R v Burns

[2003] NSWCCA 278

CITATION:	R v Burns [2003] NSWCCA 278
HEARING DATE(S):	05/09/2003
JUDGMENT DATE:	5 September 2003
JUDGMENT OF:	Wood CJ at CL at 28, 30; Greg James J at 29; Howie J at 1
DECISION:	Application for leave to appeal is granted but the appeal is dismissed.
CATCHWORDS:	Criminal Law and Procedure - appeal against severity of sentences
LEGISLATION CITED:	Crimes Act 1900 - ss 99, 112(2), 195
PARTIES :	Regina v Belinda Jane Burns
FILE NUMBER(S):	CCA 60225/03
COUNSEL:	D. Frearson - Crown Applicant appeared in person
SOLICITORS:	S.E. O'Connor - Crown Applicant appeared in person

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/1036
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

60225/03

WOOD CJ AT CL
GREG JAMES J
HOWIE J

FRIDAY 5 SEPTEMBER 2003

REGINA v Belinda Jane BURNS

Judgment

1 HOWIE J: This is an application for leave to appeal against sentences imposed upon the applicant by his Honour Judge Bellear. The applicant stood trial before his Honour and a jury on an indictment containing three counts as follows:

Count 1: Aggravated break and enter of a dwelling house and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act.
Count 2: Demanding money with intent to steal, contrary to s 99 of that Act;
Count 3: Maliciously damaging property, contrary to s 195 of that Act.

2 On 13 September 2002 the applicant was convicted of each offence on the indictment. The applicant, therefore, became liable to a maximum penalty of 20 years imprisonment in respect of the first count, 10 years imprisonment for the second count and 5 years imprisonment for the third count.

3 On 21 March 2003 Judge Bellear sentenced the applicant in respect of the first count to 6 years imprisonment. He backdated the sentence to commence on 13 September 2002 the date upon which the applicant entered custody. His Honour specified a non-parole period of 3 years to expire on 12 September 2005. In respect of the other two counts, his Honour imposed fixed sentences of 2 years and 12 months respectively, both of those sentences to be served concurrently with the sentence imposed for the first count.

4 The applicant had stood trial with a co-offender, named Michael Traynor. He was charged with the same three offences and was also convicted of them by the jury. His Honour imposed upon Traynor the same sentences as he imposed upon the applicant.

5 On the Notice of Application for Leave to Appeal, the applicant, who is unrepresented on the hearing of this matter, stated that she believed that the sentence was manifestly excessive and severe and that Judge Bellear had dealt with her “rather harshly”. She has since filed written submissions setting out the basis upon which she claims that the sentence imposed upon her was too severe and has also addressed us this morning in amplification of the written submissions that she had sent to the Registry. I will deal with the particular matters she raises in the submissions shortly.

6 The facts giving rise to the offence of which the applicant was convicted can be stated briefly and are drawn from the sentencing remarks of Judge Bellear. In June 2001 the victim of the offences was living in a townhouse with her 10-month old child. She advertised for a female person to share her accommodation. The applicant answered the advertisement and shortly thereafter commenced living with the victim at a rent of $100. A condition of the applicant moving into the premises was that she pay a bond of $400 and two weeks rent. However, as she was unable to immediately meet these payments, an agreement was reached that she pay $300 the first week and a further $300 when she was paid.

7 Shortly after the applicant moved into the flat Traynor, who was then her boyfriend, started visiting the premises almost every day. On 3 July 2001 the victim complained to the applicant of receiving threatening phone calls from Traynor and indicated that he was no longer welcome at the townhouse. Later that day the victim asked the applicant to move out. This resulted in a heated confrontation between them during which the applicant demanded the return of her bond money. The argument concluded with the applicant storming out of the unit.

8 The next day, while the victim was watching television, she heard several loud bangs on the front security door. She went upstairs to look through a window and after returning downstairs heard further banging on the door. It was at this stage that Traynor opened the door and entered armed with a hockey stick, swung the weapon in the victim’s direction and struck her to the back of the head. He then pushed her causing her to fall on to the lounge. As the victim got up, she saw the applicant entering the room armed with a baseball bat. The applicant swung the bat at the victim hitting her on the left side of her left leg just below the knee. The applicant then demanded that the victim get her purse as they were going out to an establishment called Quix to obtain some money. The victim, however, refused to leave her child. The applicant again struck the victim this time on her left hand in the vicinity of her wrist. She said words to the effect of “If I am not going to get the money I am going to take $400 worth” and then commenced to smash items in the premises with the baseball bat. Traynor intervened to prevent the applicant from damaging further property and they left the unit. The serious offence alleged in the first count was an assault occasioning actual bodily harm to the victim.

