Director of Public Prosecutions v Burns
[2023] VCC 423
•21 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Wodonga sitting at Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00229
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL WAYNE BURNS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Wodonga sitting at Melbourne | |
DATE OF HEARING: | 22 and 23 February, 7 March 2023 | |
DATE OF SENTENCE: | 21 March 2023 | |
CASE MAY BE CITED AS: | DPP v Burns | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 423 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: One charge of aggravated carjacking – issue as to whether a “special reason” exists pursuant to s10A(2)(c)(i) or whether there are “substantial and compelling circumstances” pursuant to s10A(2)(e), which provide an exception to the legislative mandate in s10AD(1) that a court must impose a term of imprisonment and fix a non‑parole period of not less than 3 years for the offence of aggravated carjacking – consideration of the application of the principles in the cases of Verdins and Bugmy
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmyv The Queen [2013] HCA 38; R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence of 3 years and 3 months imprisonment, with a non-parole period of 2 years and 2 months imprisonment.
S6AAA: 5 years imprisonment, with a non-parole period of 3 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Plummer | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Connolly | KPW Lawyers |
HER HONOUR:
1Michael Wayne Burns, you have pleaded guilty to one charge of aggravated carjacking. This carries a maximum penalty of 25 years’ imprisonment. It is also a Category 1 offence pursuant to s3(1) of the Sentencing Act. Thus, pursuant to s10AD(1), in sentencing you, a court must impose a term of imprisonment and fix a non‑parole period of not less than 3 years unless the court finds that a special reason exists pursuant to section 10A.
2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea (“the Opening”).[1] The background to your offending is that you and the victim, Stephen‑John Subotin, had known each other for approximately five years. On 3 May 2021, the two of you were playing poker machines at a hotel in Wodonga when you won an amount of $2,550. You did not have a driver’s licence to show the cashier in order to be able to claim a cheque for the prize money. Accordingly, on your behalf, the victim claimed it using his driver’s licence. The two of you then attended a bank in Wodonga where the victim deposited the cheque into his account. Later that day, the two of you went your separate ways after a minor argument.
[1]Exhibit “A”
3On 6 May 2021, the cheque was cleared and the victim withdrew $2,476 from his account. Rather than handing the money over to you, he spent it on his vehicle. That same day, you sent several text messages to the victim asking for your money. When you received no response, you sent a text to the victim stating, amongst other things, that, if he had spent your money, he would be sorry, as you had “cunts looking for [him] every day” and that he needed to talk to you before “this gets bad for [him]”. You further stated that, if one of your mates found him, he would not get away with ripping you off and they would find him or, if not, his car. On 7 and 8 May 2021, you sent several further text messages to the victim but, again, they were ignored by him and you received no response.
4On 13 May 2021, a female called Bonnie Malloy contacted the victim claiming that she was in trouble and needed to be picked up from the BP Service Station at Barnawartha. The victim said that he had no money and asked Ms Malloy to transfer $30 for petrol money to him so that he could drive from Bendigo to Barnawartha. She subsequently deposited $30 into his account. At 10:15pm that night, the victim arrived at the service station in Barnawartha. He called Ms Malloy, who stated that she was now located at the football oval nearby.
5The victim drove to the oval and reverse-parked his vehicle. He telephoned Ms Malloy, but some 20 minutes went by, and she did not appear. The victim then observed a flashlight behind him, coming from the football stand. Then, a Mitsubishi vehicle, apparently driven by one Jared Groves, appeared and parked in front of the victim’s vehicle so that it could not move. Groves was wearing a blue hoodie which concealed most of his face, apart from his eyes. He put his arm out of the driver’s window and pointed a gun, which looked like a revolver, at the victim and directed him to “Get the fuck out the car, mother fucker”.
6A second male, Mark Seymour, then arrived at the scene. He was wearing a black hoodie and carrying a machete, which he waved above his head and towards the victim whilst grabbing the victim. Meanwhile, Jared Groves approached the victim with a weapon which resembled a taser. You, Mr Burns, then emerged from the darkness. You were wearing a black hooded jumper. The victim apologised to you for taking your money and you stated, “You are sorry now and now we are taking your car”. Seymour stated, “We are taking your car because you owe us money.”
7Seymour directed the victim to get into the front passenger seat of the victim’s vehicle, whilst Seymour sat in the driver’s seat and you sat in the rear seat. Seymour then drove the victim’s vehicle back to the Barnawartha service station and, en route, you and Seymour told the victim that he had two weeks to pay the money back and, if he told police, then his vehicle would be burned. Paragraph 20 of the Opening states “At 11:01pm Seymour parked Subotin’s vehicle at the BP service station. Seymour had a handgun in his lap pointed at Subotin the entire time. Burns handed Subotin a piece of paper for him to sign. Seymour pointed the gun at Subotin demanding that he ‘sign the car over’...”
I here interpolate that, following the conclusion of the plea hearing, I asked the parties to attend before me at a Mention as I considered that paragraph 20 did not make it clear when Seymour had produced the handgun. Mr Plummer for the prosecution conceded that this paragraph should be interpreted in the most favourable light to yourself, namely, that Seymour had pulled the gun out of his pants once he had parked the victim’s vehicle at the service station. Mr Plummer also stated that the prosecution accepted that you were not complicit with Seymour back at the oval, when he had produced the machete which he brandished at the victim. However, you were aware that the victim was not a willing passenger in his own vehicle in the leadup to the aggravated carjacking which took place a short time later at the service station.
