R v Turner - [2002] QCA 79

[2002] QCA 79

COURT OF APPEAL

McPHERSON JA
MUIR J
PHILIPPIDES J

CA No 364 of 2001

THE QUEEN

WARWICK JAMES TURNER Applicant

BRISBANE

..DATE 15/03/2002

JUDGMENT

PHILIPPIDES J: This is an application for leave to appeal against a sentence imposed upon the applicant on his plea of guilty to two offences presented by way of ex officio indictment, being one count of threatening violence at night by discharging a firearm with intent to alarm and a related count of wilful damage. In addition the applicant pleaded guilty to various related summary offences, being one count of discharging a firearm on private land, one count of discharging a firearm on public land, one count of possession of a firearm, one count of use of a weapon whilst under the influence of liquor and one count of breach of a domestic violence order.

The sentence imposed by the learned sentencing Judge was one of 21 months imprisonment in relation to the offences on indictment. In relation to each of the summary offences the applicant was sentenced to one month's imprisonment, except for the offence of using a weapon whilst intoxicated, for which he was convicted but not further punished. All sentences were ordered to be served concurrently.

The applicant is 37 years of age. The offences in question were triggered by a variation to an access order which had been made earlier on the day in question at a Family Court hearing. The order concerned access to a child from the applicant's relationship with the complainant who was the applicant's former de facto.

It appears that later on the day in question, after the Family Court decision, the applicant attended the Kuraby Hotel and drank a large quantity of alcohol. It appears that the applicant committed the offences whilst under the influence of alcohol. It appears that the applicant attended his workplace where he collected a rifle and some ammunition. He then attended at the complainant's address and fired several shots at the house intending to do no more than scare and annoy the complainant. It appears that the applicant fired shots at the house and then went into the yard and fired a shot into the garage door knowing that the complainant's vehicle would be behind it and that he would damage it.

The complainant complained to the police that she was terrified when she realised that the applicant was near her house, as she had a domestic violence order preventing him from coming near her house, and that when she realised he was firing a rifle she feared for her life and for the lives of those who were in the house with her at the time. Those others being two female friends and her baby son.

When initially approached by the police the applicant denied all of the allegations and provided a version including witnesses who would support his alibi that he did not attend the complainant's residence. However, his denial was short-lived and during his interview…

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 Turner

Details

AGLC: R v Turner [2002] QCA 79
Case: [2002] QCA 79
Decision Date: 15/03/2002

CaseChat Overview and Summary

The case of R v Turner was an appeal against a sentence imposed on the applicant, Warwick James Turner, who pleaded guilty to multiple offences including threatening violence by discharging a firearm with intent to alarm and wilful damage. The court was presented with the issue of whether the sentence imposed by the learned sentencing judge was appropriate given the mitigating factors presented. Turner had a history of criminal activity but had not committed any offences in recent years, and he cooperated with authorities by providing a full confession and indicating the location of the firearm. The court considered the seriousness of the offences, the risk of harm to others, and the mitigating factors such as Turner's early guilty plea and cooperation with authorities. The court found that the learned sentencing judge had proceeded on the basis of an erroneous understanding of the provisions of the Corrective Services Act 2000, which affected the judge's discretion. The Court of Appeal exercised its discretion afresh and determined that the appropriate sentence was 18 months imprisonment. The appeal was allowed, the sentence of 21 months imprisonment was set aside, and in lieu thereof, Turner was sentenced to imprisonment for a period of 18 months concurrently. The orders made in relation to the summary offences were to stand.

Orders