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Court of Criminal Appeal 2 February 2022

Burke v R

[2022] NSWCCA 6

Theft & propertyFirearms & weapons
CRIME APPEALS

Citation: Burke v R [2022] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 2 February 2022
Judge(s): McCallum JA, Walton J, Fullerton J

Background

The appellant was convicted following a District Court trial of eight counts of armed robbery, one count of attempted armed robbery, and two counts of aggravated break and enter across a series of offences committed at licensed premises (hotels and a sporting club) over a two-month period between June and August 2014. Three further offences, arising from separate incidents in 2014 and 2016, were resolved by pleas of guilty. In total, the sentencing exercise encompassed 14 offences.

The sentencing judge, O'Rourke DCJ, imposed an aggregate sentence of 13 years and 6 months with a non-parole period of 8 years and 1 month. The sentence was backdated to 24 July 2015 to account for pre-sentence custody. The aggregate term expires on 23 January 2029, with parole eligibility from 23 August 2023.

The appellant sought leave to appeal the aggregate sentence on the sole ground that it was manifestly excessive.

  • Whether the aggregate sentence of 13 years and 6 months was manifestly excessive and therefore unreasonable or unjust
  • Whether disparities in the indicative sentences indicated for individual counts, particularly as between the trial offences and the guilty plea offences, produced an unjust aggregate outcome
  • Whether the sentencing judge's assessment of objective seriousness and subjective mitigating factors resulted in a sentence warranting appellate intervention

Decision

The Court of Criminal Appeal (Fullerton J, with McCallum JA and Walton J agreeing) dismissed the appeal. Fullerton J found that the applicant had not demonstrated any miscarriage of the sentencing judge's discretion.

On the argument that internal disparities between indicative sentences rendered the aggregate manifestly excessive, Fullerton J rejected the premise. The Court noted that a lack of uniformity across indicative sentences for similar offences does not necessarily, or inevitably, lead to the conclusion that the aggregate sentence is manifestly excessive. The Court further observed that, on an alternative comparative analysis, the indicative sentences for the 2016 offences (which attracted a 25% guilty plea discount) could be characterised as lenient, meaning the appellant had arguably benefited from that leniency in the overall exercise.

The Court was satisfied that the sentencing judge had appropriately applied the totality principle, which requires a court imposing an aggregate sentence to consider questions of concurrence and accumulation as part of an intuitive exercise. The gravity and repetition of the offending, the fact that many offences were committed while the appellant was on parole or bail, and the involvement of dangerous weapons in most incidents, all supported the aggregate term imposed. The Court also found that the appellant's personal and subjective circumstances had been given appropriate weight.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A discernible lack of uniformity in indicative sentences across counts in an aggregate sentencing exercise does not necessarily establish that the aggregate sentence is manifestly excessive.
  • Under the totality principle, sentencing courts engage in an intuitive balancing of concurrence and accumulation; appellate courts will not intervene simply because an alternative comparative analysis of individual indicative sentences might suggest inconsistency.
  • Offending committed while on parole or bail constitutes a statutory aggravating feature under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the Court confirmed this was correctly applied across multiple counts.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that an appellant must do more than identify possible internal tension between indicative sentences; the overall aggregate must be shown to be unjust.
  • Guilty plea discounts of 10% to 25% were applied differentially depending on the timing of each plea, with a 10% discount applied where the plea was entered immediately before trial and higher discounts where pleas were entered significantly earlier.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 113, 117, 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Chaouk v R [2017] NSWCCA 295
- Hall v R [2021] NSWCCA 220
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218