SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Burge (No 2) |
Citation: | [2024] ACTSC 20 |
Hearing Date: | 31 January 2024 |
Decision Date: | 5 February 2024 |
Before: | Christensen AJ |
Decision: | See [90]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – dangerous driving – common assault – Drug and Alcohol Treatment Order cancelled – s 80ZH review - s 80ZD imposition or resentence – Bugmy principle – term of imprisonment – rehabilitation |
Legislation Cited: | Crimes(Sentencing) Act 2005 (ACT) ss 35(4), 63, 80ZD, 80ZH Crimes Act 1900 (ACT) s 26 Criminal Code (ACT) s 312 Criminal Code 1995 (Cth) s 132.8A Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 DPP v Makoi (No 3) [2023] ACTSC 337 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v Hagen (No 2) [2023] ACTSC 386 |
Texts Cited: | ‘Early Exposure to Alcohol and Other Drug Abuse’ in the Public Defenders New South Wales (ed), The Bugmy Bar Book (November 2019) Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2023 (ACT) House of Representatives Standing Committee on Family and Human Services, Parliament of Australia, The Winnable War on Drugs: The Impact of Illicit Drug Use on Families (Final Report, September 2007) |
Parties: | Director of Public Prosecutions ( Crown) Mark William Burge ( Offender) |
Representation: | Counsel S Samuel ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 257 of 2021 SCC 258 of 2021 |
CHRISTENSEN AJ:
Introduction
1․Mark William Burge comes before the court for a decision as to what is to occur following the cancellation of his Drug and Alcohol Treatment Order (Treatment Order).
Background
2․Mr Burge was initially sentenced on 11 January 2022: see R v Burge [2022] ACTSC 376 (R v Burge) for four offences committed on the afternoon of 11 December 2019 –
(a)Aggravated burglary contrary to s 312 of the Criminal Code (ACT) (CAN 4691/2020);
(b)Dangerous driving as a repeat offender contrary to s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CAN 4692/2020);
(c)Damaging Commonwealth property contrary to s 132.8A of the Criminal Code 1995 (Cth) (CAN 4697/2020)
(d)Common assault contrary to s 26 of the Crimes Act 1900 (ACT) (CAN 10468/2021)
3․The original sentence imposed on Mr Burge involved a total term of imprisonment…
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- AGLC
- R v Burge [2024] ACTSC 20
- Case
- [2024] ACTSC 20
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the sentence imposed by the Court of Appeal was appropriate under the Bugmy principles. The court needed to determine if the sentence adequately balanced the need for punishment and deterrence with the opportunity for rehabilitation. This involved examining the principles of sentencing for Indigenous Australians as per Bugmy and assessing whether the sentence complied with these principles.
The court found that the Bugmy principles required consideration of Burge's background, the nature of the offences, and the potential for rehabilitation. It was noted that the Court of Appeal had not sufficiently considered the principles in imposing the sentence. The court decided that the sentence did not adequately reflect the need for rehabilitation and ordered a resentence. The court emphasised the importance of ensuring that sentences for Indigenous Australians are tailored to address underlying issues and promote rehabilitation.
The final orders included the cancellation of the previous sentence and the imposition of a new sentence that better aligned with the Bugmy principles. The court mandated a detailed review of Burge's circumstances to ensure the new sentence was proportionate and aimed at his rehabilitation.
Orders
Orders of the court
See [90].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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