Director of Public Prosecutions v Burge (a pseudonym)
[2024] VCC 1825
•15 November 2024 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON BURGE (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2024 (Plea and Sentence) | |
DATE OF SENTENCE: | 15 November 2024 (ex tempore) | |
CASE MAY BE CITED AS: | DPP v Burge (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1825 | |
REVISED REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Three charges of breach of supervision order – one-rolled up charge of contravene curfew condition of supervision order – two other charges of possession and use of drugs contravening supervision order – prior history of breaches – specific deterrence – rehabilitation – Renzella time
Legislation Cited: Serious Offenders Act 2018 (Vic), s169 and s174(4); Sentencing Act 1991 (Vic), ss6AAA, 112A(1), 113, 113B, s229 and s291
Cases Cited:R v Renzella (1997) 2 VR 88
Sentence:Three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Barrett | Solicitors for the Office of Public Prosecutions |
| For the Accused | Ms B Proud | Robinson Gill Lawyers |
HER HONOUR:
Introduction
1On 6 November 2024, Aaron Burge[1] made an application before me for bail after having been placed in custody on charges of breaching a supervision order (“SO”) by drug related offending and breaching a curfew.
[1] A pseudonym
2I refused bail and published my reasons.[2] By agreement with the parties, a plea was listed for 15 November 2024, to allow Mr Burge time to have the drug related offending dealt with in the Magistrates’ Court.
[2]Burge (a pseudonym) v DPP (Ruling) [2024] VCC 1758
3The plea for three charges relating to the breach of SO was heard and Mr Burge was sentenced on 15 November 2024. The parties have been provided with a transcript of the sentence.
4During my sentencing remarks, Mr Burge’s counsel and the prosecutor consented to the sentence being abridged on the basis that more fulsome reasons for sentence will be provided in due course.[3]
[3]See Transcript of Sentence dated 15 November 2024, at paragraphs [8]-[11]
5These are my revised reasons. They incorporate the sentencing remarks read to Mr Burge and the more fulsome reasons for sentence. Where appropriate, I have footnoted remarks which were not made during the sentence.
Background
6Mr Burge, you have pleaded guilty to three charges of contravening a SO, which was imposed by this Court on 6 August 2020 for a period of five years.
7The three charges are detailed on a Final Amended Charge Sheet filed by the prosecution on 13 November 2024, namely:
(a) Charge 1 – contravening condition 8.2 of your SO between 17 and 18 October 2024 by not being present at your residence between 10:00pm and 6:00am (this being a rolled-up charge to include Charge 2), pursuant to s169(1) of the Serious Offenders Act 2018 (Vic) (“the Act”);
(b) Charge 3 – contravening condition 8.5 of your SO on 18 October 2024 by possessing a prohibited drug, namely heroin, pursuant to s169(1) of the Act; and
(c) Charge 5 – contravening condition 8.5 of your SO on 18 October 2024 by using a prohibited drug, (methylamphetamine), pursuant to s169(1) of the Act.
8Through your counsel, you applied to have the charges heard summarily in this Court. I granted that application.
9The maximum penalty for each contravention, where dealt with summarily, is two years imprisonment or five years imprisonment for multiple offences.[4] Further, the maximum fine that this Court may impose on you is 500 penalty units.[5]
[4] Pursuant to s174(4) of the Act; Sentencing Act 1991 (Vic), ss113 and 113B
[5] Pursuant to s112A(1) of the Sentencing Act 1991 (Vic)
10Prior to your plea, and by email dated 13 November 2024, the parties informed the Court that the matter had resolved in that Charges 4 and 6 were withdrawn, and Charge 2 was rolled-up into Charge 1, as above.[6] I consider this a plea at the earliest possible opportunity and you receive a significant discount for that.
[6]The details of the resolution of the matter were omitted in the pronouncement of the sentence
11You have an extensive criminal history, which has been filed with this Court (as at 13 November 2024), and which you have admitted.
