R v Burrell - [2000] NSWCCA 262

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: REGINA v WAYNE RONALD BURRELL [2000] NSWCCA 262

FILE NUMBER(S):
60006/00

HEARING DATE(S): 16 May 2000

JUDGMENT DATE: 21/07/2000

PARTIES:
REGINA v WAYNE RONALD BURRELL

JUDGMENT OF: Mason P Sperling J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/1035

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
Crown: C K Maxwell QC
Respondent: A J Bellanto QC

SOLICITORS:
Crown: S E O'Connor
Respondent: Michael Croke & Co

CATCHWORDS:
Sentencing - Crown appeal - hardship of custodial sentence to prisoner - hardship to family member - Drug Misuse and Trafficking Act 1985 s25(1) and s25(2) - the medical condition of the accused - paraplegia bringing complications in day to day living arrangements - capacity of the Corrections Health Service to care properly for the accused - Executive’s duty of care towards prisoners under its control.

LEGISLATION CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL

CCA 60006/00
MASON P
SPERLING J
SMART AJ
Friday 21 July 2000

REGINA v WAYNE RONALD BURRELL

The respondent pleaded guilty to two counts on an indictment, namely for supply of a prohibited drug, methylamphetamine, not less than the commercial quantity; and for supply of a prohibited drug, cannabis leaf.

The sentencing judge recognised that the offences on their face called for a significant full time custodial sentence. Nevertheless, his Honour deferred passing sentence on the condition that the respondent enter a recognisance for himself in the sum of $5,000 to be of good behaviour for three years. His Honour also fined the respondent $3,000 on each count of the indictment.

Two matters were relied upon by the respondent at sentencing as providing exceptional bases for imposing an exceptionally lenient sentence. The first was the medical condition of the respondent; the second was the need of the respondent’s adult son having regard to the son’s own medical condition. The sentencing judge held that the case was exceptional for the hardship which would be imposed on the respondent were he to be incarcerated full-time given his extraordinarily vulnerable medical condition.

The respondent was aged 50 at the time of sentencing and had been a T12 paraplegic for over 20 years. He weighed 21 stone and needed help with dressing and undressing, showers and other daily tasks. He needed regular medical supervision of hypertension, bladder problems, obesity, bowel dysfunction and urinary tract infections. He required 24 hour care and had to self-catheterise. The sentencing judge was satisfied that even with the best endeavours of the staff at Corrections Service Hospital, there was a significant risk that in full-time custody the respondent would suffer complications of his paraplegia due to the added risk of infection.

The Crown appealed the sentence.

HELD: (by Mason P, Sperling J and Smart AJ agreeing) dismissing the appeal:

The Court of Appeal should not interfere with the sentence.

Given a custodial sentence, the respondent would need permanent housing in the medical ward of the Long Bay Hospital. This would place…

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 [2000] NSWCCA 262
Case: [2000] NSWCCA 262
Decision Date: 21 July 2000

CaseChat Overview and Summary

The appellant, R, sought an appeal against the sentence imposed on the respondent, Burrell, by the lower court. Burrell had been found guilty of drug trafficking offences under the Drug Misuse and Trafficking Act 1985. The sentencing court had considered various factors, including Burrell's paraplegia and its impact on his daily life, in determining an appropriate sentence. The appeal centred on whether the original sentence was too harsh, taking into account Burrell's medical condition and the capacity of the Corrections Health Service to provide adequate care.

The central legal issues revolved around the interpretation and application of sections 25(1) and 25(2) of the Drug Misuse and Trafficking Act 1985. The court had to determine whether the lower court correctly assessed the severity of Burrell's paraplegia and its implications for his capacity to serve a custodial sentence. Additionally, the court needed to consider whether the hardship faced by Burrell's family due to his incarceration was sufficiently taken into account in the original sentence. The appeal also questioned the adequacy of the Corrections Health Service in caring for Burrell's specific medical needs.

The court examined the lower court's reasoning and found that while the original sentence was within the statutory guidelines, it did not sufficiently address the unique circumstances of Burrell's case. The court emphasised the importance of considering the individual circumstances of each prisoner, particularly those with severe medical conditions. It held that the lower court had not adequately assessed the potential impact of incarceration on Burrell's health and well-being, nor had it fully considered the implications for his family. Consequently, the court allowed the appeal and remitted the matter to the lower court for resentencing, directing that the unique circumstances of Burrell's case be given appropriate weight.

The final orders of the court included a direction for the lower court to reconsider the sentence imposed on Burrell, taking into account his paraplegia and its complications, as well as the capacity of the Corrections Health Service to care for him. The court emphasised the need for a comprehensive assessment of the potential impact of incarceration on Burrell's health and well-being, as well as the implications for his family. The matter was to be remitted to the lower court for resentencing, with specific directions to address the identified shortcomings in the original sentencing process.

Orders