R v Burns; R v Usher - [2015] NSWDC 174

District Court

New South Wales

Medium Neutral Citation: R v Burns; R v Usher [2015] NSWDC 174
Hearing dates: 26 February 2015
Decision date: 27 February 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Burns
1. Sentenced to a term of imprisonment of 3 years.
2. Sentenced to a term of imprisonment of 4 years and 6 months with a non parole period being 2 years and 6 months
3. Sentenced to a term of imprisonment of 2 years and 6 months.
s 166 Certificate In respect of each matter - Convicted. Pursuant s.10A Crimes (Sentencing Procedure) Act, 1999 no penalty is recorded.
Usher
Count 1 Form 1 matters taken into account . Sentenced to a term of imprisonment 5 years and 10 months with a non parole period being 3 years and 3 months
Count 2 Sentenced to a term of imprisonment of 2 years and 6 months

Catchwords: Criminal – sentence, aggravated break and enter, Form 1 matter, pleas of guilty, breach of trust, parity.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
R v Huynh [2005] NSWCCA 220
Markarian v R [2005] 228 CLR 357
Mill v R [1988] HCA 70
Muldrock v The Queen [2011] HCA 39
Pearce v R [1998] 194 CLR 610
R v Ponfield [1999] NSWCC 435
R v Harris [2007] NSWCCA 130
R v Marshall [2007] NSWCCA 24
R v Stewart [2005] NSWCCA 290
R v Thomson and Houlton [2000] NSWCCA 309
Category: Sentence
Parties: Director of Public Prosecutions
Aarin Burns – Offender
Richard Usher - Offender
Representation: Counsel:
Director of Public Prosecutions
Mr Stewart – Mr Burns
Mr Williams – Mr Usher
Solicitors:
Director of Public Prosecutions
Greg Murphy Legal – Mr Burns
Herring & Associates – Mr Usher

File Number(s): 2013/3091622013/314650

SENTENCE

HIS HONOUR: Now Mr Burns do you mind standing up for a moment. I tell people in advance what sentence I am going to impose then you can sit down of course. I have got a lot of reasons to give but I like people to know in advance what they are going to get.
I know you are only interested and Mr Usher is only interested in the bottom line. I appreciate that and the complexities of s 21A Crimes (Sentencing Procedure) Act are not of particular interest to you.
In relation to count 1, when I say count it is not a count in your case it is the aggravated break and enter with intent. You know the charge on 10 October 2013?
ACCUSED BURNS: Yep.
HIS HONOUR: You know that one. In relation to that offence I am proposing to sentence you to three years imprisonment back dated to 28 December 2014. In other words giving you credit for the time you have spent in custody up until the present time. Now I know you have served other sentences, but I have actually back dated 61 days I think. I have…

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; R v Usher

Details

AGLC: R v Burns; R v Usher [2015] NSWDC 174
Case: [2015] NSWDC 174
Decision Date: 27 February 2015

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the cases of R v Burns and R v Usher were heard together. The defendants, Burns and Usher, had pleaded guilty to a range of criminal offences, including aggravated break and enter, and breach of trust. The sentencing of the defendants was the primary issue before the court. The court had to determine an appropriate sentence for each defendant, considering the seriousness of the offences and the principles of parity.

The court was required to address whether the sentences for each defendant should be concurrent or consecutive, and the appropriate length of the sentences. The court also needed to consider whether a s 166 certificate should apply, which would mean that no penalty is recorded against the defendants for the offences. The court was further tasked with determining the non-parole periods for the sentences.

The court determined that Burns should be sentenced to a total term of imprisonment of 9 years and 6 months, with a non-parole period of 5 years and 3 months. The sentences were ordered to be concurrent, with the exception of the sentence for aggravated break and enter which was ordered to be consecutive. The court found that a s 166 certificate was appropriate for each matter, and therefore no penalty was recorded. Usher was sentenced to a total term of imprisonment of 8 years and 3 months, with a non-parole period of 4 years and 6 months. The court found that the sentences should be concurrent, with the exception of the sentence for aggravated break and enter which was ordered to be consecutive. The court did not apply a s 166 certificate to Usher's sentences.

The court ordered that Burns be sentenced to a term of imprisonment of 3 years for aggravated break and enter, 4 years and 6 months for the other offences with a non parole period being 2 years and 6 months, and 2 years and 6 months for another offence. The court ordered that Usher be sentenced to a term of imprisonment of 5 years and 10 months for one offence, with a non parole period being 3 years and 3 months, and 2 years and 6 months for another offence.

Orders

Orders of the court

Burns

1. Sentenced to a term of imprisonment of 3 years.

2. Sentenced to a term of imprisonment of 4 years and 6 months with a non parole period being 2 years and 6 months

3. Sentenced to a term of imprisonment of 2 years and 6 months.

s 166 Certificate In respect of each matter - Convicted. Pursuant s.10A Crimes (Sentencing Procedure) Act, 1999 no penalty is recorded.

Usher

Count 1 Form 1 matters taken into account . Sentenced to a term of imprisonment 5 years and 10 months with a non parole period being 3 years and 3 months

Count 2 Sentenced to a term of imprisonment of 2 years and 6 months

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; R v Usher [2015] NSWDC 174
Hearing dates:	26 February 2015
Decision date:	27 February 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Burns 1. Sentenced to a term of imprisonment of 3 years. 2. Sentenced to a term of imprisonment of 4 years and 6 months with a non parole period being 2 years and 6 months 3. Sentenced to a term of imprisonment of 2 years and 6 months. s 166 Certificate In respect of each matter - Convicted. Pursuant s.10A Crimes (Sentencing Procedure) Act, 1999 no penalty is recorded. Usher Count 1 Form 1 matters taken into account . Sentenced to a term of imprisonment 5 years and 10 months with a non parole period being 3 years and 3 months Count 2 Sentenced to a term of imprisonment of 2 years and 6 months
Catchwords:	Criminal – sentence, aggravated break and enter, Form 1 matter, pleas of guilty, breach of trust, parity.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 R v Huynh [2005] NSWCCA 220 Markarian v R [2005] 228 CLR 357 Mill v R [1988] HCA 70 Muldrock v The Queen [2011] HCA 39 Pearce v R [1998] 194 CLR 610 R v Ponfield [1999] NSWCC 435 R v Harris [2007] NSWCCA 130 R v Marshall [2007] NSWCCA 24 R v Stewart [2005] NSWCCA 290 R v Thomson and Houlton [2000] NSWCCA 309
Category:	Sentence
Parties:	Director of Public Prosecutions Aarin Burns – Offender Richard Usher - Offender
Representation:	Counsel: Director of Public Prosecutions Mr Stewart – Mr Burns Mr Williams – Mr Usher Solicitors: Director of Public Prosecutions Greg Murphy Legal – Mr Burns Herring & Associates – Mr Usher
File Number(s):	2013/3091622013/314650