Director of Public Prosecutions v Burgess

[2018] VCC 637

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 17-00865

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC BURGESS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	30 April 2018
CASE MAY BE CITED AS:	DPP v Burgess
MEDIUM NEUTRAL CITATION:	[2018] VCC

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 D. Cordy	Office of Public Prosecutions
For the Accused	Mr S. Petrovich	Emma Turnbull & Associates

HIS HONOUR:

1Eric Burgess, you pleaded guilty to the following drug offences: 
Trafficking in cannabis between 1 November 2015 and 14 June 2016.  Trafficking in 1,4-Butanediol between the dates of 5 May 2016 and 14 June 2016.  This trafficking was in not less than a commercial quantity.  The trafficking in methamphetamines between 3 June 2016 and 14 June 2016 and trafficking in oxycodone on 2 May 2016.

2Further, you pleaded guilty to the possessions of the proceeds of crime being $2,900 cash  (indistinct) premises.  As these pleas of guilty make clear, you operated an ongoing business in drug trafficking in the north east region of Victoria over an extended period of time, trading in a range of illegal substances.

3The prosecution summary of the facts tendered on the plea establish that you bought or secured significant amounts of cannabis and 1,4-Butanediol, that you then broke down into smaller quantities for sale to others who on sold to users or used themselves or both.  Police operation revealed many telephone calls relating to your wholesale purchases and your on selling of smaller amounts.  Also, there was surveillance of you engaging in drug trafficking.

4In respect of the charge relating to the cannabis, the prosecution summary of the evidence establishes that you obtained the drug from your co-accused, Michael Wright, in amounts of 1 or 2 pounds at a time.  You then engaged your niece, Tammy Burgess, to weigh and pack cannabis into 1 ounce lots.  You used Tammy Burgess' house in Cobram as a safe house so you and your house were at arm's length from some of the risks of detection.

5Tammy Burgess was herself charges and dealt with in the Magistrates' Court, along with a number of other co-accused who distributed drugs sourced from you.  Tammy Burgess cooperated with the police and made a statement implicating you.  So too did others.

6What Tammy Burgess' evidence establishes is respect of the cannabis was that you would deliver to her pound lots or thereabouts for her to breakdown to the smaller quantities, mainly ounces.  You would then call her, advising a purchaser would come to her house to buy the drugs.  You would then come to collect the money at a later point.  So, in that sense, you were not just the wholesaler who left the smaller sales to others.  You arranged and negotiated sales yourself.

7Another co-accused, Natasha Check, also took larger amounts of cannabis to bag up and sell in similar fashion to Ms Burgess.  She too was dealt with in the Magistrates' Court.

8Searches at homes of Tammy Burgess and Natasha Check on 14 June 2016 found significant amounts of cannabis, Ziplok bags and digital scales.

9Another co-accused, Kyle Dewall, also got and sold on cannabis for you. 

10As noted, you secured cannabis from Mr Wright in pound lots.  There were numerous transactions.  Precise quantities are not able to be ascertained.

11I sentenced Mr Wright separately for trafficking in cannabis alone.  That contrasts to your broader trafficking operation involving other drugs and a network of distributors.  Mr Wright's personal circumstances were quite unique given he has an acquired brain injury and the deteriorating health of his wife with cancer.

12You, Mr Burgess, have pleaded guilty to a single between dates charge of trafficking in 1,4-Butanediol in not less than the commercial quantity.  The maximum term for this offence is 25 years' imprisonment.  You obtained this drug in litres from a co-accused, Alan Matrikov.  Then you would often, via
Ms Burgess, sell the drug in smaller quantities in millilitres.  Mr Matrikov was sentenced by Judge Meredith.  Again, his personal circumstances were, it seems, compelling and he was only dealt with for the one drug that he had sold to you, whereas you are being dealt with for trafficking multiple drugs sold to many, many others.

13On one occasion, in respect of the 1,4-Butanediol, you went with a co-accused, Reece Jones, to a house in Doveton as arranged by Mr Matrikov and secured two large 750 millilitre or 1 litre bottles of the drug.  When the police raided your house on 14 June 2016, you quickly poured some 1,4-Butanediol down the sink.  An amount was recovered from the pipes, but again, it is difficult to be precise as to the quantities and the purity of the liquid drug.  But by your plea of guilty, it is accepted by you that it was not less than the commercial quantity.

14Your other offences involved smaller sales of methamphetamines and oxycodone.  Both drugs cause havoc in our community.

15On any analysis, your drug offending was serious.  It was organised and it involved array of people and substances.  It was your intention to make profits while distributing drugs that cause grave problems to the users and the community.

