Director of Public Prosecutions v Burdett

[2020] VCC 880

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00653

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM BURDETT

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2020
DATE OF SENTENCE:	19 June 2020
CASE MAY BE CITED AS:	DPP v Burdett
MEDIUM NEUTRAL CITATION:	[2020] VCC 880

REASONS FOR SENTENCE
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Subject: attempted armed robbery and theft
Catchwords: guilty plea – remorse – grief over grandson’s death – consequent mental disorder – Verdins principles 1, 3 and 5 engaged – unlikely to reoffend – common ground composite sentence within range
Legislation Cited:
Cases Cited:
Sentence: aggregate sentence of 126 days imprisonment (equivalent to presentence detention) and a 2 year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Office of Public Prosecutions
For the Accused	Mr J. Rabl	Victoria Legal Aid

HIS HONOUR:

1Adam Burnett, you have pleaded guilty to one charge of theft and one charge of attempted armed robbery.  You have also pleaded guilty to the summary offences of assault with a weapon and drive whilst suspended. 

2You committed these crimes on 12 February 2020.  The circumstances of your offending are set out in the prosecution of opening.  They are agreed facts.

3Around 7.15 pm you walked into an IGA supermarket at Airport West.  You picked up a four-pack of Wild Turkey Bourbon cans valued at $29.99 and asked the store employee for a packet of Winfield cigarettes valued at $42.90.  When he gave you the cigarettes you started to walk out of the store with the Bourbon cans and the cigarettes without paying for them.  That conduct constitutes the charge of theft.  When he asked you for payment you pulled out a screwdriver and said, 'Don't come near me'.  That conduct constitutes assault with a weapon. Then you walked out of the store.

4About an hour later you went to the Caltex Foodary at Tullamarine.  As you walked to the counter, you said to the store employee, 'Do you know what's going to happen next?'  He said, 'I'm not sure'.  You put your hand on the counter and said, 'Give me the money, everything you have in the till'.  You pointed towards your car outside and you said, 'There's a guy sitting in the car.  He'll come out and smash you'.  You pulled a screwdriver out of your shorts pocket and pointed it across the counter.  When he told you he did not have any cash you swore and him and left the store.  That conduct constitutes Charge 2, attempted armed robbery.

5You drove off in a motor car. You were driving whilst you were suspended.  On 30 August 2019, for an accumulation of demerit points, your licence was suspended for 10 months. 

6The store attendant wrote down the car's registration number and called police. The car was registered in your name.  The episode was caught on CCTV footage. 

7Police arrested you on 14 February.  When questioned you admitted causing some trouble with a screwdriver but said you could not recall the specifics.  You told police where they could find your car, the screwdriver and clothing you were wearing at the time of the offending.  You were charged and remanded in custody.

8On 16 February police executed search warrants at the address you had given them.  There, they found your car and, in the car boot, the screwdriver you had used to assault the IGA employee and to try to rob the Caltex employee.  In the house, they located your bag, which contained the T-shirt you had worn when you offended.

9The proceedings against you were resolved at the committal case conference on 11 May. 

10You have admitted a criminal record.  Relevantly on 30 August 2017 at the County Court in Wangaratta you were convicted of burglary, criminal damage and making threat to kill, and placed on a community correction order for 18 months.  I have had the benefit of reading Judge Mullaly's reasons for sentence.

11On 16 April 2017 a neighbour had been at your home drinking with you.  Later, after he left, when your then wife told you the neighbour had tried to rape your 11-year-old stepdaughter, you exploded into a rage.  You ran to your neighbour and threatened to kill him.  He ran off and you damaged the house he was living in and his car. Judge Mullaly noted within two weeks of that episode your wife disappeared, taking from you a deposit which had been paid for the sale of your house.  She has gone without trace.

12Judge Mullaly described you as a hard-working man who had a long and solid employment history until you injured your back at work when you were in your late 40s.  His Honour found your outburst then was out of character.  He noted you suffered significant depression.  You had a history of three suicide attempts and had been hospitalised. 

