R v Burner

Case [2015] SASCFC 133

Supreme Court of South Australia

(Court of Criminal Appeal)

R v BURNER

[2015] SASCFC 133

Judgment of The Court of Criminal Appeal

(The Honourable Acting Chief Justice Gray, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)

18 September 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Application for permission to appeal against sentence by the Director of Public Prosecutions.  The respondent was jointly charged on Information with the offences of aggravated serious criminal trespass in a place of residence and aggravated causing serious harm with intent.  The circumstances of aggravation were the use of weapons and being in company with another.  The respondent and his co-accused brutally assaulted the victim in the course of recovering a drug debt.  The victim was left with life-long mental impairment.  The respondent pleaded guilty to aggravated causing serious harm with intent.  The respondent initially indicated that he would contest the factual basis of the plea but ultimately agreed to be sentenced on the basis alleged by the prosecution.  The respondent had lengthy criminal antecedents but accepted responsibility for the offending.  He also co-operated fully with the authorities. The Judge sentenced the respondent to a term of imprisonment of two years and six months and fixed a non-parole period of one year and three months.

Whether the sentence was manifestly inadequate.  Whether the non-parole period was manifestly inadequate. 

Held per Gray ACJ (Kelly J and David AJ agreeing) (granting permission to appeal and allowing the appeal):

1.  The sentence was manifestly inadequate.

2.  The non-parole period was manifestly inadequate.

3.  Respondent resentenced to a term of imprisonment of four years and two months, with a non-parole period of two years and one month, to take effect from 7 January 2015.

Criminal Law Consolidation Act 1935 (SA) s 23(1), s 170 and s 352, referred to.
Cameron v The Queen (2002) 209 CLR 339; R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82; R v Koch [2015] SASCFC 31; R v Campbell [2012] SASCFC 44; R v Nemer (2003) 87 SASR 168; R v Franceschini [2015] SASCFC 116; R v Harkin (2011) 109 SASR 334; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Taylor [2015] SASCFC 132, considered.

R v BURNER
[2015] SASCFC 133

Court of Criminal Appeal:  Gray ACJ, Kelly J and David AJ

GRAY ACJ.

  1. This is a Crown appeal against sentence. 

    Introduction

  2. The defendant and respondent, Kevin Gordon Burner, was jointly charged on Information with Nathan James Taylor with the offences of aggravated serious criminal trespass in a place of residence[1] and aggravated causing serious harm with intent.[2]  It was alleged that, on 28 July 2012 at Henley Beach, Burner and Taylor entered the place of residence of DV…

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R v Burner [2015] SASCFC 133
Case
[2015] SASCFC 133
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions applied for permission to appeal against the sentence imposed on the respondent, R v Burner, in the Supreme Court of South Australia, Full Court. The respondent had pleaded guilty to aggravated causing serious harm with intent, arising from a brutal assault on a victim during an attempt to recover a drug debt. The circumstances of aggravation included the use of weapons and the respondent being in the company of another. The victim sustained severe injuries, including a traumatic brain injury, resulting in life-long mental impairment.

The court was required to determine whether the sentence imposed by the sentencing judge was manifestly inadequate, thereby justifying the granting of permission to appeal and allowing the appeal. This involved considering the seriousness of the offence, the aggravating factors, the respondent's extensive criminal antecedents, and any mitigating factors such as his acceptance of responsibility and cooperation with authorities. The court also had to consider the appropriate credit for time spent on home detention bail.

The Full Court reasoned that the sentencing judge had failed to adequately reflect the gravity of the offence and the need for deterrence, particularly given the extreme violence used and the devastating impact on the victim. The court noted that the respondent's prior convictions, especially for assault, precluded the leniency that might otherwise be afforded. Applying the principles established in *R v Franceschini*, the court determined that time spent on home detention bail should be credited against the head sentence.

Consequently, the court granted permission to appeal and allowed the appeal. The respondent was resentenced to a term of four years and two months imprisonment, with a non-parole period of two years and one month. The sentence was backdated to commence three months and three weeks prior to the defendant being taken into custody, effectively commencing on 7 January 2015.

