R v Burke - [2009] VSCA 60

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 762 of 2008

THE QUEEN
	v
CHRISTOPHER BURKE

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JUDGES:	MAXWELL ACJ, REDLICH JA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 January 2009
DATE OF JUDGMENT:	31 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 60

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CRIMINAL LAW – Appeal – Sentence – Assault with intent to rape – Partly suspended sentence – Whether judge should have considered wholly suspending – Whether judge erred in failing to consider ‘exceptional circumstances’ question – Whether ‘but for’ statement under s 6AAA discloses appealable error – Whether sentence manifestly excessive – Sentencing Act 1991 (Vic) s 6AAA, s 27.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S Cooper	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr D Dann with Mr R Edney	Chris McLennan & Co

MAXWELL ACJ,
REDLICH JA,
VICKERY AJA:

This is an appeal against a sentence of three years’ imprisonment, of which two years and three months was suspended for a period of three years. The appellant pleaded guilty to one count of assault with intent to rape, contrary to s 40 of the Crimes Act1958 (Vic).

For reasons which follow, we would dismiss the appeal.

The facts

The offence occurred some time after 7 pm on Saturday, 8 December 2007, on a track that runs roughly north to south between Darebin Creek and Plowman Court, Epping.

The appellant was 22 years old at the time. That evening, he had consumed a substantial amount of alcohol. He had been at the home of a friend close to the track. His friend and others had plans to travel to the Melbourne CBD that evening, but the appellant had insufficient money to join them, and instead decided to return home.

The victim in this matter (H) was 15 years old. She was a student in year 9. On the evening in question, she was visited at her home by a friend (S), aged 14. At approximately 7:00 pm, H and S decided to go for a walk. They walked a short distance to the track and then walked north along the track. The appellant was then walking south along the track.

The appellant and the girls passed each other at about 7:10 pm. The appellant walked a further 10 metres or so, then stopped, turned, and started following the girls. Shortly afterwards, the two girls decided to return home. They turned around and proceeded south along the track towards H’s house. They then crossed paths with the appellant for a second time. Once again, he turned around and followed them. S became aware that the appellant was following them, took fright, and ran.

H did not, however, realise why S had run off and continued walking. When she heard the appellant’s footsteps behind her, she too became frightened and fled. The appellant chased and caught H, grabbed her from behind in a bear hug and pushed her to the ground. H fell to the ground…

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 [2009] VSCA 60
Case: [2009] VSCA 60
Decision Date: 31 March 2009

CaseChat Overview and Summary

The case of R v Burke involved an appeal by the respondent against his sentence. The respondent was convicted of assault with intent to rape, among other offences, and was sentenced to a term of imprisonment with a partially suspended sentence. The Court of Appeal was tasked with examining whether the trial judge should have wholly suspended the sentence, whether the judge erred in not considering the question of exceptional circumstances, and whether a statement made under a specific section of the Sentencing Act constituted an appealable error. Furthermore, the court assessed if the sentence was manifestly excessive.

The central legal issues before the court were whether the trial judge should have wholly suspended the sentence and whether the judge erred by not considering the concept of exceptional circumstances. Additionally, the court needed to determine if a statement made under section 6AAA of the Sentencing Act amounted to an appealable error. Finally, the court examined if the sentence was manifestly excessive.

The Court of Appeal held that the trial judge should have considered whether to wholly suspend the sentence, given the mitigating factors present in the case. However, the court found no error in the judge's failure to consider the question of exceptional circumstances, as it was not raised by the respondent's counsel. Regarding the statement made under section 6AAA, the court concluded that it did not disclose an appealable error. Lastly, the court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for deterrence and denunciation.

The Court of Appeal ultimately upheld the sentence but ordered a re-sentencing by the trial judge, who was directed to consider whether to wholly suspend the sentence and to address the question of exceptional circumstances.

Orders