R v Cummins - [1999] QCA 117

IN THE COURT OF APPEAL [1999] QCA 117
SUPREME COURT OF QUEENSLAND

C.A. No. 376 of 1998

Brisbane
[R v Cummins]

THE QUEEN

TERRENCE CUMMINS

(Applicant)
Pincus JA Davies JA Thomas JA

Judgment delivered 16 April 1999.
Judgment of the Court.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
CATCHWORDS: CRIMINAL LAW - Manslaughter of de facto wife - psychological report - whether such report must be shown to prisoner - sentence of nine years with recommendation after four.
R v Auberson; Attorney-General of Queensland v
Auberson (CA No 248 and 249 of 1996, 3 September 1996)
R v Birks (1990) 48 A Crim R 385, (1990) 19 NSWLR 677
R v G [1986] 2 Qd R 406, (1986) 22 A Crim R 196
R v Schafferius [1977] Qd R 213
R v Whiting; ex parte Attorney-General of Queensland
[1995] 2 Qd R 199

Counsel: The applicant appeared on his own behalf.
Mr T Moynihan for the respondent.
Solicitors: The applicant appeared on his own behalf.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 18 March 1999.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16 April 1999

The applicant seeks leave to appeal against a sentence of nine years imprisonment (with a recommendation for consideration of parole after four years) for manslaughter.
The deceased was the applicant's 35 year old defacto wife. The applicant garotted her with a tea towel. They were both on a methadone program at the time of the offence. They had commenced a relationship while the applicant was on parole in 1985. The relationship was described as "turbulent" but the applicant denied any physical abuse on his part. Evidence was called on this contested issue and the learned sentencing judge held that the Crown failed to discharge its onus in this respect. Her Honour also accepted submissions from counsel on behalf of the applicant explaining bruising and other damage found to the body of the deceased as having been caused by contact between the deceased's face and the wall whilst the ligature was being applied, and also possibly from other causes for which the applicant was not to blame.
A few days before the incident in question, on 14 February 1997 the deceased and her son had moved out of the apartment that they shared with the applicant. The applicant visited them at their new residence two days later. He observed a prostitute, who was an acquaintance of the deceased, using the apartment to entertain a client. An argument ensued between the applicant and the deceased and ultimately the deceased accompanied him back to his residence where sexual intercourse took place between them in the kitchen. The deceased then confessed that she had had sex with the other woman and stated that "she's a better fuck than you anyway". The applicant "snapped" at this point, took a tea towel, placed it around the deceased's throat and began choking her. She challenged him saying "harder, harder" and he did so. When he finally…

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 Cummins

Details

AGLC: R v Cummins [1999] QCA 117
Case: [1999] QCA 117
Decision Date: 16/04/1999

CaseChat Overview and Summary

The applicant, Terrence Cummins, appealed against his sentence of nine years imprisonment for the manslaughter of his de facto wife, which was imposed by the Supreme Court of Queensland. Cummins argued that the sentence was manifestly excessive and inconsistent with other manslaughter cases. The primary issue for the Court of Appeal was whether the sentence was excessive and if it aligned with established sentencing patterns for manslaughter cases. The court considered various factors, including the circumstances of the offence, the applicant's criminal history, the psychological report, and the sentences in comparable cases. The court found that the sentence was appropriate and did not deviate from established sentencing principles.

The Court of Appeal found that the psychological report tendered by the applicant's counsel was helpful and did not constitute a miscarriage of justice, despite the applicant's claims that he had not been shown the report. The court held that counsel had made a proper forensic decision in relying on the report, and it was properly received. Furthermore, the court rejected the applicant's argument that his criminal history should have been given less weight in sentencing. The court emphasised that prior convictions are relevant in assessing moral culpability and propensity. The court also noted that the learned sentencing judge had considered the deceased's intoxication and its impact on the case, contrary to the applicant's assertions. The court concluded that the sentence of nine years with a recommendation for parole after four years was appropriate and did not deviate from established sentencing principles. Therefore, the appeal against the sentence was dismissed.

Orders