R v Burgess

Case [2006] NSWCCA 319


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Burgess [2006]  NSWCCA 319

FILE NUMBER(S):
2006/1867

HEARING DATE(S):               04/10/2006

DECISION DATE:     06/10/2006

PARTIES:
Regina v Robert James Burgess

JUDGMENT OF:       Sully J Adams J Howie J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          06/31/0028

LOWER COURT JUDICIAL OFFICER:     Bennett DCJ

COUNSEL:
W. Dawe QC - Crown
C. Smith - Respondent

SOLICITORS:
S. Kavanagh - Crown
       -

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

  1. SULLY J:  I agree with Howie J.

  2. 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. 

  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 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.…

Continue reading R v Burgess

Sign in free to access the full text

Details
AGLC
R v Burgess [2006] NSWCCA 319
Case
[2006] NSWCCA 319
Decision Date

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

Full text does not contain this section.

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

Full text does not contain this section.

Decision

Reasons for decision

SULLY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SULLY J

Full text does not contain this section.