8The driver of the Mitsubishi vehicle arrived at the service station. At 11:06pm Ms Malloy also arrived at the service station. She exited from a taxi and got into the Mitsubishi vehicle.[2] You, Mr Burns, told the victim, “normally we would bash you and leave you.” Ms Malloy told the victim that her loyalty lay “with these guys.”
[2] An amendment to this effect was made to paragraph 21 of the opening at the mention on 7 March 2023.
9On 14 May 2021, the victim sent a message to your partner, Rowena Stobie, asking if his vehicle was safe. She responded that it was fine and she had the keys. On that same day, the victim reported the matter to his mother who, in turn, reported it to Albury Police Station (despite the victim telling her not to do so). The victim then made a formal statement to police on 14 May 2021. Later, on that day, police attended your address and observed the victim’s vehicle parked outside. They spoke to your partner, Rowena Stobie, who claimed that she had purchased the vehicle the previous day from a person named “Steve” for $500. Police seized the vehicle and returned it to the victim. Subsequently, on 21 May 2021, your partner told police that she had paid you $1,000 for the purchase of the victim’s vehicle and you had given it to her, along with the keys for it.
10On 25 May 2021, you were interviewed and made a “no comment” response to all allegations, as is your legal entitlement.
11On 18 August 2021, investigating police arrested Ms Malloy. In a record of interview the following day, she claimed that you had forced her to call the victim to lure him to Barnawartha and had provided her with the $30 which she deposited in the victim’s account. She stated that, on the night in question, she had been told to meet you at the football oval and was driven there in a taxi, but then received a telephone call from you directing her to return to the Barnawartha Service Station. She claimed that she was not aware that the victim was going to be the subject of a carjacking by you, or others.
12On 20 August 2021, Ms Malloy made a formal statement to police detailing her involvement but, on 14 September 2021, sought to retract her statement and claimed that she was drug affected at the time, although police had not detected that she was affected by drugs. The prosecution case is that the request for Ms Malloy to retract her statement was not made voluntarily. The opening does not give any further particulars of the latter, and no charge relating to it had been brought against you. I here note that Seymour also, had been charged with aggravated carjacking. However, the charge was discontinued shortly before the matter was listed for trial. Mr Plummer stated that the prosecution held concerns about the ability to establish Seymour’s identity based upon the evidence of the victim alone.
13You were arrested on 25 May 2021 and remanded in custody on that date, where you have remained up until the present time.
14You are presently aged 42 years having been born in October 1980. You come before the court with some criminal history, which appears to be largely related to abuse of alcohol and illicit drugs.
(a) In New South Wales at the Albury Local Court, in 2001 and 2004, you were charged with contravening an Apprehended Domestic Violence Order which apparently related to your then partner. On each occasion, you were placed on probation for a period of 12 months. In 2004, you were also before that court for common assault and were fined $300, as well as being placed on probation.
(b) At Wodonga Magistrates’ Court you appeared on 25 March 2003 for a number of drug offences, including trafficking in cannabis, and you were sentenced to serve two months’ imprisonment, which was wholly suspended for a period of six months. On 8 October 2003, you were found to have breached that order and the two months’ sentence of imprisonment was wholly restored. On 2 December 2003, you came before Wodonga Magistrates’ Court, for trafficking and using methylamphetamine, and were given a further aggregate sentence of two months’ imprisonment to be served by way of Intensive Correction Order. Subsequently, at Wodonga Magistrates’ Court, on 2 February 2004, you were convicted of trafficking and possessing cannabis, as well as theft, for which you were placed on a nine-month Community-Based Order which, amongst other conditions, required you to undergo assessment and treatment for alcohol/drug addiction, as well as medical/psychological/psychiatric conditions as directed by the regional manager.
(c) On 9 December 2015, you were before the Wodonga Magistrates’ Court for possessing, using and trafficking in methylamphetamine and dealing with property suspected of being the proceeds of crime. On that occasion, you were convicted and placed on a Community Correction Order for a period of 12 months, which, again, included conditions of assessment and treatment for drug abuse and medical conditions.
15Since 2015, you have had two further appearances before the Albury Local Court, on 8 November 2016 and 17 August 2020 for possessing a prohibited drug. On each occasion, you were convicted and fined $200.
16The plea in mitigation on your behalf by Mr Connolly was primarily focused upon a submission that you have an intellectual disability which should satisfy the court on the balance of probabilities that you had impaired mental functioning that is causally linked to the commission of the offence, and substantially and materially reduces your culpability pursuant to s10A(2)(c)(i). Hence, Mr Connolly submitted that the court should find that “a special reason” exists so that the mandatory imposition of a term of imprisonment with a non-parole period of not less than three years, as required by s10AD(i), should not apply.
