R v Burton - [2002] QCA 114

[2002] QCA 114

COURT OF APPEAL

McMURDO P
WILLIAMS JA
MUIR J

CA No 304 of 2001
306 of 2001
348 of 2001

THE QUEEN

JAMES FRANKLIN BURTON Applicant

BRISBANE

..DATE 22/03/2002

JUDGMENT

THE PRESIDENT: The applicant applied for an extension of time within which to seek leave to appeal or, alternatively, an application to reopen his sentence under s.188 Penalties and Sentences Act 1992 (Qld) in respect of sentences imposed on 9 August 1993 for two offences of armed robbery, that is, CA No. 304 of 2001.

He makes similar applications in respect of the sentence imposed in the District Court on 18 November 1994 for two further counts of armed robbery, CA No. 306 of 2001.

He further applies for an extension of time within which to appeal from the sentence imposed on 10 March 1994 in the District Court for the offence of contempt of court, CA No. 348 of 2001.

The history of these matters is complex. On 9 August 1993 the applicant was sentenced in the District Court to nine years' imprisonment for two armed robberies. He was given no early recommendation for parole.

On 10 March 1994 he was sentenced to 12 months' imprisonment cumulative upon that sentence for the offence of contempt of court. The contempt was his refusal to give evidence against a co-accused in the two robberies which occurred in 1993. Ultimately the applicant was given a recommendation for parole to take effect on 9 May 1998, three months beyond the parole date applicable under the original nine-year sentence.

The applicant then underwent a religious conversion, causing him to frankly and candidly admit to a series of other offences which he had committed; the police were otherwise unaware of his involvement in these offences. On
18 November 1994 he pleaded guilty to these offences including a further two counts of armed robbery. He was sentenced to nine years concurrent imprisonment. Ultimately, the Judge recommended the applicant be released on parole on 9 May 1998.

The applicant's application for leave to appeal against the original sentence of nine years' imprisonment imposed on 9 August 1993 was refused (see R v Burton CA No. 31 of 1994
28 March 1994). The Court described the sentence as "a severe sentence; but it is not ... one that is so severe as to justify interference in this Court".

The applicant's application for leave to appeal against sentence in respect of the sentence of nine years imposed in the District Court on 10 March 1994 was refused by the majority (see R v Burton CA No. 492 of 1994 24 August 1994). McPherson JA noted:

"There is little doubt that the applicant's assistance and evidence has been of great advantage to the police and prosecution, and that it has been provided at considerable risk and detriment to himself. Offenders have been brought to justice who, without the applicant's help, would otherwise have escaped prosecution, conviction and punishment. The applicant merits special recognition for the course…

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 Burton

Details

AGLC: R v Burton [2002] QCA 114
Case: [2002] QCA 114
Decision Date: 22/03/2002

CaseChat Overview and Summary

The applicant, James Franklin Burton, sought an extension of time to appeal against sentences imposed on him for various offences, including armed robbery and contempt of court. The case was heard by the Court of Appeal in Queensland. The applicant's legal team argued for an extension of time to seek leave to appeal or to apply to reopen his sentence under the Penalties and Sentences Act 1992 (Qld). The applicant argued that his lengthy incarceration had enabled him to learn to read and write, leading to a better understanding of the justice system and his legal rights.

The court had to decide whether to grant an extension of time for the applicant to seek leave to appeal or to reopen his sentence. The court also considered whether the applicant's reasons for delay in making the appeal were sufficient to warrant an extension of time. The court further needed to determine whether the applicant's complaints about his legal representation and the weight given to his plea of guilty and assistance to the authorities were valid grounds for an extension of time.

The Court of Appeal found that the applicant's right to appeal had been exhausted, and any further appeal would require special leave from the High Court. The court also noted that the applicant's complaints about his legal representation and the weight given to his plea of guilty and assistance to the authorities had already been considered in previous appeals and found to be without merit. The court concluded that there was no realistic prospect that if an extension of time were granted, any application for leave to appeal against sentence would be successful. Therefore, the court refused all applications for an extension of time.

Orders