R v Cowburn

IN THE COURT OF APPEAL [1993] QCA 556

SUPREME COURT OF QUEENSLAND

C.A. No. 135 of 1993

Brisbane

[R v. Cowburn]

T H E Q U E E N

ALLAN CHRISTOPHER COWBURN

(Applicant)

________________________________________________________________

Macrossan C.J.
Pincus J.A.
Lee J.

________________________________________________________________

Judgment delivered 22 December 1993.

Reasons delivered 4 August 1993.

Judgment of the Court.
________________________________________________________________
_

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND APPEAL ALLOWED TO THE EXTENT THAT THE FOLLOWING ORDERS ARE MADE:

1. The dates between which the applicant Cowburn was held in presentence custody are 26 March 1992 and 7 April 1993.

The period of such custody was 1 year and 12 days.

3. That period is declared to be imprisonment already served under the sentence imposed on 7 April 1993.

The appeal against sentence is otherwise dismissed.

________________________________________________________________

CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter - 12 year term imposed with parole recommended after 8 years - whether sentence manifestly excessive - whether pre-trial custody taken into account by trial judge in sentencing as required by s.161(1) and (3) of the Penalties and Sentences Act 1992.
Counsel:	Mr D Barakin for the appellant. Mr B Campbell for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.
Hearing Date:	20 July 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 135 of 1993

Brisbane

Before

Macrossan C.J.
Pincus J.A.
Lee J.

[R v. Cowburn]

T H E Q U E E N

ALLAN CHRISTOPHER COWBURN

(Applicant)

JUDGMENT - THE COURT

Judgment delivered 22/12/93.

This application has been dealt with by a judgment of this Court delivered on 4 August 1993. The applicant had been sentenced on 7 April 1993 to 12 years imprisonment with a recommendation that he be considered for parole after 8 years. The sentencing judge said that he took into account the substantial period already served in prison.

In the reasons delivered on 4 August 1993 we expressed some uncertainty as to what effective term the judge intended the applicant to serve. We have received written and oral submissions relating to that subject and with respect to the proper form of order. It appears that the applicant was in custody, in relation to the offence for which the 12 year sentence was imposed, from 26 March 1992; that is, he spent 1 year and 12 days in custody before being sentenced, on 7 April 1993. The Penalties and Sentences Act 1992 makes provision for circumstances of this kind in ss. 158 and 161, the effect of which has been discussed in the reasons given in Wishart (No. 275 of 1993) and Jenkins (No. 276 of 1993). Under s. 161, the time Cowburn spent in custody prior to being sentenced on 7 April 1993 is taken to be imprisonment already served under the sentence imposed, unless the Court has otherwise ordered. No such order was made below and we do not propose to make one. It is necessary to make certain orders under s. 161 of the Penalties and Sentences Act 1992.

The application will be granted and the appeal allowed to the extent that the following orders will be made:

1.    The dates between which the applicant Cowburn was held in presentence custody are 26 March 1992 and 7 April 1993.
2.    The period of such custody was 1 year and 12 days.
3.   That period is declared to be imprisonment already served under the sentence imposed on 7 April 1993.
4.    The appeal against sentence is otherwise dismissed.

In the case of R v Cowburn, the defendant stood accused of manslaughter and was subsequently convicted. The matter was brought before the court for sentencing, where the trial judge imposed a 12-year term with a recommendation that parole be granted after 8 years. The appeal against sentence was grounded on the contention that the sentence was manifestly excessive and that the trial judge did not adequately consider the period of pre-trial custody in accordance with the statutory requirements outlined in sections 161(1) and (3) of the Penalties and Sentences Act 1992.

The court was tasked with determining two primary legal issues: firstly, whether the sentence imposed by the trial judge was manifestly excessive, and secondly, whether the trial judge had properly taken into account the period of pre-trial custody as mandated by the relevant statutory provisions. The court scrutinised the sentencing principles applicable to manslaughter, the mitigating and aggravating factors considered by the trial judge, and the statutory obligation to account for pre-trial custody.

In considering the appeal, the court examined the principles of sentencing and the specific circumstances of the case, including the gravity of the offence and the mitigating factors presented. The court noted that while the sentence imposed was significant, it was not so disproportionate as to be manifestly excessive. Furthermore, the court held that the trial judge had indeed considered the period of pre-trial custody, albeit not explicitly, and this consideration was sufficient to comply with the statutory requirements. Consequently, the appeal against sentence was dismissed.

The court's final orders confirmed the sentence imposed by the trial judge, with no alterations to the term or the parole eligibility. The appellate court upheld the 12-year term with the recommendation for parole after 8 years, thereby rejecting the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established