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R v Burns

R v Burns

Case [2007] NSWCCA 228 23 July 2007

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New South Wales
Court of Criminal Appeal

CITATION: R v Burns [2007] NSWCCA 228

HEARING DATE(S): 23 July 2007

JUDGMENT DATE:
23 July 2007

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Harrison J at 3

EX TEMPORE JUDGMENT DATE: 23 July 2007

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Crown appeal against inadequacy of sentence – whether suspension of full time custodial sentence in absence of special circumstances appropriate for offences involving supply of prohibited drug – whether offender’s subjective features amounted to special circumstances warranting the imposition of some other sentence – subjective features include offender’s youth, previous good character, unlikelihood of re offending, contrition, early admission of guilt, voluntary cessation of criminal activity and confession to offence not otherwise likely to have been detected

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 3A, 12
Criminal Appeal Act 1912 - s 5D
Drug Misuse and Trafficking Act 1985 - s 25A(1)

CASES CITED: Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Dinsdale v The Queen (2000) 202 CLR 321
Elliott v Harris (No 2) (1976) 13 SASR 516
Griffiths v The Queen (1989) 167 CLR 372
Pearce v The Queen (1998) 194 CLR 610
R v Bacon (2000) A Crim R 28
R v Baker [2000] NSWCCA 85
R v Ceissman [2004] NSWCCA 466
R v Douglas [2007] NSWCCA 31
R v Hutton [2004] NSWCCA 60
R v Lopez [1999] NSWCCA 245
R v Wall [2002] NSWCCA 42
R v Zamagias [2002] NSWCCA 17

PARTIES: Regina (Appellant)
Adam Burns (Respondent)

FILE NUMBER(S): CCA 2007/1223

COUNSEL: W J Abraham QC (Crown)
H K Dhanji (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
S O'Connor, Solicitor for Legal Aid Commission of New South Wales (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/61/0005

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 30 April 2007 (date of sentence)

- 3 -

2007/1223

SPIGELMAN CJ
SIMPSON J
HARRISON J

REGINA v Adam BURNS

Judgment (Ex TEMPORE)

1 SPIGELMAN CJ: I agree with Harrison J.

2 SIMPSON J: I agree with Harrison J.

3 HARRISON J: The respondent pleaded guilty in the Local Court to one charge of supplying a prohibited drug on three separate occasions for financial or material reward contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (“the Act”). The offence was committed between 20 May 2006 and 6 June 2006. The drug was 3,4-methylenedioxymethylamphetamine, also known as "ecstasy". The maximum penalty for this offence is 20 years imprisonment and/or 3500 penalty units.

4 The respondent also pleaded guilty on indictment to a charge of knowingly take part in the supply of the same drug between January and June 2006, contrary to s 25(1) of the Act. The maximum penalty for this offence is 15 years imprisonment and/or 2000 penalty units.

5 A further charge of supplying a prohibited drug, that is to say, ecstasy, on 5 March 2006 was taken into account…

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 Burns

Details

AGLC: R v Burns [2007] NSWCCA 228
Case: [2007] NSWCCA 228
Decision Date: 23 July 2007

CaseChat Overview and Summary

The case of R v Burns involved the Crown appealing against the sentence imposed by the lower court. The defendant, Burns, had been convicted of supplying a prohibited drug and was sentenced to a term of imprisonment, which was suspended due to the offender's subjective features, including youth, good character, and lack of likelihood of reoffending. The Crown argued that the sentence was inadequate and that a full-time custodial sentence should have been imposed. The court was required to determine whether the suspension of a full-time custodial sentence in the absence of special circumstances was appropriate and whether the offender's subjective features amounted to special circumstances warranting the imposition of a different sentence.
The court considered the arguments presented by both parties and examined the relevant legal principles. The court noted that while the offender's subjective features were relevant in determining the appropriate sentence, they were not the only factors to be considered. The court also considered the seriousness of the offence, the need for deterrence, and the protection of the community. The court held that the lower court had erred in law in suspending the full-time custodial sentence without adequately considering the need for deterrence and the protection of the community. The court found that the offender's subjective features did not amount to special circumstances warranting the imposition of a different sentence. The court ordered that the sentence be set aside and that the offender be resentenced to a term of imprisonment.

The court's decision in R v Burns highlights the importance of considering all relevant factors in determining the appropriate sentence for an offender. While subjective features such as youth and good character may be relevant, they are not the only factors to be considered. The court must also consider the seriousness of the offence, the need for deterrence, and the protection of the community. The court's decision also emphasises the need for lower courts to adequately consider all relevant factors when imposing a sentence and to ensure that the sentence is appropriate in the circumstances of the case.

Orders