R v Burnham & McLean - [1999] QCA 99

99.99

COURT OF APPEAL
PINCUS JA DAVIES JA THOMAS JA
[Burnham] CA No 398 of 1998 [McLean] CA No 400 of 1998
THE QUEEN
v.
ANTHONY MICHAEL BURNHAM and

ALTHEA LISA McLEAN Applicants
BRISBANE
..DATE 25/03/99

250399 T5/TW12 M/T COA58/99

PINCUS JA: These two applicants, Burnham and McLean, were convicted of assault occasioning bodily harm in company. The applicant McLean was convicted after a trial. Burnham initially pleaded guilty, but then changed his mind and wished to plead not guilty. Evidence was given on an application to withdraw the plea and the Judge declined to accept that application.
Burnham has appealed against his conviction. That appeal has been withdrawn so that in each case all that is before us is an application for leave to appeal against sentence. Burnham was sentenced to five years and McLean to four years imprisonment; McLean's being cumulative upon a short sentence to which she was already liable.
The maximum penalty applicable in respect of each person was 10 years which was increased from seven years in 1997. The offences were committed in February 1998 so that the new maximum is applicable and that, in my view, makes a difference.
The sentencing Judge had the advantage of there being a trial in McLean's case and, with respect to Burnham, witnesses were called on sentencing because there were disputes of fact. So that, again, the question of the circumstances in which the offences were committed was litigated before His Honour.

250399 T5/TW12 M/T COA58/99

I shall quote some of what the Judge said as to his conclusions on the evidence. His Honour said:

"What you both engaged in was a savage, vicious and unprovoked beating. You both, in my view, were equally involved except that you, Burnham, started the assault. And I am satisfied had you not started it you, McLean, in all probability would not have become separately and individually involved in this offence. So to that extent your culpability, Burnham, is greater than yours, McLean."

His Honour then dealt with other matters and went on to
say :

"Mr McLachlan" - who was one of the witnesses - "has summed up the nature of the assault that you both engaged in in this way: 'Wheildon was - the police officer that was trying to do his duty.' 'Burnham took him on. There was a full on fight. Wheildon was copping a hell of a flogging, he was kicked by both (of you).'"

His Honour went on to say:

"It is in my view difficult to imagine a more serious instance of assault occasioning bodily harm in company where a weapon was not used. There must have been only millimetres between bodily harm and grievous bodily harm, and you were fortunate that you are not before me charged with causing grievous bodily harm.

You, Burnham, got into Sergeant Wheildon with steel capped boots. You, McLean, got into him with your shoes. The assault, on the evidence of Mr McLachlan, lasted for some four or five…

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 Burnham & McLean

Details

AGLC: R v Burnham and McLean [1999] QCA 99
Case: [1999] QCA 99
Decision Date: 25/03/1999

CaseChat Overview and Summary

The applicants in this case, Anthony Michael Burnham and Althea Lisa McLean, were convicted of assault occasioning bodily harm in company. Burnham initially pleaded guilty but later sought to withdraw his plea, a request that was declined by the trial judge. McLean was convicted after a trial. Both applicants have appealed against their respective sentences. The maximum penalty applicable for the offence was increased from seven years to ten years in 1997, making this the relevant maximum penalty for the offences committed in February 1998. The sentencing judge considered the circumstances of the assault, describing it as a savage, vicious, and unprovoked beating where both applicants were equally involved, except that Burnham initiated the assault. The judge found that the assault was particularly serious, with the victim, a police officer, suffering significant injuries including a comminuted blow-out fracture of the left orbital floor, a broken nose, nerve damage, and ongoing numbness and pain.

The legal issues before the court were whether the sentences imposed on the applicants were excessive and whether the court should reduce the sentences in light of the circumstances of the offence and comparable cases. The applicants argued that their sentences were too high, referencing the Court of Appeal's decision in the case of Kazakoff, where a four-year sentence was imposed despite the offender assaulting a police officer and causing severe injuries. The applicants submitted that their sentences, particularly Burnham's five-year sentence and McLean's four-year sentence, were disproportionate when compared to the Kazakoff case and other similar offences.

The court found that the sentences imposed on the applicants were indeed too high. While acknowledging the severity of the assault and the injuries caused to the victim, the court considered the sentences in light of the Kazakoff case and other comparable sentences. Pincus JA, delivering the judgment of the court, held that the sentences were outside the appropriate range and should be reduced to better accord with the Kazakoff case and other similar sentences. The court decided to reduce Burnham's sentence from five years to four years and McLean's sentence from four years to three years, thus granting the applicants' appeals and reducing their sentences.

Davies JA and Thomas JA concurred with the decision, resulting in the sentences being reduced as ordered.

Orders