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.
________________________________________________________________
_

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…

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 Cowburn

Details

AGLC: R v Cowburn [1993] QCA 273
Case: [1993] QCA 273
Decision Date: 4/08/1993

CaseChat Overview and Summary

In the case of R v Cowburn, the applicant, Allan Christopher Cowburn, sought leave to appeal against his sentence for manslaughter. Cowburn and his co-accused, Fulford, were convicted of the manslaughter of Simon Andrew Charlton, who was brutally assaulted while apparently asleep. The primary issue in the trial was whether Cowburn had the requisite intention to kill or cause grievous bodily harm to Charlton. The Court of Appeal considered whether the sentence imposed was manifestly excessive and whether the trial judge appropriately considered the pre-trial custody in sentencing as required by s.161(1) and (3) of the Penalties and Sentences Act.

The Court of Appeal examined the severity of the sentence, noting that the primary judge imposed a 12-year imprisonment term on Cowburn, with a recommendation for parole consideration after eight years. Counsel for the applicant argued that the sentence was excessively heavy, both in absolute terms and when compared to the sentence imposed on Fulford, who received a 10-year term with a six-year parole consideration period. The Court of Appeal found no justification for interfering with the sentence, as it appeared to be within the range of a reasonable sentencing discretion.

The Court also addressed the issue of pre-trial custody and its consideration in sentencing. The primary judge acknowledged the period of pre-trial custody but failed to comply with the statutory requirement under s.161 of the Penalties and Sentences Act 1992. The Court noted that the primary judge intended to reduce the effective term of imprisonment by the period of pre-trial custody but did not make the necessary declaration and take the required steps as mandated by the statute. The Court ordered that the necessary steps be taken upon being informed of the precise duration of the pre-trial custody.

Ultimately, the Court of Appeal dismissed the application for leave to appeal, with the exception of the requirement to comply with s.161(3) of the Penalties and Sentences Act 1992. The Court found that while the sentence was heavy, it was not manifestly excessive and was within the range of a reasonable sentencing discretion.

Orders