Director of Public Prosecutions v Bourke
[2023] VCC 2108
•30 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01182
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEFFEREY BOURKE |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 October 2023 |
DATE OF SENTENCE: | 30 October 2023 |
CASE MAY BE CITED AS: | DPP v Bourke |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2108 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Attempted theft - destroying property - causing injury intentionally – make threat to kill – unlawful assault - commit indictable offence whilst on bail - discharge missile - trespass
Legislation Cited:
Cases Cited:
Sentence:3 years and 6 months' imprisonment,
2 years and 4 months non-parole period---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Petric | Office of Public Prosecutions |
For the Offender | Ms C. Khoury | SLKQ Criminal Lawyers |
HIS HONOUR:
1Jefferey Bourke, you have pleaded guilty to an indictment containing five charges:
- Charge 1 of attempting to steal from Le Ping Pooh, for which the maximum penalty is imprisonment for five years;
- Charge 2 of intentionally and without lawful excuse destroying a door belonging to Bareetie Jackson, for which the maximum penalty is imprisonment for 10 years;
- Charge 3 of aggravated burglary, for which the maximum penalty is imprisonment for 25 years;
- Charge 4 of causing injury intentionally, for which the maximum penalty is imprisonment for 10 years; and
- Charge 5 of making a threat to kill, for which the maximum penalty is imprisonment for 10 years.
2You have also asked me to take into account and have pleaded guilty to four related summary offences:
- Summary Charge 7 of unlawful assault, on the same victim the subject of Charges 4 and 5 on the indictment, for which the maximum penalty is imprisonment for three months;
- Summary Charge 10 of committing an indictable offence whilst on bail, for which the maximum penalty is imprisonment for three months;
- Summary Charge 12 of discharging a missile at the shop window of the milk bar which is related to Charge 1 on the indictment, for which the maximum penalty is imprisonment for six months; and
- Summary Charge 15 of trespass, that is an entry into Mr Easto's bedroom, for which the maximum penalty is imprisonment for six months.
3You have also admitted a prior criminal history which contains, amongst other things, offences of burglary, theft and affray. The burglary conviction was on 27 April 2022 at Dandenong Magistrates Court for which, along with other offences of dishonesty, an offence of affray and possessing a Category A longarm and without excuse entering a private place, you received an aggregate sentence of 150 days' imprisonment along with a community correction order for a period of 18 months.
4The prosecution tendered and relied upon a summary of prosecution opening for sentence indication which became the summary of prosecution opening for the plea, Exhibit A. That has just been read to the court and I do not propose to repeat it.
5Turning to matters personal to you.
6Your counsel provided me with outline of submissions on sentence indication, Exhibit 1, along with an outline of submissions on plea which is Exhibit 2. I found those submissions carefully prepared, comprehensive and helpful in summarising the effect of the psychological and psychiatric reports, and I found the sentencing submissions well calibrated. I also found the sentencing submissions of Mr Petric helpful and he is to be commended for the sensible and fair approach which he has adopted in these proceedings.
7In addition, I was provided with a report from forensic psychologist Carla Ferrari dated 31 March 2022 which was clearly prepared for the purposes of your last appearance before the court on 27 April 2022 for the offences which I have already outlined. That is Exhibit 3. Exhibit 4 was a report from Dr Adam Deacon, consultant psychiatrist, dated 27 June 2023.
8I found both of those reports extremely helpful and well prepared. I am often critical of psychologists in this court, the quality of their reports and lack of reasoning behind the opinions that are expressed. I think it is only right that, when I see a report that is outstandingly good, I should acknowledge that, and I do. I found the report of Carla Ferrari particularly well prepared and well‑reasoned and I commend her for its quality.
9The essence of the submissions is that, quite apart from relying on the pleas of guilty and the submission that these are to be treated as early pleas of guilty, and the acceptance of criminal responsibility and remorse which those pleas have underscored, there is a history which goes back to your early childhood, Mr Bourke, which is relevant to sentencing.
10There is no doubt that you were under the influence of drugs, probably a cocktail of drugs, at the time of this offending conduct. It seems that much of your recent offending has been influenced by, if not substantially caused by, your fairly longstanding drug abuse habits.
11The submission of your counsel was substantially based on the proposition that you were psychotic at the time of the offending. It seems clear from the facts of the case, including your utterances during the course of your offending, that you may well have been deluded as a result of your drug abuse and you were heavily under the influence of drugs.
12You have a history of drug-induced psychosis, and as the prosecutor rightly pointed out on the last occasion, this is not something new to you. You are aware that if you take drugs you are liable to become psychotic, and that under psychosis you are more likely to commit offences, and serious offences. The argument against you is that you should have known better before you took drugs and ran the risk that you would become psychotic and engage in criminal behaviour.
13Ordinarily that is a well-founded argument and would result in little, if any, weight being given to the fact that you were under the influence of drugs when you committed the offending. But with the benefit of what I have already described as an extremely well argued report from Carla Ferrari, and indeed from Dr Deacon, it is a bit more complicated than that.
14Firstly, there is a very significant contributing factor arising from your very difficult childhood. Your mother died when you were very young and, apart from a period of three years between the ages of seven and 10, you had little in the way of sound parental influence and stability in your homelife. Indeed, you left home at the age of 15 and were homeless for a period of time.
15Your drug-taking began when you were aged 13 and was not discouraged by your father, perhaps even encouraged. By the time you were 21 you had started taking methylamphetamine, and it is argued by Ms Ferrari that there is a link between your drug-taking and your very difficult upbringing.
16It seems to me that the principles that arise from the well-known case of Bugmy apply in your case and that one cannot simplistically separate out your very unstable and difficult upbringing and your disrupted schooling attended by disciplinary issues, expulsion from school and suspension from your background. Your drug-taking may reasonably be attributed to a desire to ameliorate the hurt and the mental impairments that arose from your upbringing.
