R v Burns - [2019] NSWDC 162

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v BURNS [2019] NSWDC 162
Hearing dates: 5 April 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence - seven years imprisonment. Non-parole period of four years and two months. To commence on 14 March 2018 and expire on 13 May 2022.

Catchwords: SENTENCING — Relevant factors on sentence – police pursuit – multiple break enter offences – accessory to armed robbery – Form 1 matters – a life of few advantages – multiple victims – no concern for victims – no concern about likelihood of arrest – community cost of offending – backdating sentence – offences committed while on parole – application of totality principle – accumulation and concurrence – background of deprivation – special circumstances – aggregate sentence.
Legislation Cited: Crimes Act (NSW) 1900
Criminal Procedure Act 1986
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Callaghan v R [2006] NSWCCA 58
R v Clinch (1994) 72 A Crim R 301
R v Elliott and Blessington [2006] NSWCCA 305
Green v The Queen (2011) 244 CLR 462
JM v R [2012] NSWCCA 83
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen (1998) 166 CLR 59
MAK v R [2006] NSWCCA 381
Ponfield [1999] 48 NSWLR 327
Simpson [2011] NSWCCA 534; (2001) 53 NSWLR 704
Slade v The Queen [2005] NZ CA 19
Category: Sentence
Parties: Jake Terence Burns (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms C Doosey (for the offender)
Solicitors:
Johnston Legal (for the offender)
Ms J Walshe (For the Director of Public Prosecutions)

File Number(s): 2017/00344855; 2018/00058701

Judgment – Ex Tempore Revised

Jake Burns was born in 1996. He had few, if any, of the advantages that most in our community expect to be given to a young man. His mother had significant problems, his father spent, and continues to spend, time in gaol. Burns was before the Children's Court for the first time when he was 15 or 16 in 2012. Breaches of Children's Court orders led to him being in juvenile detention for periods. He first went to gaol in January 2015. He was released in September 2016 but within three months was back in gaol serving a sentence which commenced in January 2017. He was released to parole on 8 October 2017. One of the conditions of his parole was that he stays in Wagga.
Burns acknowledges that it would have been a good thing if he had stayed there but he came to Wollongong. Although he continued to meet his parole appointments, he was by that time using methylamphetamine and within a very short period of time hanging out with others who had no respect for the community, for others' property or frankly, for themselves. He started committing offences, to which I will soon refer,…

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 162
Case: [2019] NSWDC 162
Decision Date: 05 April 2019

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Burns involved the sentencing of the defendant, who had been found guilty of various criminal offences including break and enter, armed robbery, and resisting arrest. The defendant's criminal conduct included a high-speed police pursuit, multiple break and enter offences, and being an accessory to armed robbery. The court was required to consider a range of factors in determining the appropriate sentence, including the defendant's background, the impact of his offending on the community, and the totality principle.

The primary legal issue before the court was the appropriate sentence to impose on the defendant, taking into account the various aggravating and mitigating factors present in the case. The court considered the defendant's background of deprivation and the impact this had on his offending, as well as the significant harm caused to multiple victims. The court also considered the defendant's lack of concern for his victims and the community, as well as his disregard for the likelihood of arrest. The totality principle was also considered, with the court determining that an aggregate sentence was appropriate due to the accumulation and concurrence of the defendant's offences.

The court found that the appropriate sentence for the defendant was an aggregate sentence of seven years imprisonment, with a non-parole period of four years and two months. The sentence was to commence on 14 March 2018 and expire on 13 May 2022. The court emphasised the need to protect the community and to impose a sentence that reflected the seriousness of the defendant's offending. The court also considered the impact of the sentence on the defendant's background and the special circumstances present in the case.

The final orders of the court were that the defendant be sentenced to an aggregate term of imprisonment of seven years, with a non-parole period of four years and two months. The sentence was to commence on 14 March 2018 and expire on 13 May 2022. The court emphasised the need to balance the various factors present in the case, and to impose a sentence that reflected the seriousness of the defendant's offending while also taking into account his background and the special circumstances of the case.

Orders

Orders of the court

Aggregate sentence - seven years imprisonment. Non-parole period of four years and two months. To commence on 14 March 2018 and expire on 13 May 2022.

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 162
Hearing dates:	5 April 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence - seven years imprisonment. Non-parole period of four years and two months. To commence on 14 March 2018 and expire on 13 May 2022.
Catchwords:	SENTENCING — Relevant factors on sentence – police pursuit – multiple break enter offences – accessory to armed robbery – Form 1 matters – a life of few advantages – multiple victims – no concern for victims – no concern about likelihood of arrest – community cost of offending – backdating sentence – offences committed while on parole – application of totality principle – accumulation and concurrence – background of deprivation – special circumstances – aggregate sentence.
Legislation Cited:	Crimes Act (NSW) 1900 Criminal Procedure Act 1986
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Callaghan v R [2006] NSWCCA 58 R v Clinch (1994) 72 A Crim R 301 R v Elliott and Blessington [2006] NSWCCA 305 Green v The Queen (2011) 244 CLR 462 JM v R [2012] NSWCCA 83 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1998) 166 CLR 59 MAK v R [2006] NSWCCA 381 Ponfield [1999] 48 NSWLR 327 Simpson [2011] NSWCCA 534; (2001) 53 NSWLR 704 Slade v The Queen [2005] NZ CA 19
Category:	Sentence
Parties:	Jake Terence Burns (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms C Doosey (for the offender) Solicitors: Johnston Legal (for the offender) Ms J Walshe (For the Director of Public Prosecutions)
File Number(s):	2017/00344855; 2018/00058701