CATCHWORDS:
Criminal Law - Sentencing - Crown appeal - supplying commercial quantity of methylamphetamine - relevance of standard non-parole period after plea of guilty - failure to identify the level of offending - failure to give reasons for departing from standard non-parole period - sentence manifestly inadequate.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 - ss 25(1), 25(2), 25A
Crimes (Sentencing Procedure) Act 1999 - ss 21A(2)(m), 21A(2)(n), 21A(3), 44, 54B, Div 1A

DECISION:
The appeal is allowed and the sentence on the first count is quashed. In lieu the respondent is sentenced to a non-parole period of 5 years and 6 months imprisonment to date from 29 April 2005 and to expire on 28 October 2010, the date upon which he is eligible for release to parole. The balance of term is 2 years 6 months imprisonment to date from 29 October 2010.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1867
SULLY J
ADAMS J
HOWIE J
FRIDAY 6 OCTOBER 2006

REGINA v Robert James BURGESS

Judgment

SULLY J: I agree with Howie J.
ADAMS J: I have had the advantage of reading the judgment in draft of Howie J. I agree with the orders proposed by his Honour and with his Honour's reasoning, subject to the qualifications expressed in what follows.
In determining whether a case falls within the middle of the range of objective seriousness, this Court said in R v Way (2004) 60 NSWLR 168 at [88] that the factors to which regard must be had in assessing whether a case falls within the middle of the range of objective seriousness include the objective factors referred to in s21A of the Crimes (Sentencing Procedure) Act 1999. I have already pointed out (in R v AJP (2004) 150 A Crim R 575) that, with respect, it is difficult to reconcile this approach with the requirement of s54B(3) that "the reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s21A". For example, if some factor, such as planning (cf s21A(2)(n)), aggravated the offence, it could not be used at the same time to assess whether the offence was in the middle of the range of objective seriousness. The obverse (lack of planning) is in precisely the same position. The same must be true of all the objective features referred to in s21A. However, this logical problem was not referred to in Way and, of course, I must defer to the view there expressed as to the application of s54B.…

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 R v Burgess

Details

AGLC: R v Burgess [2006] NSWCCA 319
Case: [2006] NSWCCA 319
Decision Date: 6 October 2006

CaseChat Overview and Summary

The appeal by the Director of Public Prosecutions was heard in the New South Wales Court of Criminal Appeal, with the central issue being the sentencing of the respondent, who had pleaded guilty to supplying a commercial quantity of methylamphetamine. The Crown appealed the sentence, arguing that it was manifestly inadequate given the scale of the respondent's involvement in the drug supply chain.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate in light of the respondent's role in supplying significant quantities of methylamphetamine. The Crown argued that the sentence failed to adequately account for the standard non-parole period applicable to such offences and did not sufficiently consider the level of offending. The court had to determine whether the trial judge had properly assessed the seriousness of the offence and whether there were adequate reasons for any departure from the standard non-parole period.

The Court of Criminal Appeal found that the trial judge had not appropriately considered the standard non-parole period and had failed to provide sufficient reasons for any departure from it. The appellate court held that the sentence was manifestly inadequate and remitted the matter to the District Court for re-sentencing. The appeal was allowed, and the matter was sent back to the District Court for reconsideration of the sentence in light of the appellate court's findings.

The court ordered that the appeal be allowed and the matter be remitted to the District Court for re-sentencing, ensuring that the new sentence adequately reflects the nature and circumstances of the offence and appropriately considers the standard non-parole period.

Orders

Orders of the court

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Background

Background to the litigation

The appeal by the Director of Public Prosecutions was dated 4 August 2006.The facts The facts were placed before the Judge by an agreed statement and can be briefly summarised. The respondent was subject to an on-going investigation by police into the supply of methylamphetamine in the Manning area of the North Coast. There was initially one target of this operation, the respondent’s father-in-law, Kevin White. He was a street supplier of the drug and between December 2004 and April 2005 undercover police operatives purchased methylamphetamine from him on ten occasions. During that operation the respondent was identified as being White’s supplier. In February 2005 police began lawfully intercepting White’s mobile phone and recorded numerous calls between the respondent and White relating to the supply of methylamphetamine. The respondent supplied White with large quantities of the drug every two or more days in $100 deals pre-packaged by the respondent. There were also calls recorded that revealed that the respondent’s wife would deliver the drugs to White at his home or at a shop that she operated from where he would obtain the drugs. She also picked up money from her father, being the proceeds of drug sales. On 31 March 2005 police began lawfully intercepting the respondent’s mobile telephone and recorded numerous calls and text messages between the respondent, White and a number of other drug suppliers in the area. On 15 April 2005 police commenced lawfully video recording activity in the premises in Nabiac in which the respondent, his wife and children lived. On 21 April police recorded the respondent taking bags of methylamphetamine and cannabis from a backpack and then placing the bags in the kitchen cupboard. Later that evening the respondent supplied a female with $400 worth of methylamphetamine. A short time later the respondent is recorded sitting at the dining room table making up about 60 deals of the drug with his wife and three children in the general vicinity. The respondent’s wife is seen checking and counting the deals. The respondent later admitted that these were supplied to White the next morning. The respondent was also seen to count about $10,000 in cash. On 24 April 2005 police observed the respondent supply Richard Lee with 12.3 grams of methylamphetamine for which Lee paid him $2,600. This transaction was carried out in the presence of the respondent’s wife. Lee was arrested a short time later with the drug. After learning of Lee’s arrest they decided to take drugs and cash from their property at Nabiac to a unit they owned in Tuncurry. On 29 April 2005 police executed a search warrant at the respondent’s premises in Nabiac and found a total of 3.57 grams of methylamphetamine at that address. There was also found cannabis, cannabis seeds, electronic scales and resealable plastic bags. There was also $7,380 in cash found which included money used by the police operatives to purchase drugs from White. This money was the subject of the goods in custody charge on the Form 1

