R v Burns

Case [2007] NSWCCA 228


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

                          23 July 2007
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…

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R v Burns [2007] NSWCCA 228
Case
[2007] NSWCCA 228
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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