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Court of Criminal Appeal 3 November 2000

R v Burke [2000] NSWCCA 450 revised - 6

[2000] NSWCCA 450

HomicideTheft & property

Citation: R v Burke [2000] NSWCCA 450
Court: NSW Court of Criminal Appeal
Date: 3 November 2000
Judge(s): Sheller JA, James J, Dowd J

Background

The respondent was convicted by jury of one count of robbery arising from an incident in July 1996, in which he entered a small bank branch at Lennox Head, wearing a disguise, and took approximately $3,000 from tellers' units. The sentencing judge found that the respondent had not been armed and had taken steps to reassure staff that no violence would occur.

The respondent had a significant criminal history. He had been sentenced to life imprisonment for murder in 1982, following a killing committed during an armed robbery. That sentence was later redetermined at 16 years, and he was released on parole in 1993. The robbery for which he was now sentenced was committed in July 1996, during the additional term of that redetermined sentence while the respondent remained on parole.

The District Court sentenced the respondent to three and a half years imprisonment with a non-parole period of 18 months, commencing October 1999. The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act, arguing the sentence was manifestly inadequate.

  • Whether the sentence imposed by the District Court, and in particular the non-parole period of 18 months, was manifestly inadequate.
  • Whether the sentencing judge erred by underestimating the objective seriousness of the offence, giving insufficient weight to the aggravating circumstance of the offence having been committed on parole, and placing excessive weight on rehabilitation.
  • Whether, even if error were established, the extent of any correction would amount to impermissible appellate "tinkering" with the sentence.

Decision

James J (with whom Sheller JA and Dowd J agreed) identified several errors in the sentencing judge's approach. The sentencing judge had underestimated the objective gravity of the robbery and had undervalued the vulnerability of bank staff who handle large sums of cash in premises open to the public. The court also found that insufficient weight had been given to the serious aggravating circumstance that the offence was committed while the respondent was on parole for murder.

The sentencing judge had placed particular emphasis on rehabilitation, partly in reliance on a psychologist's report describing the respondent's severe institutionalisation following rapid release from a life sentence. James J acknowledged that these were legitimate considerations, but concluded they had been given disproportionate weight at the expense of setting a non-parole period that met the requirement identified by the High Court in Bugmy.

Despite finding that error had been demonstrated, the Court declined to intervene. The Director of Public Prosecutions had conceded that, if the appeal succeeded, re-sentencing should not increase the non-parole period beyond two years. The Court concluded that increasing the non-parole period from 18 months to two years would constitute such a minor adjustment that it would properly be characterised as appellate "tinkering," which appellate courts are cautioned to avoid. The appeal was accordingly dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate courts retain a strong general resistance to intervening in sentences unless the departure from proper sentencing principle is substantial enough to warrant correction.
  • Error in a sentencing decision does not automatically lead to appellate intervention: where the practical correction available is so small as to amount to "tinkering," the appeal may nonetheless be dismissed.
  • Committing an offence while on parole, particularly parole from a sentence for serious violent offending, is a significant aggravating factor that must receive meaningful weight in sentencing.
  • Rehabilitation, while a legitimate sentencing consideration, cannot be relied upon so heavily as to produce a minimum term that fails to satisfy the requirements identified in Bugmy regarding non-parole periods.
  • The concession made by Crown counsel as to the upper limit of any re-sentence was itself a constraining factor in the appellate analysis, illustrating how the scope of a Crown appeal can limit the relief available even where error is found.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5D (Crown appeals against sentence)

Cases:
- Bugmy (High Court decision on non-parole period requirements, cited but not reported in the provided text)
- Dinsdale (Kirby J's observations on appellate "tinkering" with sentences, cited but not reported in the provided text)