Regina v Burke [2001] NSWCCA 47

New South Wales Court of Criminal Appeal

CITATION : Regina v Burke [2001] NSWCCA 47 FILE NUMBER(S) : CCA 60178/00 HEARING DATE(S) : 20 February 2001 JUDGMENT DATE : 20 February 2001

PARTIES : Regina v Bernard Thomas Burke JUDGMENT OF : Mason P at 21, 23; Whealy J at 22; Howie J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0260 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : In person (Applicant) C.K. Maxwell QC (Crown) SOLICITORS : - S.E. O'Connor (Crown)

LEGISLATION CITED : Crimes Act 1900 - s 59 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60178/00

MASON P WHEALY J HOWIE J

TUESDAY 20 FEBRUARY 2001

REGINA v BERNARD THOMAS BURKE JUDGMENT

1 HOWIE J: This is an application for leave to appeal against a sentence imposed on the applicant by his Honour Judge Gibson as a consequence of the applicant pleading guilty to an indictment alleging an offence of assault occasioning actual bodily harm. That is an offence contrary to s 59 of the Crimes Act and the maximum penalty prescribed is five years imprisonment. Judge Gibson sentenced the applicant to a fixed term of twelve months imprisonment to commence on 9 March 2000 and to expire on 8 March 2001. The applicant has been serving his sentence, which will expire in a little over two weeks. The applicant is unrepresented before this Court. 2 A statement of facts was placed before the sentencing judge which fully sets out the facts surrounding the commission of the offence. On 25 October 1998 at about 8.20pm the victim was walking along Dowling Street when she was approached by the applicant. The victim was thirty-nine weeks pregnant. As the applicant passed the victim, he grabbed the strap of her handbag which was hanging on her left shoulder. The victim maintained hold of her bag and the applicant pulled the strap with such force that the victim fell to the ground. The applicant continued to pull on the strap causing the victim to be dragged along the ground for a short distance. The applicant pulled the strap with such force that the strap came away from the bag. However, the victim succeeded in retaining the handbag. 3 The screams of the victim attracted a passer-by who ran towards the applicant causing him to let go of the bag and take flight. A number of members of the public pursued the applicant and he was ultimately detained by them. It appears that the applicant suffered some injuries at the hands of the persons who apprehended him. 4 As a result of the applicant's actions, the victim suffered abrasions to the right shoulder, right elbow and wrist. 5 The applicant was arrested by police and took part in a recorded interview. The applicant gave an account of the offence in which he maintained that he had earlier that evening purchased cannabis for a sum of $25 from a female at a hotel. He told police that, having paid the female the money, she was to obtain the drug for him and return with it to the hotel. The applicant said he waited for three hours for the female but she failed to return. He stated that he was in a telephone box when he saw the victim walking down the street and that he wrongly believed that she was the female to whom he had given the money to purchase drugs. The applicant told the police that he merely wished to obtain his money or the drugs to which he was entitled and nothing more. 6 The applicant was originally charged with an offence of aggravated robbery. However, when an indictment was presented for an offence of assault occasioning actual bodily harm, the applicant pleased guilty to that offence. It was conceded by the Crown that this was the first opportunity that the applicant had to plead guilty to such an offence. 7 Judge Gibson accepted that the applicant was to be sentenced on the basis that he had no intention of robbing the victim of her handbag or its contents but that he had an honest but mistaken belief that he was entitled to the money or the drugs which he believed were contained within the bag. 8 The offence to which the applicant pleaded guilty is one which can be dealt with summarily in the Local Court. The jurisdiction of a magistrate dealing with such an offence is limited to a sentence of no more than two years imprisonment. I accept that such an offence is frequently dealt with in the Local Court and that the applicant would most probably have been dealt with in that court had he not been committed for trial to the District Court on the aggravated robbery offence. 9 The applicant is aged thirty-six. He has a record for drug-related offences in Queensland in 1983 and 1986. Of more relevance to the present matter is the fact that at the Sydney District Court on 22 July 1993 he was sentenced to three years periodic detention for an offence of armed robbery. On the same date and at the same court he was placed on a good behaviour bond for three years in respect of two offences, one, a break enter and steal and the other, using a weapon to resist arrest. 10 The applicant gave evidence before the sentencing judge and said that he had used methadone and cocaine earlier in the day on which he committed the offence. He gave evidence that he was in a stable relationship with his wife and was living with her and his young daughter. His wife had separated from him approximately eighteen months before he was sentenced because of his involvement with drugs but she had resumed their relationship around the time of the incident because of his commitment to remain drug free. The applicant told Judge Gibson that he was not using drugs at the time that he was before the Court. 