R v Cowburn

[1993] QCA 273

IN THE COURT OF APPEAL [1993] QCA 273

SUPREME COURT OF QUEENSLAND

C.A. No. 135 of 1993

Brisbane
[R v. Cowburn]

BETWEEN

T H E Q U E E N
v.
ALLAN CHRISTOPHER COWBURN

(Applicant)

________________________________________________________________

_

Macrossan C.J.
Pincus J.A.

Lee J.

________________________________________________________________

_

Judgment delivered 4 August 1993.
Reasons of the Court.
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CATCHWORDS: CRIMINAL LAW - manslaughter - 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.

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

REASONS OF THE COURT

Judgment delivered 04/08/93

The applicant seeks leave to appeal against his sentence, having been convicted of manslaughter. The applicant was tried with one Fulford. They were charged with having murdered Simon Andrew Charlton on 25th March 1992 at Townsville. Each of the accused persons was acquitted of murder but convicted of manslaughter; it was suggested during argument before us and appears to be correct that the substantial issue in the applicant's trial was whether he had the requisite intention to kill Charlton or cause him grievous bodily harm.

The evidence showed that Charlton was savagely beaten about the head by the applicant and Fulford, the assault beginning at a time when Charlton was lying in bed and apparently asleep. The primary judge imposed a sentence of 12 years imprisonment on the applicant and recommended that he be considered for parole after eight years. Mr Barakin, who appeared for the applicant, argued that the head sentence was too heavy both absolutely and by comparison with that imposed on Fulford, and that the recommendation for late consideration of parole was erroneous. Fulford's sentence was two years shorter; he was sentenced to imprisonment for 10 years with a recommendation that he be considered for parole after six years.

Fulford was friendly with the applicant. On the night of the killing the two of them agreed to attack Charlton who was living at the same place and had gone to bed. Both Fulford and Cowburn, according to them, had been smoking marijuana. Prior to the attack the applicant took the precaution of putting gloves on so that his fingerprints would not be found on the instrument he had chosen, a large and heavy piece of wood. Fulford was armed with a shifting spanner. When the two first attacked Charlton the applicant struck him with the large piece of wood and then Fulford struck Charlton with the spanner. Charlton sat up, Fulford dropped the spanner, the applicant picked it up and hit Charlton on the head with it three or four times. The two then left Charlton.

During a conversation with police officers it was put to the applicant that Fulford had said that moaning was later heard, believed to be from Charlton, and "you handed him the shifting spanner to go back in and finish the job off. Do you remember that?". To that the applicant replied "Yeah, that was after, just as we were leaving". The two assailants left the premises, apparently not knowing or caring whether Charlton was dead or alive, to get rid of the incriminating objects; they threw the gloves, the spanner and other things into a weir.

According to the applicant, he and Fulford had been
offended by what they regarded as rude remarks made by Charlton.
But it could not be suggested, and was not suggested by Mr
Barakin, that there was the slightest justification for this
cowardly and brutal killing. The judge took the view that
Cowburn bore "primary responsibility". That conclusion was
challenged by Mr Barakin, but in our opinion it was well open;
even on the applicant's version of events he appears to have
been the principal aggressor and the judge found - a finding not

specifically challenged by Mr Barakin - that the fatal blow was

actually struck by the applicant.

The applicant had two convictions, in 1991, for relatively minor offences. We can see no justification for interfering with the sentence imposed on the applicant on the ground that it was too heavy, compared with that imposed on Fulford, nor does the head sentence appear to us to be out of line with sentences imposed in other bad manslaughter cases. Mr Barakin referred to the case of Whannell (Court of Appeal, 20 August 1992 [unreported]) in which a sentence of eight years was imposed, but the circumstances of that matter do not seem to us fairly comparable with the present case. Counsel for the Crown, Mr B Campbell, referred to the 15 year sentence imposed in Bayliss (Court of Criminal Appeal, 25 February 1987, unreported). The applicant there was the same age as the present applicant (18 years), and was intoxicated by alcohol and Serepax. Bayliss had fired a rifle about a caravan park in an indiscriminate way and as a result the caretaker of the caravan park was killed. We note that it appears from the submissions made to the learned primary judge that the reasons given by the Court in Bayliss may not have set out the full circumstances of the shooting of the caretaker. Bayliss' actions do not appear to us obviously deserving of more condign punishment than those of the applicant. It must have been plain to the applicant that what was done to Charlton would, if it did not kill him, at least severely injure him.

The remaining question is the correctness of the judge's order with respect to parole.

The learned primary judge said :

"I take into account the substantial period you have already served in prison and I take into account your relative youth...

In your case, Cowburn, a conviction is recorded. You are sentenced to a term of 12 years imprisonment and I recommend you be considered for parole after 8 years".

The Court was told Cowburn had been in custody for 12 months, in relation to this offence, before trial and it was that period of imprisonment to which the judge referred and which he said he took into account. The problem of pre-sentence custody is now dealt with by s. 161 of the Penalties and Sentences Act 1992, subs. 1 of which reads as follows :

"If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing Court otherwise orders."

Subsection 3 requires that in the circumstances to which subs. 1 applies the Court must take certain steps to record the position which has arisen; that was not done here. The first question is: To what effective term did the judge intend to sentence the applicant? Before the Penalties and Sentences Act came into operation the practice was, generally speaking, for the Court to take account of pre-sentence custody by reducing the head sentence which would otherwise have been imposed by a period of twice that spent in custody. For example, if the judge thought that 10 years imprisonment would, but for pre- sentence custody of one year, have been appropriate the Court would take account of the pre-sentence custody by imposing a sentence of only eight years. In the context in which the primary judge referred to the period already served in prison it seems to us that his Honour intended to imply that, but for the period of custody, the sentence would have been longer - presumably, 14 years. The judge perhaps intended to impose a term equivalent to 14 years, but in our view the order made does not do so. There is no order that the time the applicant was held in custody in relation to this offence not be taken to be imprisonment already served under the sentence, under subs. 1; therefore the period in custody must be so taken and the applicant, immediately after being sentenced, was entitled to be treated as having served a year of his 12 year sentence and, of course, a year of the eight year period required to be served before being considered for parole.

Mr Barakin pointed out that although Cowburn did not plead guilty to the indictment against him, which alleged murder, he had made an early offer to plead guilty to manslaughter. We agree that the offer should be taken into account in his favour, as should his age and the fact that he had not previously been convicted of any offence of comparable seriousness. The case is one in which the primary judge has, despite these circumstances, thought fit to impose, in effect, an eight year minimum sentence, and this was done, plainly, because of his Honour's view that the killing, while not being a murder, was extremely reprehensible. Although a heavy penalty, it is not one with which the Court should interfere, being within the range of a reasonable sentencing discretion.

To revert to the requirements of s. 161(3), we note that here there is no declaration that the time held in pre-sentence custody is imprisonment already served under the sentence nor, we assume, have the other steps required by that subsection been taken. In the circumstances of the present case it is necessary that they be taken. We were not told precisely how much time was spent in pre-sentence custody. On being informed of that the Court will make the appropriate declaration and give directions under s. 161(3) of the Penalties and Sentences Act 1992. The application will otherwise be dismissed.