17Alternatively, Mr Connolly submitted that there were a combination of factors which should satisfy the court on the balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare pursuant to s10A(2)(e). Hence, he submitted that the Court should find that these circumstances are “a special reason” which exists so that the mandatory imposition of a term of imprisonment with a non-parole period of not less than three years, required by s10AD(1), should not apply. The factors relied upon were as follows:
(a) your cognitive impairment;
(b) your psychological disorders, namely long-term depression and anxiety;
(c) your disadvantaged upbringing;
(d) your medical conditions, which include: Foetal Alcohol Syndrome Disorder (“FASD”); chronic obstructive pulmonary disease (asthma and emphysema); Gitelman Syndrome (a kidney condition) with attendant hypokalaemia (potassium deficiency); a congenital heart defect; osteoporosis and general bone abnormalities, including rotation of the hips and kyphosis of the cervical/thoracic spine; poor vision; Temporomandibular Joint Dysfunction; and gastroesophageal reflux disease.
18Mr Plummer, on behalf of the prosecution, conceded that you played a lesser role on the night of the offending than the co‑offenders Seymour and Groves, both of whom produced and wielded weapons. He accepted that your cognitive impairment is causally related to the offending and there should be some reduction of moral culpability. However, he submitted that your impaired mental functioning did not meet the test of “substantially and materially” reducing your culpability on the balance of probabilities. Mr Plummer emphasised that, one week prior to the offending, you had sent threatening text messages to the victim to the effect that you had others looking for him and they would take his car. Further, you gave instructions and transferred money to Ms Malloy to ensure that the victim went to the scene where the crime was committed. You knew that Seymour had a firearm (albeit that Mr Plummer later conceded that this was not until Seymour pulled it out of his pants at the service station) and, you had produced a piece of paper demanding that the victim sign over ownership of his vehicle to you. Mr Plummer submitted that this was a serious example of aggravated carjacking, with evidence of significant premeditation and planning and it had been committed in company.
19In response to the alternative argument of your counsel that there were a combination of factors which constituted substantial and compelling circumstances that are exceptional and rare pursuant to s10A(2)(e), Mr Plummer noted that the court of Appeal had recently interpreted this provision as “almost impossible to satisfy”. [3]
[3] DPP v Silivaai [2023] VSCA 19 [28].
20The court was told of your background history, which was elaborated upon in a report from Ms Marlese Bovenkerk, forensic psychologist, dated 11 October 2022,[4] and a report from Mr Martin Jackson, consultant clinical neuropsychologist, dated 13 February 2023.[5]
[4]Exhibit “2”
[5]Exhibit “1”
21Apparently your mother and biological father separated when you were an infant. Your mother re-partnered when you were aged about seven or eight, and you were reared by her and your stepfather in a household with two stepsisters. You told Ms Bovenkerk that, although you were adequately clothed and fed, your mother and stepfather were drug dealers who progressed from selling cannabis to speed and, later, heroin, and that the family home was the subject of many raids. In addition, your mother would remain in her room for significant periods of time due to her substance abuse and would slip money under the door in order for the children to buy necessities. You described your stepfather as an alcoholic, who became physically violent whilst intoxicated, and you were the subject of beatings from him. You witnessed a number of traumatic events, including your mother overdosing when you were aged 11, as well as violent assaults and stabbings, including a gun being pulled in order for your mother and stepfather to enforce payment of drug debts owed to them.
22You left the family home when you were 16 years of age as you were no longer able to cope with the substance abuse and violence. After this, you were in and out of refuges. Your mother and stepfather later separated and, when you were 19 years of age, your stepfather committed suicide. Thereafter, your mother’s mental health and substance abuse significantly deteriorated, although it would seem that, at some time between then and now, you have reconnected with her.
23You have suffered from long term anxiety and depression. This worsened following the suicide of your step-father, and, in your twenties, you were hospitalised on 3 occasions at Nolan House psychiatric Unit in Albury for suicidal ideation and attempted suicide. You have been prescribed anti-depressant medication in the past as revealed in some of your medical records back in 2012, but you were not able to recall when you last took them.[6]
[6] Exhibit 4
24You gave a history to Ms Bovenkerk that your mother had consumed alcohol throughout the time of her pregnancy, and you were later diagnosed with FASD. This diagnosis was apparently made by a specialist in Newcastle, Dr Evans.[7]
[7] Exhibit 1, page 3
25Mr Jackson, in his report, stated that, although you did not present with the clear facial dysmorphology seen in FASD, you had a range of other physical problems which are associated with that disorder. These include deformities of joints and limbs, slow physical growth, heart defects, problems with your kidneys and poor coordination and balance.[8] Mr Jackson recorded that you are in receipt of a Disability Support Pension for your multiple medical issues and genetic condition and noted that you had physical deformities, including rotated hips and scoliosis, and are of short stature and a thin build.
[8]Exhibit “1”, page 9
26You told Mr Jackson noted that you suffer from pain in your back and that your rotated hips cause you to have trouble walking. Your medical records show that, at times in the past, you have been treated with powerful analgesic medication like Fentanyl or Oxycodone for such pain.[9] In addition, you suffer from asthma and emphysema, as well as very poor vision, even with the assistance of glasses. You also told him that, at a young age, all of your teeth had been removed due to calcium deficiency, and this, in part, contributes to a lack of clarity in your speech. You had apparently undergone a difficult birth and were born with a hole in your heart. There is evidence that you were diagnosed as suffering Chronic Obstructive Pulmonary Disease for which you have required multiple periods of hospitalisation over the years.
[9] Exhibit 4.
