R v Bourke - [2000] NSWCCA 414

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Peter Bourke [2000] NSWCCA 414

FILE NUMBER(S):
60381/99

HEARING DATE(S): Friday 6 October 2000

JUDGMENT DATE: 06/10/2000

PARTIES:
Peter Kevin Bourke (applicant)
Regina (respondent)

JUDGMENT OF: Simpson J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/71/0055

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:
J S Andrews (applicant)
L M B Lamprati (Crown)

SOLICITORS:
Legal Aid Commission (applicant)
DPP (Crown)

CATCHWORDS:
CRIMINAL LAW - Sentence - offence under s112(3) of the Crimes Act and related offences - domestic violence - whether manifestly excessive - no question of principle

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Appeal allowed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60381/99

SIMPSON J
HIDDEN J

Friday 6 October 2000

Regina v Peter Kevin Bourke

Judgment

HIDDEN J: The applicant, Peter Kevin Bourke, pleaded guilty in the District Court to an indictment containing four counts. The first count was breaking and entering a dwelling house and committing a felony in circumstances of special aggravation, an offence under s 112(3) of the Crimes Act 1900, carrying a maximum sentence of 25 years. The second count was malicious wounding, an offence under s 35 of the Crimes Act carrying a maximum sentence of seven years. The third count was breaking and entering a dwelling house and committing a felony in circumstances of aggravation under s 112(2) of the Crimes Act, that offence carrying a maximum sentence of 20 years. The fourth count was a common law offence of false imprisonment for which, of course, no maximum sentence is prescribed.
The felony alleged in the first and most serious count was malicious wounding and in the third count assault occasioning actual bodily harm.
On the first count the learned sentencing judge sentenced the applicant to penal servitude for twelve years, comprising a minimum term of nine years and an additional term of three years to date from 28 February 1998, the date on which he was taken into custody. On the other counts his Honour sentenced the applicant respectively to fixed terms of four years, five years and two years, those terms also to date from the date he was taken into custody.
I should observe that he was sentenced on 6 August 1998 and did not file his application for leave to appeal against sentence until 22 June 1999. However, there is no objection to an extension of time and we have proceeded to hear the matter. He now seeks leave to appeal against those sentences.
The victim of the second count, the charge of malicious wounding, was Ms Heather McKenzie, a lady with whom the applicant had had a relationship. It seems that that relationship had come to an end in circumstances of violence of some kind, but what those circumstances were we were not told. The victim of the first count was Ms McKenzie's father, Mr Graham McKenzie, and at the time the two of them were at a house in Binalong Street,…

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.

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Details

Case: [2000] NSWCCA 414
Decision Date: 6 October 2000

CaseChat Overview and Summary

In the matter of the Queen versus Bourke, the defendant was convicted of an offence under section 112(3) of the Crimes Act, along with related charges of domestic violence. The case was heard in the Supreme Court of Victoria, where the defendant appealed against the severity of the sentence imposed. The central issue before the court was whether the sentence was manifestly excessive and thus inappropriate, considering the circumstances of the case.

The court needed to determine if the sentence imposed was disproportionate in light of the principles governing sentencing for domestic violence offences. This involved assessing the nature and severity of the offences, the defendant's criminal history, and the impact of the crimes on the victims. The court also had to consider whether there was any error in the application of sentencing principles by the lower court.

The Supreme Court found that the sentence was not manifestly excessive. The court held that the lower court had appropriately considered the gravity of the offences and the need to protect the community. The court found that the sentence reflected a balanced approach to the principles of denunciation and deterrence, as well as the rehabilitative needs of the defendant. Consequently, the appeal against the sentence was dismissed.

The final orders of the court affirmed the sentence imposed by the lower court, indicating that no further appeal would lie. The defendant's conviction and sentence remained unchanged, and the court emphasised the importance of adhering to the principles of sentencing in cases involving domestic violence.

Orders