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Burrows v R

Burrows v R

Case [2017] NSWCCA 45 24 March 2017

Sentencing

Joint Criminal Enterprise

Criminal Liability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Burrows v R [2017] NSWCCA 45
Hearing dates: 1 March 2017
Date of orders: 24 March 2017
Decision date: 24 March 2017
Before: Macfarlan JA at [1]
Schmidt J at [2]
Wilson J at [3]
Decision:
Leave to appeal is refused.

Catchwords: SENTENCE APPEAL – specially aggravated break enter commit serious indictable offence – joint criminal enterprise – violent home invasion with intentional wounding – whether sentencing judge erred in assessment of culpability – whether sentencing judge gave adequate weight to applicant’s age – young offender – whether parity principle observed – no error found – leave to appeal dismissed
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Bland v R [2014] NSWCCA 82
DF v R [2012] NSWCCA 171
England v R; Phanith v R [2009] NSWCCA 274
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
Lowe v The Queen [1984] HCA 46; (1984) CLR 606
Majid v R [2010] NSWCCA 121
Pham and Ly v R (1991) 55 A Crim R 128
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v AEM Snr & Ors [2002] NSWCCA 58
R v Fidow [2004] NSWCCA 172
R v JW [2010] NSWCCA 49
R v Loveridge (2014) 243 A Crim R 31
R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
R v Tangye (1997) 92 A Crim R 545
R v Wright [2009] NSWCCA 3
Sheen v R [2014] NSWCCA 42
Tatana v R [2006] NSWCCA 398
Yang v R [2012] NSWCCA 49
Category: Principal judgment
Parties: Burrows – Applicant
Regina – Respondent Crown
Representation:
Counsel:
H Dhanji SC – Applicant
M Cinque SC – Respondent Crown
Solicitors:
Nyman Gibson Miralis – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/14039
Publication restriction: None
Decision under appeal

Court or tribunal:

Lismore District Court

Jurisdiction:

Criminal

Citation:

--

Date of Decision:

17 August 2015

Before:

Wells SC DCJ

File Number(s):

2015/14039

Judgment

MACFARLAN JA: I agree with Wilson J.
SCHMIDT J: I agree with Wilson J.
WILSON J: On 17 August 2015 at the District Court in Lismore Jordan Burrows was sentenced to a term of imprisonment of 6 years and 6 months, with a non‑parole period of 4 years specified, for an offence of specially aggravated break enter commit serious indictable offence, namely larceny, to which he had pleaded guilty. The circumstance of special aggravation relied upon by the Crown was the intentional wounding of a person. A number of circumstances of aggravation were also made out on the evidence, including being in company, being armed with an offensive weapon, and the use of corporal violence.
The offence is one contrary to s 112(3) of the Crimes Act 1900 (NSW). It carries a maximum sentence…

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 Burrows v R

Details

AGLC: Burrows v R [2017] NSWCCA 45
Case: [2017] NSWCCA 45
Decision Date: 24 March 2017

CaseChat Overview and Summary

The matter before the court involved a challenge to a sentence imposed on the applicant, Burrows, by the sentencing judge. The applicant was convicted for his involvement in a particularly violent home invasion, where a serious indictable offence was committed. The applicant's appeal was centred on whether the sentencing judge had erred in the assessment of his culpability, particularly in relation to the weight given to his age and the parity principle. The case was heard in the relevant appellate court.

The legal issues that the court was required to decide included whether the sentencing judge had erred in the assessment of the applicant's culpability and the weight given to his age. The court was also required to determine if the sentencing judge had properly observed the parity principle in sentencing the applicant. These issues were critical to the outcome of the appeal, as they directly impacted the fairness and appropriateness of the sentence imposed.

In considering these issues, the court meticulously reviewed the sentencing judge's assessment of the applicant's culpability and the weight given to his age. The court found that the sentencing judge had properly assessed the applicant's role in the joint criminal enterprise and had appropriately considered his age in the context of the offence. The court also concluded that the parity principle had been observed, as the sentence imposed was commensurate with the severity of the crime and the applicant's level of culpability. Based on these findings, the court dismissed the appeal.

Consequently, the leave to appeal was dismissed, and the original sentence imposed by the sentencing judge was upheld. The court's decision reaffirmed the importance of a comprehensive assessment of culpability and the application of the parity principle in sentencing, particularly in cases involving young offenders.

Orders