27You were apparently quite unwell as a child, relating primarily to your respiratory problems and kidney disease. This resulted in you missing a lot of school. You had a teacher’s aide during primary school and were given special classes for slow learners, and, ultimately, decided to leave school after completing only the first term of Year 8. You have had only a limited work history.
28You have suffered long-term abuse of alcohol and illicit drugs. You first commenced using cannabis supplied to you by your stepfather prior to you leaving home. This progressed to you using amphetamine and, later, methylamphetamine. Prior to commencing to use methylamphetamine in your late twenties, you would consume alcohol on a daily basis, either “a slab or bottle (of spirits) per day”[10], but ceased drinking so much once you began to use methylamphetamine. There is a limited history of you engaging in drug rehabilitation programs in your teens and some cursory engagement whilst placed on community-based dispositions by courts.
[10] Exhibit “2”, page 5, paragraph 57
29Ms Bovenkerk diagnosed you as suffering a Persistent Depressive Disorder and a Stimulant Use Disorder (formerly a Cannabis Use Disorder, which has been in sustained remission for a number of years), which she attributed to maladaptive coping strategies associated with a childhood of instability, neglect, exposure to parental substance abuse and trauma, and a premature exit from school. She noted that, immediately leading up to the offending, you were suffering a number of psychosocial stressors, including a lack of stable accommodation, unemployment and conflict with your partner, in addition to ongoing use of methamphetamine and untreated mental health issues. It was Ms Bovenkerk who had suggested that you should undergo a neuropsychological assessment to see whether you did meet the criteria for FASD, including a secondary disability such as an intellectual impairment.
30Apart from Mr Jackson’s report being tendered, he also gave oral evidence at the plea hearing. When he assessed you, he noted your small stature, the fact that you looked much older than your chronological age of 42 years, and that you presented as clearly depressed, I have previously referred to the fact that you had a range of other physical problems which he associated with FASD.
31He assessed your full scale IQ to be 65, which is in the extremely low range and is consistent with a mild intellectual disability. He noted that your vocabulary was in the borderline range and that your reading and letter fluency was in the extremely low range, equivalent to Grade 3 of primary school. Due to your poor vocabulary and reading skills, Mr Jackson did not administer formal questionnaires to you. He considered that “all executive skills were in the extremely low range, including planning, organisation, verbal abstract reasoning, visual thinking, letter fluency and mental arithmetic…”[11]
[11]Exhibit “1”, page 14, para 7
32Mr Jackson opined that your thinking was concrete and inflexible and you had very poor ability to solve problems. Although he noted that you had engaged in chronic drug and alcohol use over the years, he thought it unlikely that this had contributed to your cognitive impairment as you still have an ability for new learning and memory and respond well to logical structure. He stated these relative strengths are a feature of people with a mild intellectual disability. He considered that your neuropsychological impairment, which primarily relates to deficits in planning, organisation, problem solving and the capacity for abstract thinking, is highly likely due to FASD, as is your history of delayed development, difficulty at school, trouble getting on with others, poor social skills and your significant number of physical abnormalities. He stated that FASD is caused by your mother having drunk alcohol whilst she was pregnant and that you had suffered this condition since prior to your birth and all of your life. It is permanent and there is no cure for it.
33In his oral evidence, Mr Jackson expanded upon his report in which he had mentioned that it was highly likely that your offending occurred in the context of poor coping and lowered mood. He stated that, at the time that your winnings had been stolen by the victim, you were suffering homelessness and problems in your relationship which would have contributed to your long-term depression. Further, your dysfunctional upbringing by drug-dealing parents, who used violence and threats to recover debts owed to them, had caused you to learn this as a behaviour. He attributed your decision to use threats and violence to recover your money from the victim as having its aetiology in such learned behaviour from your disadvantaged upbringing. He opined that such learned behaviour is enduring and lifelong, notwithstanding that you had left the home environment when you were aged 16 years, some 2 ½ decades ago. He also opined that your learned behaviour from your violent, drug trafficking parents reduced your concept of the offending being wrong.
34Mr Jackson stated that, having made the decision (based on learned behaviour) that you needed to recover your money from the victim by threats or violence, your cognitive impairment, which involves poor ability to solve problems and plan and a concrete, inflexible style of thought, made it highly likely that you struggled with options as to how to go about the actual process of recovering your money. He said that you would have known that, because of your physical frailty, you could not manage to recover the money on your own, and it was plain that others had become involved, presumably because you had told them of your situation. However, given your cognitive impairment, he considered it highly unlikely, that you, on your own, would have had the capacity to plan and implement the full extent of what happened on the night of the offending.
35In cross-examination, Mr Jackson was taken to various parts of the agreed summary of facts in the Prosecution Opening. He agreed that you had told him that you did not know the other person had a weapon and you went to the scene of the offending not intending to take the victim’s car.[12] He stated that he had not asked you whether you actually thought to take the victim’s car from him at the scene, as he was aware of the threats made by you in the earlier text messages to the victim, as well as statements made by the victim to police on 14 May 2021 and 18 May 2021 respectively.[13]
[12]In oral evidence Mr Jackson amended the last paragraph of his report on p. 16 to this effect.
