Shaun Michael Burke v The Queen

[2007] ACTCA 12

SHAUN MICHAEL BURKE v THE QUEEN [2007] ACTCA 12 (9 May 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 41 - 2006
No. SCC 142 of 2006

Judges:         Crispin P, Gray and North JJ
Court of Appeal of the Australian Capital Territory
Date:            9 May 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 41 - 2006
  )          No. SCC 142 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHAUN MICHAEL BURKE

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Crispin P, Gray and North JJ
Date:  9 May 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The order of the Court is that Order 4 made on 11 October 2006 providing for a non-parole period of 25 years, 7 months and 1 day to end on 10 October 2031 be set aside and, in lieu thereof, it be ordered that there be a non-parole period of 25 years to commence from 10 March 2006 and conclude on the 9 March 2031.

IN THE SUPREME COURT OF THE       )          No. ACTCA 41 - 2006
  )          No. SCC 142 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHAUN MICHAEL BURKE

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and North JJ
Date:  9 May 2007
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is an appeal against the perceived severity of sentences imposed upon the appellant for a series of offences committed on various dates over an extended period.  It is, I think, unnecessary to set out in detail the particular acts that constituted each of the offences or to specify the sentences imposed in relation to each individual offence.  For present purposes, I think it sufficient to mention that a number of them involve very serious sexual assaults committed on young women in the privacy of their own bedrooms after the appellant had forced entry into their homes. 

1. The offences were very serious.  They were, his Honour found, the product of careful planning and premeditation, involving first committing property offences then taking property outside the homes, securing the escape route and then returning to the victims, in some cases with a rope, and in most cases with a knife obtained from within the premises, as well as with doonas and other items.  Whilst there had been some evidence as to the appellant’s use of illicit drugs, his Honour found that the offences did not bear the hallmarks of frenzied drug driven crimes.  His Honour found rather that they were crimes committed by a person who had pre-planned them and engaged in the relevant criminal acts because he enjoyed them.

1. His Honour approached the sentencing task carefully, allocating particular sentences to particular offences and then seeking to mitigate the overall severity of them in accordance with established principles.  Mr Salmon QC, who appears for the appellant, submitted that the arithmetic total of the individual sentences imposed would have amounted to 51 years, 7 months and 1 day, if calculated from the time of the appellant’s arrest though the true total would appear to have been even greater.  However, having regard to the principle of totality, his Honour reduced the overall affect of the sentences by 14 years to an effective overall sentence of 37 years, 7 months and 1 day.  His Honour proceeded to impose a non-parole period of 25 years. 

1. Mr Salmon argued that his Honour fell into error by failing to adequately take into account the fact that the appellant had pleaded guilty to these charges.

1. Courts have repeatedly stressed that a plea of guilty is an important factor which may result in a significant discount from the sentence that might otherwise have been appropriate.  There are several reasons for granting some leniency on this ground.  First, it may provide some evidence of contrition.  Second, it saves the community the time and expense of a trial.  Third, and this is particularly important in cases of this kind, it spares the victims the ordeal of having to come to court in order to provide a detailed account of the criminal conduct that was committed upon them.

1. In the present case, his Honour noted the requirement to take the plea of guilty into account and, if I may say so with respect, seemed to have applied the relevant principles in an impeccable manner.  His Honour explicitly stated that he intended to take the plea of guilty into account in determining the head sentence for the particular offences and, as he put it, “probably more significantly” in the manner in which the sentences would be accumulated.

1. Mr Salmon was forced to argue that the severity of the sentences and the manner in which they had been accumulated nonetheless demonstrated that his Honour had given insufficient weight to this factor.

1. I have carefully examined his Honour’s remarks and reviewed the sentences imposed for the various offences, but I am unable to find any evidence of any such error.  Accordingly, I would reject this contention.

1. Mr Salmon, in the alternative, argued that the totality principle had not been adequately applied.  Whilst acknowledging that there had been a significant reduction in the effective overall sentence that would otherwise have been imposed, he submitted that an even greater reduction had been necessary.  He argued, in essence, that the sentence that had been imposed upon the appellant was crushing. 

