Regina v Burns [1999] NSWCCA 88

New South Wales Court of Criminal Appeal CITATION : Regina v Burns [1999] NSWCCA 88 FILE NUMBER(S) : CCA 60210/98 HEARING DATE(S) : 16 April 1999 JUDGMENT DATE : 16 April 1999

PARTIES : Regina v Stephen John Burns JUDGMENT OF : Grove J at 1; Bell J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0201 LOWER COURT JUDICIAL OFFICER : Patten DCJ

COUNSEL : W.G. Dawe, QC (Crown) J.C.Nicholson SC with E.W.H. Wilson (Applicant) SOLICITORS : R. Gray (Public Prosecutions) T.A. Murphy CATCHWORDS : Criminal Law and Procedure - Sentence - Aggravated Armed Robbery DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60210/98

GROVE J BELL J

Friday 16 April 1999

REGINA v STEPHEN JOHN BURNS

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by his Honour Judge Patten in the Dubbo District Court on 8 April 1998. On that occasion the applicant pleaded guilty to two charges, a count of aggravated armed robbery (charged in the alternative to a different offence) and a count of possessing a shortened firearm. His Honour was asked to take into account on a schedule four further charges to which I will make some reference in due course. 2 The effective sentence imposed was a total of 12 years penal servitude. His Honour found special circumstances justifying extension of the additional term component of that sentence and ultimately it was constructed to consist of a minimum term of 8 years penal servitude. It has to be said that that is a very severe and significant sentence. 3 In brief, the facts are that in the early hours of the morning of 29 August 1997, a person aged 18 years of age was woken from his sleep by a knock on the front door. He was confronted by the applicant who was armed with a shortened .303 rifle. There was a demand for drug and the young man replied that there was none. He was then pushed in the chest with the rifle and hit on the head on a couple of occasions. At the point of the gun the victim was taken into several rooms of the house where the applicant collected valuables. There were further assaults during this activity. On one occasion the victim was ordered onto the lounge room floor and the rifle pushed against his cheek. The barrel slid down his face, damaging the skin. During the activity further threats were made to the victim. In the course of what was occurring, the rifle in fact discharged. Thereafter the applicant fled. It was said that various goods to the value of about $3,000 were taken. 4 It is appropriate to take some note of the subsequent arrest of the applicant. The victim himself identified the applicant to police and they executed a search warrant upon his home. He was not there at the time. In a nearby lane there was recovered an amount of the stolen property. It is said that the police also recovered a stolen video which had been sold to an associate of the applicant for $50 on that very morning. 5 There was a phone conversation, later in the day apparently, and the applicant indicated that he intended to give himself up. The police advised he should surrender, which he did. 6 Upon arrival at the police station, he was routinely asked to participate in an interview, but his response was, "You know what I did, I don't want to do an interview". There was some discussion then about the missing weapon and the applicant took police to a location where the weapon was found. It was loaded and there was ammunition with it. 7 I indicated I would make some reference to the matters on the schedule. It suffices to mention two of the offences in particular. The first was a matter of assault occasioning actual bodily harm with which was associated a matter of malicious damage to property. I say "associated" because they arose out of the same incident. It appears that the applicant and a companion were travelling in a motor vehicle and stopped to pick up a hitchhiker. The pair of them then commenced to attack the hitchhiker with a baseball bat or similar. They caused actual bodily harm to him. A motorist described as a good samaritan stopped in order to prevent further pursuit of the attack. The hitchhiker sought to enter the vehicle of the good samaritan. There was an apparent attempt to strike either the driver or the victim, but the blow with the bat struck the vehicle causing minor damage. I have elaborated upon this matter as it has been the subject of a submission in the course of this application. 8 The applicant relies upon five principal grounds and I should deal with them seriatim. The first matter argued on behalf of the applicant asserts that the learned sentencing judge fell into error in relation to his finding of an aggravating circumstance relating to the offence. In his remarks on sentence concerning the discharge of the firearm, he had said, "Threats were made to the victim, in the course of which the firearm was discharged into the floor. There may be some doubt as to whether or not this was accidental. The probability is that it was not accidental and that it was done as a threat, but there is no suggestion that the weapon was discharged at the victim."