R v Thorburn - [2017] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thorburn [2017] QCA 278

PARTIES:

R
v
THORBURN, Trent Jordan
(applicant)

FILE NO/S:

CA No 215 of 2017
DC No 445 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh – Date of Sentence: 14 September 2017 (Chowdhury DCJ)

DELIVERED ON:

Order delivered ex tempore 11 October 2017
Reasons delivered: 14 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2017

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDER:

Order delivered 11 October 2017:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of incest, one count of attempt to obstruct the course of justice and two counts of perjury – where on 14 September 2017 the applicant was sentenced to an effective head sentence of four years imprisonment – where it was ordered that the sentences of imprisonment be suspended after the applicant had served 16 months imprisonment – where 359 days in pre-sentence custody were declared time served – where the applicant had been assaulted repeatedly by fellow inmates within a day or two of imprisonment – where a protection order had been made by Corrective Services to ensure the safety of the applicant on remand – where the applicant had served all but a couple of days of this time in custody in a detention unit, isolated from the general prison population – where it was accepted that such form of imprisonment is more difficult to endure than general imprisonment – where the applicant contends that having regard to the particular circumstances under which the applicant served his time on remand, the requirement that the applicant serve 16 months actual custody is manifestly excessive – whether the application should be granted

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Callanan v Attendee X [2013] QSC 340, considered
R v Galleghan[2017] QCA 186, cited
R v Ikin[2007] QCA 224, applied
R v Onley; Ex parte Attorney-General (Qld)[1994] QCA 199, considered
R v Watson[2017] QCA 82, cited

COUNSEL:

R East for the applicant
C W Heaton QC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 14 September 2017, the applicant pleaded guilty to one count of incest, one count of attempt to obstruct the course of justice and two counts of perjury. The applicant was sentenced to an effective head sentence of four years imprisonment, imposed on the second count of perjury, with lesser concurrent terms of imprisonment imposed on the remaining counts. It was ordered that the sentences of imprisonment be suspended after the applicant had served 16 months imprisonment for an operational period of five years. Allowing for 359 days in pre-sentence custody, which…

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 Thorburn

Details

AGLC: R v Thorburn [2017] QCA 278
Case: [2017] QCA 278
Decision Date: 14 November 2017

CaseChat Overview and Summary

The case of R v Thorburn involved the applicant appealing against the sentence imposed by the court, claiming that the requirement to serve 16 months in actual custody was manifestly excessive. The applicant had pleaded guilty to one count of incest, one count of attempt to obstruct the course of justice, and two counts of perjury. The applicant was sentenced to an effective head sentence of four years imprisonment, with the sentences of imprisonment suspended after the applicant had served 16 months imprisonment. The applicant argued that the sentence was manifestly excessive because he had served all but a couple of days of his time on remand in custody in a detention unit, isolated from the general prison population, and had been assaulted repeatedly by fellow inmates within a day or two of imprisonment.

The court was required to determine whether the sentencing judge erred in imposing a sentence that was manifestly excessive, taking into account the particular circumstances under which the applicant served his time on remand. The court examined the sentencing remarks to determine if the sentencing judge had erred in considering the applicant's time served in actual custody. The court held that the sentencing judge had made clear in the sentencing remarks that the applicant's time spent in solitary confinement would be considered in the circumstances, and such a factor was appropriately to be considered. The court further held that the reduction of the head sentence by six months imprisonment was well within a proper exercise of the sentencing discretion in all of the circumstances.

The court concluded that the sentencing judge was not in error to observe that the applicant was incarcerated as a consequence of his own actions, and significant allowance had been given for the circumstances in which the applicant served his time on remand. The court held that to have granted the applicant yet a further reduction in the actual time served would have resulted in a sentence which was too lenient. Accordingly, the sentence imposed was not unreasonable or plainly unjust, and the application for leave to appeal was refused.

The court's decision in R v Thorburn highlights the importance of considering all of the circumstances in which an applicant serves their time on remand when imposing a sentence. The court emphasised that sentencing an offender is not an exercise in addition or subtraction, but rather a balancing of many different and conflicting features. The court held that the sentencing judge had appropriately exercised their discretion in considering the applicant's time served in actual custody and that the sentence imposed was not manifestly excessive.

Orders

Orders of the court

Order delivered 11 October 2017:

The application for leave to appeal be refused.

