Director of Public Prosecutions v Burnie

[2018] VCC 401

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

AT GEELONG
CRIMINAL JURISDICTION

CR 17-00216

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON BURNIE

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	4 April 2018
CASE MAY BE CITED AS:	DPP v Burnie
MEDIUM NEUTRAL CITATION:	[2018] VCC 401

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 P. Pickering
For the Accused	Ms S. Pratt (Solicitor)

HIS HONOUR:

1Aaron Burnie, you have been convicted by a jury of the offence of recklessly engaging in conduct endangering life.

2Prior to your trial you pleaded guilty to being a prohibited person possessing a firearm.  You subsequently pleaded guilty to two summary offences:  committing an indictable offence on bail and possession of ammunition.

3On 10 March 2016 a group of men attended at premises in Donnybrook Road, Norlane, apparently looking for you.  At least one of the, Bruce Savage, was armed with a rifle.  They could not locate you and returned to an address in Dearborn Avenue, Corio.

4You, in company with one Ryan Graham, drove to Dearborn Avenue in an orange Holden utility.  It seemed likely that you were both armed with firearms at this time.  Shortly after you pulled up opposite Savages home a red Commodore sedan, driven by Justin Milner, pulled alongside your vehicle.  Bruce Savage was in the passenger seat of that car and fired a shot from his rifle through your front windscreen.  You were extremely lucky not to be injured or killed by that shot.

5Milner drove away and you pursued him.  A running chase and gun fight ensued.  Two further shots were fired through your windscreen at some stage.  When I say your windscreen, the car belonged to someone you had borrowed it from.  It terminated in The Boulevard, Norlane, after another vehicle containing Selwyn Savage and Matthew Deary had become involved.  At times you pursued this vehicle and at times it pursued yours.

6Shots were exchanged before Selwyn Savage crashed his vehicle and you drove into park land adjacent to The Boulevard.  Police arrived, you attempted to run from police but were arrested along with Graham.

7The orange utility had three bullet holes in its windscreen.  The Ford driven by Selwyn Savage had a bullet hole through its windscreen.  That bullet passed through the headrest of the driver's seat before passing through the vehicles rear windscreen.  That shot was fired by Graham from the vehicle you were driving in the 20 minute confrontation.

8Police located a sawn-off .222 rifle and a loaded Beretta .22 pistol in the front of your vehicle.  Your DNA was found on the pistol and both Graham and your DNA was located on the rifle.

9Two fired .222 calibre shells were located in your vehicle.  A fired casing was located in the breach of the pistol and its magazine contained six live rounds.  In a bag with your driver's licence police located a smaller bag containing eight .222 rifle rounds and 44 .22 rounds capable of being fired from the pistol.

10You exercised your rights to answer, "No comment", when you were interviewed by the police.

11You were on bail for dishonesty offences at the time of this offending.

12The jury's verdict established that you and Graham were acting jointly during this extremely dangerous shoot out.  You may have fired the 22 pistol, but I cannot be satisfied beyond reasonable doubt that you did so.  I sentence you on the basis that you and Graham acted as a team for the relevant period of time and that Graham fired the shot into the windscreen of the Ford sedan.  The charge of being a prohibited person possessing a firearm relates to your possession of the loaded .22 pistol.

13Others involved in this appalling behaviour have been sentenced by Judge Michael Bourke.  Bruce Savage pleaded guilty to one charge of reckless conduct endangering life and one charge of using a firearm as a prohibited person.  In addition, he pleaded guilty to the summary offence of possessing ammunition without a licence.  He was 41 years old and with an extensive prior criminal history, including priors for firearms offences and violence.  He is at risk of being deported from Australia.  Judge Bourke found him to have played the senior role in the offending on that day.

14Bruce Savage was sentenced to four and a half years imprisonment on the reckless conduct endangering life charge and two years on the firearms offence.  Four months only have that sentence was made cumulative on the first charge.  A head sentence of four years and ten months, with a non-parole period of three years was imposed.

