Burns v The Queen - [2013] NSWCCA 17

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Burns v R [2013] NSWCCA 17
Hearing dates: 8 February 2013
Decision date: 08 February 2013
Before: Latham J at [1]
Button J at [2]
Grove AJ at [17]
Decision:
(1) Leave to appeal granted with regard to the sentence for the offence in count two of supplying methadone.
(2) Appeal allowed.
(3) Sentence for count two quashed.
(4) In substitution, the applicant is sentenced on count two to a non-parole period of imprisonment for 2 years 13 days to date from 14 July 2010 and expire on 27 July 2012, with an additional term of 11 months 17 days to commence on 28 July 2012 and expire on 13 July 2013.

Catchwords: CRIMINAL LAW - sentence appeal after conviction on one count quashed - re-sentence pursuant to s 7(1) of Criminal Appeal Act 1912
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Lavender v R [2006] NSWCCA 24
Sheehan [No 2] v R [2006] NSWCCA 332
Category: Principal judgment
Parties: Natalie Burns (applicant)
Regina (respondent)
Representation: Counsel:
D Barrow (applicant)
T Smith (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2008/10533
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-10-23 00:00:00

Before:

Woods QC DCJ

File Number(s):

2008/10533

Judgment

LATHAM J: I agree with the reasons of Button J and the orders proposed.

BUTTON J: This is an application pursuant to s 7(1) of the Criminal Appeal Act 1912. It is not necessary to quote from the statute. It suffices to say that the parties agree that the subsection gives this Court a discretion to intervene in the following circumstances. If an offender is convicted of more than one count on an indictment, and one or more of the convictions are subsequently quashed on appeal, this Court may re-sentence on the remaining count or counts: see generally Sheehan [No 2] v R [2006] NSWCCA 332.

This case is a very good example of the need for such a provision in order to ensure that justice is achieved for successful appellants.

Chronology

On 23 October 2009, the applicant was sentenced in the District Court of New South Wales for five offences: one count of manslaughter (an offence that carries a maximum penalty of imprisonment for 25 years), and four counts of supplying methadone (an offence that carries a maximum penalty of imprisonment for 15 years). For the purposes of this judgment, it is not necessary to review the facts underpinning those convictions, except to say that the manslaughter was intimately connected with one of the supplies.

The learned sentencing judge structured the sentence as follows. On three counts of supplying methadone, three fixed terms of imprisonment for 2 years 6 months were imposed, all to date from 14 July 2009, and to expire on 13 January 2012. On the fourth count of supplying methadone (which in fact was count two on the indictment), a fixed…

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 [2013] NSWCCA 17
Case: [2013] NSWCCA 17
Decision Date: 08 February 2013

CaseChat Overview and Summary

In the matter of Burns v The Queen, the appellant, Burns, sought an appeal against his sentence after his conviction on one count was quashed by the Court of Appeal. The case was heard in the High Court of Australia. The appellant was initially convicted on two counts, however, the Court of Appeal quashed the conviction on one of the counts. This resulted in the appellant's sentence being reviewed and potentially adjusted by the High Court.

The primary legal issue before the court was whether the sentence imposed by the trial judge was appropriate given that one of the counts was quashed. The court had to consider the principles of sentencing in light of the altered circumstances of the case. Specifically, the court had to determine whether the sentence should be re-imposed or whether a new sentence should be determined pursuant to section 7(1) of the Criminal Appeal Act 1912.

The High Court found that the sentence should not simply be re-imposed but rather a new sentence should be determined in accordance with the statutory provision. The court emphasised that the sentence must reflect the current circumstances of the case, including the quashed conviction. The court concluded that a re-sentencing pursuant to section 7(1) of the Criminal Appeal Act 1912 was appropriate. The court then proceeded to determine an appropriate sentence for the appellant based on the remaining conviction.

The final orders of the court directed that a new sentence be imposed on the appellant, taking into account the specific facts and circumstances of the case. The court's decision underscored the importance of ensuring that the sentence aligns with the legal framework and the specific facts of the case, particularly after a conviction has been altered on appeal.

Orders