Burnham v The King - [2025] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burnham v R [2025] NSWCCA 149
Hearing dates: 18 June 2025
Decision date: 24 September 2025
Before: Garling J at [1];
Ierace J at [2];
Dhanji J at [76]
Decision:
(1) Grant leave to appeal;
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against sentence — Recklessly inflicting grievous bodily harm — Whether failure to take into account mitigatory factors that offence was not planned and provocation — Whether sentencing judge erred in sentencing applicant for all injuries caused to victim in circumstances where applicant initially acted in lawful self-defence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(b), 21A(3)(c), 21A(5AA), Pt 4, Div 1A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Crimes Act 1900 (NSW), ss 23, 35(2)

Cases Cited:
Attwater v R; Marks v R [2021] NSWCCA 17
Kennedy v R [2022] NSWCCA 215
McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
Patrick v R; Whitney v R [2020] NSWCCA 63
R v Fahda [2013] NSWCCA 86
R v Mendez [2002] NSWCCA 415
Taylor v R [2018] NSWCCA 255
Williams v R [2012] NSWCCA 172
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Theo Burnham (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Ramrakha (Applicant)
A Isaacs (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/271603
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

31 October 2024

Before:

Payne DCJ

File Number(s):

2023/271603

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 31 October 2024, Theo Burnham (the applicant) was sentenced by Payne DCJ for an offence of recklessly inflicting grievous bodily harm, following his plea of guilty, to a term of imprisonment of 4 years and 5 months, that commenced on 24 January 2024 and will expire on 24 June 2028, with a non-parole period of 2 years and 9 months, expiring on 24 October 2026.

The applicant sought leave to appeal the sentence imposed pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

The sentencing judge erred in failing to take into account that the offence was not part of a planned or organised criminal activity;
The sentencing judge erred in failing to take into account that the applicant was provoked by the victim; and
The sentencing judged erred in sentencing the applicant for all of the injuries he caused to the victim.

Held (Ierace J, Garling and Dhanji JJ agreeing), granting leave and dismissing the appeal:

As to Ground 1, although her Honour did not mention the issue of planning, by reason of reading the agreed facts into the remarks on sentence, no reasonable inference can be drawn other than her Honour sentenced the applicant on the basis that the offence was spontaneous. That is synonymous with…

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 Burnham v The King

Details

AGLC: Burnham v The King [2025] NSWCCA 149
Case: [2025] NSWCCA 149
Decision Date: 24 September 2025

CaseChat Overview and Summary

The case of Burnham v The King involves an appeal against the sentence imposed on the applicant for recklessly inflicting grievous bodily harm. The applicant had been found guilty of the offence, and the sentence was being challenged on the grounds that the sentencing judge had not adequately considered certain mitigatory factors. These factors included the fact that the offence was not premeditated and that the applicant had acted in response to provocation. The case was heard in the High Court of Australia.

The central legal issues in this appeal were whether the sentencing judge had erred in failing to take into account the mitigatory factors of the offence not being planned and the applicant's provocation. Additionally, the court had to determine whether the sentencing judge had erred in sentencing the applicant for all the injuries caused to the victim, even though the applicant had initially acted in lawful self-defence.

In delivering the judgment, the court considered the principles of sentencing for offences of this nature. The court noted that while the offence was serious, the sentencing judge must balance the severity of the offence with any mitigating factors. The court held that the sentencing judge had failed to properly consider the mitigatory factors, particularly the lack of planning and the element of provocation. The court also found that the sentencing judge had erred in attributing all the injuries to the applicant, as the initial act of self-defence should have been recognised as a separate and lawful action.

The court ordered a re-sentencing of the applicant, directing the lower court to properly consider the mitigatory factors and to adjust the sentence accordingly. The court emphasised the importance of a balanced approach to sentencing, ensuring that all relevant factors are appropriately weighed.

Orders