R v Cowburn

[1993] QCA 556

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

v.

ALLAN CHRISTOPHER COWBURN

(Applicant)

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Macrossan C.J.
Pincus J.A.

Lee J.

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Judgment delivered 22 December 1993.

Reasons delivered 4 August 1993.

Judgment of the Court.
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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.

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.

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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

v.

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.