1. It must be said that the overall effect of the sentences is very severe.  On the other hand some of these offences were extremely serious and his Honour was obliged to take into account the overall level of criminality reflected in what was an appalling spate of criminal conduct extending over a long period of time.

1. In these circumstances, whilst the sentences were, in my opinion, at the upper end of the discretionary range available, I am not satisfied that any appealable error has been demonstrated, save in respect of the commencement date of the non-parole period.

1. Section 65 of the Crimes (Sentencing) Act 2005 (ACT) requires the commencement date and closing date of the non-parole period to be specified. His Honour indicated in his judgment that the first of the sentences was to commence on 10 March 2006, that being the date upon which the appellant was taken into custody. In relation to the non-parole period, however, his Honour initially said that it was to be for a period of 25 years but later said that the closing date of that period would be 11 October 2031. It seems to me, with respect, that there is an ambiguity in this respect in his Honour’s judgment. It also seems to me that his Honour fell into error in failing to comply with s 65 by not specifying the starting and finishing date of the non-parole period.

1. In the ordinary course of events the practice in this Court has been for non-parole periods to commence from the date upon which the sentence has been ordered to commence or, in the case of aggregate sentences, from the date upon which the first of those sentences has been ordered to commence.  In this case the first sentence effectively commenced on 10 March 2006.  Accordingly, whilst I am satisfied that the sentences imposed by his Honour were warranted by the gravity of the offences committed by the offender, I would nonetheless uphold the appeal to the very limited extent of setting aside his Honour’s order in relation to the non-parole period, re-imposing a non-parole period of 25 years but ordering that it commence from 10 March 2006 and end on 9 March 2031.

1. The order of the Court is that Order 4 made on 11 October 2006 providing for a non-parole period of 25 years, 7 months and 1 day to end on 10 October 2031 be set aside and in lieu thereof it be ordered that a non-parole period be imposed of 25 years to commence from 10 March 2006 and conclude on the 9 March 2031.

1. The appeal is otherwise dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour President Crispin.

Associate:

Date:     6 June 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 41 - 2006
  )          No. SCC 142 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHAUN MICHAEL BURKE

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and North JJ
Date:  9 May 2007
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I agree with the reasons given by the President for rejecting the substantive appeal in this matter. I too would allow the appeal for the purposes of correcting the non-parole period that has been imposed. I would point out that section 63(1) of the Crimes (Sentencing) Act requires a court to take into account any period which the offender has been held in custody and that the effect of the non-parole period that his Honour imposed, if it is to date from the date that he sentenced, namely 11 October 2006 would not give effect to that prescription. And I also note that section 65(3) of the Crimes (Sentencing) Act also contains a note relating to the start date of a non-parole to the effect that the sentence may be back dated to account for the time already held in custody in its reference to the non-parole period.

1. For those reasons I join in the order proposed by the President.

I certify that the preceding paragraphs numbered sixteen and seventeen (16-17) are a true copy of the Reasons for Judgment herein of his Honour Justice Gray.

Associate:

Date:     6 June 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 41 – 2006
  )          No. SCC 142 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHAUN MICHAEL BURKE

Appellant

AND:THE QUEEN

Respondent

Judges:  Crispin P, Gray and North JJ
Date:  9 May 2007
Place:  Canberra

REASONS FOR JUDGMENT

NORTH J:

1. I agree with the reasons expressed by the President and with the orders which he proposes that flow from those reasons.

   I certify that the preceding paragraph numbered eighteen (18) is a true copy of the Reasons for Judgment herein of his Honour Justice North.

   Associate:

   Date:     6 June 2007

Counsel for the Appellant:  Mr B J Salmon QC with Mr J Sabharwal
Solicitor for the Appellant:  Legal Aid Office (ACT)
Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  9 May 2007
Date of judgment:  9 May 2007