16Your counsel submitted that you yourself use drugs, in particular,
1,4-Butanedoil.  I accept that you were a drug user.  You submitted that your trafficking was to support your habit.  While I have no doubt, as I have said, that you were a user of drugs, your crimes of trafficking were to enable you to afford to live after ending your long-term job at Cherryhill Orchid.  Your counsel submitted that you had to resort to using part of your superannuation.  But it is clear on all the material, you were in the business of drug trafficking and made profits as a result.

17As to your personal circumstances, you are now 42 years of age.  You were raised by your mother.  She left your father when you were young due to his violence.  It was said that the effect of being exposed to violence in your childhood still reverberates in respect of your current mental health.  You maintained some contact with your father, who remained violent up until you were about 15.

18You have older twin sisters.  You, your siblings and your mother were very close and supportive to each other.  You were educated in Cobram, but only to
Year 8.  Thereafter, you secured work with the local council, but that did not last long.  You then had a long-term job at a local orchid up until 2013.

19Prior to that job, you did have casual short-term labouring jobs and periods of unemployment.  But that particular job was long-term and that is to your credit.

20But since you left the orchid in 2013, you have not had any stable employment.

21You have had two long-term relationships and four children.  You spoke frankly to Mr McKinnon, the psychologist engaged by your lawyers about your parenting.  You acknowledged that your drug use and addiction has greatly affected your life and the psychiatrist wrote,

"Mr Burgess recalled that he'd start abusing alcohol and cannabis at age 14.  [Page 16] He was also using amphetamines.  The next ten years, Mr Burgess used amphetamines, habitually used alcohol, cannabis and amphetamines.  At around age 28, he started using methylamphetamines or ice and started using ice daily.  Over the last years, Mr Burgess' main substance abuse has been juice, liquid G or GHB with reduced levels of ice.  Mr Burgess stated that he has blown out on juice many times, but never received formal medication attention."

22You reported that you had never engaged in drug and alcohol counselling or community treatment programs and he quoted you.  "I've used drugs every day of my life since 14 years of age.  I only stopped when I came to prison."

23As to your mental health, I accept the views of Mr McKinnon expressed as follows.  He says,

"In my opinion, Mr Burgess' functional intelligence fell within the normal adult range.  His general cognitive function appeared to be normal.  His immediate short-term and long-term memory faculties appear normal.  At the time I assessed him, Mr Burgess was appropriately oriented in time, place and person and did not appear to be suicidal.  Mr Burgess appeared to be suffering with moderate to severe depressed mood disorder, depression, but he appears to have largely overcome pre-existing polly substance abuse disorder.  However, he has been held in a contained environment for 20 months and upon his eventual release from prison,
Mr Burgess will be at risk of relapsing into illicit substance abuse, especially if his general living circumstances are not satisfactory and secure.

Mr Burgess appeared to be chronically depressed over the death of his mother three years ago, his distressing childhood and failed relationship history, his estrangement from his eldest children and general parenting failures, his substance abuse and associated offending history, his loss of financial assets, his current imprisonment and so on.

In my opinion, Mr Burgess struggles with chronic fears of personal abandonment and rejection, low self-esteem, guilt, depression, occasion (indistinct), intermittent hopelessness and so on.

In my opinion, despite his most prevent offending, Mr Burgess does not possess an entirely anti-social criminal disposition.  Mr Burgess' offending history is to be essentially a consequence of his illicit abuse, substance abuse and he'll need to overcome his self-destructive pattern if he is to void relapsing into offending and instead, make significant rehabilitative progress."

24I do note the death of your mother some three years or thereabouts ago and the fact that it has left a significant mark on you.  It was an event, together with the end of your then relationship that saw you increase your drug use as a method of self-medication.  It seems you have come to realise that drug use has meant that you have not been a good and stable influence on your younger son.  You are keen to put that to rise.

25You have been in custody for 685 days.  You have done all you can in prison in terms of courses and training.  You have had clean urine samples.  It is hoped that this means you will be better motivated to stay off drugs upon your release.  In this regard, what Mr McKinnon says is that in the end, a good deal of you rehabilitating will be up to you.

26Gaol is hard because of your isolation from your family.  You have had no visitors.

27Your prospects of rehabilitation are reasonable given all you have done in prison and especially your acknowledgement of how drug use has dragged you down.

28You eventually pleaded guilty, but it was as a trial was about to start.  You saved resources, but the mitigatory benefits of any early please cannot flow to you.  Nonetheless, your sentence will be less because of your plea of guilty.

29You have been too long on remand, but the context is that this case was going to trial, then, once it resolved, your counsel needed time in order to prepare your plea.

