Burns v R [2019] NSWCCA 24

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Burns v R [2019] NSWCCA 24 Hearing dates: 1 February 2019 Date of orders: 18 February 2019 Decision date: 18 February 2019 Before: R A Hulme J at [1]; Wright J at [3]; Fagan J at [69] Decision: (1) Extend the time for filing the notice of application for leave to appeal to 24 September 2018.

(2) Grant the applicant leave to appeal against sentence.

(3) The appeal against sentence is allowed.

(4) The aggregate sentence imposed in the District Court on 9 December 2016 is quashed.

(5) The applicant is sentenced to an aggregate term of imprisonment for 10 years with a non-parole period of 6 years and 6 months. The sentence is to date from 2 March 2016 and expires on 1 March 2026. The applicant will become eligible for release on parole when the non-parole period expires on 1 September 2022. Catchwords: SENTENCE – discharge firearm with intent to cause grievous bodily harm – possess a shortened firearm – assault occasioning actual bodily harm – whether the sentencing judge relied on the wrong maximum penalty in relation to Count 2 – whether the sentencing judge erred by failing to find a causal link between the applicant's mental health issues and the offending – applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW) Firearms and Weapons Prohibition Legislation Amendment Act 2015 (NSW) Cases Cited: Andreata v R [2015] NSWCCA 239 Baxter v R [2007] NSWCCA 237 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 317 DL v The Queen [2018] HCA 32 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Lachlan [2015] NSWCCA 178 R v Rayment [2010] NSWCCA 85 Vossos v R [2016] NSWCCA 262 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Kenneth Burns (Applicant) Regina (Respondent) Representation: Counsel: M Avenell (Applicant) P Leask (Crown)