17It seems clear from the reports of both Ms Ferrari and Dr Deacon that for many years you have suffered from attention deficit hyperactivity disorder and from post‑traumatic stress disorder, and that those conditions have resulted in you self-medicating from adolescence, leading to cannabis and stimulant-use disorders, and ultimately to a substance-induced psychotic disorder as well as a schizoid-affective disorder.
18I am not going to go through in detail the psychological report of Ms Ferrari but I identify passages in her report from paragraph 111 onwards where she gives her ‘Psychological Opinion’ that there is a strong basis for concluding that in your case it is appropriate to find a link between your childhood experiences and your addiction to various drugs. It is therefore appropriate to regard the fact of your being under the influence of drugs at the time of your offending and the likely psychotic state in which you were in during your offending as having a significant mitigatory effect on your moral culpability. It is not just drugs, it is a combination of the Bugmy principles and the use of drugs.
19Whether, as your counsel has submitted, that invokes the Verdins principles is not something I need to dwell on. She may be right, but it seems to me that the combination of factors arising from the application and, in my judgment the proper application of Bugmy principles and the consequent reliance upon drug abuse, are mitigatory factors which have the equivalent effect of the application of Verdins principles in reducing your moral culpability.
20That said, this offending was serious offending. As your counsel conceded, specific deterrence, general deterrence, protection of the community, denunciation, and I might add, just punishment, are relevant sentencing considerations. Those principles are to be balanced against the need to promote, as far as possible, your rehabilitation. I note that you have a work record which, although it has been inconsistent in recent times, demonstrates your capacity for work and an ability to hold down jobs requiring responsibility and application.
21So I do not regard your prospects of rehabilitation as hopeless, but you are, I think, at a stage now where you really do have to find a way to get a grip on your drug addictions and your reliance upon drugs which will require, almost certainly, some psychological intervention, perhaps psychiatric intervention, and will require support.
22The offending is not such as would permit me to link a term of imprisonment with a community correction order and it has not been argued that I should, given the serious nature of the offending. But it is to be hoped that there will be a way, perhaps when you are on parole, of helping you find the kind of support and treatment that it seems to me you will need in order to give rehabilitation a red-hot go.
23Aggravated burglary is very clearly to be regarded as a serious offence, particularly when it involves the intrusion into someone's personal space, knowing that they are there and with an intent to commit violence against them. You wasted no time in committing violence against your house-mate, and it is clear from your conduct that day, 20 January 2023, that you were initially intent on getting the benefit of some cigarettes, and under your drug-induced psychosis on that day were intent on getting your way come what may. You were also intent on seeking revenge against your house-mate for not complying with your demands.
24It is necessary to pay proper regard to the maximum penalties. I do not regard the aggravated burglary as a high-end aggravated burglary by any means, but it is serious enough.
25The assault upon Mr Easto, the subject of Charge 4, was a nasty assault. You caused him some quite serious injuries, including broken bones. You need to be punished properly for that, accepting as I do that you were suffering from a drug-induced psychosis at the time, or were likely to have been. Nevertheless, you need an appropriate level of punishment for that offence.
26That is not to dismiss the offence of making a threat to kill, but given that it must have been obvious that you were under the influence of drugs at the time, utterances of the kind that you made to Mr Easto, intended as they were to instil fear into him, were probably not to be taken seriously in themselves, although Mr Easto had enough to contend with, with you striking him with a quite substantial lump of wood and causing the injuries that you did.
27Doing the best I can to marry all those sentencing considerations and paying proper regard to the maximum penalties for each of the offences, I am now ready to proceed to impose sentence.
28On Charge 1 of attempted theft, you are convicted and sentenced to imprisonment for one month.
29On Charge 2 of intentionally destroying a door at your place of abode, that is the door to Mr Easto's room, you are convicted and sentenced to imprisonment for two months.
30On Charge 3 of aggravated burglary, you are convicted and sentenced to imprisonment for two years and seven months.
31On Charge 4 of intentionally causing injury to Mr Easto, you are convicted and sentenced to imprisonment for 22 months.
32On Charge 5 of making a threat to kill, you are convicted and sentenced to imprisonment for a period of 12 months.
33For the related summary offences, firstly Summary Charge 7 of unlawful assault, which seems to me to have been somewhat unnecessary given Charge 4 on the indictment, you are convicted and sentenced to imprisonment for 14 days.
34On Summary Charge 10, you are convicted and sentenced to imprisonment for 14 days.
35On Summary Charge 12 of discharging a missile, you are convicted and sentenced to imprisonment for one month.
36On Summary Charge 15 of trespass, you are convicted and sentenced to imprisonment for a period of one month.
37The base sentence is the sentence of two years and seven months on Charge 3 on the indictment.
38I order that nine months of the sentence of 22 months on Charge 4 and two months of the sentence of 12 months on Charge 5 be served cumulatively upon one another and upon the base sentence of two years and seven months on Charge 3.
39The total effective sentence is three years and six months’ imprisonment.
40I fix a non-parole period of two years and four months.
41I declare 159 days as pre-sentence detention to be reckoned as time served on the sentence I have imposed and deducted administratively from that sentence.
42But for your pleas of guilty, I would have sentenced you to imprisonment for five years with a non-parole period of three years and four months.
43Counsel, are there any other orders that I need make?
44MR PETRIC: No, Your Honour.
45HIS HONOUR: Thank you both for your help. And, Mr Bourke, I hope you have listened carefully to what I have had to say about rehabilitation. It is clear you have been given opportunities in the past and it is now time for you to get a grip on your life, otherwise inevitably you are going to be going back to gaol for perhaps longer and longer periods of time. Thank you.
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