Burrows v The Queen - [2007] NSWCCA 239

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Burrows v R [2007] NSWCCA 239

FILE NUMBER(S):
2007/878

HEARING DATE(S): 11 July 2007

JUDGMENT DATE: 10 August 2007

PARTIES:
Kyla Michaela Burrows
Regina

JUDGMENT OF: Tobias JA Latham J Mathews AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/11/0489

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 11 September 2006

COUNSEL:
A: Grant Brady
R: J Girdham

SOLICITORS:
A: Brenda Duchen
R: S Kavanagh

CATCHWORDS:
SENTENCE – Guilty Pleas – Utilitarian value – Where sentencing judge rejected concession by Crown that guilty plea made at first available opportunity – Aggravating Factors – Supply prohibited drug – Whether offence committed as part of a planned organised criminal activity is an aggravating feature when planning is an inherent characteristic

LEGISLATION CITED:
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
Fahs v R [2007] NSWCCA 26
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA
Regina v Dib [2003] NSWCCA 117
Regina v Scott [2003] NSWCCA 286
R v Harmouche (2005) 158 A Crim R 357; [2005] NSWCCA 398
R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97

DECISION:
Leave to appeal granted but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/878
TOBIAS JA
LATHAM J
MATHEWS AJ
Friday 10 August 2007

KYLA MICHAELA BURROWS v REGINA

Judgment

TOBIAS JA: The applicant seeks leave to appeal against a sentence of imprisonment imposed upon her by Judge Marien SC on 11 September 2006 following a plea of guilty to one count of supplying a prohibited drug, namely, heroin, being an amount not less than the commercial quantity applicable to that drug contrary to s 25(1) of the Drug Misuse & Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment.
The applicant was sentenced to a non-parole period of 20 months imprisonment commencing on 8 January 2006 and expiring on 7 September 2007 with a total sentence of three years imprisonment commencing on 8 January 2006 and expiring on 7 January 2009.
The application for leave to appeal against sentence sets out three grounds of appeal, namely:
Ground One
The learned sentencing judge in his reasons on sentence rejected the concession by the Crown that the plea of guilty by the appellant was at the first available opportunity, and in doing so failed to give Counsel for the appellant the opportunity to make submissions on the appropriate discount on sentence for the utilitarian value of the plea of guilty by the appellant.
Ground Two
In determining an appropriate sentence the learned sentencing judge failed to give an adequate discount for the utilitarian value of the plea of guilty by the appellant.
Ground Three
The learned sentencing judge erred in concluding that a significant aggravating factor of the offence was that it was committed as part of a planned organised criminal activity, when planning is…

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 The Queen

Details

AGLC: Burrows v The Queen [2007] NSWCCA 239
Case: [2007] NSWCCA 239
Decision Date: 10 August 2007

CaseChat Overview and Summary

The case of Burrows v The Queen involved the defendant, Burrows, and the Crown. The dispute centred on the appropriate sentence to be imposed on Burrows following his conviction for supplying a prohibited drug. The case was heard in the High Court of Australia. The central issue before the court was whether the sentencing judge had erred in rejecting the Crown's concession that Burrows' guilty plea was made at the earliest available opportunity. Additionally, the court had to determine whether the offence being committed as part of a planned organised criminal activity constituted an aggravating factor when planning is an inherent characteristic of the offence.

The court examined the sentencing judge's approach to the guilty plea and considered the concession by the Crown. The court concluded that the sentencing judge had not erred in rejecting the concession, as the timing of the guilty plea did not necessarily equate to an early plea. Furthermore, the court held that the offence being committed as part of a planned organised criminal activity did not constitute an aggravating factor when planning is an inherent characteristic of the offence. The court found that the sentencing judge had appropriately considered the relevant factors and applied the correct legal principles in determining the sentence.

Consequently, the High Court dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The court held that the sentencing judge had correctly assessed the mitigating and aggravating factors and had exercised their discretion appropriately in imposing the sentence. The court also noted that the sentence was within the range of penalties appropriate for the offence and did not consider the sentence to be manifestly excessive or inadequate.

The final orders of the court were to affirm the sentence imposed by the sentencing judge and to dismiss the appeal brought by Burrows. The court's decision provided clarity on the approach to be taken when considering the timing of a guilty plea and the relevance of planning in the context of organised criminal activity.

Orders