Burns v R [2008] NSWCCA 260

Burns v R [2008] NSWCCA 260

The sentencing judge did not err in relation to the weighting of mental illness and the adjusted sentence was not manifestly excessive, but the sentence for attempted armed robbery contravened s 44(2) of the Crimes (Sentencing Procedure) Act 1999 because the balance of term exceeded one-third of the non-parole period after the judge expressly declined to find special circumstances; the Court treated this as a mathematical error and varied the balance of term to conform with the statutory ratio by reference to the aggregate non-parole period of 5½ years.

Jurisdiction
Australia
Judgment Date
19 November 2008
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed in Part
Outcome
Extension of time granted; leave to appeal granted; appeal allowed in part; sentence for attempted armed robbery varied.
Legal Topics
['attempted Armed Robbery' 'aggravated Carjacking' 'pleas of Guilty' 'mental Illness' 'accumulation of Sentences' 'non Parole Period and Balance of Term' 'special Circumstances']
['criminal Law' 'sentencing'] ['attempted Armed Robbery' 'aggravated Carjacking' 'pleas of Guilty' 'mental Illness' 'accumulation of Sentences' 'non Parole Period and Balance of Term' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal; Appeal Allowed in Part

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to give weight to the applicant's mental illness." 'Whether the balance of term improperly exceeded one-third of the non-parole period in circumstances where the sentencing judge expressly declined to find special circumstances.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in relation to the weighting of mental illness and the adjusted sentence was not manifestly excessive, but the sentence for attempted armed robbery contravened s 44(2) of the Crimes (Sentencing Procedure) Act 1999 because the balance of term exceeded one-third of the non-parole period after the judge expressly declined to find special circumstances; the Court treated this as a mathematical error and varied the balance of term to conform with the statutory ratio by reference to the aggregate non-parole period of 5½ years.

Court Disposition

Extension of time granted; leave to appeal granted; appeal allowed in part; sentence for attempted armed robbery varied.

Orders

  • ['That an extension of the time within which to apply for leave to appeal be granted.' 'That leave to appeal be granted.' 'That the appeal be allowed in part and the sentence imposed by Judge Freeman for the offence of attempted armed robbery varied to a non-parole period of 4½ years commencing on 23 February 2006...