Burgess v R [2019] NSWCCA 13

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Burgess v R [2019] NSWCCA 13 Hearing dates: 1 February 2019 Decision date: 13 February 2019 Before: Hoeben CJ at CL at [1]; Wright J at [57]; Fagan J at [58] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – two counts of supplying an indictable quantity of drugs – offence occurring within two weeks of the expiration of the parole period for similar offending – aggregate sentence of imprisonment for 6½ years with a non-parole period of 4 years – whether sentence manifestly excessive – whether sentencing judge gave effect to her finding of special circumstances – whether undue weight given to specific and general deterrence – applicant a long term drug user – sentence deferred to enable applicant to attend residential rehabilitation facility – attempts by applicant to attend such a facility frustrated by his ill-health – some relapsing into drug use during adjournment period – prospects of rehabilitation "guarded" – question of weight to be given to relevant factors a matter for sentencing judge – error not identified – appeal dismissed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) – s 11 Drug Misuse and Trafficking Act 1985 (NSW) – s 25 Cases Cited: Aslan v R [2014] NSWCCA 114 Biddle v R [2017] NSWCCA 128 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Chaouk v R [2017] NSWCCA 295 Healey v R [2018] NSWCCA 214 House v The King [1936] HCA 40; 55 CLR 499 JT v R [2012] NSWCCA 133 Kresovic v R [2018] NSWCCA 37 Ngati v R [2018] NSWCCA 32 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 Regina v Burgess [2006] NSWCCA 319 R v MacDonnell [2002] NSWCCA 34 Tuite v R [2018] NSWCCA 175 Category: Principal judgment Parties: Robert Burgess – Applicant Regina – Respondent Crown Representation: Counsel: L McSpedden – Applicant C Curtis – Respondent Crown