Burns v R - [2010] NSWCCA 279

New South Wales
Court of Criminal Appeal

CITATION: Burns v R [2010] NSWCCA 279

HEARING DATE(S): 11 November 2010

JUDGMENT DATE:
30 November 2010

JUDGMENT OF: Simpson J at 1; Kirby J at 35; Latham J at 36

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – particular offences – drug offences – supply prohibited drug (cocaine) – money laundering – CRIMINAL LAW – appeal against severity of sentence – failure properly to assess objective seriousness – no error established – CRIMINAL LAW – appeal against sentence – whether accumulation of sentences excessive – whether starting point for drug supply offence too high – no error established

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

CASES CITED: R v Whyte [2002] NSWCCA 343; 55 NSWLR 252

PARTIES: Michael John Burns (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/68523

COUNSEL: R Jankowski (Applicant)
L Lamprati (Respondent)

SOLICITORS: Bilbie Dan (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/68523

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

LOWER COURT DATE OF DECISION: 11 December 2009

2009/68523

SIMPSON J
KIRBY J
LATHAM J
30 November 2010

Michael John BURNS v R

Judgment

1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Newcastle on 11 December 2009 following his pleas of guilty to three charges, one of the supply of not less than the commercial quantity of a prohibited drug (cocaine) and two of knowingly dealing in the proceeds of crime (money laundering). Pursuant to s 25(2) and s 33(2)(a) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”), the drug supply offence exposed the applicant to a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 10 years is prescribed. Pursuant to s 193B(2) of the Crimes Act 1900, each money laundering offence exposed the applicant to a maximum penalty of imprisonment for 15 years.

2 Murrell DCJ sentenced the applicant as follows: on the first money laundering offence ($15,000): imprisonment for a fixed term of 2 years to commence on 6 August 2009 and expire on 5 August 2011; on the drug supply offence: imprisonment for 6 years and 9 months, to commence on 6 November 2010 and expire on 5 August 2017, with a non-parole period of 4 years and 9 months to expire on 5 August 2015; on the second money laundering offence ($2350): imprisonment for a fixed term of 6 months to commence on 6 November 2010 and expire on 5 May 2011 (and thus to be served wholly concurrently with the sentence imposed in respect of the drug supply offence).

3 The aggregate sentence imposed was of 8 years commencing on 6 August 2009 and expiring on 6 August 2017, with a non-parole period of…

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 Burns v R

Details

AGLC: Burns v The Queen [2010] NSWCCA 279
Case: [2010] NSWCCA 279
Decision Date: 30 November 2010

CaseChat Overview and Summary

The appeal arose from a conviction for drug supply and money laundering. The appellant was found guilty of supplying cocaine and laundering money. The appeal was focused on the severity of the sentence imposed by the lower court. The High Court of Australia was the appellate body that heard the appeal.

The court was required to decide whether the trial judge had failed to properly assess the objective seriousness of the crimes and whether the cumulative sentence was excessive. The court was also required to consider whether the starting point for the drug supply offence was too high. The central issue was whether there was any error in the trial judge's assessment of the appropriate sentence.

The court found that there was no error in the trial judge's assessment of the objective seriousness of the crimes or the starting point for the drug supply offence. The court held that the trial judge had properly considered all relevant factors in determining the appropriate sentence. The court found that the cumulative sentence was not excessive and that the trial judge had not erred in his assessment of the appropriate sentence. The appeal was dismissed. The court did not make any further orders.

Orders