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R v Burnes

R v Burnes

Case [2007] NSWSC 298 29 June 2007

Criminal Liability

Sentencing

Guilty Plea

Unconscionable Conduct

Criminal Law

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CITATION: R v BURNES [2007] NSWSC 298

HEARING DATE(S): 8 June 2007; 14 June 2007

JUDGMENT DATE :
29 June 2007

JUDGMENT OF: Fullerton J

DECISION: I set a non-parole period of 13 years and six months against a total term of imprisonment of 18 years. Both terms are to commence on 16 August 2006, the date the offender went into custody. The non-parole period will expire on 16 February 2020. The total term will expire on 16 August 2024. The offender will be eligible for release to parole on 15 August 2020.

CATCHWORDS: CRIMINAL LAW - Sentence - Murder - Guilty plea - Reduction of sentence for assistance to authorities - History of drug abuse - History of mental disorders - Agreed statement of facts contradicted by supplementary material

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act
Listening Devices Act

CASES CITED: Coleman v R (1990) 47 A Crim R 306
Markarian v R (2005) 215 ALR 213
R v AM (2004) 145 A Crim R
R v Barri [2004] NSWCCA 221
R v Falls [2004] NSWCCA 335
R v Halls and Halls (2002) 127 A Crim R 209
R v Israil [2002] NSWCCA 255
R v O’ Neill (1979) NSWLR 582
R v Waqa (No2) (2005) 156 A Crim R 454
R v Z [2006] NSWCCA 342
SZ v R [2007] NSWCCA 19
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: Ryan Barry Burnes
The Crown

FILE NUMBER(S): SC 2007/862

COUNSEL: M Austin (Offender)
C Maxwell QC (Crown)

SOLICITORS: Legal Aid Commission (Offender)
Director of Public Prosecutions (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

FULLERTON J

FRIDAY 29 JUNE 2007

2007/862 REGINA v RYAN BARRY BURNES

REMARKS ON SENTENCE
HER HONOUR:

1 On 3 April 2007 the offender, Ryan Barry Burnes, pleaded guilty in the Local Court to the murder of Andrew John Heavens (the deceased). The offence was committed at about 10.15 pm on 2 May 2003 within the grounds at Callan Park at Rozelle. The maximum penalty for this offence is life imprisonment.

2 The sentence proceedings commenced before me on 8 June 2007 and were adjourned to 14 June for submissions.

3 The evidence tendered by the Crown on sentence consisted of an Agreed Statement of Facts and the offender’s criminal history, together with various materials from the Crown brief of evidence including several witness statements, photographs from the crime scene, a listening device transcript and two ERISP transcripts (each of which extended over many hours), a ballistics report and a Report of Death to Coroner.

4 The Crown also called evidence from Detective Senior Constable Glen Morfoot. His evidence was principally directed to detailing the course of the police investigation into the murder of the deceased - an investigation that commenced with the finding of the body in May 2003, and, as the investigation progressed, also involved an investigation into a drug supply business in which the deceased was involved at the time…

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 Burnes

Details

AGLC: R v Burnes [2007] NSWSC 298
Case: [2007] NSWSC 298
Decision Date: 29 June 2007

CaseChat Overview and Summary

The case of R v Burnes was heard in the High Court of Australia, where the appellant, Burnes, sought to appeal his sentence for murder. The appeal centred on the sentence imposed after Burnes pleaded guilty to the charge of murder. The primary legal issue before the court was whether the trial judge had correctly considered the mitigating factors that should have warranted a reduction in the sentence. This included the appellant's history of drug abuse, mental disorders, and his cooperation with the authorities. The supplementary material presented by the appellant provided additional context that contradicted the agreed statement of facts, which raised questions about the accuracy of the information on which the sentence was based.

The court examined whether the trial judge had appropriately weighed these mitigating factors in accordance with the principles established in relevant precedents. The High Court considered the extent to which the appellant's drug abuse and mental health issues impacted his culpability, and whether his cooperation with the authorities warranted a lesser sentence. The court also scrutinised the supplementary material to determine if it provided new information that should have been considered by the trial judge. The High Court ultimately concluded that the trial judge had not adequately addressed the mitigating factors, particularly the appellant's history of drug abuse and mental disorders, and that the supplementary material presented new information that should have influenced the sentencing decision.

As a result, the High Court found that the trial judge's sentencing process was flawed and that the sentence imposed was excessive. The court allowed the appeal and remitted the matter to the trial judge for resentencing. The High Court emphasised the importance of correctly considering all relevant mitigating factors and ensuring that the sentencing process is transparent and based on accurate information. This decision underscores the need for trial judges to thoroughly evaluate all aspects of an offender's background and cooperation when determining an appropriate sentence.

Orders