R v Burden

[2000] TASSC 14

[2000] TASSC 14

CITATION:              R v Burden [2000] TASSC 14

PARTIES:  R
  v
  BURDEN, Kelton John

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CA 113/1999
DELIVERED ON:  9 March 2000
DELIVERED AT:  Hobart
HEARING DATES:  9 March 2000
JUDGMENT OF:  Underwood, Crawford and Evans JJ

CATCHWORDS:

[Edited version of reasons delivered orally]

REPRESENTATION:

Counsel:
           Appellant:  L A Mason
           Respondent:  R A Browne
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Legal Aid Commission

Judgment Number:  [2000] TASSC 14
Number of Paragraphs:  5

Serial No 14/2000
File No CA 113/1999

THE QUEEN v KELTON JOHN BURDEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
EVANS J
9 March 2000

Order of the Court

Appeal dismissed.

Serial No 14/2000
File No CA 113/1999

THE QUEEN v KELTON JOHN BURDEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
EVANS J
9 March 2000

1. The respondent pleaded guilty to one count of aggravated robbery.  The circumstance of aggravation was that at the time of the robbery he caused bodily harm to his victim.  A sentence of 2½ years' imprisonment was ordered.  A period of 2½ months in custody prior to sentence being imposed was taken into account so that an effective order was made of imprisonment for 2 years, 8½ months.  The learned sentencing judge further ordered that the execution of the last 12 months of the 2½ year sentence be conditionally suspended.  It was a bad case of aggravated robbery, the learned sentencing judge described it in the following terms:

"Knowing the proprietor of a fruit and vegetable business was likely to be in possession of about $15,000 and would be leaving her home with it very early in the morning when others were unlikely to be about, you agreed with an accomplice to drive to the vicinity, to wait for her and to rob her of the money by snatching her bag and running off to rejoin your co-offender at the car and make your getaway.  You waited some half an hour or so until the victim appeared with her bag and opened her car door.  Then you assaulted her with a series of blows to the head and seized hold of the bag.  She would not let go of it and in the tug of war which ensued, she fell to the ground where she was struck by you on her arms and legs and the bag was forcibly taken from her.  You ran away and handed the bag to your accomplice, who gave you $2,000 from it which you have since spent.  None of the balance has been recovered and the other man awaits trial.

The complainant was 72 years of age and obviously an active lady.  She was hospitalised for several days and suffered a dislocated elbow, several fractures to her arm and received a blackened eye.  The experience must have been a very frightening one likely to lead to continuing distress."

It appears from the material that was before his Honour that in fact there was only one fracture to the arm, but nothing turns upon that.

1. With respect to mitigatory matters, the learned sentencing judge said this about the respondent:

"You were apprehended soon afterwards and confessed your part in the crime.  I should perhaps vary that a little because you did not confess the part which I have been told you played today but you claimed that somebody else had inflicted the violence; but you did confess to being involved in the crime.  You have pleaded guilty and I accept that you feel strong remorse and shame for what you have done.  You have indicated a willingness to assist in the prosecution of the other offender by giving evidence at his trial, notwithstanding the risk of repercussions from other inmates at the gaol.  So I take that into account, as I do your age and relatively minor criminal history." 

1. The respondent was 10 days short of his 19th birthday at the time he committed the crime.  Although the respondent had by that stage, appeared in court on a few occasions, the offences were relatively minor and attracted a conditional discharge in all cases except one, for which a probation order was imposed. 

1. It subsequently appeared that despite the respondent's promise to give evidence against his co-offender, he has refused to do so.  Accordingly, the Attorney-General has appealed against the sentence upon the ground that in the light of the facts before the learned sentencing judge, as they are now known, the sentence was manifestly inadequate, see R v Stanley (1998) 7 Tas R 357.

1. We are clearly of the view that notwithstanding the fact that the sentence is to be reviewed upon the basis that the respondent was not prepared to assist in the prosecution of his co-offender, an effective sentence of 2 years, 8½ months, with 12 months conditionally suspended, is not, in the circumstances of this case, and in the circumstances of this offender, manifestly inadequate. 

1. Miss Mason has helpfully put before the Court the substance of its record of sentences imposed for the same or like crimes over the last decade.  The list submitted contains more than 50 sentences.  Only one is in excess of the sentence imposed in this case, and the majority are considerably less.  Although Miss Mason has submitted this robbery was planned and caused an elderly woman to suffer injury, it cannot be ignored that the offender was a youth, with only one prior conviction at the time he committed this crime.  In all these circumstances then, the appeal will be dismissed.