Director of Public Prosecutions v Burdett

[2017] VCC 1227

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-01449

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM BURDETT

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	30 August 2017
CASE MAY BE CITED AS:	DPP v Burdett
MEDIUM NEUTRAL CITATION:	[2017] VCC 1227

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms E. King	Slater King Lawyers

HIS HONOUR:

1This is an unusual case, though it had quite ordinary beginnings.  On
16 April 2017 you, Mr Burdett, were doing something not particularly unusual.  You were with your family, enjoying a drink in the company of your neighbour.  He went to get some more beer from his place not far away.  Three of your then stepchildren, including an 11 year old stepdaughter, went with your neighbour.

2Some time later she told your wife the neighbour had tried to pull her into the house.  Somehow this was translated by your then wife into an allegation that the neighbour had tried to rape your 11 year old daughter.  This information, and having had some beer and rum, although you do not blame that, you exploded in rage.  You ran for the neighbour, threatened to kill him.  He himself ran and escaped.  You went to his house and unleashed an episode of destruction.

3The house was not owned by the neighbour so the damage was caused to someone else who had nothing to do with the anger you felt for your neighbour.  You knew the owner and knew your neighbour was not the one who owned the property that you destroyed.

4You then took to your neighbour's car, causing damage to his ute.  On your arrest you immediately confessed and expressed remorse.  You simply said you saw red and lost control and perspective.  You have pleaded guilty to making a threat to kill, burglary and criminal damage.

5Your conduct must be denounced.  You cannot act on half a story and then, as it were, take the law into your own hands and exact retribution with mindless, violent destruction of property.  I take into account that you did think that your young stepdaughter had been at risk.

6You are a 50 year old, hardworking man.  You had a long and solid history of employment.  This is very much to your credit.  Unfortunately, you were injured at work in your late 40s and have not been able to resume working.  You have depression at a significant level.  You are medicated by your general practitioner.  You were referred to a psychiatrist.  You are under the care of a psychologist from time to time.  You have attempted suicide three times and been hospitalised.

7You were married for 13 years.  That ended about 2008.  Your daughter from that relationship lives with you and provides you with significant emotional support and you the same to her.  She provided me with a letter which was very helpful and she is here in court today.

8You met your ex-wife in December 2016, that is the woman who was there on the day that these events occurred. So you met her in December 2016.  You were married on 1 April 2017.  This incident happened two weeks or so later on 16 April 2017 and by the end of April your ex-wife had disappeared, taking large amounts of your money, that is a deposit that was paid for the sale of your house, and you have not been able to contact her since.  This has been an unhappy period in your life.

9You have no relevant prior history.  I take this outburst on 16 April as the only time you have caused any problems for the community or any member of it.  This outburst was out of character and a chance of a repeat is small.  You have learnt a harsh lesson, facing up to what you did.  Deterrence to you is not an important consideration but nonetheless I consider you are well deterred by the process of having to come to court.  Your remorse is important.  In my view, the community is more comfortable if an offender who is seeking a second chance is remorseful and thus unlikely to re-offend.  That is you in this case.

10Your early plea of guilty means your penalty will be less and of a different kind than it would have been had you contested these charges.  There needs to be, as I said, denunciation in the form of punishment, also a message of deterrence must be sent to those who may be inclined to take the law into their own hands and go into private homes and cause trouble.  However, given your own circumstances and that your future is likely to be a lawful one, I am of the view that a community corrections order is the just and appropriate sentence for you.

11I have heard submissions put, seeking a community corrections order with perhaps indications that you need to undergo anger management courses.  I am normally very easily persuaded about that but in this case it seems to me your anger was one off and very much it arose in the situation you found yourself in.  I think you have given yourself your own training or the like in anger management by reason of having to come to this court and waking up to yourself.  So I do not propose to require you to do such a course.  Places are quite limited in those.

12You are under the treatment of your doctor and you should consider all that is proposed for you in terms of mental health.  You have, it seems, some level of fragile mental health and a level of depression requiring medication.  Just make sure that you stick with what your doctors say.  I do not propose to, through the courts, mandate that you go along and do any other assessment or treatment for your psychological difficulties.  So that leaves that you be punished in a public way for what you did.

13This damage was extensive, by the description of it, and the car.  So what I propose is that you, as an aggregate sentence for each of the crimes, be placed on a community corrections order for 18 months.  I take into account you have physical problems and that as a consequence I will reduce the number of hours that you are required to do.  So you are required to do 150 hours of unpaid community work.  It would have been more if your health had been - that is if you had not got a fused back following injuries, 150 hours of unpaid community work.

