R v Burke - [2023] NSWDC 282

District Court

New South Wales

Medium Neutral Citation: R v Burke [2023] NSWDC 282
Hearing dates: 4 May 2023
Decision date: 05 May 2023
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found to provide longer period of supervised parole to assist in the offender’s rehabilitation and return to a lawful life within the community.
Indicative Sentences:
002: 3 years + 9 months – NPP: 2 years
003: 1 year + 6 months
Aggregate Term of Imprisonment:
Sentenced to an aggregate term of imprisonment of 4 years comprising a non-parole period of 2 years and 4 months to commence on 21 June 2022 and expiring on 20 October 2024, upon which date he will become eligible for parole, and a balance of term of 1 year and 8 months to commence on 21 October 2024 and to expire on 20 June 2026.

Catchwords:
CRIMINAL – sentence - recklessly cause grievous bodily harm in company – larceny – seriousness of offences – substantial injuries inflicted - generosity of victim met by intimidation and violent, unprovoked attack – role of this offender - no evidence supplied to court of monetary value of items stolen, never returned – statutory aggravating factors - s 21A(2)(c) - implicit threat + use of weapon - s 21A(2)(eb) – offences committed in home of victim – subjective matters – letter from offender - self-serving statements – remorse & contrition – prospects of rehabilitation - aggregate sentence

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Category: Sentence
Parties: Rex
Burke, Samaoso Joash Junior
Representation:
Counsel:
Def: Mr D Bhutani
Solicitors:
ODPP (NSW): Mr J Staples, Ms S Tam
DEF: Mr A Ibrahim, Karnib Saddik Law Firm Pty Ltd

File Number(s): 2022/00180861

JUDGMENT

HIS HONOUR: Mr Burke appears for sentence in respect of two offences. The first is recklessly cause grievous bodily harm in company contrary to s 35 (1) of the Crimes Act 1900. The maximum penalty provided is 14 years’ imprisonment and there is a relevant standard non-parole period of 5 years.
The second offence is larceny contrary to s 117 of the Crimes Act. The maximum penalty is 5 years’ imprisonment and there is no relevant standard non-parole period.
He was committed for sentence on 22 February 2023 from the Burwood Local Court and is entitled accordingly to a 25% discount for the utility of the plea; such a discount will be provided. He was arrested on 21 June 2022 and has been in custody since that date in relation to these matters only.
The facts are agreed and are as follows:

1. The victim is Ivoka Matrevski. At the time of the offences, the victim lived in a unit in Minnesota Avenue, Riverwood, in Department of Housing premises. The victim used cannabis to assist with his anxiety and depression.

2. In between 10am and 11am on 5 November 2018, the victim received a call from the offender asking to purchase cannabis. The victim replied that he did not…

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 Burke

Details

AGLC: R v Burke [2023] NSWDC 282
Case: [2023] NSWDC 282
Decision Date: 05 May 2023

CaseChat Overview and Summary

The case of R v Burke was heard in an Australian court where the defendant was charged with several criminal offences including recklessly causing grievous bodily harm in company, and larceny. The defendant's actions led to substantial injuries being inflicted upon the victim, who had initially shown generosity towards the defendant. However, this generosity was met with intimidation and a violent, unprovoked attack. The court was tasked with determining the appropriate sentence for the defendant, taking into account the severity of the offences and the defendant's role in them.

The legal issues before the court included the consideration of statutory aggravating factors, such as the implicit threat and use of a weapon during the commission of the offences. Additionally, the court had to assess the subjective matters of the case, including the defendant's remorse and contrition, prospects of rehabilitation, and the circumstances surrounding the offences. The court also considered a letter from the defendant and the lack of evidence regarding the monetary value of the stolen items that were never returned to the victim.

In delivering the judgment, the court found the special circumstances to be present, warranting a longer period of supervised parole to assist in the offender’s rehabilitation and return to a lawful life within the community. The court determined the indicative sentences for each offence and calculated the aggregate term of imprisonment. The defendant was ultimately sentenced to a total term of imprisonment of 4 years, with a non-parole period of 2 years and 4 months, and the remainder of the sentence to be served on parole eligibility.

The court ordered that the defendant be imprisoned for the aggregate term, with the non-parole period commencing on 21 June 2022 and expiring on 20 October 2024, upon which date he will become eligible for parole. The balance of the term will commence on 21 October 2024 and expire on 20 June 2026. This sentencing reflects the court's consideration of the severity of the offences and the need to balance the interests of justice, deterrence, and the rehabilitation of the offender.

Orders

Orders of the court

Convicted.

Special circumstances found to provide longer period of supervised parole to assist in the offender’s rehabilitation and return to a lawful life within the community.

Indicative Sentences:

002: 3 years + 9 months – NPP: 2 years

003: 1 year + 6 months

Aggregate Term of Imprisonment:

Sentenced to an aggregate term of imprisonment of 4 years comprising a non-parole period of 2 years and 4 months to commence on 21 June 2022 and expiring on 20 October 2024, upon which date he will become eligible for parole, and a balance of term of 1 year and 8 months to commence on 21 October 2024 and to expire on 20 June 2026.

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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Medium Neutral Citation:	R v Burke [2023] NSWDC 282
Hearing dates:	4 May 2023
Decision date:	05 May 2023
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found to provide longer period of supervised parole to assist in the offender’s rehabilitation and return to a lawful life within the community. Indicative Sentences: 002: 3 years + 9 months – NPP: 2 years 003: 1 year + 6 months Aggregate Term of Imprisonment: Sentenced to an aggregate term of imprisonment of 4 years comprising a non-parole period of 2 years and 4 months to commence on 21 June 2022 and expiring on 20 October 2024, upon which date he will become eligible for parole, and a balance of term of 1 year and 8 months to commence on 21 October 2024 and to expire on 20 June 2026.
Catchwords:	CRIMINAL – sentence - recklessly cause grievous bodily harm in company – larceny – seriousness of offences – substantial injuries inflicted - generosity of victim met by intimidation and violent, unprovoked attack – role of this offender - no evidence supplied to court of monetary value of items stolen, never returned – statutory aggravating factors - s 21A(2)(c) - implicit threat + use of weapon - s 21A(2)(eb) – offences committed in home of victim – subjective matters – letter from offender - self-serving statements – remorse & contrition – prospects of rehabilitation - aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Rex Burke, Samaoso Joash Junior
Representation:	Counsel: Def: Mr D Bhutani Solicitors: ODPP (NSW): Mr J Staples, Ms S Tam DEF: Mr A Ibrahim, Karnib Saddik Law Firm Pty Ltd
File Number(s):	2022/00180861