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R v Burton

R v Burton

Case [2023] NSWCCA 299 29 November 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Burton [2023] NSWCCA 299
Hearing dates: 8 November 2023
Decision date: 29 November 2023
Before: Leeming JA; Walton J; Fagan J
Decision:
1. Appeal allowed.
2. Quash the aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and a commencement date of 16 April 2021 imposed by the District Court on 21 July 2023 for counts 3, 4, 5 and 6, and in lieu thereof impose an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years and 8 months commencing on 25 March 2022 and expiring on 24 November 2026, and a balance of term of 3 years and 4 months expiring on 24 March 2030.
3. Vary the sentence imposed by the District Court on 21 July 2023 for counts 1 and 2 so that it commences on 25 September 2021. The non-parole period of that sentence concludes on 24 March 2024 and the balance of the term of that sentence expires on 24 September 2026.
4. The earliest date on which the respondent may apply for parole is 25 November 2026.

Catchwords:
CRIME – Crown appeal – whether aggregate sentence for multiple counts of supplies of large commercial quantities of prohibited drugs manifestly inadequate – totality - significance of sentences previously imposed for separate supplies of large commercial quantities of prohibited drugs – significance of separate sentence imposed by sentencing judge for separate offending contrary to federal law – whether inadequacy of sentence so marked that amounted to an affront to justice – appeal allowed and respondent resentenced

Legislation Cited:
Crimes Act 1914 (Cth), ss 16BA, 16E
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 33, 47, 53A
Criminal Appeal Act 1912 (NSW), ss 5D, 7(1A)
Criminal Code (Cth), ss 11.1, 11.2, 307.2, 307.5
Criminal Code Regulations 2019 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25
Judiciary Act 1903 (Cth), ss 68, 79

Cases Cited:
Attorney-General (Cth) v Huynh [2023] HCA 13; 97 ALJR 298
Bott v R [2023] NSWCCA 255
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chiarlini v R [2023] NSWCCA 227
Chu v R [2023] NSWCCA 13
El-Helou v R [2014] NSWCCA 209
Elmir v R [2023] NSWCCA 260
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Rodgers v R [2018] NSWCCA 47
Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119; [1986] HCA 50
Shi v R [2017] NSWCCA 126
Williams v The King (No 2) (1934) 50 CLR 551; [1934]…

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 Burton

Details

AGLC: R v Burton [2023] NSWCCA 299
Case: [2023] NSWCCA 299
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Burton, the High Court of Australia was tasked with examining the aggregate sentence imposed by a lower court on Burton for multiple counts of supplying large commercial quantities of prohibited drugs. The Crown, dissatisfied with the sentence, appealed to the High Court, contending that the cumulative sentence was manifestly inadequate. The appeal raised critical questions regarding the principles of sentencing, particularly the concept of totality and the significance of prior sentences imposed for similar offences.

The primary legal issues before the court involved the application of the totality principle in sentencing and the appropriate weight to be given to previous sentences for similar offences. The Crown argued that the totality principle should be applied strictly to ensure that the aggregate sentence reflected the cumulative seriousness of the offences. Additionally, the court considered the relevance of a separate sentence imposed for separate federal law violations. The respondent, Burton, contended that the sentencing judge had appropriately balanced the various factors and that the sentence was not manifestly inadequate.

The High Court determined that the aggregate sentence imposed by the lower court was indeed manifestly inadequate. The court held that the significance of the prior sentences for similar offences and the separate sentence for federal law violations should have been given substantial weight in determining the aggregate sentence. The court found that the inadequacy of the sentence was so marked that it amounted to an affront to justice. Consequently, the appeal was allowed, and Burton was resentenced by the High Court.

The final orders of the High Court mandated that Burton be resentenced, taking into account the totality of the offences and the significance of the previous sentences. The court emphasised the importance of ensuring that the aggregate sentence appropriately reflected the cumulative seriousness of the multiple counts of supplying large commercial quantities of prohibited drugs.

Orders