Regina v Burns

[1999] NSWCCA 88

CITATION:	Regina v Burns [1999] NSWCCA 88
FILE NUMBER(S):	CCA 60210/98
HEARING DATE(S):	16 April 1999
JUDGMENT DATE:	16 April 1999
PARTIES :	Regina v Stephen John Burns
JUDGMENT OF:	Grove J at 1; Bell J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/61/0201
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	W.G. Dawe, QC (Crown) J.C.Nicholson SC with E.W.H. Wilson (Applicant)
SOLICITORS:	R. Gray (Public Prosecutions) T.A. Murphy
CATCHWORDS:	Criminal Law and Procedure - Sentence - Aggravated Armed Robbery
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60210/98

GROVE J
BELL J

Friday 16 April 1999

REGINA v STEPHEN JOHN BURNS

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by his Honour Judge Patten in the Dubbo District Court on 8 April 1998. On that occasion the applicant pleaded guilty to two charges, a count of aggravated armed robbery (charged in the alternative to a different offence) and a count of possessing a shortened firearm. His Honour was asked to take into account on a schedule four further charges to which I will make some reference in due course.
2 The effective sentence imposed was a total of 12 years penal servitude. His Honour found special circumstances justifying extension of the additional term component of that sentence and ultimately it was constructed to consist of a minimum term of 8 years penal servitude. It has to be said that that is a very severe and significant sentence.
3 In brief, the facts are that in the early hours of the morning of 29 August 1997, a person aged 18 years of age was woken from his sleep by a knock on the front door. He was confronted by the applicant who was armed with a shortened .303 rifle. There was a demand for drug and the young man replied that there was none. He was then pushed in the chest with the rifle and hit on the head on a couple of occasions. At the point of the gun the victim was taken into several rooms of the house where the applicant collected valuables. There were further assaults during this activity. On one occasion the victim was ordered onto the lounge room floor and the rifle pushed against his cheek. The barrel slid down his face, damaging the skin. During the activity further threats were made to the victim. In the course of what was occurring, the rifle in fact discharged. Thereafter the applicant fled. It was said that various goods to the value of about $3,000 were taken.
4 It is appropriate to take some note of the subsequent arrest of the applicant. The victim himself identified the applicant to police and they executed a search warrant upon his home. He was not there at the time. In a nearby lane there was recovered an amount of the stolen property. It is said that the police also recovered a stolen video which had been sold to an associate of the applicant for $50 on that very morning.
5 There was a phone conversation, later in the day apparently, and the applicant indicated that he intended to give himself up. The police advised he should surrender, which he did.
6 Upon arrival at the police station, he was routinely asked to participate in an interview, but his response was, "You know what I did, I don't want to do an interview". There was some discussion then about the missing weapon and the applicant took police to a location where the weapon was found. It was loaded and there was ammunition with it.
7 I indicated I would make some reference to the matters on the schedule. It suffices to mention two of the offences in particular. The first was a matter of assault occasioning actual bodily harm with which was associated a matter of malicious damage to property. I say "associated" because they arose out of the same incident. It appears that the applicant and a companion were travelling in a motor vehicle and stopped to pick up a hitchhiker. The pair of them then commenced to attack the hitchhiker with a baseball bat or similar. They caused actual bodily harm to him. A motorist described as a good samaritan stopped in order to prevent further pursuit of the attack. The hitchhiker sought to enter the vehicle of the good samaritan. There was an apparent attempt to strike either the driver or the victim, but the blow with the bat struck the vehicle causing minor damage. I have elaborated upon this matter as it has been the subject of a submission in the course of this application.
8 The applicant relies upon five principal grounds and I should deal with them seriatim. The first matter argued on behalf of the applicant asserts that the learned sentencing judge fell into error in relation to his finding of an aggravating circumstance relating to the offence. In his remarks on sentence concerning the discharge of the firearm, he had said,
"Threats were made to the victim, in the course of which the firearm was discharged into the floor. There may be some doubt as to whether or not this was accidental. The probability is that it was not accidental and that it was done as a threat, but there is no suggestion that the weapon was discharged at the victim."

Later in his remarks, his Honour said,
"I take a very serious view indeed of persons who commit robberies while armed with any weapon, but particularly with a firearm and, more particularly, with one which is loaded and which, as in this case, is discharged during the course of the robbery. I regard that as very much an aggravating factor."