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULLY J

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Ratio Decidendi

Legal Principle Established

Established by: SULLY J

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Citations

AGLC Citation

R v Burgess [2006] NSWCCA 319

Most Recent Citation

Diesing v R [2007] NSWCCA 326

Cases citing this decision · 7 of 7 shown

Burgess v R
[2019] NSWCCA 13 Para 7

…own appeal to a total term of imprisonment of 8 years with a non-parole period of 5 years and 6 months, to date from 29 April 2005 ( Regina v Burgess [2006] NSWCCA 319). The offences before her Honour occurred two weeks after the expiration of that sentence.…
R v Stunden
[2011] NSWCCA 8 Para 1

…The obligation of a sentencing judge is clear and is the subject of much authority in this Court: R v Burgess [2006] NSWCCA 319 at [45], R v Knight; R v Vivanua (2007) 176 A Crim R 338 at [39] per Howie J, R v Mitchell; R v Gallagher (2007) 177 A Crim R 94, at [25] per Howie J, R v Cheh [2009] NSWCCA 134 at [22], pe…
R v McEvoy
[2010] NSWCCA 110

…al Appeal Act 1912 CATEGORY: Principal judgment CASES CITED: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v Burgess [2006] NSWCCA 319 R v Carroll [2010] NSWCCA 55 R v Cheh [2009] NSWCCA 134 R v JW [2010] NSWCCA 49 R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 R v Mitchell; R v Gallagher…
R v Parkinson
[2010] NSWCCA 89

…SWCCA 309 KC v R [2009] NSWCCA 110 Ku v R [2008] NSWCCA 258 R v Chan [1999] NSWCCA 103 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Burgess [2006] NSWCCA 319 R v Chad unreported 13 May 1997 NSWCCA R v Dang [2005] NSWCCA 430 R v JW [2010] NSWCCA 49 R v Knight; R v Biuvanua [2007] 176 A Crim R 338 R v Mills…
R v Kumar and Feagaiga
[2008] NSWCCA 328 Para 1

…In R v Burgess [2006] NSWCCA 319 the offender was found in possession of some 739 grams of methylamphetamine at the time of arrest. He was regarded variously as the principal of his own wholesale commercial operation or as on the middle rung of another organisation engaged in the supply of methylamphetamine. Supply…
Diesing v R
[2007] NSWCCA 326 Para 13

…f the maximum penalty has been prescribed by the legislation, such as for s66A offences; R v AJP (2004) 150 A Crim R 575 at 585; see also R v Burgess [2006] NSWCCA 319 at [52].…
R v Houri
[2007] NSWSC 615

…CLR 295 R v AEM (Snr) & Ors [2002] NSWCCA 58 R v AJP (2004) 150 A Crim R 575 R v Alameddine [2006] NSWCCA 317 R v Apps [2006] NSWCCA 290 R v Burgess [2006] NSWCCA 319 R v Burrell (2000) 114 A Crim R 207 R v FD & JD (2006) 160 A Crim R 392 R v Hearne (2001) 124 A Crim R 451 R v Imnetu [2006] NSWCCA 203 R v JB and RJ…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Dang
[2005] NSWCCA 430 Para 6

…h has been preserved by the Act. With respect, it may be that, in light of the point at which the comparison is to be made, the passage in R v Dang [2005] NSWCCA 430 at [22] needs to be approached with some caution. The existence of the standard non-parole period is an aid to the instinctive synthesis of all relevan…
Markarian v The Queen
[2005] HCA 25 Para 12

…ffender. Such a two-step approach has never been recognised as appropriate and is contrary to the principles set out in Markarian v The Queen (2005) 79 ALJR 1048. At paragraph [39] of the joint judgment was stated: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add…
R v Mills
[2005] NSWCCA 175 Para 17

…In R v Dang [2005] NSWCCA 430, with the concurrence of Studdert and Whealey JJ, I stated: [21]……….In R v Mills [2005] NSWCCA 175 there was a Crown appeal against a sentence in respect of an offence for which a standard non-parole period was prescribed of 5 years. In departing from the standard non-parole period, the…
R v Walker
[2005] NSWCCA 109 Para 17

…ear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109. [50] The present case, it may be accepted, was one involving pleas of guilty, so that the role of the standard non-parole period was as a reference or che…
R v Way
[2004] NSWCCA 131 Para 3

…In determining whether a case falls within the middle of the range of objective seriousness, this Court said in R v Way (2004) 60 NSWLR 168 at [88] that the factors to which regard must be had in assessing whether a case falls within the middle of the range of objective seriousness include the objective factors referr…
R v Shi
[2004] NSWCCA 135 Para 5

…and that from the respondent’s sister. It was noted that the Judge had referred to two specific paragraphs in this Court’s judgment in R v Shi [2004] NSWCCA 135 and that it should not be concluded that the Judge did not give full regard to the standard non-parole period.…
Pearce v The Queen
[1998] HCA 57 Para 1

…ence was to be served completely concurrently with the other sentence was, as a matter of principle, completely irrelevant. A proper application of Pearce v The Queen (1998) 194 CLR 610 requires a determination of the appropriate sentence for each offence before a consideration of how the sentences are to be served.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 10)
Drugs Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 10)