SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Burge |
| Citation: | [2024] ACTSC 20 |
| Hearing Date: | 31 January 2024 |
| Decision Date: | 5 February 2024 |
| Before: | Christensen AJ |
| Decision: | See [90]. |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – dangerous driving – common assault – Drug and Alcohol Treatment Order cancelled – s 80ZH review - s 80ZD imposition or resentence – Bugmy principle – term of imprisonment – rehabilitation |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 35(4), 63, 80ZD, 80ZH Crimes Act 1900 (ACT) s 26 |
| Criminal Code (ACT) s 312 Criminal Code 1995 (Cth) s 132.8A | |
| Road Transport (Safety and Traffic Management) Act 1999 | |
| (ACT) s 7 | |
| Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
| Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 DPP v Makoi (No 3) [2023] ACTSC 337 | |
| Dunn v R [2023] NSWCCA 1 Hoskins v R [2021] NSWCCA 169 | |
| Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 R v BS-X [2021] ACTSC 160 R v Burge [2022] ACTSC 376 | |
| R v Hagen (No 2) [2023] ACTSC 386 R v Hagen [2022] ACTSC 362 | |
| R v Irwin [2019] NSWCCA 133 | |
| R v Tonna (No 2) [2020] ACTSC 362 | |
| Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 | |
| Texts Cited: | ‘Early Exposure to Alcohol and Other Drug Abuse’ in the Public |
| Defenders New South Wales (ed), The Bugmy Bar Book (November 2019) Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) Explanatory Statement, Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2023 (ACT) House of Representatives Standing Committee on Family and Human Services, Parliament of Australia, The Winnable War on Drugs: The Impact of Illicit Drug Use on Families (Final Report, September 2007) | |
| Parties: | Director of Public Prosecutions (Crown) Mark William Burge (Offender) |
| Representation: | Counsel |
| S Samuel (Crown) C Duffy (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions | |
| Legal Aid ACT (Offender) | |
File Number: | SCC 257 of 2021 SCC 258 of 2021 |
| CHRISTENSEN AJ: | |
| Introduction | |
| 1․ | Mark William Burge comes before the court for a decision as to what is to occur following |
| the cancellation of his Drug and Alcohol Treatment Order (Treatment Order). |
Background
| 2․ | Mr Burge was initially sentenced on 11 January 2022: see R v Burge [2022] ACTSC 376 |
| (R v Burge) for four offences committed on the afternoon of 11 December 2019 – |
(a) Aggravated burglary contrary to s 312 of the Criminal Code (ACT) (CAN 4691/2020);
(b) Dangerous driving as a repeat offender contrary to s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CAN 4692/2020);
(c) Damaging Commonwealth property contrary to s 132.8A of the Criminal Code 1995 (Cth) (CAN 4697/2020)
(d) Common assault contrary to s 26 of the Crimes Act 1900 (ACT) (CAN 10468/2021)
| 3․ | The original sentence imposed on Mr Burge involved a total term of imprisonment… |
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Details
- AGLC
- R v Tonna (No 2) [2020] ACTSC 362
- Case
- [2020] ACTSC 362
- Decision Date
CaseChat Overview and Summary
The respondent, Tonna, appeared before the Supreme Court of South Australia, where the Crown sought a review of the respondent’s Drug and Alcohol Treatment Order (DATO) and subsequent sentencing. The court was required to determine whether the cancellation of the DATO was appropriate and, if so, to impose a new sentence for the respondent’s convictions of aggravated burglary, dangerous driving, and common assault. The Crown contended that the DATO should be cancelled due to the respondent’s non-compliance, and that a custodial sentence was necessary for the protection of the community and to facilitate the respondent’s rehabilitation.
The court reviewed the respondent’s history of non-compliance with the DATO, which included missed appointments and failed drug tests. The respondent argued that his non-compliance was due to drug addiction and a lack of motivation, and that a non-custodial sentence would be more beneficial for his rehabilitation. The court considered the Bugmy principle, which requires that the gravity of the offence and the need for general deterrence be balanced against the offender’s prospects for rehabilitation. The court also considered the respondent’s personal circumstances, including his history of drug addiction and his potential for rehabilitation.
The court found that the respondent’s non-compliance with the DATO warranted its cancellation. However, the court also found that the respondent’s prospects for rehabilitation were significant, and that a non-custodial sentence would be appropriate. The court imposed a sentence of imprisonment for the aggravated burglary, but suspended the sentence and imposed a good behaviour bond for the dangerous driving and common assault. The court ordered that the respondent participate in a rehabilitation program and undergo regular drug testing. The court also ordered that the respondent be released on parole after serving two-thirds of the sentence for the aggravated burglary.
The court’s decision balanced the need for general deterrence and the gravity of the offences with the respondent’s prospects for rehabilitation. The court recognised that the respondent’s drug addiction was a significant factor in his offending behaviour, and that a non-custodial sentence would be more beneficial for his rehabilitation. The court’s decision also reflected the principles of the Bugmy case, which require that the sentencing process be balanced and proportionate. The court’s orders reflected these principles, by imposing a suspended sentence for the lesser offences and requiring the respondent to participate in a rehabilitation program.
The court reviewed the respondent’s history of non-compliance with the DATO, which included missed appointments and failed drug tests. The respondent argued that his non-compliance was due to drug addiction and a lack of motivation, and that a non-custodial sentence would be more beneficial for his rehabilitation. The court considered the Bugmy principle, which requires that the gravity of the offence and the need for general deterrence be balanced against the offender’s prospects for rehabilitation. The court also considered the respondent’s personal circumstances, including his history of drug addiction and his potential for rehabilitation.
The court found that the respondent’s non-compliance with the DATO warranted its cancellation. However, the court also found that the respondent’s prospects for rehabilitation were significant, and that a non-custodial sentence would be appropriate. The court imposed a sentence of imprisonment for the aggravated burglary, but suspended the sentence and imposed a good behaviour bond for the dangerous driving and common assault. The court ordered that the respondent participate in a rehabilitation program and undergo regular drug testing. The court also ordered that the respondent be released on parole after serving two-thirds of the sentence for the aggravated burglary.
The court’s decision balanced the need for general deterrence and the gravity of the offences with the respondent’s prospects for rehabilitation. The court recognised that the respondent’s drug addiction was a significant factor in his offending behaviour, and that a non-custodial sentence would be more beneficial for his rehabilitation. The court’s decision also reflected the principles of the Bugmy case, which require that the sentencing process be balanced and proportionate. The court’s orders reflected these principles, by imposing a suspended sentence for the lesser offences and requiring the respondent to participate in a rehabilitation program.
Orders
Orders of the court
See [90].
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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