R v Burman

Case [2023] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burman [2023] QCA 245

PARTIES:

R
v
BURMAN, Amanda Jane
(appellant/applicant)

FILE NO/S:

CA No 209 of 2022
CA No 270 of 2022
DC No 1271 of 2020
DC No 1878 of 2021
DC No 1506 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Convictions: 22 October 2021, 25 July 2022 and 23 August 2022; Date of Sentence: 23 August 2022 (Everson DCJ)

DELIVERED ON:

5 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2023

JUDGES:

Bowskill CJ and Flanagan JA and Burns J

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against the sentences is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the appellant was convicted of a range of Commonwealth offences of dishonesty and one State offence of fraud, having pleaded guilty on multiple occasions – where, on appeal, the appellant contended that her pleas of guilty were not given freely and voluntarily, and that she had made them as a result of threats and pressure from her husband, her personal circumstances and because her legal team told her to plead guilty – where the appellant also alleged that her lawyer and barrister were incompetent – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to concurrent terms of imprisonment for a range of Commonwealth offences of dishonesty and one State offence of fraud, with a head sentence of five years – where the appellant was required to serve 20 months of the sentence before being released to serve the balance of the sentence in the community – where, on appeal, the appellant contended that the sentences were manifestly excessive on the basis that the sentencing judge failed to have due regard to the mitigating factors in her favour, and because comparable cases supported a lower penalty being imposed – whether the sentences imposed were manifestly excessive

Criminal Code (Qld), s 668D(1)(a), s 668D(1)(b)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Borsa v R [2003] WASCA 254, cited
Edwards v The Queen (2013) 92 ATR 147; [2013] NSWCCA 54, considered
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, considered
R v Gadaloff[1999] QCA 286, cited
R v Kruezi (2020) 6 QR 119; [2020] QCA 222, cited
R v Latemore[2019] QCA 55, considered
R v Liberti (1991) 55 A Crim R 120, cited
R v Massey[2015] QCA 254, considered
R v Nagy

Continue reading R v Burman

Sign in free to access the full text

Details
AGLC
R v Burman [2023] QCA 245
Case
[2023] QCA 245
Decision Date

CaseChat Overview and Summary

The appellant was convicted of various Commonwealth offences of dishonesty and a State offence of fraud, having entered guilty pleas on multiple occasions. The appellant appealed against her conviction, arguing that her pleas were not given freely and voluntarily, and that they were made due to threats and pressure from her husband, her personal circumstances, and instructions from her legal team. The appellant further alleged that her lawyer and barrister were incompetent, leading to a miscarriage of justice. The appellant also appealed against her sentence, contending that it was manifestly excessive as the sentencing judge failed to consider mitigating factors and that comparable cases supported a lower penalty.

The court examined whether the appellant's pleas were voluntary and whether there was any evidence of incompetence by her legal representatives. The court also considered whether the sentence imposed was manifestly excessive, taking into account mitigating factors and comparable cases. The court found that the appellant's pleas were indeed given freely and voluntarily, and there was no evidence of incompetence by her legal representatives. The court further determined that the sentence imposed was not manifestly excessive, as it had properly considered the mitigating factors and was within the range of penalties for such offences.

In conclusion, the appeal against conviction was dismissed, and the application for leave to appeal against the sentences was refused. The appellant was required to serve 20 months of the sentence before being released to serve the balance of the sentence in the community. The court upheld the conviction and sentence, finding that there was no miscarriage of justice and that the sentence was appropriate given the circumstances of the case.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against the sentences is refused.

Background

Background to the litigation

Dr Yoxall recorded the appellant’s account of her offending, as follows:“Ms Burman said that the offending between 2008 and 2012 occurred in the context of her completing income tax returns for her brother’s business (Robert Owen); and a business in her name. The offending between 2014 and 2016 related to her lodgment of her husband’s income tax returns and amendments (Neville Burman) for the financial years ending 2014, 2015 and 2016. She said that she is pleading guilty on the basis of the agreed Statement of Facts.” Later in the report, Dr Yoxall recorded that it was not clear what dynamic risk factors impacted upon the appellant at the time of the offending “because she does not wish to discuss various details of the offending”. She also noted that the appellant’s “relationships with both her husband and brother have substantially deteriorated since being charged”. The appellant told Dr Yoxall that she had experienced a significant deterioration in her mental health since the last police raid on her home in 2017, which had led to her experiencing significant anxiety. The appellant also told Dr Yoxall that in 2017 she had attempted suicide and had been referred to a psychologist. The appellant told Dr Yoxall that, after the raids, she and her husband sold their home and moved to her husband’s investment property. They contracted a builder to complete a renovation at that property. Dr Yoxall referred to the further offending which occurred between December 2018 and January 2019, relating to “the obtainment of a loan by fraudulent means”, and notes that the stated purpose of this loan was home renovation. Dr Yoxall went on to record that the appellant said she and her husband had to move from the investment property because the builder they contracted “failed to do the job” and that “made the house uninhabitable”. As a result they moved to rental accommodation, where they continued to live together, even though they had then separated, because of the extreme rental shortage. Dr Yoxall recorded that:“Ms Burman said that her marriage has been deteriorating over time since 2021 but has become increasingly challenging. She said that her husband has not provided her with any emotional or practical support. She said that this is distressing to her as she has previously supported him emotionally and practically when he faced charges, convictions and incarceration for unrelated offending.…Ms Burman said that her husband has perpetrated emotional and psychological abuse upon her, but not physical or financial abuse. She said that he makes ‘nasty’ comments to her which undermine her confidence, and wellbeing. She said that he refuses to engage with the children and rarely talks to them. She noted that he regularly forgets the childrens’ birthdays. She said that all organization and management of all activities of daily living for the children and the family group as a whole (including financial management, shopping, cooking, care for the home, school, medical and healthcare, transport, etc.) are all managed by her. She noted ‘Neville doesn’t know the first thing about most things that happen at home … I do it all’.”

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.