Background

Background to the litigation

On 11 October 2017, the Court refused the application for leave to appeal. These are the Court’s reasons.Background The applicant was born on 12 May 1997. He was aged 18 and 19 years at the time of the offending and 20 years at sentence. The applicant had no prior criminal history. The offence of incest involved the applicant having unprotected sexual intercourse with his 12 year old foster sister. Shortly after that event, the applicant confessed to a cousin and later his mother about the sexual intercourse. It is alleged that after the mother informed the applicant’s father of that event, the applicant’s father, acting alone and without any warning, killed the child in order to silence her and spare the family and the applicant from the consequences of likely imprisonment. The applicant’s father then devised a plan involving each member of the family relating a similar story, namely, that the foster child had been dropped to school by the father the next morning but had not returned later that day. The applicant, his older brother and his mother all allegedly participated in giving this false account to the authorities.Offences The offence of attempting to obstruct the course of justice arose out of the consequence of the applicant giving false statements to the police about the foster child’s last whereabouts. The applicant gave a false statement on 6 November 2015, which was repeated on 20 November 2015. He again gave a false statement on 11 February 2016. The first count of perjury arose out of evidence given by the applicant to the Crime and Corruption Commission as part of an investigative hearing into the disappearance of the foster child. On 26 June 2016, the applicant falsely testified that there had been no sexual contact between him and the foster child. He also falsely claimed he had seen the foster child at a time when he knew she had been killed by his father. The second count of perjury arose out of evidence given by the applicant at an investigative hearing conducted by the Crime and Corruption Commission on 19 September 2016. By that time, extended family members had provided statements to police contradicting the applicant’s denial of sexual contact with the foster child. Further, a covert listening device had recorded the applicant’s parents telling the applicant and his brother to continue to maintain the false story. When the applicant was recalled to the investigative hearing on 19 September 2016, he acknowledged he had had sexual intercourse with his foster sister but in evidence gave an explanation as to the circumstances of that intercourse consistent with a version suggested to him by his father as recorded by the covert listening device. The applicant continued to falsely testify that the fact of sexual contact was not in any way connected with the foster child’s disappearance. The applicant also falsely testified that there had been no family discussion on the night the foster child had been killed by his father.Pre-sentence custody

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The sentencing Judge was not in error to observe that the applicant was incarcerated as a consequence of his own actions. Whilst the making of the safety order was for his own safety, as a consequence of the actions of other prisoners, significant allowance was given for this circumstance in the sentence imposed on the applicant. To have granted the applicant yet a further reduction in the actual time served would have resulted in a sentence which was too lenient. Accordingly, the sentence imposed was not unreasonable or plainly unjust.Consideration The process of sentencing was described in Barbaro v The Queen:[1]“Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, ‘[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportional value to some features, distorts the already difficult balancing exercise which the judge must perform.’” (citations omitted)[1](2014) 253 CLR 58 at [34]. A contention that the sentence imposed is so “unreasonable or plainly unjust” raises for consideration whether the exercise of the sentencing discretion has miscarried. However, appellate intervention is only justified where the error in the exercise of that sentencing discretion is clearly apparent.[2][2]R v Ikin [2007] QCA 224 at page 6. As was recently observed in R v Watson:[3]“In order to obtain a grant of leave to appeal the appellant needs to demonstrate an arguable error in the exercise of discretion. It is the existence of error that grounds this Court’s jurisdiction to interfere with the exercise of discretion of a sentencing judge.”[3][2017] QCA 82 at [41]. The applicant contends that the sentencing Judge made a specific error in sentencing the applicant when observing there was no-one else to blame for his incarceration in the detention unit than himself, and a general error in failing to reduce the time served in actual custody. A consideration of the sentencing remarks supports neither contention. Whilst the sentencing Judge made the reference to the applicant having no-one to blame but himself for his situation, after referring to the limitations of being placed in the detention unit in solitary confinement, a consideration of the sentencing remarks supports a conclusion that the reference to “the situation you find yourself in” was in relation to the fact of incarceration itself rather than the restricted nature of that incarceration. The sentencing Judge made clear in the following paragraph that the sentence to be imposed would give credit for the fact the applicant had served essentially all of his time on remand in solitary confinement. Further, such a factor was appropriately to be considered in the circumstances.[4] That credit was specifically reflected in a reduction of the head sentence by six months imprisonment. Such a reduction was well within a proper exercise of the sentencing discretion in all of the circumstances.[4]R v Onley; Ex parte Attorney-General (Qld) [1994] QCA 199; Callanan v Attendee X [2013] QSC 340 at [34]-[45].

CITATION:	R v Thorburn [2017] QCA 278
PARTIES:	R v THORBURN, Trent Jordan (applicant)
FILE NO/S:	CA No 215 of 2017 DC No 445 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh – Date of Sentence: 14 September 2017 (Chowdhury DCJ)
DELIVERED ON:	Order delivered ex tempore 11 October 2017 Reasons delivered: 14 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 2017
JUDGES:	Sofronoff P and Morrison JA and Boddice J
ORDER:	Order delivered 11 October 2017: The application for leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of incest, one count of attempt to obstruct the course of justice and two counts of perjury – where on 14 September 2017 the applicant was sentenced to an effective head sentence of four years imprisonment – where it was ordered that the sentences of imprisonment be suspended after the applicant had served 16 months imprisonment – where 359 days in pre-sentence custody were declared time served – where the applicant had been assaulted repeatedly by fellow inmates within a day or two of imprisonment – where a protection order had been made by Corrective Services to ensure the safety of the applicant on remand – where the applicant had served all but a couple of days of this time in custody in a detention unit, isolated from the general prison population – where it was accepted that such form of imprisonment is more difficult to endure than general imprisonment – where the applicant contends that having regard to the particular circumstances under which the applicant served his time on remand, the requirement that the applicant serve 16 months actual custody is manifestly excessive – whether the application should be granted Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Callanan v Attendee X [2013] QSC 340, considered R v Galleghan[2017] QCA 186, cited R v Ikin[2007] QCA 224, applied R v Onley; Ex parte Attorney-General (Qld)[1994] QCA 199, considered R v Watson[2017] QCA 82, cited
COUNSEL:	R East for the applicant C W Heaton QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent