R v Burns - [2019] NSWDC 832

District Court

New South Wales

Medium Neutral Citation: R v Burns [2019] NSWDC 832
Hearing dates: 1 November 2019, 29 November 2019
Date of orders: 29 November 2019
Decision date: 29 November 2019
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
Sentenced to a term of imprisonment of 3 years and 3 months, to date from 1 March 2019 and to expire 31 May 2022.
I set a non parole period of 2 years, to expire 28 February 2021, on which date the offender will be eligible for release to parole.
Catchwords: CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Form 1 offences
SENTENCING — Aggravating factors — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Unlikely to re-offend — Remorse
SENTENCING — Relevant factors on sentence — Objective seriousness — Deterrence — General and specific deterrence — Multiple offences — Accumulation, concurrency and totality — General principles
SENTENCING — Subjective considerations on sentence — Special circumstances — Drug addiction
Legislation Cited: Crimes (Sentencing & Procedure Act) 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Abbas & Ors v R [2013] NSWCCA 115
Attorney General’s Application (No 1) (2002) 56 NSWLR 146
Callaghan v R [0206] NSWCCA 58
DPP v De La Rosa (2010) 79 NSWLR 1
Muldrock v The Queen (2011) 244 CLR 120
Markarian v The Queen [2005] HCA 25
R v Jarrold [2010] NSWCCA 69
R v Mueller [2015] NSWCCA 292
Veen v The Queen (No 2) (1988) 164 CLR 465
Watts v R [2007] NSWCCA 153
Category: Sentence
Parties: Regina (Crown)
James Alexander Burns (Offender)
Representation:
Counsel: B Barrack for offender
Solicitor:: M Solecki for Crown

File Number(s): 2018/00304831

Judgment

Introduction

The offender, born in 1987, is before the court for sentence for supply prohibited drug not less than the commercial quantity (1627.4 grams) of GBL, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (DMTA), for which the maximum penalty is 20 years, 3500 penalty units, or both, and the standard non-parole period is 10 years.
There is also a Form 1 which the offender asks me to take into account. The following appear on the Form 1 signed by the Solicitor for the DPP and the offender:-

Supply prohibited drug greater than the indictable and commercial quantity (201.1 grams cocaine);

Possess prohibited drug (.056 grams methylamphetamine);

Possess prohibited drug (150.4 grams testosterone);

Deal with proceeds of crime ($41,640);

Deal with suspected proceeds of crime ($2000 gift cards);

Possess prohibited drug (9.3 grams boldenone);

Possess prohibited drug (67.25 grams analogue of methandienone); and

Possess prohibited drug (47.73 grams stanozolol).

Evidence

Before me are five exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

A Charge Certificate dated 9 July 2018;

A Statement of Agreed Facts;

Court Attendance Notices (CANs);

Section 166 certificate;

A Form 1;

The offender’s criminal history;

The offender’s custodial history;

Breach of Parole documentation – Intensive Corrections Order (ICO); and

ICO…

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 [2019] NSWDC 832
Case: [2019] NSWDC 832
Decision Date: 29 November 2019

CaseChat Overview and Summary

In the case of R v Burns, the defendant was convicted of drug offences involving the supply of a prohibited drug in a commercial quantity. The matter was heard and determined in a court of law. The central issue for the court was to determine an appropriate sentence, considering the aggravating and mitigating factors, as well as the broader principles of sentencing relevant to the circumstances.

The court had to weigh various aggravating factors against mitigating ones. The aggravating factors included the breach of conditional liberty and the objective seriousness of the offence, which involved a commercial quantity of drugs. On the other hand, mitigating factors included the defendant's plea of guilty, his likelihood of rehabilitation, and his remorse. The court also considered the principles of deterrence, both general and specific, as well as the accumulation, concurrency, and totality of the offences.

After evaluating the evidence and arguments presented, the court found that the aggravating factors did not outweigh the mitigating factors. The defendant's plea of guilty, his prospects for rehabilitation, and his remorse were significant mitigating factors. The court determined that a sentence of imprisonment was necessary, but also set a non-parole period to ensure that the defendant would have an opportunity to demonstrate rehabilitation. The court sentenced the defendant to a term of imprisonment of 3 years and 3 months, with a non-parole period of 2 years. This sentence took into account the need for both punishment and the potential for the defendant's rehabilitation.

Orders

Orders of the court

Sentenced to a term of imprisonment of 3 years and 3 months, to date from 1 March 2019 and to expire 31 May 2022.

I set a non parole period of 2 years, to expire 28 February 2021, on which date the offender will be eligible for release to parole.

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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Medium Neutral Citation:	R v Burns [2019] NSWDC 832
Hearing dates:	1 November 2019, 29 November 2019
Date of orders:	29 November 2019
Decision date:	29 November 2019
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years and 3 months, to date from 1 March 2019 and to expire 31 May 2022. I set a non parole period of 2 years, to expire 28 February 2021, on which date the offender will be eligible for release to parole.
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Form 1 offences SENTENCING — Aggravating factors — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Unlikely to re-offend — Remorse SENTENCING — Relevant factors on sentence — Objective seriousness — Deterrence — General and specific deterrence — Multiple offences — Accumulation, concurrency and totality — General principles SENTENCING — Subjective considerations on sentence — Special circumstances — Drug addiction
Legislation Cited:	Crimes (Sentencing & Procedure Act) 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Abbas & Ors v R [2013] NSWCCA 115 Attorney General’s Application (No 1) (2002) 56 NSWLR 146 Callaghan v R [0206] NSWCCA 58 DPP v De La Rosa (2010) 79 NSWLR 1 Muldrock v The Queen (2011) 244 CLR 120 Markarian v The Queen [2005] HCA 25 R v Jarrold [2010] NSWCCA 69 R v Mueller [2015] NSWCCA 292 Veen v The Queen (No 2) (1988) 164 CLR 465 Watts v R [2007] NSWCCA 153
Category:	Sentence
Parties:	Regina (Crown) James Alexander Burns (Offender)
Representation:	Counsel: B Barrack for offender Solicitor:: M Solecki for Crown
File Number(s):	2018/00304831