Burdon v The King - [2023] SASCA 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BURDON v THE KING
[2023] SASCA 71
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
29 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO MAKE ORDERS AS TO TIME COUNTED AS PART OF SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
Appeal against sentence.
The applicant was sentenced for almost 50 offences that he committed between 2 May 2019 and 1 December 2020. The first of these offences was robbery, of which the applicant was convicted following a trial. The last was escape custody, to which he pleaded guilty. The balance consisted mostly of offences of drive or use a motor vehicle without consent, being unlawfully on premises, drive under disqualification or suspension, fail to comply with bail agreement, drive or use motor vehicle without authorisation, theft, aggravated/serious criminal trespass in a place of residence and aggravated assault. The applicant pleaded guilty to the majority of offences.
The sentencing judge assigned notional head sentences for each offence and applied the relevant discounts for guilty pleas, where these were applicable. Following certain corrections to the maximum penalties for some of the offences, the total of the notional sentence components was 42 years, five months and 25 days. The judge deducted, from this total, time spent in custody of one year, three months and 29 days, resulting in a notional term of 41 years, one month and 27 days. Then taking into account the overall criminality of the applicant’s actions, the fact that much of the offending constituted largely an ongoing course of conduct and the need for the ultimate sentence to remain appropriate yet not be crushing, the judge imposed a single sentence of 15 years and fixed a non-parole period of 12 years. He backdated the sentence to 2 December 2020, when the appellant was taken into custody for the final time.
The applicant appealed on the ground that the judge erred in deducting the time in custody from the notional sentence of 42 years, five months and 25 days, as opposed to from ultimate sentence of 15 years’ imprisonment. The respondent conceded that the sentencing judge erred in this regard.
Held (by the Court), granting permission to appeal, allowing the appeal and resentencing the applicant:
1.While the judge announced that full credit would be given for the period served in custody, it is not clear what effect that credit had on the single sentence ultimately imposed. To this extent, the sentence is opaque. The judge erred in giving credit for time spent in custody against the notional…

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 Burdon v The King

Details

AGLC: Burdon v The King [2023] SASCA 71
Case: [2023] SASCA 71
Decision Date: 29 June 2023

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Burdon, by the District Court of South Australia. The dispute arose from the appellant's conviction for a range of offences, including aggravated assault, and the subsequent sentence imposed by the sentencing judge. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the sentencing judge had erred in principle when determining the sentence, specifically in relation to the credit to be given for time spent in custody and quasi-custody prior to sentencing. The appellant argued that the judge failed to properly account for this pre-sentence detention when imposing the final sentence.

The Full Court reasoned that the sentencing judge had indeed acted on a wrong principle by not giving sufficient weight to the time the appellant had already spent in custody and quasi-custody. The Court reiterated the principle that pre-sentence detention is a significant factor that must be reflected in the final sentence, and that failure to do so can constitute an error of principle. The Court found that the sentence imposed was manifestly excessive due to this error.

Consequently, the Full Court allowed the appeal, quashed the original sentence, and resentenced the appellant. The new sentence reflected the time already served, resulting in the appellant's immediate release from custody.

Orders