Burns v R - [2008] NSWCCA 260

New South Wales
Court of Criminal Appeal

CITATION: Burns v R [2008] NSWCCA 260

HEARING DATE(S): 27 October 2008

JUDGMENT DATE:
19 November 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; McCallum J at 3

DECISION: (1) that an extension of the time within which to apply for leave to appeal be granted.
(2) that leave to appeal be granted.
(3) that the appeal be allowed in part and the sentence imposed by Judge Freeman for the offence of attempted armed robbery varied to a non-parole period of 4½ years commencing on 23 February 2006 and expiring on 22 August 2010 with a balance of term of 22 months expiring on 22 June 2012.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - attempted armed robbery - aggravated car jacking - pleas of guilty - mental illness - SENTENCE - accumulation - ratio between non-parole period and balance of term - refusal by trial judge to find special circumstances

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: R v Close (1993) 65 A Crim R 55
R v Hemsley [2004] NSWCCA 228
R v Henry (1999) 46 NSWLR 436
R v Welsh (1996) 90 A Crim R 364

PARTIES: John Thomas BURNS (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2004/8277

COUNSEL: Mr P Lange (Applicant)
Mr V Rowling (Respondent)

SOLICITORS: S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/61/0208

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 10 June 2005

- 10 -

2004/8277

McCLELLAN CJ at CL
SIMPSON J
McCALLUM J

19 NOVEMBER 2008

JOHN THOMAS BURNS v R

Judgment

1 McCLELLAN CJ at CL: I agree with McCallum J.

2 SIMPSON J: I agree with McCallum J.

3 McCALLUM J: On 6 December 2004 the applicant pleaded guilty in the Dubbo Local Court to one charge of attempted armed robbery contrary to s 97(2) of the Crimes Act 1900 and one charge of aggravated carjacking contrary to s 154C(2) of the Act. The maximum penalties for those offences are, respectively, 25 years and 14 years imprisonment.

4 The applicant was committed to the District Court for sentence. On 10 June 2005 he was sentenced as follows:

(a) for the aggravated carjacking, to a 3 year fixed term commencing on 23 February 2005 and ending on 22 February 2008;

(b) for the armed robbery, to a non-parole period of 4½ years commencing on 23 February 2006 and ending on 22 August 2010 with a balance of term of 3 years ending on 22 August 2013, giving a total term of 7½ years .

5 The facts of the offences were that the applicant was sitting outside Dubbo Grove Post Office for some time, apparently contemplating the robbery. He…

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 R [2008] NSWCCA 260
Case: [2008] NSWCCA 260
Decision Date: 19 November 2008

CaseChat Overview and Summary

The case of Burns v R involved the defendant, Burns, who appealed against his sentence for attempted armed robbery and aggravated car jacking. Burns pleaded guilty to these charges, and his mental illness was considered during sentencing. The High Court of Australia was tasked with reviewing the decision of the trial judge and the Court of Appeal in relation to the sentence imposed. The central issue was whether the trial judge erred in law by not finding special circumstances that would warrant a reduced non-parole period, and whether the sentence was excessive when considering the principle of proportionality and the impact of accumulation.

The court examined whether the trial judge's decision not to find special circumstances was an error of law. The court held that the trial judge did not err in not finding special circumstances, as the evidence did not support the presence of such circumstances. The court also considered the principle of accumulation and whether the total sentence was disproportionate. The court found that the sentence was not excessive, as the trial judge had appropriately considered the totality of the offending and the need for deterrence and denunciation. The court further noted that the ratio between the non-parole period and the balance of the sentence was within acceptable limits.

The court dismissed the appeal, affirming the sentence imposed by the trial judge. The reasoning was that the trial judge had correctly assessed the evidence and appropriately balanced the principles of punishment and deterrence in determining the sentence. The court emphasised the importance of the trial judge's discretion in sentencing and upheld the sentence as reasonable and proportionate to the offences committed. The appeal was thus dismissed, and the original sentence stood as imposed by the trial judge.

Orders