Director of Public Prosecutions v Burkwood

[2017] VCC 896

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00395

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL JAMES BURKWOOD

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 June 2017
CASE MAY BE CITED AS:	DPP v Burkwood
MEDIUM NEUTRAL CITATION:	[2017] VCC 896

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	Ms E. Tueno
For the Accused	Mr R. Lawrence

HIS HONOUR:

1Samual James Burkwood, you have pleaded guilty to one charge of armed robbery, 17 charges of burglary and 19 charges of theft, and have agreed to the hearing of two summary matters to which you have pleaded guilty, namely driving a vehicle without being the holder of a driver's license and careless driving.  You have admitted your substantial criminal history.

2In relation to Charge 1, I am informed by your counsel, and it is accepted, that was tied up with the charges for which you got the community corrections order on 3 August 2016, and that is the reason why the sentence in relation to that charge is a concurrent one.

3On that day, you had just been released after serving three years' imprisonment.  Your offending for the remaining charges, Charges 2 to 37, was in between 5 August 2016 and 12 August 2016.  This of course means that you breached the community corrections order, which you had barely started, and you had only been out of gaol for a short period of time.

4You told the neuro-psychologist, Jane Lofthouse, at p.3 of her report, that you were able to recount the events that led to the charges and accept to some extent, responsibility for your criminal offending having entered pleas of guilty.  You stated, although you were ashamed of your criminal behaviour, you deflected responsibility by indicating that the thefts were covered by insurance.  You believed that your criminal offending was the result of a recurring pattern, being bored and mixing with a negative peer group.

5You told psychiatrist, Dr Liam Turnbull, at p.5 of his report,

"At the time of the offending, it is Mr Burkwood's account that he'd simply been released on custody and went back on the drink.  He said after that initial offence, it was a matter of him wanting to give himself one or two weeks before an inevitable return to prison."

6The facts of each of the matters are set out in the prosecution summary.  Your counsel does not take issue with it.  I am not going to any detail as to the facts.  Any reader of these sentencing remarks can refer to that exhibit to place the sentence in its factual context.

7Very briefly stated, your offending involved theft of various vehicles and the entry to various stores by smashing windows.  The armed robbery to which you have pleaded guilty, Charge 33, involved you in a stolen car going to a store at Bayswater Subway.  There was an employee, Upender Cherku closing the till.  You asked for money in the till.  When he attempted to walk to the back of the store, you grabbed a broom from the front of the store and began swinging it, saying, "Come on, come on.  Give me the money."

8Mr Cherku said, "If you throw the stick, I'll give you the money.  Just don't hit me, don't hit me."  You put the broom down, picked up a container which had money in it and left, came back shortly thereafter and demanded what was in the till, and you were given approximately $1,000.

9Overall, your offending was persistent.  It could be termed a mini crime spree.

10In relation to the armed robbery, I accept you did not go in with the intention to do an armed robbery in that it was a spontaneous action, picking up the broom.  But from the point of view of the employee, it no doubt would have been a very frightening event.

11Your offending was totally pointless.  The property that you generally took from the various premises was of a minor value.

12Your counsel filed written submissions and then supplemented them orally.  He tendered various medical reports and I have considered all of that material and taken it into account.  In mitigation, he relied on (1), your plea of guilty.  I accept it was made at an early stage.  It is an acceptance of responsibility by you for your offending, and has certainly saved the court the time and expense of a number of jury trials.  You have been given the appropriate discount for that.

13(2), you referred me to the report of Jane Lofthouse and submitted that that enlivened the principles of Verdins, and thus when considering specific deterrence and general deterrence, I could moderate those factors because of your underlying intellectual impairment.  Going to that report, Ms Lofthouse tested you comprehensively.  As is reflected in the report, you were assessed to have a full scale intelligence quotient at 79, which was within the borderline range.  Your full scale intelligence quotient was predicted to fall in the low average range.

14She said at p.14 in her summary,

"Although Mr Burkwood's full scale intelligent quotient falls significantly below average, because it is a composite score, it masks the sufficient variants noted in Mr Burkwood's intellectual function, making it difficult to interpret."

15She suggested that the score that you achieved in the various tests suggested the presence of a long term verbal processing disorder.  She said at p.15,

"Based on Mr Burkwood's test scores, there's no indication of global intellectual impairment consistent with a developmental disorder such an intellectual disability, and this should be discounted.  Mr Burkwood did however, demonstrate mild to moderate deficits in his ability to process, learn, remember and understand verbal material, and this is consistent with him having a long term verbal processing disorder.

In addition, Mr Burkwood demonstrated impaired scores that fell below his predicted pre-morbid intellectual function for verbal abstract reasoning, speed of information processing and memory."

16These types of deficits are often noted in the presence of an acquired brain injury and in particular, damage related to a high chronic level of alcohol use.  It is likely she said that you have both long-standing intellectual impairment related to a verbal processing disorder, coupled with intellectual impairment related to an acquired brain injury.

