New South Wales Court of Criminal Appeal CITATION : R v Peter Bourke [2000] NSWCCA 414 FILE NUMBER(S) : CCA 60381/99 HEARING DATE(S) : Friday 6 October 2000 JUDGMENT DATE : 6 October 2000 PARTIES : Peter Kevin Bourke (applicant) Regina (respondent) JUDGMENT OF : Simpson J at 26; Hidden J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0055 LOWER COURT JUDICIAL Christie DCJ OFFICER : COUNSEL : J S Andrews (applicant) L M B Lamprati (Crown) SOLICITORS : Legal Aid Commission (applicant) DPP (Crown) CATCHWORDS : CRIMINAL LAW - Sentence - offence under s112(3) of the Crimes Act and related offences - domestic violence - whether manifestly excessive - no question of principle LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309 R v Fernando (1992) 76 ACrim R 58 DECISION : Appeal allowed. IN THE COURT OF CRIMINAL APPEAL 60381/99 SIMPSON J HIDDEN J Friday 6 October 2000 Regina v Peter Kevin Bourke Judgment 1 HIDDEN J: The applicant, Peter Kevin Bourke, pleaded guilty in the District Court to an indictment containing four counts. The first count was breaking and entering a dwelling house and committing a felony in circumstances of special aggravation, an offence under s 112(3) of the Crimes Act 1900, carrying a maximum sentence of 25 years. The second count was malicious wounding, an offence under s 35 of the Crimes Act carrying a maximum sentence of seven years. The third count was breaking and entering a dwelling house and committing a felony in circumstances of aggravation under s 112(2) of the Crimes Act, that offence carrying a maximum sentence of 20 years. The fourth count was a common law offence of false imprisonment for which, of course, no maximum sentence is prescribed. 2 The felony alleged in the first and most serious count was malicious wounding and in the third count assault occasioning actual bodily harm. 3 On the first count the learned sentencing judge sentenced the applicant to penal servitude for twelve years, comprising a minimum term of nine years and an additional term of three years to date from 28 February 1998, the date on which he was taken into custody. On the other counts his Honour sentenced the applicant respectively to fixed terms of four years, five years and two years, those terms also to date from the date he was taken into custody. 4 I should observe that he was sentenced on 6 August 1998 and did not file his application for leave to appeal against sentence until 22 June 1999. However, there is no objection to an extension of time and we have proceeded to hear the matter. He now seeks leave to appeal against those sentences. 5 The victim of the second count, the charge of malicious wounding, was Ms Heather McKenzie, a lady with whom the applicant had had a relationship. It seems that that relationship had come to an end in circumstances of violence of some kind, but what those circumstances were we were not told. The victim of the first count was Ms McKenzie's father, Mr Graham McKenzie, and at the time the two of them were at a house in Binalong Street, Young. The victim of the fourth count, false imprisonment, was the applicant's brother, Bruce Bourke, and the victim of the third count, that is the charge of breaking and entering and committing a felony, that is, assault occasioning actual bodily harm was Bruce Bourke's wife, Alison Bourke. They resided at the time in a house at Caple Street, Young. 6 Shortly the facts are these: on the evening of 27 February 1998 the applicant was drinking at a hotel in Young until it closed at about 3am the following day. He then went firstly to his brother's house in Caple Street. He gained entry by damaging the front door after trying to enter by the rear door. 7 Ms Alison Bourke, his sister-in-law, phoned the police. The applicant confronted her with a knife, he pushed her and kicked her and pulled the phone from the wall. He dragged his brother, Bruce Bourke by his hair to a shed at the rear holding a knife at his throat. He punched his brother and then held the knife at his own stomach and taunted his brother to stab him. He then escorted his brother back to the house, telling him he was a hostage. He searched the house for his sister-in-law, who had managed to leave it, threatening to kill her. The police arrived and he escaped by the rear door of the house. 8 He then went to the McKenzie home in Binalong Street. He gained entry by breaking a window at the rear of the home with a chair. He entered the premises still with the knife. He became involved in a violent struggle with Mr Graham McKenzie and he stabbed Mr McKenzie a number of times to his torso, arm and head. Mr McKenzie suffered quite significant injuries as a result. 9 Heather McKenzie became involved in the struggle and he struck her with the knife on the arm and the back of the head. Mr McKenzie took hold of a stool to protect his daughter and he struck the applicant on the back of the head. He later hit him, over the back of the head also, with a porcelain water jug, which broke and caused significant cuts to Mr McKenzie's fingers. 10 The applicant left the premises. A little later he was escorted to hospital in police custody where he was treated for his own injuries and then taken to Young Police Station. 11 It is clear that he was seriously intoxicated and his Honour so found. There was evidence that he was in a very distressed state. Among other things he told a police officer that he wanted to kill himself. 12 I have already referred to the breakdown of his relationship with Ms Heather McKenzie, and there was some material before his Honour affording some explanation of his animosity towards the victims of the other offences. None of this, however, came anywhere near providing any adequate explanation for his extraordinary behaviour on this night. Indeed, in addressing the learned sentencing judge, his counsel in the District Court, who did not appear in this Court, said that he appeared to have little understanding of what got into him that night. 