9 The applicant and her co-offender denied that they had attended the victim’s premises on the night in question.

10 As a result of the attack upon her, the victim suffered an injury to her head that was described as extra-cranial soft tissue injury which did not cause any loss of consciousness or neck pain. The victim, however, complained of suffering headaches as a result. Clearly this injury resulted from the blow struck to her by Traynor. The victim also suffered soft tissue injuries to the left wrist and hand and left lower limb and a small scratch to the left little finger. Some of these injuries were a result of the attack upon her by the applicant. His Honour described the injuries as serious although there was no suggestion of any permanent damage.

11 Although the circumstance of aggravation alleged in the first count was that the applicant was armed with an offensive weapon, the base-ball bat, Judge Bellear took into account, as he was entitled to do, other circumstances of aggravation listed in s 105A of the Crimes Act and which were present when that offence was committed. These included that the applicant was in company, that corporal violence was used against the victim and that the applicant knew that the victim was in the premises when they entered it.

12 His Honour found that the applicant had shown no remorse whatsoever. Unlike her co-offender, the applicant continued to deny any wrongdoing on her part when interviewed by a Probation Officer for the purpose of preparing a pre-sentence report. In her written submissions to this Court, the applicant has admitted her involvement to the extent of damaging the victim’s property and expressed her shame and remorse for that behaviour. However, it is apparent that she is still attempting to minimise her criminality. She claims that she had no intention of assaulting the victim but that the victim stepped in the way as the applicant attempted to swing the baseball bat at the television.

13 In sentencing the applicant, his Honour noted that she had no prior criminal record but he was of the view that the offences were extremely serious and that general deterrence had to play a large part in the sentencing of the applicant and her co-offender. His Honour stated:

“The community demands that offences such as these must command penalties that tell others contemplating committing such offences that these offences are abhorrent to community standards and that they can expect little sympathy from this and other courts.”

Notwithstanding submissions made by the applicant today before us as to the fact that there was no requirement for his Honour to impose a sentence upon her by way of general deterrence, in my view, his Honour was clearly correct in his assessment of the role to be played by both general deterrence and denunciation in the determination of the appropriate sentence to be imposed upon the applicant and her co-offender. The offence was a serious example of its kind and required the imposition of a severe sentence notwithstanding that a strong subjective case was placed before the sentencing judge on the applicant’s behalf.

14 The applicant was aged 21 years at the time of sentencing and there was no suggestion that she had displayed violence to any person or property before committing these offences. She is the mother of a child now aged 15 and a half months and who was aged 12 months at the time the applicant appeared for sentencing. The father of the child is her co-offender. During the applicant’s remand in custody pending sentence the child had been in the care of different persons and at the time of sentence was with the applicant’s mother. In her written submissions the applicant concedes that Judge Bellear took this matter into account, but she contends that he did not give it enough weight. She points to the fact that on more than one occasion during his sentencing remarks his Honour referred to the child’s age as being 12 years rather than 12 months and asserts that this showed “a lack of understanding” on his Honour’s part.

15 It is clear from a reading of the transcript and the remarks that his Honour was well aware of the child’s true age and that he showed throughout the sentencing proceedings that he was conscious of the detrimental effect on the child of forced separation from the applicant and concerned to minimise it if he could. His Honour went so far as to make a recommendation that the applicant be admitted to an establishment within the prison system called Jacaranda House where there was at the time, and is currently, a programme accommodating prisoners with very young children. Although the applicant complained to us that his Honour made this recommendation and therefore appeared to take into account her need to be with her child after he had sentenced her it is the normal case that such a recommendation would be made after sentence was in fact imposed. The applicant states that this recommendation cannot be given effect because of the violent nature of the offence. But that is not of itself a ground for interfering with the sentence or a matter that this Court can address.

16 A pre-sentence report placed before his Honour disclosed that the applicant had a difficult up-bringing in what was described as a “dysfunctional family”. She had suffered a history of neglect and abuse both from her family and in other personal relationships in which she had been involved prior to the commission of the offences. However, she presented as a having a strong and independent character. Despite the fact that the applicant had received counselling in respect of the abuse from which she had suffered in her youth, the probation officer was of the view that the applicant could benefit from further professional assistance in that regard.

17 A psychological report, which was in evidence, dealt in detail with the applicant’s unfortunate background to which it is unnecessary to refer for the purposes of determining this appeal. The applicant was found to rank highly on intelligence tests administered to her but personality testing indicated that she felt isolated and had low self-esteem. The psychologist concluded that she required on-going counselling to address these problems. It was recommended that the applicant attend an anger management course in order to learn how to deal with conflict more effectively.

18 Judge Bellear found that there were special circumstances by reason of a combination of matters subjective to the applicant including the need for her to be reunited with her child as soon as possible. As a result his Honour reduced the non-parole period to one of three years, which, on its face, is the least period of imprisonment that could reasonably reflect the seriousness of the offence and the need for general deterrence.