11 The applicant's wife gave evidence that the applicant was not generally a violent person and that he treated women with respect. She told the sentencing judge that the applicant had been taking a more positive and a more clear-headed approach to life and that their relationship was the best that it had ever been. 12 The applicant was unemployed at the time of the commission of the offence but he was the carer of his daughter while his wife ran a business. 13 A pre-sentence report was placed before the sentencing judge which indicated that the applicant had expressed remorse that he had injured the victim of the offence. The Probation officer stated that the applicant presented as a rather unconventional and reclusive man who was quite immature. He found that the applicant's determination not to use any form of drugs since November 1999 had resulted in a positive effect in his participation in his family life. The applicant was assessed as being suitable for periodic detention and community service. 14 In written submissions the applicant has relied upon the fact that the offence is one which is predominantly dealt with in the Local Court and has referred to decisions of this Court where sentences of periodic detention have been substituted for full-time custody. He has indicated that he has addressed his drug problem since his incarceration and has been involved in a lifestyle program which he found beneficial. He stated that he has used his time in custody as constructively as possible and has made positive lifestyle changes. He regrets his actions that brought about his imprisonment and says that this incident and the consequences has clarified for him the impact of drugs upon his family and his life. 15 I can find no error in the remarks of the sentencing judge when imposing the sentence upon the applicant. His Honour correctly stressed the importance of general deterrence in sentencing for an offence involving an attack upon a female walking along a public street by a drug affected person. The sentencing judge took into account the fact that the applicant had pleaded guilty at the first opportunity and that he was remorseful for the offence. He referred to all relevant matters arising from the applicant's subjective circumstances. The fact that the applicant is the principal carer for his three-year-old daughter is not a matter of such an exceptional nature that it could justify a reduction in the otherwise appropriate sentence. 16 Though his Honour made no reference to the fact that this offence could have been, and frequently is, dealt with in the Local Court and that a magistrate's jurisdiction to impose a sentence of imprisonment is much more limited than that of a sentencing judge in the District Court, I am of the view that the sentence imposed by Judge Gibson was one which would have been well within the discretion of a magistrate to impose. 17 This was a serious offence of its nature, notwithstanding that the injuries inflicted upon the victim were relatively minor and that they were inflicted recklessly. This was a sustained and unprovoked assault upon a defenceless woman in order to remove her handbag from her possession. It involved the victim being pulled to the ground and dragged along for a short distance. The applicant only ceased his efforts to obtain the handbag when he saw a would-be rescuer approaching. There is no justification at all for the applicant's conduct even accepting that he mistakenly believed that the victim owed him either $25 in cash or drugs worth that amount of money. The fact that he was under the influence of drugs at the time provides no mitigation or excuse. 18 The sentencing judge imposed a fixed term upon the applicant because his Honour thought that the applicant appeared to be proceeding well with his life and that there was consequently no purpose in imposing an additional term. It appears that his Honour was correct in taking that view in light of what the applicant has put to this Court about his current rehabilitation and insight into the effects upon him and his family of his drug usage. 19 This is a Court which is concerned with error and, in my view, there is no error apparent in either the remarks made by the sentencing judge or made manifest by the sentence imposed by him. The two decisions to which the applicant has referred this Court are concerned with their own facts and circumstances and do not, in my view, indicate that the sentence imposed by Judge Gibson was manifestly excessive. The offence committed by the applicant was objectively, more serious than the offences which were the subject of appeal in those cases notwithstanding that less serious injuries were inflicted upon the victim by the applicant. 20 I propose that leave be granted but the appeal dismissed. 21 MASON P: I agree. The applicant has demonstrated genuine contrition and good prospects for rehabilitation. He is most fortunate to have the continuing support of his wife. His prospects at this stage appear to be significantly hopeful. Nevertheless, it would not be, in my view, open to this Court to shave an otherwise properly constructed sentence by doing something about the remaining short period that is to elapse in that sentence. I agree with the reasons of Justice Howie. 22 WHEALY J: I agree also. 23 MASON P: The order of the Court will be as indicated. **********