Legal Research
Cases
Burgess v R

Burgess v R

Case [2019] NSWCCA 13 13 February 2019

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burgess v R [2019] NSWCCA 13
Hearing dates: 1 February 2019
Decision date: 13 February 2019
Before: Hoeben CJ at CL at [1];
Wright J at [57];
Fagan J at [58]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – two counts of supplying an indictable quantity of drugs – offence occurring within two weeks of the expiration of the parole period for similar offending – aggregate sentence of imprisonment for 6½ years with a non-parole period of 4 years – whether sentence manifestly excessive – whether sentencing judge gave effect to her finding of special circumstances – whether undue weight given to specific and general deterrence – applicant a long term drug user – sentence deferred to enable applicant to attend residential rehabilitation facility – attempts by applicant to attend such a facility frustrated by his ill-health – some relapsing into drug use during adjournment period – prospects of rehabilitation “guarded” – question of weight to be given to relevant factors a matter for sentencing judge – error not identified – appeal dismissed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) – s 11
Drug Misuse and Trafficking Act 1985 (NSW) – s 25
Cases Cited: Aslan v R [2014] NSWCCA 114
Biddle v R [2017] NSWCCA 128
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Chaouk v R [2017] NSWCCA 295
Healey v R [2018] NSWCCA 214
House v The King [1936] HCA 40; 55 CLR 499
JT v R [2012] NSWCCA 133
Kresovic v R [2018] NSWCCA 37
Ngati v R [2018] NSWCCA 32
Nguyen v The Queen [2016] HCA 17; 256 CLR 656
Regina v Burgess [2006] NSWCCA 319
R v MacDonnell [2002] NSWCCA 34
Tuite v R [2018] NSWCCA 175
Category: Principal judgment
Parties: Robert Burgess – Applicant
Regina – Respondent Crown
Representation:
Counsel:
L McSpedden – Applicant
C Curtis – Respondent Crown
Solicitors:
Katsoolis & Co – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/148291
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 September 2017

Before:

Wass SC DCJ

File Number(s):

2013/148291

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 21 July 2016 the applicant was found guilty by a jury of the following offences, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW):

Count 1 – Supply 163.25g of methylamphetamine; and

Count 2 – Supply 18.5g of 4-methoxymethylamphetamine.

The charges related to drugs found in a car driven by the applicant on 13 May 2013.

On 15 September 2017, her Honour Judge Wass SC sentenced the applicant to an aggregate term of imprisonment of 6½ years with a non-parole period of 4 years. The indicative sentence nominated for Count 1 was 5½ years with a non-parole period of 3½ years and for Count 2, a sentence of 3 years with a non-parole period…

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 Burgess v R

Details

AGLC: Burgess v R [2019] NSWCCA 13
Case: [2019] NSWCCA 13
Decision Date: 13 February 2019

CaseChat Overview and Summary

The appellant, Burgess, was convicted on two counts of supplying an indictable quantity of drugs and sentenced to imprisonment for 6½ years with a non-parole period of 4 years. Burgess appealed against the sentence, arguing it was manifestly excessive and that the sentencing judge did not adequately account for special circumstances and erred in the weight given to specific and general deterrence. The High Court of Australia reviewed the appeal, focusing on the correctness of the sentence imposed and the sentencing judge's consideration of mitigating factors.

The central legal issue was whether the sentence was manifestly excessive and whether the sentencing judge failed to properly consider special circumstances and the appropriate weight to be given to specific and general deterrence. The court examined the sentencing judge's findings and the factors considered, including the appellant's long-term drug use, the sentencing deferral to enable attendance at a rehabilitation facility, and the appellant's attempts to engage in rehabilitation that were hampered by ill health. The court needed to determine if the sentence was appropriate given the mitigating factors and whether the sentencing judge correctly balanced the various considerations.

The High Court found that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the special circumstances and the weight to be given to specific and general deterrence. The court emphasised that the weight to be given to relevant factors was a matter for the sentencing judge, and no error was identified in the judge's assessment. The prospects of rehabilitation were described as "guarded," but this did not render the sentence inappropriate. Consequently, the appeal was dismissed, affirming the original sentence.

No specific orders were made beyond the dismissal of the appeal, as the court found no grounds for altering the sentence.

Orders