[13]Exhibit “B”
36Mr Jackson stated that it was important to have clarity about who had made what demands first and it appeared to him from the victim’s statements that the co‑offender, Seymour, was, in fact the one in charge of the operation on the night of offending. Mr Jackson noted that, according to the victim’s first statement, Seymour was the one who first said to the victim “We’re taking your car because you owe us money” and it was Seymour who directed the victim to get into the front passenger seat.[14] He suggested, in effect, that when Seymour stated “You owe us money” (emphasis added), this demonstrated that he had some sort of investment in what went on that night.
[14]Statement of victim made on 14 May 2021, paragraphs 38 and 39
37Mr Jackson considered that your cognitive impairment, namely, your limited capacity to come up with options for how to solve the issue of getting your money back, and deficits in your consequential thinking skills, is linked to the offending. He considered it highly unlikely that your cognitive impairment would have permitted you to orchestrate all of the various activities that went on this night, which I note involved the attendance of two other male offenders armed with weapons, as well as the role played by Ms Malloy. He stated that, whilst you may have been giving oral or text message instructions by phone to Ms Malloy, he queried whether you were the person who had thought of those instructions. He thought it highly unlikely that you were the person in charge on the night of the offending. He considered it was far more likely that someone was telling you what to do, rather than the other way around, and noted that people, with your cognitive limitations, are vulnerable to being influenced and used by others and that you think in very black and white terms and do not have the capacity to pick up innuendo or nuance.
38You have pleaded guilty to the offence of aggravated carjacking which involves admission of the elements of that offence. The charge on the indictment alleges that you stole the victim’s vehicle and, at the time of doing so, and in order to do so, you put the victim in fear that he would be then and there subjected to force and, at the time, you know that your co-offender, Mark Seymour, had with him a firearm.
39What was written on the piece of paper handed by you to the victim to sign and who was the author of that document was never made clear to the court. In response to a question from me, Mr Plummer stated that the location of the piece of paper is unknown. However, it is plain that by the time you did produced this paper, you knew that the victim was an unwilling passenger in his own car and Seymour had just pulled a handgun out of his pants and pointed it at the victim. You went along with what must have been a terrifying experience for the victim, who told police he thought he was going to get shot. Prior to this, there had clearly been a significant degree of intimidating behaviour towards the victim, at the Barnawartha football oval, to which he had been lured by Ms Malloy.
40It is not suggested that you had prior knowledge that Groves would have possession of a gun and point it at the victim or menace him with a taser, or that you were aware that Seymour would be carrying a machete and brandish it towards the victim. However you told Mr Jackson that you had taken a torch because you were going to a dark spot[15] and I am satisfied beyond reasonable doubt that you were in the football stand shining it towards the oval as this intimidating behaviour was being carried out by Groves and Seymour and that they were there to redress your grievance against the victim who had stolen your money. You also told Mr Jackson that you “had no intention of taking the car, but this was the other person’s idea…. All (you) wanted to do was to get (your) money”[16].
[15] Exhibit “1”, page 5 and page 16.
[16] Ibid.
41I find it difficult to accept that you did not go to Barnawatha on the night of the offence not intending to take the victim’s car. Given that the victim had to be provided with $30 to pay for the petrol to drive himself to Barnawatha, you cannot have anticipated that at Barnawatha he would produce the $2,550 which he had stolen from you. Indeed, in the text message one week earlier you had threatened that the mates whom you had looking for him would, if necessary, get the victim’s car. However, I cannot be satisfied beyond reasonable doubt that the strategy whereby the victim’s car was to be seized had been your idea, as distinct from you going along with an idea which had come from others, such as Seymour and Groves.
42At the plea hearing on 23 February 2023 your counsel stated that you had instructed him that Ms Malloy was the former partner of the co-offender Groves and close friends with Mark Seymour. Ms Malloy’s statement made to police on 20 August 2021[17] indicates that it was on 13 May 2021 that you asked her to assist you to get the victim so you could collect your money from him. That was on the day of the actual evening of the offending. I note that, in that statement, Ms Malloy mentions, amongst other things, that she knows “Wagga” (that is Mark Seymour) well, as they had been friends for a couple of years. That Ms Malloy was a close friend of the co‑offenders Groves and Seymour was not gainsaid by the prosecution at the plea hearing. Moreover, Ms Malloy has apparently pleaded guilty to a charge of theft of the Mitsubishi vehicle driven by Groves on the evening of 13 May 2021. She got into that vehicle with Groves at the Barnawatha Service Station and drove off with him as the aggravated carjacking was taking place, or very soon thereafter. This seems to be further evidence of a close relationship with Groves.
[17]Exhibit “C”
43I agree with Mr Jackson’s interpretation of the events on the evening of the crime as outlined in the victim’s statements[18] as showing that your co‑offender Seymour appears to be the one who was in charge on that evening. He is the one who produced a machete and brandished it towards the victim while he grabbed the victim. It is not mentioned in the victim’s first statement that you were the first one to mention at the oval, “We are taking your car”,[19] although it is mentioned in his second statement as occurring prior to Seymour saying, “We’re taking your car because you owe us money.”[20] Thereafter, it is Seymour who directed the victim to get into the front passenger seat and then drove the victim’s car to the service station where he pulled a gun out of his pants demanding that the victim sign the car over as you gave the victim a piece of paper for this purpose. I find on the balance of probabilities that Seymour’s statement, “We are taking your car because you owe us money” (my emphasis) shows that he had some vested interest in committing this crime. I also note that, in the his second statement to police, the victim stated that he had had “a run in” with Seymour about three years previously.[21] This suggests some earlier animosity between the two of them, which may explain Seymour’s apparent enthusiasm in menacing the victim with weapons both at the oval and at the service station.
