R v Burns; R v Corkery - [2020] NSWDC 530

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Burns; R v Corkery [2020] NSWDC 530
Hearing dates: 23 October 2019; 13 December 2019; 13 March 2020; 31 July 2020
Decision date: 31 July 2020
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Burns:
Sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 7 years and 6 months.
That sentence commenced on 13 November 2017 and will expire on 12 November 2027. The non-parole period will expire on 12 May 2025.
Corkery:
Sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 9 years.
That sentence commenced on 13 November 2017, and will expire on 12 November 2029. The non-parole period will expire on 12 November 2026.

Catchwords:
CRIME – Sentence – property, traffic law and violent crime offences – multiple counts of like offences – Form 1 matters - crime spree – degree of escalation of offending - Corkery on conditional liberty at time of offences an aggravating factor – destroy/damage property - dishonestly obtain property by deception– robbery in company– break, enter and steal – steal property from dwelling house – aggravated break, enter & steal - aggravated enter dwelling with intent to commit serious indictable offence, stealing, knowing persons there – learner not accompanied by driver/police officer - driver never licenced – steal motor vehicle - knowingly carried in stolen conveyance - take & drive conveyance – aggravated take vehicle, person on board in company - police pursuit – not stop drive manner dangerous – drive recklessly/furiously/ speed manner dangerous -use offensive weapon to resist arrest – throw missile at police – possess unauthorised firearm –objective seriousness – roles of offenders - subjective matters – aggregate sentences

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Road Transport Act 2013
Road Transport (Driver Licensing) Regulation 2017

Cases Cited:
Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518
BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA 37
Bullock v R [2016] NSWCCA 131
Callaghan v R [2006] NSWCCA 58
Pearce v The Queen [1998] HCA 57 at [45]; 194 CLR 610
Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190
R v Fernando [2002] NSWCCA 28
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Ibrahimi [2005] NSWCCA 153
R v MAK (2006) 167 A Crim R 159
R v McVittie [2002] NSWCCA 344
R v Millwood [2012] NSWCCA 2
R v Moffatt (1990) 20 NSWLR 114
R v Todd (1982) 2 NSWLR 517

Category: Sentence
Parties: Regina
Allan Burns
Zachary Corkery
Representation: Counsel:
Crown: Mr T Bailey
Defence (Burns): Ms G Lewer
Defence (Corkery): Ms C Mendes
Solicitors:
Crown: Mr A Thomas
Defence (Burns): Ms O Harris
Defence (Corkery): Mr J Weir

File Number(s): Burns: 2017/00343320; 2017/343346; 2017/343369; 2017/354817; 2018/009217; 2018/017092
Corkery: 2017/00343359; 2017/0032017/0034335443348; 2017/00343349; 2017/00343352; 2017/00343362; 2017/00343371; 2017/00354819; 2018/00009220; 2018/00020182; 2018/00042015; 2018/00042017; 2018/00042019; 2018/00059462

Judgment

The offender…

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.

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Details

Case: [2020] NSWDC 530
Decision Date: 31 July 2020

CaseChat Overview and Summary

In the case of R v Burns; R v Corkery, the Supreme Court of Victoria considered the sentences for two defendants, Burns and Corkery, who were involved in a series of serious offences. The offences included property damage, traffic law violations, and violent crimes. The court needed to determine the appropriate sentences for the defendants, taking into account the nature and circumstances of the offences, the degree of escalation, and the roles played by each offender. The court also had to consider the objective seriousness of the crimes, the subjective factors, and the aggregate sentences for the multiple counts of like offences.

The primary legal issues addressed by the court were the appropriate sentences for Burns and Corkery, considering the nature and extent of their involvement in the crime spree, the degree of escalation of their offending, and the aggravating factors present in the case. The court also had to consider the Form 1 matters and the roles of the offenders in the commission of the crimes. The court examined the objective seriousness of the offences, the subjective factors, and the aggregate sentences for the multiple counts of like offences.