12Further, and as at 15 November 2024, but excluding this date, you have 28 days of pre-sentence detention available to you. It is also acknowledged by the prosecutor that you have 45 days of Renzella[7] time constituted by you having spent time in custody on charges which were subsequently withdrawn, on two occasions – between 16 May 2024 and 25 June 2024 and from 22 September 2024 to 6 September 2024.
[7] R v Renzella (1997) 2 VR 88 (“Renzella”)
Circumstances of offending[8]
[8]All paragraphs under this heading were not read out at the Sentence, see footnote 3 above
13The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 13 November 2024 (“Crown Opening”).[9] The Crown Opening also contained three appendices, being appendix A – procedural chronology, appendix B – index offending, and appendix C – previous breaches. Through your counsel, you accepted the contents of that Crown Opening as an accurate summary of the events in question. I will briefly set out the pertinent facts upon which you will be sentenced.
[9] Exhibit 1
14You are currently 37 years old and have previously appeared before this Court multiple times for a total of seven breaches of a SO and three breaches of an interim SO. The conditions you have previously breached included conditions not to use drugs of any kind and curfew conditions.[10] On one occasion, you committed an offence of assault which was a breach of the conditions of the SO directly related to the purpose for which the SO was imposed on you. With the exception of one contravene SO charge, you received prison terms for all of the prior breaches.
[10]As submitted and agreed between the prosecutor and defence counsel during the plea
Rolled-up charge 1
15On 20 September 2024 a direction was issued by the Post Sentence Authority[11] which required you to reside at a specific address in Werribee. You were subject to a Supervision Order made on 21 July 2022. Pursuant to that order, you were required to abide by the following (relevant) conditions
(a) a curfew which required you to be at that address between 10PM and 6AM each night,
(b) not to possess prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind
(c) be subject to 24 hour electronic monitoring by wearing a device designed for that purpose.
[11]Pursuant to s291 of the Act
16At approximately 10:02pm on 17 October 2024, a member of the public called triple zero requesting police assistance on the Geelong Bypass, Corio, heading Werribee bound. The member of the public, was describing your behaviour to the police, and stated that you were a “drunk or erratic driver”.
17At approximately 10:14pm on 17 October 2024, you were on the Princes Highway near Avalon Road, Lara. You pushed the SOS button in your Toyota Utility vehicle. As a result, a Toyota agent, called triple zero requesting police assistance to conduct a welfare check on you.
18At approximately 10:50pm on 17 October 2024, a Corio police unit located you in your vehicle on the side of the Princes Highway in Corio. Your vehicle was running, and you were the only occupant, sitting in the driver's seat. You advised police that you were lost and required assistance to get home due to not having a phone. Police then gave you directions on how to get home and you departed from that area at approximately 11:00pm.
19The Body Worn Camera footage taken by police was reviewed by the Supervision Order Specialist Response Unit who formed the view that you appeared to behave in a slightly erratic and odd fashion.
20You failed to drive home, and electronic monitoring data indicated that you had instead driven to the Campbell’s Cove carpark in Werribee South, arriving at approximately 11:55pm on 17 October 2024.
21At approximately 12:30am on 18 October 2024, a detective who was performing response duties for the Supervision Order Specialist Response Unit (“SOSRU”), requested police to attend the above address due to your breach of the curfew condition of your SO.
22At approximately 1:00am on 18 October 2024, police located you in your vehicle at Campbell’s Cove in Werribee South. You were apparently asleep, lying across the driver’s seat with your legs sticking out. The vehicle was running, When awoken by police, you again told them you were lost, could not get home and you did not know how you came to be at this location. The attending police formed the view that you were drug affected and refused to allow you to drive. They took you home and you returned to your residence in Werribee at approximately 2:00am
Charges 3 and 5
23O 18 October 2024 at 11am, police intercepted your vehicle in your driveway and conducted a drug test which was subsequently confirmed as positive for methylamphetamine. A Detective arrested you at your address and your vehicle and home were both searched.[12] During the search you were observed to be acting suspiciously. Police located an unused syringe in the console of your vehicle and inside your home, when you were changing out of your trousers, and they located five grams of heroin which you unsuccessfully attempted to flush down the toilet.