15Selwyn Savage pleaded guilty to one charge of reckless conduct endangering life and a charge of common assault.  He was 37 years of age.  He had a dated criminal history and he had not offended for 20 years.  He is also at risk of being deported.

16He was sentenced to three years and eight months on Charge 1, six months on an assault charge, with two months cumulation.  The head sentence of three years and ten months was therefore imposed with a non-parole period of two years and two months.

17Justin Milner pleaded guilty to one charge of reckless conduct endangering life.  He was 26 years old at the time.  He had limited prior convictions and was sentenced to three years imprisonment with a non-parole term of 18 months.  He had assisted the prosecution.

18Ryan Graham was sentenced by me last month to time served - 581 days - and a three year community corrections order with condition, including 300 hours of unpaid community work.  He was much younger than you, had limited prior convictions and good prospects for rehabilitation.

19You have admitted an extensive prior criminal record.  In 2008 and 2009 you were convicted and sentenced for offences of violence, recklessly cause serious injury, assault, affray, and assault in company.  In August 2011 you were imprisoned for trafficking methylamphetamine, dealing with proceeds of crime, possess and use methylamphetamine, and possession of a prohibited weapon.  In October 2012 you were imprisoned for offences of bribe public official, possess drugs of dependence, and deal with proceeds of crime.

20At the time of the offending for which I have to sentence you, you were on bail for the offences of dishonesty possess prohibited and controlled weapons.  You were subsequently imprisoned for four months on these matters.  Those matters are not prior convictions, although they have relevance to issues of totality of sentence and to your prospects for future rehabilitation.

21Turning to your personal circumstances.  You are now 28 years of age, being born on 10 November 1989.  Your personal history is set out in Exhibit 1, the psychological report of Lisa Jackson.

22You were born on the Bellarine Peninsula, have three siblings.  Your father was allegedly violent to you and your mother.  Your parents separated when you were five, you lived with your father until you were 15 when you ran away from home.  You then went to live with your mother for a while.  She has been supportive of you over the years and attended court to support you on your plea.

23You were schooled to Year 9 level.  You fell out with your mother and became, effectively, homeless.  You commenced abusing illegal drugs and alcohol; your offences for violence occurred in that context.  You have found some employment and have the possibility of work when you are released from prison.

24Although you were bailed in mid last year, you breached bail in October 2017 and have been in custody since.  Apparently, you have spent much of your time in 22 hour lockdown because of a perceived involvement in a prison offence, and I take the onerous nature of such confinement into account in sentencing you.

25Psychologist, Ms Jackson, concludes:

"Mr Burnie presents with a history of psychiatric vulnerability.  His childhood indicates a primary diagnosis of post-traumatic disorder with associated anxiety and depression; the result of an abusive childhood perpetrated by his father.  Poor attachment to both parents and a history of bullying at school served as a further precipitating trigger to substance abuse and antisocial behaviours as a way of externalising his distress and avoidance.  He appears to have developed a sleep arousal disorder, resulting in nightmares and feels paralysis.  He notes in increase in substance abuse problems following an arrest as a way of managing his clinical symptoms.  He certainly identifies an increasing depression and anxiety that is linked to his long-term isolation.  The link between childhood issues and functioning as an adult is clear.  He does have redeeming features and they have included stable accommodation and work and positive relationships with a former partner, along with motivation to address his issues".

26Mr Gumbleton who appeared at your trial in plea relied upon a number of factors.  Firstly, he pointed out correctly that you have no prior convictions for firearms offences, nor endangerment offences.  He relied upon the support you enjoy from your long suffering mother and the employment prospects you have upon your release from custody.  He submitted that when you are drug free your prospects for rehabilitation are significantly enhanced.

27Mr Gumbleton submitted that your involvement in the events of 10 March 2016 are restricted to complicity with Graham, in the firing of one shot through the windscreen of the Falcon sedan.  As I indicated at your plea I propose to sentence you on that factual basis.

