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 25Cases 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 175Category: Principal judgment Parties: Robert Burgess – Applicant
Regina – Respondent CrownRepresentation: Counsel:
Solicitors:
L McSpedden – Applicant
C Curtis – Respondent Crown
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…
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- AGLC
- Burgess v R [2019] NSWCCA 13
- Case
- [2019] NSWCCA 13
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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