14A document is going to be printed out soon.  I will read out all the conditions that apply in respect to the community corrections order, that is those that apply to everyone and the one that applies specifically to you.  That community corrections order in all the circumstances will be one with conviction.

15There are two orders for compensation that you do not stand in the way of:  that you repay the owner of the place the excess that he had to pay on his insurance of $250; and that you pay the owner of that car that you damaged $1345.05.  They are orders for compensation that you must meet.

16MR MOORE:  Your Honour, in relation to that 464 application, I did inadvertently mislead the court there.  There are two situations:  one is retention of a sample already taken, in which case it is automatic upon conviction or finding of guilt; the other is an application for the taking of a sample.

17HIS HONOUR:  Yes.

18MR MOORE:  That is discretionary, Your Honour.

19HIS HONOUR:  Yes.

20MR MOORE:  I am sorry about that.

21HIS HONOUR:  No, not at all.  I asked if it was discretionary because it just seemed to me at the time, having heard the circumstances and the fact of this man ever being in court for 50 years save for a tax return matter, that this is not a case where the seriousness of the offence requires it, that his past requires it or it is really in the interests of justice that he provide a sample to the authorities, notwithstanding that if ordered I have got no doubt he would do as required, but I do not make that order.

22MR MOORE:  I make no such submission anyway, Your Honour.

23HIS HONOUR:  Thank you.  We will just produce that document and if you sign that it will bring the matter to an end.  Which Community Corrections office would he be close to?  There is one in Seymour.

24MS KING:  Yes, there is, Your Honour, Seymour.

25HIS HONOUR:  You would know better than I.  Seymour.  Mr Burdett, as I said, this will go for 18 months from today to 27 February 2019.  So all next year and into the beginning of the year after.  The terms that apply to everybody who is on a Corrections order are these:

you must not commit another offence for which you could be imprisoned during the time of this order.  So do not commit any offence in the next
18 months.  In fact do not commit another offence ever, but if you do in the 18 months you will come back before me and I will be none too happy;

you must comply with obligations and requirements that are set out in some sentencing regulations.  More than likely they will need to take a photo of you or somehow identify you.  You have just got to cooperate for that;

report to, and receive, visits from the Office of Corrections;

you must report to the Community Corrections Centre there in Seymour, the address is here, within two clear working days;

you must tell them if you change your address or your job.  You have got to do that within two clear working days;

you cannot leave Victoria without getting permission to do so.  That is over the border for any reason;

you must obey all lawful instructions and directions of the Office of Corrections.  So you can see there is a good deal there that says just cooperate with them.

26Other than those mandatory conditions that apply to everyone the condition that applies to you is you must perform 150 hours of unpaid community work over the 18 months.  You must jut get amongst it, do the hours, find what work you can do and be sensible, obviously you will, that you do not do things that put at risk your health or the like.  Talk to your solicitors and doctors about that, but get work of the kind that you are currently doing, if that is possible, in a voluntary capacity.  If you sign this it will bring the matter to an end.  Those compensation orders might need a bit of tidying up.  Will we have those orders today or shortly?

27MR MOORE:  They will be today.

28HIS HONOUR:  Thank you.  Mr Burdett, I suppose there will be copies of that or Ms King does, to give to him.  In any event, here is this Corrections order.  You will get a copy of all that.  Is there anything further required in this case other than the tidying up of compensation orders?

29MS KING:  No, Your Honour.

30HIS HONOUR:  Thank you.  Thank you for your significant assistance.  You can see by reason of your outline and the like I was able to deal with the case fairly promptly.

31MS KING:  Thank you.

32HIS HONOUR:  Can you speak to Mr Burdett to help me in one regard, and that is just find out precisely how hard it was or the sense of things from that dock.  I cannot just let these things continue on.  If improvements need to be made so that accused people can participate in the trial.

33MS KING:  Yes, Your Honour.

34HIS HONOUR:  Then they will have to be done.

35MS KING:  Yes, Your Honour.

36HIS HONOUR:  Or other arrangements will have to be made.

37MS KING:  Yes, Your Honour.  I will speak with him about that.

38HIS HONOUR:  If you just ask him whether, if he sat down he could hear and if he could not, is it because he is hard of hearing or because it is just impossible.

39MS KING:  Yes, Your Honour.

40HIS HONOUR:  If you would tell me at some later stage I would be grateful.

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