Citation: Burnham v R [2025] NSWCCA 149
Court: Court of Criminal Appeal, New South Wales
Date: 24 September 2025
Judges: Garling J, Ierace J, Dhanji J
Background
The applicant pleaded guilty to recklessly inflicting grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW). The offence arose from a confrontation at a petrol station in April 2023, when an argument over money escalated after the victim elbowed the applicant in the mouth. The applicant initially responded in self-defence, but the confrontation went beyond that point: a witness observed the applicant stomping on the victim's head multiple times while the victim was on the ground. The victim suffered a traumatic brain injury and associated haemorrhages, and spent several months in hospital, including time in an induced coma.
The applicant was sentenced in the District Court on 31 October 2024 by Payne DCJ to 4 years and 5 months imprisonment, commencing 24 January 2024, with a non-parole period of 2 years and 9 months. He had been in custody on remand for 14 months prior to sentencing. He sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by failing to treat the unplanned nature of the offence as a mitigating factor under s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentencing judge erred by failing to treat the victim's provocation of the applicant as a mitigating factor under s 21A(3)(c) of that Act
- Whether the sentencing judge erred by sentencing the applicant by reference to all injuries sustained by the victim, including injuries potentially attributable to the applicant's initial lawful self-defence, rather than only those injuries caused by the unlawful stomping
Decision
Ground 1 (Unplanned offence): The Court found no error. Although the sentencing judge did not expressly mention the absence of planning, her Honour had read the agreed facts into the remarks on sentence. Those facts made plain that the confrontation was spontaneous. The Court held that no reasonable inference could be drawn other than that her Honour sentenced the applicant on the basis that the offence was spontaneous, and that spontaneity was synonymous with the offence being unplanned in the circumstances of this case.
Ground 2 (Provocation): The Court found this ground also failed. Defence counsel at the sentencing hearing had raised provocation only to explain why the physical confrontation went beyond self-defence, rather than advancing it as a distinct mitigating factor in its own right. The Court noted that counsel had understandable reasons for not pressing provocation more firmly in mitigation, given the applicant's ingestion of prohibited drugs at the time. In those circumstances, it was unsurprising that the sentencing judge did not address provocation expressly as a matter of mitigation, and no error was established.
Ground 3 (Scope of injuries): The Court rejected the submission that the sentencing judge erred by taking into account all of the victim's injuries, including rib fractures and bruising that may have occurred during the lawful self-defence phase. Her Honour had described the injuries in precisely the same terms used in the defence's own written submissions and in the agreed facts. There was no evidence of any misunderstanding or oversight at first instance, and the sentencing judge's remarks focused on the stomping injuries to the head rather than dwelling on the other injuries. No error was demonstrated.
The Court (Ierace J, with Garling and Dhanji JJ agreeing) granted leave on all three grounds but dismissed the appeal in its entirety.
Orders Made
- Leave to appeal granted on all three grounds
- Appeal dismissed
Key Takeaways
- A sentencing judge is not required to use express language addressing every statutory mitigating factor; where the agreed facts were read into the remarks on sentence and those facts established that the offence was spontaneous, an implicit finding of an unplanned offence was sufficient to avoid error.
- The weight given to provocation as a mitigating factor in sentencing is context-dependent; where defence counsel chose not to press provocation as a freestanding ground of mitigation, the sentencing judge could not be faulted for not addressing it expressly.
- No error was established in taking into account all injuries described in the agreed facts, particularly where the defence's own written submissions had canvassed the same injuries and no submission was made at first instance seeking to differentiate between injuries caused during lawful self-defence and those caused by the unlawful conduct.
- In dismissing the appeal, the Court of Criminal Appeal affirmed that an appellate court will be cautious about inquiring beyond agreed facts in the absence of evidence, such as from a legal representative who appeared at first instance, that a misunderstanding or oversight occurred.
- Where a physical confrontation begins in lawful self-defence but crosses into unlawful conduct, the boundary between the two phases may be practically very difficult to draw for sentencing purposes, particularly when the parties have proceeded on agreed facts that describe all resulting injuries collectively.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(b), 21A(3)(c), 21A(5AA), Pt 4 Div 1A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases cited:
- Attwater v R; Marks v R [2021] NSWCCA 17
- Kennedy v R [2022] NSWCCA 215
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- Patrick v R; Whitney v R [2020] NSWCCA 63
- R v Fahda [2013] NSWCCA 86
- R v Mendez [2002] NSWCCA 415
- Taylor v R [2018] NSWCCA 255
- Williams v R [2012] NSWCCA 172
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460