17She said that your intellectual impairment was present at the time of your criminal offending.  Although this does not fully account for the pattern of criminal offending dating back to adolescence.  Based on the current test results, she said,

"It is likely that intellectual impairment has contributed in some way for Mr Burkwood's poor decision making and his current charges.  In addition to intellectual impairment, Mr Burkwood's drug and chronic alcohol use and mixing with a negative peer group and psychiatric presentation would've played major roles in contributing to his criminal offending."

18She said that you are more likely to make poor decisions when you are intoxicated, but your intellectual impairment was likely to make it more difficult for you to make decisions in a calm and rational manner.

19(3), your counsel submitted you have the support of your parents who are in court and also, the mother of your child who is also in court.

20He took me through your background.  You have a normal background up till primary school.  You then had difficulties in secondary school.  You were expelled from one school in Year 10.  Thereafter, you have had a little bit of work experience, but not much.

21(4), he submitted that the armed robbery was at the lower end of the scale and you did not have a criminal history of armed robberies. 

22(5), he distinguished the burglaries from those of home invasions where people were present.  It is a fine distinction because these are shop fronts that have had windows smashed and property taken.

23(6), he submitted it happened over a short period of time. 

24He pointed to your background, which is reflected in the various reports.  You have a nine year old son and he told me that you, at the moment, are on medication in prison for an obsessive compulsive disorder.  He said correctly that your rehabilitation depends on alcohol abstention.

25The basic purposes for which a court may impose a sentence are punishment, general deterrence, both specific and general, rehabilitation, denunciation and protection of the community.

26General deterrence is that I have to impose a punishment that tries to get other people not to do this sort of stuff.

27Specific deterrence is to impose a sentence to try and get across to you not to do it.

28In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances.  I am required to balance the interests of the community in denouncing criminal conduct.  The interest of the community, seeking to ensure as far as possible, you are rehabilitated into society.

29I express my denunciation of your behaviour.  You do not need me to tell you that people are sick and tired of this type of behaviour.  It is all too common unfortunately in our society.

30The protection of the community from your activities is also an important sentencing consideration.  It just defies comprehension or understand why, in that short period of time after having done three years in gaol, you would do these things.  However, I accept that your moral culpability is reduced because of the matters I have referred to in Ms Lofthouse's report, that applies to both general and specific deterrence.  That moderates the effect I give to each of those factors, although that moderation is limited because of the matters mentioned in her report, combining your mental impairment difficulties with substance abuse and peer group influences.

31I take into account your early plea of guilty on the lines that I have just indicated.  It is an aggravating feature that you had just been released and you were in the very early stages of a community corrections order.

32As to your prospects of rehabilitation, that is, not doing this again when you get out, I really have no idea.  Depends on you.  You are somehow going to have to learn to cope when you get out of gaol by not drinking or taking drugs and going on crime sprees.

33I have to take into account the factors of totality and proportionality and I have done that.

34Taking all those factors into account, and doing the best I can on charge, and I am aggregating in the way for the reasons discussed with counsel at the beginning of the plea, on Charge 1, I sentence you to one month imprisonment, concurrent with all other sentences imposed today.

35On Charges 2 to 31, and 33 to 37, I sentence you to an aggregate sentence of four and a half years.  Four years, six months' imprisonment.

36On Charge 32, the armed robbery, a sentence of two years, six months.

37I direct that one year of that sentence be served cumulatively, that is, together with the sentence imposed on the aggregate sentence.

38On summary Charge 39, I sentence you to two weeks' imprisonment, concurrent with all other sentences imposed today.

39On the careless driving, Charge 40, I fine you $500.

40That on my arithmetic makes a sentence of five and a half years.  I direct that you serve three and a half years before being eligible for parole.

41I declare that the time of 322 days you have already served be reckoned as part of the term of imprisonment I have just imposed.

42I disqualify you from obtaining a license for two years.

43Declare under 6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by a jury or juries of these matters, you would have received a sentence in the order of eight years, with a non-parole period of six years.

44So, what all that means unfortunately for you, is that your age, you have spent, when you are released, six and a half years less, the week or so you got out in which you reoffended in gaol.  I certainly hope you do something about it, and that when you are released, hopefully after you have got parole, that you do not reoffend.  As I said, I really have very little idea of what will happen when that occurs.

45Are there any other matters I need to attend to?  I have signed the order.

46MS TUENO:  No, Your Honour.  I believe that is everything.

47HIS HONOUR:  All right.  Mr Lawrence?

48MR LAWRENCE:  No, Your Honour.  As Your Honour pleases.

49HIS HONOUR:  Thank you.  Take Mr Burkwood out, thank you.  I am sorry for the parents involved.  I have four sons and I just cannot imagine how I deal with it.  Adjourn the court, thank you.

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