13You are now 53 years old.  Your personal circumstances are set out in the report of Allison Mynard, clinical psychologist, who assessed you on 2 June.  You are an only child.  Your parents separated when you were 10 years old.  You remained with your mother until you were 13, when you left school and went to live with your father, who was a diesel mechanic.  You described your father as your best friend.  You completed a diesel mechanic's apprenticeship and, from the ages of 20 to 47, you worked as a diesel mechanic with various trucking companies. 

14You had married in 1995 and have one child, your daughter Nikita, who is now 25 years old.  You separated from her mother in 2008.  Both your parents died in 2014. 

15In 2015 you had a spinal fusion following your work accident and your work capacity has been restricted ever since.  In 2017 you qualified for a disability support pension. 

16On 1 April 2017 you remarried. Your new wife and her 5 children all moved into your home near Seymour. After a month she left you, as I said, taking the deposit paid for the sale of your home, and disappeared. It was 2 weeks before she left that you had threatened your neighbour and damaged the property.

17After your parents died you were grieving for the loss and turned to methamphetamine as an attempt to cope emotionally. At times, you had suicidal thoughts and were treated with antidepressants. You stopped abusing methamphetamine when your grandson was born on 16 June 2018. Your daughter had her own illicit drug problems. She left the child in your care and lived in Sydney. You had been truck driving part time and quick that work to look after your grandson.

18Your care of him was interrupted when you had a heart episode on 24 November 2018.  You had a history of atrial fibrillation and required a mitral valve replacement. On 4 December, against medical advice, you discharged yourself from hospital to look after your grandson.  For the next 12 months you continued to care for him.  Your daughter visited and stayed with you from time to time. 

19On 25 November 2019, you left your daughter and grandson sleeping at home to attend court for community correction order breach proceedings.  When you got home the house was quiet and your daughter was still asleep.  When you checked your grandson, he was lifeless.  He had died of sudden infant death syndrome.  His death and the guilt you feel have devasted you.  You could not remain living in that house and left.  In the weeks preceding your offending you were homeless and relying on friends for somewhere to sleep. 

20You were due to return to court on 14 February in relation to your community correction order.  You told Ms Mynard the prosecution had asked you to get documentary proof from Centrelink that your grandson had died. Your grief and depression escalated. On the day you committed these crimes you are drinking at a friend’s house. You said you had drunk about 6 beers and your memory of the offending was patchy. You said you remembered “the bottle shop a bit” and “a bit of the servo”.

21In Ms Mynard's opinion, the triggers which reminded you of the day you found your grandson dead, combined with the alcohol, impaired your judgment to a high degree, that your logical reasoning was lacking, that your behaviour was impulsive and erratic and you felt emotionally overwhelmed. 

22On 14 February you attended court.  Judge Mullaly accepted your explanation for failing to complete your community work and dismissed the CCO breach charge.  Police arrested you as you walked out of the court building.

23Ms Mynard diagnosed you with depression and anxiety and persistent complex bereavement disorder consequent on the death of your parents and then your grandson's sudden passing.  She assessed your grief symptoms as very acute.  You are struggling in custody and, in her opinion, prison for you is more onerous than for other inmates who are not suffering your grief.  Hospital and medical records confirm the history you gave Ms Mynard. 

24The friend you were staying with when you offended confirmed you were homeless after your grandson's death.  He wrote you were more a parent than a grandparent to your grandson, whose needs you always put ahead of your own.  He said after your grandson's passing you became “an empty shell”.  You would cry uncontrollably and turn to alcohol for comfort.  In his words, you were in a very dark place. 

25He has kept telephone contact with you while you have been in custody.  To him, you sound stronger now and he is confident you will not let yourself go back to the dark place you were in. 

26I have also read your letter of apology.  You expressed empathy for the victims of your crimes and shame for your misconduct.  You admit that you self-medicated with alcohol to try to cope with the loss of your grandson and, having had time in prison to reflect, you now understand how unhealthy that was.

27Mr Rabl, who appeared on your behalf, in comprehensive written and oral submissions acknowledged your offending was objectively serious.  As he conceded, your use of a weapon was threatening and frightening.  Both victims were vulnerable and soft targets.  Although each declined to make a victim impact statement, they were no doubt subjected to an alarmingly traumatic experience.

28However, I accept, as Mr Rabl pointed out, your theft was low value and occurred without damage to property or significant disruption of the business operation; and your intention when you produced a knife was to cause fear and not harm.