The court found that the crimes committed by Burns and Corkery were of significant gravity and involved a degree of escalation. The court considered Corkery's conditional liberty at the time of the offences as an aggravating factor. The court also noted the dangerous and reckless nature of the crimes, including the use of offensive weapons and the resistance to arrest. In determining the sentences, the court considered the objective seriousness of the crimes, the subjective factors, and the roles of the offenders. The court concluded that an aggregate sentence was appropriate for each defendant, taking into account the multiple counts of like offences. The sentences imposed reflected the gravity of the crimes and the need to protect the community.

The final orders were that Burns was sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 7 years and 6 months, and Corkery was sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 9 years. Both sentences commenced on 13 November 2017.

Orders

Orders of the court

Burns:

Sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 7 years and 6 months.

That sentence commenced on 13 November 2017 and will expire on 12 November 2027. The non-parole period will expire on 12 May 2025.

Corkery:

Sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 9 years.

That sentence commenced on 13 November 2017, and will expire on 12 November 2029. The non-parole period will expire on 12 November 2026.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Burns; R v Corkery [2020] NSWDC 530
Hearing dates:	23 October 2019; 13 December 2019; 13 March 2020; 31 July 2020
Decision date:	31 July 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Burns: Sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 7 years and 6 months. That sentence commenced on 13 November 2017 and will expire on 12 November 2027. The non-parole period will expire on 12 May 2025. Corkery: Sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 9 years. That sentence commenced on 13 November 2017, and will expire on 12 November 2029. The non-parole period will expire on 12 November 2026.
Catchwords:	CRIME – Sentence – property, traffic law and violent crime offences – multiple counts of like offences – Form 1 matters - crime spree – degree of escalation of offending - Corkery on conditional liberty at time of offences an aggravating factor – destroy/damage property - dishonestly obtain property by deception– robbery in company– break, enter and steal – steal property from dwelling house – aggravated break, enter & steal - aggravated enter dwelling with intent to commit serious indictable offence, stealing, knowing persons there – learner not accompanied by driver/police officer - driver never licenced – steal motor vehicle - knowingly carried in stolen conveyance - take & drive conveyance – aggravated take vehicle, person on board in company - police pursuit – not stop drive manner dangerous – drive recklessly/furiously/ speed manner dangerous -use offensive weapon to resist arrest – throw missile at police – possess unauthorised firearm –objective seriousness – roles of offenders - subjective matters – aggregate sentences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Road Transport Act 2013 Road Transport (Driver Licensing) Regulation 2017
Cases Cited:	Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 BP v R [2010] NSWCCA 159 Bugmy v The Queen [2013] HCA 37 Bullock v R [2016] NSWCCA 131 Callaghan v R [2006] NSWCCA 58 Pearce v The Queen [1998] HCA 57 at [45]; 194 CLR 610 Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 R v Fernando [2002] NSWCCA 28 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Ibrahimi [2005] NSWCCA 153 R v MAK (2006) 167 A Crim R 159 R v McVittie [2002] NSWCCA 344 R v Millwood [2012] NSWCCA 2 R v Moffatt (1990) 20 NSWLR 114 R v Todd (1982) 2 NSWLR 517
Category:	Sentence
Parties:	Regina Allan Burns Zachary Corkery
Representation:	Counsel: Crown: Mr T Bailey Defence (Burns): Ms G Lewer Defence (Corkery): Ms C Mendes Solicitors: Crown: Mr A Thomas Defence (Burns): Ms O Harris Defence (Corkery): Mr J Weir
File Number(s):	Burns: 2017/00343320; 2017/343346; 2017/343369; 2017/354817; 2018/009217; 2018/017092 Corkery: 2017/00343359; 2017/0032017/0034335443348; 2017/00343349; 2017/00343352; 2017/00343362; 2017/00343371; 2017/00354819; 2018/00009220; 2018/00020182; 2018/00042015; 2018/00042017; 2018/00042019; 2018/00059462