13 The applicant is a man of Aboriginal extraction. He is now twenty-seven years old and was twenty-four at the time of the offences. He has what his Honour described as a significant criminal record, starting in the Children's Court at the age of sixteen and containing some entries for offences of violence and some prior terms of imprisonment. I mention in passing that since being dealt with for these matters he has been sentenced to a further concurrent term of imprisonment for some offences which must have been outstanding at the time he was taken into custody, but no further reference need be made to that matter. 14 The charges to which he pleaded guilty were apparently the subject of some negotiation but his Honour accepted that his pleas of guilty were entered at the earliest reasonable opportunity and they were, of course, entitled at least to the utilitarian value of which this Court has spoken most recently in R v Thomson & Houlton [2000] NSWCCA 309. His Honour fixed the twelve year sentence on the major charge with an eye to the totality of the applicant's criminality and he said, that but for the plea of guilty, he would have imposed a sentence of the order of fifteen to sixteen years. 15 The sentencing proceedings were conducted with a measure of informality and no evidence was called on the applicant's behalf. Nevertheless, material was put from the Bar table which his Honour accepted and acted upon. 16 His Honour described the applicant as having had a deprived background. It seems that his father, who was rarely in employment, was an alcoholic and a violent man. The applicant left school at the age of fifteen in Year 9 and pursued labouring jobs interspersed with periods in custody. He has had a significant alcohol problem from an early age. 17 Against that briefly sketched background his Honour considered that the applicant ought to have the benefit of the special considerations affecting the sentencing of Aboriginal persons, with which the Chief Judge at Common Law dealt in R v Fernando (1992) 76 ACrim R 58. The Crown Prosecutor before us pointed out there was nothing like the volume of evidence that there was in Fernando touching upon this question, but it does appear to me that his Honour was entitled to treat the matter in that way, given that the briefly sketched background of the applicant was not inconsistent with that commonly seen in persons of Aboriginal extraction. 18 The applicant anticipated that he would have to spend part, at least, if not all of his sentence on protection because of some animosity borne by some other prisoners to his brother, and that is a matter his Honour also took into account. 19 His Honour saw some prospects of rehabilitation for the applicant, particularly given his relative youth. The matter of special circumstances was raised but his Honour did not find them, possibly because the sentence which he proposed would involve a substantial additional term even by the application of the usual proportion between minimum and additional terms. 20 Before us, Mr Andrews of counsel for the applicant has argued that the effective sentence is manifestly excessive and that, in any event, his Honour ought to have found special circumstances. 21 These were very serious offences and there can be no doubt that sentences with a marked degree of deterrence were called for. We have not had the benefit of references to statistics or comparable cases. I make no criticism of counsel on either side in that regard, because I suspect, particularly so far as the major charge is concerned, there would be very few cases available to provide any guidance. 22 What troubles me is the expressed starting point which his Honour enunciated of some fifteen to sixteen years. Notwithstanding the seriousness of these offences that does appear to me to be very high. It is a sentence not uncommonly passed in murder cases, although it is by no means the top of the range for an ordinary case of that kind. 23 The significant discount inherent in his Honour's reasons for the pleas of guilty was, in my view, entirely justified. It appears to me then that his Honour's approach to his sentencing task, putting aside the starting point to which I have referred was, with respect, beyond criticism. His Honour had regard to every relevant matter and in particular, as I have said, gave entirely appropriate weight to the pleas of guilty. Where his Honour fell into error, in my view, was to fashion the sentence around a starting point of some fifteen to sixteen years which, I am satisfied, is just too high. 24 For those reasons I am of the view that this Court should intervene. In arriving at the appropriate sentences, I have had regard to some additional material (including a psychiatric report) received for the purpose of re-sentence. The orders I propose are these: I would confirm the sentences on counts two, three and four but I would quash the sentence on count one. In lieu, on count one I would sentence the applicant to imprisonment for ten years to date from 28 February 1998 with a non-parole period of six years. 25 It follows from what I have said that, in my view, there are special circumstances warranting a significant departure from the usual proportion between head sentence and non-parole period. 26 SIMPSON J: I agree. The orders of the Court will be as proposed by Hidden J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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