[12]Pursuant to s229 of the Act
24You were arrested and taken to the Werribee police station where a further search conducted. Police found a bag containing one gram of heroin in your underwear.
25You were charged with, and pleaded guilty to, two of the offences committed in breach of the SO. They were possession of heroin and attempt to commit indictable offence. You have been sentenced for those two offences by the Magistrates’ Court at Sunshine on 12 November 2024 with conviction to an aggregate $300 fine.
Personal circumstances
26You are now 37 years old and have served time in juvenile justice and adult prison. Drug use appears to be a feature of at least some of your offending.
27On 2 August 2012, you were sentenced for intentionally causing serious injury in this Court to a term of four years and four months’ imprisonment and a non-parole period of two years and nine months’ imprisonment.
28On 18 December 2013, you were sentenced as a serious violent offender for the offence of intentionally cause serious injury and received a term of imprisonment of five years and a non-parole period of two years, with two years of that sentence to be served concurrently with the sentence you were then undergoing.
29It appears that despite lengthy terms of imprisonment, you continue to commit offences. I accept most of these relate to the SO imposed on you for the purposes of monitoring your behaviour and providing you with supervision and rehabilitation. However, some of these committed during the operational period of the SO include drug offences, and one was an offence of assault.
Sentencing considerations
30Given your prior criminal history,[13] it is important for the Court in imposing sentence to recognise that a component of the sentence must be aimed at deterring you from further offending.
[13] Exhibit 2 – LEAP History filed 14 November 2024
31Given the repeated breaches of the SO, you must expect that you will continue to receive sentences of imprisonment aimed at deterring you from future offending of this kind. These may well be increased sentences from ones previously imposed on you for similar offending.
32I accept the submissions by your counsel that you have been in custody for offences which have subsequently been withdrawn. I take into account in a general way the 45 days of time spent in accordance with the principles of Renzella.
33Your counsel indicated you had received drug and alcohol counselling over many years. It appears, however, that you continue to be in need of such assistance as you continue to relapse into drug use despite the strict conditions and despite your obvious awareness of what happens when you breach the SO.
34I accept your counsel’s submission that you continue to require assistance with rehabilitation from drugs through agencies like the Australian Community Support Organisation (“ACSO”) and that Mr Cummins (Psychologist) continues to provide some assistance to you.[14]
[14] Exhibit D1 – Email from Jeffrey Cummins dated 14 November 2024 at 2:39pm
35
However, it appears that your previous engagement with ACSO and with
Mr Cummins, which spans a number of years, have both been insufficient to provide you with the assistance you need. This causes me to have concerns about your prospects of rehabilitation.
36It is to your credit that you have family support. Your mother and sister were present in Court to support you. Doubtless, they would prefer to support you in other areas of your life. It cannot be easy for your family to watch their loved one destroy his life with drug abuse.
37I do not accept the submission by your counsel that time served, even taking into account the Renzella time, is sufficient.
38The reason for that is I have taken into account the circumstances of this offending, the circumstances of your previous breaches of the SO and the need to incorporate the element of specific deterrence in your sentence.
Sentence
39I will now announce sentence. Would you please stand Mr Burge.
40
On charge 1, you will be convicted and sentenced to a term of imprisonment of
2 months.
41On charges 3 and 5, you will be convicted and sentenced to a term of imprisonment of 2 months aggregate.
42I order that one month of the sentence imposed on charge 1 be served cumulatively on the aggregate sentence imposed on Charges 2 and 3.
43That makes a total effective sentence of 3 months’ imprisonment.
44I declare you have served a period of 28 days by way of pre-sentence detention.
45Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have sentenced you to a total of five months imprisonment.
46HER HONOUR: Are there any other matters?
47COUNSEL: No, Your Honour.
48HER HONOUR: Thank you. Mr Burge, how you live your life is entirely a matter for you. If you wish to continue to use drugs there are consequences for that. You are old enough now to be able to make different decisions in your life, better decisions, and I hope that you are able to in future to do that. That will mean that if you can demonstrate rehabilitation it may be that you can be taken off this supervision order which has caused you such restriction. I wish you all the best.
49COUNSEL: As Your Honour pleases.
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