Burgess v R [2019] NSWCCA 13

Burgess v R [2019] NSWCCA 13

No House v The King error was established. The sentencing judge's assessment of objective seriousness, treatment of accumulation and totality, allowance for special circumstances, and weighting of specific and general deterrence were open on the evidence. The non-parole period of 4 years for a 6½ year aggregate sentence significantly reduced the statutory ratio, and the applicant's guarded rehabilitation prospects, prior similar offending, continued drug use and denial of responsibility justified attention to specific deterrence while still allowing for his mental and physical conditions.

Jurisdiction
Australia
Judgment Date
13 February 2019
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['drug Supply' 'manifest Excess' 'special Circumstances' 'specific Deterrence' 'general Deterrence' 'aggregate Sentence' 'rehabilitation']
['criminal Law' 'sentencing'] ['drug Supply' 'manifest Excess' 'special Circumstances' 'specific Deterrence' 'general Deterrence' 'aggregate Sentence' 'rehabilitation']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW

Legal Issues

  1. 1 ['Whether the aggregate sentence of imprisonment for 6½ years with a non-parole period of 4 years was manifestly excessive.' 'Whether the sentencing judge failed to give proper effect to a finding of special circumstances by varying the statutory ratio.' 'Whether the sentencing judge gave undue weight to specific deterrence.' "Whether the sentencing judge failed to give proper effect to the finding that the applicant's physical and mental condition made him a less suitable candidate for general deterrence."]

Ratio Decidendi

No House v The King error was established. The sentencing judge's assessment of objective seriousness, treatment of accumulation and totality, allowance for special circumstances, and weighting of specific and general deterrence were open on the evidence. The non-parole period of 4 years for a 6½ year aggregate sentence significantly reduced the statutory ratio, and the applicant's guarded rehabilitation prospects, prior similar offending, continued drug use and denial of responsibility justified attention to specific deterrence while still allowing for his mental and physical conditions.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal be granted.' 'The appeal be dismissed.']