9 The argument is advanced that his Honour was bound to find any aggravating circumstance proved beyond reasonable doubt. As a matter of law, that is beyond argument and is not in contest.
10 What is in contest is whether, on a fair reading of those two matters together, his Honour has fallen into the error of taking into account as an aggravating factor a deliberate discharge of the weapon by the applicant. I do not read what his Honour has said as indicating that error at all. He has observed that he thought the probability was that the discharge was deliberate, but when he came to the aggravating factor, his reference clearly was to the circumstance that it was an aggravating factor to commit such an offence with a weapon which was in fact loaded because of the obvious risk. The risk fell due when the rifle discharged and his Honour recorded that fact. It was in my view an available aggravating matter for his Honour to find that there was a loaded weapon used in the offence. I am unpersuaded that error was demonstrated in relation to this ground.
11 The second ground advanced on behalf of the applicant relates to the offences on the schedule which I have mentioned. It is said that his Honour made an error in that he referred to the applicant having attempted to strike the driver of the vehicle, but in failing to hit him, caused the damage to the vehicle. It would seem from the police facts which were tended to his Honour that such a blow was in fact struck at the victim as distinct from the driver. The short statement of facts records:

"During the course of the assault, the victim has attempted to flee into a vehicle which had stopped to assist him and the defendant has struck the vehicle with a baseball bat, causing a dent to the rear passenger side door."

12 In my view it is a matter of total inconsequence whether the blow was aimed at the victim or the good samaritan. If his Honour erred in finding the blow was aimed at the driver, it was, as I have said, not a matter of any consequence.
13 The next matter advanced on behalf of the applicant concerned the weight that needed to be given to the applicant's plea of guilty and cooperation with authorities. The matter of evaluation is a matter for the trial judge. It was contended that his Honour's finding of the Crown case was strong was a circumstance that was only made available by reason of the cooperation of the applicant, particularly in his assistance in locating the loaded weapon.
14 As I have mentioned, the victim was able to identify the applicant. It is true that the remarks made upon arrest were less than a full confession, but given the overall circumstances, including the finding of the proceeds of the robbery and the apparent ability of the police to locate one of the items sold that morning to an associate, I would not estimate the Crown case as anything other than strong. It is true that as a result of the cooperation of the applicant, the Crown case became virtually invincible, but, as I said at the outset, the evaluation of this worth was essentially a matter for the presiding judge and I am unable to perceive any error in his assessment.
15 The fourth matter advanced on behalf of the applicant related to the principle of totality. It was said by senior counsel for the applicant to be unusual to charge a person with aggravated armed robbery and a separate firearm offence. The outcome of the proceedings was that the sentencing judge imposed a term for the firearm offence which was totally absorbed in the minimum term of the more serious matter. However, it was argued that there was some implicit doubling up, as it were, in the procedure adopted by the Crown. I should record that the Deputy Senior Crown Prosecutor in response to these submissions indicated to the court that in his experience it was the Crown practice where shortened weapons were presented in such circumstances to charge the additional matter. It is not necessary for this court to enter upon a determination of the relative experiences of Senior Counsel. What this court must do is determine whether or not there is manifest error in either the approach or the assessment of the sentencing judge. In my judgment there is no such error to be seen.
16 The fifth and final matter argued on behalf of the applicant was that the sentence was in any event manifestly excessive. We were referred to various statistics extracted from the Judicial Commission records. It was observed that this sentence was, so far as the statistics demonstrate, at the very top of the range of sentences imposed.
17 It has to be observed, of course, that in relation to the aggravated armed robbery, the total term is less than half the statutory maximum prescribed. This was, however, as I observed at the outset, undoubtedly a very severe sentence. In my view, it was warranted. The facts were particularly serious and the principal matters taken into account in the schedule were by no means minor.
18 The question ultimately for this court on such a ground is whether or not there has been a miscarriage of sentencing discretion on the part of the sentencing judge. I am unable to perceive that. Whilst I believe the sentence is markedly severe, it is in my view within the range of a sound exercise of discretion. Because of the length of sentence, leave should be granted to appeal, but I would propose that the appeal be dismissed.
19 BELL J: I agree.
20 GROVE J: The order of the court therefore is that application for leave to appeal against sentence is granted but the appeal is dismissed.

**********

I certify that paragraphs 1 - 20
are a true copy of the reasons for
judgment herein of the
Honourable Mr Justice Grove and of the Court.

Associate: V.J. King
Date : 22 April 1999