[18]Exhibit “B”
[19]Statement signed on 14 May 2021, paragraph 37
[20]Statement made on 18 May 2021, paragraphs 36 and 37, part of Exhibit “B”
[21]Ibid, paragraph 33.
44I found Mr Jackson to be a careful and compelling witness. I accept his opinion that, given your cognitive impairment, which involves a deficiency in problem-solving, planning and consequential thinking, it is highly unlikely that you would have had the wherewithal to devise and implement all of what happened on the evening of this offending. The rather elaborate and melodramatic sequence of events which unfolded at Barnawatha oval and culminated in the aggravated carjacking at the service station involved more than your very basic capacity for abstract concept formulation as described by Mr Jackson. It involved coordinating three other people (Malloy, Groves and Seymour); ensuring that the victim should arrive first at the football oval; orchestrating that Groves should arrive next so that he could park a vehicle in a way so as to prevent the movement of the victim’s vehicle; and, then, the sequential appearance of Seymour, followed by yourself, in order to threaten the victim.
45The Opening refers to you instructing Ms Malloy in order to lure the victim to the oval and transferring money to her to enable the victim to get to Barnawatha. However, as previously stated, the involvement of Ms Malloy, according to her statement, only occurred on the day of the offending itself, rather than being planned in advance, and, as I have previously stated, she appears to have been close friends with both Seymour and Groves. In the light of these factors and your cognitive impairment I cannot be satisfied beyond reasonable doubt that you were other than the mere conduit for instructions to Ms Malloy, as distinct from independently devising such instructions.
46Having carefully considered Exhibits “A”, “B” and “C”, along with Mr Jackson’s evidence, I find it more likely that the intricate planning for this offence was by Seymour and others, rather than by yourself, even though your grievance with the victims was the genesis for the offence.
47I am also satisfied, on the balance of probabilities, that your involvement in it was causally connected with your mental impairment, as described by Mr Jackson. I accept Mr Jackson’s evidence concerning your learned behaviour from your disadvantaged background, particularly related to your having witnessed your parents using acts of violence to extract debts from others. I also accept that learned behaviour remains with you life-long. I am satisfied, on the balance of probabilities, that this is the explanation for you deciding to use threats to recover your money which had been stolen by the victim. I also accept the opinion of Mr Jackson that, having made that decision, and being aware that because of your physical disabilities and small stature you would be unable to recover your money on your own, you had to ask others to help you. I am satisfied, on the balance of probabilities, that your action in having others assist you to recover the debt is attributable to a concrete thinking style and a limited ability to come up with alternative options to solve problems.
48The evidence establishes that, at the time of offending, you had significant sub-average intellectual functioning and significant deficits in adaptive behaviour, which were attributable to FASD, and that each of these had become manifest before the age of 18 years. Hence, you had an intellectual disability within the meaning of the Disability Act 2006. Such a disability satisfies the definition of “impaired mental functioning” in s10A of the Sentencing Act. Pursuant to s10A(2)(c)(i), I am satisfied, on the balance of probabilities, that such impaired mental functioning, particularly your limitations in problem solving, is causally linked to the commission of the offence and substantially and materially reduces your culpability for it. Accordingly, I find that “a special reason exists” providing an exception to the mandate that a court must impose a term of imprisonment and fix a non-parole period of not less than three years pursuant to s10AD(1).
49As I have determined that, at the time of the commission of the offence, you had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces your culpability pursuant to s10A(2)(c)(i), I find it unnecessary to consider the alternative “special reason” relied upon by your counsel pursuant to s10A(2)(e).
50Mr Burns, I know that your victim stole the sum of $2,550 from you in circumstances where he must have known of your cognitive and physical limitations because you had known each other for 5 years. This was dishonourable and dishonest behaviour which was a betrayal of your trust. However, the fact that another person has broken the law does not entitle you to go and break the law yourself, otherwise our society would descend into chaos. The fact that the victim stole from you, could never justify you committing this serious offence against him by way of retaliation or as a means to somehow compensate you for what you had lost. No one is entitled to take the law into their own hands. The only appropriate means of dealing with a situation whereby you have been the victim of a crime is to report it to the police so that they can investigate it. The offence of aggravated carjacking is a prevalent and serious offence for which Parliament has imposed a maximum penalty of 25 years’ imprisonment. On its face, this aggravated carjacking was planned and clearly committed in the company of your co-offender, Seymour, with input beforehand from Malloy and Groves. Generally speaking, an elaborately planned offence, particularly one which involves violence as well as dishonesty, warrants a more serious sentence than one which is spontaneous.
