R v Burrell - [2022] NSWDC 719

District Court

New South Wales

Medium Neutral Citation: R v Burrell [2022] NSWDC 719
Decision date: 02 December 2022
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
I sentence you to a non-parole period of one year to date from today to December 2022 and expire on 1 December 2023. There will be a balance of term on parole of one year and three months, to expire on 1 March 2025. The total term of the sentence is two years and three months. I direct your release to parole on 1 December 2023, being the expiry of the non-parole period.
The licence disqualification will be for one year, nine months and seven days. The starting term was three years, less the time already served, between 9 September 21 and 2 December 22, on disqualification.
In relation to the offence of drive with illicit drug present pursuant to s 10A, Crimes (Sentencing Procedure) Act, you are convicted with no further penalty. You are disqualified from driving in relation to that offence for the automatic period of six months.

Catchwords:
SENTENCING — Non-parole period

Legislation Cited:
CrimesAct1900 No 40
Crimes (Sentencing Procedure) Act1999 No 92
Road Transport Act 2013 No 18

Cases Cited:
Apulu v R [2022] NSWCCA 244
DPP Commonwealth v De La Rosa [2010] NSWCCA 194
RvWhite [2002] 55 NSWLR 252

Category: Sentence
Parties: Rex (Crown)
Tamika Burrell (Offender)
Representation: Counsel:
Mr J Macmillan (Crown)
Mr P Stitz (Offender)

File Number(s): 2021/00260273

sentence

HER HONOUR: Tamika Burrell, 25 years of age, appears before Gosford District Court for sentence in relation to one offence of dangerous driving, drive manner dangerous occasioning grievous bodily harm, an offence pursuant to s 52A(3)(c), Crimes Act. The maximum prescribed penalty for that offence is seven years’ imprisonment. There is no standard non-parole period. There is an automatic licence disqualification of three years and a minimum disqualification of 12 months.
The victim is Jeanie May Mallett, who was a passenger in the offender’s vehicle. The offending occurred on 2 May 2021.The offender is also being sentenced in relation to one offence on a s 166 certificate of drive vehicle with illicit drug present, an offence pursuant to s 111(1)(a), Road Transport Act. The maximum prescribed penalty for that offence is 20 penalty units. There is an automatic licence disqualification of six months and a minimum of three months.
The offender pleaded guilty on 21 June 2022 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%. The offender has spent no time in custody in relation to the offending.

THE CROWN MATERIAL ON SENTENCE

The Crown tendered the following material on sentence.
Exhibit A, a Notice of Committal, charge certificate; s 166 certificate; Agreed Facts; criminal history, showing a nil record; a s 257 Road Transport Act certificate; a report of Dr Thomas Rosenthal (occupational physician) 22 June 2022; and a victim impact statement dated 19 October 2022.

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 Burrell

Details

AGLC: R v Burrell [2022] NSWDC 719
Case: [2022] NSWDC 719
Decision Date: 02 December 2022

CaseChat Overview and Summary

The case of R v Burrell was heard in a lower court, where the defendant, Burrell, faced charges related to drug possession and driving with an illicit substance present. The court was tasked with determining the appropriate sentence for Burrell's criminal activities, including the calculation of the non-parole period and the overall term of imprisonment. Additionally, the court had to address the issue of driving disqualification periods associated with the convictions.

The primary legal issues before the court involved the sentencing principles applicable to Burrell's crimes and the determination of the non-parole period. The court needed to consider the nature and circumstances of the offences, as well as the principles of deterrence, rehabilitation, and protection of the community. Furthermore, the court was required to calculate the term of driving disqualification for each offence, taking into account statutory provisions and the automatic disqualification period for the relevant offence.

The court found that Burrell's actions warranted a sentence that balanced the need for punishment with the potential for rehabilitation. The non-parole period was set at one year, to expire on 1 December 2023, with a total term of imprisonment of two years and three months. The court also considered the driving disqualification periods, imposing a licence disqualification of one year, nine months, and seven days for the initial conviction, and an additional six months for the offence of driving with an illicit drug present. The court directed Burrell's release to parole on the expiry of the non-parole period, on 1 December 2023.

The court's final orders included a sentence with a non-parole period of one year, a total term of two years and three months, and a driving disqualification period of one year, nine months, and seven days, with an additional six-month disqualification for the drug-related driving offence. Burrell was to be released to parole on the expiry of the non-parole period, on 1 December 2023.

Orders

Orders of the court

I sentence you to a non-parole period of one year to date from today to December 2022 and expire on 1 December 2023. There will be a balance of term on parole of one year and three months, to expire on 1 March 2025. The total term of the sentence is two years and three months. I direct your release to parole on 1 December 2023, being the expiry of the non-parole period.

The licence disqualification will be for one year, nine months and seven days. The starting term was three years, less the time already served, between 9 September 21 and 2 December 22, on disqualification.

In relation to the offence of drive with illicit drug present pursuant to s 10A, Crimes (Sentencing Procedure) Act, you are convicted with no further penalty. You are disqualified from driving in relation to that offence for the automatic period of six 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 Burrell [2022] NSWDC 719
Decision date:	02 December 2022
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	I sentence you to a non-parole period of one year to date from today to December 2022 and expire on 1 December 2023. There will be a balance of term on parole of one year and three months, to expire on 1 March 2025. The total term of the sentence is two years and three months. I direct your release to parole on 1 December 2023, being the expiry of the non-parole period. The licence disqualification will be for one year, nine months and seven days. The starting term was three years, less the time already served, between 9 September 21 and 2 December 22, on disqualification. In relation to the offence of drive with illicit drug present pursuant to s 10A, Crimes (Sentencing Procedure) Act, you are convicted with no further penalty. You are disqualified from driving in relation to that offence for the automatic period of six months.
Catchwords:	SENTENCING — Non-parole period
Legislation Cited:	CrimesAct1900 No 40 Crimes (Sentencing Procedure) Act1999 No 92 Road Transport Act 2013 No 18
Cases Cited:	Apulu v R [2022] NSWCCA 244 DPP Commonwealth v De La Rosa [2010] NSWCCA 194 RvWhite [2002] 55 NSWLR 252
Category:	Sentence
Parties:	Rex (Crown) Tamika Burrell (Offender)
Representation:	Counsel: Mr J Macmillan (Crown) Mr P Stitz (Offender)
File Number(s):	2021/00260273