Orders

Orders of the court

Application dismissed

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 Burrows [2004] QCA 306
PARTIES:	R v BURROWS, Kenneth Patrick (applicant)
FILE NO/S:	CA No 166 of 2004 SC No 208 of 2003 SC No 170 of 2004 SC No 247 of 2004 SC No 258 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	20 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2004
JUDGES:	McPherson and Jerrard JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – JUDGEMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where accused involved in the large scale trafficking of the dangerous drug methylamphetamine – whether the accused employed violence and weapons – where the learned sentencing Judge’s starting point was eleven years imprisonment – whether a reduction in the head sentence to nine years with a serious violent offence declaration adequately reflected the accused’s plea of guilty Penalties & Sentences Act 1992 (Qld) Part 9A R v Geary [2003] 1 Qd R 64, cited
COUNSEL:	S Lewis for the applicant M J Copley for the respondent
SOLICITORS:	AW Bale & Son for the applicant Director of Public Prosecutions (Queensland) for respondent