Burton v R - [2002] TASSC 64

[2002] TASSC 64

CITATION: Burton v R [2002] TASSC 64

PARTIES: BURTON, Scott William
v

R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 13/2002

CCA 27/2002

DELIVERED ON:  11 September 2002
DELIVERED AT:  Hobart
HEARING DATES:  27 August 2002
JUDGMENT OF:  Underwood, Crawford and Slicer JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Parity - Generally - Consistency of sentencing - Whether sentence manifestly excessive.
Lowe v R (1984) 154 CLR 606; Griffiths v R (1977) 137 CLR 293, applied.

Aust Dig Criminal Law [835]

REPRESENTATION:

Counsel:
             Appellant:  M J Brett
             Respondent:  D G Coates
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 64
Number of Paragraphs: 59

Serial No 64/2002
File Nos CCA 13/2002
CCA 27/2002

SCOTT WILLIAM BURTON v HER MAJESTY THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
CRAWFORD J
SLICER J
11 September 2002

Orders of the Court

CCA 13/2002

Appeal allowed.
Sentence of imprisonment for three years and six months quashed.
In lieu thereof there will be a sentence of imprisonment for two years and three months to date from 29 July 2001.

CCA 27/2002

Sentence of imprisonment for three months cumulatively on the sentence he was then serving quashed.
In lieu thereof there will be a sentence of imprisonment for three months cumulatively on the sentence of imprisonment for two years and three months imposed today.

Serial No 64/2002
File Nos CCA 13/2002
CCA 27/2002

SCOTT WILLIAM BURTON v HER MAJESTY THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
11 September 2002

I have had the advantage of reading the reasons for judgment of Crawford J. I agree with them. I would only add that in my view, had the jury been satisfied to the requisite degree that at the time the appellant intentionally applied force with the knife to the complainant's neck, he intended to cut the skin, or foresaw that such a cut was likely, the sentences would be unimpeachable. I agree with Crawford J that it is difficult to understand how the jury could be satisfied to the requisite degree of the elements of the crime of assault, but not that of wounding.

But, for the reasons advanced by Crawford J, the appellant was not to be sentenced upon the basis that at the time of the assault he intended or foresaw a wound. Notwithstanding that, it was a very bad case and I agree that an appropriate total sentence for all the crimes committed on the morning of 29 July 2001 is two years and six months.
File Nos CCA 13/2002
CCA 27/2002

SCOTT WILLIAM BURTON v HER MAJESTY THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
11 September 2002

The appellant was indicted for crimes allegedly committed in the course of one incident on 29 July 2001, on the first count for aggravated burglary with…

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 Burton v R

Details

AGLC: Burton v R [2002] TASSC 64
Case: [2002] TASSC 64
Decision Date: 11 September 2002

CaseChat Overview and Summary

In the matter of Scott William Burton v Her Majesty the Queen, the Court of Criminal Appeal heard an appeal against the sentence imposed on Burton for aggravated burglary, attempted murder, and assault. The appellant was found guilty of aggravated burglary with intent to commit assault, not guilty of attempted murder but guilty of committing an unlawful act intended to cause bodily harm, and guilty of assaulting the complainant by dragging her outside the house. The Court of Criminal Appeal found that the sentence of imprisonment for three years and six months was manifestly excessive, and reduced it to two years and three months. Additionally, the Court quashed the sentence of three months' imprisonment imposed cumulatively on the other sentence, and replaced it with a sentence of three months' imprisonment cumulatively on the sentence of imprisonment for two years and three months imposed today. The Court emphasised the need for consistency in sentencing, and the importance of individualising sentences based on the specific circumstances of each case. The Court also noted that the severity of the sentence should be proportionate to the severity of the crime, and that sentences for domestic violence should take into account the impact on the victim.

Orders