Burns v R [2013] NSWCCA 17

Burns v R [2013] NSWCCA 17

Because the manslaughter conviction had been quashed and the original fixed term for count two lacked a non-parole period only because any such period would have been subsumed by the manslaughter sentence, leaving the count two sentence unadjusted would cause serious injustice. The appropriate exercise of the Court's discretion under s 7(1) was to quash the sentence on count two and impose a sentence with a non-parole period expiring on the applicant's release to bail and an additional term expiring on 13 July 2013, so that she remained on parole rather than bail and was not returned to custody.

Jurisdiction
Australia
Judgment Date
08 February 2013
Procedural Posture
Criminal Sentence Appeal/application Pursuant to S 7(1) of the Criminal Appeal Act 1912 / Application for Leave to Appeal and Appeal Against Sentence After Manslaughter Conviction Was Quashed
Outcome
Leave to appeal granted; appeal allowed; sentence for count two quashed and substituted sentence imposed.
Legal Topics
['sentence Appeal' 're Sentencing After Conviction Quashed' 'non Parole Period' 'supply of Methadone' 'manslaughter Conviction Quashed']
['criminal Law' 'sentencing'] ['sentence Appeal' 're Sentencing After Conviction Quashed' 'non Parole Period' 'supply of Methadone' 'manslaughter Conviction Quashed']

Case Brief

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Procedural Posture

Criminal Sentence Appeal/application Pursuant to S 7(1) of the Criminal Appeal Act 1912 / Application for Leave to Appeal and Appeal Against Sentence After Manslaughter Conviction Was Quashed

Legal Issues

  1. 1 ["Whether the Court should intervene under s 7(1) of the Criminal Appeal Act 1912 after the applicant's manslaughter conviction was quashed but a fixed term for supplying methadone remained." 'How the sentence for count two of supplying methadone should be restructured to avoid injustice, including whether to impose a non-parole period and additional term.']

Ratio Decidendi

Because the manslaughter conviction had been quashed and the original fixed term for count two lacked a non-parole period only because any such period would have been subsumed by the manslaughter sentence, leaving the count two sentence unadjusted would cause serious injustice. The appropriate exercise of the Court's discretion under s 7(1) was to quash the sentence on count two and impose a sentence with a non-parole period expiring on the applicant's release to bail and an additional term expiring on 13 July 2013, so that she remained on parole rather than bail and was not returned to custody.

Court Disposition

Leave to appeal granted; appeal allowed; sentence for count two quashed and substituted sentence imposed.

Orders

  • ['Leave to appeal granted with regard to the sentence for the offence in count two of supplying methadone.' 'Appeal allowed.' 'Sentence for count two quashed.' 'In substitution, the applicant is sentenced on count two to a non-parole period of imprisonment for 2 years 13 days to date from 14 July 2010 and expire on...