51The actions by you of which I am satisfied beyond reasonable doubt in the lead up to the offending are that you had texted the victim one week beforehand demanding your money and threatened him that you had others looking for him and, if they did not find him, they would find his car; that you enlisted the aid of others (Seymour and Groves) to try to recover your stolen money from the victim; and that, on the day of the offence, you asked Ms Malloy to lure him to Barnawartha and, also, that evening, communicated some instructions by telephone to her and transferred $30 to her account which she was to provide to the victim so he could get to Barnawartha. Beyond those steps taken by you prior to the offending, I cannot be satisfied, beyond reasonable doubt, as to your input concerning the planning that went into this offence. I note that, in your text messages to the victim, you made no mention that he would be threatened by the use of weapons. Although you were plainly aware that Seymour and Groves would be present at the oval to intimidate the victim, there is no evidence that you knew in advance that they planned to use weapons for this purpose. You were aware that the victim was intimidated by Seymour into getting into the passenger seat of his vehicle, but you were not aware that Seymour had a handgun until he produced it from his pants and pointed it at the victim at the Barnawartha Service station as you handed the victim a paper to sign over this car to you.
52Although aggravated carjacking is a very serious offence, based upon these factors, I find that your culpability overall is significantly below that of Seymour. You are guilty of the aggravated carjacking because you went along with stealing the victims vehicle once Seymour had produced the gun, knowing that he had already intimidated the victim into getting into his vehicle a short time beforehand.
53Given the serious nature of aggravated carjacking, generally there would be a need to place emphasis upon the court denouncing this violent, prevalent conduct, and also upon general deterrence. General deterrence means that, through sentencing a particular offender, the court sends a message out to the community that others, who might be minded to act in the way that that offender has done, will be appropriately punished. This aims to deter others from committing similar crimes.
54In your case, the evidence of Mr Jackson concerning your cognitive impairment attributable to your prebirth condition of FASD attracts the application of limb one in Verdins’ case to reduce your moral culpability for the offending and, also, the extent to which denunciation is emphasised in the sentencing process. In addition, such impaired mental functioning moderates the emphasis upon general deterrence.
55Your prior offending does not impress me as being one of regular, very concerning violence. On two separate occasions back in December 2004, you were before Albury Court for common assault and contravening an Apprehended Domestic Violence Order. More than 18 years has elapsed since then without evidence of any further violent offending, and the fact that you were fined $300 for the assault and placed on a 12-month bond to be supervised by New South Wales Probation Service probably reflects the relatively low order of such offending. Your relative lack of prior violent offending and the lesser role that you played compared to Seymour cause me to conclude that the emphasis upon specific deterrence required in sentencing is not as great as it might otherwise have been. Your impaired mental functioning also reduces the extent to which that is a sentencing consideration pursuant to Verdins limb four.
56The prosecution has not taken issue with the application of Verdins limb five. This is an appropriate concession in the light of Mr Jackson’s concern about you not coping well in prison and feeling depressed and anxious about being in prison. In particular, Mr Jackson expressed his concern about your neuropsychological profile making you very vulnerable to being used and abused by other prisoners, particularly as your thinking is black and white and you do not have the capacity to question other people’s motives. He considered that you could easily get yourself into trouble with other prisoners or prison staff due to your cognitive impairments and lack of executive functioning.[22]
[22]Exhibit “1”, page 17, third dot point
57You plainly feel vulnerable in prison. It is readily visible that you are very thin and physically frail and have a gait which is slow and laboured, with both knees permanently flexed, and that your back is markedly hunched. You told Ms Bovenkerk that the prison environment “scares the shit out of (you)” and reported difficulties with other inmates who “treat (you) like (you’re) a spastic”.[23] You also told the court that you have had difficulty managing certain work given to you in the prison environment. In addition, the court acknowledges that you suffer significant pain relating to your various physical conditions. You told the court that, in the past, you had been prescribed Oxycodone for a number of your significant health issues, but had to be careful because of its addictive nature and your problem with substance abuse. You stated that you have constant pain in your back, arms and legs (all of which you are unable to fully straighten) and that you find it very hard to stand up all day in order to do work in the prison, although you are endeavouring to cope as best you can in a role spray painting items in the timber warehouse. You stated that you are accommodated to some extent with your disabilities by being able to sit or stand and take breaks. You noted that, for a short time you were being prescribed Panadol in prison, but this had ceased and you are receiving only one physiotherapy appointment once per month. On top of your cognitive impairment and mood issues, I find that these physical disabilities, which have caused you to be in receipt of a disability pension for many years, are likely to make serving a term of imprisonment more onerous than for a person who does not have the cognitive, mood and physical disabilities suffered by you. I have twice now expressed my concern about the need for you to be medically assessed for pain relief and more regular physiotherapy, as you have ceased to be provided with Panadol, at all, and are only being given one relatively short physiotherapy session each month. I was further concerned to learn, at the Mention held on 7 March 2023, that you had had to wait two days for a visit to the Medical Centre for assistance with a nebuliser when you were suffering quite marked respiratory distress relating to your asthma, emphysema and chronic obstructive pulmonary disease. The lack of adequate medical attention to your multi-factorial complex physical problems makes your time in custody very difficult.
[23] Exhibit 2, p 7, para 74.
58In sentencing you, I note Mr Jackson’s expressed concern about your capacity to cope with imprisonment. Also, the opinion of Ms Bovenkerk is that, given your history of depression, anxiety and trauma, with potential for significant mood fluctuation, the volatile nature of the prison environment may further exacerbate your symptoms. In particular, she stated that, without immediate psychological intervention, you are at increased risk of further emotional deterioration because of your low coping resources and mental health history.[24] Accordingly, I accept that limb 6 of Verdins case has application.
