R v Burns [2003] NSWCCA 278

New South Wales Court of Criminal Appeal

CITATION : R v Burns [2003] NSWCCA 278 HEARING DATE(S) : 05/09/2003 JUDGMENT DATE : 5 September 2003

JUDGMENT OF : Wood CJ at CL at 28, 30; Greg James J at 29; Howie J at 1 DECISION : Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS : Criminal Law and Procedure - appeal against severity of sentences LEGISLATION CITED : Crimes Act 1900 - ss 99, 112(2), 195 PARTIES : Regina v Belinda Jane Burns FILE NUMBER(S) : CCA 60225/03 COUNSEL : D. Frearson - Crown Applicant appeared in person SOLICITORS : S.E. O'Connor - Crown Applicant appeared in person

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1036 FILE NUMBER(S) : LOWER COURT Bellear DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60225/03

WOOD CJ AT CL GREG JAMES J HOWIE J

FRIDAY 5 SEPTEMBER 2003 REGINA v Belinda Jane BURNS Judgment 1 HOWIE J: This is an application for leave to appeal against sentences imposed upon the applicant by his Honour Judge Bellear. The applicant stood trial before his Honour and a jury on an indictment containing three counts as follows: Count 1: Aggravated break and enter of a dwelling house and commit a serious indictable offence, contrary to s 112(2) of the Crimes Act. Count 2: Demanding money with intent to steal, contrary to s 99 of that Act; Count 3: Maliciously damaging property, contrary to s 195 of that Act. 2 On 13 September 2002 the applicant was convicted of each offence on the indictment. The applicant, therefore, became liable to a maximum penalty of 20 years imprisonment in respect of the first count, 10 years imprisonment for the second count and 5 years imprisonment for the third count. 3 On 21 March 2003 Judge Bellear sentenced the applicant in respect of the first count to 6 years imprisonment. He backdated the sentence to commence on 13 September 2002 the date upon which the applicant entered custody. His Honour specified a non-parole period of 3 years to expire on 12 September 2005. In respect of the other two counts, his Honour imposed fixed sentences of 2 years and 12 months respectively, both of those sentences to be served concurrently with the sentence imposed for the first count. 4 The applicant had stood trial with a co-offender, named Michael Traynor. He was charged with the same three offences and was also convicted of them by the jury. His Honour imposed upon Traynor the same sentences as he imposed upon the applicant. 5 On the Notice of Application for Leave to Appeal, the applicant, who is unrepresented on the hearing of this matter, stated that she believed that the sentence was manifestly excessive and severe and that Judge Bellear had dealt with her "rather harshly". She has since filed written submissions setting out the basis upon which she claims that the sentence imposed upon her was too severe and has also addressed us this morning in amplification of the written submissions that she had sent to the Registry. I will deal with the particular matters she raises in the submissions shortly. 6 The facts giving rise to the offence of which the applicant was convicted can be stated briefly and are drawn from the sentencing remarks of Judge Bellear. In June 2001 the victim of the offences was living in a townhouse with her 10-month old child. She advertised for a female person to share her accommodation. The applicant answered the advertisement and shortly thereafter commenced living with the victim at a rent of $100. A condition of the applicant moving into the premises was that she pay a bond of $400 and two weeks rent. However, as she was unable to immediately meet these payments, an agreement was reached that she pay $300 the first week and a further $300 when she was paid. 7 Shortly after the applicant moved into the flat Traynor, who was then her boyfriend, started visiting the premises almost every day. On 3 July 2001 the victim complained to the applicant of receiving threatening phone calls from Traynor and indicated that he was no longer welcome at the townhouse. Later that day the victim asked the applicant to move out. This resulted in a heated confrontation between them during which the applicant demanded the return of her bond money. The argument concluded with the applicant storming out of the unit. 8 The next day, while the victim was watching television, she heard several loud bangs on the front security door. She went upstairs to look through a window and after returning downstairs heard further banging on the door. It was at this stage that Traynor opened the door and entered armed with a hockey stick, swung the weapon in the victim's direction and struck her to the back of the head. He then pushed her causing her to fall on to the lounge. As the victim got up, she saw the applicant entering the room armed with a baseball bat. The applicant swung the bat at the victim hitting her on the left side of her left leg just below the knee. The applicant then demanded that the victim get her purse as they were going out to an establishment called Quix to obtain some money. The victim, however, refused to leave her child. The applicant again struck the victim this time on her left hand in the vicinity of her wrist. She said words to the effect of "If I am not going to get the money I am going to take $400 worth" and then commenced to smash items in the premises with the baseball bat. Traynor intervened to prevent the applicant from damaging further property and they left the unit. The serious offence alleged in the first count was an assault occasioning actual bodily harm to the victim. 9 The applicant and her co-offender denied that they had attended the victim's premises on the night in question. 10 As a result of the attack upon her, the victim suffered an injury to her head that was described as extra-cranial soft tissue injury which did not cause any loss of consciousness or neck pain. The victim, however, complained of suffering headaches as a result. Clearly this injury resulted from the blow struck to her by Traynor. The victim also suffered soft tissue injuries to the left wrist and hand and left lower limb and a small scratch to the left little finger. Some of these injuries were a result of the attack upon her by the applicant. His Honour described the injuries as serious although there was no suggestion of any permanent damage. 11 Although the circumstance of aggravation alleged in the first count was that the applicant was armed with an offensive weapon, the base-ball bat, Judge Bellear took into account, as he was entitled to do, other circumstances of aggravation listed in s 105A of the Crimes Act and which were present when that offence was committed. These included that the applicant was in company, that corporal violence was used against the victim and that the applicant knew that the victim was in the premises when they entered it. 12 His Honour found that the applicant had shown no remorse whatsoever. Unlike her co-offender, the applicant continued to deny any wrongdoing on her part when interviewed by a Probation Officer for the purpose of preparing a pre-sentence report. In her written submissions to this Court, the applicant has admitted her involvement to the extent of damaging the victim's property and expressed her shame and remorse for that behaviour. However, it is apparent that she is still attempting to minimise her criminality. She claims that she had no intention of assaulting the victim but that the victim stepped in the way as the applicant attempted to swing the baseball bat at the television. 13 In sentencing the applicant, his Honour noted that she had no prior criminal record but he was of the view that the offences were extremely serious and that general deterrence had to play a large part in the sentencing of the applicant and her co-offender. His Honour stated: