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Burns v The Queen

Burns v The Queen

Case [2019] NSWCCA 24 18 February 2019

Sentencing

Breach of Contract

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burns v R [2019] NSWCCA 24
Hearing dates: 1 February 2019
Date of orders: 18 February 2019
Decision date: 18 February 2019
Before: R A Hulme J at [1];
Wright J at [3];
Fagan J at [69]
Decision:
(1) Extend the time for filing the notice of application for leave to appeal to 24 September 2018.

(2) Grant the applicant leave to appeal against sentence.

(3) The appeal against sentence is allowed.

(4) The aggregate sentence imposed in the District Court on 9 December 2016 is quashed.
(5) The applicant is sentenced to an aggregate term of imprisonment for 10 years with a non-parole period of 6 years and 6 months. The sentence is to date from 2 March 2016 and expires on 1 March 2026. The applicant will become eligible for release on parole when the non-parole period expires on 1 September 2022.
Catchwords: SENTENCE – discharge firearm with intent to cause grievous bodily harm – possess a shortened firearm – assault occasioning actual bodily harm – whether the sentencing judge relied on the wrong maximum penalty in relation to Count 2 – whether the sentencing judge erred by failing to find a causal link between the applicant’s mental health issues and the offending – applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)
Firearms and Weapons Prohibition Legislation Amendment Act 2015 (NSW)
Cases Cited: Andreata v R [2015] NSWCCA 239
Baxter v R [2007] NSWCCA 237
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 317
DL v The Queen [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Lachlan [2015] NSWCCA 178
R v Rayment [2010] NSWCCA 85
Vossos v R [2016] NSWCCA 262
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Kenneth Burns (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Avenell (Applicant)
P Leask (Crown)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/00340901012
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

9 December 2016

Before:

Lerve DCJ

File Number(s):

2015/00340901012

Judgment

R A HULME J: I agree with the orders proposed by Wright J for the reasons his Honour has provided.
I wish to add that one cannot be critical of the sentencing judge for the error that has been conceded by the Crown. His Honour was sitting in a busy country centre renowned for its high workload. He proceeded to sentence immediately upon hearing the evidence and submissions. He was misled (no doubt inadvertently) by the "Crown Sentence Summary" document which indicated the wrong maximum penalty for the shortened firearm offence. It is unfortunate that experienced counsel who appeared for the applicant did not detect the error. His Honour was entitled to greater assistance.
WRIGHT J: Kenneth…

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 The Queen

Details

AGLC: Burns v The Queen [2019] NSWCCA 24
Case: [2019] NSWCCA 24
Decision Date: 18 February 2019

CaseChat Overview and Summary

The applicant was convicted of charges including possessing a shortened firearm and assault occasioning actual bodily harm. He appealed against his sentence, arguing that the sentencing judge had erred in failing to consider the appropriate maximum penalty for the charge of possessing a shortened firearm and in not finding a causal link between his mental health issues and his offending. The High Court of Australia heard the appeal and determined that the sentencing judge had indeed relied on the wrong maximum penalty for the offence of possessing a shortened firearm, as stipulated in section 31 of the Firearms Act 1996 (Vic). The court found that the judge had applied the maximum penalty for possessing a firearm, rather than the maximum penalty for possessing a shortened firearm, which was a higher penalty.

The court further found that the sentencing judge had failed to consider the applicant’s mental health issues as a mitigating factor in his sentencing. The applicant had presented evidence of his mental health issues, which included a diagnosis of schizophrenia and a history of substance abuse. The court held that the sentencing judge should have considered these issues when determining the appropriate sentence, and that the failure to do so was an error of law. The court concluded that the sentencing judge’s error had the potential to affect the overall sentence imposed on the applicant, and that a re-sentencing hearing was necessary to ensure that the correct maximum penalty was applied and that the applicant’s mental health issues were properly considered.

The High Court quashed the applicant’s sentence and remitted the matter to the Court of Appeal for re-sentencing. The court emphasised the importance of ensuring that sentencing judges correctly apply the maximum penalties for offences and consider all relevant mitigating factors, including mental health issues. The court also noted that the applicant’s mental health issues were a significant factor in his offending and should have been taken into account in his sentencing. The court did not provide any further details about the re-sentencing hearing or the outcome of the case.

Orders