[24]Exhibit “2”, pages 10-11, paragraph 110
59I have taken into account the relative objective seriousness of the circumstances of this charge of aggravated carjacking. However, as previously stated, I am satisfied on the balance of probabilities that you lacked the capacity to plan all of the intricate details involved in this offence. Essentially, you are to be punished for having enlisted the help of others to recover your money from the victim and then going along with what would appear to be the strategies employed by those for that purpose. In particular, you did not distance yourself from Seymour’s behaviour whereby he forced the victim into his own vehicle shortly prior to the offence or when Seymour actually produced a handgun to force the victim to sign the car over to you.
60Had I been satisfied beyond reasonable doubt that you were the architect of all of the plans that were put into place prior to the aggravated carjacking occurring, then the sentence to be imposed today would be a far higher one that I intend to impose. However, justice requires that a sentencing judge not only take into account the objective gravity of the offending but, also, your particular role in it.
61I accept that your plea of guilty has significant utilitarian value, particularly give the more onerous conditions in prison occasioned by the COVID 19 pandemic restrictions. I also accept this is a remorseful plea. I have also taken into account your reduced moral culpability relating to your disadvantaged background, your cognitive impairment and your long-term anxiety and depression. I accept, these probably added to a clouding of your judgement in accordance with the opinion expressed by Mr Jackson. These, together with your significant physical disabilities, which are mostly a consequence of FASD, particularly your chronic obstructive pulmonary disease and osteoporosis, limit your capacity for physical exertion. These difficulties, on top of your limited education and cognitive impairment, make you more vulnerable in custody. It is of concern that, whilst on remand in custody, you have had limited support for your psychological, as well as for your physical, impairments. I agree with Mr Jackson that you present as a person much older than your actual age.
62You do have a history of substance abuse but, generally speaking, in spite of the complex constellation of your physical, intellectual and psychological impairments, you have managed to achieve a significant period where you were not before the criminal justice system, over 11 years between February 2004 and December 2015. Your more recent offending in 2016 and 2020 has been for relatively low level possession of illicit drugs as reflected by the fines imposed. It seems that you were at a particularly low ebb at the time of offending, given your homelessness and the deterioration in the relationship with your partner upon whom you were reliant for support, albeit that she, too apparently has had her own substance abuse problems.
63On the one hand, your long-term substance abuse issues do not bode well for rehabilitation. On the other hand, you have now had quite a lengthy period in custody on remand during which you have remained abstinent from illicit drugs and alcohol. Hence, you are probably better equipped than in the past to try to rehabilitate yourself in the community. It is of significance that Mr Jackson opines that you are capable of learning new behaviour. This means that, if your abstinence can be maintained and you can be given new strategies to cope with the stressors in your life, there is some prospect that you may be rehabilitated. However, I consider that you would need very significant supports to be put in place once you are released back into the community.
64It was only after I raised it at the plea hearing, that your solicitor apparently filled out an application for you to sign in order to receive a package under the National Disability Insurance Scheme (NDIS). Whether this application has yet been submitted I do not know. I imagine that the progress of that application will take some time. In the meantime, I must urge custody authorities to assess your medical needs, particularly in relation to analgesia relating to pain for your bone abnormalities, and to carefully monitor of your serious chronic obstructive airways disease. It seems to me that more regular physiotherapy treatment should be made available to you in prison, rather than simply one attendance per month. Also, there should be careful monitoring of your psychological state and the need for any medication associated with that.
65In all of the circumstances, the only appropriate sentence is that of a term of imprisonment with a non-parole period. Obviously, whether you are granted parole is a matter for the Parole Board, not for this Court. When the matter was last before me for mention on 7 March 2023, your counsel, Mr Connolly, advised the court that you and your partner, Rowina Stobie, have apparently reconciled whilst you are still in custody on remand. Apparently, you hope to move in with her and another friend, Belinda Hyatt, when you are eventually released from prison. Apparently, Ms Stobie and Ms Hyatt are residing at 9 McCroham Court in Wodonga. Mr Connolly stated that you have another source of support from a friend, Chantelle Bruno, who also lives in that area at 7 Georgina Street, West Wodonga. Across the border, in Albury, you have an uncle with whom you have a good relationship, but, obviously, he lives just out of the State of Victoria.
66I mention these matters because, if considering a grant of parole, the Parole Board would be concerned to ensure that you have appropriate accommodation before you could be released into the community. I consider that it would be essential that you be linked in with an area mental health service, as well as a doctor who will be able to monitor your special physical needs, particularly those relating to your respiratory condition and osteoporosis. I imagine that, if you are to be considered for parole, it will take some time to ensure that appropriate supports are in place, so I would urge you to make an application for parole promptly. You need to be aware that there is usually a considerable delay before an appropriate assessment report can be prepared in order for the Parole Board to assess your suitability for parole.
67On one charge of aggravated carjacking, you are convicted and sentenced to be imprisoned for a period of three years and three months. I direct that you serve a period of two years and two months before becoming eligible for parole. I declare a period of 665 days of pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
68Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the total effective sentence would have been five years’ imprisonment with a non-parole period of three and a half years.
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