Burke v R

Case [2022] NSWCCA 6


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Burke v R [2022] NSWCCA 6
Hearing dates: 17 September 2021
Date of orders: 2 February 2022
Decision date: 02 February 2022
Before: McCallum JA at [1]
Walton J at [2]
Fullerton J at [3]
Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against aggregate sentence as manifestly excessive – whether aggregate sentence is unreasonable and unjust – whether indicative sentences for Counts 1, 2, 3, 4, 6, 7, 9, 10 and 12 are excessive relative to the sentences indicated for Count 12 and the Sequence 1 offence – whether findings as to objective seriousness and subjective factors in mitigation resulted in an unjust sentence warranting the Court’s intervention

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Chaouk v R [2017] NSWCCA 295

Hall v R [2021] NSWCCA 220

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

Kerr v R [2016] NSWCCA 218

Category:Principal judgment
Parties: Mitchell Burke (Applicant)
The Crown (Respondent)
Representation:

Counsel:
T Bicanic (Applicant)
E Wilkins SC (Crown)

Solicitors:
Proctor & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2015/44399; 2016/218265; 2016/262300
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
6 March 2020
Before:
O’Rourke DCJ
File Number(s):
2015/44399; 2016/218265; 2016/262300

Judgment

  1. McCALLUM JA: I agree with Fullerton J.  As noted by the sentencing judge in the remarks Fullerton J has set out, this was a difficult sentencing exercise.  It is clear that the burden of imposing such a lengthy sentence on the applicant weighed heavily with her Honour.  I am not persuaded that the result has been shown to be unjust.

  2. WALTON J:  I agree with Fullerton J.

  3. FULLERTON J: Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the applicant seeks leave to appeal an aggregate sentence of 13 years and 6 months with a non-parole period of 8 years and 1 month imposed by O’Rourke DCJ on 6 March 2020.

  4. The sentence was backdated to commence on 24 July 2015 to take account of pre-sentence custody. The aggregate term expires on 23 January 2029. The applicant will be eligible for release to parole at the expiration of the non-parole period on 23 August 2023.

  5. The sole ground of appeal contends that the aggregate sentence imposed was manifestly excessive.

The proceedings on sentence

  1. The aggregate sentence was imposed in a sentencing exercise in which sentences were indicated for 14 separate offences committed between June 2014 and November 2016.

  2. Ten of the fourteen offences which attracted indicative sentences of between 6 years and 9 years and 6 months (identified as Counts 1-4 and 6-11 in the table at [12] below) were the subject of a trial on indictment in the District Court over which the sentencing judge presided.

  3. On 11 September…

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Burke v R [2022] NSWCCA 6
Case
[2022] NSWCCA 6
Decision Date

CaseChat Overview and Summary

The appellant, Burke, appealed against the aggregate sentence imposed by the trial judge for various criminal offences, arguing that the sentence was manifestly excessive. The case was heard in the High Court of Australia. Burke was convicted of numerous offences, including assault, unlawful possession of a firearm, and dangerous driving. The crux of the appeal centred on the aggregate sentence, specifically whether it was unreasonable and unjust, and whether the sentences for certain counts were excessive when compared to others.

The legal issues before the Court were whether the aggregate sentence was manifestly excessive and unreasonable, and if the sentences for specific counts were disproportionately severe relative to the sentences for other counts. The Court had to consider the objective seriousness of the offences and the subjective factors in mitigation that the trial judge took into account when determining the sentences. This involved assessing whether the trial judge's findings led to an unjust sentence that warranted the appellate court's intervention.

The High Court found that the trial judge had not erred in the aggregate sentence, nor in the individual sentences for the various counts. The Court held that the trial judge appropriately balanced the objective seriousness of the offences with the mitigating factors presented. The aggregate sentence was deemed fair and reasonable, and the individual sentences for specific counts were not found to be excessive in relation to the other sentences imposed. Consequently, the appeal was dismissed, and the original sentence stood.

No further orders were made by the Court beyond dismissing the appeal. The High Court affirmed the trial judge's assessment of the case, concluding that the sentence imposed was just and proportionate to the nature and circumstances of the offences committed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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