19 The applicant has submitted that his Honour made some factual errors that affected his assessment of both the objective seriousness of the offence and her role in it. She complains that his Honour stated that the victim’s child was in the lounge room at the time of the assault whereas the true situation was that it was upstairs. I see no substance in this complaint. The only relevant matter so far as the child was concerned was its presence in the house at the time the victim was assaulted not where in the house it was. In any event it was not a matter that his Honour relied upon as an aggravating factor and it cannot reasonably be assumed that the error could have affected his Honour’s assessment of the applicant’s criminality or the appropriate sentence to reflect it.

20 The applicant also disputes that the attack was as serious as his Honour found it to be. She sets out in her written submissions the injuries suffered by the victim in support of this contention although she fails to refer to the injury to the head. Although, as I have indicated, that injury was occasioned by the blow administered by Traynor, this was a joint criminal enterprise to attack the victim with weapons and the applicant bears criminal responsibility for all the injuries inflicted during it. In any event, it was a matter for the trial judge to determine the facts and there has been no reason shown for this Court to interfere with his findings in this regard. But whether the applicant struck the victim once or more than once is of no great moment in light of the violent activity in which she and her co-offender were involved.

21 The applicant takes issue with Judge Bellear’s finding that she was the main instigator in the attack upon the victim. His Honour’s reasons for forming that opinion were that the applicant had been staying at the house, that she paid the bond money and wanted it back, and that she had been described as the dominant person in her relationship with Traynor. This last matter appears to have come from the pre-sentence report in respect of Traynor and was thus not admissible against the applicant. In my view that finding could not be used by the judge to determine the facts upon which the applicant was to be sentenced.

22 The applicant has submitted that she and the co-offender should have been considered to have the same level of criminal responsibility for the offences. She refers to the fact that it was Traynor who made threatening phone calls to the victim which brought about the dispute between the victim and her, that it was Traynor who first entered the room and assaulted the victim and that he intervened to stop the applicant damaging more property which, the applicant submits, indicated his control over her. She also points to findings by the psychologist which, so the applicant contends, reveal that her personality was such that she would not have been the dominant person in her relationship with Traynor.

23 While there might be some merit in the applicant’s complaint about the basis upon which his Honour concluded that her level of culpability was greater than that of her co-offender, I do not believe that a finding that the applicant and the co-offender were equally culpable would have made any difference to the sentence imposed upon her. The applicant’s involvement in the offence included attacking the victim with the baseball bat, intentionally inflicting injuries upon her, demanding that she go with the applicant to obtain money and then, when she refused, proceeding to damage property of the victim until Traynor intervened. In any event, his Honour held that Traynor was “not that far down the ladder in culpability” and imposed the same sentence on him.

24 I do not believe that the applicant has any reasonable basis to complain about that result. I note that Traynor had a prior offence for inflicting harm for which he received a bond in 1998. But there were matters in Traynor’s favour not present in the applicant’s case. He had to some extent admitted the offences by the time he came to be sentenced and had expressed remorse and some insight into his behaviour. There were also psychiatric issues in Traynor’s case relevant to the assessment of the sentence to be imposed upon him. In my view there is no basis for this Court to interfere with the sentence imposed by Judge Bellear by reason of any of the factual findings he made and about which the applicant complains.

25 Finally, the applicant in her written submissions submitted that his Honour could not have given sufficient weight to her previous good character because she was not given the chance by way of a bond or suspended sentence to prove herself. She pointed to the fact that she had been on a lengthy period of bail and had always attended court hearings. The simple answer to that complaint is that the offence was so serious, however it might be described, that his Honour had no alternative but to impose a heavy sentence despite the applicant’s good record and the other subjective matters taken into account by him.

26 In my opinion there is no error shown in his Honour’s remarks on sentence or in the sentence actually imposed which would justify the intervention of this Court. The applicant claims that she is now remorseful and that steps have been undertaken, or can be undertaken on her release, to advance her rehabilitation. She has addressed the Court this morning on the basis that the twelve months that she has been in custody has acted as a deterrent to her ever involving herself in criminal activity again. Unfortunately for the applicant these matters cannot avail her in the absence of appealable error being shown. The impact of imprisonment upon the welfare of the applicant’s child and the difficulties that may be experienced by the applicant’s mother in caring for the child are not sufficiently exceptional so that they can be taken into account in reducing what is an otherwise appropriate sentence.

27 I propose that the application for leave to appeal be granted but that the appeal be dismissed.

28 WOOD CJ AT CL: I agree.

29 GREG JAMES J: I agree.

30 WOOD CJ AT CL: The order of the court will therefore be as proposed by Howie J.

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Last Modified: 10/09/2003