28Mr Gumbleton made submissions as to parity of sentence and submitted that you should receive a sentence greater than - that you should not, I should say, that you should not receive a sentence greater than Bruce Savage.  He conceded that your offending warranted a sentence of imprisonment greater than that imposed on Selwyn Savage and Justin Milner.  Finally, Mr Gumbleton correctly identified you being on bail at the time as an aggravating feature.

29Your offending must be seen as serious and dangerous.  Shots from high calibre weapons were fired in the streets of Geelong.  As Judge Bourke said:

"The perpetrator showed contemptuous disregard for the safety and well-being, and the peace of the community".

30You are lucky to be alive, Selwyn Savage is also extremely lucky not to have been killed.  Not only was he placed at risk, clearly any members of the public on The Boulevard, Norlane and the residents of that road were significantly imperilled by your conduct, and the conduct of your co-offenders.

31General deterrence, denunciation, and protection of the community are clearly the most significant sentencing factors in your case.

32You prospects of rehabilitation must be assessed as guarded, given your prior criminal history.  However, your work prospects and support of your mother offer some hope for you future.

33I have had regard to principles of parity in arriving at an appropriate sentence for you.  Clearly, however, there are different factors applicable to each of your co-offenders.  But I have taken the sentences imposed by Judge Bourke and the sentence I imposed into account in sentencing you.

34Clearly, Bruce Savages conduct carries more culpability than yours.  He started the shoot out, he fired three shots through the windscreen of the vehicle you were driving.  You and Graham responded to his actions and fired only one shot.  He has significant relevant priors and is older than you.  However, he pleaded guilty.  As is often the case in multi-accused offending strict parity is not applicable in this case.

35Your possession of the .22 pistol is a real concern.  It was loaded and had been fired.  Although, as I say, I do not find it to have been fired in this offending.  You were involved in drugs on bail and clearly carried the weapon for some unknown criminal purpose.

36In both Bruce Savages and Ryan Graham's cases, their firearms offences related to using a firearm in the commission of the main offence.  That use involved the commission - in the commission of the offence of reckless endangerment.  His Honour Judge Bourke had to avoid issues of double punishment, hence, as far as Savage was concerned, it cumulated only four months of the sentence in relation to that charge.  I have similar issues to consider in relation to Ryan - mental blank.

37ASSOCIATE:  Ryan - I can't think of it, sorry.

38HIS HONOUR:  Ryan Graham's case.

39ASSOCIATE:  Ryan Graham.

40HIS HONOUR:  Your counsel sensibly conceded there must be greater cumulation in your case in relation to the firearms charge.

41Would you stand up please.

42The sentences of the court are - I do say that I take into account the pleas of guilty that you made to the charges before and after trial.

43In relation to Charge 1 - on all charges, firstly, you are convicted.  On
Charge 1, the charge of reckless conduct endangering life, you are sentenced to four years' imprisonment; on Charge 2, being a prohibited person possessing a firearm, you are sentenced to two years' imprisonment; on the summary charges of committing an indictable offence whilst on bail you are sentenced to one months' imprisonment.  That sentence will be served concurrently with the other sentences imposed.  On the possess ammunition charge without a permit or licence, you are fined $400.

44I order that 12 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.  That is an effective term of imprisonment of five years and I order that you serve three years of that sentence before being eligible for parole.

45I declared 574 days of the sentence I have just imposed have already been served by way of presentence detention, not including today.

46I make the disposal and forfeiture orders sought by the prosecution.

47Any other orders required?

48MR PICKERING:  6AAA, Your Honour.

49HIS HONOUR:  It's hard to do when you've got charges that ‑ ‑ ‑

50MR PICKERING:  Yes, Your Honour.

51HIS HONOUR:  All I can say is, that but for your pleas of guilty I would have imposed a higher term of imprisonment.

52MR PICKERING:  Yes, Your Honour.  If Your Honour pleases.

53HIS HONOUR:  All right, would remove Mr Burnie please.

54OFFENDER:  Thank you, Your Honour.

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