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:

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:

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.

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.

His Honour approached the sentencing task carefully, allocating particular sentences to particular offences and then seeking to mitigate the overall…

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.

Keep reading for free

Create a free CaseChat account to read Shaun Michael Burke v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] ACTCA 12
Decision Date: 9 May 2007

CaseChat Overview and Summary

Shaun Michael Burke appealed to the Court of Appeal of the Supreme Court of Tasmania against sentences imposed upon him. The appeal concerned the perceived severity of the sentences for the offences committed, with the appellant arguing that the sentences were at the upper end of the discretionary range available to the sentencing judge. The primary ground of appeal, however, focused on an alleged error in relation to the commencement date of the non-parole period.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred in fixing the commencement date of the non-parole period. While the appellant contended the sentences were severe, the court's focus was on the specific error identified concerning the calculation and commencement of the non-parole period.

The Court of Appeal found that the sentencing judge had made an error in determining the commencement date of the non-parole period. The court reasoned that the non-parole period should have commenced earlier than ordered. Consequently, the court set aside the original order regarding the non-parole period and substituted a new order. The new order stipulated a non-parole period of 25 years, commencing from 10 March 2006 and concluding on 9 March 2031, thereby adjusting the commencement date as identified in the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.