Orders

Orders of the court

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Background

Background to the litigation

The Judge sentenced Taylor on the same day to a period of imprisonment of three years, two months and two weeks. The Judge fixed a non-parole period of one year, seven months and one week. The Director also sought permission to appeal against Taylor’s sentence.[3][3] R v Taylor [2015] SASCFC 132.The Facts As earlier noted, Burner pleaded guilty to the offence of aggravated causing serious harm with intent. The circumstances of aggravation were that offensive weapons, namely a large pair of ornamental scissors and a hammer, were used in the attack and that Burner was in the company of another, namely Taylor, at the time of the offence. In the early hours of 28 July 2012, Burner and Taylor attended the home of the victim in suburban Adelaide in an attempt to recover what was claimed to be a debt. When the victim’s responses were unsatisfactory, Burner and Taylor seriously assaulted him, intending to do him serious harm. The fact that violence and weapons were used and the fact that they were in company with each other were matters of aggravation which call for a sentence which includes a significant component for deterrence. The offence is an extremely serious one, as evidenced by the maximum penalty of 25 years’ imprisonment. The force used and the brutality of the assault are evidenced by the injuries inflicted. The victim sustained a traumatic brain injury with skull damage. He has ongoing memory problems and suffers a degree of cognitive impairment. The speed at which he is able to process information has reduced and he suffers from cognitive fatigue. He sustained lacerations and bruising to his head. His head injuries have left an obvious contour defect. Further physical injuries included fractures to his ribs and spine. He also sustained a pneumothorax of the lung. Apart from these injuries, the impact of the offending on the victim and his family was pervasive. The victim has ongoing feelings of fear for his personal safety. His capacity to work as a hairdresser has been compromised. He is easily tired in the course of completing day-to-day tasks as a result of the brain injury which he sustained. He now lives with his sister, who assists him with day-to-day tasks. Burner has extensive criminal antecedents. In 2006, when a young offender, he committed the offence of assault occasioning actual bodily harm. He committed a further offence of aggravated assault without a weapon against a police officer in 2012. His other antecedents included offences of dishonesty, drug offending, road traffic offending and failure to comply with bail agreements. These antecedents, in particular the offences of assault, preclude the leniency that may otherwise be afforded to a first offender. At the time of sentencing, Burner was aged 39 years. He spent his early years in rural Australia. When aged 10 years, his parents separated. His mother’s new partner was an aggressive alcoholic who physically assaulted him. He had a limited education, spending only two years at high school, leaving at the age of 14 years. He left home when aged 17 years and travelled interstate. He later returned to South Australia. He has a poor employment history, particularly following the development of a dependence on methylamphetamine. According to a psychological report, the defendant has a behaviour pattern of irritability, argumentativeness and reduced impulse control while drug dependant. He was described by the psychologist as having a stimulant use disorder and his prospects of rehabilitation were dependent upon counselling and the avoidance of further substance abuse.The Application for Permission to Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY ACJ
Following his arrest, Burner spent three months and three weeks in custody and was then released on home detention bail for a period of two years and four months. In Franceschini,[13] this Court considered that there was no power to backdate a sentence to reflect time spent on home detention bail – whatever credit was to be given should be made against the head sentence to be imposed. In this matter, I would make an allowance of four months on this account and, as a result, the head sentence should be reduced from four years and six months to four years and two months. I would reduce the non-parole period to two years and one month. Further, that sentence should commence three months and three weeks prior to the defendant being taken into custody when sentenced. Accordingly, the sentence of four years and two months imprisonment should take effect from 7 January 2015.[13] R vFranceschini [2015] SASCFC 116.Conclusion I would grant permission to appeal and allow the appeal. I would resentence the defendant to a term of four years and two months’ imprisonment. I would fix a non-parole period of two years and one month. The sentence should be taken to have commenced on 7 January 2015. KELLY J: I agree with the orders proposed by Gray ACJ and with his reasons. DAVID AJ: I would allow the appeal for the reasons given by Gray ACJ and agree with the orders he proposes.

Ratio Decidendi

Legal Principle Established

Established by: GRAY ACJ

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