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Burnett v The Queen

Burnett v The Queen

Case [2011] NSWCCA 276 16 December 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burnett v R [2011] NSWCCA 276
Hearing dates: 9 December 2011
Decision date: 16 December 2011
Before: Meagher JA at 1
Hoeben J at 2
Rothman J at 62
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - plea of guilty to five break enter and steal offences - whether applicant's mental illness properly considered by sentencing judge - whether sentencing judge erred in not backdating commencement of sentences - effect of applicant serving balance of sentence for breach of parole on sentences for new offences - special circumstances - whether sentences manifestly excessive.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Arnold v R [2007] NSWCCA 188
Attorney General's Application under section 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Benitez v R (2006) 160 A Crim R 166
Buddle v R [2006] NSWCCA 236
Carroll v The Queen [2009] HCA 13, (2009) 83 ALJR 579
Chandler v R [2008] NSWCCA 240
Cole v R [2010] NSWCCA 227
El Masri, Ali v R [2010] NSWCCA 196
Fogg v R [2011] NSWCCA 1
Hili v R, Jones v R [2010] HCA 45, (2010) 85 ALJR 195
Holloway v Regina [2011] NSWCCA 23
House v The King [1936] HCA 40, (1936) 55 CLR 499
Makarian v The Queen [2005] HCA 25, (2005) 202 CLR 357 at 370-371
Muldrock v The Queen [2011] HCA 39
R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145
R v Caristo [2011] NSWCCA 7
R v Hemsley [2004] NSWCCA 228
R v Lay [2006] NSWCCA 45
R v Kaiva (NSWCCA, unreported 1998).
R v Kitchener [2003] NSWCCA 134
R v Ponfield [1999] NSWCCA 435, (1999) 48 NSWLR 327
R v Vuni [2006] NSWCCA 171
R v Wright (1997) 93 A Crim R 48 at 51
Simon Hayek v R [2010] NSWCCA
Stewart, Wade John v R [2009] NSWCCA 152
Taylor v R [2006] NSWCCA 7
Withers v R [2009] NSWCCA 133
Category: Principal judgment
Parties: Sean Kenneth Burnett - Applicant
Regina - Respondent Crown
Representation: I Nash - Applicant
S Dowling - Respondent Crown
B Sandland - Legal Aid NSW - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2009/154146
Decision under appeal

Date of Decision:

2010-02-04 00:00:00

Before:

English DCJ

File Number(s):

2009/154146

Judgment

MEAGHER JA: I agree with Hoeben J.

HOEBEN J:

Offences and sentences

On 16 December 2009 the applicant pleaded guilty to an indictment containing the following counts:

Count 1 - Break enter and steal on 19 September 2008 contrary to s112(1)(a) Crimes Act 1900 (maximum penalty imprisonment for 14 years).

Count 2 - Break enter and steal on 11 October 2008 contrary to s112(1) Crimes Act 1900 (maximum penalty imprisonment for 14 years).

Count 3 - Break enter and steal with intent to steal…

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 Burnett v The Queen

Details

AGLC: Burnett v The Queen [2011] NSWCCA 276
Case: [2011] NSWCCA 276
Decision Date: 16 December 2011

CaseChat Overview and Summary

In Burnett v The Queen, the applicant appealed against sentences imposed by the County Court for a series of break and enter and steal offences. The applicant pleaded guilty to five charges, and the County Court judge sentenced him to imprisonment with various start dates, none of which were backdated. The applicant's appeal to the Court of Appeal was focused on several issues, including whether his mental illness was adequately considered during sentencing, whether the judge erred by not backdating the commencement of the sentences, the effect of the applicant serving the balance of his sentence for breach of parole on the sentences for the new offences, and whether the sentences were manifestly excessive given the special circumstances.

The Court of Appeal examined the sentencing judge's consideration of the applicant's mental illness, finding that while the judge acknowledged the applicant's mental health issues, the impact on sentencing was not fully explored. The Court noted that the judge had considered the applicant's psychiatric history but did not sufficiently weigh its relevance to the sentencing decision. Regarding the backdating of sentences, the Court held that the judge did not err in not backdating the sentences as there was no legal basis to do so. The Court further addressed the applicant's argument about the effect of serving the balance of his parole breach sentence on the new offences, concluding that it was appropriate to consider the parole breach sentence separately. Finally, the Court assessed whether the sentences were manifestly excessive, taking into account the special circumstances, and found that the sentences were not manifestly excessive.

Ultimately, the Court of Appeal upheld the applicant's appeal in part, ordering that the sentences be reconsidered with appropriate weight given to the applicant's mental illness. The Court did not alter the sentences but directed the County Court to resentence the applicant, ensuring that his mental health issues were properly considered. This decision underscores the importance of thoroughly evaluating mitigating factors, such as mental illness, in the sentencing process.

Orders