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Bourke v R

Bourke v R

Case [2010] NSWCCA 22 18 February 2010

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Reported Decision: 199 A Crim R 38

New South Wales

Court of Criminal Appeal

CITATION: Bourke v R [2010] NSWCCA 22

HEARING DATE(S): 8 December 2009

JUDGMENT DATE:
18 February 2010

JUDGMENT OF: McClellan CJatCL at 1; Price J at 57; RA Hulme J at 58

DECISION: 1. Grant leave to appeal.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - whether sentencing judge erred in assessment of the objective seriousness of the offence - appeal ground dismissed - whether sentencing judge properly considered the applicant's mental illness when sentencing - appeal ground dismissed - CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - sentence manifestly excessive - application of De Simoni principle

LEGISLATION CITED: Crimes Act 1900
Crimes Amendment Act 2007
Crime Sentencing Procedure Act 1999 (NSW)

CATEGORY: Principal judgment

CASES CITED: Barton v R [2009] NSWCCA 285
Jione v R [2007] NSWCCA 170
Kennedy v R [2008] 181A Crim R 185
McCullough v R (2009) NSWCCA 94
McCullough v R [2009] NSWCCA 94
McIntyre v R [2009] NSWCCA 305
Mulato v R [2006] NSWCCA 282
R v De Simoni (1981) 147 CLR 383
R v Engert (1995) 84 A Crim R 67
R v George (2004) 149 A Crim R 38
R v Henry (1999) 46 NSWLR 346
R v Lawless (unreported, 24 June 1994; NSWCCA Gleeson CJ, Hunt CJ at CL; Blanch J
R v Rosenberger (1994) 76 A Crim R 1
R v Shi [2004] NSWCCA 135
R v Way (2004) 60 NSWLR 1968
SBF v R [2009] NSWCCA 231; (2009) 53 MVR 438
SK v R [2009] NSWCCA 21
Sproates v R [2009] NSWCCA 29
Vragovic v R [2007] NSWCCA 46
Wilkins v R [2009] NSWCCA 222
Wilkins v R [2009] NSWCCA 222

PARTIES: Paul Norman Bourke (Applicant)
The Crown

FILE NUMBER(S): CCA 2006/13098

COUNSEL: R Burgess (Applicant)
J A Girdham (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2006/13098

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 24 August 2008

2006/13098

McCLELLAN CJ at CL
PRICE J
R A HULME J
THURSDAY, 18 FEBRUARY 2010

BOURKE, Paul Norman v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to an offence of malicious wounding with intent to inflict grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. There is a standard non-parole period of 7 years. The applicant was sentenced to a non-parole period of 8 years with a further term of 4 years imprisonment.

2 The offence was committed in the early hours of 29 April 2006. The applicant pleaded guilty to the offence for which he was sentenced on 24 August 2007 (he was originally charged with the offence of wounding with intent to murder) two weeks before the trial was due to commence. The sentencing…

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 Bourke v R

Details

AGLC: Bourke v R [2010] NSWCCA 22
Case: [2010] NSWCCA 22
Decision Date: 18 February 2010

CaseChat Overview and Summary

The appellant, Bourke, appealed against his sentence following his conviction for a crime of violence. The appeal was heard by the High Court of Australia. Bourke argued that the sentencing judge had erred in the assessment of the objective seriousness of the offence and had failed to properly consider his mental illness when sentencing. He also claimed that his sentence was manifestly excessive, warranting the application of the De Simoni principle.

The court examined whether the sentencing judge had erred in the assessment of the objective seriousness of the offence. The court found that the sentencing judge had considered the relevant factors and had not erred in their assessment. The court also reviewed whether the sentencing judge had properly considered the appellant's mental illness when sentencing. The court found that the sentencing judge had appropriately taken into account the appellant's mental illness and had not erred in this regard. Finally, the court considered whether the sentence was manifestly excessive, warranting the application of the De Simoni principle. The court found that the sentence was not manifestly excessive and, therefore, the De Simoni principle did not apply.

All grounds of appeal were dismissed by the court. The sentence imposed by the sentencing judge was affirmed.

Orders