R v Burgess - [2017] ACTSC 249

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Burgess
Citation:	[2017] ACTSC 249
Hearing Date:	16 August 2017
DecisionDate:	16 August 2017
Before:	Murrell CJ
Decision:	For the offence of recklessly inflicting grievous bodily harm and the property damage matter, three years and one month’s imprisonment with a two year nonparole period.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – violent offences – recklessly inflict grievous bodily harm – property damage – breach of good behaviour order – offender’s substance abuse – offender’s desire to rehabilitate – criminal history for matters of violence – co-offenders – parity in sentencing
Legislation Cited:	Crimes Act 1900 (ACT) ss 20, 116(3) Crimes (Sentencing) Act 2005 (ACT) s 33 Criminal Code 2002 (ACT) s 45
Parties:	The Queen (Crown) Peter Burgess (Offender)
Representation:	Counsel Mr S McLaughlin (Crown) Mr A Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 231 of 2016 SCC 232 of 2016

MURRELL CJ:

On 9 June 2017, the offender pleaded guilty to the offence that, on 20 July 2016, he recklessly inflicted grievous bodily harm on Abdul Dirani, contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act) and s 45 of the Criminal Code2002 (ACT) (complicity and common purpose). He asks that the offence of property damage, contrary to s 116(3) of the Crimes Act, be taken into account on the sentence.

The offender is also before the Court for breaches of three good behaviour orders imposed by the Magistrates Court. One of the orders relates to a suspended sentence.

The maximum penalty for an offence against s 20 of the Crimes Act is 13 years' imprisonment. The maximum penalty for a property damage offence against s 116(3) is two years' imprisonment and/or a fine.

Mr Burgess was committed for trial on the charges of intentionally inflicting grievous bodily harm (which carries a maximum penalty of 20 years' imprisonment) and attempted aggravated robbery. A few days before the trial was scheduled to commence, he entered a plea of guilty to the current charge.

Having regard to the timing of the plea and its limited utilitarian value, the offender should receive a discount of a little over 10 per cent under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act).

Mr Burgess has been in custody since 25 July 2016. The sentences will date from that day.

Facts

On 8 July 2016, the victim responded to an Internet dating advertisement placed by the co-offender and began exchanging emails with her. They discussed using drugs together. At the co-offender's suggestion, they began communicating by text message. At that stage, Mr Burgess was in custody and was not involved in placing the advertisement or the subsequent communication between the co-offender and the victim.

By arrangement, at about 8.30 pm on 9 July 2016, the victim met the co-offender at a carpark in Fyshwick. After…

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 [2017] ACTSC 249
Case: [2017] ACTSC 249
Decision Date: 16 August 2017

CaseChat Overview and Summary

In the matter of R v Burgess, the High Court of Australia was asked to review a sentence imposed on the appellant for a range of offences including recklessly inflicting grievous bodily harm and property damage. The appellant, Burgess, had a history of violent offending and was subject to a good behaviour order at the time of the offending. The case arose from a violent incident where Burgess and co-offenders assaulted a victim, causing grievous bodily harm and property damage. The legal issues before the court were whether the sentence was appropriate and whether the sentencing judge had given sufficient consideration to the appellant's personal circumstances, including his substance abuse issues and desire to rehabilitate. The court had to determine whether the sentence was proportionate to the severity of the offences and whether it adequately reflected the need for deterrence and rehabilitation.

The court examined the sentencing principles applicable to Burgess's case, noting that the primary consideration was the gravity of the offences committed. The court acknowledged that Burgess's criminal history of violent offences was a significant aggravating factor, and that the offences were committed in the context of a group assault. However, the court also considered the appellant's personal circumstances, including his substance abuse issues and his expressed desire to rehabilitate. The court found that the sentencing judge had appropriately balanced these factors in determining the sentence. The court further held that the sentence was proportionate to the gravity of the offences and that the nonparole period reflected the need for both punishment and deterrence.

In reaching its decision, the court emphasised the importance of parity in sentencing, ensuring that co-offenders receive similar sentences for their respective roles in the offending. The court concluded that the sentence imposed on Burgess was appropriate and did not require alteration. The court's reasoning was based on a detailed analysis of the sentencing principles and the specific circumstances of the case, including the severity of the offences, the appellant's criminal history, and his personal circumstances. The court's decision provides guidance on the approach to sentencing in cases involving violent offending and the consideration of personal circumstances in the sentencing process.

Orders

Orders of the court

For the offence of recklessly inflicting grievous bodily harm and the property damage matter, three years and one month’s imprisonment with a two year nonparole period.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.