30As mentioned, your co-accused, for various charges, have been sentenced.  Thus, in considering the principle of parity, I have been careful to ensure that the significant difference between you and Mr Wright and you and Mr Matrikov have been reflected in the sentencing process.  As I said, in sentencing
Mr Wright, his particular circumstances meant that his moral culpability was lower and he was not a suitable candidate for general deterrence, and any need for specific deterrence was also moderated.  The reliance he had on his wife and now her reliance on him was compelling evidence.  Thus, the more limited circumstances of his offending and the powerful mitigatory circumstances of him as the offender means that your sentence must be sterner than his. 

31As I said, another judge sentenced Mr Matrikov and again, the circumstances with such has to justify the judge imposing, as part of the sentence, a community corrections order.  Having considered that sentenced and the reasons for it again, what is required here is a more sterner sentence for you than him because of the differences in the circumstances of your offending and the circumstances of you as the offender.

32Your counsel submitted that with the time that you have served in prison, that I should impose a community corrections order which would then operate to facilitate your rehabilitation.  The prosecution contended a sentence with the prospect of parole was more appropriate.  In my view, the drug trafficking of the amounts and the different types of drugs means that denunciation and deterrence and protection of the community, taken with the need for your rehabilitation.  Nonetheless, leads me to impose a term of imprisonment and the fixing of a non-parole period.

33After much thought, I do not consider that a community corrections order is warranted.  I do not seek a report.  That was not because I had foreclosed on that option, but after considering all the materials and the submissions, it was not, in my view, the just and appropriate sentence.

34Doing the best I can, I impose a following sentence of Charge 1, trafficking in cannabis.  You are sentenced to two years' imprisonment.

35Charge 2, the trafficking in the oxycodone.  You are sentenced to one month imprisonment.

36Charge 3, trafficking in the 1,4-Butanediol in not less than the commercial quantity.  You are sentenced to three years' imprisonment.

37Charge 4, the trafficking in methylamphetamines.  You are sentenced to four months' imprisonment.

38For possession of the proceeds of crime, you are sentenced to
14 days' imprisonment.

39Twelve months of Charge 1 and two months of Charge 2 are cumulative upon each other and upon Charge 3, the base sentence.  That gives a total effective sentence of four years and two months and I fix a minimum non-parole period of two years and nine months.

40Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of five years and two months, and a minimum term of three years and nine months.

41As mentioned, you have been on remand for 685 days.  This figure having been reckoned, I now declare that it is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the courts so the prison authorities are left in no doubt that you have served 685 days of the sentence that I have just imposed.

42The prosecution have sought a forensic sample from you pursuant to the provisions of the Crimes Act and I intend to grant that application.  The reasons for that are the seriousness of the offending and because it is in the interests of justice that you provide a forensic sample.  What that means is that the authorities will come and get a sample from you being a swab from your mouth.  You are to cooperate with that and if you do not, then the authorities are authorised to use reasonable force to get the sample.

43There are other orders in terms that I would need to deal with, which I will get from.  That is, there is a forfeiture order in relation to a firearm.  I will sign that order and there is a disposal order in respect of various drugs and some bottles and scales and so forth.  Those orders will be signed.

44MR CORDY:  As Your Honour pleases.  I just wonder if we could check the sentences again, Your Honour.  As I understand it, Your Honour sentenced on Charge 1 two years.  On charge ‑ ‑ ‑

45HIS HONOUR:  Cannabis?

46MR CORDY:  Yes.

47HIS HONOUR:  So if I have got the numbers wrong, please help me.

48MR CORDY:  Yes.  The traffic oxycodone, I had Your Honour's sentence as one month.

49HIS HONOUR:  Yes.

50MR CORDY:  But I think Your Honour cumulated two months.

51HIS HONOUR:  No, no, I cumulated two months on the, I am sorry, on the methamphetamines.  I am so sorry.

52MR CORDY:  Yes.  So that is on Charge 4, yes.

53HIS HONOUR:  It is two months on Charge 4.  I am sorry.  Yes, charges.

54MR CORDY:  Yes, thank you.  That was the only query.

55HIS HONOUR:  There is no cumulation for oxycodone or possession of proceeds of crime.

56MR CORDY:  Yes, Your Honour.

57HIS HONOUR:  Those documents are now signed.  The mathematics add up, does it?

58MR CORDY:  Yes it does, Your Honour.

59HIS HONOUR:  Is there any further required?  Thank counsel for their considerable assistance.  Mr Burgess can be taken down.  There is some other matters I have to deal with, Mr Petrovich.  Feel free to leave the Bar table and if you need to go and see Mr Burgess out in the police station, I will sign the order for his removal ‑ ‑ ‑

60MR PETROVICH:  Thank you, Your Honour.

61HIS HONOUR:  ‑ ‑ ‑ as soon as possible to get him away.  Thank you.

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