29In relation to the most serious of your crimes, the attempted armed robbery, I also accept, again as Mr Rabl pointed out, your conduct was spontaneous and unsophisticated.  You made no attempt to disguise your identity.  The episode was brief and it involved a relatively low level of aggression.

30In mitigation of penalty Mr Rabl relied on the following factors:  your early guilty plea, your remorse, your limited criminal history, your poor physical and mental health and your good prospects of rehabilitation. 

31Relying on Ms Mynard's opinions he submitted your long-standing depression and acute symptoms of grief so impaired your thinking to the extent that your moral culpability was reduced and, also, that general deterrence should be moderated (Verdins limbs 1 and 3).  He also submitted your mental disorders, particularly your grief, will make prison more burdensome than it would on a person in normal health (Verdins limb 5). 

32He submitted, because your offending, whilst involving two separate episodes, was so linked in time the totality principle is applicable and an aggregate sentence appropriate.  He submitted I should impose a sentence combining imprisonment not exceeding your pre-sentence detention combined with a community correction order.

33Mr Batten, who appeared for the prosecution, in helpful and commendably fair submissions, submitted your offending was serious because, in 2 separate episodes, you put persons, who were entitled to feel safe in their workplace, in fear of harm.  He accepted, nevertheless, for the reasons advanced by your counsel, your offending was not a more serious example of the type.  He acknowledged your psychological disorders are significant and of a sufficiently high degree to engage the three Verdins principles Mr Rabl relied on.

34He also acknowledged your personal circumstances including your remorse, the link between your offending and the grief of the loss of your grandson and your low risk of reoffending are strong mitigating factors. 

35He submitted a composite sentence incorporating a custodial sentence equivalent to your gaol time served and a community correction order tailored to assist you to address the issues underlying your offending is within sentencing range.

36Notwithstanding the concessions made by the prosecution, it is the duty of the courts to determine for itself the appropriate sentence.  The crime of armed robbery is inherently serious.  The maximum penalty of 20 years' imprisonment demonstrates as much.  Console operators working in liquor stores and service stations are entitled to the protection of the law.  Accordingly, general deterrence, just punishment and denunciation of your conduct are important sentencing considerations.

37However, I accept in your case, by reason of your mental disorders, your moral culpability is reduced and general deterrence should be moderated.  I also accept prison is more burdensome for you than a prisoner in normal health. As well, I accept you are deeply remorseful for your wrongdoing and are unlikely to reoffend.

38Composite sentences with both punitive and rehabilitative components can be appropriate even in cases of serious crimes such as yours.  I have had you assessed for a community correction order and you have been found suitable.  In relation to your offending you told the assessing officer you were trying to punish yourself for the death of your grandson.  You said you felt sick to your stomach about your wrongdoing and you said that you are committed to address the issues which underlie your offending.  I have some confidence that you will.

39I have decided in your case, notwithstanding the seriousness of your offending, a community correction order combined with a term of imprisonment can properly meet all sentencing purposes, including just punishment and your rehabilitation. 

40Because the offences for which you will now stand convicted were part of a continuing course of conduct, I intend to impose an aggregate sentences for Charge 1, theft, and Charge 2, attempted armed robbery on the indictment, and the summary offence of assault with a weapon.  I will fine you in respect of the driving offence.

41Mr Burdett, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.  Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on Charge 1, theft, and Charge 2, attempted armed robbery, and the summary offence of assault with a weapon, you are sentenced to 126 days' imprisonment, which I declare you have already served by way of pre-sentence detention, together with a community correction order.

42The duration of the community correction order will be two years.  In addition to the core conditions, principally that you not reoffend during the period of the order, I impose the additional special conditions:  firstly, that you attend for supervision when required; secondly, that you attend for drug and alcohol assessment and treatment; and, thirdly, that you attend for mental health assessment and treatment. 

43On the charge of driving whilst suspended you are convicted and fined $250.

44I have imposed a less severe sentence because of your plea of guilty.  While there is some artificiality, I declare but for your plea of guilty I would have sentenced you to 20 months' imprisonment and imposed a non-parole period release period of 12 months. 

45I make an order for forfeiture of the items police seized during the investigation.

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