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Supreme Court 29 June 2007

R v BURNES

[2007] NSWSC 298

HomicideDrugs
CRIMINAL LAW SENTENCE MURDER GUILTY PLEA HISTORY OF DRUG ABUSE HISTORY OF MENTAL DISORDERS

Citation: R v Burnes [2007] NSWSC 298
Court: Supreme Court of New South Wales
Date: 29 June 2007
Judge(s): Fullerton J

Background

The offender pleaded guilty to the murder of a man who was shot three times in the chest at Callan Park, Rozelle, late on 2 May 2003. The victim, who was involved in a heroin distribution operation, was found the following morning. Forensic and ballistic evidence, along with the offender's own admissions to police, established that he carried out the killing in an execution-style manner.

The offender was not arrested until 16 August 2006, when he made full admissions in a record of interview. He nominated his co-accused, with whom he had a close personal relationship since childhood, as the person who had solicited him to commit the murder. A co-accused was subsequently charged but had not yet faced trial at the time of sentencing.

The sentencing proceedings involved an agreed statement of facts, extensive Crown brief materials (including listening device transcripts and two lengthy electronically recorded interview transcripts), evidence from the investigating detective, and material concerning the offender's history of drug abuse and mental health conditions.

  • What was the appropriate undiscounted head sentence for a murder of this objective seriousness, where the offender played a subordinate role?
  • What discount, if any, was warranted for the guilty plea, past assistance to authorities, and an undertaking to give future evidence against a co-accused?
  • How should the offender's mental health history, drug abuse background, and personal circumstances affect the overall sentence?
  • Whether the standard non-parole period applied and whether the statutory ratio between non-parole period and total term should be departed from.

Decision

Fullerton J assessed the undiscounted head sentence at 36 years, treating the murder as brutal and cold-blooded while acknowledging that the offender's role was subordinate to the co-accused, who had solicited the killing. The court noted that the offender had carried out the murder on command from someone he regarded as a brother and close friend.

The court applied a total 50% discount: 25% for the guilty plea and past assistance (including the admissions and statements that enabled the co-accused to be charged), and 25% for the undertaking to give future evidence at committal, trial, and any retrial. The court was satisfied that without the offender's evidence, the Crown case against the co-accused would be so weakened as to make committal unlikely. The court expressly noted the personal cost to the offender of agreeing to give evidence against the co-accused, characterising it as a genuine and lasting shift in his loyalties.

On mental health and protective custody, Fullerton J took these factors into account but was not persuaded they warranted departure from the statutory ratio between the non-parole period and total term. Similarly, while the offender fell below the standard non-parole period, this was justified by the interplay of factors under the relevant sentencing legislation rather than by any exceptional circumstances.

Orders Made

  • Total term of imprisonment: 18 years, commencing 16 August 2006, expiring 16 August 2024.
  • Non-parole period: 13 years and 6 months, commencing 16 August 2006, expiring 16 February 2020.
  • Eligible for release to parole on 15 August 2020.

Key Takeaways

  • A 50% discount from a murder sentence was applied where the offender entered a guilty plea, provided past assistance that materially advanced a co-accused's prosecution, and gave an undertaking to testify at future proceedings, with the court treating future assistance as warranting a distinct 25% component of that reduction.
  • Where an agreed statement of facts was contradicted by supplementary material, the sentencing court engaged with the full evidentiary record to arrive at findings about the offender's role and the circumstances of the offending.
  • The Supreme Court treated the offender's subordinate role (acting on another's solicitation) as a mitigating factor going to objective seriousness, even in the context of an execution-style killing.
  • Under the Crimes (Sentencing Procedure) Act 1999, the court held that the statutory ratio between non-parole period and total term did not require departure merely because the offender's mental health and protective custody circumstances were present.
  • Sufficient evidence of the co-accused's involvement only emerged once the offender nominated him, illustrating how an offender's cooperation can be the critical element enabling a co-accused to be charged and committed for trial.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 23, 44 and Division 1A
- Criminal Appeal Act (NSW)
- Listening Devices Act (NSW)

Cases:
- Coleman v R (1990) 47 A Crim R 306
- Markarian v R (2005) 215 ALR 213
- R v AM (2004) 145 A Crim R
- R v Barri [2004] NSWCCA 221
- R v Falls [2004] NSWCCA 335
- R v Halls and Halls (2002) 127 A Crim R 209
- R v Israil [2002] NSWCCA 255
- R v O'Neill (1979) NSWLR 582
- R v Waqa (No 2) (2005) 156 A Crim R 454
- R v Z [2006] NSWCCA 342
- SZ v R [2007] NSWCCA 19
- Veen v The Queen (No 2) (1988) 164 CLR 465